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One Scotland, many cultures?

17 March 08

Despite the protections of the Human Rights Act, the position of travelling people in Scotland appears to have worsened in recent years - why?

by Ian Taggart

The situation of the gypsy/traveller community in the United Kingdom, in particular the Scottish traveller community, has given increasing concern regarding the degree of social exclusion and levels of harassment and discrimination suffered by this community.

Background

In 2000, the Scottish Executive Central Research Unit published the research report by Lomax, Lancaster and Gray, Moving On: A Survey of Travellers’ Views, providing an extensive survey of this community’s lifestyles and important details of the level of prejudice and harassment being suffered. The original report indicated that 62% of respondents had been subjected to prejudice or harassment in the preceding 12-month period.

The timing of the original report is important in that the Human Rights Act 1998 (HRA), and Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000 (RRAA), were enacted during or shortly after the original research. In combination, this legislation should have impacted on gypsies'/travellers' lifestyles, particularly the levels of prejudice and harassment. The provisions of the RRAA should have improved inter-community relations and essential public service provision to this community.

Additionally, shortly after the introduction of this legislation, the Scottish Parliament Equal Opportunities Committee undertook an inquiry in 2001 regarding service provision to gypsies/travellers in Scotland. This inquiry (Scottish Parliament Equal Opportunities Committee, 1st Report 2001 – Inquiry into Gypsy Travellers and Public Sector policies, Vols 1 and 2) made a total of 37 recommendations, designed to improve service provision to gypsies/travellers regarding a whole spectrum of public service provision intended to improve health, accommodation, education, etc.

Given the timing of the original research, revisiting the methodology should enable measurement of the impact of this legislation, recommendations and consequential policies on gypsies'/travellers' lifestyles.

In the summer of 2007, the author undertook research, focused on the north east of Scotland, with a similar sample of gypsies/travellers as the original research, using an identical questionnaire. Surprisingly there was little improvement in gypsies'/travellers' lifestyles, and any that was apparent was very localised. The most staggering statistic was that there had been a 17% increase to 79% in the number of respondents who reported they had suffered prejudice or harassment in the preceding 12-month period. The majority of these instances consisted of racial abuse (Taggart, I, Moving On – Again? (University of Aberdeen, 2007): http://www.aberdeenshire.gov.uk/privatehousing/Movingonagain.pdf), and disturbingly, 29% of respondents reported being subjected to racially motivated attacks. It was also apparent during interviews that the great majority of the remaining respondents had been subjected to racist activity outwith this timescale.

Why, given the various strengthened sources of legal obligations and duties, does this situation seem to have deteriorated?

The European Convention

Following the incorporation of the ECHR into domestic law, by the Human Rights Act 1998, it was anticipated that progress would be made regarding the development of gypsies'/travellers' rights. The case of Chapman v UK (Application no 27238/95) (2001) 33 EHRR, recognised that occupation of a caravan was an integral part of gypsies'/travellers' ethnic identity (para 73), and that contracting states had an obligation to "facilitate the gypsy way of life" (para 96).

Nomadism is one of the central cultural traits of gypsies/travellers that inevitably creates a requirement for appropriate accommodation to facilitate this lifestyle. Examining accommodation provision in Scotland since the Chapman judgment, there has been a 16% reduction in available accommodation (Gypsies/Travellers in Scotland – The Twice Yearly Count – No 11 (Scottish Executive, January 2007)), with much higher reductions in some geographic areas: during the author's research in summer 2007 there was a 53% reduction in the north east of Scotland, with Moray Council providing no sites for gypsies/travellers. Inevitably this has made it extremely difficult for gypsies/travellers to find suitable accommodation when travelling, and inevitably an increase in unauthorised encampment has occurred. This in turn has led to a substantial increase in inter-community tension that frequently manifests itself in the form of racial abuse and racially motivated attacks against the gypsy/traveller community.

Race relations legislation

The Stephen Lawrence inquiry provided a definition of institutional racism, part of which is very relevant regarding the situation that the gypsy/traveller community is in at present: "It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people" (report, para 6.34).

The RRAA created a general duty on relevant public bodies to eliminate unlawful racial discrimination, promote equality of opportunity and good relations between persons of different racial groups (Race Relations Act 1976, s 43(1)). The introduction of statutory duties in this legislation represented a change in philosophy, moving race relations legislation from what had generally been a reactive orientation that demanded a response after the fact, to an emphasis on the proactive promotion of equality and good relations in society.

Subsequently the Race Relations Act 1976 (Statutory Duties) (Scotland) Order 2002 (SI 2002/62) was introduced detailing specific duties, to assist in delivering the general duty, creating a duty on all relevant public bodies to publish a race equality scheme (RES) showing how each public body intends fulfilling its statutory duties under the RRAA. The principal provisions regarding the requirement to challenge racism proactively and progress equality are contained in article 2(3)(a) and (b), regarding identification, monitoring and assessment processes relevant to the functions and policies of specified public bodies.

Whilst all specified public bodies detail impact assessment processes in their respective RESs, given the situation that gypsies/travellers find themselves in today it is questionable whether these processes are being undertaken appropriately. Implementation of these processes should have progressed equality, and in particular challenged and informed the "unwitting prejudice, ignorance, thoughtlessness and racist stereotyping" apparent in institutional racism.

At present there appears to be a resistance, or at best a lack of will, in public bodies to undertake these processes appropriately, with a number of public bodies not having impact-assessed all of their policies, or published the results of these processes.

Policies

The Scottish Parliament Equal Opportunities Committee recommendations were wide-ranging and included that all legislation and policies should be framed on the understanding that all gypsies/travellers would be regarded as an ethnic group until case law develops (report, cited above, recommendation 2). Despite this recommendation, case law has not developed; however it is considered that all gypsies/travellers satisfy the conditions to be defined as a racial group on ethnicity grounds for the purposes of the RRAA. This position was accepted in the persuasive case Commission for Racial Equality v Dutton [1989] 2 WLR 17, regarding the definition of travellers in England.

The EOC subsequently revisited the recommendations in 2005 when it was apparent, from the evidence received, that the majority of recommendations had not been implemented (Equal Opportunities Committee, 5th Report 2005 (Session 2): SP Paper 432, EO/S2/05/R5). Further recommendations or guidance are awaited following the 2005 inquiry.

This combination of non-implementation of the original recommendations, lack of monitoring of policies and appropriate impact assessment has resulted in a failure in service provision to gypsies/travellers. It is argued that these shortcomings have led to an increase in the climate of institutional racism, particularly that founded on unwitting prejudice, ignorance and thoughtlessness, towards gypsies/travellers. Unsurprisingly, members of the gypsy/traveller community lack any confidence in engaging with public bodies, even regarding incidents of racial abuse/attacks, relying instead on social networking within their community for information. There is a widespread mistrust in this community of interaction with public bodies or, if they do, a belief that they will be subsequently ignored.

System failure

The degree of social exclusion, discrimination and racism suffered by the gypsy/traveller community in Scotland is unacceptable and amongst the worst in the United Kingdom. There is no other community in Scotland subjected to such levels of prejudice and harassment, which appears to be accepted by the wider community as the last acceptable form of discrimination.

Appropriate implementation of existing obligations, policies and legislation should and would have prevented this situation developing to the degree it has.

Following the heady days of the mid-1990s, when case law from the European Court of Human Rights in 1996 created an obligation to facilitate the gypsy/traveller way of life, a degree of expectation existed that gypsy/traveller rights would progress. Sadly this has not occurred and is unlikely to in the foreseeable future, given the lack of compliance by public bodies with their statutory duties.

Policy monitoring and impact assessment processes are mechanisms for developing, improving and progressing policies and functions, ensuring cognisance is taken of legislative provisions and, importantly, consultation with the "end users', the gypsies/travellers in this case. These processes are an essential means of moving towards equality, social inclusion and the elimination of institutional discrimination. It is disturbing that despite their respective statutory duties, the majority of relevant public bodies have failed to implement these processes appropriately and are consequently failing the minority communities they serve, particularly gypsies/travellers.

The result is the failure to promote equality that, for the majority of gypsies/travellers, equates to the misery of no accommodation, daily racial abuse and racially motivated attacks on a regular basis.

Ian Taggart is currently a PhD student researching gypsy/traveller law at the University of Aberdeen. This paper is derived from research undertaken to inform his PhD thesis. The author would like to thank Dr Heather Lardy, senior lecturer at the University of Aberdeen, who was kind enough to give her time and opinion during its preparation.