CAN targeting stop and search powers against people of Asian appearance — sometimes known as racial profiling — ever be justified? Its advocates argue that the terrorist threat comes principally from people from such groups and that it is senseless to search in a random, untargeted way. Nor is there a shortage of precedents: during the Second World War both the US and Britain interned thousands of people with Japanese and German national origins, believing that they were more likely to threaten the state. Targeted stop and search, it is said, is a far less intrusive measure, one that is both justified and proportionate given the challenge that terrorism represents.
This “common sense” approach is objectionable in practice and principle: it is ineffective, as non-Asians can be used for attacks; it is over-broad, including people who, despite appearances, do not belong to racial or religious groups suspected of terrorism, such as Sikhs; the proportion of people involved in terrorism is minute; and it is wrong to stigmatise all by reference to a tiny minority; and targeting causes resentment and disaffection.
Worst of all, targeting is no more than racial discrimination. The principle of equality (whether on grounds of race, sex, orientation, disability or otherwise) is intended to ensure that everyone is entitled to be treated with respect and dignity as individual human beings — with the emphasis on the word individual. Our treatment should depend on what is known about us as individuals, not by reference to supposed characteristics of the race, gender or other groups to which we belong (or appear to belong).
Making assumptions, no matter how much they may appear superficially to accord with common sense, is to stereotype people by reference to the group to which they belong and, by doing so, to treat them less favourably because of that membership.
The House of Lords endorsed this approach unanimously in a 2004 judgment, saying that the UK immigration authorities’ policy to target Roma at Prague airport for searching because they were more likely to remain permanently in the UK was unlawful. As Baroness Hale of Richmond explained, even if a generalised statement may be true of a majority of a group — for example “most women are less strong than most men” — it must not be assumed that any individual shares the stereotypical characteristic. There will always be men and women who do not. This principle of equality underpins the Race Relations Act and several international instruments.
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It is also the answer to those who advocate racial targeting for stop and search. While the terrororist threat may come from (a tiny minority of) Muslims, there is no reason to suspect that any individual Muslim (or Asian) is a terrorist, in the absence of particular intelligence about them. And it is racial discrimination to target a person for random search solely because of characteristics that his group is said to share, where there is no particular evidence in respect of the individual beyond his race. This is particularly important where police are empowered, as they are under the Terrorism Act, to search without having to show any suspicion whatsoever, so that the checks on the exercise of their power are limited.
Unfortunately, some members of the House of Lords have retreated from the position of principle in the Roma case. This year Lord Brown (whose Appeal Court judgment the Roma case overruled), said that it was “inevitable . . . that so long as the principal terrorist risk against which use of the Section 44 power has been authorised is that from al-Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance”.
Though unable to find a satisfactory jurisprudential reason for what he described as “common sense”, he added: “I cannot accept that, thus used, they can be impugned either as arbitrary or as inherently and systematically discriminatory . . . simply because they are used selectively to target those regarded by the police as most likely to be carrying terrorist-connected articles, even if this leads, as usually it will, to the deployment of this power against a higher proportion of people from one ethnic group than another . . . not merely is such selective use of the power legitimate; it is its only legitimate use.”
Strong words and wrong words. If one has specific intelligence indicating that you are looking for people of particular origin, that is one thing. But without that, it is unlawful to target a person because of his race alone, and that is what profiling amounts to. The authorities should take a firm, principled line on this, demonstrating that racial stereotyping is unacceptable, thereby giving a lead to those, like the passengers on flight 613, who are tempted to object to fellow passengers on the basis of their race.
It is all very well to say that Asians will understand the reasons for targeted searching and respond co-operatively. But this is to place on one racial group a burden which, in a fair society, should be borne by all, with equal understanding and stoicism. This is not unthinking political correctness. It is a reflection of the fundamental principles of fair treatment, personal dignity and equality that make ours a society worth defending.
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The author is head of public law and human rights at the London solicitors Bindman & Partners