An earlier post plotted the timeline of events from the Report stage of the Enterprise and Regulatory Reform Bill 2012-13 on 4 March, when House of Lords overwhelmingly on the inclusion of “caste” as a protected characteristic under the “race” criterion of the Equality Act 2010, to the issue of a Press Release of the Equality and Human Rights Commission on 15 November 2013: the EHRC’s CEO, Mark Hammond, responded to the concerns raised by the Alliance of Hindu Organisations, (AHO), an organization opposed to these developments with whom the Minister for Sport, Tourism & Equalities, Helen Grant, (Con. Maidstone and the Weald in Kent) is reported to have stated:
“I made no secret at our meeting – and nor do I now – of my disappointment that it has been necessary for the Government to concede to making an order to include caste as an element of race in the Equality Act 2010.
We remain concerned that there is insufficient evidence of caste-based discrimination to require specific legislation. We also have concerns that incorporating caste into domestic law – even in the context of anti-discrimination – may send out the wrong signal that caste is somehow becoming a permanent feature of British society.”
Under this compromise agreed by Government, section 97 of the resulting Enterprise and Regulatory Reform Act 2013 amended section 9(5) of the Equality Act 2010 to require a Minister of the Crown to exercise the power to make caste an aspect of race, i.e.
“A Minister of the Crown must by order … amend this section so as to provide for caste to be an aspect of race
Although “may” in the original draft was replaced by “must” in the version as enacted, the section did not specify a time by which the power must be exercised but on 29 July 2013 the Government published a timetable of events, see below,and on 28 February, the research undertaken by the Equality and Human Rights Commission was published .
On 9 April the Commons Library Standard Note SN06862 The Equality Act 2010: caste discrimination was published, which provides an overview of the concept of caste, explains the existing law and sets out the background to the order-making power in the Equality Act 2010. After examining the meaning of the term “caste”, it traces attempts at introducing “caste” as a protected characteristic within the UK parliament, from its consideration during the passage of the Equality Bill (Bill No 131 of 2008-09) under the Labour administration. Although an answer to a Parliamentary Question in June 2007 had indicated that caste discrimination would be considered by the Labour Government as part of its Discrimination Law Review which preceded the Equality Bill, [HL Deb 19 June 2007 cWA33], the government response to the consultation on the Bill made it clear that caste discrimination would not be addressed.
The Standard Note includes relevant extracts from the debate at various stages of the Equality Bill and the Enterprise and Regulatory Reform Bill, and the National Institute of Economic and Social Research report in December 2010 as well as the more recent EHRC work . It also notes the non-binding Resolution of the European Parliament of 10 October 2013 which called upon the Commission
“to recognise caste as a distinct form of discrimination rooted in the social and/or religious context, which must be tackled together with other grounds of discrimination, i.e. ethnicity, race, descent, religion, gender and sexuality, in EU efforts to fight all forms of discrimination; calls for the EU, in its policies and programmes, to consider people affected by caste-based discrimination as an identifiable group”
and the non-binding judgement at the preliminary Employment Tribunal hearing of Tirkey v Chandok (ET/3400174/13), 24 January 2014 which held that caste discrimination may already constitute unlawful race discrimination, and that “caste” may be an aspect of race under section 9(1) of the Equality Act 2010.
The Government’s timetable on its consultation on how best to prohibit caste discrimination was announced on 29 July 2013 and includes:
– preparation of a full public consultation, drawing on research;
– issue of consultation in February or March 2014, lasting for twelve weeks and concluding in May/June 2014;
– analysis of consultation responses and conduct sector-specific engagement during summer 2014 the Government;
– publication of Government’s consultation response and draft order during autumn 2014;
– twelve-week consultation on the draft order ending in February 2015;
– the final draft order likely to be introduced to Parliament during summer 2015.
On 25 March 2014 Lord Avebury (LD) asked “on what date the Government Equalities Office wrote to all government departments seeking their approval to launch the consultation on the introduction of caste legislation”, although in reply Baroness Northover (LD) said “Government does not disclose information relating to internal discussions in order to preserve “collective responsibility”, HL Deb 25 March 2014 cWA93.
Nevertheless, when the consultation is published the debates relating to the inclusion of caste discrimination as a protected characteristic will be revisited, for which the recently issued Standard Note provides a valuable source of reference.
 Equality and Human Rights Commission Research report 91, Caste in Britain: Socio-legal Review, 2014; Equality and Human Rights Commission Research report 92, Caste in Britain: Experts’ Seminar and Stakeholders’ Workshop, 2014