Response of the Northern Ireland Human Rights Commission to the Home Office consultation on the proposed Community Cohesion and Race Equality Strategy 1. The Northern Ireland Human Rights Commission (the Commission) is a statutory body created by the Northern Ireland Act 1998. It has a range of functions including reviewing the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights, 1 advising on legislative and other measures which ought to be taken to protect human rights, 2 advising on whether a Bill is compatible with human rights 3 and promoting understanding and awareness of the importance of human rights in Northern Ireland. 4 In all of that work the Commission bases its positions on the full range of internationally accepted human rights standards, including the European Convention on Human Rights (ECHR), other treaty obligations in the Council of Europe and United Nations systems, and the non- binding or soft law standards developed by the human rights bodies. 2. The Commission welcomes this opportunity to comment on the Community Cohesion and Race Equality Strategy (CCRES). In addition, of course, to the standards highlighted above, the Community Cohesion and Race Equality Strategy must be analysed and examined in light of the commitment made by the UK Government at the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) to producing a national action plan against racism (NAPAR). Indeed this Commission has been assured that while Government is not currently pursuing a separate national action plan against racism it is fully committed to implementing the outcomes of the Durban conference in a way that makes sense in the UK. 5 The impression given to this Commission has been that Government believes the CCRES may meet the requirements of a NAPAR as agreed to by the UK 1 Northern Ireland Act 1998, s.69(1). 2 Ibid, s.69(3). 3 Ibid, s.69(4). 4 Ibid, s.69(6). 5 Letter from Mark Carroll, Director of Race, Cohesion, Equality and Faith, 29 March 2004 1
Government under the Durban Programme of Action. That Programme of Action and the Durban Declaration will therefore inform this response. 3. In line with its statutory duty, this Commission has followed closely Government s undertakings in terms of implementing the Durban Programme of Action. The Commission has been represented at all the meetings of the steering group convened by the Home Office in order to take forward the development of a NAPAR. It was represented at the November 2002 Conference in Manchester where an initial draft of the NAPAR was circulated and in December 2003 a representative was sent to the UN hosted conference in Brussels, Implementing the Durban Programme of Action. The Commission also submitted a thorough response to Race Equality Strategy (RES) produced by the (Northern Ireland) Office of the First Minister and Deputy First Minister (OFMDFM). The RES has, through successive drafts, been described as intended to form the backbone of Northern Ireland s contribution to the NAPAR. The Human Rights Commission is represented on the Race Forum convened by OFMDFM which is tasked with progressing and monitoring the implementation of that Race Equality Strategy. 4. The Commission has made known its disappointment at the way in which Government has handled the entire process around developing and then shelving a NAPAR, and need not reiterate all the relevant points here. However, because of the very real impact this may have on ethnic minorities in Northern Ireland, it is necessary to repeat its concerns regarding the level of co-ordination between the Northern Ireland Administration and the Home Office. The Commission was assured that proper consideration would be given to Northern Ireland s circumstances in terms of devolved and nondevolved matters. The Commission has repeatedly asserted the importance of such co-ordination to address the particular experience of minority ethnic communities in Northern Ireland. It must be noted that this is a region where individuals were provided with no legislative protection against discrimination on grounds of race until 1997, and it is still a region without the protections provided for in Great Britain through the Race Relations (Amendment) Act 2000. Unfortunately it appears as though the needs, and indeed the presence, of minority ethnic communities in Northern Ireland have often been overlooked by central Government. 5. The Commission notes the reference to Northern Ireland in the CCRES paper: We need to ensure that the delivery mechanisms that are put in place reflect the particular challenges and constitutional arrangements that apply in England, Scotland, Wales and Northern Ireland. This will be a strategy for Great Britain and will apply in Northern Ireland only to those matters that are reserved or excepted under the provisions of the Northern Ireland Act 1998. It acknowledges that racial equality and community relations are matters for the Northern Ireland Administration, which is developing strategies for racial equality and community relations. 2
6. Despite this reference, there is little indication in the document as a whole or in Government s actions since circulating the document that appropriate attention has been or will be given to the particular circumstances of Northern Ireland. The Commission must take issue with the process through which both the CCRES and Northern Ireland s Race Equality Strategy are being pursued. They have been initiated and progressed on very different timescales. While the CCRES is only being consulted on now, the RES is close to being finalised. Moreover no consultation events on the CCRES have been held in Northern Ireland despite the fact that it will cover key policy issues raised in the CCRES, such as policing, criminal justice, asylum and immigration matters which have not been devolved to the Northern Ireland Administration. That being the case, the way in which policies in these areas are pursued by Whitehall will have a direct impact on this region. No opportunity has been provided by OFMDFM through the Race Forum to discuss the relevance of the CCRES to Northern Ireland. This process gives little opportunity for concerns and expectations arising from the CCRES process to be factored into the RES and vice versa. 7. In terms of content also, there are substantial differences. For example, there is no reference to the role of the media and the private sector in realising race equality in the RES, while there are such references in the CCRES paper. 8. All these discrepancies raise serious doubt, yet again, as to the level of coordination between Northern Ireland and Whitehall. The Commission s concern is that, as a result, fewer protections will be offered to minority ethnic communities in Northern Ireland. This is a worrying prospect given that the CCRES paper falls far short of what is needed to address the very serious racial inequalities in the UK. A more detailed discussion of the content of the CCRES now follows. Non-devolved matters 9. Given that the CCRES will be applicable to Northern Ireland only in matters excepted or reserved under the Northern Ireland Act 1998, this response will concentrate on those areas. Immigration and Asylum 10. Both the Durban Declaration and the Programme of Action give considerable space to the problems encountered by non-nationals and the responsibility of host Governments to address those problems. The Declaration states: We recognize that xenophobia against non-nationals, particularly migrants, refugees and asylum seekers, constitutes one of the main sources of contemporary racism, and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices. 6 6 Durban Declaration, para. 16. 3
11. The Programme of Action then goes on to detail a list of areas in which governments ought to take action 7 : immigration laws, policies and practice legal protection for undocumented migrants particularly those being detained by public authorities training on international standards for police and immigration authorities dealing with migrants equal employment rights for migrant workers social welfare rights for migrants recognition of educational, professional and technical credentials of migrants attained in country of origin provision of adequate social services, particularly in the areas of health, education and adequate housing a recognition and positive address of the problems facing victims of human trafficking. 12. There is a striking difference between the Durban documents approach to migration and asylum issues and that found in the CCRES document. While the concern of the former is with protecting the fundamental rights (civil, economic, social and cultural) of non-citizens, the concern of Government is with: assuaging fears of unmanaged migration and abuse of the asylum system; integration of new arrivals with an emphasis on the arrivals duty to take part in citizenship ceremonies and learn English. 13. The shortcomings of the CCRES document are alarming. First, the CCRES document as a whole fails to assert the link between antagonism (whether displayed by individuals or political parties) toward asylum applicants and wider racial tensions. Combating that racial tension is of course a fundamental component of achieving community cohesion and racial equality. In fact nowhere in the Chapter headed Eradicating racism and extremism are the problems encountered by asylum applicants, refugees and migrants mentioned. This is particularly unsatisfactory given that the UK Government has been reminded of that link and urged to address it in the Durban documents and then more recently in August 2003 in the Concluding Observations adopted, following consideration of the UK s Periodic Report, by the UN Committee on the Elimination of Racial Discrimination. 7 See paras 24 33. 4
14. It is unfortunate that instead of using the CCRES document to engage consultees in a more positive debate on the effects of migration and the duty of the UK to individuals fleeing political persecution, Government has for the most part followed an agenda consistent with the suggestion that migration and asylum represent threats to the nation requiring Government to further tighten controls. This is a dangerous starting point. The Commission supports the view of Ian Macdonald QC, which he first asserted in 1968 and again in June 2004: Each time the policy of immigration control is defended in the climate of Britain today, it helps, whether this is intended or not, to reinforce racial prejudice and increase racial tensions. 8 Certainly the stress here on managed migration and preventing abuse of the asylum system is misplaced and not in keeping with the spirit of the Durban Declaration and Programme of Action. 15. Second, as can clearly be seen, the very specific areas of action identified by the Durban documents are notably absent from the CCRES document. Nothing is mentioned of the duty of Government to meet the training needs of immigration officials, the police force, the extension of social welfare provisions and so on. 9 This part of the Programme of Action is especially relevant in the context of Europe. Indeed, the General Conclusions of the European Conference Against Racism (ECAR), along with the Report from the Forum of Non-Governmental Organisations submitted prior to that Conference, voiced remarkably similar concerns and recommendations. 16. Moreover, Government s professed concern with the integration of asylum applicants could well be construed as disingenuous. Most strikingly, nothing is mentioned in the CCRES document of the contradiction between, on the one hand, the current Government policy of detaining some asylum applicants in prisons and, on the other hand, seeking ideas on how to facilitate the integration of such persons into wider society. The Commission has repeatedly pointed out that detaining asylum applicants in prisons, as has been done in Northern Ireland, sends a message suggesting that society needs to be protected from asylum applicants in the same way as it requires protection from individuals convicted of criminal offences. Despite the consistent opposition to this current policy from this Commission, non-governmental organisations, faith leaders and politicians, Government continues to detain some female asylum applicants in a prison while male detainees have been moved from HMP Maghaberry to a holding centre elsewhere in the Prison Service estate. It is unfortunate that Government has decided not to seek views on these more unsavoury aspects of current policy and what they mean for community cohesion and racial equality. This in turn raises concern as to how far Government intends to address positively the concerns and recommendations of the Durban documents. 8 Welcome Address by Ian Macdonald QC to the WG Hart Legal Workshop 2004 The Challenge of Migration to Legal Systems. 9 The RES paper does address the provision of services to asylum seekers, refugees and migrant workers. However, the NI Administration while responsible for the delivery of some services to these groups cannot decide to extend the level and range of entitlements, and this is precisely the concern of the Durban documents. 5
17. Third, the CCRES document gives the impression that even within its current very limited approach, Government will not be taking direction either from the Durban documents or from the UN Committee on the Elimination of Racial Discrimination. The CCRES paper instead seeks views and direction on issues that have already been tackled by these forums. For example on the matter of facilitating and encouraging the integration of asylum applicants and migrants, the Durban Programme of Action encouraged States to promote education on the human rights of migrants and to engage in information campaigns to ensure that the public receives accurate information regarding migrants and migration issues, including the positive contribution of migrants to the host society and the vulnerability of migrants, particularly those who are in an irregular situation. 10 18. Indeed, it is disconcerting that, in many respects, upon reading the CCRES paper it appears as though the WCAR and ECAR never took place and that Government is intent on reinventing the wheel. Policing and Criminal Justice 19. In the area of policing and criminal justice, there is some similarity between the CCRES and Durban documents. The CCRES paper, in line with the Durban documents, points to the need for a representative police force and criminal justice agencies. However, the CCRES paper falls short of the Durban documents in so far as it fails to acknowledge the problems of institutional racism within the police force and to seek views on how this can be tackled. The Durban Programme of Action, on the other hand, urges States to ensure full accountability of the police force and other law enforcement personnel. It also urges States to eliminate the practice of police and other law enforcement personnel relying, to any degree on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal 11 activity. 20. The CCRES paper fails to acknowledge the persistent problems with stop and search practices, whereby statistics continue to show the disproportionate number of individuals from minority ethnic groups being stopped and searched by the police. Attaining a representative police force is of course important but is only one part of a complex and multi-faceted solution. 21. There is also a failure in the CCRES to acknowledge the training needs of police officers and criminal justice agencies in the area of anti-racism and human rights. The Durban Programme of Action devotes several paragraphs 10 Durban Programme of Action, para 27 11 Durban Programme of Action, para 71-72 6
to urging States to develop and strengthen human rights training for public officials and professionals. 12 This omission perhaps has even more serious repercussions in the context of Northern Ireland, where, as this Commission has pointed out on several occasions, police officers do not receive any anti- that racism training and where there has been a marked failure to positively address the Macpherson Report. It is precisely gaps such as these, which the Commission hoped a NAPAR for the UK would address. It is unfortunate despite reassurances to the contrary this initial CCRES paper has failed to meet that expectation. International commitments 22. Unfortunately, the CCRES paper fails to mention any of the UK s international human rights commitments and how these ought to inform the UK s strategy for tackling racism and achieving racial equality. 23. There is no mention of Government s duties under the European Social Charter or the European Convention on Human Rights. The latter of these, by virtue of Article 1, 13 extends to those who are not citizens of the UK and the former refers specifically to the rights of some migrant workers in Part 1. 14 There is a particularly striking failure to refer to the duties of Government under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). 24. The Durban documents refer to a range of international commitments that States ought to consider ratifying or acceding to, including several to which the UK is not yet party. These are, most notably, Article 14 of ICERD, the International Convention on the Protection of All Migrant Workers and Members of Their Families, and the United Nations Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. The Commission is of course aware that Government has now made public the outcomes of its Inter-Departmental Review of its human rights commitments. The Commission suggests that at some stage in the development of the CCRES, Government should attempt to explain how the strategy is consistent with its refusal to strengthen its commitment to ICERD, in particular by not making the optional declaration provided for in Article 14. 25. Most significant is the absence of any mention of the WCAR and the entire process leading to that Conference: the ECAR, its General Conclusions and NGO Forum Report, and the Durban documents. Any mention of the UK NGO consultation process that took place prior to WCAR is also absent, as is any information on the conference held in Manchester in November 2001 which was convened in order to allow relevant organisations to offer feedback on the Home Office s draft of the NAPAR. Nor is there any mention of the 12 Durban Programme of Action, paras 133-139 13 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section on this Convention. 14 Migrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party. 7
discussions of the steering group brought together to advise Government on the content of a NAPAR, despite the obvious relevance of these forums to achieving community cohesion and race equality. Many of the consultees for this document will have taken part in these forums to different levels. It is unsatisfactory that the CCRES shows no evidence in its content of taking on board the views expressed through those forums nor is any indication given of whether those views will be factored into the Strategy at a later stage. As already stated it appears as though Government is intent on ignoring the entire WCAR process and beginning again with a weak and inadequate consultation paper. The role of political parties 26. The Durban Programme of Action underlines the key role that politicians and political parties can play in combating racism, racial discrimination, xenophobia and related intolerance and encourages political parties to take concrete steps to promote equality, solidarity and non-discrimination in society, inter alia by developing voluntary codes of conduct which include internal disciplinary measures for violations thereof, so their members refrain from public statements and actions that encourage or incite racism, racial discrimination, xenophobia and related intolerance. 15 27. The CCRES fails to mention the responsibilities of political parties in fighting racism and xenophobia. This is particularly unfortunate given the experience that both Great Britain and Northern Ireland have had with elected representatives making intolerant comments particularly regarding the Islamic faith and Muslims, who belong predominantly to minority ethnic communities. Again it is unfortunate that the CCRES fails to acknowledge such very dangerous realities in contemporary political discourse and to take the lead from the Durban documents and the UN Committee on the Elimination of Racial Discrimination on tackling such problems. The UN Committee on the Elimination of Racial Discrimination has repeatedly urged the UK to reconsider its restrictive interpretation of Article 4 of ICERD in light of statements made by some public officials and media reports that may adversely influence racial harmony, and the Committee reiterated that the provisions of Article 4 are of a mandatory character. The Durban Programme of Action itself urged States to withdraw reservations contrary to the object and purpose of ICERD and to consider withdrawing other reservations. 16 National Human Rights Institutions 28. Unfortunately, it is again necessary for this Commission to remind Government of the role that was envisaged for national human rights institutions by the Durban documents. In the Programme of Action, States are urged to 15 Durban Programme of Action, para 115 16 ibid., para 75. 8
establish, strengthen, review and reinforce the effectiveness of independent national human rights institutions, particularly on issues of racism, racial discrimination, xenophobia and related intolerance, in conformity with [the Paris Principles] and to provide them with adequate financial resources, competence and capacity for investigation, research, education and public awareness activities to combat these phenomena. 17 29. This Commission has repeatedly reminded Government of the inadequacies of its current powers and resources, and continues to wait for a response to its request for a strengthening of these. The Commission hopes that Government can in future engage in a more positive relationship with this organisation and to draw on the wide range of human rights expertise within it while respecting our independence from both Government and the non-governmental sector. 30. In the context of Durban, of course, references to human rights institutions are also intended to take in statutory equality bodies such as the Commission for Racial Equality and the Equality Commission for Northern Ireland. Conclusion 31. The original NAPAR steering group was re-convened on 9 September 2004. At that meeting the group was reassured that Government would make a formal commitment to the Durban Programme of Action in the final Strategy. The Commission reiterates the point that a formal commitment is not sufficient but that the commitment must be reflected in the content of the CCRES. 32. The group was also told that there would be no further consultation on the CCRES and that a final draft will be produced in light of this one consultation exercise. The direction and tone of the existing consultation paper suggest that the final Strategy will not meet the requirements of Durban. The Commission therefore urges Government to look again at the Durban documents and to revise the Strategy accordingly. 33. The Commission reminds Government that in its next periodic report to the UN Committee on the Elimination of Racial Discrimination it is expected to include information on the action plan that the Committee was told it was in the process of drafting in order to implement the Durban Declaration and Programme of Action at national level. Unless the concerns expressed above are addressed positively it is unlikely that the CCRES will be a sufficient replacement for a NAPAR. Northern Ireland Human Rights Commission Temple Court 39 North Street Belfast BT1 1NA 17 Durban Programme of Action, para 90 9
September 2004 10