APPENDIX 11
Memorandum submitted by the Commission
for Racial Equality
INTRODUCTION
The last Select Committee on the Armed Forces
Bill in 1996 invited the Commission for Racial Equality ("CRE")
to submit written evidence and to give oral evidence on two occasions.
The CRE's written evidence and the first occasion for oral evidence
focused on provisions in the Armed Forces Bill that would establish
new procedures for complaints of racial discrimination by serving
members of the Armed Forces. On the second occasion, shortly after
the conclusion of the CRE's formal investigation into the Household
Cavalry, the CRE gave oral evident relating to that investigation
and the subsequent agreement between the CRE and the Ministry
of Defence (MoD).
At the conclusion of that second session the
Select Committee requested that progress should be reported to
the next Select Committee in 2001. It is our understanding that
the MoD have submitted a progress report to this Select Committee.
Having regard to the CRE's detailed work with the MoD and the
three Services over the past five years, it seemed appropriate
for the Select Committee also to receive a progress report from
the CRE. We understand that members of the Select Committee have
been provided with our recent evidence to the Defence Committee
in its review of Armed Forces personnel issues. The present report
draws on much of the same information, summarising, rather than
repeating, what is contained in that document.
This submission to the Select Committee on the
Armed Forces Bill is in three parts:
1. Summary report of progress
2. Review of the workings of the procedures
introduced by the 1996 Armed Forces Act
3. Submission on the Armed Forces Bill.
SUMMARY REPORT
OF PROGRESS:
CRE/MOD ACTION
PLAN AND
PARTNERSHIP AGREEMENT
MARCH 1996—FEBRUARY
2001
The CRE had been concerned for some time about
racism and discrimination in all three branches of the Services.
Reports of racial harassment and discrimination undoubtedly deterred
ethnic minority men and women from joining the Services, as the
lack of effective measures to prevent discrimination hindered
the ability of the Services to retain ethnic minority personnel.
It was only in March 1996, after MoD signed
an agreement committing all three Services to a timetabled five
year Action Plan, that the Services began to tackle racism and
eliminate discriminatory practices. Under this Action Plan each
of the Services was expected to carry out measures to improve
their ethnic minority recruitment and retention and to deal more
effectively with racial harassment and discrimination. The requirements
on each of the Services to carry out ethnic monitoring and to
report quarterly to the CRE have been key factors affecting progress
since 1996.
In March 1998, when the CRE was satisfied that
the MoD was complying with the terms of the Action Plan, the CRE
and the MoD entered into a five year Partnership Agreement, which
was to operate alongside the Action Plan. Under the Partnership
Agreement the MoD committed the Services to further measures to
achieve racial equality including achievement of ethnic minority
recruitment targets, removal of barriers to ethnic minority recruitment
and promotion, increased numbers of ethnic minority officers at
higher ranks, effective action to prevent racist abuse and making
equal opportunity performances part of annual appraisals.
From the quarterly statistical reports, the
CRE is aware that the Services have made considerable progress
towards meeting many of the objectives and requirements of the
Action Plan and the Partnership Agreement, but progress has been
uneven. Areas of particular concern to the CRE are summarised
below.
ETHNIC
MONITORING
At the Select Committee on the Armed Forces
Bill in 1996 the representatives of all three Services expressed
doubts as to their ability to introduce ethnic monitoring of service
personnel. We can report that once the MoD committed the Services
to implementing ethnic monitoring systems and to collecting and
analysing these data under the Action Plan, the Services soon
met these requirements. While at times there have been technical
problems, the Services have continued to work towards recording
ethnicity of 100 per cent of their personnel.
The quarterly reports to the CRE illustrate
the different methods and different degrees of success of the
three Services in applying ethnic monitoring data to identify
patterns of discrimination and barriers to equality. It is encouraging,
however, that the latest reports show that the Services are prepared
to examine more rigorously the possible reasons for some of the
inequalities that their monitoring data have revealed.
RECRUITMENT
The CRE recognises the effort and expenditure
the Services have dedicated to attracting greater numbers of ethnic
minorities. The overall result, however, has been to achieve only
a marginal percentage increase in the numbers of ethnic minority
recruits entering the Armed Forces since April 1997 (from 1.7
per cent in 1997 to 1.9 per cent in 2000).
The CRE has regularly urged each of the Services
to look beyond their existing recruiting activities to identify
and tackle some of the barriers—within the Services and
in the different communities—to attracting ethnic minority
recruits. All three Services have established dedicated ethnic
minority recruiting teams and have deployed a range of recruiting
strategies. The outcomes, although varying between the Services,
have nearly all been disappointing. Although the Services have
been able to attract many thousands of ethnic minority young men
and women and their families to various outreach activities (for
example, the Army reported more than 191,000 at their events during
1999-2000) they have not been able to sustain this interest sufficiently
to boost recruitment in any significant way.
Assisted by external consultants or otherwise,
the Services have gradually attuned their outreach activities
and recruitment methods to the needs and expectations of the different
groups they are trying to attract. With several years individual
and collective experience, the Services should be consolidating
this experience by systematically reviewing the effectiveness
of their various recruiting strategies and sharing best practice,
which they confirm they have begun to do.
ETHNIC
MINORITY RECRUITING
TARGETS
As stated above, the outcome of the recruiting
activities carried out by the Services has been only a marginal
increase in the percentage of ethnic minority recruits entering
the Armed Forces since 1997. From the first meetings to discuss
progress against the Action Plan, it was clear that not all of
the officers with recruitment responsibilities welcomed recruitment
targets. Nevertheless, in January 1998 the Secretary of State
announced ethnic minority targets for each of the Services. For
1998-99 the target was 2 per cent, for 1999-2000 the target was
3 per cent, 4 per cent for 2000-01 and then 5 per cent for 2001-02.
In the first year the Army met the 2 per cent target but the other
Services did not; in the second year none of the Services met
the 3 per cent target, and all indications are that none will
reach this year's 4 per cent target—although the Army is
likely to come closest.
The targets have driven improvements to recruiting
initiatives and strategies; without targets it would have been
easier for the Services to be complacent about their recruiting
performance. It remains the view of the CRE that these targets
should be achievable by all three Services. The Household Cavalry—whose
failures triggered recognition of the need for action across the
Services—has increased ethnic minority representation from
eight to 66 in four years (to March 2000).
RECRUITMENT
PROCESS
The CRE has encouraged the Services to examine
ways of speeding up the recruitment process so that potential
ethnic minority applicants are not lost at any stage. Following
discussions with the CRE, the Services have developed best practice
guidelines to assist recruiting staff to "nurture" ethnic
minority applicants. In view of the increasing competition for
ethnic minority recruits, especially from other uniformed services,
there is extra pressure on the Services regularly to review all
aspects of their recruitment arrangements.
SELECTION
TESTS
Throughout the period for which reliable monitoring
data has been available, ethnic minority applicants have continued
to achieve lower test scores than white applicants.
This can be a significant issue for ethnic minority
candidates, who may not proceed with their applications if, due
to poor test scores, they are not selected for the trade of their
choice. The development of the proposed tri-Service test could
provide an invaluable opportunity to explore the most effective
ways for assessing suitability for selection to the Armed Forces
in the 21st century.
RETENTION
Retention is a problem in relation to all serving
personnel, but it is almost inevitable that discrimination, harassment
and poor career progression may influence decisions by serving
ethnic minority personnel to leave prematurely.
Much of the work of the three Services, faced
with challenging targets, has focused on improving ethnic minority
recruitment. While the Army, and the other Services to a differing
extent, as part of their recruitment efforts now have a higher
profile and an improved image, the Army's own research had shown
that the Services are still widely perceived as racist institutions.
Recent CRE cases make clear that, despite the Action Plan and
the Partnership, racial harassment and abuse of ethnic minority
personnel is a continuing problem. While it can be devastating
for the victim it is also seriously damaging to his or her unit
in terms of destroying trust and cohesion.
Therefore, to aid both recruitment and retention,
it should be a priority for the Services to review continuously
the success or otherwise of any measures to tackle discrimination;
they should also identify any gaps between their stated equal
opportunities policies and actual race equality performance down
the chain of command.
The Services should examine the outcome of research
and surveys and learn from individual cases and complaints of
discrimination. When any one of the Services is defensive and
denies the need to change, they make it more difficult to alter
negative perceptions or to retain the ethnic minorities they have
worked to recruit. A range of equal opportunity training initiatives
has been undertaken since 1996. It remains a priority for each
of the Services to evaluate the extent to which equal opportunities
training has been successful in changing attitudes amongst personnel
at every level.
PROMOTION
Each of the Service has explained why they require
a minimum number of years of service to be eligible for promotion
to higher rank, which could operate as a barrier to the promotion
of ethnic minorities whose numbers have only recently begun to
increase. The CRE has recently been informed that the Services
are moving from toward a more flexible approach that will refer
to the achievement of compentencies and not solely length of time
in rank.
REVIEW OF
THE WORKINGS
OF PROCEDURES
INTRODUCED BY
THE ARMED
FORCES ACT
1996
As mentioned above, the CRE gave evidence to
the 1996 Armed Forces Bill Select Committee. Our concerns related
to sections 20 and 23 of the Armed Forces Act 1996 ("the
1996 Act"), which amended section 75 of the Race Relations
Act 1976 ("the 1976 Act").
The 1996 Act, for the first time, gave serving
personnel the right to bring a complaint of racial discrimination
to an Industrial Tribunal (now Employment Tribunal). The CRE warned
the Select Committee that what was proposed—and has now
been enacted—would leave servicemen and women disadvantaged
when compared to all civilian employees. The unique requirement
in the 1996 Act is that before service personnel can institute
discrimination proceedings in the employment tribunal they must
first seek redress through the Service's internal redress of complaint
procedures. The Race Relations (Complaints to Industrial Tribunals)
(Armed Forces) Regulations 1997 enable an application to an employment
tribunal to be made at any time after the internal complaint has
been lodged; in practice, in every case familiar to the CRE, the
representative of the Army or Navy or RAF has obtained a stay
(or, in Scotland, a sist) of the tribunal case to allow the internal
procedure to be concluded before the tribunal considers the complaint.
The 1996 Act enabled Queen's Regulations to
fix a three-month time limit for applications for redress of complaint.
The 1996 Act also amended the time limit for complaints of racial
discrimination to the employment tribunal—extending it for
service personnel from three months to six months, to accommodate
the internal procedure. No time limit was imposed on the conduct
of the redress procedure, and throughout the debate in Committee
and in both Houses of Parliament, no indication was given as to
the actual time that redress of complaint cases normally require.
In the CRE's evidence, opposing this two-stage
process, we raised the issue of delay and the harmful effect of
delay on the complainant; with our direct experience of individual
cases since 1996 our concerns regarding delay are very much greater.
The relevant provisions of the 1996 Act came into force on 1 October
1997. In cases where the CRE is representing or assisting the
applicant, the average length of time for completion of the internal
redress of complaint is 18 months. At least one current case is
challenging such delays as being discriminatory. We submit that
there may also be potential claims under the Human Rights Act,
relying on article 6 (right to fair and public hearing without
delay for the determination of civil rights and obligations) with
article 14 (non-discrimination in the enjoyment of the right to
a fair trial).
Even if this prolonged redress procedure were
to lead to findings similar to those that could be made by an
employment tribunal, there is not, as we understand, the same
scope for the award of compensation. Therefore, in the most serious
cases, which are often the most prolonged, to obtain appropriate
compensation complainants must always bring tribunal proceedings
in addition to using the redress procedure.
As the CRE sought to make clear in 1996, we
do not disagree that wherever possible an employee should seek
to resolve a grievance through internal procedures before taking
action in any court or tribunal. This is desirable practice in
any employment setting. What we disagreed with in 1996, and continue
to oppose, is the requirement that, for service personnel only,
a complaint must be made internally and internal procedures exhausted,
before the same facts can be considered by an employment tribunal.
Our concern was that so long as complaints must be considered
up the chain of command, the factors that had inhibited use of
the redress procedure under Services Discipline Acts would continue
to operate.
The survey by the RAF in 1998 of its ethnic
minority service personnel confirmed both that their experience
of racial discrimination and harassment was widespread and that
most people did not complain. The three main reasons given for
not complaining were fear of victimisation, not wanting to damage
career prospects and fear of not being believed. These findings
reinforce the CRE view that employees who, for whatever reason,
lack confidence in their employer's internal procedure should
not be prevented from seeking independent adjudication of their
complaints.
Since 1997 each of the Services has introduced
procedures for complaints of racial discrimination and produced
leaflets and other information about these procedures. Nevertheless,
on the evidence of individual service personnel who have approached
the CRE with complaints of racial discrimination, the extent to
which victims of harassment and discrimination are aware of these
procedures is not clear, nor are we confident that servicemen
and women are sufficiently aware of their rights under the Race
Relation Act.
As well as the major issue of delay, it is important
to recognise the difference in approach between the internal redress
of complaint and proceedings under the Race Relations Act in the
employment tribunal. The internal procedure is concerned primarily
to identify the individuals involved in the alleged discriminatory
treatment, and, depending on the strength and quality of the evidence,
to bring proceedings for offences under the Services' Discipline
Acts. Such cases, like any other criminal cases, must be proved
beyond reasonable doubt. To meet the required standard of proof
the interview of the victim by the Special Investigation Branch
can be difficult and lengthy, regardless of the victim's physical
or mental condition.
Under the redress procedure a "successful"
complaint is one that results in a conviction of the perpetrator.
Not only is there very limited scope to award any form of compensation
to the victim, but also there is nothing in the Service Discipline
Acts that requires the employer—the MoD or the Army or the
Navy or the RAF—to accept responsibility, to institute change
or to take any steps to protect the victim from further discrimination
or victimisation.
In the employment tribunal the complaint of
discrimination will normally be under section 4 of the Race Relations
Act, which outlaws discrimination by an employer in recruitment,
selection, terms and conditions, access to promotion, training,
benefits, dismissal or subjection to any detriment, including
harassment. The respondent would normally be the MoD or the Army
or Navy or RAF (relying on section 32 of the Race Relations Act
which makes the employer vicariously liable). In some cases individual
perpetrators might be named as additional respondents. The object
of the proceedings would be for a wholly independent tribunal
to decide whether, on the civil standard of proof—the balance
of probabilities—the employer, that is the MoD or the Army
or Navy or RAF, has committed an awful act of discrimination.
If the complaint is upheld the tribunal has powers to order the
employer to compensate the victim for past and future financial
loss and for injury to feelings. How the discrimination affected
the employee is a significant factor in determining the total
award, which has no upper limit. Where an employee's career has
come to an end as a result of racial discrimination then awards
can be substantial. Where the complainant is still employed, the
tribunal can also recommend that the employer takes steps to protect
the complainant from future discrimination.
Based on our experience since 1997, the CRE
submits that the present arrangements significantly disadvantage
servicemen and women. We would urge the Defence Committee to consider
proposing an amendment to the Armed Forces Bill which would amend
sections 20 and 23 of the Armed Forces Act 1996, and as a consequence
also amend section 75 of the Race Relations Act, to give servicemen
or women who are victims of discrimination the right to complain
directly to an employment tribunal, as all other employees are
able to do.
The following brief summaries of a few CRE cases
demonstrate the disadvantage to the complainant of the procedures
introduced in the 1996 Armed Forces Act:
Case A
The Army have admitted racial discrimination,
leaving compensation as the only outstanding issue. If this case
were before an employment tribunal the parties would proceed to
negotiate terms of settlement. The internal redress procedure
appears to have no mechanism for compensation to be agreed between
the Army's representative and the applicant; thus the matter will
not be resolved until it has been considered by the Army Board.
Case B
The applicant applied for redress of complaint
in November 1998, and he was notified two years later, in November
2000, that his case was going to the Army Board.
Case C
The applicant applied in March 1999 for redress
of a complaint of racist abuse. He felt threatened by the response
of his CO, when AWOL and after seeking medical help, has been
discharged. The internal investigation, which upheld many of his
complaints, lasted nearly 12 months.
Case D
The applicant applied for redress of complaint
about discriminatory treatment by the Sgt Major of his company.
The NCO who was the subject of his complaint remained in post
and was then promoted, but throughout the 15 months between his
application and the Court Martial he was in direct command over
all of the applicant's witnesses.
Case E
The applicant submitted a redress of complaint
alleging racial bias by his CO which prejudiced his promotion
prospects. In submitting his redress he had difficulties in ensuring
that the racial bias element of his complaint was properly recorded.
His tribunal application has been stayed while the redress proceeds.
The applicant's preference is to negotiate a settlement of this
matter, as is common procedure for cases in the employment tribunal;
as in Case A above, there appears to be no internal procedure
to settle complaints.
Case F
The applicant applied for redress of complaint
in September 1998, and the Equal Opportunities Investigation Team
informed him of their finding 18 months later.
THE ARMED
FORCES BILL
None of the provisions of the Armed Forces Bill
appears to relate directly to race relations or racial discrimination.
There are, however, certain proposals within the Bill that may
be relevant to the promotion of racial equality, and the CRE submits
the following comments.
The CRE agrees with the proposals in Part II
of the Bill which would put the powers of the service police on
a clear statutory basis. It is undoubtedly preferable for those
who exercise powers of restraint or search or arrest, including
the use of force to do so, that there should be no uncertainty
as to the limits of their powers; Service personnel and others
who may be subject to the exercise of such powers also benefit
from such certainty.
What is proposed in Part II is to authorise
service police to exercise powers that are currently available
to the civilian police under the Police and Criminal Evidence
Act 1984. Monitoring of the exercise of the police powers under
the 1984 Act has repeatedly disclosed significant disproportionality
in the use of those powers against people of different racial
groups. For example, as has been widely reported, such monitoring
consistently shows that black people are far more likely to be
stopped and searched by the police than any other racial group.
This has remained true even though the Code of Practice on Stop
and Search, since its initial publication in 1984, has emphasised
that suspicion giving rise to the exercise of stop and search
powers should not be based on the physical appearance of individuals.
This unacceptable inequality was highlighted in the Stephen Lawrence
Inquiry Report and has regularly been referred to in the reports
of Her Majesty's Inspectorate of Constabulary.
The duty laid on the Home Secretary under Section
95 of the Criminal Justice Act 1991 to publish ethnic monitoring
data includes data from local police forces only. The CRE recommends
that if Parliament is being asked to give statutory authority
to the service police to exercise the same powers as the civilian
police, then there should also be a statutory requirement to monitor
by ethnicity and to report, comparable to the requirements of
the Criminal Justice Act 1991. This would be wholly consistent
with the obligations that are likely to apply to every police
force under the Race Relations (Amendment) Act 2000. Without such
monitoring none of the Services nor the Ministry of Defence nor
Parliament will know with any accuracy whether the guidance provided
by the Codes of Practice under the Police and Criminal Evidence
Act, or the overall commitment of the Services to race equality,
is in fact being implemented by the service police in the exercise
of their powers.
In Part IV and Schedule 5 of the Bill it is
proposed to extend the jurisdiction of the Ministry of Defence
Police (MDP) so that, in a number of circumstances, they will
be able to exercise policing powers not only on or in the vicinity
of defence land or in relation to service personnel, but at any
location where there has been a request for assistance by a constable
of any local police force, where (Clause 31(4)) or when the chief
officer of any police force listed in the Bill, including all
local forces and the British Transport Police applies for MDP
constables to help meet special demands.
The CRE's concerns in relation to this major
extension of jurisdiction of the MDP are similar to those stated
above concerning the service police, but all the greater because
of what will, in effect, be an unlimited jurisdiction of the MDP.
The Bill does not limit the circumstances in which the MDP may
be called upon for assistance; this could occur in relation to
racist incidents or public order situations including inter-racial
conflict, where extreme sensitivity would be required.
Since the Stephen Lawrence Inquiry Report most
local police forces have acknowledged the need to ensure that
all police officers, and especially front-line staff, are trained
in anti-racism and racial awareness. With the wider jurisdiction
of the MDP such training will become essential. We note that in
the explanatory notes accompanying the Bill (paragraph 172 "Effects
of the Bill on Public Sector Finances") there is no reference
to the expenditure that will be needed for training the MDP to
carry out new types of functions or familiar functions in unfamiliar
circumstances.
The MDP, unlike a local police force, is not
accountable to a police authority; instead there is a police committee
appointed by the Secretary of State. The MDP was not required
under the Police and Criminal Evidence Act, as local forces were,
to establish a police community consultative group. Therefore
at present there is no statutory basis for public accountability,
or involvement of civilian population, in the way the MDP will
exercise its extended powers.
Like that of the service police, the performance
of the MDP is not included when the Home Secretary reports the
outcomes of monitoring of the criminal justice system under section
95 of the Criminal Justice Act 1991. As part IV of this Bill now
proposes that constables of the MDP will more frequently be working
alongside constables of local forces, the CRE strongly urges that
statutory provision should be made in the Armed Forces Bill to
require ethnic monitoring of the exercise of powers, such as stop
and search and arrest, exercised by the MDP.
CONCLUSION
In conclusion, the CRE's main submissions to
the Select Committee in its consideration of the present Armed
Forces Bill are as follows:
— that the Select Committee should
consider proposing an amendment to the Armed Forces Bill which
would amend sections 20 and 23 of the Armed Forces Act 1996, and
as a consequence, also amend section 75 of the Race Relations
Act, to give servicemen and women who are victims of racial discrimination
the same right as all other employees to complain directly to
an employment tribunal;
— that the Select Committee to consider
amendment of the Armed Forces Bill to require ethnic monitoring
of the outcomes of operational activities of the service police
and the MDP, and for the annual reporting of their activities
in this area.
February 2001
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