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HL Paper 88HC 471

House of Lords House of Commons

Joint Committee on Human Rights

The Convention on the Elimination of Racial Discrimination

Fourteenth Report of Session 2004–05

HL Paper 88 HC 471

Published on 31 March 2005 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited

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House of Lords House of Commons


The Convention on the Elimination of Racial Discrimination

Fourteenth Report of Session 2004–05

Report, together with formal minutes, oral and written evidence

Ordered by The House of Lords to be printed 16 March 2005 Ordered by The House of Commons to be printed 16 March 2005


The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders. The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House.

Current Membership

HOUSE OF LORDS HOUSE OF COMMONS Lord Bowness Lord Campbell of Alloway Baroness Falkner of Margravine Lord Judd Lord Plant of Highfield Baroness Stern

Mr David Chidgey MP (Liberal Democrat, Eastleigh) Jean Corston MP (Labour, Bristol East) (Chairman) Mr Kevin McNamara MP (Labour, Kingston upon Hull) Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills) Mr Paul Stinchcombe (Labour, Wellingborough) Mr Shaun Woodward MP (Labour, St Helens South)

Powers

The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman.

Publications

The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm. A list of Reports of the Committee in the present Parliament is at the back of this volume.

Current Staff

The current staff of the Committee are: Nick Walker (Commons Clerk), Ed Lock (Lords Clerk), Murray Hunt (Legal Adviser), Róisín Pillay (Committee Specialist), Duma Langton (Committee Assistant), Pam Morris (Committee Secretary) and Tes Stranger (Senior Office Clerk). .

Contacts

All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2467; the Committee=s e-mail address is [email protected].

The Convention on the Elimination of Racial Discrimination 1

Contents

Report Page

Summary 3

1 Introduction 5 The Convention 5 Other sources of standards on race discrimination 6 Periodic Reports 7 Work of the Joint Committee on Human Rights 7 Examination of the UK Report 8 Progress of the Inquiry 9 Structure of this Report 9

2 Protection against race discrimination in UK law 11 Introduction 11 Status of CERD in UK law 11 Protocol 12 ECHR 13 Race Equality legislation 14 Legislation on religious discrimination 16 Right of Individual Petition 17

3 Protection from racial discrimination in Government policy making and implementation 19

National Plan of Action 19 Using the Convention in policy formation and delivery 21 A Commission for Equality and Human Rights 21 Press coverage 22

4 Policing and the Criminal Justice System 24 Policing 24 Deaths in Custody 26 Detention without trial 26

5 Discrimination in immigration 27 The Race Relations Acts 27 Nationality discrimination under CERD 27 The effect of section 19D 28

6 Prohibition on racist activities and incitement 30 Article 4 CERD 30 Freedom of Expression and Assembly 31 Incitement to religious hatred 32

7 Discrimination against Travellers 33 Introduction 33 Accommodation 34

Temporary Stop Notices 35 Security of tenure 36

Unauthorised encampments 37 The Reporting Process 38 The role of Equality and Human Rights Commissions 38 The Role of NGOs 38 Follow-up of the Concluding Observations 39

Formal Minutes 40

Oral Evidence 41

List of Written Evidence 42


Summary

The Convention on the Elimination of all Forms of Racial Discrimination (CERD) sets standards for race equality and non-discrimination as part of the UN system for human rights protection. The United Kingdom, which is a party to CERD, regularly submits reports to the UN Committee which supervises it, detailing UK compliance with rights under the Convention. Following consideration of the latest UK report, in August 2003, the UN Committee issued its Concluding Observations, which set out the positive measures which the UN Committee considered had been taken to enhance race equality in the UK, and identified areas of concern for compliance with the Convention. This Report considers the UK’s implementation of CERD, in light of the Concluding Observations. Although CERD has not been incorporated into UK law, there is detailed legislative provision for non-discrimination in the Race Relations Acts, which are complemented by the Human Rights Act. The UK does not, however, have a free-standing right to equality, such as is provided for in Protocol 12 of the European Convention on Human Rights. The complexity of, and inconsistencies in, the anti-discrimination legislative framework have also hampered its effectiveness. This Report welcomes the Government’s recent announcement of a review of anti-discrimination legislation, and recommends that it should take into account the standards set by CERD, as well as other international human rights standards, and should consider the value of a free-standing right to equality in UK law. It recommends that a clear timetable should be set for a harmonised single Equalities Act. Race equality is achieved not solely through legal measures, but also through policy measures which address racial prejudice and social and economic inequalities. The Report considers the protection of CERD rights in the formulation and implementation of policy, welcoming the Government’s Race Equality and Community Cohesion Strategy. It recommends that the Strategy be implemented with regard to the Durban Declaration which followed the World Conference on Racism, and should take account of the CERD Concluding Observations. The Report also notes concerns that inflammatory press reporting of asylum issues has fuelled racism, and highlights the responsibility of Government to formulate and apply asylum policy so as to protect against racial prejudice and discrimination. The Report goes on to address further issues, raised by the UN Committee, of racial discrimination in the criminal justice system, and in immigration law and policy. It considers in particular section 19D of the Race Relations Act, which permits discrimination on the basis of national and ethnic origin in relation to immigration, and concludes that section 19D is likely to lead to discrimination contrary to CERD. The Report assesses the legal protection against incitement to racial hatred, in light of the

4 Fourteenth Report of Session 2004–05

State’s obligations under Article 4 of CERD to take steps against the dissemination of racist ideas, and against racist organisations. In its Concluding Observations the UN Committee highlights discrimination faced by Gypsies and Travellers in the UK. The Report points to a number of areas where UK law may fall short of compliance with CERD, in particular in relation to the provision of accommodation for Gypsies and Travellers, security of tenure on caravan sites, and powers of eviction from them. It recommends that there should be a statutory obligation on local authorities to provide or facilitate the provision of accommodation for Gypsies and Travellers. Finally, the Report emphasises the importance of the system of state reports under CERD, in providing a link between domestic debates on race equality and international human rights standards which protect such equality. It recommends that further steps should be taken to ensure the widest possible involvement of non-governmental organisations in the reporting process, and that the Government should publish an early response to each set of Concluding Observations, indicating which recommendations it accepts, and what implementation measures it intends to take.


1 Introduction

1. In this report, we consider the UK’s compliance with the UN Convention on the Elimination of all forms of Racial Discrimination (CERD). The Convention is the principal United Nations human rights treaty which sets standards for race equality, and is one of the six main UN human rights treaties which bind the UK in international law, though it has not been incorporated in the UK’s domestic law. The rights to non-discrimination which CERD protects are central to all human rights protection. The principle of equality underpins not only the Universal Declaration of Human Rights, and the UN human rights treaties, but also the European Convention on Human Rights and the developing UK human rights jurisprudence. UK race equality legislation has, since the 1970s, sought to provide legal protection against discrimination in domestic law.

2. This inquiry into compliance with CERD forms part of a programme of work assessing the implementation of obligations under UN human rights treaties. Under our terms of reference, the Joint Committee on Human Rights is required to consider “matters relating to human rights in the United Kingdom”. We have consistently interpreted this mandate as extending beyond the rights given force in our domestic law by the Human Rights Act 1998, to include the international human rights instruments by which the UK has agreed to abide.

The Convention

3. The Convention on the Elimination of Racial Discrimination is the principal UN human rights treaty dealing with discrimination on the basis of race and ethnic and national origin. It has bound the UK since 1969. Its key provisions are—

• States Parties undertake to pursue a policy of eliminating racial discrimination “by all appropriate means and without delay” (Article 2.1);

• States Parties undertake to take concrete measures, in particular in social, economic and cultural fields, where necessary to protect the rights of minority ethnic groups (Article 2.2);

• Racial segregation and apartheid are prohibited (Article 3);

• Racist propaganda is prohibited, and States undertake to adopt immediate and positive measures to eradicate all incitement to racial hatred, and to prohibit organisations which promote and incite racial discrimination (Article 4);

• Equality before the law is guaranteed without distinction as to race, colour, or national or ethnic origin, and equal enjoyment of civil, political, economic, social and cultural rights is guaranteed (Article 5);

• Effective remedies for racial discrimination are guaranteed (Article 6);

• States are required to promote education to combat racial prejudice (Article 7).


4. The obligation of non-discrimination under CERD imposes both negative obligations not to discriminate, and positive duties. The Convention, in Article 2.1, requires positive steps to be taken in both legislation and policy to eliminate racial discrimination by public authorities1 and in the private sphere.2 The Durban Declaration and Programme of Action, agreed at the World Conference on Racism of 2001,3 affirmed the importance of implementation of CERD in national law and policy, and called on states to draw up National Plans of Action against racial discrimination.

5. Although the main implementation mechanism under the Convention is the consideration of periodic reports, Article 14 of the Convention contains a right of petition to the UN Committee on Racial Discrimination by individuals or groups of individuals claiming to be victims of a violation of the Convention rights. Such petitions may be brought only against States Parties which have made a declaration agreeing to be bound by Article 14. The UK has not agreed to be bound by the right of individual petition, a position which was affirmed by the Government in the recent Review of International Human Rights Instruments.4 We have heard evidence from Mr David Lammy MP, Minister at the DCA, on the review of international instruments, and intend to comment on this matter in a forthcoming report.

Other sources of standards on race discrimination

6. CERD’s protection against race discrimination is reflected and reinforced by provisions in other international human rights treaties which bind the UK in international law. In particular, Article 26 of the UN International Covenant on Civil and Political Rights (ICCPR) contains a guarantee of non-discrimination, including protection against discrimination on racial grounds. The equality guarantee in Article 26 is particularly significant since it is free-standing, so that its application is not dependent on interference with any of the other rights guaranteed by the Covenant.5 The International Covenant on Economic, Social and Cultural Rights (ICESCR) prohibits discrimination, including discrimination on grounds of race and national origin, in the protection of the rights it guarantees (Article 2.2). The Convention on the Rights of the Child (CRC) protects against discrimination against children, including discrimination on grounds of race, colour, or national or ethnic origin, in relation to the rights it guarantees (Article 2). Protection against discrimination in employment is also contained in the treaties of the ILO, in particular the Discrimination (Employment and Occupation) Convention 1958.6 The principle of non-discrimination is now also recognised to be a principle of customary international law.

7. At a European level, the European Convention on Human Rights, which was given force in UK domestic law under the Human Rights Act 1998, contains a guarantee against

1 Article 2.1(a), (c)

2 Article 2.1 (b), (d)

3 A/CONF.189/12

4 DCA, Report on the United Kingdom Government’s Inter-Departmental Review of the UK’s Position under various International Human Rights Instruments, July 2004

5 The ICCPR also sets out rights against discrimination in the application of the ICCPR rights: Article 2(2); protects against discrimination against children: Article 24(1); and against racial hate speech (Article 20(2)).

6 ILO Convention 111


discrimination in the protection of other Convention rights, including on grounds of race and national origin, in Article 14. The European Court of Human Rights (ECtHR) treats race as a “suspect category”, that is, one requiring particularly weighty justification. Although the Convention itself does not contain a free standing guarantee of equality equivalent to that under Article 26 of the ICCPR, such a guarantee is provided in Protocol 12 to the Convention. Protocol 12 is to come into force on 1 April 2005, but has not been accepted by the UK.7 Discrimination may also breach other provisions of the ECHR: serious and systematic race discrimination has also been found to breach the Convention guarantee against inhuman and degrading treatment, in Article 3 ECHR.8 The Council of Europe Framework Convention for the Protection of National Minorities 1995 also provides protection for the rights of ethnic minorities.

Periodic Reports

8. The starting point for this inquiry is the series of “concluding observations”, findings and recommendations addressed to the UK by the UN Committee on the Elimination of Racial Discrimination (“the UN committee”), which oversees the implementation of the treaty. It is a committee of independent experts, appointed by the States parties.9 In common with other UN human rights treaties, CERD requires states which are party to it to submit periodic reports, in the case of CERD every two years, detailing the State’s compliance with the rights guaranteed in the treaty. Periodic reports made under CERD are examined, initially by a Rapporteur of the Committee, and then in a public session of the full committee, attended by representatives of the State. At the hearing, the State party representatives respond to questions of the CERD committee on the State’s compliance with the Convention. The aim is to encourage constructive dialogue with the State Party, with the participation of NGOs, which may make written submissions or prepare shadow reports to the UN committee and attend the public session. At the conclusion of this process, the UN Committee issues its “concluding observations” which note both the positive steps taken to comply with the treaty rights, and areas where the UN Committee considers that the State does not comply with the treaty rights, and makes recommendations for action to redress the shortcomings identified.

Work of the Joint Committee on Human Rights

9. The consideration of the Periodic Reports on human rights treaties by the United Nations is designed to provide accountability on the basis of the human rights standards accepted by States. If the reporting process is to ensure real accountability, however, debate in Parliament and in wider civil society must take forward the process of scrutiny begun at the UN. It is in order to provide a role for Parliament in the implementation of the UK’s international human rights obligations that we have decided to examine the concluding observations from each of the UN Committees on the UK’s Periodic Reports.

7 See further below paras. 22–24

8 East African Asians v UK(1973) 3 EHRR 76

9 The Committee is established by Article 8 of the Convention. There are 18 members of the Committee, elected for a four year term


10. As the first step in this programme of work we published, in June 2003, a report on the UN Convention on the Rights of the Child10 which examined the Concluding Observations of the UN Committee on the Rights of the Child in respect of the UK, and made a series of recommendations for enhanced protection of children’s human rights in UK law and practice. In November 2004, we published a report on compliance with the UN Covenant on Economic, Social and Cultural Rights, following the Concluding Observations of the UN Committee overseeing that Covenant.11 This report applies the same scrutiny to implementation of the rights guaranteed in CERD.

Examination of the UK Report

11. The examination of the UK’s seventeenth report12 under the Convention on the Elimination of Racial Discrimination took place in Geneva on 6 and 7 August 2003 before the Committee on the Elimination of Race Discrimination, and the committee’s Concluding Observations were issued later that month.13 The United Kingdom delegation at the session was led by the Home Office, which has lead departmental responsibility for the preparation of the report and co-ordination of the reporting process under CERD.

12. The Concluding Observations noted a number of positive developments in UK implementation of the Convention. In particular, the UN Committee welcomed—

• the enactment of the Race Relations (Amendment) Act 2000;

• increases in penalties for, and attempts to ensure more effective prosecution of, incitement to racial hatred;

• the establishment of the Independent Police Complaints Commission, and the Police Ombudsman for Northern Ireland;

• the establishment of the Home Office Community Cohesion Unit;

• the establishment of the National Asylum Support Service;

• preparation of a National Plan of Action Against Racism.

13. The main issues of concern highlighted by the UN Committee were—

• the non-incorporation of the terms of CERD in UK law;

• the UK “interpretative declaration” to CERD to the effect that racist organisations and activities should be prohibited only where this can be done in conformity with the right of freedom of expression;

10 Tenth Report of Session 2002–03, The UN Convention on the Rights of the Child, HL Paper 117, HC 81

11 Twenty-first Report of Session 2003–04, The International Covenant on Economic, Social and Cultural Rights, HL Paper 183, HC 1188

12 Including also the sixteenth report.

13 Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland, CERD/63/CO/11, 18 August 2003


• the implementation of the EU Race Directive by way of regulations and the omission of “colour” and “nationality” as grounds of prohibited discrimination under the regulations;

• the complexity of UK anti-discrimination legislation, and the absence of a Single Equality Act;

• section 19D of the Race Relations Act, which permits discrimination on the basis of national or ethnic origin, in the discharge of immigration functions;

• asylum, including the rights of asylum seekers to an adequate standard of living, and their right to work; the discriminatory impact of UK immigration checks at selected European airports; and attacks against asylum seekers;

• increased media prejudice against ethnic minorities, asylum seekers and immigrants;

• the adequacy of anti-discrimination and housing legislation in protecting the equal rights of Travellers;

• the absence of legislation on religious discrimination, particularly in light of increases in Islamophobia;

• deaths in custody of ethnic minority prisoners;

• disproportionate use of stop and search powers against ethnic minorities;

• absence of a Human Rights Commission or Commissions;

• non-acceptance of the right of individual petition under Article 14 CERD;

• detention without charge of non-nationals under the Anti-Terrorism Crime and Security Act 2001.

Progress of the Inquiry

14. In the course of this inquiry, we heard oral evidence from the Minister of State at the Home Office, Fiona Mactaggart MP; from the Commission for Racial Equality (CRE); the 1990 Trust; the Discrimination Lawyers’ Association (DLA); and the Gypsy and Traveller Law Reform Coalition. We also received written evidence from the Audit Commission, the Commission for Racial Equality (CRE) the United Nations High Commission for Refugees (UNHCR), the 1990 Trust, JUSTICE, the Discrimination Lawyers Association, the Runnymede Trust, the Committee on the Administration of Justice, the Children’s Law Centre of Northern Ireland, and the Medical Foundation for the Care of Victims of Torture. We are grateful to all of those who have assisted us in this inquiry.

Structure of this Report

15. We begin by considering the legal status of CERD in UK law, and the legislative framework for protection of non-discrimination in Chapter 2. In Chapter 3, we consider the use of CERD standards in policy development, and strategies to ensure the effective


implementation of rights to non-discrimination on grounds of race. Policing and the Criminal Justice system are considered in Chapter 4. In Chapter 5, we consider the permissibility of discrimination in relation to immigration control. Chapter 6 deals with the particular concerns raised by the CERD committee regarding racial hate speech, and the steps taken to criminalise and combat it. Discrimination against Gypsies and Travellers, also a matter of concern to the CERD committee, is considered in Chapter 7. Finally, Chapter 8 considers how the reporting process works and how it could be made more accessible and effective.

16. We have already considered a number of issues raised by the UN committee in detail in the context of other inquiries we have undertaken, notably deaths in custody,14 the establishment of a human rights commission,15 and the provisions of the Anti-terrorism, Crime and Security Act 200116 and the Prevention of Terrorism Bill intended to replace those provisions.17 We do not therefore deal with these issues at length in this report.

14 Third Report of Session 2004–05, Deaths in Custody, HL Paper 15-I, HC 137-I

15 Sixth Report of Session 2002–03, The Case for a Human Rights Commission, HL Paper 67-I, HC 489-I ; Eleventh Report of Session 2003–04, Commission for Equality and Human Rights: Structure, Functions and Powers, HL Paper 78, HC 536; Sixteenth Report of Session 2003–04, Commission for Equality and Human Rights: The Government’s White Paper, HL Paper 156, HC 998.

16 Second Report of Session 2001–02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372; Fifth Report of Session 2001–02, Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 51, HC 420; Fifth Report of Session 2002–03, Continuance in force of Sections 21 to 23 of the Anti-terrorism, Crime and Security Act 2001, HL Paper 59, HC 462

17 Ninth Report of Session 2004–05, Prevention of Terrorism Bill: Preliminary Report, HL Paper 61, HC 389; Tenth Report of Session 2004–05, Prevention of Terrorism Bill, HL Paper 68, HC 334


2 Protection against race discrimination in UK law

Introduction

17. Although the provisions of CERD have not been incorporated in UK law, there is a substantial framework of legislation protecting against race discrimination, based on the Race Relations Act 1976, and incorporating enhanced protection introduced by the Race Relations Amendment Act 2000 and the Regulations of 2003, implementing the EU Race Directive.18 Domestic equality law is also strengthened by the protection against discrimination in relation to ECHR rights, in Article 14 ECHR, which is given force in UK law under the Human Rights Act 1998, and is increasingly the source of decisions in the UK courts.19 Courts are increasingly recognising the existence of a common law principle of equality. The legislative framework has been subject to criticism for its complexity and inaccessibility, and, most significantly, for the gaps that it leaves in protection from discrimination.

Status of CERD in UK law

18. The UN Committee’s Concluding Observations expressed concern that “the State Party’s courts will not give legal effect to the provisions of the Convention unless the Convention is expressly incorporated into its domestic law”.20 It recommended that the UK “review its legislation in order to give full effect to the provisions of the Convention in its domestic legal order”.21

19. The UK’s “dualist” legal system means that treaties, such as CERD, do not take full legal force in domestic law unless they have been incorporated in domestic legislation, as Lord Bingham, now the senior Law Lord, pointed out in his maiden speech in the House of Lords.22 The courts may, however, take some account of the terms of an unincorporated treaty such as CERD, in a number of ways. These include the following—

• The courts will interpret legislation in a manner consistent with the State’s international obligations whenever possible, even if there is no obvious ambiguity in the legislation.23

• In particular, where a statute was enacted to fulfil an international obligation, the courts will assume that it was intended to be effective for that purpose and will interpret the legislation accordingly.24

18 Race Relations Act 1976 (Amendment) Regulations 2003

19 See, for example, A (FC) v Secretary of State for the Home Department [2004] UKHL 56

20 Concluding Observations, op cit, para. 11

21 ibid.

22 HL Deb, 3 July 1996, Col 1465. See also Lord Bingham in R v Lyons [2002] UKHL 44

23 Garland v British Rail Engineering Ltd [1983] 2 AC 751 at p. 771 per Lord Diplock; Litster v Forth Dry Dock & Engineering Co. Ltd [1990] 1 AC 546, HL

24 R (Mullen) v Secretary of State for the Home Department, The Times, 31 December 2002, CA, interpreting s. 133 of the Criminal Justice Act 1988 in the light of Art. 14.6 of the ICCPR


• Where the common law is uncertain or there is a gap in the law, courts try to make decisions in a manner compatible with international obligations.25

• Where possible, courts exercise their discretion in a manner compatible with international obligations.26

• When reviewing the exercise of discretion by public authorities, the courts subject decisions or acts which interfere with human rights under international treaties to especially anxious scrutiny. Such decisions or acts require particularly strong justification if they are not to be regarded as irrational or disproportionate and, therefore, unlawful.27

• Courts regard people dealing with governmental bodies as having a legitimate expectation that, other things being equal, the Government will act in a manner consistent with the United Kingdom’s international obligations.28

• When courts are required to decide what legal public policy demands, they treat international obligations as an indication of public policy.29

20. The courts have shown increasing willingness to rely on and accord weight to CERD and other comparable treaties. In two significant rulings in the past year, the House of Lords has placed significant reliance on the provisions of CERD.30 In A(FC) v Secretary of State for the Home Department,31 Lord Bingham, considering the discriminatory impact against non-nationals of detention under the Anti-Terrorism Crime and Security Act, considered the nature of the UK’s international obligations under CERD as regards discrimination on the basis of nationality and national origin, with reference to the General Recommendations and Concluding Observations of CERD.32 Noting that materials such as General Recommendations were not binding on the United Kingdom, Lord Bingham nevertheless considered them to be an important interpretative tool in establishing the effect of equivalent ECHR rights—in this case Article 14 ECHR—in domestic law.33 Lord Bingham stated that a finding that the legislation discriminated on grounds of nationality or immigration status also involved a finding that the UK was in breach of its non-discrimination obligations under the ICCPR.34

25 DPP v Jones [1999] 3 WLR 625, HL, at p. 634 per Lord Irvine of Lairg LC

26 Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670 CA

27 Bugdaycay v Secretary of State for the Home Department [1987] AC 514 HL; R v. Ministry of Defence, ex parte Smith [1996] AC 517; R v Secretary of State for the Home Department, ex parte Simms [2000] AC 115 HL; R v Secretary of State for the Home Department, ex parte Venables and Thompson [1998] AC 407 HL

28 R v Secretary of State for the Home Department, ex parte Ahmed and Patel [1998] INLR 570 CA, approving and applying Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 183 CLR 273, HC of Australia.

29 Oppenheimer v Cattermole [1976] AC 249 HL; Blathwayt v Baron Cawley [1976] AC 397 HL; Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 1 QB 127 CA

30 See also In Re McKerr, [2004] UKHL 12, where Lord Steyn, at paras 50–52, suggested that the rule in the International Tin Council case applied with lesser force in the case of treaties, such as human rights treaties, which created individual rights against the State.

31 [2004] UKHL 56

32 ibid., para. 62, referring to Article 1 of CERD, CERD General Recommendations 11, 14 and 30, and the CERD Concluding Observations of 2003 in respect of the UK.

33 ibid., para. 63

34 ibid., para. 69 at point (4)


21. In R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre,35 Lord Steyn expressly ruled that the immigration service operation put in place at Prague airport, which led to closer scrutiny of Roma people seeking to enter the UK than of non-Roma, placed the UK in breach of its international obligations not to discriminate on the basis of race or national origin under Article 2 of CERD,36 as well as its parallel obligation under Article 26 ICCPR,37 and the customary international law rule of non-discrimination.38

Protocol 12 ECHR

22. In addition to the protection afforded by the Race Relations Acts, constitutional level protection of rights to non-discrimination is provided by Article 14 ECHR, which applies as one of the rights guaranteed under the Human Rights Act. Article 14 is breached where, in relation to one of the other Convention rights, there is a difference in treatment of persons with a particular status or characteristic, which cannot be justified as objective and reasonable in pursuit of a legitimate aim. For Article 14 to apply, therefore, it must be established that the difference in treatment falls within the scope of one of the other Convention rights. Where this is not the case, the Convention will not protect against discriminatory treatment. The DLA told us that, in the current legal framework, there was a need for “a constitutional equality guarantee which cuts across the board”.39

23. Protocol 12 to the ECHR would fill this gap. It provides for a free-standing right to non-discrimination, irrespective of whether the difference in treatment engages another Convention right. It therefore provides for protection equivalent to non-discrimination guarantees in CERD and the ICCPR. Protocol 12 comes into force for those states that have ratified it on 1 April 2005.40 The UK has not, however, signed or ratified the Protocol.

24. In its conclusions on its review of international human rights instruments,41 the Government supported in principle the inclusion of a free-standing right to equality in the ECHR, but declined to adopt the Protocol. The review cited the Government’s concern that the impact of the Protocol on domestic law would be difficult to predict, and that the scope of application of the Protocol, and the availability of a defence of objective and reasonable justification for differential treatment, remained uncertain pending clarification by the European Court of Human Rights. We have made clear in previous reports our view that the Government should ratify Protocol 12 ECHR, and include it within the rights protected in the Human Rights Act, in order to provide protection in domestic law equivalent to the equality rights which bind the UK internationally under instruments

35 [2004] UKHL 55

36 ibid., para. 44

37 ibid., para. 45

38 ibid., para. 46. Baroness Hale in the same case endorsed CERD’s conclusion that section 19D of the Race Relations Act was incompatible with the principle of non-discrimination, and applied this by analogy to the Prague Airport scheme: “a scheme which is inherently discriminatory in practice is just as incompatible as is a law authorising discrimination”: para. 103

39 Q 52

40 Protocol 12 has so far been ratified by Albania, Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Finland, Georgia, the Netherlands, San Marino, Serbia and Montenegro and Macedonia.

41 DCA, Report on the United Kingdom Government’s Inter-Departmental Review of the UK’s position under various International Human Rights Instruments, July 2004, Appendix 6


including CERD, and the ICCPR.42 We intend to address this issue in more detail in our report on the Government’s review of international instruments. For present purposes, we emphasise the importance to race equality, and to compliance with CERD, of a free-standing right to non-discrimination, which offers protection in UK domestic law.

Race Equality legislation

25. The Concluding Observations expressed concern at the growing complexity of the legal framework, noting that “the emerging situation may lead to inconsistencies in discrimination laws, differential levels of protection according to the categorisation of discrimination … and create difficulties for the general public as well as for law enforcement agencies”.43 The UN Committee recommended that the 2003 Regulations implementing the Race Directive should be extended to cover colour and nationality, and that consideration should be given to consolidating legislation covering all aspects of race discrimination, as defined in Article 1 of CERD.44

26. The Race Relations Act 1976 and the Race Relations (Amendment) Act 2000 provide the basic framework for UK protection against race discrimination. The 2000 Act imposed on public authorities both a negative duty not to discriminate unlawfully on the basis of race, and positive duties to eliminate unlawful discrimination and promote race equality and good race relations.

27. The Race Relations Act 1976 (Amendment) Regulations 2003 implement the EU Race Equality Directive. The Directive protects against race discrimination in relation to employment; vocational training; education; provision of goods, facilities and services; accommodation; and functions of public authorities relating to social security, healthcare, any other form of social protection or any form of “social advantage”. In relation to these matters, the Directive introduces a broader definition of indirect discrimination than that under the 1976 Act,45 and provides a new definition of racial harassment.46 It also shifts the burden of proof, requiring that where a complainant establishes facts that could amount to discrimination, the burden shifts to the respondent to show that there was no discriminatory act.

28. Controversially, the decision to implement the Directive by way of regulations rather than primary legislation meant that the legislation could not be tailored to be made consistent with the scope of the Race Relations Act, but was confined to the scope of the Directive. Two points in particular are a cause of concern—

42 Twenty-first Report of Session 2003–04, The International Convention on Economic, Social and Cultural Rights, HL

Paper 183, HC 1188, para. 113

43 Concluding Observations, para. 15

44 ibid.

45 The definition of indirect discrimination in the Race Relations Act 1976 is a restrictive one, since it required there to be a “requirement or condition” having a discriminatory impact (section 1(1)(b)). This was seen as excluding indirectly discriminatory practices. The 2003 Regulations define indirect discrimination with reference to any “provision, criterion or practice” which puts one group at a “particular disadvantage”: section 1(1A) Race Relations Act 1976.

46 Racial harassment was not expressly defined or prohibited in the 1976 Act, though caselaw has established that it may amount to unlawful discrimination: Mark Bell, A Patchwork of Protection: the New Anti-Discrimination Law Framework, (2004) 3 MLR 67


• the enhanced protection in the 2003 Regulations, including in relation to indirect discrimination, harassment, and the burden of proof, applies only to discrimination on the basis of race or ethnic origin, not to discrimination on the basis of colour or nationality;

• in regard to public authorities, it is uncertain but unlikely that the protection in the 2003 Regulations will apply to police powers, immigration control, prison discipline and other functions which do not constitute “social protection or social advantage” (s.1(1B)(c)).

29. The CRE told us that “the discrepancies and anomalies have presented enormous difficulties in drafting codes which are accessible to non-lawyers, to employers, to service providers and to housing providers”.47 The DLA also stressed that many public authorities have difficulties in comprehending their statutory obligations since, for example, indirect discrimination “means one thing in a prison if you are serving dinners, it is another thing if you are applying disciplinary rules.” Thus, people on the front line of service delivery had difficulty in understanding the nature of their legal obligations.48 This, the DLA suggested, could serve to undermine the effectiveness of the race equality and community cohesion strategy.49

30. Ms Mactaggart told us that she was confident that the regulations did not in any way breach CERD, and that “we are better off with the regulations than we would have been without them”.50 She nevertheless accepted that there was an anomaly in terms of colour discrimination and suggested that in a future Single Equality Act, this anomaly would be rectified.51

31. The Minister cautioned against rushed legislation to consolidate the equality legislation.52 The CRE took a similar position, viewing a Single Equality Act as an opportunity for thorough review of the current legislation, which would be more than a technical exercise of levelling up, and would be informed by consideration of the underlying causes of discrimination.53

32. Subsequent to the Minister’s evidence, on 25 February 2005, the Department of Trade and Industry Minister Jacqui Smith MP announced the establishment of an “Equality Review” to consider “the persistent social, economic and cultural factors that combine to deny individuals the opportunity to make the best of their abilities and contribute to society fully”.54 Although the review is intended to have a wide brief to consider the development of public policy on equality, it is also designed to inform new equality legislation. In parallel to the Equality Review, and informed by its findings, a DTI-led review of discrimination legislation will create a “foundation for the development of a clearer and more streamlined legislative framework.”

47 Q 8

48 Q 53

49 Q 54

50 Q 68

51 ibid.

52 Q 69

53 Q 9

54 HC Deb, 25 February 2005, cols. 68WS–70WS


33. In previous reports, we have recommended that consideration should be given to a single Equality Act as a matter of priority.55 We are concerned at the difficulties caused by the current complexity of the legislative framework. We therefore welcome the government’s proposals for a holistic review of anti-discrimination legislation and policy. These parallel reviews present a significant opportunity for a single, coherent and effective legislative framework for combating racial inequalities, as well as other forms of discrimination. The proposed establishment of a Commission for Equality and Human Rights with sufficient powers, functions and resources will be an essential aspect of effective implementation of such new legislation.

34. We note, however, that there is as yet no timescale for new legislation to harmonise anti-discrimination law in a single Act. We urge the government to make a firm commitment to a timetable for adoption of a single Equality Act.

35. The Equality Review and review of discrimination legislation present an ideal opportunity for a fresh consideration of the role of international human rights standards in the protection of race equality in the UK. We recommend that both reviews should consider the rights accepted by the UK under CERD, and how those rights might shape and support the development of law and policy. The reviews should also take account of the Concluding Observations of CERD in respect of the UK. They should consider the rights to non-discrimination which bind the UK under the International Covenant on Civil and Political Rights, with a view to giving those rights further force in UK law.

36. They should also give further consideration to the value of ratifying and including within the Human Rights Act the free-standing right to equality under Protocol 12 to the ECHR. Ratification of Protocol 12 is a matter on which the UK should take a leading role in the Council of Europe.

Legislation on religious discrimination

37. Although CERD does not specifically protect against religious discrimination, the Committee in its Concluding Observations stressed the “intersectionality” of race and religious discrimination, and expressed particular concern at recent anti-Islamic incidents. It noted the existing legislative protection against discrimination against Jews and Sikhs, considered to be protected ethnic groups under the Race Relations Acts, and recommended that similar protection be extended to other immigrant religious minorities.56

38. Protection against religious discrimination has been enhanced by the Employment Equality (Religion or Belief) Regulations 2003, which implement the Employment Directive in respect of religion, and protect against direct or indirect religious discrimination in employment and vocational training. There remains no statutory

55 Eleventh Report of Session 2003–04, Commission for Equality and Human Rights: Structure, Functions and Powers,

HL Paper 78, HC 536; Twenty-first Report of Session 2003–04, The International Covenant on Economic, Social and Cultural Rights, HL Paper 183, HC 1188, para. 111.



protection against religious discrimination in relation to functions other than these, including in relation to education, and the provision of goods and services.

39. Differential protection for different religious groups may also raise issues of domestic human rights law under the Human Rights Act. JUSTICE in its written evidence argued that the differential protection afforded to Jews and Sikhs as compared to other religious minorities could lead to unjustifiably discriminatory interference with the right to manifest religious beliefs under Article 9 ECHR.57

40. The Equality Bill, introduced on 1 March 2005, sets out to protect against discrimination on grounds of religion in the provision of goods, facilities and services.58 JUSTICE emphasised the need for such legislation to provide protection equivalent to race discrimination legislation. It stressed that, although the Employment Directive does not cover goods, facilities and services, the standards and definitions on indirect discrimination and harassment should apply to religious discrimination in these areas since “to adopt a lesser standard in respect of these because the EU has not yet legislated will increase the complexity of the law and suggest that religious groups other than Jews and Sikhs are worthy of less protection”.59 Furthermore, it pointed out that a law applying different definitions to different groups will be more difficult to explain to those who apply it, and may therefore be less effective.

41. We intend to comment in a separate report on the proposals in the Equality Bill regarding religious discrimination. We note here that, given the sometimes unclear boundary between racially and religiously motivated discrimination, comprehensive protection against discrimination on the basis of religion is necessary to address the current uneven protection afforded to minority groups.

Right of Individual Petition

42. Article 14 of CERD provides for applications to the CERD committee to be brought by individuals alleging violations of the Convention. As the CERD committee is not a judicial body, it cannot deliver a binding decision in such cases, but will publish an Opinion setting out its views on compliance with the Convention in the case. Consideration of petitions under Article 14 in general takes place on paper only.60

43. The right to individual petition under Article 14 applies only in relation to States which have entered declarations under Article 14 accepting these provisions. The UK has not accepted the right of individual petition, and in the recent inter-departmental review of international human rights obligations, this position was confirmed. In presenting oral evidence, Fiona Mactaggart MP described the individual petition process as “laborious and expensive” and considered that provision of effective domestic remedies was preferable.61

57 Ev 70

58 Equality Bill (House of Commons Bill 72)

59 Ev 70

60 Although there is provision for oral hearings: Rules of Procedure of CERD, rule 94(2), HRI/GEN/3

61 Q 66


44. We strongly support the development of increasingly effective domestic remedies for race discrimination. This does not diminish the importance of individual access to the body overseeing the main international treaty establishing standards of race equality. Recourse to individual petition under CERD would be unlikely to be routine, since for the majority, adequate recourse could be found in the domestic courts. The role of individual petition to the CERD committee would be to provide an authoritative opinion on particularly difficult or controversial aspects of anti-discrimination law or policy, and to allow individuals not to obtain redress (since no remedies can be awarded under the Article 14 procedure) but to vindicate their human rights in those cases where gaps in the national legal framework have left them without recourse.

45. The absence of a right to individual petition is a particularly stark omission given the current absence of a free-standing right to equality, discussed above. This creates what the DLA referred to as a “lethal combination” of the absence of a full constitutional guarantee of equality and the absence of an individual right to petition, leaving persons vulnerable to discrimination without sufficient redress”.62

46. This is a matter on which we have heard evidence from Mr David Lammy MP, the Minister responsible for human rights at the DCA. Mr David Lammy MP told us that the government was content that the reporting process was sufficient to uphold the UK’s obligations under CERD and other UN Conventions, without individual petition.63 We intend to consider the UK position on acceptance of rights of individual petition under each of the UN treaties more fully in our forthcoming report on the Government’s Review of International Human Rights Instruments. For present purposes, we record our view that the failure to accept rights of individual petition under Article 14 of CERD, and under the Optional Protocol to the ICCPR, has severely hampered the ability of people from vulnerable ethnic groups to secure some aspects of their right to equality.

62 Q 52

63 Evidence, 19 January 2005, on Review of Human Rights Instruments, Mr David Lammy MP, Q 4


3 Protection from racial discrimination in Government policy making and implementation

47. As the Convention recognises, protection against racial discrimination cannot be achieved through legislative measures alone, but requires practical implementation. A number of the concerns regarding compliance with CERD cited by the UN committee are deep-seated problems of social and economic inequality, which require positive Government action. In particular, the UN Committee noted discrimination experienced by ethnic minorities in the areas of employment, education, housing and health and urged the Government to continue to take measures to ensure equal opportunities for all in the enjoyment of economic, social and cultural rights.64

48. The positive obligation to take steps to achieve racial equality is set out in Article 2.2 of the Convention which states: “States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.”

National Plan of Action

49. The Durban Declaration and Programme of Action recommended that states should prepare a national plan of action for racial equality. It urged States to—

develop or elaborate national action plans to promote diversity, equality, equity, social justice, equality of opportunity and the participation of all. Through, among other things, affirmative or positive actions and strategies, these plans should aim at creating conditions for all to participate effectively in decision-making and realize civil, cultural, economic, political and social rights in all spheres of life on the basis of non-discrimination.65

50. The Concluding Observations welcomed the Government’s commitment to drawing up a national plan of action. Since that time, however, the process to prepare a National Action Plan has been subsumed in the preparation of the Race Equality and Community Cohesion Strategy, which is now intended to fulfil the functions of a National Action Plan against Racism.66 The Strategy, Improving Opportunity, Strengthening Society, was published by the Home Office in January 2005.

51. The process by which the National Action Plan was transformed into the Race Equality and Community Cohesion Strategy appears to have involved some confusion and little


65 Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/CONF.189/12. Chapter 1, Programme of Action, para. 99

66 Home Office, Improving Opportunity, Strengthening Society, The Government’s strategy to increase race equality and community cohesion, Jan 2005, para. 18


consultation.67 Written evidence from the NIHRC states that the Home Office steering group convened to take forward the drafting of the Plan was not consulted about the decision to redirect work from the Plan to the Race Equality and Community Cohesion Strategy, and not promptly informed of that decision.68 The NIHRC has also raised concerns at the slow progress made in developing a Race Equality Strategy for Northern Ireland.69 We note that the Durban Declaration and Programme of Action “encourages States, in developing and elaborating [national] action plans, to establish, or reinforce, dialogue with non-governmental organisations in order to involve them more closely in designing, implementing and evaluating policies and programmes”.70

52. The Strategy commits the Government to developing specific, tailored approaches to meeting the needs of different minority communities, focussing on those suffering particular disadvantage; to strengthen, support and enforce anti-discrimination legislation, and to strengthen accountability for achieving race equality.71 The Strategy contains measures to achieve equality in the protection of economic and social rights, including measures to increase the employment rate of minority ethnic groups; and measures in relation to education, the labour market, provision of culturally appropriate health services, and improving housing conditions.72 We welcome the Strategy as a basis for fulfilling the commitment to a National Action Plan under the Durban Declaration, as well as a means of ensuring compliance with obligations under CERD, on the understanding that this approach should not depart from the spirit of the Durban Declaration and Programme of Action to establish mechanisms of partnership to secure the effective involvement of black and minority ethnic groups at all stages of the process— consultation and preparation, planning and implementation, delivery and assessment.

53. We note the emphasis that the Durban Declaration and Programme of Action places on the significance of effective monitoring for the protection and promotion of rights. We therefore recommend that the Government initiate a consultation programme involving black and minority ethnic groups in order to develop an inter-departmental strategy for the collection of information and statistics that can provide a central source of reference on progress towards the elimination of racial discrimination.

54. It is notable that the Strategy does not deal with asylum issues,73 the strategy for which is set out in a separate document, the Refugee Integration Strategy, currently in draft form. The UN Committee recognised the interrelation of race discrimination and prejudice, with prejudice against asylum seekers, in particular in the press. It “recommends that the State Party adopt further measures and intensify its efforts to counter racial tensions generated through asylum issues, inter alia by developing public education programmes and promoting positive images of ethnic minorities, asylum seekers and immigrants, as well as

67 Ev 84

68 Ev 84

69 Ev 84

70 Durban Programme of Action, op cit., para. 99

71 Improving Opportunity, Strengthening Society, op cit., para. 10

72 ibid., Chapter 3

73 Q 78


measures making the asylum procedures more equitable, efficient and unbiased”.74 In our view, the interrelation of racial bias and prejudice against asylum seekers must be recognised and addressed by Government. We recommend that in the implementation of the Race Equality and Community Cohesion Strategy, particular attention should be paid to the need to counter racial prejudice and discrimination directed against asylum seekers and immigrants.

Using the Convention in policy formation and delivery

55. The Minister stated that, from the Government’s point of view, the concluding observations fed into Government policy, and gave pause to reflect on that policy where there was a mismatch with the Convention. Nevertheless, the CERD concluding observations did not play a “defining, significant part in our policy development”.75

56. We note that, for example, although the Race Equality and Community Cohesion Strategy is expressly intended to support compliance with CERD, it does not make any reference to the Concluding Observations. Whilst we accept that the response to the Concluding Observations should not be an end in itself, it should in our view be integrated with policy development and implementation to assist in the practical advancement of the rights protected in the Convention. We therefore welcome Ms Mactaggart’s suggestion that there might be scope for the CERD Concluding Observations to feed into the Race Equality and Community Cohesion Strategy, to assist in driving forward race equality.76 We strongly support integration of CERD standards and Concluding Observations into the Race Equality Strategy in this way.

57. The Commission for Racial Equality suggested that incorporation of CERD could be particularly useful in strengthening the scrutiny of government policy and law making.77 The CRE also stressed the importance of more effective scrutiny of legislation on the basis of race equality, in particular through the issuing of race impact assessments which public bodies are required to produce under the race equality duty.78 In our view, CERD standards should reinforce and strengthen these domestic obligations, in the consideration of legislation and policy proposals in government and Parliament.

A Commission for Equality and Human Rights

58. The Concluding Observations recommended the establishment of a Human Rights Commission with comprehensive competence to review complaints of human rights violations. We recommended the establishment of such a Commission in our report, The Case for a Human Rights Commission, and in subsequent reports we have made detailed recommendations on the functions, structure and powers of such a Commission, and have considered the interrelation of the equality and human rights functions of the


75 Q 64

76 Q 64

77 Q 5

78 Q 5


Commission.79 An Equality Bill, making provision for a Commission for Equality and Human Rights, was published on 1 March and we will set out our views on the detail of the Bill in a separate report.

Press coverage

59. The UN Committee expressed concern at the increasing racial prejudice reflected in the media, against ethnic minorities, asylum seekers and immigrants, and the ineffectiveness of the Press Complaints Commission in tackling such prejudice. It recommended that consideration should be given to how the Press Complaints Commission could be made more effective in this regard.80

60. Concerns about press reporting were highlighted in much of the evidence we received. Negative media reporting on asylum was referred to repeatedly as a contributor to racism generally, not just to hostility against asylum seekers. Media reporting on Gypsies and Travellers was also raised as a cause for concern.81 Some of the evidence also argued there was insufficient Government action to combat this, and indeed that Government statements have been used to fuel negative reporting.82 Evidence pointed to repeated media use of misnomers such as “illegal asylum seeker”, and the resultant identification of entire refugee or immigrant communities with illegality. UNHCR emphasised the duty of Government to ensure that its public statements could not be used to foster such reporting.83

61. These concerns are affirmed by research cited to us, including research by ICAR (The Information Centre about Asylum and Refugees in the UK), commissioned by the Greater London Assembly, which found that newspaper coverage of asylum issues was likely to promote inter-ethnic tension in London,84 and research by the NGO Article 19 which concluded that UK press coverage of asylum seekers has encouraged racism by use of discriminatory language and negative pictures.85

62. The Race Equality and Community Cohesion Strategy commits the Government to “supporting local authorities in establishing media and communications strategies that speedily respond to myths, involve communities in change in their neighbourhood and include a role for elected leaders, faith groups and voluntary and community sectors in acting as spokespersons”.86 We welcome this. We note, however, that the Strategy does not deal specifically with media strategies in relation to racially motivated prejudice against asylum seekers. We recommend that, as an integral part of the Race Equality and

79 Sixth Report of Session 2002–03, The Case for a Human Rights Commission, HL Paper 67-I, HC 489-I; Eleventh Report

of Session 2003–04, Commission for Equality and Human Rights: Structure, Functions and Powers, HL Paper 78, HC 36; Sixteenth Report of Session 2003–04, Commission for Equality and Human Rights: The Government’s White Paper, HL Paper 156, HC 998


81 Ev 63

82 Ev 91; Ev 90; Ev 70 and Ev 25

83 Ev 91

84 Media in the UK, Image, Community Impact, Assessing the impact of media and political images of refugees and asylum seekers on community elations in London, ICAR, 2004; Ev 70

85 Ev 70

86 Improving Opportunity, Strengthening Society, op cit., para. 32


Community Cohesion Strategy, media strategies should seek to counter inaccurate and inflammatory reporting of asylum issues.

63. There is a risk, pointed to in written evidence to this inquiry, that Government efforts to promote positive reporting of asylum issues may be undermined by other policy initiatives. Evidence to the inquiry argued that Government action had contributed to the negative perception of asylum seekers in a number of respects. The 1990 Trust considered that measures such electronic tagging of asylum seekers, introduced in the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 had fuelled negative perceptions of asylum seekers,87 and other evidence noted the impact on public opinion of the detention of asylum seekers, in particular the continued use of prison to detain some asylum seekers.88 UNHCR also considered that “the pejorative conceptualization of refugees and asylum seekers apparent in some recent legislation would suggest that the balanced image required to avoid discrimination and to foster community cohesion is not being embraced”.89 JUSTICE considered that “the considerable hostility towards asylum seekers is exacerbated by the constant message from Government that their presence is a ‘problem’ requiring control”.90 In a number of recent reports, we have reported that measures proposed by the Government unjustifiably discriminate on grounds of nationality.91 We consider these to be evidence of an alarming trend in the Government’s policy towards systematically treating asylum seekers differently from UK nationals without objective and reasonable justification. In our view, asylum policy cannot be viewed in isolation from inter-community distrust and prejudice, or, therefore from the State’s obligation under CERD to protect against racial prejudice and discrimination. The formulation and implementation of government policy on asylum must take full account of the impact on race relations.

87 Ev 25

88 Ev 84

89 Ev 91 and Ev 33

90 Ev 70

91 Fifth Report of Session 2003–04, Asylum and Immigration (Treatment of Claimants, etc) Bill, HL Paper 35, HC 304; Fourteenth Report of Session 2003–04; Asylum and Immigration (Treatment of Claimants, etc) Bill: New Clauses, HL Paper 130, HC 828; Seventeenth Report of Session 2001–02, Nationality, Immigration and Asylum Bill, HL Paper 132, HC 961; Second Report of Session 2001–02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372.


4 Policing and the Criminal Justice System

64. In its Concluding Observations, the UN Committee expressed its continued concern at the disproportionate use of stop and search powers against ethnic minorities. It called for full implementation of the decision to record all use of such powers.92 In addition, whilst welcoming initiatives to increase ethnic minority representation in the police force, the UN Committee encouraged the UK to adopt further measures in this regard.93 It also expressed its continued concern in relation to deaths in custody and the levels of ethnic minority deaths in the custody of the State.94 This is an area which has been a particular concern of the Joint Committee on Human Rights, and which we considered in our inquiry into Deaths in Custody.95

Policing

65. Home Office research has confirmed the disproportionate use of stop and search powers against ethnic minorities, with black people six times more likely, and Asian people twice as likely, to be searched by police as white people.96 In her recent evidence as part of the House of Commons Home Affairs Committee inquiry into Terrorism and Community Relations,97 Hazel Blears MP, Minister at the Home Office, acknowledged that dealing with the current terrorist threat “inevitably means that some of our counter-terrorist powers will be disproportionately experienced by people in the Muslim community”.98

66. The UN Committee’s immediate concern about recording of stop and search by ethnicity will be met in April 2005, when the recording of stop and search will come into force for all police forces. Nevertheless, significant concerns remain, in particular in the present situation where police powers are used to combat a terrorist threat identified with certain minority communities.

67. The Race Relations (Amendment) Act 2000, which introduced a positive duty on public authorities, including police forces, to promote race equality and good race relations, and under which police forces are required to draw up a race equality scheme, provides a basis for addressing this problem. A CRE investigation into race equality in the police service found that only one of the 15 police forces surveyed had adequate race equality schemes in place. The CRE’s final report concluded that serious problems


93 ibid., para. 18

94 ibid.


96 Home Office, Statistics on Race and the Criminal Justice System–2003, 2004; Ev 70; Ev 25; Ev 46: all highlighted evidence of the discriminatory use of stop and search.

97 The inquiry is considering evidence on the impact of the threat of terrorism on community relations and social cohesion, including the impact on relations between different sections of the community, any rise in and exploitation of racial tension, and the stigmatisation of minority groups publicly associated with terrorism: Home Affairs Committee Press Notice, Session 2003-04, 21 July 2004

98 Evidence to Home Affairs Committee, 1 March 2005, Hazel Blears MP, Q 474


remained, and makes a series of recommendations on training and monitoring designed to strengthen police forces’ compliance with the race equality duty.99

68. The Government’s Race Equality and Community Cohesion Strategy acknowledges the problem, and states the Government’s intention to establish a new Community Panel to scrutinise the use of Stop and Search powers.100 The Strategy also commits the Government to “introduce a new statutory duty on police authorities to promote diversity within their forces and ensure that assessment and selection panels are more representative of the Black and minority ethnic communities they serve” and to “provide better support and training for prison officers and those managing the Criminal Justice System locally to help them address discrimination and serve all communities equally.” In addition, a draft Stop and Search manual has been produced and consulted on, which aims to increase confidence in the application of stop and search powers against minority communities.101 The draft manual sets out recommendations to police forces on training, development and review of non-discrimination policy and consultation with communities.

69. We particularly support further training for police officers. The need for such training emerged very clearly from our inquiry into deaths in custody, and was emphasised in our recommendations in that report.102 The UN Committee, in General Recommendation 13, has also emphasised the importance of training for law enforcement personnel.103

70. We welcome the Government’s intention to introduce statutory duties to promote diversity within police forces, which addresses the UN Committee’s recommendation that further steps should be taken in this regard. Existing statutory duties under the Race Relations Act 2000, to prevent discrimination and promote equality and good race relations, are also potential cornerstones of non-discriminatory policing, which, if implemented, would go a considerable way to addressing the UN Committee’s concerns. We note, however, that there have been practical difficulties in implementing policy on ethnic minority recruitment to the police. The Association of Chief Police Officers (ACPO) recently warned that although “progress has been made on increasing the proportion of ethnic minority officers … this is still too slow and for some forces … the existing race employment targets are unachievable”.104

71. We recommend that, within the Race Equality and Community Cohesion Strategy, high priority should be given to the development of effective police force race equality schemes. We particularly welcome the Strategy’s commitment to police training in equality, and recommend that this should be given high priority.

99 Commission for Racial Equality, The Police Service of England and Wales: Final Report of a Formal Investigation, 8

March 2005

100 Improving Opportunity, Strengthening Society, para. 4

101 Q 75. Home Office, Stop and Search Draft Manual, 26 January 2005


103 “The UN Committee stated that, to ensure that public authorities did not discriminate on grounds of race, law enforcement authorities should receive intensive training “to ensure that in the performance of their duties they respect as well as protect human dignity and maintain and uphold the human rights of all persons without distinction as to race, colour or national or ethnic origin” General recommendation 13 HRI/GEN/1/Rev.5 p.183

104 ACPO statement in advance of the CRE report into the investigation of the Police Service, 7 March 2005


Deaths in Custody

72. Deaths in custody have been the subject of a major inquiry by the JCHR, the final report of which was published in December 2004.105 The Government response to our report was published in March 2005.106 In our Report on Deaths in Custody, we noted that whilst the number of ethnic minority deaths in custody were not disproportionate, some evidence suggested a higher rate of violent death in custody for ethnic minority detainees. We raised a number of race equality concerns, in particular in relation to the apparent disproportionate use of control and restraint against ethnic minority detainees in police custody and mental health detention. We recommended, in particular, that training programmes should be further developed to ensure that training in cultural awareness was provided to all those who might be involved in the use of restraint against people in detention. We also recommended that an inter-departmental task force be established to address deaths in all forms of State custody. The Government response to our report undertook to give further consideration to this proposal, and we await a final response to this recommendation.

Detention without trial

73. Concerns were raised in the Committee’s Concluding Observations regarding the discriminatory effect of detention without trial under Part 4 of the Anti-Terrorism Crime and Security Act 2001. We made our views on the human rights implications of detention under Part 4 clear in a series of reports, in which we concluded that the UK’s derogation from Article 5 ECHR (the right to liberty) and the powers to detain non-nationals only under the 2001 Act were unlikely to be human rights compliant.107 In a decision of December 2004, the House of Lords found Part 4 of the Anti-Terrorism Crime and Security Act to be incompatible with rights under the European Convention on Human Rights, including freedom from discrimination on grounds of nationality under Article 14 ECHR. Lord Bingham in his judgement in that case also considered, relying inter alia on the Concluding Observations of the CERD committee, that the detention provisions were likely to be in breach of CERD. In the wake of the House of Lords decision on Part 4, the government introduced further emergency legislation, the Prevention of Terrorism Bill, replacing indefinite detention in prison with a system of control orders which include powers of house arrest. The Prevention of Terrorism Act 2005 applies irrespective of nationality, although some concerns have been raised that its application in practice may lead to discrimination and may damage race relations. We reported our views on the human rights compatibility of the new legislation in our Ninth and Tenth Reports of Session 2004–05.108


106 Eleventh Report of Session 2004–05, Government Response to the Third Report from the Committee: Deaths in Custody, HL Paper 69, HC 416

107 Second Report of Session 2001–02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372; Fifth Report of Session 2001–02, Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 51, HC 420; Eighteenth Report of Session 2003–04, Review of Counter-terrorism Powers, HL Paper 158, HC 713

108 Ninth Report of Session 2004–05, Prevention of Terrorism Bill: Preliminary Report, HL Paper 61, HC 389; Tenth Report of Session 2004–05, Prevention of Terrorism Bill, HL Paper 68, HC 334


5 Discrimination in immigration

The Race Relations Acts

74. The Race Relations (Amendment) Act 2000 extended the application of race discrimination legislation to cover immigration functions. It did not apply the full protection of the legislation to immigration, however. Under the Race Relations Act 1976, racial discrimination is defined as including discrimination on the basis of colour, race, nationality or ethnic or national origins” (section 3(1)). The 2000 Act inserted into the 1976 Act section 19 D, allowing for an exception to the duty of non-discrimination, where the discrimination is on the basis of national or ethnic origin; arises in the discharge of immigration functions; and has been authorised by a Minister either in relation to a specific case, or generally by way of primary or secondary legislation.

75. A number of authorisations have been made under section 19D. A general authorisation allows for discrimination in the examination of passengers of a particular, listed nationality where there is evidence of a pattern of abuse, or high levels of adverse decisions against that nationality.

Nationality discrimination under CERD

76. The CERD Committee concluded that section 19D is “incompatible with the very principle of non-discrimination” and recommended its repeal, in order to ensure compliance with CERD.109

77. Article 1 of CERD defines racial discrimination as including discrimination based on national origin, but does not expressly refer to discrimination on the basis of nationality. It expressly excludes from the definition, under Article 1.3, legal provision regarding nationality, citizenship or naturalisation, provided that such provisions do not discriminate against a particular nationality.

78. The guarantee of non-discrimination under Article 26 ICCPR may however be applied to discrimination on the basis of nationality. General Recommendation No 11 affirmed that Article 1(2) CERD should not be interpreted to detract in any way from the rights guaranteed in other human rights instruments such as the ICCPR in regard to discrimination on the basis of nationality.110 General Recommendation 30111 reaffirmed this, and stated that, aside from the exception in Article 1.3, “under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.” Under the ECHR, nationality is also regarded


110 General Recommendation No 11: Non-citizens (Article 1) 19/03/93

111 General Recommendation 30: Discrimination Against Non-citizens, CERD/c/64/Misc.11/rev.3


as a “suspect ground” of discrimination, which will require “very weighty reasons” to be justified under Article 14 ECHR.112

The effect of section 19D

79. The CRE raised concerns at the use of section 19D authorisations, pointing out that it had been the understanding, during the passage of the Race Relations (Amendment) Act 2000 through Parliament, that such authorisations would be used only rarely, and principally to discriminate in a positive way in favour of particularly vulnerable groups.113 In practice, such authorisations were rarely if ever used on humanitarian grounds, and could impact on good race relations.114

80. Section 19D has also been called into question, though not directly affected, by a recent decision of the House of Lords. In December 2004, the House of Lords found, in R v Immigration Officer at Prague Airport ex parte European Roma Rights Centre,115 that a policy of greater scrutiny of Roma as opposed to non-Roma passengers travelling to the UK from Prague Airport was discriminatory, and therefore in breach of both the Race Relations Act 1976 and the UK’s international obligations, including obligations under CERD. Although the operation at Prague Airport did not take place under the section 19D authorisations, the House of Lords considered that immigration officials’ application of the policy had been influenced by the 19D authorisation in respect of Roma. It follows from the House of Lords judgment that, even if the discrimination had been authorised under section 19D, it would have been in breach of CERD.

81. In written evidence, JUSTICE expressed particular concern in relation to two authorisations under section 19D, made in February 2004, which allow for discrimination against nationals of Somalia, Turkey, Iran, Iraq and Sudan. JUSTICE questioned the basis for the discrimination against these nationalities, noting that, for example, “data for 2003 … shows that whilst 64% of initial decisions against Somalis were refused, 38 per cent of appeals were allowed”.116

82. There is real concern that authorisations under section 19D are having a deeper discriminatory effect beyond the procedural discrimination they allow. The Independent Race Monitor, appointed under the Race Relations (Amendment) Act 2000 to monitor the effects of ministerial authorisations under section 19D, concluded in her last Annual Report that “it is difficult to escape the conclusion that passengers from certain nationalities with a record of immigration abuse are less likely to be given the benefit of the doubt when compared with passengers from countries with a good record”.117 She continued: “What in some nationalities is viewed with scepticism will be accepted in other nationalities. To this extent the use of information on adverse decisions and abuse becomes self-reinforcing. Immigration Officers check nationals from the most-adverse countries

112 Gaygusuz v Austria [1996] 23 EHRR 364

113 Q 11

114 Q 11

115 [2004] UKHL 56

116 Ev 70

117 Annual Report 2003/2004 of the Independent Race Monitor, Mary Coussey, 22 July 2004


more closely, and are more likely to doubt the reasons given for entry”.118 This “case hardening”119 against particular groups was also noted by the House of Lords in their judgments in the Prague Airport case.

83. Article 2(1)(c) of the Convention commits states to repealing or amending laws which have the effect of creating or perpetuating racial discrimination, and concerns about the discriminatory impact of section 19D have been affirmed by the judgment of the House of Lords. In our view there is a real concern that the use of section 19D will erode the equal treatment of certain national and ethnic groups both in the immigration service and more widely. We consider that authorisations under section 19D are likely to breach the UK’s obligations under CERD. We therefore recommend that the Government should consider the repeal of the section, in accordance with the UN Committee’s recommendation.

118 ibid., para. 34

119 Q 11


6 Prohibition on racist activities and incitement

Article 4 CERD

84. Article 4 of CERD commits states to taking measures to combat incitement to racial hatred and racial discrimination. Article 4(a) requires States to criminalise the dissemination of racist ideas, incitement to racial hatred or discrimination, and the provision of any assistance to racist activities. Article 4(b) provides that States Parties shall “declare illegal and prohibit organisations and also all organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law.” Article 4(c) prohibits the promotion of or incitement to race discrimination by public authorities.

85. Obligations under Article 4 require a difficult balance to be struck between freedom of expression and assembly—protected under the Human Rights Act by Articles 10 and 11 ECHR as well as under the ICCPR—and the positive obligation on the State to prevent race discrimination. With this balance in mind, the UK has entered an “interpretative declaration” to Article 4.120 The UK’s declaration states that the UK—

interprets Article 4 as requiring a party to the Convention to adopt further legislative measures in the fields covered by sub-paragraphs (a), (b) and (c) of that Article only in so far as it may consider with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention (in particular the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association) that some legislative addition to or variation of existing law and practice in those fields is necessary for the attainment of the end specified in the earlier part of Article 4.

86. The UN Committee has repeatedly stated its view that the right to freedom of expression does not prevent the UK from proscribing racist organisations or from criminalising racist speech. The Concluding Observations re-stated the UN Committee’s view that the UK’s interpretation of Article 4 was unduly restrictive, and stressed that the Article 4 obligation was a mandatory one.121

87. The disagreement as to the interpretation of Article 4 between the UK and the UN Committee arises principally in relation to the criminalisation of organisations, rather than the criminalisation of incitement to racist action or speech. Under Part 3 of the Public Order Act 1986, incitement to racial hatred is a criminal offence. The Serious Organised Crime and Police Bill, currently before Parliament, seeks to strengthen these provisions, in order to allow for more effective prosecution of these offences, which have so far resulted in very few prosecutions. The Bill would amend the legislation so that the offence is now committed if the material inciting (and intended to incite) racial hatred is likely, rather

120 An interpretative declaration is a statement made on ratification of a treaty which clarifies the State Party’s

understanding of its obligations under the treaty provision, but falls short of a reservation to the treaty’s terms.

121 Concluding Observations, para. 12. The mandatory nature of the Article 4 obligation is stated in CERD General Recommendation 15


than certain, to be seen or heard by a person in whom it would be likely to stir up racial hatred.122

88. Article 4 requires not only that activity inciting racial hatred, violence or discrimination should be criminalised, but also that the criminal law should be effectively enforced.123 The Government’s Race Equality and Community Cohesion Strategy commits it to “step up work to reduce racially motivated incidents” including by improving police practice in handling reports of racist incidents; improving the reporting of racially motivated incidents; ensuring vigorous prosecution of racially aggravated offences, including through involvement of community representatives in scrutinising prosecution decisions; reducing racist re-offending through behavioural programmes for offenders; and enhancing support for victims and witnesses.124

Freedom of Expression and Assembly

89. It is clear that the right to freedom of expression under Article 10 ECHR does not prevent the criminalisation of racist speech, although such measures must be kept within necessary limits. In Jersild v Denmark 125 the ECtHR held that the need to combat racism is a legitimate reason for limiting freedom of expression, as long as the limitation is proportionate to the aim. In reaching that decision, the Court interpreted Article 10 ECHR in the light of Article 20 ICCPR, and of Article 4 of CERD.126 On the facts of the case in Jersild, however, the prosecution of journalists who had merely broadcast the racist views of others as a contribution to debate was a disproportionate interference with Article 10 rights.

90. The criminalisation of organisations which incite hatred (rather than the individual acts of such organisations) may be more problematic. In United Communist Party v Turkey,127 Article 11 ECHR (which protects freedom of association and freedom of assembly) was found to be breached where a political party was dissolved on the grounds that its position on the status of Kurdistan threatened the State’s territorial integrity. It appears from Refeh Partisi v Turkey,128 however, that the dissolution of a political party will be justified, where it advocates a system of government incompatible with the idea of human rights, or where the leaders of the party incite violence.129

91. Two of those submitting evidence considered that the UK’s interpretation of Article 4 should be reconsidered.130 The 1990 Trust considered that at least some organisations should be criminalised.131 Others were doubtful about the desirability or practicality of criminalising organisations, and also doubted the necessity of doing so, if legislation

122 Clause 119 and Schedule 10 paras. 5–9

123 General Recommendation 15, HRI/GEN/1/Rev.5 p.184

124 Improving Opportunity, Strengthening Society, para. 22

125 (1994) 19 EHRR 1 at para. 30

126 See further, Fourth Report of Session 2004–05, Scrutiny: First Progress Report, HL Paper 126, HC 224, paras. 1.119–1.130

127 (1998) 26 EHRR 121

128 (2003) 37 EHRR 1

129 para. 98

130 Ev 33 and Ev 84

131 Q 61


criminalising incitement to racial, and—potentially, under legislation currently before Parliament—religious hatred were effectively enforced.132 The Minister argued that there would be no advantage to race relations, community cohesion or race equality in removing the interpretative declaration to Article 4 and taking steps to criminalise organisations.133 The DLA also expressed concern that criminalisation of organisations could exacerbate pre-existing inter-community tensions.134

92. The balance between freedom of expression and protection from racial hatred needs to be carefully maintained. In our view, priority should be given to effective implementation of the legislation on incitement to racial hatred, rather than to the criminalisation of organisations.

Incitement to religious hatred

93. The UN Committee also expressed its concern in the Concluding Observations at the recent increase in anti-Islamic attacks, and recommended the criminalisation of offences motivated by religious hatred against immigrant communities.135

94. This recommendation is likely to be fully met by the Serious Organised Crime and Police Bill, which includes (clause 124 and Schedule 10) provisions to create new offences of incitement to religious hatred. We have set out our views on the human rights compatibility of that Bill in our First and Fourth Scrutiny Progress reports of 2004–05.136

132 Q 59

133 Q 65

134 Q 59


136 Fourth Report of Session 2004–05, Scrutiny: First Progress Report, HL Paper 26, HC 224; Eighth Report of Session 2004–05, Scrutiny: Fourth Progress Report, HL Paper 60, HC 388


7 Discrimination against Travellers

Introduction

95. The UN Committee specifically addresses the position of Gypsies and Travellers137 in its Concluding Observations, expressing concern at the discrimination they face, reflected in their higher child mortality rate, exclusion from schools, shorter life expectancy, poor housing conditions, lack of available camping sites, high unemployment rate and limited access to health services. It recommends that the Government should further develop dialogue with Gypsy and Traveller communities and that it should adopt national strategies and programmes to address discrimination against them.138 We support this recommendation.

96. Evidence to the UN Committee, as well as evidence presented to us, attests to the multiple discrimination faced by Gypsies and Travellers, and their exceptional level of social exclusion.139 Poor levels of health, even compared with other marginalised groups, high rates of infant mortality, and difficulties in accessing healthcare were cited in the evidence.140 Poor school attendance, low educational attainment and high levels of illiteracy were also referred to as particularly acute problems for Gypsy and Traveller children.141

97. The anti-discrimination duties on public authorities under the Race Relations Act and the Race Relations (Amendment) Act 2000 encompass Gypsies and Irish Travellers, recognised as ethnic minorities in 1989 and 2000 respectively.142 JUSTICE suggested that insufficient attention had been given to meeting the needs of Travellers under the 2000 Act duty on public authorities to positively promote equality.

98. A number of organisations highlighted to us the need for greater involvement of Gypsies and Travellers in decision making. The Children’s Society stressed “the need for Traveller children to be involved and consulted in the development of polices that will address their rights and needs”.143 The Audit Commission pointed to the need for public bodies to develop better engagement with Gypsy and Traveller communities, in order to better understand and address their needs.144 The Gypsy and Traveller Law Reform Coalition (G&TLRC) proposed a “taskforce to involve the Gypsy and Travelling community in any future policy or decision-making” to ensure that the community was fully involved in decision making.145 They also pointed to the difficulties of responding to consultations by local authorities, due to the limited resources of many Gypsy and

137 The term Gypsies and Travellers is used in this report to refer to Gypsies (Roma) and Irish Travellers, as well as other

nomadic Travellers.


139 See also The Select Committee on the Office of the Deputy Prime Minister, Thirteenth Report of Session 2003–04, Gypsy and Traveller Sites, HC 633

140 Ev 70; Ev 63, citing Parry G, Van Cleemput P, Peters J, Moore J, Walters S, Thomas K and Cooper C, The Health Status of Gypsies and Travellers in England, University of Sheffield 2004; Ev 46

141 Ev 70 and Ev 63

142 CRE v Dutton [1989] 1 All ER 306; O’Leary v Allied Domecq, 29/8/2000, CL 950275

143 Ev 46

144 Ev 29

145 Q 36


Traveller community groups. We recommend that greater community involvement should be pursued and facilitated in the context of the Race Equality and Community Cohesion Strategy. At local level, Gypsy and Traveller groups and local authorities should co-operate to facilitate greater community response to consultations.

99. In our view, the difficulties faced by Travellers in accessing essential healthcare and education services are likely to raise issues under Article 5(e) of CERD, by which the State undertakes to guarantee equal protection of rights including rights to public health, medical care, social security and social service (Article 5(e)(iv));146 and rights to education and training (Article 5(e)(v)).147

Accommodation

100. It is unequal access to adequate and culturally appropriate accommodation, however, which lies at the root of many of the inequalities that face Gypsies and Travellers.148 In their evidence to us, the Gypsy and Traveller Law Reform Coalition (G&TLRC) emphasised the consequences of insecurity of tenure for the health and education of Travellers, and the Children’s Society testified to the detrimental impact which eviction and the lack of secure sites had on the welfare of Traveller children.149

101. There is no longer a statutory obligation on local government to provide accommodation for Travellers. Such an obligation did exist under the Caravan Sites Act 1968, but was subsequently removed by the Criminal Justice and Public Order Act 1994. Under changes made by the Housing Act 2004, in section 225, local housing authorities (LHAs) are required to review the accommodation needs of Gypsies and Travellers in their areas. In addition, the Secretary of State (and the National Assembly for Wales) are expected to require LHAs to prepare and supply a strategy for meeting the accommodation needs of Gypsies and Travellers in their areas. As a result of the ODPM’s policy review of Gypsy and Traveller accommodation, a number of measures have been taken to address accommodation needs of Travellers. Under a new draft circular, Regional Spatial Strategies will be put in place to provide Traveller sites.

102. The House of Commons Select Committee on the Office of the Deputy Prime Minister, in a Report on Gypsy and Traveller Sites published in November 2004, estimated that over 3,500 Gypsies and Travellers, 20% of the Travelling community, have no legal place where they can stop their caravans. These caravans are therefore on unauthorised encampments and their occupants are defined as homeless under the Housing Act 1996. In addition, these encampments are often a source of tension between Gypsies/Travellers and

146 In its General Recommendation on Roma, the UN Committee recommends that States should initiate and implement

programmes and projects in the field of health for Roma, having in mind their disadvantaged position and cultural differences: para. 34. General Recommendation No 27: Discrimination Against Roma, 16/08/2000

147 Issues are also likely to be raised under the International Covenant on Economic, Social and Cultural Rights, Articles 9, 11, 12 and 13 ICESCR, read with the prohibition on discrimination in relation to these rights under Article 2.2.

148 General Recommendation No 27: Discrimination Against Roma, 16/08/2000 where it was recommended that States take necessary measures for offering nomadic Roma camping places with all necessary facilities (para. 32).

149 Q 46; Ev 46


the settled community.150 The G&TLRC state in their evidence that in England there is a shortage of 4,500 transit and residential pitches.151

103. The ODPM Select Committee recommended that the Government should reintroduce a statutory requirement for local authorities to provide sites for accommodation of Gypsies and Travellers in their areas. The G&TLRC also considered this essential, and told us that, without a statutory obligation to provide accommodation, local authorities were unlikely to take action to provide for the needs of their community.152 In light of the inequalities in the provision of accommodation for Travellers as compared to accommodation for the settled community we support the need for a statutory duty on local authorities to provide or facilitate the provision of accommodation, in order to fulfil the State’s obligations under CERD, in particular under Article 2.2 (positive measures to ensure equality for ethnic groups) and Article 5(e)(iii) (equality in housing).

Temporary Stop Notices

104. During the passage of the Planning and Compulsory Purchase Bill in Session 2003–2004, we raised with the Government the ECHR compatibility of the provision for temporary stop notices, which allow a local planning authority, where it considers that there has been a breach of planning control in relation to any land, to issue a notice requiring that the offending activity taking place on the land should cease immediately. A temporary stop notice continues in force for 28 days, during which time it is an offence to continue with the proscribed activity. The Act contains an exception to the effect that a temporary stop notice cannot prohibit the use of a building as a dwelling house. This does not, however, prevent a notice prohibiting the use of a caravan as a dwelling, and therefore has a potentially discriminatory impact on Travellers.

105. During the passage of the Bill through Parliament, we expressed the concern that temporary stop notices might lead to breach of Article 14 ECHR, read in conjunction with Article 1 of Protocol 1 ECHR.153 We were assured by the Government that “it is the Government’s clear intention not to commence the temporary stop notice provisions until regulations are in place that will condition their use with regard to persons living in caravans, with the intention that they will have similar protection to those who live in dwelling houses” and that therefore the use of temporary stop notices would not discriminate. We concluded by expressing the provisional view that “the regulations, if appropriately drafted, would be capable of minimising the risk [of incompatibility]”.154

106. Subsequently, the Government has adopted a different approach. In November 2004, it was announced that in some circumstances local planning authorities would have power to issue a stop notice in respect of caravans.155 Regulations have now been made to this

150 ODPM Committee, Thirteenth Report of Session 2003–04, op cit.

151 Ev 63

152 Q 34

153 Eighth Report of Session 2003–04, Scrutiny of Bills: Third Progress Report, HL Paper 49, HC 427

154 Tenth Report of Session 2003–04, Scrutiny of Bills, Fourth Progress Report, HL Paper 64, HC 503

155 HL Deb., 29 November 2004, col. WS13


effect.156 Under the Regulations, a temporary stop notice may be issued in respect of a caravan which is a person’s main residence where “the local planning authority consider that the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious as to outweigh any benefit, to the occupier of the caravan, in the stationing of the caravan for the period for which the temporary stop notice has effect”.157 We are concerned that the approach which the government adopted during Parliament’s consideration of this Bill has now been altered in a way which may have significant human rights implications.

107. In oral evidence, the G&TLRC told us that stop notices have in practice been used in a discriminatory way, aimed disproportionately at Gypsies and Travellers.158 We are concerned that the differential treatment of the homes of Travellers permitted by the regulations risks breach both of obligations under CERD (in particular Article 2.1(a) and Article 5(e)(iii))and of Article 14 ECHR read with Article 1 of Protocol 1 ECHR.

Security of tenure

108. Under the Mobile Homes Act 1983, section 5(1), local authority Traveller sites are exempt from its protection and the requirement that eviction be on the basis of a court order. In the case of Connors v UK, the European Court of Human Rights found that the summary eviction of the applicants from a Gypsy site, without reasoned justification or sufficient procedural safeguards, breached the right to respect for private life and the home under Article 8 ECHR.

109. Following Connors v UK,159 we wrote to the Office of the Deputy Prime Minister recommending that this incompatibility be rectified by way of the Housing Bill then before Parliament, by an amendment to the Mobile Homes Act 1983 to bring local authority Gypsy sites within the meaning of “protected site” under that Act.160 Amendments were made to the Bill in response to the ECtHR judgment, however the equal protection of the Mobile Homes Act was not extended to local authority Gypsy sites. Instead, section 209 of the 2004 Act extends the meaning of protected site in the Caravan Sites Act 1968 to include sites owned by County Councils providing accommodation for Gypsies, and section 211 allows the courts a discretion, under section 4 of the Caravan Sites Act 1968, to suspend the enforcement of eviction orders from local authority caravan sites, for up to 12 months.

110. Whilst we welcome these amendments to the Bill,161 they are not, as the government acknowledges,162 sufficient in themselves to remedy the incompatibility identified by the ECtHR, and do not amount to full security of tenure such as would be provided by application of the Mobile Homes Act 1983. The Caravans Sites Act, although it allows

156 Town and Country Planning (Temporary Stop Notice) (England) Regulations 2005, SI 2005 No 206

157 ibid, para. 2

158 Q 43

159 (2005) 40 EHRR 9

160 Twentieth Report of Session 2003–04, Scrutiny of Bills, Eighth Progress Report, HL Paper 182, HC 1187, para. 3.3

161 Twenty-third Report of Session 2003–04, Scrutiny of Bills: Final Progress Report, HL Paper 210, HC 1282

162 See the letter from Rt Hon Keith Hill MP, published in our Twenty-third Report of Session 2003–04, op cit., Appendix 2c: the Government considers that the amendments “go some way” towards remedying the incompatibility, but is also considering additional measures following Connors.


suspension of enforcement of an eviction order,163 nevertheless permits termination of a contract to remain on a caravan site, on four weeks’ notice.164 Under the Mobile Homes Act, a contract can be terminated only in defined circumstances, where the court is satisfied that the occupier of the site has breached a term of the agreement, and has failed to comply with a notice to remedy the breach, and the court thinks it reasonable that the agreement should be terminated;165 or where the mobile home is not a main residence;166 or where the condition of the mobile home is having or is likely to have a detrimental effect on the amenity of the site.167

111. The government has stated that it is considering further implementation measures, in order to address the incompatibility identified in Connors, including through the Law Commission’s review of rented tenure.168 We look forward to further implementing measures, and recommend that, in order to ensure compliance with both rights under Article 8 and Article 14 ECHR, and with equality rights under Article 2 and Article 5(e)(iii)of CERD, local authority Gypsy and Traveller sites should be brought within the protection of the Mobile Homes Act 1983.

Unauthorised encampments

112. The Anti-Social Behaviour Act 2004 (section 60) empowers the police to direct those trespassing on land, residing there and having more than one vehicle on the land to move to an alternative vacant site. In its written evidence, the G&TLRC raised concerns that this legislation will be used to move Travellers to unsuitable sites, and will lead to Travellers frequently moving between local authority areas, thus deepening social exclusion. In Northern Ireland a proposed Draft Unauthorised Encampments (NI) Order 2004 makes similar provision, and has raised human rights concerns.169 The NIHRC pointed out that the legislation, though not expressly directed at Travellers “will have an adverse effect almost exclusively on the rights of one minority, namely the Traveller community”. It considers that, in Northern Ireland, given the lack of authorised transit sites, the provision effectively criminalises the Traveller community.170

113. In our scrutiny of the Anti-Social Behaviour Bill during its passage through Parliament, we raised concerns that these provisions gave rise to a significant risk of incompatibility with ECHR rights, in particular the right to respect for private life and the right to peaceful enjoyment of possessions.171 We reiterate that concern here. We also consider that, given the disproportionate impact of the measures on the Gypsy and Traveller community, there is a significant risk that they could be implemented in a way that is indirectly discriminatory in breach of CERD. These considerations should

163 Section 3(1)(b) and section 4(1)

164 Section 2

165 Section 4

166 Section 5

167 Section 6

168 Letter from Rt Hon Keith Hill MP, published in our Twenty-third Report of Session 2003–04, op cit., Appendix 2c

169 Ev 84; Ev 61

170 Ev 84

171 Fifteenth Report of Session 2002–03, Scrutiny of Bills and Draft Bills: Further Progress Report, HL Paper 149, HC 1005, paras. 1.8–1.9


be central to implementation of these powers, the application of which should be monitored to ensure against discrimination.

The Reporting Process

114. The reporting process provides a vital link between domestic policy and legal debates on race equality, and the international human rights standards for protection against discrimination which the UK has accepted. The Government puts considerable effort into reporting to the UN Committee under the onerous reporting requirements which necessitate a report on compliance with the Convention every two years. Indeed, the UK delegation was commended by the UN Committee for the detailed information it provided for the last reporting round.172 But, as we have pointed out in relation to other reporting processes under UN treaties, this work will only have tangible benefits if it is integrated into the development of domestic law and policy, and involves those who are active in the domestic equality debate. Consultation throughout the process, and wide publicity for it, are therefore important.

The role of Equality and Human Rights Commissions

115. It is important that the CRE and the Northern Ireland Equality Commission, the NIHRC, and the CEHR and the Scottish HRC when established, should be kept informed about the reporting process throughout. The commissions have a role to play in providing independent commentary on both the state report and the Concluding Observations, in providing information to the UN committee, and in providing information and facilitating debate on the Convention and its implementation. The new combined Commission for Equality and Human Rights, when it is fully established, will be very well placed, with competence and expertise in both domestic race equality law and international human rights law, to contribute to the reporting process under CERD. There is also a valuable role for the new Commission to play in providing public information on CERD and on the reporting process.

The Role of NGOs

116. NGOs have played an important role in the UK reporting process under CERD, with a shadow UK report to the CERD committee produced by a coalition of NGOs, and a significant number of organisations attending the CERD hearings in Geneva to contribute to the discussions there.

117. A number of NGOs involved in the race equality field expressed dissatisfaction with the procedures for preparation of the report, and for consultation with interested parties. The 1990 Trust considered the consultation procedures to have been unsatisfactory.173 The DLA noted that the consequence of this was a low profile nationally for the scrutiny undertaken by CERD and the issues it raised about race equality in the UK.174 The


173 Q 48

174 Q 48


Children’s Law Centre and Save the Children Northern Ireland considered that there had been inadequate Northern-Ireland specific information in the UK report under CERD.175

118. Ms Mactaggart assured us that the Home Office was open to including NGOs and others in the process, and was actively seeking to do so. We welcome such work as has been done to involve non governmental organisations in the reporting process under CERD, and hope that this can be built upon and made more inclusive, in particular through publicity for the reporting process, to allow for the widest possible participation and debate.

Follow-up of the Concluding Observations

119. Some NGOs presenting evidence also considered there was a lack of very active follow-up to the CERD Concluding Observations, despite the UK’s claims to pre-eminence in advancing the legal protection of race equality.176

120. The regular meetings of the Department for Constitutional Affairs’ NGO human rights forum have provided a means of discussing the response to concluding observations arising from the reporting processes under a number of the UN treaties. Following the CERD committee’s Concluding Observations in 2003, Home Office officials attended a meeting of a sub-group of the forum, to discuss how the CERD Concluding Observations should be taken forward. Ms Mactaggart suggested that this might provide a starting point for engaging with civil society in responding to the Concluding Observations.177 We welcome the Government’s willingness to engage with interested organisations in the follow-up to the Concluding Observations.

121. Discussions with NGOs, however, are not in themselves a substitute for a government commitment to address legal and policy matters to ensure compliance with the Convention, in response to the Concluding Observations. The NIHRC considered that: “It would be fitting for Government to make a public and widely circulated statement outlining exactly how it intends to respond to the concerns and recommendations of Committees, and to take an inter-departmental approach in positively addressing those concerns and recommendations in close consultation with relevant non-governmental organisations and statutory agencies”.178 It proposes that, following the conclusion of the reporting process, the Government should work towards the development of an action plan to address the concerns raised.179

122. In our view, the Government should publish a response to the Concluding Observations at an early stage after their publication. The response should indicate which of the Concluding Observations the Government accepts, and how it intends to act to implement them, as well as indicating which it does not accept, giving reasons. This should form the basis of dialogue with Parliament, with relevant civil society organisations, as well as allowing for a wider public debate.

175 Ev 46

176 Q 49

177 Q 63

178 Ev 84

179 ibid.


Formal Minutes

Wednesday 16 March 2005

Members present:

Jean Corston MP, in the Chair

Lord Bowness Lord Campbell of Alloway Baroness Falkner of Margravine Lord Judd Lord Plant of Highfield Baroness Stern

Mr David Chidgey MP Mr Kevin McNamara MP Mr Paul Stinchcombe MP Mr Shaun Woodward MP

The Committee deliberated.

* * * * *

Draft Report [The Convention on the Elimination of Racial Discrimination], proposed by the Chairman, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 122 read and agreed to.

Resolved, That the Report be the Fourteenth Report of the Committee to each House.

Ordered, That certain papers be appended to the Report.

Ordered, That the Chairman do make the Report to the House of Commons and that Baroness Stern do make the Report to the House of Lords.

[Adjourned till Wednesday 23 March at Four o’clock.


Oral Evidence

Page

Wednesday 19 January 2005

Mr Anthony Robinson, Director of Legal Services, Ms Razia Karim, Head of Legal Policy, Mr Nick Johnson, Director of Policy and Public Sector, Ms Sandy Pitcher, Head of Corporate and Parliamentary Affairs, Commission for Racial Equality Ev 1

Wednesday 26 January 2005

Ms Janie Codona and Mr Charles Smith, Gypsy and Traveller Law Reform Coalition Ev 8

Ms Ulele Burnham, Chair, and Mrs Barbara Cohen, Vice Chair, Discrimination Law Association, Mrs Audrey Adams, Human Rights Officer, and Mr Ruhul Tarafder, Campaigns Officer, The 1990 Trust Ev 11

Fiona Mactaggart, a Member of the House of Commons, Parliamentary Under Secretary of State, Mr Mark Carroll, Director of Race, Cohesion, Equality and Faith, and Mr Ian Naysmith, Senior Policy Adviser on European and International Issues, Race Equality Unit, Home Office Ev 16


List of Written Evidence

Government

1 Letter and Memorandum from Fiona Mactaggart MP, Minister for Racial Equality, Home Office Ev 23

Organisations

2 Memorandum from The 1990 Trust Ev 25

3 Memorandum from the Audit Commission Ev 29

4 Memorandum from Children’s Rights Alliance for England Ev 33

5 Memorandum from the Children’s Society Ev 46

6 Memorandum from the Commission for Racial Equality Ev 54

7 Supplementary memorandum from the Commission for Racial Equality Ev 57

8 Memorandum from the Committee on the Administration of Justice Ev 61

9 Memorandum from the Discrimination Law Association Ev 62

10 Memorandum from the Gypsy and Traveller Law Reform Coalition Ev 63

11 Memorandum from JUSTICE Ev 70

12 Memorandum from the Medical Foundation for the Care of Victims of Torture Ev 83

13 Memorandum from the Northern Ireland Human Rights Commission Ev 84

14 Memorandum from the Runnymede Trust Ev 90

15 Memorandum from Anne Dawson-Shepherd, Representative in the United Kingdom, United Nations High Commissioner for Refugees (UNHCR) Ev 91

Individuals

16 Memorandum from Mr Stephen Pattison Ev 94

Reports from the Joint Committee on Human Rights since 2001

The following reports have been produced

Session 2004–05 First Report Protocol No.14 to the European Convention on

Human Rights HL Paper 8/HC 106

Second Report The draft Criminal Justice Act 2003 (Categories of Offences) Order 2004

HL Paper 9/HC 107

Third Report Deaths in Custody: Volume I Report HL Paper 15-I/HC 137-I

Third Report Deaths in Custody: Volume II Oral and Written Evidence

HL Paper 15-II/HC 137-II

Fourth Report Scrutiny: First Progress Report HL Paper 26/HC 224

Fifth Report Identity Cards Bill HL Paper 35/HC 283

Sixth Report Scrutiny: Second Progress Report HL Paper 41/HC 305

Seventh Report Scrutiny: Third Progress Report HL Paper 47/HC 333

Eighth Report Scrutiny: Fourth Progress Report HL Paper 60/HC 388

Ninth Report Prevention of Terrorism Bill: Preliminary Report HL Paper 61/HC 389

Tenth Report Prevention of Terrorism Bill HL Paper 68/HC 334

Eleventh Report Government Response to the Third Report from the Committee: Deaths in Custody

HL Paper 69/HC 416

Twelfth Report Scrutiny: Fifth Progress Report HL Paper 77/HC 437

Thirteenth Report Scrutiny: Sixth Progress Report HL Paper 87/HC 470

Session 2003–04 First Report Deaths in Custody: Interim Report HL Paper 12/HC 134

Second Report The Government’s Response to the Committee’s Ninth Report of Session 2002–03 on the Case for a Children’s Commissioner for England

HL Paper 13/HC 135

Third Report Scrutiny of Bills: Progress Report HL Paper 23/HC 252

Fourth Report Scrutiny of Bills: Second Progress Report HL Paper 34/HC 303

Fifth Report Asylum and Immigration (Treatment of Claimants, etc.) Bill

HL Paper 35/HC 304

Sixth Report Anti-terrorism, Crime and Security Act 2001: Statutory Review and Continuance of Part 4

HL Paper 38/HC 381

Seventh Report The Meaning of Public Authority under the Human Rights Act

HL Paper 39/HC 382

Eighth Report Scrutiny of Bills: Third Progress Report HL Paper 49/HC 427

Ninth Report Naval Discipline Act 1957 (Remedial) Order 2004 HL Paper 59/HC 477

Tenth Report Scrutiny of Bills: Fourth Progress Report HL Paper 64/HC 503

Eleventh Report Commission for Equality and Human Rights Structure, Functions and Powers

HL Paper 78/HC 536

Twelfth Report Scrutiny of Bills: Fifth Progress Report HL Paper 93/HC 603

Thirteenth Report Scrutiny of Bills: Sixth Progress Report HL Paper 102/HC 640

Fourteenth Report Asylum & Immigration (Treatment of Claimants, etc.) Bill: New Clauses

HL Paper 130/HC 828

Fifteenth Report Civil Partnership Bill HL Paper 136/HC 885

Sixteenth Report Commission for Equality and Human Rights: The Government’s White Paper

HL Paper 156/HC 998

Seventeenth Report Scrutiny of Bills: Seventh Progress Report HL Paper 157/HC 999

Eighteenth Report Review of Counter-terrorism Powers HL Paper 158/HC 713

Nineteenth Report Children Bill HL Paper 161/HC 537

Twentieth Report Scrutiny of Bills: Eighth Progress Report HL Paper 182/HC 1187

Twenty-first Report The International Covenant on Economic, Social and Cultural Rights

HL Paper 183/ HC 1188

Twenty-second Report The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004

HL Paper 190/HC 1212

Twenty-third Report Scrutiny of Bills: Final Progress Report HL Paper 210/HC 1282

Session 2002–03

First Report Scrutiny of Bills: Progress Report HL Paper 24/HC 191

Second Report Criminal Justice Bill HL Paper 40/HC 374

Third Report Scrutiny of Bills: Further Progress Report HL Paper 41/HC 375

Fourth Report Scrutiny of Bills: Further Progress Report HL Paper 50/HC 397

Fifth Report Continuance in force of sections 21 to 23 of the Anti-terrorism, Crime and Security Act 2001

HL Paper 59/HC 462

Sixth Report The Case for a Human Rights Commission: Volume I Report

HL Paper 67-I HC 489-I

Seventh Report Scrutiny of Bills: Further Progress Report HL Paper 74/HC 547

Eighth Report Scrutiny of Bills: Further Progress Report HL Paper 90/HC 634

Ninth Report The Case for a Children’s Commissioner for England HL Paper 96/HC 666

Tenth Report United Nations Convention on the Rights of the Child

HL Paper 117/HC 81

Eleventh Report Criminal Justice Bill: Further Report HL Paper 118/HC 724

Twelfth Report Scrutiny of Bills: Further Progress Report HL Paper 119/HC 765

Thirteenth Report Anti-social Behaviour Bill HL Paper 120/HC 766

Fourteenth Report Work of the Northern Ireland Human Rights Commission

HL Paper 132/HC 142

Fifteenth Report Scrutiny of Bills and Draft Bills: Further Progress Report


Sixteenth Report Draft Voluntary Code of Practice on Retention of Communications Data under Part 11 of the Anti-terrorism, Crime and Security Act 2001


Seventeenth Report Scrutiny of Bills: Final Progress Report HL Paper 186/HC 1278

Eighteenth Report The Government’s Response to the Committee’s Tenth Report of Session 2002–03 on the UN Convention on the Rights of the Child


Nineteenth Report Draft Gender Recognition Bill Vol I: Report HL Paper 188-I/HC 1276-I

Nineteenth Report Draft Gender Recognition Bill Vol II: Evidence HL Paper 188-II/HC 1276-II

Session 2001–02

First Report Homelessness Bill HL Paper 30/HC 314

Second Report Anti-terrorism, Crime and Security Bill HL Paper37/HC 372

Third Report Proceeds of Crime Bill HL Paper 43/HC 405

Fourth Report Sex Discrimination (Election Candidates) Bill HL Paper 44/HC 406

Fifth Report Anti-terrorism, Crime and Security Bill: Further Report

HL Paper 51/HC 420

Sixth Report The Mental Health Act 1983 (Remedial) Order 2001

HL Paper 57/HC 472

Seventh Report Making of Remedial Orders HL Paper 58/HC 473

Eighth Report Tobacco Advertising and Promotion Bill HL Paper 59/HC 474

Ninth Report Scrutiny of Bills: Progress Report HL Paper 60/HC475

Tenth Report Animal Health Bill HL Paper 67/HC 542

Eleventh Report Proceeds of Crime: Further Report HL Paper 75/HC 596

Twelfth Report Employment Bill HL Paper 85/HC 645

Thirteenth Report Police Reform Bill HL Paper 86/HC 646

Fourteenth Report Scrutiny of Bills: Private Members’ Bills and Private Bills

HL Paper 93/HC 674

Fifteenth Report Police Reform Bill: Further Report HL Paper 98/HC 706

Sixteenth Report Scrutiny of Bills: Further Progress Report HL Paper 113/ HC 805

Seventeenth Report Nationality, Immigration and Asylum Bill HL Paper 132/ HC 961

Eighteenth Report Scrutiny of Bills: Further Progress Report HL Paper 133/ HC 962

Nineteenth Report Draft Communications Bill HL Paper 149 HC 1102

Twentieth Report Draft Extradition Bill HL Paper 158/ HC 1140

Twenty-first Report Scrutiny of Bills: Further Progress Report HL Paper 159/ HC 1141

Twenty-second Report

The Case for a Human Rights Commission HL Paper 160/ HC 1142

Twenty-third Report

Nationality, Immigration and Asylum Bill: Further Report


Twenty-fourth Report

Adoption and children Bill: As amended by the House of Lords on Report


Twenty-fifth Report Draft Mental Health Bill HL Paper 181/ HC 1294

Twenty-sixth Report Scrutiny of Bills: Final Progress Report HL Paper 182/ HC 1295

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