Written evidence submitted by the Equality and Human Rights Commission (CVB0037)

Introduction

1.      The Equality and Human Rights Commission has powers 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.[i]

2.      Since the Committee’s initial inquiry on the impact of coronavirus on people with protected characteristics,[ii] new evidence has emerged pointing to the disproportionate impacts that coronavirus is having on people from certain ethnic minorities, both in terms of infection and death rates.[iii]

3.      If the Government fails to fully understand and address these unequal impacts, such failure may amount to a breach of its domestic and international obligations to promote equality and eliminate discrimination on grounds of race, colour, or national or ethnic origin.[iv]

4.      We therefore welcome the opportunity to update the Committee on the disproportionate impact of coronavirus on ethnic minorities; to suggest measures needed to address these issues; and ensure compliance with equality and human rights law.

5.      The evidence we present in this submission should be read alongside our initial submission to the Committee, where we also covered other issues including the over-representation of ethnic minority workers in sectors with high potential for exposure to the virus and race equality concerns around the risk of COVID-19 outbreaks in prisons.[v]

6.      In summary, we present evidence here that the unequal health impacts of coronavirus are linked to long-standing and interlocking racial inequalities across many areas of life, from employment, education, housing and justice. These inequalities are not new, but rather have been highlighted and exacerbated by coronavirus. In order to address these unequal health impacts, the Government must identify and address the cumulative, and overlapping, effects of racial inequality in all these areas.[vi] We consider that the Government should do this in two ways.

7.      First, it should implement the targeted, issue-specific actions that we identify here and in our initial submission to the Committee in relation to healthcare, education, housing, employment and the justice system. The Government can complete many of these actions in the short-term. It should also implement the outstanding recommendations from other relevant reviews, such as Lammy,[vii] McGregor-Smith,[viii] and Williams’[ix] reviews.

8.      Second, and larger in scope, it should develop a comprehensive, coordinated and long-term race equality strategy for England designed to tackle more persistent and systemic racial inequalities.[x] This race equality strategy should have adequate resources, clear targets and timescales as well as clear governance and accountability structures. 

9.      A single UK Government department, preferably the Cabinet Office, should set the strategy, levering actions across Government and coordinating effectively with the devolved administrations in Scotland and Wales as appropriate. In line with our suggested reforms to the Public Sector Equality Duty (PSED), public authorities, such as the NHS, should target their PSED equality objectives (outcomes in Scotland) at key priorities for their sectors identified in this strategy.[xi]

10.  We, therefore, welcome the Government’s recent announcement that it is setting up a cross-Government commission on race and ethnic disparities.[xii] This commission provides an ideal vehicle to implement a new race equality strategy.  It cannot simply focus on generating further evidence of already well-understood disparities – it must be designed and empowered to drive urgent action and solutions.

11.  To support this work, we will strengthen and update our existing race equality strategy[xiii] in collaboration with race equality leaders, to identify solutions to tackle persistent barriers that exist across all our institutions. We urge the Government to adopt our ‘Roadmap to Race Equality’ as the blueprint for their strategy.

Inequalities in healthcare

12.  The recent review by Public Health England (PHE) confirmed findings from previous studies[xiv] that people from Black ethnic groups were most likely to be diagnosed with COVID-19. In addition, death rates from COVID-19 were highest among people of Black and Asian ethnic groups.[xv]

13.  Results show that these differences are partly a result of socio-economic disadvantage and other related circumstances, including existing structural inequalities in health, housing[xvi] and employment, as well as structural racism in wider society.[xvii] While there is not yet any complete explanation for the differences, they may be linked to a greater incidence of co-morbidities amongst certain ethnic groups influenced by, at least in part, the same structural disadvantages that a race equality strategy will need to address.[xviii]

14.  Inequalities in access to healthcare may have also contributed to the unequal impacts of coronavirus on ethnic minorities.[xix] Gypsy, Roma and Traveller groups and migrant groups face multiple barriers when seeking access to healthcare. These include discrimination, and difficulties when registering with GPs,[xx] because of their inability to provide proof of address or ID,[xxi] despite NHS guidance that states that such documents are not required.[xxii]

15.  There is evidence from migrant support organisations that some migrants are not seeking healthcare during the pandemic out of fear driven by the Government’s so-called ‘hostile/compliant environment’ policies and NHS Charging Regulations.[xxiii] Whilst treatment for coronavirus is exempt from the charging regime, there are concerns that migrants may not be aware of this exemption, and there are reports of people still being required to prove their entitlement for coronavirus treatment.[xxiv]

16.  People from certain ethnic minorities may face additional barriers to accessing healthcare, [xxv] including language barriers and digital exclusion.[xxvi] Generally, stakeholders consider that there remains a lack of culturally competent healthcare services, including in relation to the commissioning of health services[xxvii] and, in particular, early-stage mental health services.[xxviii] There are also concerns about that the commissioning of healthcare services does not do enough to address inequalities in access, experiences and outcomes between ethnic minority groups.[xxix]

17.  Finally, certain ethnic minority workers, including migrant workers, are at a higher risk of COVID-19 exposure as a result of their over-representation in key, but often low-paid, frontline roles within the health and social care sectors.[xxx] This is part of a wider problem of inequalities in employment, recruitment and progression in the labour market as a whole which we deal with in detail in other submissions.[xxxi]

18.  We recommend that, as part of a new race strategy, the Government should:

• Take action to close the health inequalities experienced by different ethnic minority groups by improving commission processes and accelerating the development of culturally competent services. This should include improving access to information; improved staff development; and trialling interventions to assess what works in improving the healthcare experience for ethnic minorities.

• Improve the quality of data collection and analysis on access, experience and outcomes from health service users by protected characteristics by mandating ethnicity data collection and recording as part of routine data collection systems. To support this, the NHS should ensure that its data dictionary reflects the 2021 census ethnicity categories, particularly the Gypsy, Roma and Traveller categories.

• Address remaining barriers that Gypsy, Roma and Traveller groups face in registering with GPs, including by ensuring consideration of access to services and appointments for digitally excluded populations in all Care Quality Commission (CQC) inspections.

• Introduce mandatory monitoring and reporting on the recruitment, retention and progression of ethnic minority groups for employers with over 250 staff by April 2022 and mandatory action planning for employers to address the factors contributing to ethnicity employment and pay gaps.

Inequalities in education

19.  Although data on the impact of Government measures to contain the virus is still limited in the field of education, initial evidence suggests that some of the measures may have exacerbated pre-existing racial inequalities.

20.  Since our initial submission to the Committee, new evidence has emerged substantiating our concerns that disadvantaged children have spent significantly less time in education than children from wealthier families since the shift to online learning.[xxxii] There is also evidence that children with Pakistani and Bangladeshi background have spent substantially less time on home learning than their peers.[xxxiii] The Traveller Movement have identified particular challenges facing Gypsy, Roma and Traveller pupils in accessing remote learning, including high rates of digital exclusion.[xxxiv] These factors could risk significantly widening the attainment gap.[xxxv]

21.  Some of the groups most affected are likely to be disadvantaged children who are home educated as a result of off-rolling, and who have therefore lacked support from a school in terms of remote learning provision.[xxxvi] These groups are likely to include a disproportionate number of ethnic minority children, in particular Gypsy, Roma and Traveller pupils.[xxxvii]

22.  There are also concerns about outcomes for excluded children in Alternative Provision (AP) settings, including Pupil Referral Units, where Gypsy, Roma and Traveller, and Black Caribbean children are over-represented.[xxxviii] In a recent survey, AP leaders estimated that a ‘quarter of their [Year 11] pupils currently on roll would be immediately not in education, employment or training (NEET) in September’.[xxxix]

23.  In our initial submission to the Committee, we noted that the cancellation of exams has the potential to deepen racial inequalities in education in view of evidence that predicted grades can be influenced by conscious or unconscious bias.[xl] Ofqual has now provided guidance to schools on avoiding bias,[xli] and have committed to producing a guide for students who wish to challenge their results, including on grounds of suspected unlawful discrimination.[xlii]

24.  We are concerned about the impact of exam cancellations on children who are home-schooled or have not been at their current school for long,[xliii] including excluded children.[xliv] Schools are not obliged to issue grade predictions in the case of these ‘private candidates’ if they consider they do not have sufficient information upon which to base their predictions.[xlv] Whilst these candidates will be able to sit exams in the Autumn, this option may not be feasible for all pupils, and may prevent candidates, who cannot afford to delay, from progressing to Further or Higher education, apprenticeships or employment this year.[xlvi]

25.  Ofqual have engaged with representatives of Higher and Further Education providers regarding admissions decisions for students who do not receive a grade, and have reported that some institutions might be able to consider a range of other evidence to allow students to enrol wherever possible.[xlvii] However, there are no commitments or mechanisms in place to manage this process.

26.  Finally, we are concerned that Government is not giving sufficient attention to the particular needs of ethnic minority pupils and staff in their plans to open schools to all pupils in September. The re-introduction of fines for non-attendance, which may be levelled against families concerned about coronavirus, may adversely affect ethnic minority households who, for example, are more likely to live in multi-generational households that include at-risk individuals.[xlviii]

27.  Emerging evidence suggests that the trauma of the pandemic may be disproportionately affecting the mental health of ethnic minority children.[xlix] We therefore welcome Government guidance for schools to work with pupils to manage the effects of the pandemic on children’s behaviour and well-being,[l] and the announcement that Ofsted will initiate an interim series of inspections in September that will include a focus on how pupils are settling back into expected routines and behaviours.[li]

28.  However, we have concerns about a separate piece of guidance, which allows schools to relax timescales for reviewing exclusions.[lii] This could result in a reduction in safeguards against discriminatory exclusions. This is a particular issue given concerns that schools could become less tolerant as a result of new health and safety rules, resulting in a possible increase in the use of exclusions.[liii]

29.  In order to address the unequal impacts of coronavirus, the Government should:

• Ensure that the education recovery plan is used to provide individualised and targeted support for ethnic minority pupils.
• Ensure that Ofsted’s interim arrangements for inspections identify and address discriminatory exclusions and off-rolling.

• Reinstate pre-coronavirus rules and procedures for governing bodies and independent review panels to review exclusions.

• Work with Universities UK and the Office for Students to encourage Higher and Further Education providers to adopt more flexible approaches to admissions, including allowing students to defer places, or offering later start dates after the autumn exam results are issued.

• Develop a plan of concrete actions to tackle the disproportionate levels of exclusion, absences and attainment rates among certain ethnic minority groups, including Gypsy, Roma and Traveller children, in primary and secondary schools.

Inequalities in housing

30.  There is a strong association between ethnicity and inequalities in living conditions. We know that certain ethnic minorities, including Bangladeshi, Pakistani, Black African and Black Caribbean people, are more likely to live in deprived neighbourhoods and in over-crowded housing than White British people.[liv] A study of living conditions in England during lockdown has shown that children from ethnic minorities experience poorer quality indoor conditions than White British children, but also more limited access to outdoor space.[lv]

31.  Housing inequalities are particularly pronounced for Gypsies and Travellers due to long-standing failures by Government and local authorities to provide sufficient, safe and culturally appropriate sites for these groups.[lvi] Recent changes in planning policies have only exacerbated this problem. [lvii]

32.  We are concerned to hear that the 90-day stay of possession claims does not cover protections for Gypsies and Travellers living on unauthorised encampments.[lviii] Eviction powers remain available to the police and local authorities[lix] that has resulted in a postcode lottery, with reports of some continued evictions of Gypsies and Travellers living on public and private land during the pandemic.[lx]

33.  Evictions and the shortage of suitable sites has significant health implications. The limited guidance from the UK Government so far to mitigate the risks to people living on unauthorised encampments and authorised sites contrasts with the more detailed guidance produced by the Welsh[lxi] and Scottish[lxii] Governments. We also note that access to basic amenities such as water and sanitation for Gypsies, Roma and Travellers remains inconsistent between local authorities in England.[lxiii]

34.  This is compounded by a loss in income for many people from Gypsy, Roma and Traveller groups due to the seasonal, informal and self-employed nature of work that has been impacted upon because of the pandemic.[lxiv] We are concerned that these two issues combined will have a significant impact on Gypsies, Roma and Travellers and result in severe hardship.

35.  Finally, we are concerned that a significant number of Gypsies and Travellers[lxv] may not be able to take part in the NHS test and trace service.[lxvi] Those living on unauthorised encampments and with no fixed address will be unable to receive home testing kits. There are also accessibility issues to accessing drive through regional test sites for those with large live-in vehicles and towing vehicles.[lxvii]

36.  In order to address the unequal impacts of coronavirus, the Government should:

• Identify the reasons why certain ethnic minority groups are more likely to live in substandard housing and overcrowded housing, and take forward strategies to address them in an effective way.

• Review the adequacy of site provision for Gypsies and Travellers across all local authorities.

• Require local authorities and other local partners to open additional temporary sites during the period of the pandemic and adopt a presumption against eviction (including by police) unless suitable alternative provision has been secured.

• Explore options to enable Gypsies, Roma and Travellers to access NHS test and tracing services either through local authorities or assertive outreach models of testing.

Inequalities in the justice system

37.  Since the Committee’s first inquiry, new data has emerged substantiating the risks we flagged in our initial submission around the impact on pre-existing racial inequalities of measures to contain the coronavirus in the areas of policing and the justice system.[lxviii]

38.  As regards policing, data published by the National Police Chiefs’ Council (NPCC) in June indicate that police enforcement of coronavirus restrictions under the emergency regulations is having a disproportionate impact on ethnic minorities.[lxix] Analysis conducted by Liberty suggests that the disproportionality in police enforcement is even evident in areas where there are proportionately low numbers of ethnic minority people.[lxx]

39.  New data from the Metropolitan Police indicates a substantial rise in stop and search by the police in London during this period.[lxxi] This is also likely to have a disproportionate impact on ethnic minorities, given the pattern of increasing race disproportionality in stop and search practices over the last six years.[lxxii]

40.  We welcome the efforts of the Ministry of Justice to keep the justice system operating and reduce the case backlog. However, we are aware of suggestions that jury trials might be suspended for either-way offences[lxxiii] and replaced with a judge and two magistrates, without evaluation.[lxxiv] If such a proposal were considered by Government, the lack of judicial diversity amongst judges and magistrates could lead to significant unintended equality implications for equal access to justice for victims and defendants sharing particular protected characteristics, including people from ethnic minorities.[lxxv]

41.  A number of concerns have been raised around the suitability of video and audio hearings in immigration and asylum proceedings. The Supreme Court has previously held, in the context of human rights appeals against deportation, that for appeals to be effective, the applicant would need the opportunity to give live evidence. [lxxvi] Stakeholders note that power imbalances between appellants and witnesses are likely to be amplified in remote hearings.[lxxvii]

42.  The findings from our Inquiry Inclusive Justice: a system designed for all identified a number of issues in relation to a lack of appropriate technology, internet access, and private space. [lxxviii] There are likely to be parallels for remote hearings in the immigration and asylum context. 

43.  In order to address the unequal impacts of coronavirus, the Government should:

• Implement our recommendations on addressing race disparities in policing in our recent submission to the Home Affairs Select Committee on the MacPherson Report.[lxxix]

• Ensure that any proposal to reduce the right for individuals to be tried by a jury must be subject to an appropriate level of parliamentary scrutiny and impact assessment in line with the significance of the proposal,[lxxx] and other options short of constitutional change should be implemented first.

• Ensure that greater consideration is given by legal practitioners and judges to applicants/appellants in the Immigration and Asylum Chamber for whom remote hearings would be unsuitable.

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 our website. We would be happy to provide additional information to the Committee, if requested to do so.

July 2020

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