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A further point which should be raised is that the intention of this legislation is to simplify and consolidate equality law so that it can be understood by all. We must ensure that any decision to extend the list of protected characteristics is taken seriously. There may well be a good case for caste and descent, and if so, they should be taken into consideration. However, there is a worry that other characteristics may also have a good case. The list obviously cannot be extended indefinitely and, if we hope to maintain a level of clarity about rights and responsibilities, it is important that this debate is informed. For these reasons, we can give some support to the amendment tabled by the noble Lord, Lord Lester. I would be interested to know whether the Minister can inform the House whether she thinks that there is a case for including caste in this way, and perhaps she might be able to inform us whether this is already the case; namely that caste discrimination is already covered in some way, because of the characteristics it shares with race and religion. I look forward to the Minister's response.
Baroness Thornton: My Lords, these amendments are all linked. Amendment 5 seeks to add caste to the list of protected characteristics covered by the Bill. Amendment 29 seeks to include caste as a relevant protected characteristic for dual discrimination claims. Amendment 40 seeks to include caste as a relevant protected characteristic for indirect discrimination. Amendment 49 would prohibit direct and indirect discrimination because of caste, and Amendment 52 would prohibit harassment because of caste. Amendment 17 attempts to define caste for the purposes of the Bill, while Amendment 18 provides Ministers with a power to add caste to a list of protected characteristics in the future, and Amendment 16 would add descent as a further aspect of the protected characteristics of race, so that the Bill would prohibit unlawful discrimination, harassment and victimisation based on descent as well as colour, nationality and ethnic or national origin. I will address Amendments 5, 40, 49 and 52 together, then turn to Amendment 16 in the name of the noble Lord, Lord Lester, and address separately Amendments 17, 18 and 29.
The first group of amendments would mean that the provisions within the Bill which prohibit unlawful acts such as discrimination, harassment and victimisation would in all cases apply to the characteristic of caste unless further explicit restrictions were made to subsequent clauses. These amendments were previously tabled and debated during consideration of the Bill in the
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At the moment, evidence of discrimination because of a person's caste appears to be predominantly in areas such as marriage and social and personal interactions rather than in those areas covered by domestic discrimination legislation, such as the provision of goods, facilities and services, education and schools, the management and disposal of premises, the exercise of public functions, employment and vocational training. We do not condone any discrimination or prejudice because of personal characteristics or identity, and it is clear that issues such as personal relationship choices and insults or snubs are part of social interaction and therefore would not fall within discrimination law. However, I am aware that since the Committee debate in the other place, the Anti Caste Discrimination Alliance undertook a scoping study on caste and caste discrimination in the UK very quickly over the summer. I have read with interest its recent report, Hidden Apartheid-Voice of the Community-Caste and Caste Discrimination in the UK-A Scoping Study, which reports caste discrimination in the areas covered by discrimination law, which are employment, education, and provision of goods, facilities and services. I have also read with interest the Modern Law Review article-I thank the noble Lord, Lord Avebury, for forwarding it to me-and the joint statement from the many, organisations concerned with this issue.
I commend ACDA for a professional report produced very quickly. However, the report acknowledges that it is a scoping study and many of the examples that it includes are still of either an apocryphal nature or outside those areas covered by discrimination legislation. For instance, many examples refer simply to one person asking another their name. The noble Lord will acknowledge that this cannot be considered to be discriminatory even if a person's family name may be indicative of their caste. Furthermore, despite what some may believe, the case for legislating on caste discrimination-
Lord Harries of Pentregarth: Does the Minister accept that what is felt to be intrusive questioning is distressing for the affected communities? Sometimes they report that they get this kind of questioning from professionals. A high percentage claim that they have been questioned in this way about their caste by doctors, GPs, nurses and members of the social services. They find it very distressing because they know what it is leading up to. This is why they call it the hidden apartheid.
Baroness Thornton: I accept the noble and right reverend Lord's point that this is distressing and I hope that I may be able to offer him some comfort as my remarks progress.
Lord Lester of Herne Hill: Leaving aside evidence and dealing only with principle, suppose there is one case of an employer discriminating against a worker or a would-be worker because they do not belong to a caste or to the right caste. Does the Minister agree that that should be included in unlawful conduct just as if it was because of colour, being Jewish or anything else? Does she agree it is part of the ethnicity, is unfair and should be within the scope of the Bill as a matter of principle?
Baroness Thornton: Yes. However, as I hope to explain, that is already covered by other parts of the Bill.
Furthermore, despite what some may believe, the case for legislation on caste discrimination is not so clear-cut that it universally unites the community it is alleged to affect. I am happy to share with noble Lords the number of organisations that have already been consulted but I think we would agree that there are organisations, such as the Hindu Forum of Britain and the Hindu Council UK, which remain of the opinion that legislation is the wrong option to cure what they primarily see as a cultural matter.
Baroness Flather: We keep coming back to the Hindu Forum and the Hindu Council, which are formed by caste Hindus-the three upper castes. Some of us here are Hindus and we know about this. I know perfectly well what kind of people they are. They feel that to consult them about caste discrimination is to cast aspersions on them, as if one is saying, "You are the lot who are discriminating on the basis of caste". They are not going to admit that they discriminate; no one does.
Baroness Thornton: I am sure that the noble Lady is not suggesting that we should not consult those organisations. They will be consulted along with a wider group of organisations, as, indeed, we have been doing. Whom have we consulted to date on caste discrimination? We have had meetings with many noble Lords about this issue; we have consulted the Hindu Forum of Britain, the Hindu Council UK, the Voice of Dalit International, Indian Christian Concern, the Catholic Association for Racial Justice, CasteWatchUK, the Federation of Ambedkarite and Buddhist Organisations, the British Asian Christian Council, the Dalit Solidarity Network, the Anti Caste Discrimination Alliance and Shri Guru Valmik Sabha. Among these bodies there is not a consensus at the moment. However, that is not a reason for not taking this as an extremely important issue, which the Government intend to do.
We are aware that one of the recommendations contained in the ACDA report was that the Equality and Human Rights Commission should commission an in-depth study into the caste system and caste discrimination in the UK. We consider that to be a sensible suggestion on how to take this matter forward. An intensive and independent study into this matter will help both to determine the extent of the issue and to identify the best way in which to tackle it. We are keen to gain a better insight into caste systems as well as to explore the ACDA findings in further, more in-depth work. That is why the Government Equalities
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Lord Avebury: I am sorry to interrupt the Minister yet again-I know that she is trying to get on with her speech-but, as she is on the subject of research, perhaps she could deal with the point that I raised about the statement in the Commons by the Minister that the EHRC had already been asked to conduct research on the matter. Since then, it has said that it has not been asked. What is the truth of that matter?
Baroness Thornton: I am not sure what the truth of that is. Who said what to whom and in what order is often a matter of some confusion. There is no question but that the Government are determined that this research should take place. We are in consultation and discussion about how best to take it forward. We are determined that this research will take place as quickly as we are able to do it.
Lord Harries of Pentregarth: I am sorry to interrupt again. I am glad to hear that strong statement about research if the Government think it is really necessary, but the reply from the EHRC on 6 January said that,
It has not been asked to do it and it has not got time to do it.
Baroness Thornton: The reason why I am saying that we are determined to do this is that we will proceed with this research as quickly as we can.
Lord Lester of Herne Hill: I am sorry to interrupt but I simply do not understand why research is needed. The Minister has agreed that, even if there were one case of the kind that I described, that should be unlawful because it is wrong in principle. In that case, why do we need research when all we have to do is to make clear that which I believe to be the case-that discrimination based on your ethnic descent is included, which covers a great deal of what we call caste discrimination? Where is the harm? What are we worried about? Why do we need research into the scientific extent of the problem when all we are talking about is one or two words in the Bill?
Baroness Thornton: 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
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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,
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 decide 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
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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-
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,
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.
Lord Lester of Herne Hill: I am very grateful for that explanation. What it comes to is that the Government accept that one has to read our domestic legislation compatibly with the CERD and that the CERD refers to descent. There is therefore a gap between the literal language of the definition of race and what is required under the CERD. I think that the Minister has already accepted that the courts must try to make the two fit to each other. The case involving the immigration officer at Prague was a recent example, as was the Jewish Free School case. Why can Parliament not ensure that there is no gap-let us forget about caste-between what the CERD requires and what the statute will say?
Baroness Thornton: My Lords, as I have said, the Government are in the process of commissioning further research as recommended by the ACDA report. At the same time, we are considering the Supreme Court's judgment in the JFS case and whether any legislative response is needed in the light of that. We will report back to your Lordships on these actions on Report, when the Government's thinking on caste and descent has developed a bit further. Pending that, I hope that noble Lords will not press their amendments.
The Lord Bishop of Chester: If the research that the Government intend to undertake indicates that there is a problem that requires legislation, will there be power within the Act to add a provision by regulation, or would it require primary legislation?
Baroness Thornton: That is part of the consideration and thinking that is going on and the wider discussion going on with noble Lords and the organisations that are concerned with this.
Baroness Warsi: Much has been made of the need for further research and evidence. The Minister referred to the lack of time for developing an appropriate and workable definition of caste. Could she tell the House when the Government first became aware that this would be an issue in the Bill? When did the process of consultation, evidence gathering and research therefore start? Was there sufficient time from that initial moment to develop an appropriate definition of caste? What concerns me is that the Bill has been a long time coming but we are now, at this stage, being told that we do not have enough time to discuss what is an important issue.
Baroness Thornton: The consultation on this Bill took place in the latter half of 2007. At that time, we did not receive evidence that caste was an issue; it was only after we had had that consultation that these issues started to be raised. In fact, that has happened only in the past couple of months. We are now moving as fast as we can, because we accept that this is an issue that we need to address.
Lord Avebury: My Lords, I would accept that the Government were moving as fast as they could if it had not been for the fact that the statement by the Solicitor-General in another place that research was being commissioned from the EHRC was not being carried into effect. We have wasted several months, in other words, until this evening, when the Minister assures us in categorical terms that research will be commissioned, although not necessarily from the EHRC. A specification will be put out, to which a number of people will be able to respond. That will take further time. That leaves me reluctant to withdraw the amendment, because the research will not be available by Report.
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