Government U-turn on caste discrimination not entirely voluntary! (23.04.2013)

“You cannot build anything on the foundation of caste. You cannot build up a nation. You cannot build up a morality. Anything that you will build on the foundation of caste will crack and will never be a whole.”

Dr. Bhimrao Ramji Ambedkar, the Father of the Indian Constitution

On 1 March 2013 the Minister for Women and Equalities announced in Parliament that she would not be exercising her Ministerial power/prerogative contained in section 9(5)(a) of the Equality Act 2010 to treat ‘caste’ as an aspect of ‘race’.

Whilst recognising that caste discrimination did exist as a problem in the UK and accepting that no one should suffer prejudice because of their caste, the government considered that the most effective and appropriate way of tackling the problem was through a programme of education.

The decision dismayed many who belong to the so called ‘low’ castes and are the victims of caste discrimination, including SR, a 44 year old British born Hindu born into a so called ‘low’ caste.

On 5 March 2013 the House of Lords, led in the charge by the tenacious Lord Harries of Pentregarth, defeated the government’s position by 256 votes to 153 and backed an Enterprise and Regulatory Reform Bill amendment to add caste to the definition of ‘race’ under the 2010 Act.

On 16 April 2013 the House of Commons voted against adding caste discrimination to the 2010 Act by 307 to 243, a majority of 64.

Following the Ministerial Statement and the result of the House of Commons’ vote, SR concluded she had no alternative but to consider all potential legal redress.  She approached the excellent Andrew Singh Bogan of the AAFS Law Centre, Newcastle.  Several individuals and community organisations, Temples and Gurdwaras also sought to obtain counsel’s opinion.

In the first and only proposed legal challenge, Tony Muman of 43templerow was asked to advise on the legality of the government’s position.

On 18 April 2013, as a result of Counsel’s advice, a letter before action was sent to the Minister (copied to all relevant ministers spanning different departments) in accordance with the pre action judicial review protocol.   The letter pointed inter alia that the government’s position was in breach of international and domestic law and that the proposed educational programme was simply inadequate.

The Minister was asked to reconsider her position and in the exercise of the power conferred by section 9(5) of the Equalities Act 2010 amend by way of subordinate legislation section 9 of the 2010 Act so as to provide for caste to be an aspect of race or provide – or in the alternative – an undertaking that she will do so within a reasonable period.  The Minister was asked to respond within seven days.

On 22 March 2013 the House of Lords debated the Commons’ amendments.  In a slight shift in position the government announced that the proposed educational programme would be put on hold and that the issue of legislating against caste discrimination would be put out for public consultation and investigated by the Equality and Human Rights Commission with findings to follow in 2014.

Nevertheless the persistence of Lord Harries was unwavering.  The Lords voted in favour of insisting on their earlier amendment by 168 votes to 181, a majority of 13.

On 23 March 2013, Business Secretary Dr. Vince Cables announced the government U-turn and confirmed that caste would be treated as an aspect of race.

Analysis

On 8 April 2010 the Equality Act 2010 came into force.  The Act is voluminous and its primary purpose was to consolidate in the one statutory source equality provisions outlawing discrimination on various grounds (‘protected characteristics’).

During the passage through the House of Commons, there was a defeated effort to include ‘caste’ as a protected characteristic in its own right or alternative as an aspect of ‘race’. The definition of ‘race’ in the Equality Act 2010 does not therefore, presently, encompass discrimination on the ground of caste.

The then Solicitor-General justified its exclusion on the basis that there was little evidence of caste discrimination in the UK.  Arguably that was a flawed justification both factually and legally.

To achieve compromise on the competing interests, the government passed s.9(5) of the Equality Act 2010 which gave Ministers the power to amend the Act at a later date so as to either add ‘caste’ as a protected characteristic or to widen the definition of race so as to include ‘caste’ as an aspect of it.

In the government commissioned report prepared by the National Institute of Economic and Social Research and published in December 2010, the prevalence of caste based discrimination in the UK was identified, together with the lack of legislative protection.  The report concluded that the government should extend the definition of ‘race’ to include ‘caste’ so as to provide explicit protection.

It is without irony that those who were lobbying against the inclusion of caste within the Equality Act appeared to be the very same faith/community organisations which are themselves dominated by so-called ‘high’ castes with the clearest vested interest in maintaining the discriminatory status quo.

Indeed, once again those who were lobbying the loudest in response to the proposed amendments to the present bill were the same parties.

Most regrettably, the resultant impact of the Ministerial Statement on 1 March was the collective sense that arose once again was that government policy was unduly favouring lobbying by such persons/groups.  There were very grave and mounting concerns that the voices of these historically and presently discriminated-against minority communities (including those demonstrating within earshot of Ministers during the House of Commons debate) were going unheard – in favour of majority, so-called ‘high’ caste communities.  The common view was that the Minsters responsible had not fully appreciated the profound disappointment and a sense of abandonment that the Ministerial Statement had caused among the so-called ‘low’ caste communities.

Had the amendment not been agreed by the government, it is likely that the Court would have granted permission to seek to challenge its failure by way of judicial review.  The State’s failure to legislate against caste discrimination is considered to have been in breach of its positive obligations under inter alia international human rights and EU law.

The government’s U-turn was inherently the right thing to do.  It is with a sense of regret however that the amendment was not made long ago and has only now been agreed following huge effort and sacrifices on the part of those tireless campaigners and protesters  the tenacity of those like SR who sought to spearhead a legal challenge to the State’s failure and the diligent and impressive efforts of community advisers like Andrew Singh Bogan who put it all together when it most counted.

Public Law Barrister Tony Muman is a member of 43 Temple Row’s Public Law Team.

Tony appeared in the Employment Appeal Tribunal in Bungay v Saini [2011] EqLR 1130, which to date remains the only case in the EAT which dealt with caste discrimination.

To instruct Tony please contact one of the clerks.

 

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