Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14455/88

by Ruby, John and Tommy SMITH

against the United Kingdom

The European Commission of Human Rights sitting in private

on 4 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 October 1988

by Ruby, John and Tommy SMITH against the United Kingdom and registered

on 8 December 1988 under file No. 14455/88

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to:

- the Commission's decision of 5 September 1989 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

6 April 1990 and the observations in reply submitted

by the applicant on 9 July 1990.

Having deliberated;

Decides as follows:

THE FACTS

The applicants are gypsies born in 1949, 1947 and 1945

respectively. They have lived in Hereford all their lives. They are

represented before the Commission by Mr. L. Clements, solicitor of

Messrs Thorpes, Hereford.

The facts of the case may be summarised as follows.

After the entry into force of the Town and Country Planning

Act 1947, the Highways Act 1959 and the Caravan Sites and Control of

Development Act ("the 1960 Act") it became, in practice, very

difficult for gypsies to find accommodation. At least partly in

response to such problems, the Caravan Sites Act 1968 ("the 1968 Act")

was passed. The 1968 Act provides inter alia as follows:

"Section 6

(1) Subject to the provisions of this and the next following

section, it shall be the duty of every county council ...

to exercise their powers under Section 24 of the Caravan

Sites and Control of Development Act 1960 (provision of

caravan sites) so far as may be necessary to provide

adequate accommodation for gypsies residing in or resorting

to their area.

...

Section 9

...

(2) The Minister may, if at any time it appears to him to be

necessary so to do, give directions to any [county council]

requiring them to provide, pursuant to the said Section 6,

such sites or additional sites, for the accommodation of

such numbers of caravans, as may be specified in the

directions; and any such directions shall be enforceable, on

the application of the Minister, by mandamus. ..."

Several studies were subsequently made into the position of

gypsies, in particular the Cripps Report (presented to the Minister of

Housing and Local Government in December 1976), a report by

Mr. I. McGill of Brighton Polytechnic in 1979/80 and a review on the

effectiveness of policy in the area of providing gypsy sites by

Professor Wibberly in 1986. Specific provision was made for gypsies

in departmental circular 28/77 of 25 March 1977 to County and

District Councils and London Borough Councils; in departmental

circular 57/78 of 15 August 1978; in the Local Government, Planning

and Land Act 1980 (which provided for 100 per cent grants for the

establishment of gypsy caravan sites (since April 1990 any such

moneys do not count against other capital expenditure allocations);

also in other circulars, for example 8/81.

In 1978, the applicants, with other members of the Hereford

Traveller Support Group, petitioned the Secretary of State for the

Environment ("the Secretary of State") for the provisions of adequate

stopping sites within the area of the former Hereford County Council.

The Secretary of State declined to use his powers under the 1968 Act

by letter of 2 June 1978.

After various disputes between the applicant and the Hereford

and Worcester County Council, in early 1986 the applicants' solicitors

instituted judicial review proceedings for declarations that the

County Council was in breach of its Section 6 duties and that the

Secretary of State had wrongly failed to exercise his Section 9

direction giving powers. They also requested an order that the County

Council acquire specific land for extra pitches, decide on the

location and extent of further sites and acquire or appropriate land

for such further sites within 24 months.

In a judgment of 28 April 1988 Mr. Justice Henry found as

follows:

"In Hereford and Worcester, the situation is even worse than

it is nationwide. Annual counts show that in January, 1982

75% of all caravans in the country council area were on

unauthorised spaces, in January, 1986 that was down to 66%,

and in January, 1987 it was 62% - this against the national

average of about 33%. To look at the problem from another

angle, as early as 1979 the county council had concluded

that four hundred pitches were needed in its area: two

hundred and thirty to be provided by the local authority,

one hundred by the private sector and seventy transit

pitches. The Department has accepted, and still accepts,

that such figure would be adequate provision. Of the two

hundred and thirty that were to be provided by the local

authority, to date only seventy-two have been. Twelve of

these were provided as long ago as 1964, another fifteen in

March of 1974, a further fifteen in July, 1977, and thirty

on 2nd February, 1980. Additionally to these seventy-two,

firm proposals or commitments have been made to a further

twenty-nine. Beyond that there is no certainty where the

remainder of the sites will be. So, eighteen years after

the Act came into force, the county council is not even half

way to its own target for local authority provision. In

those circumstances it is scarcely surprising that the

applicants have obtained legal aid and come to this Court.

...

... it should be noted that in 1968 when the Act was

passed, public law challenges to local authorities for

failure to perform statutory duties were virtually unheard

of. The concept of public law was relatively unfamiliar.

Any private law challenge to the actions or inaction of the

county council or Secretary of State would have encountered

a real obstacle in the House of Lords decision in Pasmore

-v- Oswaldtwistle Rural District Council (1898) AC 387."

The judge then found that there could be a breach of the

Section 6 duty even though there had been no prior direction under

Section 9.

In the context of the test to be applied in determining

whether a breach of Section 6 existed, he found:

"The manifest intention of Parliament was that there should

be sufficient sites to accommodate the whole of the gipsy

community within the law: That is to say at sites properly

supervised and properly situated so that as at worst to

reduce to a minimum the tensions that have often existed

between gipsies and the ordinary house dwelling community,

and at best to integrate the gipsies.

The need for such a policy is patent. The social damage

caused by there not being sufficient sites to accommodate

the nation's gipsies goes beyond the obvious effect of

homelessness on the families concerned and on the conscience

of the community. If there are not sufficient sites where

gipsies may lawfully stop, then they will be without the law

whenever and wherever they do stop. This will result either

in them being harried from place to place, or in them being

allowed to remain where they should not lawfully be.

If moved on, they and their children will suffer from

society's failure to provide for them, and the effect of

forced departures on education and employment opportunities

will not only perpetuate the cycle of deprivation, but is

likely in itself to foster unlawful and anti-social

behaviour in them. Their plight will or should be an

affront to the national conscience.

On the other hand, if allowed to remain as trespassers, not

only are the tolerated sites likely to be in the wrong place

(gipsy sites are not perceived to be the best of neighbours

even when properly sited and supervised), and therefore both

objectionable and conspicuous, but the community will be

indignant to witness necessary laws not being enforced. Too

selective an approach to law enforcement undermines the

rule of law. Either result points to the urgent necessity

to make adequate provision for gipsies.

...

It follows then that on the bare numerical review of the

figures for site provision in each county already set out in

this judgment, I must find the county councils of Hereford

and Worcester in breach of their duty under Section 6 of the

Act."

The judge concluded that eighteen years was long enough for

county councils to have complied with their obligations, and that

where they had not made adequate provision, there was a breach of

the statute.

As to the refusal of the Secretary of State to give a Section

9 direction, the judge summed up as follows:

"Ultimately the questions seem to me to be:

(1) Has the Secretary of State properly appreciated the

urgency that the passage of eighteen years has injected into

the finding of a solution to this problem? On the evidence

before me, I have to conquer the doubts that the bald

outline of the facts arouse in me, and pay regard to the

care, attention to detail, and quality of reasoning set out

in Mr. McNulty's [of the Department of the Environment]

affidavits. It indicates a lively appreciation of the

problem. Whatever lack of past political will may have

contributed to the present position, in assessing whether it

is necessary now to give a direction, Mr. McNulty is in an

infinitely better position than the court to judge the

presence of the necessary political will in these counties.

Parliament entrusted him with the performance of that duty

on behalf of the Secretary of State, and there is nothing in

the evidence that would permit me to find that his judgment

on this matter could be set aside on the tests indicated.

The urgency has been properly appreciated.

(2) Has the Secretary of State properly evaluated the

present factual position, and each county's plans for the

future? I have already made the point that he is properly

informed. (A) In Hereford and Worcester, the most

up-to-date affidavit is Mr. McNulty's of 30th September

1987. He there looks at future plans and concludes: 'As

much is being done by the county council at the moment as

would be likely to be achieved were a direction to be given

by him'. The situation is being kept under review with

quarterly reporting. The minutes of the meeting of the

Members Gipsy Group on 3rd December 1987 do not, in my

judgment, invalidate the opinion he formed. Those minutes

show that the minority of four of the nine members are

clearly pressing hard for sites and impatient as to delays,

but I would take this to be a healthy sign for the future,

rather than as showing that it demonstrated such an obvious

lack of political will in the majority as to make any

decision not to give directions as perverse.

It seems to me that Mr. McNulty's view is one which

it is a view open to him within the boundaries of his

discretion, and cannot properly be upset by this court.

...

... having to answer the question as to whether the county

councils have the necessary political will for this task in

these proceedings has vividly demonstrated to me that the

Department, doing its job properly, will be infinitely

better placed to answer that question than the court can be

expected to be.

Having said that, as I have already indicated, I do

not believe that Parliament could have envisaged that making

adequate provision for gipsies should take this long, and

surely the time must have now come when the Department will

be intensifying its pressure on the counties nation-wide to

demonstrate that this relatively small but serious problem

must be solved, and its solution must be given priority."

As to relief, the judge refused to make an order that the

Secretary of State should make a Section 9 order, and also refused to

make a specific order against the County Council:

"Parliament entrusted the Secretary of State with responsibility

for deciding first, when to give a direction, and second, when to

give additional teeth to that direction by coming to the court

for an order of mandamus to enforce it. That clearly must

mitigate strongly against the court, in the exercise of its

discretion, short-circuiting the procedure provided by itself

issuing a direct mandamus against the county council concerned.

Such a course would seem to be, in any case such as the present

cases, wrong for the following reasons: (i) It shows the court

and the Secretary of State (whose original responsibility

Parliament made it) to be at odds as to what is necessary to

achieve provision of adequate accommodation for gipsies. (ii) The

Secretary of State will almost invariably be in the better

position to judge what is necessary and what will work towards

that goal.

I am strongly of the view that even in the truly

exceptional case it might be right to grant mandatory

relief against a county council other than in support of

a Section 9 direction, it would be quite wrong for that

relief to impose a fixed time limit for the provision of

sites, ... because the court is not in a position to

know how long it will take the county council, in the

proper discretionary exercise of their various statutory

duties, to achieve the required target. Therefore, to

make such an order would be for the court to order what

might prove impossible, in circumstances where the

pressure from such an order might put the county councils

in danger of breaking other conflicting legal duties."

Finally, a declaration that the county council was in breach

of its obligations under Section 6 was granted.

Shortly after the judgment, counsel advised the solicitors

that the applicants had no prospect of obtaining mandatory relief or

damages and that nothing would be achieved by an appeal. On

22 November 1988 this was confirmed by a written opinion in which he

stated inter alia:

"I am of the firm opinion that the English courts will not grant

gypsies anything more than a declaration against offending county

councils ...

It follows that any appeal would be pointless as far as English

law is concerned. As such legal aid would definitely not be

available. I have met the applicants. They are virtually

illiterate having received little education. They could not

possibly conduct a case without legal representation. Nor could

they afford to pay privately for representation in the Court of

Appeal."

COMPLAINTS

The applicants allege violations of Articles 3, 8, 13 and 14

of the Convention, and of Articles 1 and 2 of Protocol No. 1.

The applicants submit that gypsies in general and themselves

in particular have been forced to move from one unsatisfactory

stopping place to another time after time by local and national

government, and that the manner in which they have been forced from

one location to another amounts to degrading treatment, lack of

respect for their private and family lives and their homes and a

denial of the right to peaceful enjoyment of their possessions. As a

consequence of such forced moves and the failure to provide sites,

gypsy children (including the applicants' children) receive little or

no education and grow into illiterate or barely literate adults. The

applicants submit that these denials of human rights would not be

tolerated at all if the victims were United Kingdom

house-dwellers, and that this constitutes discrimination within the

meaning of Article 14 of the Convention.

The applicants state that, notwithstanding a clear statutory

duty on county councils and other local authorities, the only remedy

they have is to seek a declaration that the local authority is in

breach of its duty. No right to sue for damages exists nor is other

compensation available.

The applicants state that since the declaration was made in

April 1988, no noticeable effect has been discerned in the local

authorities' behaviour; the County Council of Hereford and Worcester

had a declaration of a breach of Section 6 made against it and

thereafter made less progress in the provision of gypsy sites than it

had stated it would make before the declaration was granted. The

consequence of this is that no effective remedy before a national

authority exists for gypsies such as the applicants who take legal

proceedings which result in a clear judicial decision that a law meant

for their benefit and the benefit of their families has been disobeyed

to a substantial extent for many years.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 October 1988 and

registered on 8 December 1988. On 5 September 1989 the Commission

decided to bring the application to the notice of the respondent

Government and to invite them to submit written observations on its

admissibility and merits. The respondent Government submitted their

observations on 6 April 1990 after an extension of the time limit to

12 January 1990 and the applicants submitted their observations in reply

on 9 July 1990 after an extension of the time limit to 13 July 1990.

THE LAW

1. The applicants complain that they are unable to find

satisfactory lawful stopping places. The Commission has examined this

complaint under Article 8 (Art. 8) of the Convention, which provides as

follows:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Government consider first, that the applicants have failed

to exhaust domestic remedies in that they did not appeal against the

part of the judgment of Mr. Justice Henry of 28 April 1988 which

refused them the relief they sought beyond a declaration.

Secondly, the Government consider that the applicants' complaints

do not come within the scope of Article 8 (Art. 8) of the Convention

because the complaints in respect of their homes are tantamount

to a claim to a right to a home or to housing. They contrast the

provisions of the Convention and in particular Article 8 (Art. 8) with

Article 16 of the European Social Charter and Article 11 of the

International Covenant on Economic, Social and Cultural Rights,

which make clear and express provision for a right to housing.

As to the question of domestic remedies, the applicants point

out that, although the Government indicate the scope of the powers of

the Court of Appeal on appeal from the High Court, they do not indicate

any possible grounds of appeal. The applicants consider that this is

because there were none. As to the merits of the Article 8 (Art. 8) issues,

the applicants consider that their homes are their caravans, and that

if the local authority had obeyed the domestic laws, respect would

have been shown for their homes.

Concerning exhaustion of domestic remedies, the

Commission recalls that Article 26 (Art. 26) of the Convention only

requires the exhaustion of such remedies which relate to the breaches

of the Convention alleged and at the same time provide effective and

sufficient redress. An applicant does not need to exercise remedies

which, although theoretically of a nature to constitute a remedy, do

not in reality offer any chance of redressing the alleged breach (cf.

No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).

The Commission recalls that in the present case, shortly after

Mr. Justice Henry gave his judgment on 28 April 1988, counsel for the

applicants expressed his opinion to the applicants' solicitors that

the applicants had no prospect of obtaining mandatory relief or

damages and that nothing could be achieved by an appeal. This oral

opinion was confirmed, in the course of the Commission's proceedings,

by an opinion of 22 November 1988. It is true that the applicants did

not apply for legal aid for an appeal, but given that the barrister

involved in the case at first instance had concluded that there was no

prospect of a successful appeal, and that the same barrister may have

been called on to give an opinion if legal aid had been applied for,

the Commission finds that the failure to apply for legal aid is not

conclusive for the question whether the applicants have exhausted

remedies.

The Government further consider that the written opinion

eventually proferred was wrong and that the Court of Appeal could have

granted mandatory or other further relief against the local authority

or the Secretary of State. However, the Commission notes, as the

applicants point out, that the Government do not indicate any specific

grounds on which the applicants could have relied on appeal. The

burden of proving the existence of available and sufficient domestic

remedies lies upon the State invoking the rule (cf. Eur. Court H.R.,

Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26,

and No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96, at p. 102), and an

indication of the existence of a superior jurisdiction is not

sufficient to establish the existence of a remedy complying with

Article 26 (Art. 26): the State invoking the rule must show that the

remedy relied on is available and sufficient. In the absence of any

indication that there is a possible ground of appeal, the Commission

is unable to accept that the application should be declared

inadmissible for non-exhaustion of domestic remedies.

The Commission recalls that the traditional way of life of a

minority can, in principle, attract the guarantees of Article 8

(Art. 8) of the Convention (cf. Nos. 9281/81 and 9415/81, Dec.

3.10.83, D.R. 25 p. 30). The Commission also notes that since 1948,

in particular, a series of Acts of Parliament and other developments

have made life progressively more difficult for gypsies. In

recognition of this fact, Part II of the Caravan Sites Act 1968, which

entered into force on 1 April 1970, inter alia imposes a duty on local

authorities to make adequate provisions for gypsies in their area.

The Secretary of State is given various powers to ensure and coerce

local authorities in their duties; in particular by "designation" of

areas which have made adequate provisions (thereby giving local

authorities certain additional powers) and by giving "directions" to

local authority requiring them to provide sites. The present case

does not concern a designated area, and Mr. Justice Henry found (a)

that adequate provision had not been made for gypsies in Hereford and

Worcester, (b) that the Secretary of State could refuse to give a

direction and (c) that he (the judge) would not substitute his view

for that of the Secretary of State.

The question for the Commission is, accordingly, whether the

legislation and enforcement mechanisms referred to above, secure the

applicants' rights to respect for their private and family lives and homes.

In this regard, the Commission notes first that it is the

function of Article 13 (Art. 13) of the Convention, and not Article 8

(Art. 8), to guarantee remedies in respect of alleged violations of

the Convention. Moreover, the Convention does not as such create new

procedural rights. Accordingly the absence of a remedy cannot of

itself constitute a violation of Article 8 (Art. 8).

The Commission next recalls the finding of Mr. Justice

Henry that the Secretary of State had been alive to the problems

facing both the applicants and the local authority, that the

Secretary of State was better placed than he (the judge) to

assess the political climate in the county and that the factual

position had been fully evaluated.

The Commission recalls that Article 8 (Art. 8) of the

Convention does not contain an express right to living accommodation.

Moreover, although Article 8 (Art. 8) may require positive action from

Contracting States in certain circumstances, it is inevitable that

when questions of policy and implementation arise, a considerable

discretion must be left to them. The Commission finds that, in the

present case, questions relating to the immediate provision of gypsy

sites in Hereford and Worcester were broadly canvassed by the

Secretary of State and by the Court, and there is no indication that

the authorities acted in such a way as not to respect the applicants'

right under Article 8 (Art. 8) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicants also allege a violation of Article 13 (Art. 13)

of the Convention in connection with the complaints under Article 8

(Art. 8).

The Commission has just declared inadmissible the applicants'

complaints under Article 8 (Art. 8) of the Convention. It finds that

they were not "arguable" within the meaning of the case-law of the

European Court of Human Rights (see, for example, Powell and Rayner

judgment of 21 February 1990, Series A No. 172, p. 14, para. 31 with

further references).

Accordingly, this complaint must also be declared manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

3. The applicants also allege violations of Articles 3 and 14 of

(Art. 3, 14) the Convention and Articles 1 and 2 of Protocol No. 1

(P1-1, P1-2).

The Commission has considered these complaints in the light of the

material submitted by the applicants. However, insofar as these matters

are within the Commission's competence and to the extent that the allegations

have been substantiated, the Commission finds that they do not disclose

any appearance of a violation of the rights and freedoms referred to.

This part of the application must therefore be rejected in

accordance of Article 27 para. 2 (Art. 27-2) of the Convention as

being manifestly ill-founded.

Accordingly, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SMITH v. THE UNITED KINGDOM

SMITH v. THE UNITED KINGDOM

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