Memorandum submitted by the Commission
for Racial Equality
1. INTRODUCTION
1.1 The Commission for Racial Equality (CRE)
was established by the Race Relations Act 1976 with duties to
work towards the elimination of racial discrimination and to promote
equality of opportunity and good relations between persons of
different racial groups.
1.2 The Commission for Racial Equality (CRE)
welcomes this opportunity to submit evidence to the Home Affairs
Select Committee One-Off Evidence Session the use of police powers
under terrorism legislation. The CRE recognises that the primary
responsibility for the security of all communities in Britain
rests with the Government and that it is appropriate for Government
to review existing law to ensure its adequacy, and to promote
new or amending legislation where this is demonstrably necessary.
In this submission we address only those issues which appear to
the Commission to have a high relevance for race equality and
good race relations. In particular this submission addresses:
— the failure to carry out a race impact
assessment and consultation under the racial equality duty;
— the impact of the anti terrorism
measures on community relations in Britain; and
— the need for ethnic monitoring data.
1.3 This submission also raises some of
the issues identified in our response to the Joint Committee on
Human Rights (JCHR) inquiry regarding: "Counter-Terrorism
Powers: Reconciling Security and Liberty in an Open Society (A
Discussion Paper)".
2. THE RACE
EQUALITY DUTY
2.1 Section 71 of the Race Relations Act
1976 as amended, places a general duty on listed public authorities
to promote racial equality: specifically, a listed public authority
shall, in carrying out its functions, have due regard to the need
to eliminate unlawful racial discrimination and to promote equality
of opportunity and good relations between persons of different
racial group.
2.2 In addition specific duties have been
placed on some listed public authorities to help them meet the
general duty and these include the duty to produce a Race Equality
Scheme (RES). The RES should set out those functions, policies
or proposed policies which an authority has assessed as relevant
to its performance of the general duty, and shall state the arrangements
made for:
(i) assessing and consulting on the
likely impact of proposed policies on the promotion of racial
equality;
(ii) monitoring its policies for any adverse
impact on the promotion of race equality;
(iii) publishing the results of such assessments,
consultations, and monitoring with respect to the above;
(iv) ensuring public access to information
and services which it provides; and
(v) training staff in connection with
the duties imposed by section 71(1) of the RR (A) A and associated
orders.
2.3 The Home Office and all criminal justice
agencies are subject to these duties.
3. RACE IMPACT
ASSESSMENTS
3.1 Whilst there is no direct statutory
duty to carry out assessments monitoring or consultation, the
CRE in its Statutory Code of Practice on the duty to promote racial
equality makes it clear that such arrangements are the necessary
basic means for meeting the general duty. Assessments of proposals
for policy and/or legislation are needed to help identify whether
those proposals might have a different impact on some racial groups
and whether they will contribute to good race relations.
3.2 Similarly, knowing that a policy is
working, as it should is vital to achieving the aims of the general
duty. Keeping track of how a policy is working and whether it
is having an adverse impact or harming race equality depends largely
on having efficient up to date and relevant information.
3.3 There was no requirement to conduct
a race impact assessment of the Terrorism Act 2000 (TA 2000) nor
the Anti-Terrorism Crime and Security Act 2001 (ATCS Act) before
their enactment since the general duty came into force on 2 April
2001 and the specific duties came into force on 3 December 2001.
However, monitoring of the ATCS Act measures for any adverse impact
on the promotion of race equality or good race relations was to
be expected and it is disappointing that the Home Office discussion
paper makes no reference to having carried out such monitoring.
If such monitoring has been carried out then it has not to our
knowledge been published in accordance with the arrangements set
out under the RES.
3.4 Moreover, our examination of available
public data[1],
revealed the absence of any ethnic monitoring statistics. This
makes it impossible to assess the impact that counter terrorism
legislation and policy are having on different racial and faith
groups, or to assess whether the legislation and policy are having
a differential impact on particular racial groups.
3.5 We would also emphasise that any proposed
changes to counter-terrorism legislation in Britain, following
the current review taking place, must be subject to a race impact
assessment, prior to implementation.
3.6 Where negative impact is identified,
agencies are required to examine alternative means of achieving
the desired policy goal, which will not have a negative impact
on race equality. Where adverse impact has already occurred, it
is necessary to either justify such policy or consider alternative
policies for the future and also take action to mitigate the negative
effects.
4. THE IMPACT
OF TERRORISM
LEGISLATION ON
COMMUNITY RELATIONS
IN BRITAIN
4.1 While we recognise the Government's
primary responsibility is to ensure the security of all communities
in Britain it is also necessary for the Government to review the
effectiveness of existing counter terrorism legislation in achieving
these objectives and in so doing to assess the impact of their
current arrangements on race and community relations in Britain.
4.2 We consider that the provisions under
s4 of ATCS Act have resulted in the introduction of an alternative
system, which provides for the indefinite detention by administrative,
rather than judicial decision of persons who are subject to immigration
control. As such we consider that such provisions are discriminatory,
and have served to create a climate of fear and suspicion of black
and ethnic minority communities, and in particular, of Muslim
communities, or those identified as such. This has in our view
damaged race and community relations in Britain.
4.3 We are increasingly aware of the growing
concerns amongst Muslim and other communities of the impact of
anti-terrorism legislation and as a consequence we are concerned
about the impact this may have on good race relations.
4.4 While many of the complaints of which
we are aware are anecdotal, typically the types of complaints
that have come to our attention include the following:
— alleged racial and religious abuse
of suspects by police officers during stops and searches;
— unnecessary use of the provisions
of terrorism legislation to conduct stops and searches of vehicles
and properties and premises among ethnic minority communities
in circumstance where the use of stop and search powers under
PACE would be sufficient so-called "fishing expeditions";
— denial of access any or any adequate
medical care after arrest; and
— alleged failure to return assets
and money seized during searches—even after decisions not
to charge have been made.
4.5 Although we recognise these allegations
and assertions remain unsubstantiated, the absence of any or any
adequate, transparent mechanisms both to ensure and demonstrate
that the provisions of terrorism legislation are not being used
in a discriminatory fashion, (through using the provisions set
out in the Race Equality Duty in 2.2 above), will in our view
result in some communities in Britain believing they are being
treated less favourably by the police and other criminal justice
agencies on the grounds of their race and faith. The prevalence
of such a belief is a barrier to achieving an integrated society
and in our view cannot be justified in a fair and just society.
4.6 In our response to the JCHR referred
to above, we stated that as the powers of the ATCS Act are particularly
directed at terrorists, with explicit reference to Al-Qaida and
the network of terrorist groups associated with it, we believe
it is essential that the Home Office considers the implication
of such a policy on Muslim communities in Britain in particular.
We consider that such adverse impact on community confidence is
contradictory to the Home Office's public service agreements (PSAs)
on increasing confidence, including that of ethnic minority people.
4.7 We have also received a number of complaints
from Muslim communities in particular regarding the impact of
media reports following arrests and detentions of suspects under
terrorism legislation. Concerns expressed relate to some parts
of the media referring to arrested suspects as so-called "British
Pakistanis" or "Muslim extremists". Community leaders
have also expressed concerns that while arrests of Muslim suspects
under terrorism legislation often attracts immense media coverage,
when suspects have been released without charge, this has not
received a commensurate level of media coverage.
4.8 Based on the reports of the use of terrorism
legislation amongst ethnic minority communities by NGOs, individual
complaints and an analysis of available statistics, ethnic minority
communities, and in particular Muslim communities, have increasingly
expressed concerns of experiences of what appear to be patterns
of arbitrary arrests, racial profiling of suspects, significantly
higher stop and search rates, but relatively lower arrest rates.
All of which has resulted in perceptions amongst some communities
that some of the safeguards introduced post-Lawrence, under PACE,
are being undermined by the ways in which the terrorism legislation
is currently being used.
5. ETHNIC MONITORING
5.1 We have already stated that in order
to instil community confidence in the proper use of counter terrorism
legislation the Government must demonstrate that the provisions
are being used in a non-discriminatory manner. The collation of
ethnic monitoring data as required by the Race Equality Duty in
2.2 ii above, would assist in the process of establishing community
confidence in this area.
5.2 We are especially concerned, therefore,
that the Home Office has not been collecting data, at the very
least by race, and ideally, by race and faith of the use of counter
terrorism legislation. In our view the Government's explanation
for failing to do as stated by Home Secretary in a response to
a parliamentary question (House of Commons Hansard Written Answers
for 18 November 2003), being that this data could only be collated
and verified at "disproportionate cost", cannot be justified
when assessed against consequences that the failure to put these
measures in place have had on race and community relations as
set out in 4 above[2]
5.3 We therefore urge that this cost should
be balanced and justified against the damage to community relations
resulting from the belief that policies of conscious or unconscious
religious profiling of Muslims and other ethnic minorities are
standard practice amongst police officers, especially those involved
in counter-terrorism operations.
5.4 A recent report from the Metropolitan
Police Authority (MPA) ("Report of the MPA Scrutiny on MPS
Stop and Search Practice", May 2004), is useful in evidencing
the extent to which the use of stop and search powers is having
a negative impact on community relations.
5.5 The report cites evidence from the Home
Office (2004) stating that black and Asian people are stopped
eights and three times more often than white people (page 5).
The Scrutiny Panel also reported that current stop and search
practice has created deeper racial tensions and has severed valuable
sources of community information and criminal intelligence (page
10).
5.6 Whilst we recognise that stop and search
is a necessary tool for combating crime, the current levels of
disproportionality between racial groups cannot be justified.
Terrorism Act 2000: Stop and searches carried out
under section 44 (Home Office).
6. RECOMMENDATIONS
Comprehensive monitoring
6.1 In order to effectively monitor any
adverse impact, the CRE recommends that arrangements are put in
place for a comprehensive system of collecting data on suspects
under the TA 2000 and the ATCS Act. In order to establish the
real impact on Muslim and other communities it is essential that
data be collated by race and faith, for all of the following activities:
— Instances of stop and search (including
a breakdown of stop and search carried out under the Police and
Criminal Evidence Act 1984 and Section 44 (I) and (II) of the
Terrorism Act 2000);
— Convictions leading from all arrests
connected with anti-terrorism legislation;
— Detentions and certifications; and
— Release without charge.
6.2 We believe that the urgency of the need
to collect data on faith cannot be underestimated, if the Home
Office and relevant criminal justice agencies are to begin to
assure Muslim and other affected communities that they are not
being targeting on grounds of race or religion. Such data must
be made available to the public, on a regular basis.
6.3 Whilst a number of community sources
(eg Forum Against Racism and Islamophobia, Muslim News, Muslim
Safety Forum) are currently involved in the collection of case
information in the areas detailed in para 6.1 above, this information
cannot be validated or used to identify trends over time. In our
recent response to the JCHR we suggested alternative means by
which this may be effectively achieved. Options included:
— Resourcing a consortium of community-based
agencies to regularly collate information on stop and search,
anti-terrorism led investigations and police practice which can
inform Government, relevant agencies and other stakeholders. (We
consider community-based agencies are best placed to gather this
information as they often have the closest links to the community
and are more likely to be trusted by community members than official
data gathering agencies).
— Funding a consortium of legal representatives
to have an information sharing arrangement for cases concerning
anti-terrorism related charges.
Community Consultation
6.4 In addition to comprehensive monitoring,
the CRE believes that Muslim and other affected communities need
to be consulted and involved in relevant fora concerning anti-terrorism
investigations.
6.5 An excellent example of such an approach
is the forthcoming meeting between the Crown Prosecution Service
and representatives of the Muslim Community, due to take place
at the end of this month. However, the CRE recommends that more
needs to be done—there are not enough opportunities for
discussion on such matters between government agencies and the
Muslim communities. There may be a significant role for community-based
agencies to play in facilitating such dialogue.
6.6 We consider police authorities need
to balance the requirements of effective policing and at the same
time ensure that unnecessary race or faith bias in stop and search
is tackled. We consider this is crucial as community confidence
in processes and powers to fight terrorism are only achievable
through open and transparent mechanisms and a belief within communities
that adequate safeguards are in place to ensure the fair treatment
of suspects.
6.7 We would stress the need for effective
consultation by police forces with ethnic minority and faith communities
on the use of their powers under counter terrorism legislation,
and suggest that the use of community intermediaries such as specialist
IAGs as used by the Metropolitan Police as a means by which these
may be achieved.
6.8 We also consider It is essential to
consider the impact of the use of police powers under terrorism
legislation on matters of citizenship and integration, as there
is a danger that some individuals of Muslim faith may feel less
a part of British society as a result of being perceived as a
security threat. We are concerned about the impact that this is
having on race relations in Britain.
6.9 We believe that individuals who do not
feel that they belong to society find it difficult to participate
or contribute to their full potential. Indeed some recent accounts
(anecdotally and from the media), of increasing radicalisation
and affiliation to groups representing extremist ideologies amongst
some cohorts of Muslims, are a concern for us all.
Training
6.10 We consider that effective training
of police officer to ensure that in using the provisions of terrorism
legislation they comply with the duties imposed under section
71(1) of the RR (A) A. We would therefore ask what arrangements
are in place to train police officers including special branch
officers for each police authority in England and Wales, so as
to ensure that they do not use their powers under terrorism legislation
in a discriminatory manner when using their powers under the anti-terrorism
legislation.
Responsible Police Media relations and Reporting
6.11 Media reports regarding arrests of
Muslim suspects arrested under counter terror legislation are
not always the product of astute detection on part of journalists
concerned in our view, but just as likely to be achieved by careless
and irresponsible leaks on the part of police authorities without
any thought to the consequences for community relations.
6.12 Conversely opportunities exist for
police forces to intervene where they may believe that an irresponsible
report may result in damage in community relations at local or
national level.
Authorisations
6.13 We recognise that where the police
rely on intelligence to inform stop and searches under terrorism
legislation that such information may need to be protected from
disclosure to protect national security. However we also consider
a balance can be achieve between the various Government policy
objectives of maintaining security, increasing community trust
and confidence, and accountability.
6.14 In order that communities may be assured
that intelligence led stops and searches under terrorism legislation
are made free from bias on the grounds of race or faith, therefore,
we would ask what safeguards exist to ensure Assistant Chief Constables
use their powers properly. In particular we would ask if there
is any scope for the CPS to routinely intervene at this stage
to ensure that authorisations to stop and search under counter
terrorism legislation are properly made.
6.15 To that end we would ask the Home Office
to review the extent to which authorisation to stop and search
using the provisions of terrorism legislation have been effective
in achieving desires policy objectives so far, by conducting a
sample of decisions made in both urban and rural areas, which
include different compositions of ethnic and faith groups over
the last 12 months.
June 2004
1 Public data available: Terrorism Act 2000: Arrest
and Charge Statistics (Home Office); ATSC Act: Detainees under
part 4 (Home Office); and Back
2
David Blunkett: "The data collected on stops and searches
made under section 44 of the Terrorism Act 2000 is not automatically
cross-referenced with data on the ethnicity and gender of those
stopped. This information could be collated and verified only
at disproportionate cost", 18 November 2003. Back
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