Equality Bill

I shall speak to my amendment, Amendment 16, in speaking to Amendment 5, with which it has been grouped, because it has been referred to several times and it would probably be helpful to the Committee if I explain as briefly as I can how I see the position. First, I do not need persuading that there is a transnational problem of caste discrimination that applies in this country as well as elsewhere. Anyone who doubts that should read not only the evidence we have but also evidence of what has happened in other countries. I believe that there is a problem and that it needs to be covered by a measure dealing with racial discrimination. Secondly, when the United Kingdom drafted the race relations legislation, we had regard to the definition in the UN Convention on the Elimination of All Forms of Racial Discrimination. That is where the phrase, "colour, race, or ethnic or national origins" comes from. Later, nationality was added. The drafters did not include the word "descent", but it was perfectly plain that your ethnic descent was included within the concept of ethnicity because the concept of ethnicity is about your birthright, where you have come from and who your parents and grandparents were. If you like, the Hitler definition of a Jew is a classic example. It was not about belief but where you came from, what your origins were and what your descent was. Jewish descent is a very common example. I am wholly agnostic about whether the right way of tackling the problem would be by inserting the word "caste" or the word "descent". I am gratified that the Equality and Human Rights Commission stated in its brief that it thought that the more satisfactory approach was "descent" rather than "caste" for the reasons that it gave. This is not a competition between two different kinds of amendment. In case law, many years ago, when Lord Slynn of Hadley, then Sir Gordon Slynn, was president of the Employment Appeal Tribunal, he explained, in a case called Seide v Gillette, why Jews were part of an ethnic group because of their descent. The same is true of the House of Lords Mandla v Lee case when the Law Lords were dealing not only with Sikhs as an ethnic group but with Jews. It came to a head in the Jewish Free School case, not just in the Court of Appeal, to which my noble friend referred, but also in the Supreme Court. The puzzle in that case was whether the admissions policy of the school was racial or religious, given that the religious test used included a matrilineal test as to whether a person had a Jewish mother and grandmother, as certified by the office of Chief Rabbi. The Supreme Court looked at the Convention on the Elimination of All Forms of Racial Discrimination and the fact that caste was meant to be covered in the word "descent". It did not have to deal with that in that case, but it decided that Jews were a group who could be defined by their ethnic descent as well as by their religious belief, which is not surprising. That is the conclusion to which they almost all came. In the Minister’s reply, as my noble friend Lord Avebury and others have emphasised, it will be important to hear the Government’s understanding of whether and to what extent discrimination because a person does not belong to a particular caste or belongs to the wrong caste is capable of falling within the concept of race as it stands. Am I not right in saying that if there were to be litigation about this, the correct approach for the English courts to take would necessarily be to have regard, as they did in the Jewish Free School case, to the definition in the Convention on the Elimination of All Forms of Racial Discrimination? They would do so because we are bound by that convention and by an obligation to give effect in domestic law to the definition in the convention. If I am right in saying, as I think I am, that our courts would do their best to make sure that our statute law fitted the Convention on the Elimination of All Forms of Racial Discrimination—the international obligation in interpreting any ambiguity or doubt about the definition—in doing so would the Government not look at the word "descent" and make sure that whatever the Bill now says "descent" is included if it makes any difference? I believe that they would. If those two steps are correct, the third step is why not make it clear in the Bill, either by including the word "caste" or the word "descent" so that we do not have to have litigation up to the Supreme Court to decide a fairly obvious question. It is very important that the Minister’s reply should be on the record and have regard to the comments made by the noble and learned Lord, Lord Mackay of Clashfern. Pepper and Hart, with all its imperfections, at least leads to the opportunity for the Minister to make a Pepper and Hart statement as to the Government’s understanding of whether caste and descent are already included. If we get a clear reply to that, does that need to be embodied in statutory language? Before reaching a decision on that, it is very important to have on the record the Minister’s reply on whether and to what extent the Convention on the Elimination of All Forms of Racial Discrimination covers caste and descent—the answer is obviously yes—to what extent it binds us—the answer is that it does—and to what extent must it be taken into account in interpreting our law—the answer is that it must. Surely, if what I have said is right, there should be no problem in accepting either the amendment proposed by my noble friend Lord Avebury or my amendment.