An aspect of the Criminal Justice and Public Order Bill that has received less attention than it deserves is its effect on the traditional nomads of England and Wales, the Romanies and others whom the majority population knew as 'gypsies'.

Antipathy to 'new age travellers' has been used to justify legislation that poses a threat to the lifestyle of a long-established national minority, which has little influence in the corridors of power.Pt II of the Caravan Sites Act 1968 intended a stick and carrot approach to travellers and their caravans.

The carrot for the travellers was to be publicly provided caravan sites.

The stick was special criminal and civil powers in areas where such sites had been provided.

The Criminal Justice and Public Order Bill removes the carrot, while converting the stick into a cane of Singaporean ferocity.Under the Caravan Sites Act 1968 county councils were under a duty to provide caravan sites 'so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area' (s.6(1)).

In the decades that followed the passing of this Act most failed to do so and several were criticised by the courts for this failure (R v Secretary of State for the Environment, ex p.

Ward [1984] 1 WLR 834, R v Secretary of State, ex p.

Lee 53 P & CR 311, West Glamorgan v Rafferty [1987] 1 WLR 457, R v Secretary of State and Hereford and Worcester County Council, ex p.

Smith [1988] COD 3).The secretary of state had the power to designate council areas on one of two grounds: 'either that adequate provision is made in the area for the accommodation of gypsies residing in or resorting to the area, or that in all the circumstances it is not necessary or expedient to make any such provision', (s.12(3)).

In designated areas 'gypsies' would be guilty of a criminal offence if they stationed their caravan on certain categories of land (s.10).

'Gypsies' in designated areas would also be liable to an order for the forcible removal of their caravan (s.11).

A High Court judge described this provision as having a 'Draconian character' (Bridge J (as he then was) in R v Havering Justices, ex p.

Smith [1974] 3 All ER 484, 488c).The discriminatory nature of these provisions could hardly be denied.

A member of a minority would be guilty of an offence if he or she did something that a member of the majority community could do without criminal liability and in some circumstances without even civil liability.

Indeed, a government circular issued in 1978 and not cancelled until this year described them as 'severely discriminatory against one group of people'.

The government sought to justify them on the basis that the detriment to gypsies was balanced by a gain in the duty to provide sites; a version of the 'separate but e qual doctrine' rejected across the Atlantic in the landmark constitutional cases of Brown v Board of Education (1953) 347 US 483 and R v Drybones [1970] SCR 282.These discriminatory provisions formed part of the complaint of June Buckley, a Romany whose ancestors had lived and travelled in Cambridgeshire for many generations.

The area in which they travelled did not contain adequate provision 'for the accommodation of gypsies', but had been designated on the ground of expediency by the secretary of state.

The land on which she lived was subject to an enforcement notice.

If she stayed where she was, she was liable to prosecution for breach of the enforcement notice.

If she left and travelled in the vicinity as her ancestors had done, she would also risk prosecution.

There was no way in which she and her children could continue their traditional Romany lifestyle within the law.If discriminatory by-laws had caused her difficulties, she could have had them set aside by the High Court, as was done in the case of a Bristol by-law that began: 'No gypsy, squatter or other such person...' (R v Bristol City Council, ex p.

McDonough [1993] 11 CL 541, Local Authority Law 8/93, 2).

Because her problems arose from Acts of Parliament, she could not challenge them in an English court.

She therefore complained to the European Commission on Human Rights relying upon article 8: 'Everyone has the right to respect for his private and family life, his home and his correspondence.' That application has now passed the critical hurdle for complaints under the European Convention on Human Rights.

The Commission has declared it admissible.Six years ago Henry J described the plight of travellers as 'this small but troubling part of the general question of homelessness' (R v Secretary of State and Hereford & Worcester County Council (1988)).

Today, it is a sad reflection of attitudes towards travellers that the civil duty to provide sites for them is being repealed by the Criminal Justice and Public Order Bill.

The clauses that repeal the positive aspects of pt II of the 1968 Act and which re-enact in a more Draconian form those parts which subject travellers to penalties are cll 77 to 80.Before its recent amendment in the Lords, cl 80 repealed the whole of pt II, including the duty to provide sites.

This amendment, if it remains in the Bill, would preserve the duty for a further five years.

It is expected that the government will seek its reversal by the Commons this autumn.

This duty is not re-enacted.

Sub-clause (4) draws attention to the fact that 'any land occupied by a local authority as a caravan site providing accommodation for gypsies' is not a 'protected site' as defined in s.5(1) of the Mobile Homes Act 1983 and that, as a result, the occupiers of these sites (unlike the occupiers of 'non-gypsy' residential caravan sites) do not have security of tenure (London Borough of Greenwich v Powell [1989] AC 995).

(The model standards, specified under s.5 of the Caravan Sites and Control of Development Act 1960, that apply to caravan sites also exclude gypsy caravan sites.) The Act will thus continue these areas of express discrimination against 'gypsies' while abolishing the benefits to gypsies said to justify them.Sub-clause 5 repeals s.70 of the Local Government, Planning and Land Act 1980, the power to pay grants to local authorities for capital expenditure in providing gypsy caravan sites, except for applications received before the commencement of the clause.

As with the rest of cll 77 to 79, this is likely to commence immediately on the p assing of cl 171 of the Act.

It is difficult to see why the government should bother to repeal a mere power, especially when Exchequer grants can be made without statutory authority (as occurred before the passing of the 1980 Act DoE circular 57/78.)Cl 77 restates and broadens the scope of s.10 of the 1968 Act (the prohibition of camping).

The principal differences are: first, it applies to the whole of England and Wales and not just to designated areas; secondly, it applies to all vehicles including caravans, rather than just to caravans; thirdly, it applies to persons who are for the time being residing in vehicles and not just to 'gypsies'; and fourthly, the maximum fine for non-compliance is increased fivefold from level one to level three.

The government argues that, because it applies to any caravan resident, it is not discriminatory; but in reality it is most unlikely to be used against anybody other than travellers.

It is inconceivable that the government would show similar enthusiasm for a measure aimed at suburban caravanners on holiday.

Cl 78 similarly restates and broadens the scope of s.11 of the 1968 Act (orders for removal of parked caravans and their occupants).

Again, it is being extended to the whole of England and Wales, to all vehicles and to any person residing in a vehicle contrary to a direction under cl 77.A further provision that is likely to affect Romanies harshly is cl 61, which restates and in two respects extends s.39 of the Public Order Act 1986.

S.39(1)(b) empowers a police officer to direct persons who, he believes, entered land as trespassers and who have between them brought with them 12 or more vehicles onto the land.

Cl 61 halves the number of vehicles to six, thereby bringing far more Romany families within its scope, while making no difference to 'peace convoys'.

It also applies to persons who are trespassing even where they did not originally enter the land as trespassers (subject to a minor qualification in sub clause 2).

The restrictions on eviction which certain other former tenants and other former licensees enjoy will not apply to travellers.In a case concerning Lapps, G & E v Norway Application No.9278/81, the Human Rights Commission held that under art 8 of the Convention a minority group is in principle entitled to claim the right to respect for the particular lifestyle it may lead as being 'private life', 'family' or 'home'.

Many Romanies already find it impossible to continue their traditional lifestyle.

The Criminal Justice and Public Order Bill, while it removes the express discrimination of selecting travellers alone for criminal and civil liability, increases the circumstances in which travellers who try to follow a traditional nomadic existence will be subject to legal prohibition.

In the Lapps' case, the loss of 2.8 square kilometres out of the whole of northern Norway was held not to be a sufficient interference with their minority lifestyle as nomads to constitute a breach of their art 8 rights.

For British nomads the situation is almost the opposite.

They do not complain of a few square kilometres where they cannot go, but are among the more fortunate if they have a few square metres where they can go.

There will be further complaints to the Commission.

I await with interest the arguments of the government in support of its claim to respect the Romany lifestyle.