Written evidence submitted by the Equality and Human Rights Commission (MAC0035)

 

Introduction

  1. The Equality and Human Rights Commission (the Commission) has been given powers by Parliament to advise Government on the equality and human rights implications of laws and proposed laws, and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.
  2. We responded to the Committee’s inquiry on this subject in 2019, providing two written submissions[1] and oral evidence. This submission focuses on developments since those submissions, in particular the Covid-19 pandemic and the equality and human rights implications of the regulatory and enforcement response.
  3. The Black Lives Matter movement has focused the world’s attention on racial bias in law enforcement. It is vital that Governments, Parliaments and others seize this opportunity to take concrete steps to tackle both the immediate and entrenched inequalities that some ethnic minorities face.
  4. We are using the full range of our powers to deliver a coherent programme of work to highlight and address structural racial inequality, which Covid-19 has further exposed and exacerbated. We are keen to work closely with the Committee and others in this work.
  5. We support the primary role of Government in the current context: to keep people safe and protect the future of our nation. The actions taken by Government, the police and others in response to this crisis will be more effective and will better serve and protect our diverse communities if they fully consider and comply with equality and human rights laws and standards.

Summary of recommendations

Covid-19 enforcement

(1)               The Home Office should work with police authorities to ensure that officers are properly informed about the limits of powers and restrictions introduced in response to the pandemic (including the obligation to use or enforce them in a proportionate, non-discriminatory manner), and that police authorities consult with organisations representing protected characteristics, including ethnic minority groups, to avoid a disproportionate impact on particular groups.

(2)               The Home Office should establish an independent mechanism to oversee police forces’ use of the emergency powers and monitor compliance with equality and human rights obligations, similar to that established by Police Scotland.

(3)               The National Police Chiefs’ Council and police forces should take further steps to gather and publish the necessary data to understand race disparities in the enforcement of restrictions during the pandemic, and should use the data to avoid disproportionate impacts on certain groups (including those impacts where protected characteristics intersect with socio-economic disadvantage), in line with their obligations under the public sector equality duty.

Stop and search

(4)     The Government should hold police forces to account for their use of stop and search and make sure these powers are used in a lawful, non-discriminatory manner and only on the basis of reasonable suspicion. This should include ensuring that forces comply with the best use of stop and search scheme, effectively record and monitor ethnicity data, and put in place appropriate procedural safeguards to protect the rights to privacy, liberty and security.

(5)     The Home Office should carefully analyse the impact that removing section 60 stop and search safeguards has had on groups sharing relevant protected characteristics and publish its findings. The pilot should not be extended unless the Home Office can demonstrate the changes are justified and proportionate, and measures to prevent any discriminatory impact are in place, in line with the requirements of the public sector equality duty.

Use of force

(6)     The Government with the National Police Chiefs’ Council should take urgent steps to understand and address disproportionate use of force on people from Black ethnic groups.

(7)     The Government with the National Police Chiefs’ Council should continue to improve the quality and consistency of use of force data, including data on protected characteristics, to ensure transparency, promote best practice and support efforts to address racial disproportionality.

(8)     The Government should ensure there are sufficient safeguards, training and oversight in place for the use of tasers, including specific measures to prevent disproportionate use on people from Black and other ethnic minority groups.

(9)     The Government should prohibit the use of tasers on children, implementing the recommendations of the UN Committee on the Rights of the Child.

(10)          The Government, National Police Chiefs’ Council, College of Policing and local forces should consider using the Commission’s human rights framework on restraint in the development and implementation of use of force policies, practices and training.

Custody-related deaths

(11)          The Government should prioritise implementing the recommendations of the 2017 Angiolini review of deaths and serious incidents in police custody, commit to a timetable for full implementation and report on its progress.

(12)          The Independent Office for Police Conduct should continue to improve the quality of investigations into deaths during or following police contact to ensure there is adequate scrutiny and accountability and that families are fully involved, in line with the recommendations of our inquiry into deaths in detention and the State’s positive obligations to protect life. Police forces should ensure that recommendations from investigations are followed up, lessons are learned and improvements are made to prevent similar incidents in future.

Embedding equality in Government and policing

(13)          Government should implement an effective and comprehensive cross-Government strategy to tackle race inequalities. A single government department should set the strategy and lead action across Government to drive improvements to race equality in Britain, coordinating effectively with the Scottish and Welsh Governments as appropriate. This department should be responsible for developing a mechanism for monitoring and reporting on the progress that has been made against the strategy and holding other departments to account.

(14)          The Home Secretary should set national equality objectives for policing in England and Wales, and police forces should set objectives to address inequalities in their areas.

(15)          Her Majesty’s Inspectorate of Constabularies and Fire & Rescue Services should monitor police forces’ progress against their equality objectives as part of their regular inspections.

Race disproportionality in Covid-19 enforcement

  1. Since the outbreak of the pandemic, police have been given extraordinary powers to enforce restrictions designed to protect public health.[2] We recognise that these restrictions have been key to slowing the spread of Covid-19. However, as our written evidence to the Women and Equalities Committee in May highlighted, enforcement has had a disproportionate impact on some ethnic minorities.[3]
  2. In addition to the data from the Metropolitan Police Service cited in the Inquiry call for evidence,[4] the National Police Chiefs’ Council (NPCC) has published data showing that the overall number of Fixed Penalty Notices recorded by police forces in England and Wales under the emergency health regulations has fallen as the Government has eased the lockdown.[5] However, we are alarmed by figures demonstrating disproportionate enforcement of restrictions against some ethnic minorities.[6] We are concerned that the disproportionality may be greater than the numbers show, given that a significant proportion (23 per cent) of fines have been recorded with no ethnicity attached.[7] Police monitoring organisations report that it is more often ethnic minorities who do not disclose their ethnicity to police.[8]
  3. As the country slowly transitions out of lockdown, it is essential that the disproportionate impact of restrictions on some ethnic minorities remains the subject of scrutiny. This is relevant both retrospectively and for any period in which the country or any part of it operates under the Health Protection (Coronavirus Restrictions) Regulations 2020,[9] and faces the potential for further increases in infections. Scrutiny should focus not only on areas with an ethnically diverse population, but also on areas where ethnic minority populations are low and disproportionality nevertheless exists. It should take into account the impact of socio-economic disadvantage, which is linked to ethnicity,[10] and may make compliance with restrictions more difficult. For example, some people may be less able to afford a break in employment in order to self-isolate, and those living in more crowded conditions or areas with higher population density may be less able to practise social distancing.
  4. The Home Office should work with police authorities to ensure that officers are properly informed about the limits of powers and restrictions introduced in response to the pandemic (including the obligation to use or enforce them in a proportionate, non-discriminatory manner), and that police authorities consult with organisations representing protected characteristics, including ethnic minority groups, to avoid a disproportionate impact on particular groups.[11] We also recommended that the Home Office establish an independent mechanism to oversee police forces’ use of the emergency powers and monitor compliance with equality and human rights obligations, similar to that established by Police Scotland.[12]
  5. In addition to these recommendations, the NPCC and police forces should take further steps to gather and publish the necessary data to understand race disparities in the enforcement of restrictions during the pandemic, and should use the data to avoid disproportionate impacts on certain groups (including those impacts where protected characteristics intersect with socio-economic disadvantage), in line with their obligations under the public sector equality duty. We support calls by the Home Affairs Select Committee Chair, Yvette Cooper, for a breakdown of ethnicity data on fines by police force.[13]

Stop and search

  1. Alongside the enforcement of coronavirus restrictions, there have been concerns about a further rise in stop and search during this period. The Metropolitan Police reported an increase in stop and search of 84 per cent between March and May.[14] This is in the context of a 36 per cent rise in stop and search in the last year across England and Wales.[15] People from every ethnic minority group are stopped at higher rates than those from White groups, particularly Black people, who are stopped at almost 10 times the rate.[16] The UN Committee on the Elimination of Racial Discrimination, the Committee on the Rights of the Child and the Human Rights Committee have all expressed concern about disproportionality in stop and search.[17]
  2. We have significant concerns about the pilot announced in August 2019 which removes important safeguards on section 60 ‘suspicionless’ stops.[18] Black people are almost 40 times more likely than White people to be subject to these powers, and people from Asian, Mixed, and Chinese or ‘other’ ethnic groups are also disproportionately stopped.[19] The Home Office equality impact assessment acknowledges the removal of safeguards risks “magnifying any residual levels of discrimination, and that people from ethnic minorities will be more likely to be searched under this power despite not committing any offences, and without being provided with significant person-specific justification for searches taking place.”[20]
  3. As we previously recommended to the Committee, the Government should hold police forces to account for their use of stop and search and make sure these powers are used in a lawful, non-discriminatory manner and only on the basis of reasonable suspicion. This should include ensuring that forces comply with the best use of stop and search scheme,[21] effectively record and monitor ethnicity data, and put in place appropriate procedural safeguards to protect the rights to privacy, liberty and security.[22] Further, the Home Office should carefully analyse the impact that removing section 60 stop and search safeguards has had on groups sharing relevant protected characteristics and publish its findings. The pilot should not be extended unless the Home Office can demonstrate the changes are justified and proportionate, and measures to prevent any discriminatory impact are in place, in line with the requirements of the public sector equality duty.

Use of force 

  1. Disparity in reported use of force has increased in the last year, with police now more than five and a half times more likely to use force against Black people than White people.[23] Black people represent 3.3 per cent of the population but experience a quarter of police firearm tactics and a fifth of all tactics in which ‘less lethal weapons’ are used.[24] The Government with the National Police Chiefs’ Council should take urgent steps to understand and address disproportionate use of force on people from Black ethnic groups.
  2. Reported incidents in which force was used by police increased by over a third between 2017-18 and 2018-19.[25] There is significant variation in recording levels between police forces and the Home Office acknowledges the statistics “do not give a full, national picture.[26] There remain issues with data quality and collection, including the lack of any central recording system.[27] The Government with the National Police Chiefs’ Council should continue to improve the quality and consistency of use of force data, including data on protected characteristics, to ensure transparency, promote best practice and support efforts to address racial disproportionality.
  3. The UN Committee Against Torture has recently expressed concern about the reported rise in taser use and called on the Government to investigate disproportionate use on people from ethnic minorities.[28] In March this year the Home Office announced funding to deploy tasers to 8,000 more police officers,[29] and while we recognise the often difficult situations in which police officers work, we are concerned this could result in further disproportionality. The Independent Office for Police Conduct has recommended more robust oversight for tasers and a “visible demonstration that police forces are learning from their experiences”.[30] The Government should ensure there are sufficient safeguards, training and oversight in place for the use of tasers, including specific measures to prevent disproportionate use on people from Black and other ethnic minority groups. We urge the Home Office to take this into account in decisions about further rollout, and in the development of the forthcoming Police Powers and Protections Bill.[31]
  4. We remain seriously concerned about the use of tasers on children, which the UN Committee on the Rights of the Child has called on the Government to prohibit.[32] Home Office statistics show tasers were used 1,700 times on children aged under 18 last year (an increase of 78 per cent compared with the previous year), including 29 times on children aged 10 or younger.[33] Those from ethnic minorities may be particularly at risk; for example, in 2017 more than half of the Metropolitan Police’s use of tasers on children involved Black children.[34] The Government should prohibit the use of tasers on children, implementing the recommendations of the UN Committee on the Rights of the Child.
  5. We have developed a human rights framework on restraint setting out the key principles that must be complied with in any act of restraint, including use of force.[35] The framework provides a rights-based approach that can be used to develop more comprehensive sector-specific guidance and training.[36] We encourage the Government, National Police Chiefs’ Council, College of Policing and local forces to use the Commission’s human rights framework on restraint in the development and implementation of use of force policies, practices and training.[37]

Custody-related deaths

(16)          It is difficult to establish clear patterns from the available data on deaths in and following police custody,[38] although we are aware of concerns that restraint features more often in the deaths of Black individuals.[39] The Government must prioritise implementing the recommendations of the 2017 Angiolini review of deaths and serious incidents in police custody, commit to a timetable for full implementation and report on its progress.[40] This includes recommendations on tackling harmful restraint and ensuring that independent investigators consider whether discrimination is a factor in any restraint-related death. Our inquiry into deaths in detention made a number of recommendations to ensure investigations are effective and reflect the Government’s obligations to protect life, which include involving bereaved families fully in the process.[41] The Independent Office for Police Conduct should continue to improve the quality of investigations into deaths during or following police contact to ensure there is adequate scrutiny and accountability, and that families are fully involved, in line with the recommendations of our inquiry on deaths in detention and the State’s positive obligations to protect life. Police forces should ensure that recommendations from investigations are followed up, lessons are learned and improvements are made to prevent similar incidents in future.

Embedding equality in Government and policing

  1. We note the NPCC’s intention to draw up a plan of action to tackle racism and discrimination in the police force,[42] as well as the Government’s announcement of a Commission on Race and Ethnic Disparities. A number of recent reviews[43] have provided ample evidence on race inequalities in policing and justice, and the action needed to address them. Our 2017 Roadmap to Race Equality[44] identified the criminal justice system as a priority area where Government must improve trust and ensure fairness, in light of the overrepresentation of ethnic minorities both as victims of crime and defendants.
  2. The issues raised in this submission are not new but have been exacerbated in some areas during the pandemic. They reinforce the urgent need for an effective and comprehensive cross-Government strategy to tackle race inequalities. We recommend that a single government department should set the strategy and lead action across Government to drive improvements to race equality in Britain, coordinating effectively with the Scottish and Welsh Governments as appropriate. This department should be responsible for developing a mechanism for monitoring and reporting on the progress that has been made against the strategy and holding other departments to account.
  3. In our previous submission to the Committee,[45] we highlighted the need for a stronger public sector equality duty which would better realise the vision that grew out of the Macpherson Report for specific and coordinated action to eradicate racism. Too often, public authorities focus on internally-facing objectives aimed at improving their own capacity to address inequality (for example, equality training for staff), which are a step removed from addressing the main equality challenges faced by people who are affected by the organisation’s primary functions. We have developed proposals with our stakeholders for amendments to the specific duties underpinning the public sector equality duty to require public bodies and Government departments to set, publish and pursue equality objectives that focus on the most significant inequalities for people affected by their functions. For policing we consider this means that the Home Secretary should set national equality objectives for policing in England and Wales, and that police forces should set objectives to address inequalities in their areas. Government and police forces do not need to wait for legal change and should do this now. We have further recommended that police forces’ progress against their equality objectives should be monitored by Her Majesty’s Inspectorate of Constabularies and Fire & Rescue Services as part of their regular inspections.

Further information

The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. Find out more about our work on the Equality and Human Rights Commission website.

 

July 2020

 

 


[1] Home Affairs Select Committee (2019), Written evidence submitted by the Equality and Human Rights Commission and Supplementary written evidence submitted by the EHRC (covering positive action).

[2] The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020; The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020; The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020;

[3] Women and Equalities Committee (2020), Written evidence submitted by the Equality and Human Rights Commission.

[4] Metropolitan Police Service (3 June 2020), Final FPN arrest analysis report.

[5] National Police Chiefs’ Council (25 June 2020), Fixed penalty notices issued under COVID-19 emergency health regulations by police forces in England and Wales.

[6] Ibid.

[7] Ibid.

[8] Liberty Investigates (17 June 2020), Police forces in England and Wales up to seven times more likely to fine BAME people in lockdown.

[9] There are different versions of these regulations in Scotland, Wales and England.

[10] Inequalities of outcome related to socio-economic disadvantage are closely linked to inequality experienced by people sharing protected characteristics. See, for example, EHRC (2018), Is Britain Fairer? which found in 2015/16 disabled people (36.8 per cent) were nearly three times as likely to experience severe material deprivation as non-disabled people (13.5 per cent). Pakistani (44.3 per cent), Bangladeshi (48.4 per cent) and Black African (44.9 per cent) adults were over twice as likely as White British people (17.2 per cent) to live in poverty

[11] We also made this recommendation in evidence to the Women and Equalities Committee. See: EHRC (2020), Written evidence submitted by the Equality and Human Rights Commission, Unequal impact: Coronavirus (Covid-19) and the impact on people with protected characteristics.

[12] In Scotland, Chief Constable Iain Livingstone has commissioned John Scott QC to lead a review of how Police Scotland officers and staff are applying emergency powers provided for by coronavirus legislation. Police Scotland (9 April 2020), Human rights lawyer to lead scrutiny of emergency police powers.

[13] Liberty Investigates (17 June 2020), Police forces in England and Wales up to seven times more likely to fine BAME people in lockdown.

[14] MPS, Stop and search dashboard [accessed: 1 July 2020]. There were 43,844 stop and searches reported in May, compared with 23,826 in March.

[15] Home Office (2019), Stop and search statistics data tables, police powers and procedures year ending 31 March 2019, table 1.

[16] Ibid, table 13.

[17] UN Committee on the Elimination of Racial Discrimination (2016), Concluding observations on the twenty-first to twenty-third periodic reports of the United Kingdom, paras 26-7; UN Committee on the Rights of the Child (2016), Concluding observations on the fifth periodic report of the United Kingdom, paras 38(a), (b) and (c); and UN Human Rights Committee (2015), Concluding observations on the seventh periodic report of the United Kingdom.

[18] Home Office (2019), Section 60 stop and search pilot extended.

[19] Home Office (2019), Equality impact assessment, Relaxation of section 60 conditions in the best use of stop and search scheme.

[20] Ibid, p10 and p11.

[21] Home Office and College of Policing (2014), Best use of stop and search scheme.

[22] Articles 5 and 8 of the Human Rights Act 1998.

[23] Home Office (2019), Police use of force statistics, England and Wales, April 2018 to March 2019, data tables, table 4. Of the total 427,725 incidents where a force tactic was used in 2018-19, 70 per cent involved White people and 16 per cent involved Black people. This compares to 73 per cent and 12 per cent respectively the previous year, see Home Office (2018), Police use of force statistics, England and Wales, April 2017 to March 2018, data tables, table 4. According to the latest census data (see Office for National Statistics (2018), Population of England and Wales) this suggests there were 62 incidents in which force was used per 10,000 people for White groups in 2018-19, compared with 361 per 10,000 people for Black groups. We note that use of force statistics are designated ‘experimental’ and subject to some data quality issues.

[24] Ibid. ‘Less lethal weapons’ refers to conducted energy devices, such as tasers, and attenuating energy projectiles.

[25] See Home Office (2018), Police use of force statistics, England and Wales, April 2017 to March 2018, data tables, table 4, and Home Office (2019), Police use of force statistics, England and Wales, April 2018 to March 2019, data tables, table 4. Force was used in 427,725 incidents in 2018-19 compared with 313,137 incidents the previous year.

[26] Home Office (2019), User guide to ‘Police use of force statistics, England and Wales’, p6.

[27] Ibid.

[28] UN Committee Against Torture (2019), Concluding observations, paras 28-29.

[29] Home Office (2020), Forcers awarded extra funding for Taser.

[30] Independent Office for Police Conduct, Deaths during or following police contact: statistics for England and Wales, time series tables 2004/05 to 2018/19 [accessed: 1 July 2020].

[31] See Queen’s Speech 2019 background briefing.

[32] UN Committee on the Rights of the Child (2016), Concluding observations on the fifth periodic report of the United Kingdom, para 40(a). For the purposes of the Convention, a child is anyone under 18.

[33] Home Office (2019), Police use of force statistics, England and Wales, April 2018 to March 2019, data tables, table 2. Age is as perceived by the officer. There are known errors in the data on children under 11.

[34] Children’s Rights Alliance for England (2019), State of children’s rights in England 2018.

[35] EHRC (2018), Human rights framework for restraint. The use of restraint is governed by Article 3 (prohibition on torture, inhuman and degrading treatment), Article 8 (respect for autonomy, physical and psychological integrity) and Article 14 (non-discrimination) of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998.

[36] Ibid.

[37] Note the framework is not intended as a tool to guide frontline practice without supplementary guidance.

[38] Independent Office for Police Conduct (2019), Deaths during or following police contact: statistics for England and Wales 2018/19 and (2018) Deaths during or following police contact: statistics for England and Wales 2017/18.

[39] See eg INQUEST (2020), BAME deaths in police custody and Rt Hon Dame Elish Angiolini DBE QC (2017), Report of the independent review of deaths and serious incidents in police custody.

[40] Rt Hon Dame Elish Angiolini DBE QC (2017), Report of the independent review of deaths and serious incidents in police custody. We are not aware of further progress updates since 2018, see DHSC, Home Office and Ministry of Justice (2018), Deaths in police custody: progress update.

[41] EHRC (2017), Preventing deaths in detention of adults with mental health conditions. Article 2 ECHR requires the state to initiate an effective public investigation by an independent body into any death where the state may have failed to protect life. Investigations must involve the next of kin.

[42] NPCC (18 June 2020), Police chiefs to take action on racial inequalities.

[43] The 2017 Lammy Review, the 2017 McGregor-Smith Review, and the 2020 Williams Review.

[44] EHRC (2017), Roadmap to Race Equality.

[45] Home Affairs Select Committee (2019) Written evidence submitted by the Equality and Human Rights Commission.