Baroness Flather
Main Page: Baroness Flather (Crossbench - Life peer)Caste-based Discrimination
Baroness Flather Excerpts
Baroness Flather (CB)
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.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)
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
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
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 Williams of Trafford
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.