A summary of the slow progress towards including caste discrimination as a protected characteristic under the Equality Act 2010
On 21 July, the National Secular Society and Lord Avebury wrote jointly to the Prime Minister in protest at the Government’s continuing failure to outlaw caste-based discrimination. The letter indicated that: research undertaken by the National Institute of Economic and Social Research had indicated that it affected well over 50,000 people in the UK; and failure to legislate was “in breach of the UK’s treaty obligations, running contrary to a recommendation of the UN Human Rights Council.”
Citing Begraj & Anor v Heer Manak Solicitors & Ors  UKEAT 0496 13 1706 it said that leaving caste discrimination to the courts put it beyond the reach of victims, particularly because many had scant financial resources, by the very “nature of caste”. The letter also made reference to a legal opinion commissioned by the NSS in 2013 which concluded that the UK is “obliged in international human rights law to legislate for caste discrimination and further obliged to provide victims of such discrimination with an effective remedy.”
The continued procrastination of both the present Government and the previous Coalition has been highlighted previously in L&RUK; and it is opportune therefore to revise and collate our earlier timeline of events and summaries of the legal issues and opinions, here, here, and here.
The Government Equality Office Research Findings, 2010/8 on Caste Discrimination and Harassment in Great Britain concluded that the Government might tackle caste discrimination and harassment through:
- extending anti-discrimination legislation to cover caste (i.e. using the power in the Equality Act 2010 to make caste an aspect of race);
- educative routes; and
- (possibly) extending the criminal law to address caste-motivated harassment and violence.
During the report stage of the Enterprise and Regulatory Reform Bill 2012-13 in the House of Lords on 4 March 2013 significant amendments were supported strongly in relation to clause 57: the insertion of “caste” as a further subparagraph (d) after section 9(1)(c) of the Equality Act 2010, thereby making it a protected characteristic under the “race” criterion. In the course of the “ping pong” consideration of amendments between the two Houses, the Parliamentary Under-Secretary of State for Business, Innovation and Skills, Jo Swinson, stated, [HC Deb 23 Apr 2013 : c 789]
“We therefore propose amendments in lieu of Lords Amendment 37 that will impose a duty on the Government to exercise the power in the Equality Act 2010 that would make caste an aspect of race for the purposes of the Act. We think that that option, rather than the amendment proposed yesterday in the other place, is the best way forward.”
Implementation of provisions within the Act
The Enterprise and Regulatory Reform Act 2013 was granted Royal Assent on 25 April 2013, and included these provisions in section 97 of the Act which amends section 9(5) Equality Act 2010. However, within less than a month the government’s unwillingness to fulfil its promises became apparent. In a leaked letter to the Alliance of Hindu Organisations, (AHO), dated 9 May 2013, 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.”
Nevertheless, on 29 July 2013 the Government Equalities Office, (GEO), published Caste legislation introduction – programme and timetable for the introduction of caste-discrimination legislation, including full public consultation on the prospective legislation in early 2014 with a view to drawing up a draft Affirmative Order for consultation in autumn 2014, “with the final draft Order likely to be introduced into Parliament during summer 2015”.
On 6 November 2013, in advance of her meeting with the UK Government, the UN High Commissioner for Human Rights, Navi Pillay, is reported to have urged the UK to implement caste discrimination laws; and on 13 November 2013 the AHO issued the Press Release Hindu Community Raises Concerns over Government Research on Caste Discrimination. These concerns were addressed in the EHRC Press Release Caste Discrimination, issued on 15 November.
The Commons Library Standard Note The Equality Act 2010: caste discrimination, SN06862 was first published on 9 April 2014, and 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. It 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 judgment at the preliminary Employment Tribunal hearing of Tirkey v Chandok  ET/3400174/13 [for the appeal judgment, see below] 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.
Throughout the year, Lord Avebury and others continued to question government on the progress of the GEO consultation: HL Deb 25 March 2014 cWA93; WA 331–2; HC Deb 9 July 2014 Vol 584(21) c 134WH; HL Written Answers and Statements for 4 August.
On 2 February 2015, we noted the Government had confirmed that it had no immediate plans to make caste discrimination illegal during the current parliamentary session, [HL Deb 2 Feb 2015 Vol 759(96) c 455]. In reply to a question from Lord Avebury (LD), To ask Her Majesty’s Government what is the timetable for implementing the legislation to incorporate caste as a protected characteristic under the Equality Act 2010, Baroness Garden of Frognal (LD) said:
“… we have no immediate plans to incorporate caste into legislation. We are aware of the recent Tirkey v Chandok Employment Appeal Tribunal judgment [Chandhok & Anor v Tirkey (Race Discrimination)  UKEAT 0190 14 1912 which we reported here] and are considering its implications for discrimination law. The judgment opens the possibility of a legal remedy for claims of caste-associated discrimination under existing legislation, in the ethnic origins element of Section 9 of the Equality Act 2010. We note this potential protection and have always stated that we completely oppose caste discrimination”.
Lord Avebury was not convinced and sought an undertaking that, if re-elected in May, the Government would commence the provision and noted the opinion of the Equality and Human Rights Commission that Chandhok was not binding in all circumstances.
In reply to various expressions of concern at the Government’s inaction, Bs Garden said that there was no time left to legislation in the present Parliament and that during the passage of the Enterprise and Regulatory Reform Act 2013 (which inserted the new power into the Equality Act),
“… when the need for explicit caste legislation was debated extensively, it was generally acknowledged that a full public consultation should be undertaken, not least because there was no general consensus on even basic concepts, such as a workable definition of caste itself.”
Moreover, she believed that the judgment in Chandhok “clearly illustrates the need for caution” and suggested that many of the cases currently pending could be brought under the legislation outlawing discrimination on grounds of ethnic origin.
This was confirmed in a letter from Baroness Garden of Frognal to Lord Avebury, a NSS honorary associate.
More recently, the former Bishop of Oxford, Lord Harries of Pentregarth, initiated a further debate with the question “To ask Her Majesty’s Government when they intend to implement the amendments to Section 9 of the Equality Act 2010 that requires the introduction of secondary legislation to incorporate caste as a protected characteristic,” HL Deb 15 July 2015 Vol 764(32) c 572]. During the exchanges, Lord Lester of Herne Hill asked the telling question:
“Will the Minister explain how her replies are compatible with parliamentary supremacy, given that Parliament decided to insert the duty into the statute? Will she also explain how it is compatible with legal certainty, given that the only way one could do it through case law would be by going to the Supreme Court, at a cost of many hundreds of thousands of pounds, when Parliament has decided that it should be done by us by statute?”
and Baroness Royall of Blaisdon (Lab) asked:
“My Lords, the last Government agreed to conduct a feasibility study into if and how it might be possible to estimate the extent of caste-based discrimination in Britain. The research was concluded in November 2014, I understand, but the report has not yet been published. When is the report likely to be published, and why has there been such a delay?”
Whilst Baroness Williams of Trafford, Parliamentary Under-Secretary of State, DCLG, assured the house repeatedly that Government was “actively considering” the matter, her closing comments suggested an unwillingness to act:
“My Lords, the case law provides potential protection for someone wishing to claim caste discrimination, which is what all sides of this House wanted during earlier debates. We need to consider carefully whether putting the word “caste” into the Act would actually change or clarify the legal position.”
 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.
 Last revised on 31 December 2014.
 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.