Area 2: Emergency Measures and Legislation
The Coronavirus Act 2020 sets out sweeping emergency measures to support the nation’s response to the Covid-19 outbreak. However, there are concerns that many of the measures set out on the Act will disportionately affect BAME communities. This includes the measures to ‘relax’ legal duties such as the completion of Care Assessments, temporary amendments to Mental Health Act, and increased police and immigration officer powers to contain the spread of the virus.
Currently, there is a lack of clear guidance on how these changes should be applied in practice and this therefore risks local variation as well as the potential abuse of power. Furthermore, the legislation, though time-limited, gives the government enabling powers that will go unchallenged for potentially up to two years. We will continue to monitor the use and impact of these new measures on BAME communities as the crisis goes on.
ENHANCED POLICE POWERS AND UNCLEAR GUIDELINES OVER THEIR USE
The Coronavirus Act 2020 gives police and immigration officers new powers to enforce social distancing and isolation measures. This includes enhanced powers to stop and search people believed to be breaching public health advice, including detaining people suspected to have the virus who are out in public or socialising. In the financial year 2018-19, there were four stop and search cases for every 1,000 White people, compared with 38 for every 1,000 Black people, finds government figures. Increasing stop and search powers raises concerns for even further disproportionately in their application.
Guidance produced by the College of Policing and the National Police Chiefs Council in response to the Coronavirus Act 2020 has caused both dismay and confusion. For example, while the guide stresses enforcement actions such as fines and arrests be used as a last resort, there are a number of areas that require officers to ‘use their own judgement and common sense’. This includes determining whether a vehicle that has been stopped is travelling to an exercise site that is deemed within reasonable distance. There is a risk that these new powers will be used inconsistently leading to disproportionate use and criminalisation of BAME communities.
DISPROPORTIONATE USE OF FORCE IN ENFORCEMENT OF SOCIAL DISTANCING
Evidence of police officers using disproportionate force in the enforcement of social distancing and government guidelines is starting to emerge as the lockdown continues. For example, on 10th April in Manchester a police officer repeatedly threatened a BAME man with pepper spray, handcuffing him, and leaning him against a car. His crime? Dropping off a parcel of food to vulnerable family members.
Police officers now also have the power to use reasonable force to remove a child or young person from outside and either take them home or arrest them. They can fine parents and carers who are not able to keep their children at home, despite many parents and carers reporting already struggling to juggle work, home education and family life. Given the evidence of racialised policing in the past and data that is starting to emerge in other nations, we anticipate that this will disproportionately be used against BAME children and young people. We support the youth justice charities bodies call for the limited use of arrests; avoiding the use of police cells to hold children while COVID-19 is a risk and the suspension of overnight detention in police custody.
UNLAWFUL PROSECUTIONS AND ABUSE OF POWER
The Crown Prosecution Service (CPS) has revealed that all 44 prosecutions under the Coronavirus Act are unlawful and have launched a review of all prosecutions under coronavirus laws. This confirms our fears that police using their ‘judgement and common sense’ can translate into abuses of power and unlawful arrests. Guidance issued to police in April called powers under coronavirus ‘exceptional’ and that police are not expected ‘to use these powers in the course of ordinary duty and you really shouldn’t unless asked by a public health officer.’ CPS director of legal services, Greg McGill said that the wrongful charges ‘didn’t relate to potentially infectious people who refused to cooperate with police or public health officers requiring them to be screened for COVID-19.
More than 14,000 fines have been handed out since March 27th and there is no route to appealing the fines without risking prosecution by refusing to pay.
BLACK MEN ARE BEING DISPROPORTIONATELY TARGETED BY POLICE
The negative experiences and treatment of Black Men by the Met Police has been highlighted throughout the lockdown period, and the detainment of 32-year-old Dwayne Francis in Lewisham, London is another example of the dangerous racial profiling Black males are subjected to. A school pastoral support worker, he was stopped by officers as he waited in his car for a post office to open while en route to work. The officers insisted he exit the car and handcuffed him, while Francis “remained calm and explained why [he] was being unfairly treated and profiled”, to which the officers reacted with false claims of cannabis droplets in his vehicle. His education and support of young people from the area ensured Francis was aware of his rights, and his request for the officers’ badge numbers and a police report were denied. Francis’ primary concern, shared by residents of the area, is the “lack of regard” shown to a respected figure in the community, and how Black teenagers would both be treated and feel in that situation. A spokesperson for the police said the officers followed protocol, but the Green party’s London Mayoral candidate has pledged to raise the issue with Scotland Yard. The misuse of stop and search and targeting of Black people by the Met Police is a long-standing issue, which has been further exacerbated by the wider powers given to Police.
The use of tasers against Black men has risen too, with incidents across the UK being recorded during lockdown, including an incident on the 4th of May leaving a man paralysed from the waist down. One in five instances of Taser usage by police involve Black People, despite them only making up 3.3% of the population. The Independent Office for Police Conduct (IOPC) is currently investigating four recent incidents, as concerns grow of “disproportionate use against Black Men and those with mental health issues”. A representative of the Association of Police and Crime Commissioners has asked for an urgent review of Taser training, and to meet with the IOPC to discuss “concerns at the police use of Taser in contentious circumstances, including in relation to levels of disproportion with BAME communities”.
SCHOOL CLOSURES ARE IMPORTANT BUT WILL DISPROPORTIONATELY IMPACT BAME STUDENTS
We welcome the introduction of school and college closures to help stem the spread of COVID-19. However, the announcement was met with huge confusion and uncertainty. Plans for examinations to be replaced by teacher assessments, ranking and predicted grades rightly ring alarm bells, particularly as recent studies have shown there is systematic undermarking of BAME children, particularly Black Caribbean boys and Gypsy, Roma and Traveller students. Education thinktank LKMco’s found that non-black teachers (85.9% of teachers in English state schools were white British in 2018) tend to have lower expectations of black British students and severely punish ethnic minorities. In examination, the gap between Black British pupils of all three categories, Caribbean, African or Other (within the 2009 cohort) are predicted A grades a minimum 12% less than white students (this trend is similar for Bangladeshi and Pakistani pupils).
This is evident when we look at SEND (Special Educational Needs and Disability) and behaviour. Black British Caribbean pupils are twice as likely to be diagnosed with a SEMH need. Black British Caribbean pupils’ education is severely impacted as they are ‘suffering an inappropriate and narrowed curriculum, from unwarranted over-identification, particularly [in] secondary schools.’ Teacher’s expectations and perceptions of behaviour heavily influence their assessment of special educational needs and are prone to racial bias. We see that a black British boy receiving free school meals and special educational needs is 168 times more likely to be excluded than a white girl without free school meals or those needs.
BIAS IN TEACHING WILL IMPACT BAME STUDENTS FINAL GRADES
This level of bias can have a significant impact on young people’s life chances, particularly those going on to apply for further and higher education. There is now significant risk that these biases will impact BAME pupils’ futures as cancelled GCSE and A-Level exams are replaced by teacher assessed grading. Teachers across the country are being asked by Ofqual to “make a fair and objective judgement” of the grades they feel pupils would have achieved had the exams not been cancelled. Yet Ofqual has rejected calls to delve into school level GCSE and A-Level grades to correct for bias. Worse still pupils will not be able to appeal against their teacher assessed grades for their performance, instead Ofqual recommend appeals are made to exam boards by centres on behalf of one or more pupils. This could make it harder for BME pupils to highlight and challenge potential teacher bias.
We echo the concerns raised by a group of race equality experts that these proposals will fail a generation of young people as BAME pupils are more likely to have their final grades under-predicted in comparison with their more advantaged peers. We urge the Department for Education to issue clear and comprehensive guidance on how teachers will accurately assess and reduce inconsistencies between different groups of pupils.
TECHNOLOGY INEQUALITY IS IMPACTING BAME STUDENTS QUALITY OF EDUCATION
The current emphasis on home learning to compensate for pupils missing time from school is a justifiable measure. However, having access to a computer and high broadband is an issue for many BAME pupils. One of the seven disadvantages in education is access to this technology. This lack of technology has the 2nd highest attainment penalty behind SEND and will further compound inequality in our education system.
Patrick Roach, the general secretary of the NASUWT teaching union, said that the government’s proposed plans to reopen schools early is driven by economics, not the benefit of the children’s education. He says: "We have witnessed in the UK and elsewhere how the coronavirus has impacted disproportionately adversely on the poorest, and especially on black and minority ethnic communities. It would therefore be a highly regressive measure to insist that the children of the poorest should be those who should be put at greatest risk by prematurely reopening schools when it is not safe to do so."
THE CORONAVIRUS ACT FURTHER EXCLUDES YOUNG PEOPLE
MAC UK outlines four key areas where they believe excluded young people are at increased risk of further exclusion or psychological distress by the measures put in place by the Coronavirus Act. They recommend ways in which the government and public institutions could prevent this. Recommendations include statutory services connecting with organisations that hold strong relationships with excluded young people and making sure their experiences are heard. Issues for concern include:
The ability to maintain social connection remotely, via telephone or internet communication, is a privilege - for example approximately 12% of 11-18-year olds for example report having no internet access at home.
The young people who are most excluded from society are often the same young people who might become involved in the criminal justice system, have insecure home lives, and potentially be those who are least able to follow the new government guidelines. It is important that we do not criminalise these young people, and that every effort is taken to understand the context in which they are living before any action is taken to arrest them.
Young people in care are particularly vulnerable to having their support networks diminished and yet we know require as much support and interaction with others as possible, especially in times of high levels of anxiety.
We echo their call for local and national governments to include young people in the decision-making processes so that their needs are taken into consideration while addressing the challenge faced by the nation.
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