Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by the Commission for Racial Equality


  The last Select Committee on the Armed Forces Bill in 1996 invited the Commission for Racial Equality ("CRE") to submit written evidence and to give oral evidence on two occasions. The CRE's written evidence and the first occasion for oral evidence focused on provisions in the Armed Forces Bill that would establish new procedures for complaints of racial discrimination by serving members of the Armed Forces. On the second occasion, shortly after the conclusion of the CRE's formal investigation into the Household Cavalry, the CRE gave oral evident relating to that investigation and the subsequent agreement between the CRE and the Ministry of Defence (MoD).

  At the conclusion of that second session the Select Committee requested that progress should be reported to the next Select Committee in 2001. It is our understanding that the MoD have submitted a progress report to this Select Committee. Having regard to the CRE's detailed work with the MoD and the three Services over the past five years, it seemed appropriate for the Select Committee also to receive a progress report from the CRE. We understand that members of the Select Committee have been provided with our recent evidence to the Defence Committee in its review of Armed Forces personnel issues. The present report draws on much of the same information, summarising, rather than repeating, what is contained in that document.

  This submission to the Select Committee on the Armed Forces Bill is in three parts:

    1.  Summary report of progress

    2.  Review of the workings of the procedures introduced by the 1996 Armed Forces Act

    3.  Submission on the Armed Forces Bill.


  The CRE had been concerned for some time about racism and discrimination in all three branches of the Services. Reports of racial harassment and discrimination undoubtedly deterred ethnic minority men and women from joining the Services, as the lack of effective measures to prevent discrimination hindered the ability of the Services to retain ethnic minority personnel.

  It was only in March 1996, after MoD signed an agreement committing all three Services to a timetabled five year Action Plan, that the Services began to tackle racism and eliminate discriminatory practices. Under this Action Plan each of the Services was expected to carry out measures to improve their ethnic minority recruitment and retention and to deal more effectively with racial harassment and discrimination. The requirements on each of the Services to carry out ethnic monitoring and to report quarterly to the CRE have been key factors affecting progress since 1996.

  In March 1998, when the CRE was satisfied that the MoD was complying with the terms of the Action Plan, the CRE and the MoD entered into a five year Partnership Agreement, which was to operate alongside the Action Plan. Under the Partnership Agreement the MoD committed the Services to further measures to achieve racial equality including achievement of ethnic minority recruitment targets, removal of barriers to ethnic minority recruitment and promotion, increased numbers of ethnic minority officers at higher ranks, effective action to prevent racist abuse and making equal opportunity performances part of annual appraisals.

  From the quarterly statistical reports, the CRE is aware that the Services have made considerable progress towards meeting many of the objectives and requirements of the Action Plan and the Partnership Agreement, but progress has been uneven. Areas of particular concern to the CRE are summarised below.


  At the Select Committee on the Armed Forces Bill in 1996 the representatives of all three Services expressed doubts as to their ability to introduce ethnic monitoring of service personnel. We can report that once the MoD committed the Services to implementing ethnic monitoring systems and to collecting and analysing these data under the Action Plan, the Services soon met these requirements. While at times there have been technical problems, the Services have continued to work towards recording ethnicity of 100 per cent of their personnel.

  The quarterly reports to the CRE illustrate the different methods and different degrees of success of the three Services in applying ethnic monitoring data to identify patterns of discrimination and barriers to equality. It is encouraging, however, that the latest reports show that the Services are prepared to examine more rigorously the possible reasons for some of the inequalities that their monitoring data have revealed.


  The CRE recognises the effort and expenditure the Services have dedicated to attracting greater numbers of ethnic minorities. The overall result, however, has been to achieve only a marginal percentage increase in the numbers of ethnic minority recruits entering the Armed Forces since April 1997 (from 1.7 per cent in 1997 to 1.9 per cent in 2000).

  The CRE has regularly urged each of the Services to look beyond their existing recruiting activities to identify and tackle some of the barriers—within the Services and in the different communities—to attracting ethnic minority recruits. All three Services have established dedicated ethnic minority recruiting teams and have deployed a range of recruiting strategies. The outcomes, although varying between the Services, have nearly all been disappointing. Although the Services have been able to attract many thousands of ethnic minority young men and women and their families to various outreach activities (for example, the Army reported more than 191,000 at their events during 1999-2000) they have not been able to sustain this interest sufficiently to boost recruitment in any significant way.

  Assisted by external consultants or otherwise, the Services have gradually attuned their outreach activities and recruitment methods to the needs and expectations of the different groups they are trying to attract. With several years individual and collective experience, the Services should be consolidating this experience by systematically reviewing the effectiveness of their various recruiting strategies and sharing best practice, which they confirm they have begun to do.


  As stated above, the outcome of the recruiting activities carried out by the Services has been only a marginal increase in the percentage of ethnic minority recruits entering the Armed Forces since 1997. From the first meetings to discuss progress against the Action Plan, it was clear that not all of the officers with recruitment responsibilities welcomed recruitment targets. Nevertheless, in January 1998 the Secretary of State announced ethnic minority targets for each of the Services. For 1998-99 the target was 2 per cent, for 1999-2000 the target was 3 per cent, 4 per cent for 2000-01 and then 5 per cent for 2001-02. In the first year the Army met the 2 per cent target but the other Services did not; in the second year none of the Services met the 3 per cent target, and all indications are that none will reach this year's 4 per cent target—although the Army is likely to come closest.

  The targets have driven improvements to recruiting initiatives and strategies; without targets it would have been easier for the Services to be complacent about their recruiting performance. It remains the view of the CRE that these targets should be achievable by all three Services. The Household Cavalry—whose failures triggered recognition of the need for action across the Services—has increased ethnic minority representation from eight to 66 in four years (to March 2000).


  The CRE has encouraged the Services to examine ways of speeding up the recruitment process so that potential ethnic minority applicants are not lost at any stage. Following discussions with the CRE, the Services have developed best practice guidelines to assist recruiting staff to "nurture" ethnic minority applicants. In view of the increasing competition for ethnic minority recruits, especially from other uniformed services, there is extra pressure on the Services regularly to review all aspects of their recruitment arrangements.


  Throughout the period for which reliable monitoring data has been available, ethnic minority applicants have continued to achieve lower test scores than white applicants.

  This can be a significant issue for ethnic minority candidates, who may not proceed with their applications if, due to poor test scores, they are not selected for the trade of their choice. The development of the proposed tri-Service test could provide an invaluable opportunity to explore the most effective ways for assessing suitability for selection to the Armed Forces in the 21st century.


  Retention is a problem in relation to all serving personnel, but it is almost inevitable that discrimination, harassment and poor career progression may influence decisions by serving ethnic minority personnel to leave prematurely.

  Much of the work of the three Services, faced with challenging targets, has focused on improving ethnic minority recruitment. While the Army, and the other Services to a differing extent, as part of their recruitment efforts now have a higher profile and an improved image, the Army's own research had shown that the Services are still widely perceived as racist institutions. Recent CRE cases make clear that, despite the Action Plan and the Partnership, racial harassment and abuse of ethnic minority personnel is a continuing problem. While it can be devastating for the victim it is also seriously damaging to his or her unit in terms of destroying trust and cohesion.

  Therefore, to aid both recruitment and retention, it should be a priority for the Services to review continuously the success or otherwise of any measures to tackle discrimination; they should also identify any gaps between their stated equal opportunities policies and actual race equality performance down the chain of command.

  The Services should examine the outcome of research and surveys and learn from individual cases and complaints of discrimination. When any one of the Services is defensive and denies the need to change, they make it more difficult to alter negative perceptions or to retain the ethnic minorities they have worked to recruit. A range of equal opportunity training initiatives has been undertaken since 1996. It remains a priority for each of the Services to evaluate the extent to which equal opportunities training has been successful in changing attitudes amongst personnel at every level.


  Each of the Service has explained why they require a minimum number of years of service to be eligible for promotion to higher rank, which could operate as a barrier to the promotion of ethnic minorities whose numbers have only recently begun to increase. The CRE has recently been informed that the Services are moving from toward a more flexible approach that will refer to the achievement of compentencies and not solely length of time in rank.


  As mentioned above, the CRE gave evidence to the 1996 Armed Forces Bill Select Committee. Our concerns related to sections 20 and 23 of the Armed Forces Act 1996 ("the 1996 Act"), which amended section 75 of the Race Relations Act 1976 ("the 1976 Act").

  The 1996 Act, for the first time, gave serving personnel the right to bring a complaint of racial discrimination to an Industrial Tribunal (now Employment Tribunal). The CRE warned the Select Committee that what was proposed—and has now been enacted—would leave servicemen and women disadvantaged when compared to all civilian employees. The unique requirement in the 1996 Act is that before service personnel can institute discrimination proceedings in the employment tribunal they must first seek redress through the Service's internal redress of complaint procedures. The Race Relations (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1997 enable an application to an employment tribunal to be made at any time after the internal complaint has been lodged; in practice, in every case familiar to the CRE, the representative of the Army or Navy or RAF has obtained a stay (or, in Scotland, a sist) of the tribunal case to allow the internal procedure to be concluded before the tribunal considers the complaint.

  The 1996 Act enabled Queen's Regulations to fix a three-month time limit for applications for redress of complaint. The 1996 Act also amended the time limit for complaints of racial discrimination to the employment tribunal—extending it for service personnel from three months to six months, to accommodate the internal procedure. No time limit was imposed on the conduct of the redress procedure, and throughout the debate in Committee and in both Houses of Parliament, no indication was given as to the actual time that redress of complaint cases normally require.

  In the CRE's evidence, opposing this two-stage process, we raised the issue of delay and the harmful effect of delay on the complainant; with our direct experience of individual cases since 1996 our concerns regarding delay are very much greater. The relevant provisions of the 1996 Act came into force on 1 October 1997. In cases where the CRE is representing or assisting the applicant, the average length of time for completion of the internal redress of complaint is 18 months. At least one current case is challenging such delays as being discriminatory. We submit that there may also be potential claims under the Human Rights Act, relying on article 6 (right to fair and public hearing without delay for the determination of civil rights and obligations) with article 14 (non-discrimination in the enjoyment of the right to a fair trial).

  Even if this prolonged redress procedure were to lead to findings similar to those that could be made by an employment tribunal, there is not, as we understand, the same scope for the award of compensation. Therefore, in the most serious cases, which are often the most prolonged, to obtain appropriate compensation complainants must always bring tribunal proceedings in addition to using the redress procedure.

  As the CRE sought to make clear in 1996, we do not disagree that wherever possible an employee should seek to resolve a grievance through internal procedures before taking action in any court or tribunal. This is desirable practice in any employment setting. What we disagreed with in 1996, and continue to oppose, is the requirement that, for service personnel only, a complaint must be made internally and internal procedures exhausted, before the same facts can be considered by an employment tribunal. Our concern was that so long as complaints must be considered up the chain of command, the factors that had inhibited use of the redress procedure under Services Discipline Acts would continue to operate.

  The survey by the RAF in 1998 of its ethnic minority service personnel confirmed both that their experience of racial discrimination and harassment was widespread and that most people did not complain. The three main reasons given for not complaining were fear of victimisation, not wanting to damage career prospects and fear of not being believed. These findings reinforce the CRE view that employees who, for whatever reason, lack confidence in their employer's internal procedure should not be prevented from seeking independent adjudication of their complaints.

  Since 1997 each of the Services has introduced procedures for complaints of racial discrimination and produced leaflets and other information about these procedures. Nevertheless, on the evidence of individual service personnel who have approached the CRE with complaints of racial discrimination, the extent to which victims of harassment and discrimination are aware of these procedures is not clear, nor are we confident that servicemen and women are sufficiently aware of their rights under the Race Relation Act.

  As well as the major issue of delay, it is important to recognise the difference in approach between the internal redress of complaint and proceedings under the Race Relations Act in the employment tribunal. The internal procedure is concerned primarily to identify the individuals involved in the alleged discriminatory treatment, and, depending on the strength and quality of the evidence, to bring proceedings for offences under the Services' Discipline Acts. Such cases, like any other criminal cases, must be proved beyond reasonable doubt. To meet the required standard of proof the interview of the victim by the Special Investigation Branch can be difficult and lengthy, regardless of the victim's physical or mental condition.

  Under the redress procedure a "successful" complaint is one that results in a conviction of the perpetrator. Not only is there very limited scope to award any form of compensation to the victim, but also there is nothing in the Service Discipline Acts that requires the employer—the MoD or the Army or the Navy or the RAF—to accept responsibility, to institute change or to take any steps to protect the victim from further discrimination or victimisation.

  In the employment tribunal the complaint of discrimination will normally be under section 4 of the Race Relations Act, which outlaws discrimination by an employer in recruitment, selection, terms and conditions, access to promotion, training, benefits, dismissal or subjection to any detriment, including harassment. The respondent would normally be the MoD or the Army or Navy or RAF (relying on section 32 of the Race Relations Act which makes the employer vicariously liable). In some cases individual perpetrators might be named as additional respondents. The object of the proceedings would be for a wholly independent tribunal to decide whether, on the civil standard of proof—the balance of probabilities—the employer, that is the MoD or the Army or Navy or RAF, has committed an awful act of discrimination. If the complaint is upheld the tribunal has powers to order the employer to compensate the victim for past and future financial loss and for injury to feelings. How the discrimination affected the employee is a significant factor in determining the total award, which has no upper limit. Where an employee's career has come to an end as a result of racial discrimination then awards can be substantial. Where the complainant is still employed, the tribunal can also recommend that the employer takes steps to protect the complainant from future discrimination.

  Based on our experience since 1997, the CRE submits that the present arrangements significantly disadvantage servicemen and women. We would urge the Defence Committee to consider proposing an amendment to the Armed Forces Bill which would amend sections 20 and 23 of the Armed Forces Act 1996, and as a consequence also amend section 75 of the Race Relations Act, to give servicemen or women who are victims of discrimination the right to complain directly to an employment tribunal, as all other employees are able to do.

  The following brief summaries of a few CRE cases demonstrate the disadvantage to the complainant of the procedures introduced in the 1996 Armed Forces Act:

Case A

  The Army have admitted racial discrimination, leaving compensation as the only outstanding issue. If this case were before an employment tribunal the parties would proceed to negotiate terms of settlement. The internal redress procedure appears to have no mechanism for compensation to be agreed between the Army's representative and the applicant; thus the matter will not be resolved until it has been considered by the Army Board.

Case B

  The applicant applied for redress of complaint in November 1998, and he was notified two years later, in November 2000, that his case was going to the Army Board.

Case C

  The applicant applied in March 1999 for redress of a complaint of racist abuse. He felt threatened by the response of his CO, when AWOL and after seeking medical help, has been discharged. The internal investigation, which upheld many of his complaints, lasted nearly 12 months.

Case D

  The applicant applied for redress of complaint about discriminatory treatment by the Sgt Major of his company. The NCO who was the subject of his complaint remained in post and was then promoted, but throughout the 15 months between his application and the Court Martial he was in direct command over all of the applicant's witnesses.

Case E

  The applicant submitted a redress of complaint alleging racial bias by his CO which prejudiced his promotion prospects. In submitting his redress he had difficulties in ensuring that the racial bias element of his complaint was properly recorded. His tribunal application has been stayed while the redress proceeds. The applicant's preference is to negotiate a settlement of this matter, as is common procedure for cases in the employment tribunal; as in Case A above, there appears to be no internal procedure to settle complaints.

Case F

  The applicant applied for redress of complaint in September 1998, and the Equal Opportunities Investigation Team informed him of their finding 18 months later.


  None of the provisions of the Armed Forces Bill appears to relate directly to race relations or racial discrimination. There are, however, certain proposals within the Bill that may be relevant to the promotion of racial equality, and the CRE submits the following comments.

  The CRE agrees with the proposals in Part II of the Bill which would put the powers of the service police on a clear statutory basis. It is undoubtedly preferable for those who exercise powers of restraint or search or arrest, including the use of force to do so, that there should be no uncertainty as to the limits of their powers; Service personnel and others who may be subject to the exercise of such powers also benefit from such certainty.

  What is proposed in Part II is to authorise service police to exercise powers that are currently available to the civilian police under the Police and Criminal Evidence Act 1984. Monitoring of the exercise of the police powers under the 1984 Act has repeatedly disclosed significant disproportionality in the use of those powers against people of different racial groups. For example, as has been widely reported, such monitoring consistently shows that black people are far more likely to be stopped and searched by the police than any other racial group. This has remained true even though the Code of Practice on Stop and Search, since its initial publication in 1984, has emphasised that suspicion giving rise to the exercise of stop and search powers should not be based on the physical appearance of individuals. This unacceptable inequality was highlighted in the Stephen Lawrence Inquiry Report and has regularly been referred to in the reports of Her Majesty's Inspectorate of Constabulary.

  The duty laid on the Home Secretary under Section 95 of the Criminal Justice Act 1991 to publish ethnic monitoring data includes data from local police forces only. The CRE recommends that if Parliament is being asked to give statutory authority to the service police to exercise the same powers as the civilian police, then there should also be a statutory requirement to monitor by ethnicity and to report, comparable to the requirements of the Criminal Justice Act 1991. This would be wholly consistent with the obligations that are likely to apply to every police force under the Race Relations (Amendment) Act 2000. Without such monitoring none of the Services nor the Ministry of Defence nor Parliament will know with any accuracy whether the guidance provided by the Codes of Practice under the Police and Criminal Evidence Act, or the overall commitment of the Services to race equality, is in fact being implemented by the service police in the exercise of their powers.

  In Part IV and Schedule 5 of the Bill it is proposed to extend the jurisdiction of the Ministry of Defence Police (MDP) so that, in a number of circumstances, they will be able to exercise policing powers not only on or in the vicinity of defence land or in relation to service personnel, but at any location where there has been a request for assistance by a constable of any local police force, where (Clause 31(4)) or when the chief officer of any police force listed in the Bill, including all local forces and the British Transport Police applies for MDP constables to help meet special demands.

  The CRE's concerns in relation to this major extension of jurisdiction of the MDP are similar to those stated above concerning the service police, but all the greater because of what will, in effect, be an unlimited jurisdiction of the MDP. The Bill does not limit the circumstances in which the MDP may be called upon for assistance; this could occur in relation to racist incidents or public order situations including inter-racial conflict, where extreme sensitivity would be required.

  Since the Stephen Lawrence Inquiry Report most local police forces have acknowledged the need to ensure that all police officers, and especially front-line staff, are trained in anti-racism and racial awareness. With the wider jurisdiction of the MDP such training will become essential. We note that in the explanatory notes accompanying the Bill (paragraph 172 "Effects of the Bill on Public Sector Finances") there is no reference to the expenditure that will be needed for training the MDP to carry out new types of functions or familiar functions in unfamiliar circumstances.

  The MDP, unlike a local police force, is not accountable to a police authority; instead there is a police committee appointed by the Secretary of State. The MDP was not required under the Police and Criminal Evidence Act, as local forces were, to establish a police community consultative group. Therefore at present there is no statutory basis for public accountability, or involvement of civilian population, in the way the MDP will exercise its extended powers.

  Like that of the service police, the performance of the MDP is not included when the Home Secretary reports the outcomes of monitoring of the criminal justice system under section 95 of the Criminal Justice Act 1991. As part IV of this Bill now proposes that constables of the MDP will more frequently be working alongside constables of local forces, the CRE strongly urges that statutory provision should be made in the Armed Forces Bill to require ethnic monitoring of the exercise of powers, such as stop and search and arrest, exercised by the MDP.


  In conclusion, the CRE's main submissions to the Select Committee in its consideration of the present Armed Forces Bill are as follows:

    —  that the Select Committee should consider proposing an amendment to the Armed Forces Bill which would amend sections 20 and 23 of the Armed Forces Act 1996, and as a consequence, also amend section 75 of the Race Relations Act, to give servicemen and women who are victims of racial discrimination the same right as all other employees to complain directly to an employment tribunal;

    —  that the Select Committee to consider amendment of the Armed Forces Bill to require ethnic monitoring of the outcomes of operational activities of the service police and the MDP, and for the annual reporting of their activities in this area.

February 2001

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