My Lords, I have seldom listened to a more powerful speech in this House. I agree with every single word that was said by the noble Lord, Lord Deben, except for one very minor point which has to be mentioned. The Government are not proposing to undertake any further investigation, but simply to review the investigations that have already taken place. Therefore, what they are proposing to do is of even less consequence than he credited them with.
We already know, from the study undertaken by the National Institute for Economic and Social Research—which was mentioned by the noble and right reverend Lord, Lord Harries, in introducing this amendment—that caste discrimination actually occurs in the United Kingdom. That study confirmed that discrimination and harassment of the type that would be dealt with under the Act exists in the UK, as was reiterated only the other day in a letter from one of its authors, Hilary Metcalf, to my noble friend Lord McNally.
The Government now recognise the existence of caste discrimination. As the Minister for Equalities said, in words very similar to those used by my noble friend Lord Deben just now,
“We obviously do not think that anyone should suffer prejudice or discrimination, whether it is because of caste or any other characteristic. Such behaviour is wrong and should not be condoned, whether or not it is prohibited by legislation”.
However, no Minister has explained properly, in the extended correspondence that we had with the Government over the past three years, why caste should be treated differently from age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex or sexual orientation—the protected characteristics that are already covered by the Equality Act.
The Minister Helen Grant MP wrote to us on 5 February, saying:
“We need to be satisfied that it is the most appropriate and targeted way of tackling a specific problem before legislating”.
I respectfully suggest that Parliament wisely decided that legislation was indeed the right way to tackle discrimination across the board after many years of trying to apply remedies to particular kinds of discrimination such as for race—with the Race Relations Board—or gender, by compliance with the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women. Nobody ever said that before including race and gender in the Equality Act, we needed to be satisfied that it was the most appropriate and targeted way of dealing with the problems that still remained. Legislation was seen as the top story of the edifice of ways of tackling discrimination of all kinds. The onus is on the Government to prove that, in the unique instance of caste, we should return to non-legal remedies which proved insufficient in respect of the nine existing protected characteristics and are no substitute for the right to take complaints of discrimination to court.
The original reason given by the Government for failing to enact Section 9(5)(a) was that there was no consensus on the need for legislation even among the communities that were potentially most affected by it. We naturally interpreted that as meaning the Dalit communities whose members are the victims of this discrimination. However, it emerged in a letter from the noble Baroness, Lady Verma, to the noble Baroness, Lady Prashar, of May 2012, that the reference was to the wider Hindu and Sikh communities. In that sense, there is never a consensus for legal measures against particular kinds of discrimination. The policy of ending apartheid in South Africa was vociferously opposed by certain groups within the white population. At one time, plenty of men’s organisations were opposed to women’s equality, including, I may say, Parliament itself, and there are still institutions opposed to LGBT rights. Fortunately, the absence of consensus was not used as an argument for blocking legislation for the rights of racial minorities, women or gay people.
However, I realised quite recently that some Hindus and Sikhs believe that what we are seeking to do labels their communities as a whole as persecuting Dalits. I assure them that nobody has any such idea, any more than the Equality Act labels native British as being intrinsically racist, or men as being intrinsically misogynist. There are already cases where litigants such as the Begraj have done their best to use the existing law to make a claim on caste discrimination grounds in the courts. However, there has been no suggestion that a handful of cases point to a general pattern of conduct among people belonging to certain religions.
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Recently, the Prime Minister raised an additional objection that needless red tape, as he calls it, and additional unnecessary cost burdens for business might be caused by this provision. That is not the case. Employers would already have the duty to prevent caste discrimination as part of their general duty of care towards their staff, and to take remedial action if it occurred. The difference would be minor one-off
familiarisation costs, plus, of course, the liability of the employer to court proceedings and payment of damages if this amendment is passed, as identified by the Bill’s impact assessment.
The apparent rarity of caste discrimination, judging from the NIESR report, and the fact that employers would already be looking carefully at race anyway, of which caste would be a subset, means that the amount of extra work is likely to be minimal. One suggestion in the letter from Helen Grant MP is that gender reassignment is included in the protected characteristics because of our obligations under EU law rather than because the Government considered that it was wrong in principle to discriminate against transgender people.
The recommendation of the UN Committee on the Elimination of Racial Discrimination, echoed in the UN’s universal periodic review of the UK, that we should include caste in the protected characteristics is also a legal obligation according to the advice obtained by the National Secular Society from lawyers Gráinne Mellon of Bedford Row Chambers and Lionel Nichols, fellow of St Anne’s College, Oxford.
However, there are no sanctions against non-compliance and whether or not the CERD recommendations should be treated as obligatory depends more on the Government’s sense of loyalty to their international commitments than on legal principles. However, it is not good to see the UK in the company of states which flout the recommendations of the Committee on the Elimination of Racial Discrimination.
The Government’s proposals, which we received only a couple of days ago, reminded me of Groundhog day. We are back where we were three years ago, with the Government commissioning a study, this time on whether caste discrimination is likely to be more effectively addressed by legislation or by other unspecified solutions. This is another act of procrastination, as has already been said, because the question is precisely the one they have been considering since the NIESR report in December 2010.
The Equality and Human Rights Commission, which has been asked to undertake this study, expressed its opinion shortly after I and a few colleagues had a meeting with its legal director, John Wadham, on 25 September last year. It supported the activation of Section 9(5)(a) and issued a statement to that effect which is on its website. I suppose that now Mr Wadham has left the EHRC, it could do a U-turn, but the legal arguments have not changed, nor has the experience of unsuccessful attempts to combat discrimination over many years prior to 2010. I am surprised that the noble Baroness, Lady O’Neill, has accepted such a thankless task, particularly as the Government have given no undertaking that if the EHRC reaffirms its opinion that legislation is the right way forward, the Government will take its advice. Will the Minister clarify that point and indicate what budget the EHRC has been given for this operation?
As for the Government’s other proposal, what funding has Talk for a Change been given for the educational programme on this complex and sensitive issue? In its section dealing with alternatives to legislation, NIESR said that,
“the educational approach is only relevant where people are unaware of caste, i.e. in organisations where senior people are not Asian”.
However, NIESR emphasised the educational side-effects of legislation. It said:
“Because of discrimination legislation, employers, educators and providers of goods and services developed non-discrimination and anti-harassment policies. These not only provide structures for redress, but also lead to much greater understanding of the issues and reduce the acceptability of such discrimination and harassment. In the case of caste discrimination, this educational effect is particularly necessary because the vast majority of the population is almost entirely ignorant of caste issues”.
Therefore, legislation would have meant that money being spent on both EHRC and Talk for a Change could have been saved. I do not believe the Government’s antipathy to legislation is really to do with the cost. What is certain is that, just as the Home Secretary and the Lord Chancellor are bent on reducing the means of legal redress available to victims of human rights violations—about which we read in the press every day—as part of this mindset, there is a doctrinal aversion to this proposal in the Cabinet, which is not going to be eliminated by any number of studies and failed alternatives. It is time for the House to make a decision.