Buckley V Uk 1r12g

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INTERLINKING AND HYPERLINKING IRAC Analysis on the case

Buckley

Vs. United Kingdom

Miss. Shriya Chandankar BA.LLB Roll No. 157 PRN: 15010321157

In January, 2017

Under the guidance of Prof. Abhijit Vasmatkar, Mrs. M.V Chandramathi, Mrs. K. Shanti & Miss. Afrin Khan

Symbiosis Law School, Hyderabad Symbiosis International University, PUNE

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TABLE OF CONTENTS Sr.no

Description

Page no.

1

Introduction

03

2

Facts of the case

04-05

3

Issues

06

4

Rules

07

5

Analysis

08-10

6

Conclusion

INTRODUCTION

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IRAC method as a tool for legal analysis of a case stands for Issue, Rule, Application/ Analysis, Conclusion. It is one way to structure legal analysis. An effective tool where it is organized around each of these elements for each and every issue and sub-issue(s) identified as a legal problem. This method is used to analysis the present case:

Buckley........................................ Appellants

Vs. United Kingdom.................................. Respondent (1997) 23 E.H.R.R. 101

Before the European Court of Human Rights Application No. 20348/92

(The President , Judge Bernhardt ; Judges Thór Vilhjálmsson , Pettiti , Loizou , Morenilla , Freeland , Repik , Jungwiert , Lōhmus )

Decided January On: 25 September 1996 Bench: The President , Judge Bernhardt ; Judges Thór Vilhjálmsson , Pettiti , Loizou , Morenilla , Freeland , Repik , Jungwiert , Lōhmus

Facts of the case:

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

The applicant, Ms. June Buckley, is a Gypsy by birth who has always followed the traditional lifestyle of British travelers. However, in 1988 she decided to station the three caravans in which she had been living with her children and mother on a piece of land she owned in South Cambridgeshire. June Buckley believed that stationing the caravans there would enable her to raise her children in a stable environment and therefore contribute to their proper education.



In January 1989, June Buckley obtained permission on a personal temporary basis to station the caravans on her land, but in March 1990 the District Council rejected her next application for a temporary planning permit. The District Council then issued an enforcement notice for the removal of the caravans. The local authorities argued that the continued presence of caravans on the site was harmful to the character and appearance of the countryside and detracted from the rural and open quality of the landscape. In addition, the authorities pointed out that adequate provision had been made for Gypsies elsewhere.

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June Buckley appealed the decision, but her appeal was dismissed by the Secretary of State on virtually the same grounds, with the additional argument that the concentration of Gypsy sites in the area had reached the maximum desirable. Ms. Buckley did not obey the removal notice, and was found guilty by the Magistrates' court; in January 1992, she was sentenced to a fine for refusing to obey the removal notice.

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In spite of the decision, Ms. Buckley refused to move the caravans and in 1994 she applied again for permission to station the caravans on her land. In November 1994, the District Council rejected the application and in December 1995, Ms. Buckley's appeal of that decision was dismissed. In addition to the arguments which were used by the authorities in 1991–1992, they now also claimed that the applicant had been offered the viable alternative of stationing her caravans at an officially designated caravan site which had been opened in 1992, several hundred meters away from her land. By 1995, Ms. Buckley had been prosecuted on two other occasions for failing to comply with the enforcement notice and for violating planning permissions' rules. On one of these occasions she had again been sentenced to pay a fine.

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In February 1992, June Buckley lodged a complaint at the European Commission of Human Rights. In her complaint, as well as during the procedure before the Convention organs, June Buckley claimed that the refusal of the British authorities to grant her permission to live on her own land violated her right to respect for home and family life, as protected by Article 8 of the ECHR. Later on, during the deliberations before the Court, Ms. Buckley made an additional complaint that British legislation on planning policy does not take due respect to the traditional lifestyle of Gypsies and is discriminatory in character (ECHR, Article 14 taken together with Article 8).

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The September 25, 1996 judgment of the European Court of Human Rights came after a landmark decision of the European Commission of Human Rights, which in January 1995 decided by 7 votes to 5 that British authorities had violated Article 8 of the Convention. (The Commission did not take a stand with respect to Article 14 of the

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Convention). The Commission's decision affirmed that the British authorities had infringed upon Ms. Buckley's right to family life and accepted her argument that „she is prohibited from living in her caravans on her own land, where her children can grow up in a stable environment and receive a continuous education", and that she was „prevented from pursuing the traditional lifestyle of a Gypsy" 

Considerable weight in the decision of the Commission was given to the argument that the traditional lifestyle of Gypsies is an inherent element in their right to family life. The Commission decided that by not fully taking that into , British authorities had placed a disproportionate burden on the applicant when interfering with her right to family life.

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In its judgment, the Court, like the Commission, recognized that the measures taken against Ms. Buckley interfered with her right to respect for her home. Therefore the Court concentrated on the issue of whether those measures were „necessary in a democratic society", as stipulated by Article 8, Paragraph 2 of the Convention. Although the Court itted that on the domestic level another decision could have been taken on the merits of Ms. Buckley's request for a planning permit (Judgment, Paragraph 84), it concluded that in the government's measures, a due balance had been struck between the interests of the general community and the applicant's right to establish a home on her land. Unlike the Commission, the Court concluded that the means employed for the achievement of the legitimate aim could not be regarded as disproportionate (Judgment, Paragraph 84). In making the decision, the majority of the Court resorted to arguments derived from the procedure of the domestic regulatory framework, which in the Court's view „...contained adequate procedural safeguards protecting her (Ms. Buckley's) interest under Article 8..."

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The Court also refrained from taking a stand on the British authorities planning policy from considering its effect on Gypsies, arguing that the measures which were taken against Ms. Buckley were not based on either the 1968 Caravan Sites Act or the 1994 Criminal Justice and Public Order Act. In a powerful dissenting opinion, In his dissenting opinion, Judge Pettiti recalled that Gypsies are one of Europe's most suffering minorities.

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S However, the same planning considerations did not justify a negative decision by the court when weighed against the right to respect for home and family life (ECHR, Article 8). By giving priority to the protection of the landscape over the protection of family life, the Court had reversed the ranking of fundamental rights. A proper balance had therefore not been achieved according to judge Petti.

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While considering Ms. Buckley's claim that Article 14 taken together with Article 8 were violated, Judge Pettiti stressed that the only acceptable discrimination under Article 14 is positive discrimination which is meant to achieve equality of rights through equality of opportunities. He took the position that the British legislation regulating planning policy contains a number of provisions which expressly refer to Gypsies in order to restrict their rights by means of istrative rules.

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Issues:

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Whether the continued use of the land as a gypsy caravan site would detract from the rural nature of the area.

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Whether the right of Mrs. Buckley in respect for her home and whether the British authorities have violated the basic right of families by removing their caravans.

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Whether the applicant was a victim of discrimination on the grounds of her Gypsy status, contrary to Article 14 taken together with Article 8 of the ECHR.

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RULES

   

1968 Caravan Sites Act 1994 Criminal Justice and Public Order Act Town and Country Planning Act 1990 Planning and Compensation Act 1991

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Analysis: Whether the continued use of the land as a gypsy caravan site would detract from the rural nature of the area. As it was responded by the authorities in regards to the applicant claim to settle down permanently as it was refused because of road safety reasons. A development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” , if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations of the 1990 Act which was inter linked. To which the applicant hyper linked the particular case which is discussed below: Wrexham County Borough Council -v- Berry; South Buckinghamshire District Council -vPorter and another; Chichester District Council -v- Searle and others in which, the appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased. It was held that the Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an authority sought assistance in enforcement by requesting an injunction, the role of the court was not merely supervisory, but

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original, and it had a duty to assess each case on its merits. The remedy of an injunction, carrying the threat of imprisonment is personal to the proposed injunctee. The court was not bound to follow the views of the local authority in enforcing planning control, and the proposed injunction must be both just and proportionate. The balance between Roma and other parts of society will always be difficult to find. The issue further discussed as the law provides that planning permission is required for the carrying out of any development of land under section 57 of the 1990 Act while a change in the use of land for the stationing of caravans can be constitute a development which was derieved from the case of Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785

Whether the right of Mrs. Buckley in respect for her home and whether the British authorities have violated the basic right of families by removing their caravans. In the present case the national authorities did not legitimately assess whether the point pursued was proportionate to the candidate's entitlement to respect for her home and to the seriousness of the encroachment of that privilege. At no stage amid the domestic proceedings was the issue before the authorities considered in of a privilege of the candidate secured by the Convention, for the Government denied all through that a privilege to respect for the house was in issue and subsequently that there had been any obstruction with that privilege. The candidate's interests, faced with the requirements of the assurance of the countryside, were just considered in abstract general , such as "the undisputed requirement for extra gypsies' parade site provision" or "the candidate's gypsy status" . There was never any specify of the candidate's entitlement to respect for her home or of the significance of that privilege to her, given her money related and family situation. Nor was any record taken of the possible consequences for the candidate and her kids were to be expelled from her property. To this contention the applicant cited a case which can be clearly understood and is given below and making the intention of the applicant more clear. London Borough of Hounslow -v- Powell, Leeds City Council -v- Hall SC the tenant occupied the property as his home, but was not a secure tenant of the local authority. The Court was asked whether, in granting a possession order in such a case, the court was obliged to consider the proportionality of the order requested. Powell had been given emergency accomodation as a homeless person, but had accrued substantial arrears. Frisby and Hall were both probationary tenants. It was held that the principle set out in Pinnock applied equally in these cases. In any case where a local authority sought to retake possession of somebody’s home, a court asked to order possession must consider the proportionality of the proposed order, provided that the tenant raises the issue of proportionality and shows that it is seriously arguable. The court must be

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shown a legitimate aim, including the vindication of the rights as owner, or to enable the authority to manage and fulfil its statutory duties. Save in an unusual case, the authority need not be required to particularise further its reasons. Section 127(2) assumes the lawfulness of the proposed order, and the issue of proportionality goes as to that lawfulness. While considerable weight in the decision of the Commission was given to the argument that the traditional lifestyle of Gypsies is an inherent element in their right to family life. The Commission decided that by not fully taking that into , British authorities had placed a disproportionate burden on the applicant when interfering with her right to family life. The British Government denied that its policy was discriminatory. Yet a number of legal provisions expressly refer to gypsies in order to restrict their rights by means of istrative rules. However, the only acceptable discrimination under Article 14 is positive discrimination, which implies that in order to achieve equality of rights through equality of opportunity it is necessary in certain cases to grant additional rights to the deprived of the population such as the underclasses of developed countries, and the gypsy and Jenische communities.

Whether the applicant was a victim of discrimination on the grounds of her Gypsy status, contrary to Article 14 taken together with Article 8 of the ECHR. Examining whether the measures taken by British authorities against the applicant complied with the requirements set forth by Art. 8 (2) of the Convention, the Commission agreed that while the measures had been in accordance with the law and pursued a legitimate aim, namely preservation of the environment and public health, public safety and well-being. The commission concluded that the measures applied against June Buckley failed to meet the test of being „necessary in a democratic society" and therefore in violation of Article 8 of the ECHR. While considering Ms. Buckley's claim that Article 14 taken together with Article 8 were violated, the only acceptable discrimination under Article 14 is positive discrimination which is meant to achieve equality of rights through equality of opportunities. He took the position that the British legislation regulating planning policy contains a number of provisions which expressly refer to Gypsies in order to restrict their rights by means of istrative rules. Although the 1968 Caravan Sites Act was originally intended to promote acceptance of Gypsies in towns and villages, the use made of this legislation has had the opposite effect; the legislative framework contains either too many istrative obstacles or else the alternative proposals are inadequate. Since the rules are applicable only to travelers, those rules are discriminatory. In spite of the negative decision with respect to Ms. Buckley's application, the dissenting opinions, as well as the Commission's report, should have a constrained yet positive effect on the strengthening of Gypsies and Roma through law. On the occasion of Buckley v. the United Kingdom, the Convention organs certified that Article 8 of the ECHR gives insurance to the customary lifestyle of Gypsies as an inborn component of their entitlement to respect for home

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and family life. This stand is probably going to all the more easily permit individuals from the Gypsy and Roma minority to make their cases before domestic jurisdictions, as well as before the European Convention organs, in cases which include infringement of rights ensured by Article 8 of the Convention. The Court afforded greater protection of the home and accommodation in the Niemietz and Gillow judgments, situations in which there was in fact less risk to family life. Essentially, the Convention ought, in the case of gypsy families, to inspire the greatest possible respect for family life, transcending planning considerations. Although the 1968 Caravan Sites Act was originally intended to promote acceptance of Gypsies in towns and villages, the use made of this legislation has had the opposite effect; the legislative framework contains either too many istrative obstacles or else the alternative proposals are inadequate.

Conclusion: As the case of buckley v. united kingdom, clearly mention about the importance of inter linking and hyper linking in a decision making process of a judiciary. As the cases cited by the applicant, gave a fruitful result at the end. This was the first case ever initiated by a Gypsy applicant which has been referred to the Court by the European Commission of Human Rights. The said court was also able to decide on the issue dealing with, whether the United Kingdom's legislation on town planning discriminated against Gypsies by preventing them from pursuing their traditional lifestyle. As the reasons given the government authorities before or at the initial stage of the case were in the view for the public benefit and road safety issues which was later cleared up, but still the applicant was denied of her right to settle permanently in home. The problems faced by gypies came up, with various town planning legistature which hinders there movement though the british government was up with some protection legislation for such groups. As of the concerns for the plans upon the land were raised and regarding the concentration of population of the applicant’s community in the particular place was also considered. As there was already 15 pitches were formed for the settlement of the community while the people who resided on the land illegitimately approached the union before the applicant could. The 1968 Act and the 1994 Criminal Justice and Public Order Act prevented gypsies from pursuing their traditional lifestyle

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by making it illegal for them to locate their caravans on unoccupied land. If the applicant were obliged to leave her land, she would be exposed to the constant worry of having to find a place where she could lawfully stay, her children's education would be jeopardised and so on. To this by the verdict of the court which provided the applicant a settlement, which is my opinion was necessary as to protect the interest of the particular group and for the better viewing of the culture and tradition along with welfare of people.