1. Letter and memorandum from Fiona Mactaggart
MP,
Parliamentary Under Secretary of State,
Home Office
Further to the letter of 6 January from the
Commons Clerk to the Joint Committee for Human Rights, I am pleased
to enclose a memorandum from the Home Office on the Concluding
Observations of the UN Committee on the Elimination of Racial
Discrimination (CERD) on the UK's 16th and 17th reports, published
in August 2003.
The Government takes very seriously its reporting
obligations under all the international human rights instruments,
including the international Convention for the Elimination of
all forms of Racial Discrimination (ICERD). I welcome this opportunity
for further scrutiny of the UK's implementation of the Convention.
The United Kingdom attaches great importance to the elimination
of racial discrimination, as evidenced by our strong and comprehensive
legislation in this area and our reinforcement of this legislation
with polices and strategies, including the Community Cohesion
and Race Equality Strategy which we will launch shortly. Coming
as it does at midpoint in the CERD reporting cycle, the Committee's
investigation is timely. It will enable us to take the Committee's
conclusion into account as we prepare our next report to CERD,
due in April 2006.
This memorandum is intended to give an overview
of our approach to the Convention and to indicate to the Committee
our thinking on CERD's concluding observations. I will be happy
to answer further specific questions or provide further relevant
material as the Committee sees fit.
13 January 2005
Memorandum from the Home Office to the
Joint Committee on Human Rights on the International Convention
on the Elimination of all Forms of Racial Discrimination
1. The UK was one of the first countries
to ratify the ICERD and we remain committed to its full and effective
implementation in this country. We believe that the most effective
way to implement our obligations under international conventions
like ICERD, as well as commitments entered into at international
conferences, is to ensure that they are given practical application
in a way that suits the particular circumstances of the UK. Homegrown
implementation of this sort, driven by the needs and priorities
of individuals and communities in this country, is the best way
to ensure that these conventions and conferences make a practical
difference to people in the UK.
2. This memorandum advises the Committee
of our views on CERD's Concluding Observations on the UK published
in August 2003. We were pleased that CERD paid tribute to the
detailed report we submitted and expressed their appreciation
for the constructive responses of our delegation during the oral
hearing. We are also pleased that they welcomed the fact that
non-governmental organisations had been consulted in the preparation
of the report.
3. We also welcome CERD's acknowledgement
of the importance of recent legislation to strengthen the law
against racial discrimination and racist crime and to establish
independent police complaints procedures. We are also pleased
that CERD welcomed structural changes, such as the establishment
of the Community Cohesion Unit and the National Asylum Support
Service.
4. We have taken note of CERD's concerns
and recommendations and agree with many of them. We share CERD's
view that the continuing inequalities and differences in outcomes
for different ethnic groups in fields such as education and employment
are unacceptable. Tackling these problems is a priority for the
Government and the Race Relations (Amendment) Act was an important
step forward in placing a positive obligation on public bodies
to promote race equality and good race relations. We plan to extend
the law further to prohibit religious discrimination in the provision
of goods, facilities and services, thereby meeting another of
CERD's recommendations. However, we recognise that legislation
on its own is not enough. We will underpin these legislative measures
with a comprehensive Community Cohesion and Race Equality Strategy
which will be launched on 19 January. This builds on the ideas
set out in our consultation paper Strength in Diversity and will
mark a renewed national programme of action across Government
to build community cohesion and reduce racial inequalities.
5. We regret the fact that the Government
and CERD have longstanding disagreements on two points. First,
CERD want the UK to incorporate the Convention into domestic law.
We understand our obligation under the Convention to be to take
all necessary measures, including legislation where and when appropriate,
to ensure that the domestic law and practice of the United Kingdom
fully respect and implement all the provisions of the Convention.
We are confident that we have done and continue to do this and
that the provisions of the Convention are in fact fully respected
and, where necessary, conscientiously enforced in the United Kingdom
through our comprehensive race discrimination legislation, and
given further practical effect through policies and strategies
to address racial inequality and racial discrimination.
6. Secondly, we have a longstanding difference
of opinion with the Committee on the interpretation of Article
4 of the Convention. The UK set out its position in an interpretative
statement and that remains our position. Even so, this is an area
in which the Government has been ready to extend the provision
of the law where this has been found necessary. For example, we
increased the penalty for incitement to racial hatred in 2001
and extended the law to prohibit incitement to racial hatred against
groups abroad. And the Committee will be aware that we have laid
proposals before Parliament to create an offence of incitement
to hatred on the grounds of religion or belief or the lack of
religion or belief (see paragraph 13 below) .
7. We have noted CERD's request that we
consider further how the Press Complaints Commission can be strengthened.
It seems that they did not fully understand that the PCC is an
independent industry-led body and that is not a position we can
or will change. However, we will be able to point to the work
of Media Practitioner Groups established by the Home Office Community
Cohesion Unit which brings together media and community representatives
to promote best practice and accurate and balanced reporting on
minority communities.
8. While the Government cannot accept the
suggestion that asylum procedures are in any way inequitable or
biased, we nonetheless fully accept the need for programmes, particularly
at the local level, to ensure that communities understand the
reasons why people become refugees and their special needs. We
are currently taking forward a programme of work to pursue this
aim.
9. We are of course aware that one of the
consequences of implementing the European Race Directive by secondary
legislation was that it could not go beyond the scope of the Directive
and cover nationality and colour. We have undertaken to rectify
this when a suitable opportunity arises.
10. We note CERD's recommendations that
we re-formulate or repeal section 19D of the Race Relations Act
(as amended), which provides an exemption from the stringent provisions
of that Act to allow immigration officers to discriminate on the
grounds of nationality or ethnic origin where that is authorised
by the Secretary of State. We have no plans to do so. It should
be noted that this measure was only required because of the stringent
nature of the 2000 amendment to the Race Relations Act. It is
not a blank cheque to discriminate but it does allow immigration
control to be carried out in an intelligence led way. The powers
must, by law, be exercised in a reasonable and proportionate way
and are subject to oversight by an independent monitor who submits
an annual report on their exercise to Parliament.
11. We welcome the fact that that CERD has
acknowledged our national security concerns and agree that these
should be balanced with the protection of human rights. The immigration
power under Part 4 of the Anti-terrorism, Crime and Security Act
allows for the detention of certain foreign nationals whom the
Home Secretary has certified on the basis that he reasonably suspects
the person is a terrorist and believes that his presence in the
UK is a threat to national security, but where removal is not
currently possible. The Committee will know that this has recently
been the subject of a ruling by the House of Lords in the matter
of the UK's derogation from parts of Article 5 ECHR. The Home
Secretary has stated that he now needs to consider the judgment
carefully, not least because the Court of Appeal had unanimously
endorsed his view that these provisions were compatible with the
UK's obligations under the ECHR. He is doing so as a matter of
urgency but it will ultimately be for Parliament to decide whether
and how we should amend the law. The Part 4 provisions will remain
in force until Parliament agrees the future of the law. Accordingly,
the Home Secretary will not be revoking the certificates or releasing
the detainees, whom he has reason to believe, are a significant
threat to national security, a judgement upheld by SIAC.
12. We have noted CERD's comments on deaths
in custody and, in our next report, we will provide them with
the information they request on the workings of the new Independent
Police Complaints Commission, including specific information on
complaints, deaths in custody, and measures taken. We will also
report in more detail on stop and search as requested.
13. We agree with CERD's recommendation
that laws on racial discrimination should be extended to include
religious discrimination. Parliament has already approved regulations
in respect of religious discrimination in employment and vocational
training and we plan to introduce legislation to outlaw religious
discrimination in the provision of goods, facilities, services
and premises.
14. We share CERD's concerns about the increase
in hate crime motivated by religion or belief, which is why we
extended the Crime and Disorder Act in 2001 to create specific
religiously aggravated offences. We agree with CERD that the crime
of incitement to racial hatred should be extended to include incitement
to hatred on the grounds of religion or belief (or lack of religion
of belief). We have included such a measure in the Serious and
Organised Crime Bill and I hope that the Committee will lend its
support to this measure.
15. The Committee will know that since CERD
made its 2003 Concluding Observations report, and following an
extensive public consultation, we have decided to establish a
Commission for Equality and Human Rights. We intend to introduce
legislation to establish the Commission as soon as parliamentary
time allows.
16. We have carefully noted CERD's concerns
at the discrimination and inequality outcomes experienced by Gypsies,
Travellers and other ethnic minorities. We share their concern.
One of the aims of our Community Cohesion and Race Equality Strategy
is to address just these problems. The Office for the Deputy Prime
Minister is currently carrying out a comprehensive review of policy
in relation to Gypsies and Travellers, looking at how to improve
accommodation available to these communities and increase social
inclusion. The Social Exclusion Unit, based in the same department,
has embarked on a study into better service delivery for frequent
travellers, which will include an examination of particular issues
faced by Gypsies and Travellers. We. are also awaiting with interest
the outcome of the Commission for Race Equality's scrutiny exercise
of local authority practice on Gypsies and Travellers.
17. We have noted CERD's comments about
caste based discrimination, but also that they have made no suggestion
that this is a problem in the UK. We have seen no evidence that
there is a particular problem in the UK, but would happy to consider
any that is put to us.
18. We have noted CERD's regret that no
information on the implementation of the Convention in the British
Indian Ocean Territory (BIOT) was provided in the State Party's
report. The FCO, who lead on this subject, point out that the
reason the report (like all previous reports) did not cover the
implementation of the Convention in BIOT is that there is no settled
civil population in the Territory and the Convention therefore
has no practical application there. That has been the position
since 1973 and remains the position at the present time.
19. We remain committed to including civil
society in the fight against discrimination and in our preparation
of reports to CERD. Indeed they are essential partners in that
fight. We routinely consult NGOs on initiatives and legislation
relating to race equality. Recent examples include consultation
on the Race and Employment Directives, the proposed Commission
for Equality and Human Rights and the development of the Community
Cohesion and Race Equality Strategy.
20. Since CERD made its concluding observations,
the Committee will know that the Government has completed its
review of our international human rights obligations including
the question of whether we should allow the right of individual
petition under ICERD and three other UN instruments where this
is a possibility. You will know from those conclusions that we
are not convinced of the value of individual petition to the individual
citizen. Nevertheless, we concluded that it would be reasonable
to agree to one right of individual petition, so that we can consider
the issue on a more empirical basis. We are therefore agreeing
to individual petition under the Convention on the Elimination
of all forms of Discrimination Against Women (CEDAW) and will
review the outcome after two years.
21. As requested by CERD, we will take account
of relevant parts of the Durban Declaration and Programme of Action
in preparing our next report to CERD. These documents largely
reflect current Government policy and practice and this will be
reinforced by our Community Cohesion and Race Equality Strategy
and our planned legislation.
22. Our reports are available on our website
as are links to CERD's own website which contains their concluding
observations. We will circulate the concluding observations to
NGOs when we seek their comments on our next report.
23. We are next due to report to CERD in
April 2006 and the Committee may find it helpful to learn our
plans for producing that report. Unlike the last report this will
be a full report that addresses each of the operative articles
of ICERD, as well as the specific recommendations contained in
the 2003 Concluding Observations. The domestic report will be
drafted by my officials in the Race Equality Unit in consultation
with other government departments, the devolved administrations,
the statutory equality and human rights commissions and non-governmental
organisations. We will begin this process in spring 2005 by writing
round to the above bodies, enclosing copies of the Convention
and of the August 2003 Concluding Observations. This consultation
will include the NGO Forum set up by the Department of Constitutional
Affairs as part of their review of human rights instruments. In
the light of this consultation, we will produce a first draft,
which we will circulate to the interested bodies for further comment.
Once that consultation is complete a final version of our report
will be submitted to the UN in Geneva, along with the reports
on the overseas territories and crown dependencies prepared by
FCO and DCA.
Home Office
January 2005
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