Protecting Public Space: The Gypsy and Traveller Community

The Gypsy and Traveller community is obliged to have respect for a system which both marginalises and excludes them.

Image: Daniel Baker, Stopping
Places, 2008

On 5 July 2017, a community of Travellers pulled up to Preston Park in Brighton. The council and the police soon descended on them to inform them that they were ‘trespassing’, as the land was covered by a Public Space Protection Order [PSPO]. They were told that if they did not vacate the land they would be liable for fixed penalty notices, and were directed to another transit site using police powers under s.62 of the Criminal Justice and Public Order Act 1994. Introduced in 2014 under the Anti-Social Behaviour, Crime and Policing Act, PSPOs enable councils to criminalise particular, non-criminal, activities taking place within a specified area they deem to have “a detrimental effect on the quality of life of those in the locality”. Last year Brighton and Hove became the first local authority to use a PSPO, banning Gypsy and Travellers from stopping on the 12 traditional stopping sites in and around the city. These stopping places have been blocked off by way of ditches, bunds and gates, preventing groups from stopping and forcing them into more visible spaces in public parks or on the sea front. The PSPOs are designed broadly enough so that councils may apply them at will to shape desirable spaces in particular ways, as they are “widely-drawn, with vague definitions of what can be criminalised, and carry disproportionately punitive sanctions”.

The Government guidance on PSPOs states that they “are designed to ensure the law-abiding majority can use and enjoy public spaces, safe from anti-social behaviour”. Although government guidance states that a public consultation must take place prior to the imposition of a PSPO, this is not always a transparent process — in Brighton and Hove, for example, the council did not ask the residents to define what they considered anti-social behaviour, but rather launched a consultation proposing to use PSPOs against Traveller encampments. Brighton and Hove council effectively use the PSPO to strengthen a false dichotomy between the local and the external in order to stringently demarcate space:

The occupation of these areas causes nuisance and annoyance for settled communities. …Settled local communities report that occupation of the land and premises disrupts their ability to utilise that space as they feel intimidated by the presence of groups of people

This statement reflects a particular construction of space accessible through and by the ‘settled’.

From the fifteenth century onwards, the Gypsy and Traveller community have been subject to unremitting strategies of enforced sedentarization dating from the Egyptians Act 1530 (under the mistaken belief the Gypsies came from Egypt). The effect of enclosure on the commons prevented the migration of groups who would settle and move following seasonal labour routes, marking the gradual erasure of public space available to these communities. Vagrancy was denounced as an “infestation”, entrenching the belief in Gypsies as “vagrants disturbing the social order”, whilst at the same time they were romanticised as wandering strangers, living off the land in opposition to the rigid conformity of the modern industrial grid, trapping Roma within an ambivalent trope “objectified through the law” . The itinerancy of this community was recast as resistance to industrial civilisation, reinforcing notions of a pre-lapsarian state to calm anxieties about a disappearing rural heritage. Increasingly restrictive laws such as the Vagrancy Act 1824 and the Highway Act 1835 prohibited movement, and later, the Caravan Sites and Control of Development Act 1960 stated occupation should be determined on the basis of a license and could be prohibited through council order.

The use of nomadism as a metonymy for ethnicity was established in Mills v. Cooper [1967] 2 All ER 100, when the court declared that in fact “gypsy means no more than a person leading a nomadic way of life with no, or no fixed, employment and with no fixed abode”. The Caravan Sites Act 1968 upheld this judgment, so that Romany ethnicity was sublimated by a status based on nomadic behavior under planning, which meant that from now on, paradoxically, ethnic Gypsies could lose their legal status if they ceased to travel. In R. (Smith) v. Barking and Dagenham London Borough [2002] EWHC 2400, the High court held that there must be a distinct difference between the way site provision is granted to those who are nomadic and those who are not, stating that “there is no good clogging up all the caravan sites with those who do not move”. The ECtHR acknowledges that as the practice of nomadism had effectively disappeared, it should not be used to classify this particular minority group and signal a special status — a status “which is the raison d’être of that special treatment” (Connors v. the United Kingdom [2004] ECHR 27at 93). It is an endlessly circular definition, demonstrating a paradoxical bind within planning legislation, where it is if nomadic status is deemed no longer suitable then that presents a significant obstacle to a planning application. Judicial decisions have continuously emphasised this identity, which creates a heavily specific form of spatiality by imposing an increasingly restrictive reading of the definition that simultaneously undermines the adequate provision of legal sites. Thus, the 1968 Act placed a duty on councils to provide stopping sites legitimated through the narrow entitlement “to live nomadically”.

This “right” ushered in a more explicit emphasis on isolationism, as evictions and resistance to provide suitable halting sites led to the establishment of a conflict where the interests of the Gypsies and Travellers were set against the interests and entitlements of the “settled community”, coming to fruition in the Criminal Justice and Public Order Act 1994, which significantly undermined obligations established under the Caravan Sites Act. This draconian legislation, although ostensibly directed at raves and New Age Travellers in a Thatcherite era, criminalised the lifestyle of all those dependent on nomadic patterns of movement and itinerant labour, forbidding even the shortest of stays at a traditional stopping place. The paradoxical and flawed formation of a majority/minority paradigm was exposed under the Criminal Justice Act, which instituted a framework in which regulated spaces were privileged above public access. This Act took away the duty to provide sites and authorized the police to request trespassers to leave private land, which, along with the Anti-Social Behaviour Act 2003 reflects a significant moment in the revelation of how space is produced through an unrelenting strategy of sedentarization, or the modern equivalent of an act of enclosure. The Criminal Justice Act was not, evidently, an aberrant anomaly, but rather reflects constructions of spatiality through the matrix of particular configurations of the sedentary spatial order which defines a particular access to space.

Legislative policy appears to demonstrate the emphasis on a balance between two halves of society — in which the sedentary majority, represented by elected councils and authorities must provide sites, but in return for “the responsibility of Gypsies and Travellers to respect the planning system”. Thus, the Gypsy and Traveller community is obliged to have respect for a system which both marginalises and excludes them. It is not only an unbalanced scale, but a scale based on a limited demarcation of belonging, reflecting a flawed binary division between the Gypsy and Traveller community and the ‘local’, ‘settled’ population. Hence, the dynamic of proportionality, crucial to any decision on the rights and interests of Gypsies and Travellers (as a by no means homogenous) group weighed against public interest, becomes part of a discourse on inside/outside spaces of legitimacy rather than a deconstruction of the space itself, unevenly configured in terms of planning, accommodation and proper land use. Frequently, in terms of media discourse, the process of submitting a local planning application is framed as a battle between legitimate local dwellers and itinerant Gypsy and Travellers, to create a narrative in which the latter are perpetually trespassing or usurping those with legitimate access to space.

In John F. McDonald’s novel Tribe, all space is implicated in a process of chaotic disorder, as he instructs the reader to “[s]tep out into the long back yard with isolated islands of gaunt grass fighting for survival in the desolation of sand and gravel and pigeon shite”. His use of sibilance and repetition emphasizes a sense of spatiality, personifying the “gaunt grass” to represent the Gypsy and Traveller community, “fighting for survival” amidst a corrupted wasteland of death and detritus. In the novel, McDonald dismisses the binary and exposes everything, everywhere, all at once, as mutually implicated in a polluted and chaotic space, in which a sense of order is reciprocally imposed. Whilst recent case law suggests the boundary line of the sedentary spatial order is unrelenting, Owen can be seen to shape his own space, exposing the illegitimacy myth preserving the sedentary order which allows violent racism to masquerade as protection of the land by self-defined locals solely acting in favour of the ‘preservation’ of public space. The ‘blank’ spaces allocated to the Gypsy and Traveller community stand beyond the limits of protection, identified by Owen’s friend Litzy as peripheral sites on the wasteland, “near rubbish-tips or flyovers or sewage plants or dangerous railways lines. Places that’s useless to anyone else”. In this sense, the only access to space permitted are those deemed “useless to anyone else” by those whose duty it is to carve up space.

A recent report on the PSPO in Brighton by the Equality and Human Rights Commission recognises that the “Council has to take into account its legal obligations in striking a balance between the rights of local residents to use public spaces and the interests of unauthorised campers”. The familiar narrative of preservation against “significant intrusion” (Coster [2001] at 18) represents any stopping place or ‘transit’ site as an encroachment on rural space, dismissing its right to occupy space as a particular zone of pervasive contamination. Reading the act of spacing as a recognition of unsettlement, one can contest the assumption of order it rests upon, particularly the notion of ‘mastering’ exteriority. Thus, the attempt to nullify the nomadic is seen as an act of spacing caught in the act of negating space, evoking the resident implications of the lawscape as both particular and universal, as both absent and present, malleable and fixed. This is evident in the Judge Pettiti’s dissenting opinion in Buckley v. the United Kingdom [1996] ECHR 39, which held that “the obstacles placed in the way of Gypsies go beyond the general law. Forcing them to live in a designated area is equivalent to placing them or assigning them to a territory”.

Here, then, Pettiti sets out two impossible blank spaces: a law of specificity which retreats beyond its own remit and a territory “assigned” at the limit point of the law, into which “Gypsies” are passively “placed”. The desire to render these sites invisible is in fact an indication of the desire for an audience and the façade of order produced through the threat of spacing, in Derridean terms, as “the movement of setting aside”. As Mark Wrigley writes, “[t]his insensibility to spacing is itself an institutional effect produced to mark the threat posed by spacing to the system it at once organizes and disorganizes”. Hence, there can effectively be no enclosure within the process of spacing, as spacing must obscure the sense of its own production. In acknowledging the narrative of ‘protecting public space’ one can identify some critical issues, in order to contest this singular hegemonic reading of space and engage with the unsettlement of spacing. Recognising that movement in and through space is defined paradoxically through enclosure, so that this minority group must and yet can never find an ‘approved’ place, a perception of ‘blank’, ‘unusable’ space is produced through a process of occupation which is always an exposure of incommensurability. There is no ‘balancing’ exercise: the state is always implicated in the production of unsettlement and public space produced through (and by) an ungovernable and unshapely population.

A version of this post was recently presented at the symposium on ‘The Space of Biopolitics’ at Oxford Brookes, and reflects work conducted as part of a doctoral research project recently published as Spacing (in) Diaspora: Law, Literature and the Roma (De Gruyter, 2017), where Emma Patchett was a Marie Curie Research Fellow in the CoHaB (diasporic Constructions of Home and Belonging) ITN. In addition, Emma also co-edited Spatial Justice and Diaspora (Counterpress, 2017) with Sarah Keenan, and was most recently a Research Fellow at the Käte Hamburger Kolleg for the Advanced Study of the Humanities “Law as Culture” in Bonn.

Daniel Baker will be exhibiting his work this August at KUMU Art Museum of Estonia, titled The Travellers. The show was originally on display at Zachęta National Gallery of Art in Warsaw during 2016. 

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Emma Patchett

Visiting Research Fellow at the Menzies Centre for Australian Studies, King's College London. My postdoctoral research focuses on the theme of forced displacement in law and literature, and attempts to explore spatio-legal methodologies as a means of deconstructing the narrative of the host state and sovereign territory. I am also co-editor of a collected volume of essays entitled 'Spatial Justice and Diaspora' , with Sarah Keenan (Birkbeck), which is shortly to be published with Counterpress. Prior to this, I was a Marie Curie Research Fellow in the CoHaB (diasporic Constructions of Home and Belonging) ITN, based at WWU Muenster, where my doctoral research considered the literary refractions of migration law in the contemporary novels of the Roma diaspora. 

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