Guest Post: Siobhan Cummiskey on Travellers as an Ethnic Minority

We are delighted to welcome this guest post from Siobhan Cummiskey, managing solicitor of the Irish Traveller Movement Independent Law Centre. You can find out more about Siobhan on the Guest  Contributors page.

Travellers have once again been both literally and figuratively sidelined by the Irish government upon being consigned to the Appendix of Ireland’s State Report to CERD (Convention on the Elimination of All Forms of Discrimination) in their combined 3rd and 4th report to the CERD Committee submitted in December 2009. The consignment of Travellers to a mere Appendix of a state report on racism is a most overt method of affirming the policy-endorsed position that Travellers are social dropouts, failed settled people and an economically deprived social group, as opposed to an ethnic minority.

The Irish government reiterated its tired mantra on the recognition of Travellers as an ethnic minority in their 2009 state report:

“The exact basis for this claim is unclear. The Irish Government’s view is that Travellers do not constitute a distinct group from the population as a whole in terms of race, colour, descent or ethnic origin.”¹

Our neighbour, the jurisdiction of England and Wales, has recognized Irish Travellers as an ethnic minority through the courts² and Northern Ireland expressly includes Irish Travellers in their equality legislation under the definition of an ethnic minority³. Our own Equality Acts 2000-2004 fail to include Travellers as an ethnic minority and instead list them as a separate group to whom protection will be provided in that particular legal instrument. The Irish government maintains in their 2009 report to CERD that equality legislation that fails to define Travellers as an ethnic minority but instead singles them out as a separate group worthy of protection, “does not provide a lesser level of protection to Travellers compared to that afforded to members of ethnic minorities. On the contrary, the specific identification of Travellers in equality legislation guarantees that they are explicitly protected.”

However, we would suggest that this is in fact positively misguided. As the jurisdictions of England and Wales and Northern Ireland have recognized Irish Travellers as an ethnic minority it is very likely this protection will carry forward into any later legislation produced by their governments regarding ethnic minorities. However, the Irish government continues to cherry pick where Travellers are protected. For instance, Travellers are protected by the Prohibition of Incitement to Discrimination Act 1989 but are not included in the remit of the Office of the Minister for Integration and were not mentioned in the Minister’s speech at the recent launch of the European Week Against Racism. If legislation was introduced tomorrow recognizing hate crimes in Ireland, Travellers may not be included.

In the County Court case of O’Leary v Allied Domecq, unreported 29 August 2000 Judge Goldstein and two assessors sat for six days listening to expert evidence about the ethnicity of Travellers. They applied the criteria laid down in the House of Lords case of Mandla v Dowell Lee to Irish Travellers. They held that Travellers met the two essential conditions laid down in that case, in relation to number 1 (“a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive”) the court held that a history that could be traced back to at least the middle of the 19th century was sufficient to fulfil the Mandla test, and in relation to number 2 (“a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance“) they found that Travellers were plainly nomadic, even if some of them were now “settled”, they preferred to be self-employed and had certain traditional occupations, some of them still practised match-making and they tended to marry within their own community, they had certain taboos about pollution and, though overwhelmingly Catholic, they had a particular attachment to pilgrimages and rituals.

Even this overt recognition across the water failed to move the Irish government. In fact, the then Minister for Justice, Equality and Law Reform mentioned at a session of the Oireachtas Sub-Committee on Human Rights on 11 March 2004 that the UK courts’ and government’s recognition extends only to Irish Travellers, suggesting that the key factor might be their Irish origin. In fact, the Court in the O’Leary case went some way to counteract that point by noting that one of the pubs which had refused entry to the Travellers in that case was itself patronised by “settled” Irish people so that the discrimination complained about was not based on the complainants’ Irishness. In fact, the Court noted that if it had been based on the complainants’ Irish origins, it would have been a straightforward issue of discrimination on grounds of nationality or race.

Motion 20 passed at the Green Party Convention last month recognized the potential problems caused by this unharmonious rights recognition between the two jurisdictions: “GP/CG calls on Irish Government to recognise Travellers as an ethnic group in line with legislation in UK and NI.  Referencing the Belfast and St Andrews agreements of duality of recognition of rights accorded to citizens of two jurisdictions.”

It must be noted at this stage that all of this is despite the fact that the CERD Committee (and other human rights instruments) has made clear that the concept of ethnicity is based on self-recognition not state recognition.⁴

While the recognition of the ethnicity of Travellers is not a panacea, it is certainly a way of rooting the protection of Traveller culture in something more concrete than political whim. Oran Doyle in his book on Equality has suggested that if Travellers take a position as an ethnic minority they are more likely to fall within the protection of the equality guarantee in the Constitution.

The consequences of a failure by the state to recognize the distinct ethnicity of Travellers is a series of laws targeting and criminalizing what should be defined as Traveller culture: nomadism is ever decreasing since the criminalisation of trespass under Irish law in 2002, the Control of Horses Act 1996 disproportionately affects the Traveller horse trade and, despite the fact that the High Court has long established the right of Travellers to choose halting site accommodation as part of their culture,⁵ the 2008 annual report of the National Traveller Accommodation Consultative Committee notes that the numbers of Travellers accommodated on halting sites has decreased year on year since 2003⁶, as homeless Travellers are actively encouraged by government bodies not to put halting site accommodation as a preference on their housing applications as new sites will not be built.

Traveller culture will not be destroyed by a massive trauma but by a thousand cuts: the flick of the pen when a new bill attacking Traveller culture is signed into law and through insidious practices such as those surrounding the provision of accommodation. We lament the treatment of indigenous minorities by the majority government far from home, but unless we start taking real steps, such as that of the recognition of Travellers as an ethnic minority, one day all we will have is a Traveller museum and nothing but our inertia to blame.

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1 http://www.integration.ie/website/omi/omiwebv6.nsf/page/AXBN-7ZLJ9Z13515711-en/$File/Combined%20Third%20and%20Fourth%20Report%20to%20the%20UNCERD%20Committee%20latest.pdf

2 O’Leary v Allied Domecq, unreported 29 August 2000

3 Article 5(2)(a) of the Race Relations (Northern Ireland) Order 1997 says: “In this Order, ‘racial grounds’ … includes the grounds of belonging to the Irish Traveller community

4 CERD General Recommendation VIII para 1.

5 The University of Limerick -v- Ryan, O’Reilly, John McCarthy, McCarthy, Limerick Co Co High Court 1991

6 http://www.environ.ie/en/Publications/DevelopmentandHousing/Housing/FileDownLoad,21840,en.pdf Page 13