Not only are you more likely to experience homelessness if you are Black, you’re also more likely to be arrested for it under an archaic law still being used by police.

According to a Freedom of Information (FOI) request sent to 35 police forces in England and Wales, 8% of people arrested under the Vagrancy Act are Black – twice as high as the proportion of Black people in the total population.

The Vagrancy Act is a law dating back to 1824 that criminalises rough sleeping. It was introduced to deal with ex-servicemen who had become homeless after returning from the Napoleonic Wars.

The government finally vowed to repeal it in February 2021, later acknowledging it was “antiquated and no longer fit for purpose”. Former housing secretary Robert Jenrick even said it should be “consigned to history”.

But instead of just scrapping the law, ministers want to replace it in the new Criminal Justice Bill, which campaigners say would still criminalise rough sleeping. Until that happens the Vagrancy Act remains in force.

Grassroots group the Museum of Homelessness told openDemocracy it was “dismayed but not surprised” to see that “racism is baked into how homeless people are treated in the UK”.

The FOI request, sent by tenants advocacy group Generation Rent, found there have been at least 4,200 arrests under the Vagrancy Act between 2018 and 2022. Of the people arrested, 3,274 (78%) were white, lower than the 82% total population of white people. And 327 – 8% – were Black.

According to the Office for National Statistics, 5% of people sleeping rough in England in 2021 were Black.

Two police forces account for over half of all arrests under the act in England and Wales over the last five years. Merseyside Police and the Metropolitan Police made 55% of all arrests – 1,154 and 1,143 arrests respectively.

There has, however, been a decline in usage of the act. Generation Rent’s research shows arrests in 2022 are nearly a third of what they were in 2018 – down from 1,213 to 443.

While the government has admitted the act needs binning, some senior Conservatives are still aligned with the 200-year-old law. In November, former home secretary Suella Braverman claimed rough sleeping was a “lifestyle choice” and that we “cannot allow our streets to be taken over by rows of tents occupied by people”. Days after her comments, enforcement officers in London were seen tossing tents belonging to people experiencing homelessness into bin lorries.

Ben Twomey, chief executive of Generation Rent, said: “Any continued use of this pre-Victorian law to criminalise people who are already suffering on our streets shames our country, and to see it used in a discriminatory way shows even more clearly that it needs to go.

“The Vagrancy Act turns 200 years old this coming year, and we call on the government to end this cruelty. It is vital that any new laws do not simply re-introduce the criminalisation of homelessness and that the government focus instead on measures to end homelessness.”

“We know that the government is bringing in pernicious legislation to replace the Vagrancy Act which, based on their policy record will no doubt make the situation worse,” Museum of Homelessness co-founder Jess Turtle told openDemocracy. “We are seeing increased harassment on the streets and this is indicative of a broader arc of crackdowns, cuts and criminalisation of poverty.”

“This is not the answer and nor is institutional racism. We call on all homelessness charities, outreach teams and grassroots organisations to step in and challenge racism when they encounter it on the streets or in homelessness settings. It has to end here.”