Memorandum submitted by the Equality and
Human Rights Commission
INTRODUCTION
The Commission welcomes the opportunity to present
evidence to the Home Affairs Select Committee on the implications
of the introduction of full body scanning equipment at UK airports.
The Commission recognises the significant risk
posed by terrorist activities in particular in relation to air
transport, and the need for government to take urgent and effective
steps to protect the travelling public.
The Commission has previously raised its concerns
regarding implications for use of the equipment with the Home
Secretary, the Rt Hon Alan Johnson MP. In its letter of 15 January
2010, the Commission raised its concerns that use of the body
scanners might breach Article 8 privacy rights, that selection
for the scanning process might be discriminatory, and that there
is a need for safeguards to be introduced to ensure that the system
is operated in a lawful, fair and non discriminatory manner.
Subsequently, the Secretary of State for Transport,
the Rt Hon Andrew Adonis, introduced full body scanners at two
airports and has issued an interim Code of Practice. No consultation
has been carried out on this code; however the Government has
announced its intention to conduct a full consultation on the
issue, with a view to production of a final code later this year.
The Commission has subsequently sought leading
Counsels advice on the human rights and equalities implications
of the introduction of the full body scanners in this way. A copy
of the advice is attached to this submission at annex A.
In summary, Counsel has advised that the implementation
of body scanners under the current regime potentially breaches
Article 8 of the European Convention on Human Rights. In particular,
Counsel have advised that the provision cannot be argued to have
occurred in accordance with the law, as required under Article
8(2)2 of the convention.
Additionally, Counsel have advised that there
is a serious risk that implementation of the scanning will occur
in a way that will discriminate directly or indirectly on the
grounds of race or sex, (in particular) and that their use will
have an adverse effect on community relations.
The Commission shares these concerns and have
developed these in more detail below.
Article 8 privacy concerns
The Commission considers that the use of body
scanners engages Article 8 of the Convention.[1]
In particular, the Commission notes that body scanners show the
whole of a person's physical identity, including gender, the precise
details of a person's body, including physical features that might
otherwise not be apparent including features, which the Government's
Questions and Answer guidance refers to as "anomalies".
The Commission is concerned that revealing of
such details that are otherwise private to a person, and about
which they may not even have chosen to make their closest friends
and family aware, has the potential to significantly impact on
the privacy of individuals. In particular, the Commission is concerned
as to the potential impact on specific groups including transgender
people, disabled people, children, women and people of certain
religious beliefs.
The Commission notes that the interim Code provides
that the security officer conducting analysis of the image must
not be able to see the person whose image they are viewing, that
the person being viewed may request a person of the same sex to
read the screen, and that the screen image is not retained.
The Commission accepts that the current circumstances
of terrorist threats to air transport provide a legitimate aim
under Article 8 (2) for invasion of the privacy rights.
Further, the Commission at this time takes a
provisional view that it is likely that use of the scanners would
be a proportionate response to such a threat, albeit there are
concerns regarding the effectiveness of scanners. The Commission
notes that there is currently lack of evidence as to the effectiveness
of scanners, or the impact of their use. As such, the Commission
considers that these issues need to be monitored, in order to
fully asses whether the implementation of body scanners is proportionate,
and whether the measures outlined by the Government are sufficient
to meet the privacy concerns outlined above.
However, the Commission is of the opinion that
the use of body scanners, as currently implemented, would not
meet the test of "in accordance with law" as required
under Article 8(2), and is therefore unlawful.
The statutory basis of the provisions is unclear.
The Government has made no reference to the statutory basis for
the scheme, and in particular no reference is made in the interim
Code. Without clear reference to the statutory basis it is difficult
to ascertain the basis in law for body scanners and therefore
whether such provisions are in accordance with the law.
Further, the Commission is concerned as to how
selection for body scanning will occur, and the very real risk
that this will be arbitrary and either directly or indirectly
discriminatory in practice.
The interim Code does not indicate the basis
for selection of people to be scanned.
The Home Secretary referred to random selection
in his statement to the House on 5 January 2010. However, this
was not repeated in the later statement by the Secretary of State
for Transport, and is not referred to in the guidance. The guidance
explicitly rules out personal characteristic for selection including
age, gender race or ethnic origin (but notably religion is not
specifically excluded). The guidance does not say whether selection
will be based on behaviour. The guidance refers to protocols which
include selection criteria, and states that these are not published
for reasons of national security.
The Commission understands the national security
reasons given by the Government for not making the selection criteria
public. However, the Commission is concerned that as the guidance
stands there is too much scope for arbitrariness and wrongful
discrimination in the process of selection for scanning. As such,
the Commission does not consider that the Code of Practice provides
a sufficient quality of law to be compliant with Article 8 of
the European Convention on Human Rights.
Discrimination concerns.
The Commission is concerned that it is very
likely in practice that use of the scanner may be discriminatory
on protected grounds, in particular race, religion, nationality
or ethnic origin. Further, the Commission is concerned that some
criteria for selection, for example, religious dress, destination,
nationality or national origin, would also have a discriminatory
effect. Finally, the Commission is concerned that any perceived
discrimination against particular groups may have an adverse effect
on good relations, in particular between people of different racial
or religious groups
The Commission is concerned that there is not
a proper monitoring mechanism to ensure that this is non-discriminatory
in practice.
We have yet to see sufficient evidence that
this decision complies with the general or specific equality duties
under the Race Relations Act 1976, the Sex Discrimination Act
1975 or the Disability Discrimination Act 1995. These duties require
a Secretary of State, in the performance of his or her functions,
to give "due regard" to both the elimination of unlawful
discrimination and the promotion of equality of opportunity and
good relations between members of different racial groups.
Without careful and formal consideration of
the equality implications of this decision, for example through
a full equality impact assessment, there is a serious risk that
a measure introduced to protect the travelling public will have
unintended discriminatory consequences, and damage community relations.
If these risks had been considered, and steps taken to guard against
them, then the Commission believes that an Interim Code of the
sort we now have would not have been introduced.
The Commission would urge the Government to
demonstrate how it will ensure that measures put in place to protect
the travelling public are in compliance with equalities and human
rights law.
1 S and Marper vs the United Kingdom, (apps
30562/04 and 30566/04, 4 December 2008. Back
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