Equality Bill

The noble Lord is much too much of an experienced lawyer to say that one or two words in a Bill are insignificant. These words are very significant indeed. We are of the view that current discrimination law may already cover some aspects of caste discrimination where it can be shown that the active discrimination was grounded in race or religious discrimination. This would, of course, need to be determined based on the facts of each individual case, but it is important to point out that some victims of caste discrimination may already be able to seek redress under existing laws. For example, in employment an instance of caste discrimination being grounded in race or religious discrimination could include the effective demotion of a secretary, where it would need to be established how other employees of different races and religions were treated for this act to be an instance of racial or religious discrimination. A significant point is that the extent to which caste-related issues are covered by existing laws has not been tested in the courts. I am aware that the Equality and Human Rights Commission is keen to explore further this aspect in partnership with the ACDA and others. Given this position, I hope that noble Lords will agree that the proposal in the amendment, which could amount to a significant addition to the strand-based structure of equality law and, moreover, introduce social or class-based elements directly into protected characteristics, may be an unacceptably high-risk way of dealing with the issue without proper examination of all its implications. Amendment 17 attempts to define caste for the purposes of the Bill. As anyone who is aware of the nature of caste will say, certain unique aspects of it mean that it is not simply a case of adding "caste" to a list of protected characteristics and anyone instantly knowing who is protected. Many people may not even know what caste means or have a different understanding of it as a concept. The amendment tries to define caste as based on a hierarchy, ""of social stratification where both membership and status are hereditary, ascribed and permanent"." While I applaud this attempt, the definition of caste requires great thought to ensure that it is correct and that the coverage is appropriate if we decided that caste should be a protected characteristic under discrimination legislation. For instance, we know that caste is not always permanent since, for a woman, it can change on marriage to someone of a different caste. The amendment would not cover such people. Defining caste for the purposes of discrimination law would be a difficult and time-consuming exercise, which, given the timing of the Bill, would not be practicable. This is one of the issues that we hope more extensive research would help to determine by uncovering more details on caste systems operating in Great Britain. Amendment 18 would provide a Minister of the Crown with the power to legislate at some future stage to include caste as a protected characteristic under discrimination legislation if satisfied that there was significant evidence of discrimination, harassment or victimisation because of caste. The amendment recognises the difficulty that the Government have in relation to caste by potentially creating the opportunity to amend legislation at a later date, should sufficient evidence of caste discrimination be uncovered. As the Solicitor-General has always made clear in the other place, the Government are not against legislating in this area, but they will not do so without sufficient evidence of a real problem that can be rectified by discrimination legislation. A power to legislate in the future is therefore not the right approach to take on caste discrimination. It is inflexible and, given the uncertainties around adding caste as a protected characteristic now, it could be the wrong solution. For example, we do not necessarily agree that the main amendment, as drafted, accurately defines the concept of caste. We would not therefore want to be prospectively committed to such a change. As I said, there are complexities in defining caste for these purposes. There is also the question of what consideration would need to be given to any relevant exceptions already contained in the Bill or any that could, or should, be included relating specifically to matters of caste. Amendment 29 would amend Clause 14. Clause 14 provides protection from discrimination because of a combination of two protected characteristics—what we refer to as dual discrimination. It enables someone who has been treated less favourably because of a combination of two relevant protected characteristics to bring a claim and secure the remedy that they deserve. Dual discrimination is a new area to discrimination law and the amendment would have the effect of including caste as a relevant protected characteristic for dual discrimination claims. For the reasons that I have just given, it is inappropriate to include caste as a protected characteristic under the Bill. Since it is not a protected characteristic under the Bill, it would be confusing, complicated and contrary to the Bill’s aim of simplification and harmonisation to include for the purposes of dual discrimination characteristics that were not protected for other purposes under the Bill. Furthermore, dual discrimination is a complex issue. Clause 14 represents a proportionate remedy based on careful consideration of which protected characteristics to include among other things. Even if new protected characteristics were to be introduced in the Bill for other purposes, we would need to be convinced that the evidence necessitated their inclusion in Clause 14; otherwise, any extension could impose disproportionate burdens. Amendment 16, tabled by the noble Lord, Lord Lester, would add descent as a further aspect of the protected characteristic of race, so that the Bill would prohibit unlawful racial discrimination, harassment and victimisation based on descent as well as colour, nationality and ethnic or national origin. It is an important addition to the debate. The International Convention on the Elimination of All Forms of Racial Discrimination—CERD—to which the United Kingdom is a party, refers to racial discrimination as being based on descent in addition to race, colour or national or ethnic origin. CERD has not, however, been incorporated into UK law, as there is no obligation that it should be, and treaties do not have full legal force in domestic legislation. However, the Government understand our obligation under CERD to be to take all necessary measures, including legislation where and when appropriate, to ensure that the domestic law and practice of the United Kingdom fully respect and implement all the provisions of CERD. We are confident that we will continue to do so. That is why the provisions of CERD are in fact fully respected and, where necessary, consciously enforced in the United Kingdom through our comprehensive race discrimination legislation. The courts will take into account the provisions of CERD when interpreting our own legislation. An example of this is the recent judgment of the Supreme Court in the Jewish Free School case, delivered on 16 December last year, that a Jewish state school’s admission criteria were racially discriminatory. The noble and learned Lord, Lord Mance, took the view that, whether or not "descent" within the meaning of CERD covers caste—and he did not decide the point, because it was not relevant to the case that he was considering— ""the concepts of inherited status and a descent-based community"," appeared to cover the situation. That pointed in the direction of a wide understanding of the concept of discrimination on the grounds of ethnic origins. We would agree with that. On the other hand, the noble and learned Lord, Lord Phillips, accepted, ""that descent simpliciter is not a ground of racial discrimination. It will only be such a ground if the descent in question is one which traces racial or ethnic origin"." Currently, to discriminate against someone because he is not the son of a hereditary Peer or the son of a member of a trade union is not racial discrimination. The risk of adding "or descent" to the Bill’s definition of race is that the courts would consider the definition of racial discrimination to have been widened to cover these or other examples, as well as caste. I hope that the noble Lord will resist the temptation to press his amendment and accept that this is another aspect of an issue that merits wider consideration.