Caste-based Discrimination Debate

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Baroness Williams of Trafford

Main Page: Baroness Williams of Trafford (Conservative - Life peer)

Caste-based Discrimination

Baroness Williams of Trafford Excerpts
Monday 11th July 2016

(8 years ago)

Lords Chamber
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Baroness Williams of Trafford Portrait The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)
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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.

Baroness Flather Portrait Baroness Flather
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It is not outdated. He is not the only Hindu here. I am a Hindu. It is not outdated; it is there all around us.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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He speaks from his own experience.

Baroness Flather Portrait Baroness Flather
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I am speaking from mine. I am speaking from my own point of view.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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I am aware that the noble Baroness speaks from her own point of view. In fact, she made the point that she had not been subject to any caste discrimination in this country.

Baroness Flather Portrait Baroness Flather
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Not personally but I am not a Dalit.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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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.

Lord Lester of Herne Hill Portrait Lord Lester of Herne Hill
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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”?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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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.