Hugh Gallagher, LL.B. (Law and Political Science), Trinity College Dublin
As the Police, Crime, Sentencing and Courts Bill progresses through Parliament in the United Kingdom, intense opposition has emerged towards Part 4 of the Bill, on the grounds that it is anti-Traveller and will criminalise a nomadic way of life.[1]If passed, it will make trespass with vehicles a criminal offence and enhance eviction powers for police, which has been widely decried as discriminatory for the disproportionate impact it will have on Travellers.[2] This proposed provision already has a long-standing Irish counterpart, Section 24 of the Housing (Miscellaneous Provisions) Act 2002, which can be critiqued on near-identical grounds. [3] While both may be viewed under the umbrella of ‘anti-nomadism as a cultural universal’,[4] this broad categorisation neglects consideration of the contextual differences in mobilising patterns of criminalisation against Travellers. Therefore, this article will argue that the particularly rigorous criminalisation Travellers have experienced in Ireland is founded on the reaction of the dominant sedentary population to perceived deviance by Travellers from the norms of post-independence state identity.
Traveller Criminalisation and Section 24 of the Housing Act 2002
Reflecting on the legislative treatment of Travellers in Ireland,Traveller legal practitioner David Joyce wrote that ‘[t]he core concept running right through [legislation concerning Travellers] has been the definition and categorisation of [their] way of life as criminal’.[5] This appears coherent with the modern experience of Section 24 of the Housing (Miscellaneous Provisions) Act 2002, which elevated trespass from a civil to a criminal wrong in ‘a move directly aimed at Travellers’.[6] This anti-trespass law has been highly destructive to Traveller nomadism, bordering on de facto criminalisation, by ‘[making] many of the spaces central to the maintenance of Traveller culture legally unenterable’.[7] If one considers the assertions of Michael McDonagh, a Traveller activist, that ‘nomadism says everything about Travellers’ and is ‘vital to our survival’ then the draconian nature of this law becomes apparent.[8] Functionally, this provision punishes a collective group ‘not for what they do, but who they are’.[9]While the ‘issue of encroachment on public and private lands by Travellers’ was originally mooted as its justification during Dáil debate,[10] it is better viewed as a continuation of broader strategies of control and assimilation, which have marked the Irish state’s relationship with Travellers.[11] The dynamics which motivate and facilitate these strategies, of which this legislative measure is characteristic, will correspondingly be considered.
Social Anachronisms and National Embarrassments
Across Europe, nomadism is treated as characteristic of barbarous and underdeveloped societies,[12] nomads are typically considered archaic remnants of the pre-modern age, culturally maladjusted to the norms of sedentary society and antagonistic to the territorial governance requirements of the nation state’.[13] Hence, ‘nomads’ engagement with the criminal justice system historically largely involved efforts to control their mobility, and ensure they remained in locations which would not cause concern for settled people’.[14] The roots of this attitude are perhaps well illustrated through the work of certain natural law jurists such as David Hume and Hugo Grotius, who viewed property law protecting exclusivity of use as coinciding with the stage of history in ‘which primitive men settled to live upon and cultivate the soil’.[15] The beginning of civilised society was therefore inextricably tied to settlement on this view. The necessary corollary is that non-cultivators, such as nomadic Travellers, ‘were yet too primitive in development either to have laws or rights of exclusive occupancy and possession’.[16] The implication of these theories of social progress, which were highly influential during the building of the new Irish state and reformulation of national identity in the 20th century,[17] justifies regarding nomadism, or attachment to a nomadic past, ‘as political embarrassments and obstacles to progress’.[18] Thus, within this nation-building project, ‘Travellers became the subject of scrutiny by the Irish state as unwelcome ghosts of a former kind of existence and as a darkness on the edge of Irish towns’.[19] The position of reclaimed Irish land within this project and the associated norms of the new Irish state served as the nexus for mobilising strategies of criminalisation and control to address the ‘problem of itinerancy’ by Travellers as it was then identified.[20]
Irish land and nationalism have a shared history, given that the political impetus for independence concerned not only freedom from British sovereignty, but also reclamation of territory,[21] so accordingly land occupied a crucial position in the process of Ireland’s state-building. Within his landmark work, ‘Ireland, 1912-1985: Politics and Society’, historian Lee identified an ‘obsessive attachment to land’ amongst the Irish people for their equation of land with security in the face of uncertainty,[22] thereby centring land in the national psyche, with other commentators suggesting that Irish nationalism ‘stressed the links between 'people' and 'Mother Ireland' … in such a way as to suggest that this was an entirely natural, organic, even sacred relationship’.[23] Consequently, amongst the founding principles of the new Irish state was ‘the primacy of a territorialised identity and the importance of rootedness and kinship with the land’,[24] which conflicted with the transient and migratory behaviour of Travellers.[25] Travellers were constructed as enemies of progress and social outcasts leading some commentators to assert that the new Irish identity was partially defined in positive terms by being sedentary, and negatively by ‘measuring ourselves against who we were not, [nomadic Travellers]’.[26] Their relationship to land was ‘tarnished … [and] had no place in the nation state’,[27] as ‘their very existence [threatened and undermined]’ the character of post-independence Ireland.[28] As they became more prominent in national life due to the disruption of their niche agrarian economic roles,[29] their ‘deviant’ behaviour mobilised political and ideological opposition to them, resulting in their portrayal as a ‘failed settled people in need of rehabilitation and assimilation’.[30]
This perception of Travellers is broadly consistent with criminological accounts of moral panic,[31] ‘a mass movement based on the false or exaggerated perception that some cultural behaviour or group of people is dangerously deviant and poses a threat to society's values and interests’.[32] This negative reaction to Traveller deviance appears to persist in a modern context, where state strategies of control continue to push Travellers to align with sedentary norms,[33] notably through the targeting of nomadic practice within criminal law. Cognisance of this reveals the fundamental motives shaping the criminalisation of nomadic practice through section 24 of the Housing Act 2002, rather than the feeble fig leaf offered in parliamentary debate, it is the continued targeting of ‘marginal groups who fell outside the imagined community at the heart of [the new Irish national identity]’.[34]
Conclusion
As expressed by Richardson, ‘the motive for control is the perception that [Travellers] are ‘other’, they are folk devils, not like ‘us’, and therefore need to be controlled’.[35] Accordingly, this article has sought to highlight the particular dynamics within Ireland which contribute to the pathological perception of Travellers’ way of life as deviant, and the subsequent intensification of strategies of criminalisation against them.[36] Section 24 of the Housing Act 2002 is a fragment of these wider strategies of criminalisation and control, evident of ‘the ultimate goal of settlement and spatial fixity’ which defines government policy towards Travellers.[37] Appreciation of these dynamics and their role in anti-Traveller discourse is a necessary aspect in breaking cycles of discrimination and constructive assimilation experienced by Travellers, towards meaningful engagement with their social and cultural needs.
[1] Mike Doherty, ‘New anti-Traveller laws set to criminalise nomadic way of life’ (Traveller Times, 9 March 2021) <https://www.travellerstimes.org.uk/news/2021/03/new-anti-traveller-laws-set-criminalise-nomadic-way-life> accessed 30 October 2021. [2] Council of Europe ‘United Kingdom: Parliamentarians should reject restrictions on peaceful demonstration, criminalisation of Gypsy, Roma and Traveller communities’ (July 2021) < https://rm.coe.int/letter-to-rt-hon-sir-lindsay-hoyle-mp-speaker-of-the-house-of-commons-/1680a305a3> accessed 30 October 2021; Lizzie Dearden ‘Police do not want ‘discriminatory’ new laws to criminalise Travellers, senior officer says’ (Independent, 18 May 2021) <https://www.independent.co.uk/news/uk/home-news/travellers-law-caravans-vehicles-discrimination-b1849603.html?amp> accessed 30 October 2021. [3] Robbie McVeigh, ‘The ‘Final Solution’: Reformism, Ethnicity Denial and the Politics of Anti-Travellerism in Ireland’ (2008) 7(1) Social Policy and Society 91. [4] Mark Donahue, Robbie McVeigh and Maureen Ward, ‘Misli Crush Misli: Irish Travellers and Nomadism’ (Research Report for the Irish Traveller Movement and Traveller Movement (Northern Ireland), 2004) <https://itmtrav.ie/wp-content/uploads/2016/11/MISLI-CRUSH-MISLI-Irish-Travellers-and-Nomadism.pdf> accessed 30 October 2021. [5] David Joyce, ‘The Historical Criminalisation of Travellers in Irish Law’ (2003) 13(4) ICLJ 14. [6] See (n 3). [7] Una Crowley and Rob Kitchin, ‘Paradoxical spaces of Traveller citizenship in contemporary Ireland’ (2007) 40(2) Irish Geography 128. [8] Michael McDonagh, ‘Origins of the Travelling People’ in Erica Sheehan (ed), Travellers: Citizens of Ireland, (Parish of the Travelling People, 2000) 21. [9] See (n 5). [10] Dáil Deb 10 December 1947, vol 109 (5). [11] Niall Crowley, ‘Travellers and Social Policy’, in Suzanne Quin and others (eds) Contemporary Irish Social Policy (University College Dublin Press, 2005). [12] Jim McLaughlin, ‘Nation-buiding, social closure and anti-traveller racism in Ireland’ (1999) 33(1) Sociology 129. [13] Aogán Mulcahy. ‘’Alright in their own place’: Policing and the spatial regulation of Irish Travellers’ (2012) 12(3) Criminology and Criminal Justice 307. [14] ibid. [15] William Bassett, ‘The Myth of the Nomad in Property Law’ (1986) 4(1) Journal of Law and Religion 133. [16] ibid. [17] See (n 12). [18] ibid; Robbie McVeigh, ‘Theorising Sedentarism: The Roots of Anti-Nomadism’ in Thomas Acton (ed), Gypsy Politics and Traveller identity (University of Hertfordshire Press, 1997). [19] Bryan Fanning, ‘New Rules of Belonging: How Travellers Came to be Depicted as Enemies of Progress’, (2015) 104 (415) Studies – An Irish Quarterly Review 302. [20] Robbie McVeigh, ‘The ‘Final solution’: Reformism, Ethnicity Denial and the Politics of Anti-Travellerism in Ireland’ (2008) 7(1) Social Policy and Society 91. [21] Rachael Walsh and Lorna Fox O’Mahony, ‘Land law, property ideologies and the British–Irish relationship’ (2018) 47(1) Common Law World Review 7. [22] Joseph Lee, Ireland, 1912-1985: Politics and Society (1st edn, Cambridge University Press, 1989) 390. [23] See (n 12). [24] Paul Delaney, ‘A Sense of Place: Travellers, Representation, and Irish Culture’ (2003) 3 Republic: A Journal of Contemporary and Historical Debate 85. [25] ibid. [26] See (n 3). [27] See (n 12). [28] See (n 18). [29] See (n 4) and (n 19). [30] See (n 5). [31] Chas Critcher, ‘Moral Panics’ (Oxford Research Encyclopedias: Criminology and Criminal Justice, 29 March 2017) <https://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-155> accessed 30 October 2021; Joanna Richardson and Richard O’Neill, ‘‘Stamp on the Camps’: the social construction of Gypsies and Travellers in media and political debate’ in Joanna Richardson and Adolf Ka Tat Tsang (eds), Gypsies and Travellers: Empowerment and inclusion in British society (2012). [32] Graham Gooch and Michael Williams, ‘A Dictionary of Law Enforcement’ (Oxford University Press, 2014). [33] Úna Crowley, ‘Paradoxical spaces of Traveller citizenship in contemporary Ireland’, (2007) 40(2) Irish Geography 128. [34] See (n 13). [35] Joanna Richardson, Gypsy Debate: Can Discourse Control? (Andrews UK Limited 2017). [36] Huub van Baar, ‘Europe's Romaphobia: Problematization, Securitization, Nomadization’ (2011) 29 Environment and Planning D: Society and Space 203. [37] See (n 11).
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