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Outlaw Caste Discrimination in the  UK    The Equality Act 2010 was to consolidate and include...

Outlaw Caste Discrimination in the  UK 

 

The Equality Act 2010 was to consolidate and include a complex raft of equality legislation prohibiting discrimination on various grounds. Since 2005, DSN-UK and other UK Dalit organisations have campaigned for the inclusion of ‘caste’ as a discriminatory characteristic. Despite this campaign, discrimination on grounds of caste remains outside the existing anti-discrimination provisions. Nowhere is caste explicitly identified as grounds for discrimination. Furthermore, caste is not directly synonymous with race or religion and therefore does not easily fall within existing ‘race’ or ‘religious belief’ categories as currently formulated. In relation to criminal law, where the burden of proof must be proved ‘beyond reasonable doubt’, assault, violations and discrimination on the basis of caste are not recognised as an aggravated offence, nor is hostility on grounds of caste recognised as an aggravating feature for sentence as is the case with racially or religiously motivated assault or homophobic or transphobic crime.

In 2010 the National Institute of Economic and Social Research (NIESR), commissioned by the UK government, reported that ‘Equality Act 2010 provisions on religious discrimination cannot cover caste discrimination and harassment as effectively as caste-specific provisions would’. This is supported by the NIESR report which states: “Relying on the Indian community to take action to reduce caste discrimination and harassment is problematic”.

Due to DSN-UK and other Dalit organisations’ continued lobbying in the UK through the House of Lords, the Enterprise and Regulatory Reform Act 2013, amended section 9 of the Equality Act 2010. Originally section 9 provided a discretionary power: “A Minister of the Crown may by order…”. The amendment changed “may” to “must”, thereby requiring the Government to introduce secondary legislation that would make caste an aspect of race, although did not specify a time by which the power must be exercised.

In July 2013 the government published an indicative timetable setting out the process of evidence-gathering and consultation it intended to undertake prior to legislating, and anticipated that a Draft Order would be introduced to Parliament during summer 2015. The timetable was not put into action and a feasibility study completed in 2014 was never published.

Up until 2 September 2016 the government stated that its position was under review in light of the Employment Appeal Tribunal’s decision in Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912, which found that caste discrimination may in certain cases already be unlawful under the Equality Act 2010. In response to a Parliamentary Question submitted on 14 December 2015 Baroness Williams of Trafford answered on behalf of the government, explaining that the government is ‘currently considering the conclusions and recommendations of the caste feasibility study as part of our wider consideration of the implications of the Tirkey v Chandok tribunal judgments’ (Question by Lord Lester of Herne Hill on 14 Dec 2015, answer by Baroness Williams of Trafford on 21 Dec 2015).

The government claimed that the case implies there is an existing legal remedy for caste discrimination cases under the “ethnic origin” protected characteristic. However, this assertion is misleading and incorrect. ‘Employment tribunal cases do not create authoritative precedents – they only decide the case on the merits for the individual claimant. There is no guarantee that individual suffering caste discrimination will achieve the same outcome in a future case. Moreover, Tirkey was not determined on grounds of race discrimination (with the “ethnic origins” component incorporating caste), but on grounds of indirect religious discrimination. It cannot be said to have created a precedent by which caste discrimination is protected in UK law’ (The  Odysseus Trust, 2015, pp.3, para 14).

Furthermore, the Equality and Human Rights Commission’s (EHRC) research in 2014 highlighted that:

‘although it has been ruled by the Employment Tribunal in one case that caste is already incorporated within the protected characteristic of race, the interpretative approach is at present not established. A lower court or tribunal decision is not binding precedent, consistency of outcome in future cases would not be guaranteed, and the principle will remain somewhat precarious. Even a binding precedent can be overturned until a decision is made at the Supreme Court’.

In December 2015, the Odysseus Trust, directed by Lord Lester QC, submitted the following in its CERD Call for Evidence. ‘It would be inordinately costly and create years of delay to seek an authoritative ruling by the Supreme Court of the UK. That is why it is important for the Government to perform the duty required by Parliament and the rule of law. Currently equality legislation fails to protect victims of discrimination on the basis of caste or absence of caste, and to meet the obligations imposed by the Convention on the Elimination of All Forms of Racial Discrimination (“the Convention”) and International Covenant on Civil and Political Rights.’

At present, section 9 of the Equality Act 2010, as amended in 2013, imposes a duty on the Government to prohibit at some future point caste discrimination by way of secondary legislation. The Tirkey v Chandok case does not set legally binding precedent, and therefore anti-caste discrimination legislation in the UK remains a necessity.

In July 2013, the government published an indicative timetable on caste legislation implementation which was not realised.

After 3 years, with no movement from the Government to advance the legislative process, in July 2016, Dalit Solidarity Network UK sent a pre-action letter to the Government. This urged them to accept the will of Parliament and implement the caste discrimination legislation. In their response to DSN-UK’s letter the Government stated that they would as per the original timetable – now introduce a public consultation.

On 2 September 2016 the government announced that a public consultation would take place on the issue of caste and the Equality Act 2010 to decide whether additional measures are needed to ensure that victims of caste-based discrimination can access appropriate remedied and legal protection. Yet, neither a timetable nor the terms of the consultation have been clarified. The draft terms of the consultation are worrying as they seem to suggest the focus will be NOT on ‘how the legislation should be implemented, BUT whether the ‘legislation should be implemented’. This is a fundamental change from the original position as published in July 2013.

DSN-UK continues to lobby the UK Government and  raise the issue of caste discrimination in the UK. 

The House of Commons summary, The Equality Act 2010: caste discrimination can be accessed here.

 

We want Justice Now!

This was the rallying cry from the 100s of protesters that assembled outside Parliament Square on Monday 4 March 2013 to protest against the UK government’s decision NOT to legislate against caste discrimination – despite provisions enabling it to do so in the Equality Act 2010. Our government has continued to fail to provide the necessary legal redress and protection for victims of caste discrimination in the UK.

In its long awaited response to the National Institute for Economic and Social Research report (published 2010), on Friday 1 March 2012 the government released a statement that it would not enforce legislative measures, but instead introduce an educational programme to address caste discrimination in the UK

This, despite the fact that the NIESR report specifically recommended legislation to provide explicit protection, summing up that educational measures were unlikely to work.

So why ignore these recommendations, why ignore the voice of the Dalits who have consistently demanded legal recourse as being the only way to get justice ?.

In the end, Dalit groups won the day as the protest culminated in a House of Lords amendment to legislate against caste discriminating.

Members of the All Party Parliamentary Group for Dalits, Lords Harries and Avebury and Baroness Thornton, joined by Lord Deben from the Conservative Party moved an amendment in the Enterprise and Regulatory Reform Bill to bring caste in to the Act as an aspect of race – thus outlawing it in the UK.

Photography : David Bonitto

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[All photography : David Bonitto ]

hit the links below to view more pics

>  UK DALIT DEMONSTRATION 1

> UK DALIT DEMONSTRATION 2

The debate began at 4.36pm with a powerful opening statement from Lord Harries – saying that he found the government’s decision to go down the education not legislation route was ‘disappointing and genuinely distressing’ and going on to state that such a programme could be ‘highly counter productive’. Lord Deben was clear “I do not think it a worthy decision’ and he was ‘not convinced by the government’s argument’.

Lord Avebury asked ‘why should caste be treated differently…to any other protected characteristic’?

The government response was not a surprising one. On behalf of the government Baroness Stowell recognised that there is some evidence of caste prejudice and discrimination taking place in the United Kingdom. However the government’s view is ‘this education programme, which will explore all the issues, not just those covered by discrimination legislation, is an appropriate and targeted way of dealing with incidents related to caste’

Baroness Shreela Flather, who is a Hindu of Indian origin quite pertinently asked: ‘Who is going to educate whom? We have put down so many things under education that I should think they could fill a whole blackboard. Without legislation, I do not understand who will give this education and who will be educated.’

The Minister however did go on to state ’The Government are largely in accord with the aims of this amendment. We all want to see an end to caste-based prejudice and discrimination. We are not closing the door to legislation. We have no plans to remove the power from the Act, and we will leave it there in case new evidence emerges…’

We are still wondering how much more evidence there needs to be. Plenty has now been amassed over the past 10 years and documented from the Dalit Solidarity Network UK report in 2006, to Anti Caste Discrimination Alliance in 2009 and the National Institute’s ‘robust’ report in 2010.

The amendment went to a vote at 6.05. And we had a result! 256 peers voted for the amendment – with support from all sides of the House and all parties; 153 voted against. At 103 votes in favour, it was an outstanding and comprehensive victory.

We know that other discrimination legislation did not change hearts and minds overnight. What they did do was to begin to change behaviours. Only when we had a law to protect and made certain discrimination morally and legally wrong did we see a change in attitudes. Lord Deben ended his speech by imploring the government ‘… do not fail the Dalits’.

 

 

Outside Parliament Westminster

Updated Petition

https://www.change.org/en-GB/petitions/outlaw-caste-discrimination-in-the-uk-activate-clause-9-5-a

We need a ‘big result’  in order to persuade Maria Miller MP to trigger the ‘Clause’

As you may know, despite the inclusion of caste as a factor of discrimination in the 2010 Equality Act, the lack of Ministerial activation of Clause 9(5)(a) has prevented access to recourse and justice to those who have faced this ‘hidden apartheid’.

The importance of this has been exemplified with an on-going employment tribunal – Coventry solicitors Vijay and Amardeep Begraj v. Heer Manak Solicitors. The couple have recorded over 100 instances of discrimination including harassment, reduced pay and unfair dismissal – all because they formed a relationship across the invisible caste divide. This is the first case of caste discrimination to gain such widespread attention in the UK; though of course, this has been a growing issue for a long time.

As we wait for further developments in the case of the Begraj dispute, we urge you to sign a petition to indicate your support for our call to the Minister for Equalities, Maria Miller MP to activate the aforementioned clause in the Equality Act, and ensure that caste discrimination is outlawed in the UK.

You can sign the petition here:

https://www.change.org/en-GB/petitions/outlaw-caste-discrimination-in-the-uk-activate-clause-9-5-a

 

Successful Meeting at the ‘House of Lords’

Lord Avebury with Santosh Dass of ACDA and representatives of other Dalit Ngo’s

The meeting at the House of Lords organised by the Anti-Caste Discrimination Alliance was brilliantly chaired by Lord Avebury (pictured)

The meeting was well attended by a large number of interested individuals and several Dalit organisations including ACDA, CasteWatch, DSN-UK and Kanshiradio (Radio Station based in Woverhampton)

A ‘Joint Statement’ was read out on behalf of all the groups and will be sent to Maria Miller MP , the Minister for Equalities.