Anti-trespass law may breach Travellers' rights
The recent legislation aimed at preventing Travelling families from trespassing on land may breach both their constitutional rights and rights under the European Convention on Human Rights, according to the Human Rights Commission.
The Housing (Miscellaneous Provisions) Act, passed last year, made it an offence to enter and occupy land, or bring on to it any object that is likely to have one of five specified detrimental effects on the land or amenity. It provides no defence to this offence.
It has been widely seen as aimed at Travelling families who park their caravans on unauthorised sites or vacant property. The Act is facing a constitutional challenge in the courts from four Travelling families in Co Clare who were charged under it when they trespassed on local authority land.
The central argument from the Human Rights Commission is that members of the Travelling community are forced to trespass on land because of the failure of local authorities to meet their statutory duty to provide sites, as mandated under the Section 13 of the 1988 Housing Act. It is unjust, therefore, to criminalise people who are forced to act in a certain way because of the failure of the State to provide any alternative.
The Human Rights Commission was set up under the Belfast Agreement with a remit to comment on the human rights implications of legislation. It also has various other rights and duties, including the ability to act as an amicus curiae (friend of the court), advising the courts in cases brought before them where human rights issues are involved.
It is understood that it has been suggested that the commission would act as amicus curiae in the case challenging this Act, and this suggestion is under serious consideration by the commission.
In its observations on the Act, which have been seen by The Irish Times, the commission pointed out that Article 40.1 of the Constitution guarantees equality before the law. Unless nomadism is to be regarded as "quixotic or self-indulgent", laws which discriminate against it are likely to be found in breach of this provision.
The commission also pointed out that a 2000 European Directive promotes the equal treatment of people regardless of their racial or ethnic origin. The last day of compliance with this directive is July 19th. If the impact of Section 24 of the 2002 Housing Act is to discriminate against one group in the population on the ground of ethnic origin, which, according to the commission, this does, the State is under an obligation to abolish it.
The commission also argued that, if the effect of the legislation is to keep Travelling families moving on, it could offend against the Articles of the Constitution guaranteeing the right to primary education.
It may also offend against the constitutional protection given to the home of every citizen, which shall not be forcibly entered except in accordance with law, and against the guarantee of respect for private and family life.