Response to HMICFRS - ​​​Proposed policing inspection framework and programme 2025 to 2029​​

Title of consultation: ​Consultation on proposed policing inspection framework and programme 25–29​ 

Source of consultation: ​His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS)​

Date: 29 October 2024

We are the equality regulator for Great Britain and National Human Rights Institution for England and Wales. We have a statutory mandate to advise the government, Parliament and public authorities on matters relating to equality and human rights.  

We welcome this opportunity to respond to this consultation and authorise His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) to publish our response.    

Our Strategic plan 2022 to 2025 sets out our objective to ‘work to eliminate unlawful workplace discrimination, harassment and victimisation so that all workers are treated fairly’. We have developed a programme of work to address race and sex discrimination, harassment and victimisation and sexual harassment within the uniformed services in England, Scotland and Wales. Our strategic plan also commits to addressing equality and human rights impacts of artificial intelligence (AI) and digital technologies. Some AI applications may have benefits as police tools but also carry risks of embedding discrimination or compromising human rights. Effective regulation will be important to secure the safe and responsible use of AI.

Several recent media reports and high-profile reviews, including HMICFRS’s inspection of vetting, misconduct, and misogyny in the police service, reveal serious concerns about the prevalence of discrimination, harassment and victimisation in police workforces. They also reveal serious concerns about the loss of trust by the public due to disproportionality in policing, police misconduct and police perpetrated Violence Against Women and Girls (VAWG). Other reviews include Baroness Casey’s independent review into the standards of behaviour and internal culture of the Metropolitan Police Service and Lady Angiolini’s Inquiry Part 1 report. 

The changing nature of policing and increasing reliance on data-driven technology and AI applications to improve policing efficiency also pose significant risks to compliance with the Equality Act 2010 and Human Rights Act 1998, in the absence of dedicated legal and regulatory framework in relation to emerging police technologies.  

It is crucial that the HMICFRS’s PEEL inspection framework addresses equality and human rights issues in the workforce and in the delivery of police services. Police leadership takes the contents of the HMICFRS inspection framework seriously. A framework that emphasises equality, the Public Sector Equality Duty (PSED) and human rights will increase their motivation them to take action on these issues.  

Policing powers must be used in accordance with the Equality Act 2010 (EA2010) and the Human Rights Act 1998.

An inspection framework that assesses whether policing powers are used in a way that complies with these obligations is crucial to show how HMICFRS and police forces meet their obligations under the Equality Act 2010 and Human Rights Act 1998.

Equality Act 2010 and Public Sector Equality Duty

Under the Equality Act 2010, police forces must not discriminate in exercising their public functions, providing a service or in employment.  Police forces are legally responsible for acts of discrimination, harassment or victimisation committed by their officers and employees in the course of employment.

The PSED exists to integrate consideration of equality and good relations into the daily business of public authorities. The PSED requires public authorities to have ‘due regard’ to the need to:

• eliminate discrimination, harassment and victimisation and other conduct prohibited by the EA2010
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not

As listed public authorities, HMICFRS and police forces are also subject to the ‘Specific Duties’ to publish equality objectives and equality information to demonstrate compliance with the general duty. These specific duties drive transparency, providing insight into how public bodies meet their general duty and help listed authorities think about important equality issues. Our Essential Guide to the PSED and Technical Guidance on the PSED give a full explanation of the PSED and the specific duties.

Human Rights Act 1998

Police forces must act compatibly with the Human Rights Act 1998, ensuring legal, proportionate, and non-discriminatory use of police powers. For example, we are concerned that, without appropriate safeguards, police use of FRT could lead to breaches in Article 8 (right to privacy), 10 (freedom of expression), 11 (freedom of assembly).

Greater scrutiny, transparency and accountability should help uncover the scale of workforce and other equality issues and provide insight into which remedial actions are likely to result in positive change.

There is no explicit reference to equality and human rights law within the proposed PEEL framework. The 2025 to 2029 PEEL assessment framework should:

• ensure inclusion of equality and human rights considerations in all thematic inspections
• prioritise a science-technology thematic inspection, focusing on facial recognition technology (FRT)
• ensure topic areas in each proposed PEEL question assess whether forces give due regard to the PSED and comply in all other respects with the EA2010 and the Human Rights Act 1998
• include assessment of force leaders’ due regard to equality and human rights obligations in routine inspections and the proposed thematic leadership inspection
• include a topic area on tackling discrimination, harassment, and victimisation in the workforce in routine inspections
• assess how well forces are taking reasonable steps to prevent sexual harassment, a new employer duty required by the Worker Protection (Amendment of the Equality Act 2010) Act 2023

Scrutinising impact is as important as scrutinising process. The framework should not only assess whether forces implement measures to further equality of opportunity and tackle discrimination and harassment, but also how forces evaluate the impact of those actions. 

Question 1

The proposed thematic inspections partially cover these topics. We have a few general recommendations that relate to all HMICFRS policing thematic inspections:

• HMICFRS consider and expressly reference all relevant aspects of equality and human rights law when designing the terms of reference and methodology
• advisory and reference groups contain members with expertise on equality and human rights law to advise on the methodologies, including on how outcomes are evaluated
• inspection reports and HMI summaries consistently offer recommendations that highlight where they consider equality and human rights obligations may not have been fully met, make recommendations to support police forces in complying with equality and human rights law and highlight promising practice

In HMICFRS’ list of proposed thematic inspections, we find the following the most important and urgent, in order of priority.

Priority 1: Science and technology – examining the use of new / emerging science and technology, such as biometrics and facial recognition, to tackle crime

We recommend HMICFRS urgently undertake a science / technology thematic inspection. This includes a focus on police use of all types of FRT (live, retrospective and operator initiated), as in the absence of appropriate safeguards, deployment of such technologies may give rise to serious risk of compromising equality and human rights protections.

We recognise the potential benefits of certain types of data-driven technologies as useful policing tools. However, we are concerned that the use, and particularly the use in decision making of some biometric technologies at a mass scale may perpetuate and increase discrimination against some people with protected characteristics. These people include ethnic minorities, women, and disabled people. Furthermore, we have significant concerns that their use, without appropriate safeguards, could lead to breaches in Article 8 (right to privacy), 10 (freedom of expression), 11 (freedom of assembly) of the Human Rights Act 1998. We have previously called for a stronger, more coherent legal framework for the use of all biometric surveillance technologies by law enforcement.

We are particularly concerned about FRT. In the case of R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, which involved live FRT use, the Court of Appeal noted that as FRT ‘is a novel and controversial technology, all police forces that intend to use it in the future would wish to satisfy themselves that everything reasonable which could be done had been done in order to make sure that the software used does not have a racial or gender bias’ (Bridges, paragraph 201).

While Bridges provides some case law to guide practitioners, significant risks of a lack of compliance with the Equality Act 2010 and Human Rights Act 1998 remain in the absence of a dedicated legal framework addressing the unique position of emerging technology. Some of these risks are amplified due to disparate, complex oversight mechanisms, and police force FRT policies[JK1] [GW2] [YA3]  that provide forces with significant discretion to decide the parameters in which FRT is used. 

Our concerns also reflect the following factors.

We partially agree with the proposed changes.

In general, we think the topic areas in each proposed PEEL framework question need more explicit and targeted reference to whether police forces are giving due regard to their public sector equality duties and complying with the EA2010 and the Human Rights Act 1998. Due regard to the PSED helps police forces to address some of the most serious systemic issues relating to workforce equality and disproportionality.

Good collection and analysis of data will also help forces to understand who is impacted by policies and practices and how to further equality of opportunity and prevent discrimination. As an important motivator for police leadership, the PEEL inspection framework has significant potential to drive forces’ due regard to the PSED.  

We restrict our response to specific proposed PEEL assessment questions to those relevant to the EHRC’s current strategic priorities or expertise:

• PEEL assessment question one: leadership as it relates to due regard to equality and human rights
• PEEL assessment question two: advancing equal opportunity and tackling discrimination in the workforce
• PEEL assessment question seven: preventing violence against women and girls

PEEL assessment question one: Leadership

Capable, confident leadership is important to maintain a working environment free from discrimination, harassment and victimisation. HMICFRS’s State of Policing: The Annual Assessment of Policing in England and Wales 2023 recognises that ‘Leaders play a crucial role in setting standards, culture and managing performance’. Issues related to poor leadership have been identified in recent reports about individual forces. For example, Baroness Casey’s review into the standards of behaviour and internal culture of the Metropolitan Police Service found that ‘supervisors and senior officers looked the other way, ignored their management responsibilities and actively engaged in discrimination’.

Leadership and due regard to the PSED and human rights

We recommend that the PEEL inspection leadership question includes a topic area assessing how well leaders at all levels within police forces evidence human rights considerations and due regard to their public sector equality duties. The assessment relating to public sector equality duties should include how well leaders evidence due regard in relation to policies and decisions impacting people with particular protected characteristics in the workforce and in communities they serve.

This will involve evidence that police force leaders:

• set behaviour standards and respond effectively to discrimination, harassment and discrimination
• act on adverse findings and evaluate the impact of remedial actions to tackle and prevent workforce discrimination and harassment
• understand and discharge their public sector equality duties
• are aware of their organisation’s equality objectives and their role in achieving them
• understand the types of discriminatory behaviour that are unlawful under EA2010 and the new preventative duty to take reasonable steps to prevent workplace sexual harassment
• are trained to consider the equality impact of decisions while exercising public functions (read our guidance on this, How to consider equality in policy making: a 10 step guide for England)

• are trained to consider the human rights implications of decisions made while exercising public functions

Use of technology, continuous improvement and collaboration

We acknowledge your plans for a topic area assessing whether senior leaders introduce efficiencies in the workforce, such as use of technology.  As mentioned in our response to Question 1, though some forms of data-driven technology could be useful policing tools, there are serious equality and human rights risks to consider. We recommend HMICFRS inspect what data-driven technologies are being used and how force leaders are assessing and addressing any equality and human rights impacts. This would provide transparency about what technologies are in use and how they impact groups of people. This is a significant issue, particularly with rapidly evolving technology and practices.

PEEL assessment question two: Supporting and developing the workforce

We support the inclusion of a question on supporting and developing the workforce.

We recommend this question also includes a topic area on how well police forces advance equality of opportunity of protected characteristic groups within the workforce. We recommend this topic area also assesses how well police forces prevent and tackle discrimination, harassment (including sexual harassment) and victimisation. Discrimination, harassment and victimisation remain entrenched in the workplaces of some police forces.

HMICFRS’ 2022 inspection of vetting, misconduct, and misogyny in the police service found an ‘alarming number’ of female survey respondents alleged sexual harassment and serious sexual assault by male colleagues. The inspection report noted that some forces were not properly equipped to prevent and investigate misogynistic, racist and predatory behaviour. It also mentioned that some forces ‘consistently and repeatedly failed to implement recommendations’ contained in relevant reports.

Improving workforce equality may positively impact service delivery and community engagement. In their Equally Outstanding report, the Care Quality Commission (CQC) found providers that promote equality and human rights for staff are more likely to ensure good quality care for service users. Conversely, the HMICFRS 2022 inspection report acknowledged that police officers who don’t treat colleagues with respect and courtesy may behave similarly towards the public and towards vulnerable women.

When inspecting forces, HMICFRS should look for objective evidence showing improvement in workforce equality. If a force establishes concerns about discrimination, harassment and victimisation through equality data, it should address this with an action plan. In these cases, HMICFRS should consider whether indicators show the pace of delivery is sufficient and, crucially, whether remedial action is proving effective. 

The CQC has taken this approach with its enhanced workforce equality inspection measures. Implementing an action from Inclusive Britain: government response to the Commission on Race and Ethnic Disparities, the CQC’s new single assessment framework assesses how NHS providers address the experiences and employment outcomes of ethnic minority staff. 

We also note the topic on developing workforce skills. Assessments of this topic should include how well officers are trained to consider equality and human rights issues. They should also evidence that officers consistently and effectively apply equality and human rights considerations in their duties.

PEEL assessment question seven: Safeguarding children and adults at risk

We support the inclusion of a question on safeguarding children and adults at risk. We understand the importance of considering all people who may be at risk but recommend including a specific topic area on VAWG.

We acknowledge HMICFRS’ rolling VAWG programme to inspect ‘the police’s approach to tackling and preventing crimes that disproportionately affect women and girls’.

We recommend this rolling programme and routine PEEL assessments address prevention of police-perpetrated VAWG due to the serious equality and human rights implications and negative impact on building public trust in the police.  

In our report on the UK implementation of the Istanbul Convention, we stressed profound concerns about the prevalence of police-perpetrated VAWG in England and Wales, noting that the National Police Chief’s Council March 2023 report found that, in the six months between October 2021 and March 2022 there were 1,483 unique allegations of VAWG recorded against 1,539 members of the police workforce in England and Wales.

Question 3

Artificial Intelligence, FRT and other emerging technologies

As mentioned previously, we see the implementation of new technologies as giving rise to risks that HMICFRS should continue to monitor. HMICFRS should ensure that police forces are implementing these technologies with sufficient attention to upholding human rights and having due regard to the aims of the PSED. This is a pressing issue as both technologies and practices around them rapidly evolve.

New legal duty for employers to prevent sexual harassment

From 26 October 2024, employers will have a new positive legal obligation to take reasonable steps to protect workers from sexual harassment.  This is set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023. We recommend that HMICFRS PEEL inspections scrutinise police forces’ implementation of this new duty. Including a topic area on preventing and tackling workforce discrimination in PEEL assessment framework question two, as we have suggested, will support this recommendation.  We are keen to support HMICFRS and police forces in understanding this new law.  It is explained in our recently revised Sexual harassment and harassment at work: technical guidance for employers.

New police powers on right to protest

The Public Order Act 2023  introduced new measures to restrict protest in England and Wales, including new criminal offences linked to protest tactics, extended police powers to stop and search, and serious disruption prevention orders. EHRC’s 2023 Equality and Human Rights Monitor report noted these restrictions risk interfering with people’s rights under Human Rights Act to freedom of expression (Article 10) and assembly and association (Article 11).

It is essential that the police training and guidance ensures that police officers are capable to police protest activities in a way that , in enforcing the Act and other laws governing the policing of protest activities, they do not unduly limit freedom of expression nor infringe the right to peaceful protest. It is also essential that all police officers understand their fundamental duty to act in a way that is compatible with the human rights of everyone involved. We consider that facilitating the peaceful exercise of protest rights, while protecting public safety, is important to build public trust.