Question for Short Debate
My Lords, I begin by paying two short tributes. The first is to the late Lord Avebury, who died in February. Eric fought persistently for human rights in all forms, not least against caste-based discrimination. We miss his tenacious refusal to be deflected from this goal. The other person is Dr Ambedkar, the 125th anniversary of whose birth has been celebrated this year. Dr Ambedkar was the architect of the Indian constitution with its fundamental principles of equality and justice and which outlawed caste-related untouchability.
Perhaps I may make two clarifying points. First, what we are concerned about is discrimination in the public sphere. If people have deeply ingrained beliefs about who their children should or should not marry, we may have views about it but the law has no locus. The law is concerned with what happens in public. It exists to ensure that there is no discrimination in the areas of employment, education and the provision of public goods and services. Secondly, we are concerned with caste as a social phenomenon, which has affected all religions from the Indian subcontinent, including Christianity and Islam. Sadly, the noble Lord, Lord Ahmed, has had to withdraw his name from this debate. He was going to speak forcefully about his experience of caste-based discrimination among Muslims of Pakistani origin in Bradford.
The Enterprise and Regulatory Reform Act 2013 amended Section 9(5) of the Equality Act 2010 to provide that the Government,
“must by order ... provide for caste to be an aspect of race”.
The word used is “must”, with no equivocation or qualification, and what we are talking about is an Act of Parliament passed by both Houses.
In July 2013 the Government introduced a timetable which set out a series of steps, including a public consultation, which was to lead to the implementation of this Act in the summer of 2015. As part of the process Ministers approved a feasibility study to be conducted into if and how it might be possible to estimate the extent of caste-based discrimination in Britain. A consortium conducted the research in the autumn of 2014. The consortium’s report was due in November 2014, but it is yet to be published. My first question to the Minister therefore is: why has this research not been published? The question posed by the Government was clear enough. Is it or is it not possible to estimate the extent of caste-based discrimination in the UK? If it is possible, why has this not been carried out? If it is not possible, or if there is a downside to doing so, we need to hear the reason for that. In either case, there is no good reason to stop the process there or to refuse to go into a public consultation. It is not necessary to know the extent of caste-based discrimination in the UK to put into effect the clear decision of both Houses of Parliament. Even if caste-based discrimination in the public sphere were not extensive, it exists and Parliament has made it clear that it should be made illegal.
I took steps myself to interview someone who had experienced discrimination in employment and I found his case entirely convincing. When we have raised these issues in the past, the Government have repeatedly cited the Tirkey v Chandhok employment tribunal case as a reason for non-implementation of the legislation so far. In that case the tribunal noted that caste-based discrimination can constitute unlawful race discrimination in certain contexts and that caste should be an aspect of race as defined by Section 9(1) of the Equality Act 2010. However, the judge made it clear that he was dealing only with the facts of that case and was not making any more general point about caste and the law.
As the Equality and Human Rights Commission commented, the tribunal judgment,
“means that not all victims of caste discrimination will find remedy under the existing law. While it is helpful to have an EAT decision that the Act is capable of providing protection against caste discrimination, the judgment results in the position that each case in which caste discrimination is alleged will have to be considered on its own facts. While caste discrimination can be found to constitute unlawful race discrimination under the Act, this will not necessarily be so in all cases. Thus, the legal position remains unclear”.
It goes on to urge:
“In our view it is both necessary and desirable for the Government to implement Section 9(5) of the Equality Act 2010, in order to clarify that the Act’s prohibition of race discrimination and harassment includes protection against discrimination and harassment based on caste”.
I think the Minister, as well as the whole country, would find it quite intolerable if issues of discrimination on the basis of gender, race or religion were left simply to employment tribunals with no statute law to back them up. Why should discrimination on the grounds of caste be regarded as different? It is expensive and difficult for an individual to pursue a case via a tribunal in this way. Why should they be asked to do this when the law is quite clear on race, gender, religion and sexuality? Furthermore, as we know with all the other protected characteristics—gender, race, religion and sexuality—the law has had a hugely powerful educative effect. It cannot completely change what goes on in people’s minds and we still get instances of sexist, racist or homophobic abuse, but no one would deny that the law has brought about a fundamental change for the good in this area.
I have in my possession a letter from a women who wrote to me to say:
“My first experiences have been from an early age about being constantly asked what caste I am. I can only explain that it makes me feel like an outcast if you don’t conform to society’s ways of thinking. If you stand up against caste and explain there is no caste you are frowned upon and regarded as you have something to hide and that you’re probably from a so-called lower caste. I have been asked this question about my caste constantly at school, social events, Sikh temple and amongst friends. It’s an evil that is embedded in most Sikhs and no matter what an individual’s understanding of human rights and discrimination, they will still have the burning desire to ask the question and instantly form a negative or positive opinion of that person dependent on one’s caste. My daughter has been asked the same question in a religious education class at her secondary school … I hope this has given you a little insight as to how caste is a menace in society and people of all walks of life find it acceptable in their minds to enforce this form of discrimination”.
This is despite Sikhism being, in principle, totally opposed to the caste system, as the noble Lord, Lord Singh, has consistently stressed. We are dealing with a social phenomenon which has, sadly, permeated whole religious communities.
If the taunting of that woman’s children had been anti-Semitic or racist, the law would have stood behind attempts by the teachers or the community to outlaw that abuse. At the moment it does not, and it should. This is a matter of deep seriousness to the hundreds of thousands of Dalits in this country, who see their fellow citizens protected from discrimination on other grounds in a way they are not. It is for them and for organisations such as CasteWatch that I urge the Government to do their constitutional duty, as they are being urged to by the Equality and Human Rights Commission. Those who are discriminated against find it totally intolerable that the clear will of both Houses of Parliament is being frustrated in this way and that, as will be stressed by the noble Lord, Lord Cashman, we remain in clear breach of our international obligations on this issue. I beg to move.
My Lords, I thank the noble and right reverend Lord, Lord Harries, for introducing this debate. I confess my admiration for his persistence on this matter, however much I disagree with him. I hope it goes without saying that I stand opposed to all forms of discrimination. Having been a victim of violence and prejudice and having been forced out of the country of my birth because of my skin colour, I can sadly say that too much of my life has been shaped by discrimination. Yet I am strongly opposed to the amendment to the Equalities Act 2010 that was brought in during the last Parliament.
At the time it was passed, I was a Government Whip alongside my noble friend the Minister. With that role comes many great privileges, but it also means that there are occasions when you are unable to speak out on some matters that you care about. Unfortunately, this was one such occasion—I am sorry that I was unable to express a much clearer view on behalf of the vast majority of the British Hindu community. The Government were, at the time, opposed to the amendment to the Equalities Act for wholly sensible reasons. There are a number of difficulties with the amendment: reaching a consensus on the definition of caste; questions over the actual level of caste discrimination in the UK; the question of whether amending the list of criteria to include caste would actually be a help or a hindrance, given recent advances in case law through the Employment Appeal Tribunal. The Government’s position was supported by the elected House of Commons, but a coalition of Liberals, Cross-Benchers and Labour Peers failed to heed the wishes of our elected representatives, with 181 Peers voting for the amendment, and 168 Conservative Peers voting against.
I feel that the amendment to the Equalities Act should be withdrawn for a different reason. I have spoken before in your Lordships’ House about the successes of the British Indian community and my pride at how well integrated the community is: it is a vital part of the nation’s social fabric. In fact, more than half the 1.5 million British Indians were born in the UK. They do not know what caste is or what caste they belong to. One of the advances the British Indian community has made is to embrace the values of this great nation and to leave behind the rigid, outdated and divisive notions of caste. This has been a great advance and differentiates us from almost every state in India. My concern is that, however well intentioned the noble and right reverend Lord, Lord Harries, is in pushing this cause, he is actually bringing to the surface social forces that are almost entirely irrelevant to this country.
I do not believe that those communities who come to the UK should be able to bring their own values and rules. They should make every effort to fit into the society around them. By making caste such a prominent part of our discrimination laws, I fear that we are undermining community cohesion rather than strengthening it. All noble Lords will agree that this matter is hugely divisive. The British Hindu community has felt somewhat persecuted by this caste discrimination campaign. They cannot understand why, when there is so little evidence of caste discrimination, we are pressing ahead with legislation that our elected representatives did not support. It points to a worrying trend; we are so often looking for ways to differentiate ourselves from each other, to find subcategories that we belong to. I fear that this is yet another way of trying to make people different, rather than looking to unite people.
I urge the Government to bring forward legislation to repeal the amendment to the Equality Act 2010. It is extremely difficult, if not impossible, to implement. It is unnecessary, given that there is little hard evidence of caste discrimination. The amendment supports out-of-date notions of caste that belong in a different continent, it was not supported by our elected representatives, and it is divisive and hugely offensive to most British Hindus. I hope that the Minister will set out a clear path for repeal of the amendment as soon as possible.
My Lords, I congratulate the noble and right reverend Lord, Lord Harries, on securing this debate, and I pay tribute to the late Lord Avebury.
The aspect of the Government’s failure to make caste discrimination unlawful under statute that I find the most worrying is their casual disregard of the United Nations and our international treaty obligations. The 2012 UN Human Rights Council’s recommendation could not be clearer. It states:
“Put in practice a national strategy to eliminate discrimination against caste, through the immediate adoption of the Equality Law of 2010 that prohibits such discrimination, in conformity with its international human rights obligations, including”,
the Committee on the Elimination of Racial Discrimination’s,
“General Recommendation 29 and recommendations of the Special Rapporteur on Contemporary Forms of Racism”.
The sorely missed late Lord Avebury, who cared so much about protecting the Dalits, and the National Secular Society commissioned an expert legal opinion that confirmed that the UN was correct in asserting that our international human rights obligations require us to legislate on caste. The influential Equal Opportunities Review responded to the opinion by stating that,
“there seems no convincing justification for the Government not to agree to bring the prohibition on caste discrimination into force”.
The key points from the detailed and carefully referenced opinion include, first, that where discrimination has been identified, states are under,
“a positive obligation to take effective action”.
Further, it is stated that,
“criminal laws and other legal provisions prohibiting racial discrimination must also be effectively implemented”,
“where a State Party fails ... that State Party violates article 2.1(d) of the Convention”.
Further, the violation cannot be justified, either in principle or on the facts, by the necessity of either further evidence-gathering or consultation. Secondly, the obligation in Article 2.1 of the convention is described as being one which applies “without delay”. Thirdly, where the adopted laws,
“do not seem to respond fully to the requirements of the Convention”,
a state party will fail to uphold its obligations.
Therefore, the UK is obliged in international human rights law to legislate for caste discrimination. Its failure to do so since 2002, and certainly since 2010, is a violation of Article 2.1 and Article 6 of the convention. This could hardly be clearer. Your Lordships may be surprised to discover that in 2014 Her Majesty’s Government told the UN in the mid-term government report that they intend “to introduce legislation” under the Equality Act and that:
“A public consultation process on the detail of the prospective legislation is expected later in 2014”.
Yet by 2015, Caroline Dinenage MP, replying on behalf of the Government Equalities Office to a letter to the Prime Minister, told the National Secular Society that Her Majesty’s Government were of the view that,
“we are fully compliant with our international obligations in this area”.
She added that she had asked for the legal opinion that I have cited, which the Government have had for three years,
“to be given further consideration”.
What is the result of that consideration?
Case law falls far short of the obligations I have cited, even if it were unambiguous. Yet Ms Dinenage and the Minister, the noble Baroness, Lady Williams of Trafford, acknowledge that the Tirkey case on which they rely provides only “potential” protection—hence the former’s unconvincing reference to seeing,
“the development of case-law that provides protection against it as helpful”.
In summary, we are obligated to legislate and have told the UN that we will; yet instead of doing so, Her Majesty’s Government are asking us to believe that they hope someone will come forward to clarify the case law. That is entirely unacceptable. In conclusion, it is indefensible that the Government have shown so little concern to protect the victimised, and I ask on their behalf that the Government now comply with our international obligations. I also ask for an undertaking for the immediate insertion of caste into the Equality Act, which could be achieved by secondary legislation. I urge the Government to endorse the UN principles and guidelines on combating discrimination based on work and descent, and pay tribute to the outstanding work of the International Dalit Solidarity Network and the strides that it has made, particularly across other parts of the European Union.
My Lords, when I listened to the noble Lord, Lord Popat, it took me back to 1974, when I heard similar arguments against having legislation on sex or race equality.
Over the past year I repeatedly asked Questions for Written Answer by Ministers. I have asked why the 2014 feasibility study on caste discrimination has not yet been published, when the Government plan to consider the case for further consultation on caste discrimination, and for clarification on how Tirkey v Chandhok has in the Government’s view changed the law on caste discrimination. The answer is always the same and I paraphrase: “We are currently considering what steps to take”.
It is more than three years since Parliament placed a duty on the Government to activate Section 9(5) of the Equality Act 2010. It is more than 18 months since the caste feasibility study was completed and it has still not been published. It is also more than 18 months since the Tirkey verdict, and 12 months since the finding on the facts in the full liability hearing. Ministers have said that they understand the Employment Appeal Tribunal in Tirkey as,
“providing an existing legal remedy for claims of caste-based discrimination”.
That view is not sustainable. In Tirkey, Mr Justice Langstaff, giving the Employment Appeal Tribunal’s judgment, found that “ethnic origins” was a wide and flexible phrase covering questions of descent, and that some of those situations would fall within an acceptable definition of caste. He decided that no separate claim for caste discrimination was possible. At paragraph 55, he expressly recognised the limited impact of his judgment. His focus, he explained, was on,
“this particular case, in its particular circumstances”,
and his role was not to “establish more general propositions”. It is clear that the Employment Appeal Tribunal was not setting out a definitive decision in principle on whether discrimination on the ground of caste was within the scope of the Equality Act. At the full hearing in July 2015, Ms Tirkey succeeded in her claims for unfair dismissal, racial harassment and indirect religious discrimination. She was awarded a substantial sum at a subsequent remedy hearing. However, the decision did not indicate, still less establish, that there is an existing legal remedy of caste-based discrimination.
The current state of the law lacks legal certainty. There is no binding and authoritative legal precedent. That legal uncertainty violates the rule of law and the Government’s continuing inaction violates parliamentary sovereignty. The uncertainty could be removed either by expensive and protracted litigation up to the Supreme Court or by the Government performing their statutory duty without further procrastination, thereby respecting parliamentary supremacy and the rule of law. The EHRC supports the need for the Government to do so. The noble Lord, Lord Popat, disagrees with Parliament’s clear command. He is entitled to that view but Parliament is sovereign. I call on the Minister to inform the House unequivocally in her reply whether the Government will now perform the duty cast upon them by Parliament. If not, what is their justification for refusing to do so? It is time to end the continuing failure to give effect to the will of Parliament.
My Lords, I, too, thank, the noble and right reverend Lord, Lord Harries of Pentregarth, for bringing up this issue again. I hope that very soon we will not just thank each other but that things will actually start to happen. There has been talking for a long time but nothing has been done. I am very pleased to see the noble Baroness, Lady Thornton, on the Labour Front Bench, because she was very important in including this measure in the Act. I thank her for her wonderful contribution.
The noble Lord, Lord Popat, says that the vast majority of Hindus do not want caste discrimination to be included in the Act. What else are they going to say? Of course they do not. Why would they want caste discrimination to be part of the Equality Act? They cannot possibly want that. I had a long discussion with one of the policy advisers to the noble Baroness, Lady Williams of Trafford. He said, “We get a lot of evidence from the Hindus but we have not had much from the Dalits”. I do not know about that. However, if you talk to the Hindus in general but not to the Dalits, you will get the evidence vis-a-vis no caste discrimination because you are talking to the people who will be stigmatised by caste discrimination being included in the Act. Naturally, they are not going to say, “Oh, there is caste discrimination”. They are a powerful group of people. There are a lot of Hindu organisations and they have a lot of connections in Parliament, possibly in the House of Lords as well. We have to be aware that they have quite a lot of pull in this matter.
I was very interested to hear the noble Lord, Lord Popat, say that the young do not know about caste. Well, they know about it when it comes to marriage. We do not care whether they marry this person or that person, and perhaps they do not care, but they know about caste because their parents tell them. They say, “We’d like you to marry someone in your own caste”. Also, at gatherings where a person of a certain caste comes to meet girls or boys, all the girls and the boys in that meeting will be from a certain caste, so that they do not have to worry about which caste they are going to meet as the girls will meet boys from their caste and the boys will meet girls from their caste. Therefore, I think that the young do know about caste. I think that everybody knows about caste.
I grew up with caste in India, not in the UK. I have not experienced any caste-based discrimination, although I have had plenty of gender-based and race-based discrimination. Sometimes it is confusing to know whether the discrimination is due to gender or race or both. In India, when I was a child, we had a Brahmin cook because we are of the merchant caste, and many people would not have eaten in our house if we had not had a Brahmin cook. Therefore, most of us are aware of caste, whether we are living here, or in Africa. Wherever we have gone, we have taken this with us. It is truly a stigma on Hinduism as far as I am concerned.
There are two things which Hinduism needs to look at and get rid of—caste is one and the other is dowry. Girls have a terrible time because of the dowry system. They are killed and aborted because of it. In Punjab now there is an 11% difference as between the numbers of girls and boys. I am not saying that is happening here but we had one case of the abortion of a girl foetus, although that was not proved to be gender-based. We need to be very aware that people who live with certain types of practices do not just give them up because they move from one country to another. It is so much a part of their psyche and so ingrained in their thinking that it is not easy for them to get rid of it, even if logically they think it should be got rid of.
Many reports have been produced on this issue, including two from the Equality and Human Rights Commission. The Labour Government also commissioned a report before they left office. All those reports came out in favour of including caste discrimination in the Equality Act. The time has come for us to face this fact. What is the point of constantly talking about the Tirkey v Chandhok case? The judge in that case said quite clearly that it involved specific circumstances, not general circumstances that affected everybody in discrimination cases. There may be discrimination in housing, employment and education, but not all those cases will be affected by the circumstances that applied in Tirkey v Chandhok. It is pointless to think like that.
My Lords, I, too, congratulate the noble and right reverend Lord, Lord Harries, on initiating this debate. I apologise to the Minister as what I have to say will be fairly tough and is not aimed at her. This issue is personal for me because when we last debated it I was given undertakings by the Government, as a result of which I urged the House not to pass the amendment. The Government told me that if the amendment was not passed they would take measures, do the research and then introduce the changes. I spoke up for the Government on that occasion. The Government lost the debate and have been told by Parliament that they must, by order, introduce this measure by means of secondary legislation. However, the Government are refusing to do that, having promised me that even if we did not pass the measure they would take action.
I have to say that every part of this debate has been a shame on our democratic system. The Government have to accept that Parliament has spoken. My noble friend Lord Popat proved that because he wants the legislation to be reversed. He knows that the only way in which he can win on his point of view, which I disagree with very deeply, is by having the legislation reversed. The Government cannot argue that because of a partial decision by a tribunal they are excluded from the need to legislate. They have to legislate—that is what the law says. That leads me to believe that the only reason the Government have not legislated is a pretty unacceptable one. It is interesting that people are more enthusiastic about dealing with this when in opposition than was noticeable when they were in government. Both parties must accept that they failed to do in government what in opposition both parties have recognised that they ought to do. Therefore, it seems to me that powerful forces have been employed to inhibit Governments of both parties from taking measures which any ordinary, sensible person should insist they take.
If the Government rely on the tribunal decision, there can be no reason why they should not confirm it by taking the action on which Parliament has insisted. If this tribunal decision is in their minds good enough, why cannot they do what Parliament said? There is nothing wrong in reinforcing that, particularly as its reinforcement would mean that the Government would not be in breach of the United Nations, which they clearly are. However the Minister explains it, there is no doubt that we are not in conformity with that body. Indeed, the Government have admitted that—in replying to the United Nations they said that they were in the course of arranging to be in conformity. Well, they have been in the course of doing so for some time and it still has not resulted in the answers which this House wants.
I say to my noble friend Lord Popat that this House changed the law and it was accepted by the other House. It is no good saying that somehow this issue is different because we agreed it. The fact is that in the end the House of Commons saw that we were right. That is why we are here. If that is not why we are here, why the blazes do we turn up and have these arguments anyway? My noble friend has got to accept that this is what Parliament has decided.
I am happy to see that Mrs May is now leader of the Conservative Party—thank God. In her first statement, she reminded the Conservative Party that her first principle was to ensure that all people had a fair do in life. Can one possibly say that and yet exclude from the fair do in life those who happen to be Dalits? This is the first chance that a new Government have got to stand up and tell this House that they intend to obey the law. The only alternative is to tell this House that they intend to disobey the law. I do not believe that is a proper position for any Government.
My Lords, I thank the noble and right reverend Lord, Lord Harries, for persisting with this amendment. It has been explained what the law is and what the Government ought to do. So why do they not do it? Obviously, there is a very strong lobby—let us call it the caste Hindu lobby—which is very powerful, prosperous and persistent. They have abandoned me but I know they would love to get me on their side. A lot of false arguments are made. I was asked by somebody: “Why do the Government want to abolish caste?”. Nobody is abolishing caste; caste is a part of the identity of everybody who comes from the Indian subcontinent, which includes Pakistan, Bangladesh, India and Nepal. One does not mind something that is part of people’s identity and the culture that they have grown up with. As the noble Baroness, Lady Flather, explained, there are issues with ritual purity, eating and so on. That is fine: we are not objecting to caste; we are objecting to discrimination based on it. It is not a caste’s internal behaviour, among themselves, that we are interfering with. We are asking questions about the interaction between two people of different castes. When there is evidence that there is discrimination and we cannot find any other reason, like gender, to establish why the discrimination is there, then it has to be because of caste.
The Conservative Party obviously wants to win votes and seats. I do not blame them for that; who does not? However, they have to explain to the people who are objecting that the Government’s programme is a minimal programme of preventing discrimination and bringing our law into line with our UN obligations. They should also say that that is the law in India. They are not passing a law which is un-Indian. They are passing a law which is entirely in coherence with India’s constitution and law. To the extent that the Government are being reluctant to challenge the lobby, they are playing a vote-bank game. They ought to ask themselves whether it is worth however many seats there are to persist with an injustice for which there is evidence and which will give us a bad name in international law. The law having been passed by Parliament, the Government are definitely in breach of their obligations under the law.
Another argument which is made is that there is no discrimination; it is entirely the perception of non-Indian people who see discrimination everywhere. If there is no discrimination, what is the problem with passing the law? If there is no discrimination that is good, but they should pass the law just in case. Then they should try to find evidence and see a report from the appointed research bodies that they tried hard, dug everywhere but found no discrimination. The Government should then say: “Even so, we will go on monitoring this issue because we have an obligation under the law”. We have to say to the lobby: “We love you, but we cannot allow you to do things which are in violation of the law of the land”. It is not only the law of the land; it is internationally accepted standards of justice. There is no election until 2020—one hopes—so I advise the Government and people who are worried about elections that they have enough time to convince these lobbies that they are wrong and that they should help the Government comply with the law and fulfil their obligations.
My Lords, I congratulate the noble and right reverend Lord, Lord Harries, on bringing this debate to the Floor of the House. There are very few issues which would get me back to the Dispatch Box but this is definitely one of them. This debate feels like déjà vu all over again, with many of the same actors: the noble Baroness, Lady Flather, the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Deben, with whom I completely agree. In fact, I felt that I should stand up and just say: “I agree with Lord Deben”, and sit down again. I will not quite do that. There are also some new and distinguished additions, such as my noble friend Lord Cashman. There is, of course, a different Minister, so maybe there will be a different result to this particular debate.
My noble friend Lady Royall and I were the people who placed this power in the Act in 2010. I feel that we owe an apology. I think that the Government do too, and I would like to apologise to the Dalit community in the UK for having lived with inaction on this issue for so long. We gave the power in 2010 to put forward caste discrimination as a protected characteristic. It is shocking that we have not done so. I commend the Anti Caste Discrimination Alliance for its persistent and excellent briefing—unfortunately, all over again.
Over the past 60 years, there has been, as we know, a gradual and welcome increase in the number of people in the UK from the Indian subcontinent. These communities have of course brought with them their own social habits, norms and religious customs, as outlined by my noble friend Lord Desai. I say to the noble Lord, Lord Popat, that it is never comfortable to have issues of discrimination pointed out. It is always the case, as the noble Lord, Lord Lester, said, that arguments are used about communities and families every time we discuss discrimination by those people who do not want to put anti-discrimination legislation on to the statute book. That happens every time. As a woman, I can tell your Lordships all the arguments that have been used over the years, even in this House, about why women should not be here, why we should not vote, why we should not be able to do this or that or the other. This is not a new argument, but that does not mean that discrimination does not exist.
In 2013, what is now Section 97 of the Enterprise and Regulatory Reform Act was amended so that the Act would provide that the Government must make such an amendment. Yet three years later the Government have still not clarified the Act to provide that caste discrimination is an aspect of race discrimination. In 2013, the United Nations High Commissioner for Human Rights, Navi Pillay, said in a powerful speech in the House of Lords that we needed to act on the “insidious stain” of caste discrimination and urged the UK not to tarnish its excellent record on human rights by delaying implementation of UK anti-caste-discrimination legislation. She added that there was a need for “strong, swift implementation” of the amended Equality Act 2010 to protect people in the UK from low-caste backgrounds.
We have seen the opposite of strong and swift. “Flabby and slow motion” would better describe the lack of activity since 2013. This lack of activity, as the noble Lord, Lord Deben, and others have said, shows a contempt for Parliament that is really unacceptable. Perhaps I may invite the Minister to speculate on how the Dalit community in the UK and the United Nations might view this lack of action by the UK Government. Since we discussed this matter in 2013 and passed the amendment, from which organisations and stakeholders have the UK Government had subsequent representations to discuss caste-based discrimination in the UK? With which organisations and stakeholders have they had meetings? How do the Government intend to ensure a regular and meaningful dialogue with the stakeholders in the future? Finally, what steps do the Government plan to take to implement this legislation at last?
My Lords, I am pleased to answer this Question for Short Debate. I thank the noble and right reverend Lord, Lord Harries, for securing a discussion on what is a very sensitive issue, which is very important to several communities within society. I thank all those who have spoken today for their contributions.
I would like to make it perfectly clear from the outset that this Government, like their Labour and coalition predecessors, completely oppose any discrimination that people may suffer because of caste or for any other reason. We are committed to ensuring that the appropriate level of protection against caste discrimination exists.
However, before I proceed, I, like other noble Lords, pay tribute to the unstinting work of the late Lord Avebury, who did so much to bring the matter of caste discrimination before us here in this place. Among the many causes that he pursued with passion, he had an unswerving conviction to ensure that people in our society were properly protected against caste discrimination. It is therefore with some poignancy that we feel his absence from the debate today, to which he would definitely have contributed.
Listening to noble Lords who have spoken, it is clear that we all want the same thing. We want people to have a decent level of protection against any discrimination that is suffered because of caste. Discrimination on racial grounds is abhorrent and—this applies to caste above all—has no place in modern society. Most of us here today will be well aware of the history of this issue. It is right that where people see injustice they express their concerns and work diligently to ensure that the more vulnerable among us are given due protection. Those concerns have been expressed thoroughly, passionately and cogently, here and in another place.
During discussion on what subsequently became the Equality Act 2010, a debate as to whether the race provisions in that Bill already provided a level of protection against discrimination because of caste first took place. At that time, any such consideration was essentially a matter of conjecture. There was legal doubt about the level of protection that may exist, which is why the power, later converted to a duty, was included in the Act to enable caste to be added as an aspect of race for the purposes of the Act. Since then the legal position has developed. Thanks to the case mentioned by noble Lords, Tirkey v Chandhok, anyone who feels that they have been discriminated against because of caste can potentially bring a case of discrimination under the existing protections contained in the Equality Act 2010—namely, the ethnic-origins limb of the race provisions. Justice Langstaff said:
“There may be factual circumstances in which the application of the label ‘caste’ is appropriate, many of which are capable—depending on their facts—of falling within the scope of s 9(1) [of the Equality Act], particularly coming within ‘ethnic origins’, as portraying a group with characteristics determined in part by descent, and of a sufficient quality to be described as ‘ethnic’”.
It is clear from the high level of damages awarded to Ms Tirkey how seriously the court took her case. She was awarded nearly £184,000 in respect of unpaid wages and a further £35,000 for damages to feelings, which we believe to be one of the biggest ever awards for non-pecuniary losses. That award reflected the seriousness of the case.
However, there is no clear and unambiguous definition of caste. There is no unanimous collective agreement as to what it constitutes. That much is clear from listening to academics and stakeholders and from reading the research in this area. It is therefore unclear what relevant factors of caste, if any, would not potentially be captured by the Justice Langstaff ruling. As the Government, we need to consider carefully whether simply putting the word “caste” into the Act would actually change or clarify the legal position. It may well be that the ruling in Tirkey v Chandhok already provides the appropriate level of legal protection that is needed against caste discrimination.
At the time of the Langstaff judgment, concerns were expressed by some noble Lords that the judgment could be appealed to, and overturned by, a higher court. That has not happened. However, the Government would certainly be prepared to consider intervening in any case that appeared to pose a legal risk to the precedent that Tirkey v Chandhok has established. We are monitoring litigation in the courts and tribunals for any case that would appear to test—or, for that matter, support—the Tirkey judgment. However, we are currently unaware of any cases of race discrimination with an alleged caste element coming before the courts since the Langstaff judgment was delivered.
The noble and right reverend Lord, Lord Harries, asked why the research has not been published. The research that the Government commissioned jointly from TNS BRMB and the NIESR was not about determining the extent of any caste discrimination that may be occurring in Great Britain; rather, it was a feasibility study into whether or not such research could be undertaken. The study has not been suppressed in any way. It also looked at the feasibility of the legislative provision to review the caste duty from 2018, and we are considering the study’s conclusions and recommendations as part of our broader consideration of the caste duty.
My noble friend Lord Popat said that the issue of caste is outdated and talked about reversing the amendment to the Equality Act 2010.
We probably should not hold up the discussion. The noble and right reverend Lord, Lord Harries, asked why caste is different and said it was more expensive for claimants to pursue a case in this way. I cannot see how the inclusion of the single word “caste” in the Act would reduce the cost of bringing a discrimination case or make any difference to the tribunal fees or other costs, given the precedent set by the judgment in Tirkey v Chandhok.
The noble Lord, Lord Cashman, said that the EAT judgment makes it clear that domestic law on race must reflect international law and the International Convention on the Elimination of All Forms of Racial Discrimination. He asked why the Government did not accept this and bring the Equality Act into line with our international obligations by putting caste into it. The Government’s view is that the UK is already fully compliant with our international obligations in this area. That is borne out by the decision reached in the EAT case.
The noble Lords, Lord Cashman and Lord Lester of Herne Hill, said it was unacceptable for the Government to wait for clarification of the case law. We accept that in Tirkey v Chandhok, Justice Langstaff was clear that his judgment was fact-specific and not a definite statement that all potential caste cases could be covered by the ethnic origins provision. However, he did not identify any aspects of caste that could not be so covered, and so far neither have we.
My Lords, I took only three minutes for my speech and therefore I feel entitled to ask the Minister unequivocally to reply to my question, which she has not done. Am I right in interpreting what she said as being, “No, we do not intend to legislate”?
I will try to be clear by the time I get to the end what my answer ultimately is. As the noble Lord, Lord Deben, said, we have a new Prime Minister today. He also made the point that the judgment is not binding and could be overturned at the next caste-related case.
Judgments set at the Employment Appeal Tribunal level are binding. The judgment could potentially be overturned by a higher court, but that is the same for all case law decisions, short of the Supreme Court. The precedent set by Tirkey v Chandhok has stood since 2014 and we are not aware of any potential challenge to it. If there were such a challenge, as I have said before, the Government would certainly be prepared to consider intervening to ensure that the judgment was upheld.
I finish with the noble Lord, Lord Deben, in saying that the new Government must stand up and obey the law. I agree that this is an issue which the new Administration, led by the new Prime Minister, who herself was Minister for Women and Equalities from 2010 to 2012, will need to consider afresh, and I am sure that they will. I knew this debate would raise feelings on both sides, and it has. It is a complex issue, which is why the Government have been diligently considering the implications of the judgment.
I thank the noble and right reverend Lord for raising this important issue in the Chamber, and all noble Lords for their valuable contributions. I close by repeating what I said earlier. I believe that we all want the same thing, which is to ensure that there is an appropriate level of protection for everyone against the harm of caste discrimination. I know the whole House supports this aim. The real question is how best to achieve that for the benefit of everyone, which is exactly what this Government are currently considering.