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Criminalising a way of life: The Police Powers and Protection Bill

In 2004, Sir Trevor Philips, then Chair of The Commission for Racial Equality, described discrimination against Gypsy, Roma and Traveller (GRT) communities as ‘the last respectable form of racism’ in the UK. Members of the GRT community are protected from race discrimination by the Equality Act 2010, and yet a 2017 report by the Traveller Movement found that 91% of GRT individuals had experienced discrimination because of their ethnicity, 77% had experienced hate speech or hate crime, and, perhaps most worrying for legal aid lawyers, 77% had not sought legal help after experiencing discrimination.

Rather than seek to address the discrimination faced by these marginalised communities, it appears the government plans to punish them further by introducing legislation which includes proposals to criminalise trespass and the act of setting up an ‘unauthorised’ encampment. The Police Powers and Protections Bill, which has been consulted on and is due to be published soon, seeks to implement a 2019 Conservative Party Manifesto pledge to “give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampment” and to ‘make intentional trespass a criminal offence.’ Trespass is currently governed by civil law and upgrading trespass to a criminal offence would have significant ramifications for protesters, the homeless and GRT communities in particular. The Police Powers and Protections Bill is one of a raft of increasingly authoritarian Bills introduced by this government, others of which have garnered more media attention, such as the ‘Spy Cops’ Bill and the Overseas Operation Bill, the former of which was characterised by Labour peer and prominent human rights lawyer Shami Chakrabarti as “one of the most dangerous pieces of legislation I’ve seen.”

Despite the relative lack of media attention to the Police Powers and Protections Bill, an unlikely coalition has emerged opposing the proposed legislation. On 18 January 2021, a letter was sent to the Home Secretary denouncing the government’s proposals to criminalise trespass as “an extreme, illiberal and unnecessary attack on ancient freedoms.” Signatories to the letter range from advocacy groups such as Homeless Link and Friends Families and Travellers to outdoor sports governing bodies such as the British Mountaineering Council and British Canoeing. The letter raises concerns that “criminalising trespass or increasing police powers of eviction would compound the inequalities experienced” by GRT communities. The letter also suggests that ‘extending the definition of “unauthorised encampment” would have the effect of criminalising the increasing numbers of rough sleepers living in makeshift shelters or tents.’

As the composition of the unlikely coalition opposing the legislation suggests, the proposals in the Bill not only represent an attack on GRT communities, but also on the rights of everyone to freely access, explore and enjoy the British countryside without fear of prosecution. As the letter states, criminalising trespass would “send a signal that the countryside is not an open resource accessible to all but a place of complex rules and regulations, where stepping off a public path could lead to a criminal sentence.” For those with an interest in British legal history, legislation that might have the twin effects of criminalising the homeless and restricting the rights of people to access the countryside is uncomfortably reminiscent of two of the most controversial legislative developments in British history: the Vagrancy Act of 1824 which criminalises the very act of being homeless and remains in force to this day (for now); and Enclosure, the bitterly fought centuries-long legal process in which the commons were privatised and the rights of ordinary people to access and make use of the land severely repressed.

As legal aid lawyers who act for members of the GRT community in disputes ranging from eviction to discrimination, we are deeply concerned that the Police Powers and Protection Bill will represent a huge step backwards for these communities and urge the government to reconsider their commitment to criminalise trespass and unauthorised encampments.