CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 mai 2004

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THE UNITED KINGDOM     (Application no. 66746/01)     JUDGMENT     STRASBOURG     27 May 2004       FINAL     27/08/2004         This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Connors v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of   Mr   C.L. R ozakis , President ,   Mr   P. Lorenzen ,   Sir   Nicolas Bratza ,   Mr   G. Bonello ,   Mrs   F. Tulkens ,   Mrs   S. Botoucharova ,   Mrs   E. Steiner, judges , and Mr S . N ielsen , Section Registrar , Having deliberated in private on 22 January and 6 May 2004, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 66746/01) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr James Connors (“the applicant”), on 29 January 2001. 2.     The applicant was represented by Mr K. Lomax, a lawyer practising in Leeds. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London. 3.     The applicant complained that he and his family had been evicted from a local authority gypsy caravan site, invoking Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). 5.     By a decision of 14 November 2002, the Court declared the application admissible. 6.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 22 January 2004 (Rule 59 § 3).         There appeared before the Court: (a)     for the Government Mr   D. W alton,   Agent , Mr   T. Mould ,   Counsel, Ms   V. Goulburn, Mr   D. Gleave   Advisers ; (b)     for the applicant Mr   A . Offer ,   Counsel , Mr   K . L omax,   Solicitor.   The Court heard addresses by Mr Mould and Mr Offer. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1955 and lives in or about Lancashire. 9.     The applicant and his family are gypsies. They led a traditional travelling lifestyle until they suffered so much from being moved on with ever increasing frequency and harassment that they settled on the gypsy site run by the local authority at Cottingley Springs. They lived there permanently for about thirteen years, until February 1997 when they moved off. They stated that they moved off the site at that time due to the anti-social behaviour of others living on the site and others who came onto the site, e.g. vehicles being driven round the site at night, violence and disturbances such that they could not sleep at night or the children play safely during the day. They moved into a rented house but were unable to adapt to these conditions. They gave up their tenancy when offered two plots for the family at Cottingley Springs. 10.     The applicant returned to the site with his family in October 1998. 11.     By a licence agreement dated 22 October 1998, Leeds City Council (“the Council”) granted the applicant and his wife a contractual licence to occupy plot no. 35 at Cottingley Springs caravan site in Leeds. The licence in Clause 12 required the applicant as occupier to comply with the Site Regulations, while Clause 18 stated: “No nuisance is to be caused by the occupier, his guests, nor any member of his family to any other person, including employees of the Council, the occupiers of any other plots on the Site, or occupiers of any land or buildings in the vicinity of the Site.” 12.     On 29 March 1999, the applicant’s adult daughter Margaret Connors was granted a licence to occupy the adjacent plot, Plot 36, where she lived with Michael Maloney who later became her husband. She also cared for the applicant’s mother-in-law, Margaret Kelby, until she went into a residential nursing home in the area. The applicant’s adult sons, James Junior and Joseph, did not reside with the applicant but were frequent visitors both to his plot and their sister next door. 13.     During 1999, the applicant and his family were in dispute with the Council due to its alleged failure to undertake repairs on Plot 36 (there was no electricity supply or other facilities for some time), their objection to paying electricity charges which they considered to be overcharging and concerning the Council’s refusal to accept payment by instalment for the site deposit. Their complaints were referred to the Local Authority Ombudsman to investigate. 14.     The Government stated that the applicant’s children (including his adult sons James Junior and Joseph) and Michael Maloney misbehaved and caused considerable nuisance at the site. The Council’s Travellers Services Manager, based at the site, was aware of many incidents of nuisance caused by the applicant’s children and visitors. The Manager visited the applicant and Margaret Connors on a number of occasions to report the misbehaviour and nuisance. On 16 December 1998, the Council gave the applicant written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Nevertheless, both the applicant’s children and his visitor Michael Maloney continued to cause nuisance at the caravan site. 15.     In January 2000, when it became known that Margaret Connors was going to marry Michael Maloney, the applicant alleged that the Council manager of the site stated, “The minute you marry Michael Maloney you’ll be out that gate”. Michael Maloney was a member of a family against whom proceedings had previously been brought for eviction from the site on allegations that they were “a magnet for trouble”. In February 1997, the Maloney family had moved from the site. They remained in the Leeds area until the summer of 1999 when they went to Nottingham. 16.     On 31 January 2000, notice to quit was served on the family requiring them to vacate both plots. No written or detailed reasons were given by the Council, though the issue of “magnet for troublemakers” had been raised. 17.     On 12 February 2000, Margaret Connors married Michael Maloney and they continued to live on Plot 36. 18.     On 20 March 2000, the Council issued two sets of proceedings for summary possession pursuant to Order 24 of the County Court Rules, one concerning the applicant and his wife and family on Plot 35 and the other against Margaret Connors and “persons unknown” on Plot 36. On 24 March 2000, the applicant was served with various documents. The grounds for possession stated that the defendants were in occupation without licence or consent. In the witness statement dated 17 March 2000, the site manager referred to Clause 18 of the licence agreement and asserted that the defendants had breached the licence agreement and that he had given them notice to quit. No particulars of breach were given. He also asserted that the necessary investigation into the needs of the defendants had been made in accordance with the guidelines set out in the Department of the Environment Circular 18/94. 19.     The applicant disputed that they were in breach of Clause 18, that any possible alternative approaches had been taken to any problems and also that any appropriate enquiries had been made into their welfare. 20.     At this stage, the applicant’s family consisted of his children Charles aged 14, Michael aged 13, Daniel aged 10 and Thomas aged 4 months. Thomas had been suffering from serious illness, with kidney problems and rashes of unknown origin, while the applicant’s wife, who was asthmatic, had suffered several attacks requiring visits to hospital. The applicant himself had been having chest pains and was awaiting a hospital appointment. Daniel had settled well into full-time education at the nearby primary school, and the others were receiving assistance, including teaching at home. 21.     The Council served further witness statements containing particulars of the allegations of nuisance. These were disputed by the applicant. They related largely to Margaret and Michael Maloney on Plot 36. 22.     On 14 April 2000, the summary possession proceedings were adjourned pending the determination of the applicant’s application for permission to apply for judicial review of the Council’s decision to determine the licence of his plot which had been lodged on 10 April 2000. During the hearing, Margaret and Michael Maloney indicated an intention to leave the site. As the bulk of the complaints were against them, the applicant stated that the Council were requested to review its decision to terminate the licence of the applicant and his family. 23.     On 12 May 2000, the High Court refused permission to apply for judicial review. The judge noted that the applicant’s counsel accepted that the necessary investigations had been carried out by the Council and rejected as unarguable the contention, as regarded procedural fairness, that the applicant had not been given prior warning of the threat of eviction. 24.     On 16 May 2000, the applicant applied to the Director General of Fair Trading for a ruling that the terms of the licence agreement were unfair, in particular that Clause 18 was unfair in holding him responsible for the actions of visitors whom he could not reasonably be expected to control. 25.     The Council took the decision to proceed with the eviction. It dropped the allegations of breach of licence and asserted a right to summary possession on the basis that the family were trespassers as permission to occupy the land had been withdrawn. On 19 June 2000, the County Court granted a possession order. The Council undertook not to execute a warrant for possession until 14 July 2000 on condition that the applicant and his family were of good behaviour and kept the peace. 26.     Further representations were made by the applicant to the Council without success. 27.     On 13 July 2000, as the applicant had not given up possession, the Council obtained a warrant for possession of the plot. The Government stated that the applicant and his family barricaded themselves in the plot and refused to leave when the County Court bailiffs attended to execute the warrant. The Council applied to the High Court for enforcement of the order for possession. On 24 July 2000, the High Court ordered the Sheriff to execute the warrant for possession. The Sheriff’s officer, the bailiffs and the West Yorkshire police carried out a planning and risk assessment. The Sheriff’s officer attended the site and requested the applicant to vacate the plot. He refused. 28.     On 1 August 2000, early in the morning, the Council commenced enforcement of the eviction, in an operation involving Council officers, the Sheriff’s officers and numerous police officers. The applicant stated that also police helicopter, police dogs, control centre, numerous police vehicles and detention vans were employed. The operation lasted five hours. 29.     The Government stated that the police arrested the applicant and his son Daniel for obstruction under section 10 of the Criminal Law Act 1977. The applicant stated that he was attempting to carry out items of property to a trailer when he was stopped by bailiffs and arrested. He was handcuffed and held in a police van for an hour and subsequently at the police station, though he was complaining of chest pains. At about midday, he was taken to hospital for emergency admission. 30.     According to the applicant, his thirteen-year-old son Michael was also seized and held in a van by the police for five hours during the eviction. The applicant’s wife was left to cope alone, the baby Thomas being ill. 31.     The family’s two caravans were removed (they owned one and the other was rented). The applicant stated that it was not until late afternoon that their own caravan was returned to them. However many of their possessions were still held by the Council, including medicine needed for Thomas. During 3 August 2000, the Council returned their possessions, including a washing machine, drier, microwave, gas bottles, kettle and clothing. This was dumped on the roadside some distance away from the applicant’s caravan. The Government stated that on 1 August 2000 the Council removed from the plot to safe storage goods and personal property that the applicant and his family had failed to take with them. At the request of the applicant, the Council returned these goods and personal property to the family who had meanwhile taken up occupation on land nearby at Cottingley Drive owned by the Council, where the presence of gypsies was sometimes tolerated for short periods. As they claimed it was not possible to get into the field to deliver the goods directly, the Council unloaded the goods at the edge of the field, informed the applicant and kept watch until they were collected. 32.     A group of gypsies was at that time on the land at Cottingley Drive for the purpose of attending a wedding. This group did not however leave by 1 August as previously agreed, staying on to attend the funeral of a baby who had died on 31 July 2000. The Council prepared eviction proceedings and included the applicants as “persons unknown”. The applicant alleges that no assistance or advice was given to them as to where they could go, save for an offer of accommodation at Bridlington (on the east coast) which failed to take into account the local community ties of the family who had lived on Cottingley Springs site for most of 13 years and in the Leeds area for some 20 to 30 years. 33.     An application for adjournment of the possession proceedings was rejected by the County Court on 14 August 2000. The applicant and his family moved from the land and travelled around the Leeds area stopping for a few days at a time. 34.     The Government stated that the applicant and his family had returned to the caravan site three times since as trespassers. The Council applied for an injunction to ban the applicant and his family from entering the site. The outcome of these proceedings is not known. 35.     The applicant stated that following the eviction he and his family were required to move on repeatedly. Partly at least due to the stress and uncertainty, the applicant’s wife chose to move into a house with the younger children and they were separated in May 2001. Daniel lived for a while with the applicant. Following the eviction, he did not return to school. The applicant stated that he continued to travel in his caravan, with his son Michael and occasionally Daniel, but that they were unable generally to remain in any place for more that two weeks. He continued to have chest pains for which he received medication and tests. As he had no permanent address, he used his wife’s address for postal purposes, including medical appointments. II.     RELEVANT DOMESTIC LAW AND PRACTICE 1.     Provision for gypsy sites 36.     Prior to 1994, the Caravan Sites Act 1968 provided in section 6 that it should be the duty of local authorities “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area”. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). In addition, approximately 100 million pounds sterling (GBP) was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites. 37.     Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. The change in policy underlying the repeal was explained by the Parliamentary Under-Secretary of State: “In the past 13 years the number of gypsy caravans stationed on unauthorised sites has remained broadly the same... The shortfall in provision has been largely due to natural growth in the gypsy population. Plainly site provision is barely keeping pace with the growth in demand and is not reducing the shortfall... We recognise that council site provision has contributed to alleviating the difficulties experienced by the gypsy community. Indeed the predicament of gypsies in England and Wales is now far different from in 1968. At that time, probably fewer than 10 per cent of gypsy caravans in England and Wales were stationed on authorised sites, whereas the figure is now about 46 per cent. A further 24 per cent are on authorised private sites, and many more are stationed on tolerated sites where they are allowed to stay with reasonable security from eviction. ... We believe that public provision of sites has now reached an acceptable level. Public accommodation has been provided for 46 per cent of the total number of gypsy caravans in England and Wales. We do not believe that it is in the public interest to continue to maintain what has become an open-ended commitment to provide sites for all gypsies seeking accommodation at the public’s expense. It is our view that the right approach now is to encourage more gypsies to establish their own sites through the planning system. We know that many gypsy families would prefer to establish their own sites rather than reside on council sites. The National Gypsy Council has for a long time supported the case for private provision. Private site provision has increased by more than 135 per cent since 1981. Our intention is to encourage that trend.” 38.     Local authorities remain empowered to provide gypsy sites under section   24 of the 1960 Act and such sites remain the largest single component of the overall supply. Under current policy guidance, the Government have emphasised the importance that local authorities maintain their existing sites and consider if it is appropriate to provide further sites (Circular 18/94, paragraphs 21-22). In 2000, the Government announced that they were making available 17 million pounds sterling over the period 2001-2004 to help local authorities to maintain their sites. 2.     Unauthorised stationing of caravans 39.     Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as “... a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”. 40.     Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act). 41.     Guidance issued by the Secretary of State dated 23 November 1994 (Circular 18/94) concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”: “6.     ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ... 8.     Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9.     The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” 42.     Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the   1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 ( R.   v.   Lincolnshire County Council, ex parte Atkinson , R. v. Wealden District Council, ex parte Wales, and R. v. Wealden District Council, ex parte Stratford , unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages. 3.     Security of tenure on caravan sites 43.     Occupiers of gypsy caravan sites run by a local authority receive limited security of tenure pursuant to Part 1 of the 1968 Act. An occupier’s contractual right can be determined by four-week’s notice and he may only be evicted by court order. Local authorities are in addition required to have regard to the guidance on best practice in managing gypsy sites, e.g. such as set out Circular 18/94 concerning statutory duties to support children, to house the homeless and make appropriate educational provision for school-age children. A local authority failing to have regard to that guidance might be subject to challenge by way of judicial review. 44.     The Mobile Homes Act 1983 (the 1983 Act) confers further protection upon a person who lives in a caravan or mobile home as his only or main residence. Such a person may not be evicted save by court order and on the site owner having established one of the stated grounds, inter alia , that the court is satisfied that the occupier is in breach of the licence agreement and has failed to remedy that breach within a reasonable time and that it is reasonable for the agreement to be terminated. This protection was conferred on occupiers of caravans on privately owned residential sites and also the occupiers of local authority sites. However, section 5(1) excluded land run by the local authority as a caravan site for gypsies. The effect of this exclusion was analysed by the House of Lords in Greenwich London Borough Council v. Powell (1989) 21 HLR 218: “... the intention of the legislature in the Act of 1983 was clearly to exclude from the definition of ‘protected site’ sites such as that at Thistlebrook provided by local authorities in discharge of their duty under section 6 of the Act of 1968 to accommodate those whom they bona fide believe to be gypsies because they are nomadic for part of the year, notwithstanding that they may establish a permanent residence on the site by returning from year to year; such a site will not become a ‘protected site’ even if some of the erstwhile nomads, as well they may, give up their nomadic way of life entirely. It would be different if the local authority adopted a policy of offering vacancies on the site to static residents with fixed full time employment...” 45.     Secure tenants of conventional flats or houses provided or managed by local authorities under the Housing Act 1985 enjoy a similar regime of security of tenure to that conferred upon occupiers of a residential caravan site by the 1983 Act. 46.     A number of cases have been brought in the domestic courts challenging the lack of security of tenure on local authority gypsy sites. (a)     Somerset County Council v. Frederick Isaacs [2002] EWHC 1014 47.     In this case, a gypsy, whose licence to occupy a local authority site had been revoked for alleged misbehaviour, claimed in the proceedings brought for possession of the plot, that the eviction would be in breach of Articles 8 and 14 of the Convention and sought a declaration of incompatibility. 48.     In rejecting the gypsy’s claims and ordering possession, the High Court judge, Mr Justice Stanley Burnton, found that the eviction of the applicant would interfere with his rights under Article 8 § 1 but that the statutory framework, as a matter of general principle and policy, satisfied the requirements of Article 8 § 2. He noted two general points: “33.     ... First, statutory regulation of housing and the consequences of such regulation are matters of some complexity. For example, while security of tenure may be to the advantage of existing tenants or licensees, it may be to the disadvantage of tenants and licensees generally. In the 1960’s, security of tenure for residential tenants and control of rents were reimposed under the Rent Acts. Doubtless those measures were in the short term interests of residential tenants. However, in the long term they led to a reduction in the supply of privately-rented accommodation, which, on one view, was disadvantageous to residential tenants and potential tenants generally. There is no simple equation between security of tenure and the public interest. 34.     The second general consideration is related to the first. Housing is very much ‘the area of policy where the court should defer to the decision of Parliament’... The need for, and the consequences of, legislation in this area are matters for Parliament, not the court... ‘... We do not lose sight of the fact that courts are not primary decision-makers in areas such as housing policy. Strasbourg confers a wide margin of appreciation in such matters... our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny’. Sheffield City Council v. Smart [2002] EWCA Civ. 04 per Laws LJ 35.     The policy behind the exempting provisions was clearly stated by Lord Bridge in his speech in the House of Lords in Powell at 1012 ...: ‘Any other construction of ‘protected site’ in section 5(1) of the Act of 1983 would, it seems to me, cause great difficulties both for local authorities and for most of the gypsy community and would undo much of the good work which has been done in this difficult field. Those already established on sites like Thistlebrook would, of course, enjoy full 1983 security of tenure. But local authorities in the position of the council would need to start de novo to discharge their duty under section 6 of the Act of 1968. Many existing designations under section 12 would have to be revoked or would perhaps be automatically invalidated... For the future, local authorities establishing new sites providing accommodation for gypsies would have to be vigilant to prevent their residence acquiring any degree of permanency. This, I think, they could in practice only do by applying a short rule-of-thumb limit of stay, which would be quite contrary to the interests of the gypsy community.’ 36.     [Counsel for the defendant gypsy] submitted that this statement was no longer applicable as a result of the abolition of the duty of the local authority to provide sites for gypsies. I do not accept this submission. The statement of Lord Bridge is equally applicable to the sites which local authorities continue to provide, although they are under no duty to do so. Furthermore, as has been seen, central government guidance is that it is important for those sites to be maintained.” 49.     The judge quoted at length the evidence of the Secretary of State’s department on the aims of the two statutory frameworks, one applying to all local authority gypsy caravan sites and the other to all other residential caravan sites run by local authorities and private owners: “ ‘ 25.     With Part I of the 1968 Act, and with the 1975 and 1983 Acts, Parliament sought to address specific problems of commercial exploitation experienced by occupiers of private sites. There has never been any evidence to suggest that such problems extend to local authority Gypsy sites, and accordingly those legislative provisions that are directed at those problems have not been extended to such sites. The problems faced by Gypsies were wholly different, relating primarily to the acute shortage of sites available to meet their particular accommodation needs. The said problems were addressed by Part II of the 1968 Act, and supplemented by the departmental guidance circulars issued to local authorities. By 1994, the scheme of part II of the 1968 Act was found to have served its purpose as far as it could reasonably be expected to do. There was now a substantial and valuable supply of Gypsy caravan sites provided and operated by local authorities. The emphasis of Government policy has now changed to one of encouraging Gypsies themselves to add to that existing supply. Nevertheless existing local authority supply remains an essential component of the Government’s strategy of securing an adequate level of accommodation for Gypsies. The policy of the 1994 Act is to maintain and safeguard that distinct source of supply. 26.     Thus, I draw particular attention to the fact that the statutory protection afforded by Part 1 of the 1968 Act and the 1975 and 1983 Acts has been and still is available to Gypsies if they choose to reside at sites other than those provided by local authorities specifically for Gypsies. In general, the key difference between such sites has been the greater flexibility, which is usually available on local authority Gypsy sites, in order to accommodate the nomadic lifestyle of occupiers. This may allow Gypsies to remain on a site on a short-term basis, or to retain a site for 12 months of the year, while paying a reduced rent as a retainer during the few months of the year while they may be travelling in search of seasonal work. Other local authority sites and private sites, in general, are aimed at longer-term residential occupiers, without the need for such flexibility because they are not pursuing a nomadic lifestyle. 27.     Nevertheless, there are of course a number of Gypsies who occupy sites on a long-term basis, and other mobile home residents who do not consider themselves to be Gypsies, but who prefer to occupy private sites on a more short-term basis. The aim of the separate statutory frameworks is to ensure diversity of provision to meet the varying needs of different individuals and families; it is not to classify or categorise individuals or families. Accordingly, Gypsies seeking to settle on a more permanent site may occupy private or local authority (non-Gypsy) sites and benefit from the scheme put in place by Part I of the 1968 Act and the 1983 Act. This diversity of public and private site provision reflects that which is available in housing generally. 28.     The separate statutory framework allows for flexibility in meeting the accommodation needs of Gypsies. It appears that the Defendant is effectively arguing in these proceedings in favour of a single statutory framework applicable to all caravan sites, including local authority Gypsy sites. In my view, such a single statutory framework would be detrimental to the interests of Gypsies throughout the country. If the security of tenure provisions of that framework applied equally to local authority Gypsy sites, it would undermine the flexibility that such sites provide in catering for the varied lifestyles of Gypsies. Some may move from site to site on a regular basis, while others may be more permanently based on a site, possibly travelling for a few months each year to take on seasonal work. If each Gypsy were able to rely on security of tenure then every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short-term occupiers. Furthermore, if there were no longer a distinction in the statutory framework allowing flexibility for the provision of Gypsy sites, then there would be nothing to prevent any person residing in a mobile home seeking to occupy a Gypsy site, whether or not they pursue a nomadic lifestyle. Inevitably, fewer sites, if any, could be made available specifically for Gypsies pursing a nomadic lifestyle. ... 32.     Experience suggests that local authorities would face difficulties in managing sites if eviction were subject to broad discretionary powers of the courts to suspend or attach conditions to orders. There is a balance to be struck between the latter and the merits of flexibility (already mentioned) that such sites offer in catering for the varying accommodation needs of Gypsies. To this (and in favour of the existing position) must be added the fact that in reaching decisions about evictions local authorities, as responsible bodies, need to take into account the range of obligations and considerations outlined in paragraph 29 above. These amount to significant safeguards against unscrupulous or unjustified evictions. Furthermore local authority decisions in relation to eviction are open to challenge by way of judicial review.’ ” 50.     The judge concluded: “38.     While I am not over-impressed by the vagueness of the statement in paragraph 32 that ‘experience suggests’, applying the guidance given by Laws LJ in Smart , this evidence satisfies me that the exempting provisions are ‘necessary in a democratic society’, and a proportionate response to a social need, and do not amount to an infringement of Article 8. It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants. In practice, however, they are able to bring judicial review proceedings where the circumstances justify them, and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant. Moreover, any such safeguards would detract from the flexibility that Parliament has decided is appropriate for exempted sites. ... 39.     I can deal with Article 14 quite shortly. The exemption in section 4(6) of the CSA is justified by the special position of local authorities and the policy considerations referred to above. The exemption is section 5 of the MHA depends on the status of the site owner as a local authority, and not on any personal quality of the licensee or tenant. It therefore raises no question of discrimination contrary to Article   14. Conclusion ... 41.     This conclusion is consistent with that of the Commission in P v. UK (App.   No.   14751/89) which rejected as inadmissible the complaint by gypsies that their eviction from an exempted site infringed their rights under Articles 8 and 14. Mr   Watkinson submitted that this decision was no longer applicable by reason of the abolition of the duty of local authorities to provide sites for gypsies. As I stated above, I do not regard this as a valid distinction between the present position and that before 1994. There are still sites provided by local authorities for gypsies, and indeed if there were none there would be no scope for section 5 of MHA.” (b)     R. (Smith) v. Barking and Dagenham London Borough [2002] EWHC 2400 51.     In this case, a Romany gypsy, threatened with eviction from a council site, sought a declaration that the provisions of the 1968 Act were in breach of Articles 8 and 14 of the Convention insofar as it failed to provide the protection given to secured tenants of local authority conventional housing. In rejecting the application, Mr Justice Burton noted that the parties had agreed that there had, in the past, been objective justification for the lack of security of tenure of gypsy occupiers of council sites and that the claimant’s case was that, in light of changes, that was no longer the case. He summarised the Secretary of State’s case for justification for the absence of security of tenure as follows: “i.     Nomadism . The whole raison d’être for gypsy culture and identity, and indeed its defining factor, given the absence of necessary ethnicity - not all gypsies are Romanies, not least the so-called New Travellers - is nomadism. Hence the definition in section 16 of the 1968 Act... ii.     Site availability . There must be a substantial availability of sites for gypsies. Stanley Burnton J referred to the problem of ‘balance’ in general terms in Isaacs in paragraph 33: [cited above]. The submission is thus that there is no good clogging up all the caravan sites with those who do not move, and effectively removing them from the stock of available sites, by giving security of tenure. iii.     Flexibility. This is reflected in the decision in Isaacs . There is a stock of secure pitches on private sites, where there is security of tenure by virtue of the MHA. It is in respect of private sites that protection from commercial exploitation is necessary, and in any event the safeguard of administrative law remedies is not available. Thus the necessary ‘mix’ of private and council, secure or insecure, pitches, is maintained. Mr Gahagan [Director of Housing at the Department for Transport, Local Government and the Regions] most clearly sets out the effect of these justifications in combination at paragraph 15 of his reply witness statement: ‘There are limited resources for providing publicly funded accommodation, whether it be for gypsies or members of the ‘settled’ community. The Government is trying to make sure that there is provision for gypsies who have a nomadic way of life. There are other alternative forms of occupation for those with a settled way of life, which are as equally available to gypsies as they are to any other person. However if accommodation which was intended for those with a nomadic way of life could become converted into accommodation for those with a settled way of life just by the life choices made by the occupants, then this would make planning for nomadic persons by local and central Government very difficult.’ Dr Kenrick [Chairman of the Romany Institute, expert witness instructed by the claimant], while not challenging the historic justification, submits that it no longer applies: ‘44.     Mr Gahagan states that the legislation regarding gypsy accommodation is tailored so as to facilitate a nomadic way of life... The fact is that the nomadic way of life is ending for most gypsies, and therefore the existing legislation is unsatisfactory... 66.     In conclusion, the situation today is very different from what was envisaged at the time of the 1968 ... Act and the [MHA]. The examples I have given of the low turnover and lack of vacancies show that council sites are becoming permanent residences for most of the families. They often have mobile homes and utility buildings. In this changed situation there seems no reason why residents should not have the same right as the tenants of council housing or non-Gypsy mobile home sites.’ ” 52.     The judge summarised the statements of both Mr Gahagan and Dr   Kenrick concerning the differing patterns of life chosen by gypsies: Mr   Gahagan emphasised the flexibility necessary to cope with those who move on a regular basis or were permanently based on one site but possibly travelling several months a year while Dr Kenrick stated that position had substantially moved on from the time of the 1968 Act when it was anticipated that 20% of families travelled, that local authorities even encouraged families to become permanent residents by allowing them to leave for periods and pay half rent and that for the small minority that travelled all year round there were the existing small number of transit sites. The judge then summarised the conclusions of the October 2002 report (see below) which was found to be the most significant feature in the evidence before him. 53.     The judge concluded: “32.     It is plain from the passages of the October 2002 Report that I have cited that it is now accepted that there is a substantial majority that no longer travels for any material period, albeit that there is a substantial minority that does travel. No figures have been produced, and, as Dr Kenrick himself has pointed out, no statistics as to turnover yet exist, but the varied passages from the Report which I have cited in paragraph 30(vi) show that it is accepted that some thinking must now be done.   Nevertheless when asked by me whether the Secretary of State wanted an adjournment to consider the position further, Mr Mould clearly stated that no such adjournment was sought, and that his case remains that, rethink though there plainly is going to be, the Secretary of State still accepts the onus of showing that the present legislation can still be justified. This is not a case, as adumbrated in Seymour-Smith and Hooper , where the Government now accepts that the position can no longer be justified but asserts an entitlement to a period to correct discriminatory effects before a declaration is made... but rather a situation where the Government is still in the process of monitoring the position and, until it reaches a conclusion, asserts that the present position can be justified. 33.     If this were simply a matter of concluding that there is now a substantial majority of gypsies who are no longer nomadic, whose position can be immediately safeguarded by some new legislation of the kind discussed in general terms in paragraph 31 above, I would not feel inhibited either by the well-established principles of allowing deference and/or a margin of appreciation to Government or Parl