Joe Humphreys
Trespass legislation enacted last year to stop large-scale illegal encampments has been used mainly to evict single or small groups of Travellers on local authority accommodation waiting lists, a new report on the law claims.
The study, produced by the Irish Traveller Movement (ITM), cites more than 150 evictions of families either "living on their own or in small groups" between June 2002, when the Housing (Miscellaneous Provisions) Act came into force, and October 2003.
"More often than not, these families are included in the Traveller Accommodation Programme for the area in which they reside."
The report says that, by empowering gardaí to impose penalties or seize caravans without recourse to the courts, the legislation denies Travellers a basic "defence of necessity".
It notes some local authorities, such as South Dublin and Offaly County Councils, have chosen not enforce the law. Instead, "the legislation is being enforced mainly in Cork City, Mayo and Clare".
Describing the operation of the law as "unjust", the report adds: "There is no evidence the Act is being used against any other group in Irish society, and it appears that the Act is being used exclusively against Travellers."
The ITM is circulating the report to the Government and Opposition this week with a plea for an emergency Dáil debate on the legislation in order to have it repealed. The move coincides with the first occasion last week of a custodial sentence being handed down to a Traveller under the Act. Cork District Court gave a one-month suspended prison sentence to two Travellers who were living at an authorised encampment near Blackpool.
Mr Dave McCarthy of the Cork Traveller Visibility Group said the Travellers in question had been evicted from another site last June and had nowhere else to go. "By definition, Travellers are going to end up in prison because of this law," he said.
The legislation had been introduced to deal with a perceived difficulty in dispersing large-scale encampments such as that witnessed near the Dodder River in south Dublin in the summer of 2001.
Under Section 24, gardaí can direct families to move on without need for formal documentation, such as a court order or summons. Conviction for an offence under the Act, including non-compliance with a garda direction, can result in a fine of up to €3,000, or imprisonment for a month, or both. The ITM report notes that it is impossible to quantify the true extent of the use of Section 24 because most families move "immediately" as otherwise they may be arrested or have their homes impounded.
"One of the real problems that arise is the undocumented use of the legislation. It operates in a way that is unmonitored by the legislator, the courts and the executive. This amounts to a denial of justice to those subjected to the use of the legislation, and an abrogation of the duty of the legislature to keep laws under review, and to amend or repeal them where necessary or appropriate."
The ITM adds that it has received legal advice that the Act is unconstitutional for a series of reasons, including the fact that a whole family can be rendered homeless "simply on foot of a direction from a garda".
In addition, "the alleged offender is in practice never given the opportunity to prove that they had consent to be on the land and, more significantly still, the gardaí are never asked to specify what was the likely 'substantial' adverse effect to the land caused by camping on it, even for a short period of time".
A number of evictions under the Act are being appealed to the courts and a test case is due before the High Court in the coming weeks.
While the ITM acknowledges "a legitimate public interest in preventing large-scale encampments", it says the absence of sufficient accommodation for Travellers, coupled with the closing off of traditional camping areas, "has created a situation where Travellers are camping on public amenity areas in greater numbers through no choice of their own".
The report cites 138 evictions in Cork city in the year to July 2003. Some of these were secured using other legislation, however, including the Road Traffic Acts.
In Clare, 40 evictions under the trespass law were recorded, including several against families who had been occupying lands for more than a year.