Forthcoming public consultation on caste and Equality Act 2010

On 2 September the Government announced that it is to undertake a full public consultation on the issue of caste and the Equality Act 2010. A key aim of the consultation will be to obtain the views of the public on whether or not additional measures are needed to ensure that victims of caste discrimination have appropriate legal protection and effective remedies under the Act. The consultation will run for 12 weeks from its commencement. [With thanks to Paul de Mello, Jr.]

In 2015 we published a timeline of the development of the issue, beginning with the Government Equality Office Research Findings, 2010/8: Caste Discrimination and Harassment in Great Britain and including the commitment made by Government during consideration of Lords Amendments to the Enterprise and Regulatory Reform Bill. During that debate, the then Parliamentary Under-Secretary of State for Business, Innovation and Skills, Jo Swinson, said this:

“We therefore propose amendments in lieu of Lords Amendment 37 that will impose a duty on the Government to exercise the power in the Equality Act 2010 that would make caste an aspect of race for the purposes of the Act. We think that that option, rather than the amendment proposed yesterday in the other place, is the best way forward.” [HC Deb 23 Apr 2013 c 789]

The outcome was s 97 (Equality Act 2010: caste as an aspect of race).

In the recent Lords debate on caste-based discrimination [HL Deb 11 July 2016 c 81], Lord Deben put the matter very bluntly:

“This is the first chance that a new Government have got to stand up and tell this House that they intend to obey the law. The only alternative is to tell this House that they intend to disobey the law. I do not believe that is a proper position for any Government” [c 89].

But the issue is by no means uncontroversial or uncontested. Prakash Shah, for example, has frequently criticised the recent legislation, arguing that the dominant descriptions of the caste system are rooted in a Western Christian experience of India and tell us more about the West than they do about India. In his view, they reflect European experiences of Indian culture and society and the way Europeans tend to rationalise such things much more than they describe the real state of Indian society or its domestic understanding: see, for example, “An ancient system of caste”: How the British law against caste depends on Orientalism.

The Government’s announcement states that before taking any decisions it will carefully consider the responses to the consultation, which will run for 12 weeks from its commencement date. There will be a further announcement in due course.

Cite this article as: Frank Cranmer, "Forthcoming public consultation on caste and Equality Act 2010" in Law & Religion UK, 6 September 2016, http://www.lawandreligionuk.com/2016/09/06/forthcoming-public-consultation-on-caste-and-equality-act-2010/

16 thoughts on “Forthcoming public consultation on caste and Equality Act 2010

  1. It is probably because I am not a lawyer but I do not see why any discussion of the Indian caste system or reference to it in English Common Law is necessary. Indians living in the England and Wales are subject to English Common Law. Since we do not have a caste system there should be no need to reference to such an entity in English Common Law. If persons believe themselves to be discriminated against as a result of a community following the practices of a caste system then surely they have recourse to general principles of non-discrimination. If I were an employer who refused to employ persons below the height of five feet three inches and such a person were to contest this, surely that person could demand that the putative employer provide a sound reason for this discrimination or face a challenge in the courts. Anyone facing discrimination on the basis of caste would be in the same position.

    • But it’s not about the common law; it’s about statute law. And I’m not just being nit-picky: it’s been written into the Equality Act 2010, so the Government can’t just ignore it.

      The Government has to do something about it so long as it’s on the statute book: what it will do is not at all clear – but that’s what the forthcoming consultation is about.

  2. Frank, I see. Thanks for that explanation. Is there no protection from unjustified discrimination in general (without reference to the Equality Act 2010 in statute law)? I promise that is my last question.

    • I suspect that to answer that question properly needs a piece the length of a book-chapter; but my short answer is that, historically, there can’t have been. Part of the reason for passing the Race Relations Act 1976 (which, among other things, made it illegal to discriminate against people on grounds of race) was that until then it had been perfectly legal in England and Wales for (eg) those with a room to rent to put up a sign saying “No blacks, no Irish”. However reprehensible, the common law didn’t prevent that kind of conduct – so it had to be legislated against.

      Even now, even though the ‘protected characteristics’ in the Equality Act 2010 cover almost every obvious ground of discrimination that I can immediately think of, I’m not sure that, taken together, they amount to a ‘general principle of non-discrimination’. Certainly, there was sufficient concern – particularly in the House of Lords – that the original list of characteristics didn’t prohibit discrimination on grounds of caste as to give the necessary push for the Act to be amended to include it. Whether or not that was necessary depends on how you view the situation: the proponents of the amendment thought it necessary, while Prakash Shah (and he’s not the only one) believes that it’s a nonsense.

        • OK, fine: so you approve of “No Blacks, No Irish” signs on lettings.

          That probably tells us more about you than about whether or not I was writing nonsense.

          • Just because I don’t want a law against something doesn’t prove that I approve of that something. There are lots of things I don’t approve of that I don’t call for laws against.

            What I am objecting to is the never ending cascade of law after law that complicate our lives. Do we live in a democracy? Or do we live in a lawyerocracy, run by lawyers (like Tony Blair) for lawyers?

            If someone doesn’t want to share their house with blacks and Irish then let them say so if they want to. That way blacks and Irish won’t have their time wasted by making inquiries at those houses. Everyone can them call them a racist and throw rotten tomatoes at them if they like (figuratively speaking of course I’m sure there’s a law against doing it literally).

            The next thing you’ll be calling for a law to require homeowners renting rooms to meet diversity targets. Then you’ll want a law against anyone criticizing that law. Then one day we’ll wake up and find ourselves in a Franz Kafka novel.

          • I’m not calling for anything. I was simply trying to explain why the law is as it is. And I’m not at all convinced by your protestations.

            Still, people can judge for themselves.

  3. Thanks for the link to Prakash Shah’s article. Knowing as little about the Indian caste system as most westerners, I found it interesting but I got the feeling that he thinks the caste system is OK and that any perceived drawbacks are just the usual effect of overheated western imaginations looking into other cultures from our usual superior viewpoint.

    I have no idea whether the effects of the caste system in the sub-continental Indian diaspora in the UK require legislation but I would really like to know what it is really like in India itself for those who are of no caste. Or who have a defined caste but are thereby hugely restricted in educational and work opportunities. Or not. don’t want to prejudge.

    • I don’t know much about it either – which is why I think we need to be very careful not to jump to conclusions on inadequate information. Who’s right and who’s wrong on the caste issue I simply do not know: but one shouldn’t just dismiss the contrary view out of hand.

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  5. Thank you Frank for explaining the situation in Statute Law.
    As I understand it the caste system still causes much unrest in India. There are regular reports in the world press of civic conflict arising from this system which appears to be designed to lock citizens by their birth into their historical labouring, business and administrative roles. It is the very opposite of the principle of social mobility. Much like the Anglican:-
    The rich man in his castle,
    the poor man at his gate,
    God made them high and lowly,
    and ordered their estate.
    Now usually excluded from “All Things Bright and Beautiful” in keeping with the principle of social mobility – which is still imperfectly implemented.
    A shame that the rest of this creationist nonsense cannot also be put into retirement. It was rendered obsolete just 11 years after it was published.
    If we are to depend upon listing every such outdated example of oppression and discrimination then the statute used will become unwieldy. Surely it is not beyond the wit of man to devise a wording which allows any unjustified oppression or discrimination to be challenged in law. Are we really to accept that, unless caste is included in the Race Relations Act a Vaishya family business may advertise a job in England and Wales saying “No Shudras or Dalits need apply”.

  6. I think the answer is the way legislation is done in the UK. We don’t have civil and criminal codes (as, for example, in France) and we tend to legislate by amending existing statutes. So it possibly isn’t beyond the wit of Parliamentary Counsel (who in my experience are probably, pound for pound, the cleverest bunch of people in Whitehall) to devise a general form of words that would allow any unjustified oppression or discrimination to be challenged in law. But I’m not sure that that is a solution.

    The problem with doing so, as I see it, is threefold: first, because these issues are highly fact-sensitive the courts would immediately start unpicking it; secondly, it would have to be so general in order to catch every possible act of discrimination that it might end up catching discrimination that was generally regarded as justifiable; and, thirdly, Parliament very rarely legislates for something afresh in any case. It did so in the case of the Equality Act 2010 – but that has already been amended several times.

  7. I have a published criticism of Shah’s view here – and I have engaged in a live radio discussion challenging him on BBC Asian Network (Nihal’s show, 30 Oct 2015). See also a joint article, Annapurna Waughray and Meena Dhanda, ‘Ensuring protection against caste discrimination in Britain: Should the Equality Act 2010 be extended?’ International Journal of Discrimination and the Law June/September 2016 16: 177-196, first published on July 11, 2016 doi:10.1177/135822911665565

    In the IJDL article we support the extension of EA2010 to include protection against caste discrimination.

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