Caste-based Discrimination

Lord Lester of Herne Hill Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, when I listened to the noble Lord, Lord Popat, it took me back to 1974, when I heard similar arguments against having legislation on sex or race equality.

Over the past year I repeatedly asked Questions for Written Answer by Ministers. I have asked why the 2014 feasibility study on caste discrimination has not yet been published, when the Government plan to consider the case for further consultation on caste discrimination, and for clarification on how Tirkey v Chandhok has in the Government’s view changed the law on caste discrimination. The answer is always the same and I paraphrase: “We are currently considering what steps to take”.

It is more than three years since Parliament placed a duty on the Government to activate Section 9(5) of the Equality Act 2010. It is more than 18 months since the caste feasibility study was completed and it has still not been published. It is also more than 18 months since the Tirkey verdict, and 12 months since the finding on the facts in the full liability hearing. Ministers have said that they understand the Employment Appeal Tribunal in Tirkey as,

“providing an existing legal remedy for claims of caste-based discrimination”.

That view is not sustainable. In Tirkey, Mr Justice Langstaff, giving the Employment Appeal Tribunal’s judgment, found that “ethnic origins” was a wide and flexible phrase covering questions of descent, and that some of those situations would fall within an acceptable definition of caste. He decided that no separate claim for caste discrimination was possible. At paragraph 55, he expressly recognised the limited impact of his judgment. His focus, he explained, was on,

“this particular case, in its particular circumstances”,

and his role was not to “establish more general propositions”. It is clear that the Employment Appeal Tribunal was not setting out a definitive decision in principle on whether discrimination on the ground of caste was within the scope of the Equality Act. At the full hearing in July 2015, Ms Tirkey succeeded in her claims for unfair dismissal, racial harassment and indirect religious discrimination. She was awarded a substantial sum at a subsequent remedy hearing. However, the decision did not indicate, still less establish, that there is an existing legal remedy of caste-based discrimination.

The current state of the law lacks legal certainty. There is no binding and authoritative legal precedent. That legal uncertainty violates the rule of law and the Government’s continuing inaction violates parliamentary sovereignty. The uncertainty could be removed either by expensive and protracted litigation up to the Supreme Court or by the Government performing their statutory duty without further procrastination, thereby respecting parliamentary supremacy and the rule of law. The EHRC supports the need for the Government to do so. The noble Lord, Lord Popat, disagrees with Parliament’s clear command. He is entitled to that view but Parliament is sovereign. I call on the Minister to inform the House unequivocally in her reply whether the Government will now perform the duty cast upon them by Parliament. If not, what is their justification for refusing to do so? It is time to end the continuing failure to give effect to the will of Parliament.

--- Later in debate ---

[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.

[Lord Lester of Herne Hill]

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]

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.