Parliament debates failure of the UK Government to implement anti-caste based discrimination legislation

20th July 2016

Following an event held at the House of Lords by the APPG for Dalits and the APPG for Human Rights called “Dalit rights are Human Rights” in May 2016, Lord Harries called for a debate on 11 July 2016 in the House of Lords asking Her Majesty’s Government on the planed steps to implement anti-caste based discrimination legislation.

Lord Harries started the debate by clarifying that:

‘First, what we are concerned about is discrimination in the public sphere. The law is concerned with what happens in public. It exists to ensure that there is no discrimination in the areas of employment, education and the provision of public goods and services. Secondly, we are concerned with caste as a social phenomenon, which has affected all religions from the Indian subcontinent, including Christianity and Islam’.

He went on to summarise the steps since 2013 with regard to the caste discrimination legislation:

‘In July 2013 the Government introduced a timetable which set out a series of steps, including a public consultation, which was to lead to the implementation of this Act in the summer of 2015. As part of the process Ministers approved a feasibility study to be conducted into if and how it might be possible to estimate the extent of caste-based discrimination in Britain. A consortium conducted the research in the autumn of 2014.

The consortium’s report was due in November 2014, but it is yet to be published. My first question to the Minister therefore is: why has this research not been published? The question posed by the Government was clear enough. Is it or is it not possible to estimate the extent of caste-based discrimination in the UK? If it is possible, why has this not been carried out? If it is not possible, or if there is a downside to doing so, we need to hear the reason for that. In either case, there is no good reason to stop the process <…>. When we have raised these issues in the past, the Government have repeatedly cited the Tirkey v Chandhok employment tribunal case as a reason for non-implementation of the legislation so far. In that case the tribunal noted that caste-based discrimination can constitute unlawful race discrimination in certain contexts and that caste should be an aspect of race as defined by Section 9(1) of the Equality Act 2010. However, the judge made it clear that he was dealing only with the facts of that case and was not making any more general point about caste and the law.

I think the Minister, as well as the whole country would find it quite intolerable if issues of discrimination on the basis of gender, race or religion were left simply to employments tribunals with no statute law to back them up. May I ask the minister why discrimination on the grounds of caste should be regarded as different?’

Lord Cashman stated he found ‘the most worrying <…> [the government’s] casual disregard of the United Nations and our international treaty obligations. The 2012 UN Human Rights Council’s recommendation could not be clearer. It states: “Put in practice a national strategy to eliminate discrimination against caste, through the immediate adoption of the Equality Law of 2010 that prohibits such discrimination, in conformity with its international human rights obligations, including”, the Committee on the Elimination of Racial Discrimination’s, “General Recommendation 29 and recommendations of the Special Rapporteur on Contemporary Forms of Racism”’.

Lord Lester QC ended his speech stating: ‘The current state of the law lacks legal certainty. There is no binding and authoritative legal precedent. That legal uncertainty violates the rule of law, and the government’s continuing inaction violates Parliamentary sovereignty’. He called ‘on the Minister to inform the House in her reply whether or not the government will now perform the duty cast upon it by Parliament, and, if not, what is their justification for refusing to do so’.

Both Lord Desai and Baroness Flather, Hindu Peers, spoke strongly and passionately on the need for legislation.

Lord Desai was clear: ‘It has been explained what the law is and what the Government ought to do. So why do they not do it? Obviously, there is a very strong lobby—let us call it the caste Hindu lobby—which is very powerful, prosperous and persistent. They have abandoned me but I know they would love to get me on their side.’

And from Baroness Flather: ‘Naturally, they are not going to say, “Oh, there is caste discrimination”. They are a powerful group of people. There are a lot of Hindu organisations and they have a lot of connections in Parliament, possibly in the House of Lords as well. We have to be aware that they have quite a lot of pull in this matter.’

Apart from the Minister, who did not give an opinion one way or the other, the only Peer to speak out against the legislation was the Conservative Hindu Peer, Lord Popat, who even went as far asking for the amendment to be repealed: ‘I urge the Government to bring forward legislation to repeal the amendment to the Equality Act 2010. It is extremely difficult, if not impossible, to implement. It is unnecessary, given that there is little hard evidence of caste discrimination. The amendment supports out-of-date notions of caste that belong in a different continent,’

Speaking on behalf of Her Majesty’s Opposition, Baroness Thornton did not mince her words: ‘We have seen the opposite of strong and swift. “Flabby and slow motion” would better describe the lack of activity since 2013. This lack of activity, as the noble Lord, Lord Deben, and others have said, shows a contempt for Parliament that is really unacceptable.’

The UK’s Equality and Human Rights Commission in their briefing for the debate stated quite clearly

– without any room for doubt.

‘In our view, it is both necessary and desirable for the Government to implement section 9(5) of the Equality Act 2010 (the Act), in order to clarify that the Act’s prohibition of race discrimination and harassment includes protection against discrimination and harassment based on “caste”. ….We therefore consider that it remains necessary for Government to implement section 9(5) of the Act in order to provide legal clarity.’

Lord Deben outlined that: ‘In her first statement, she (Theresa May) reminded the Conservative Party that her first principle was to ensure that all people had a fair do in life. Can one possibly say that and yet exclude from the fair do in life those who happen to be Dalits? 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’.

Baroness Williams of Trafford on behalf of the Government ended the debate saying: ‘I agree that this is an issue which the new Administration, led by the new Prime Minister, who herself was Minister for Women and Equalities in 2010-12, will need to consider afresh, and I am sure that they will.

A full transcript of the debate can be found here.

APPG for Dalits and the Parliamentary Human Rights Group on the 24th of May 2016 hosted a successful event at the Houses of Parliament titled “Dalit Rights are Human Rights”

19th July 2016

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The speakers at the event included Diya Sen Gupta, Satpal Muman, Santosh Dass, Clive Baldwin, Rania El Rajji, Aidan McQuade and Jin Kalkat.

The first part of the event overviewed the UK scene in relation to Dalits’ situation and anti-caste discrimination legislation. The event started with Meena Varma reading Jeremy Corbyn’s[/ezcol_1half_end]

message in which he stated that he is sad to step down from the APPG for Dalits Chair’s role but happy to pass it on to Yasmin Qureshi, and will continue supporting Dalits’ campaign.

Diya Sen Gupta gave an overview of anti-caste discrimination legislation progress and British case law. She highlighted that Equality Act 2010 prohibits direct and indirect discrimination and harassment. 2013 amendment added a statutory duty to include caste under race, yet no timeline was set. In 2014 the Equality and Human Rights Commission carried a public consultation, yet no publication of the consultation was made.

Mr. Justice Langstaff, the judge in Tirkey v Chandok caste was clear that his ‘focus has been on the appeal in this particular case, in its particular circumstances <..> not to resolve academic disputes, and establish more general propositions, of no direct relevance to the case in hand’. Therefore, the case is not a precedent for other caste-based discrimination cases, and as this type of process is expensive and discouraging, anti-caste discrimination legislation is very much needed. On the future of the legislation Ms Gupta added that government has no immediate plans to implement the legislation and it may not be exercised before April 2018, when the Sunset clause could come into play and the law may be repealed due to anti-legislation lobbying.

Kate Green MP stated that the reluctance to adopt the anti-caste discrimination legislation is politically driven and influenced by allies outside the UK. HMG has not honoured the timetable it introduced in 2013 despite efforts from Peers and MPs and responses to the PQs asked: How to respond to this ‘aggressive inertia’?

She suggested to: (1) point out to the government its disregard of this as a human rights issue, thus weakening the government’s reputation; (2) making it very clear to ordinary families affected by caste what it would mean for them and emphasising that their culture and family life would not be affected; and (3) advance the argument for anti-caste based discrimination legislation by going back to the moral principle (statement) that this form of discrimination is not acceptable and statute is extremely helpful to secure human rights and protect people against discrimination. Human rights should not be subordinate to short term political gain. She suggested that the campaign should focus on specific strategies and become louder.

A statement from the audience (Keith Porteous Wood) highlighted that under the last Universal Periodic Review (UPR) the UN recommendations included words like “obligation” in relation to the anti-caste discrimination legislation and the UK representatives agreed to it. Hence now within the UN the UK looks bad.

Satpal Muman said he was representing the community’s perspective and expressed his disappointment with the lack of HMG’s interest and stated he is losing his confidence in the government. He ensured that he continues to campaign and write to government officials but sees no light at the end of the tunnel. In his view the opposition to caste legislation undermines community cohesion and concluded by saying that there should be no room for caste-based discrimination in this country where we have “better rights”.

Santosh Dass stated that Indians coming to the UK bring their culture and practices with them hence there is a need for legal protection against caste-based discrimination to protect Dalits in the UK.

Baroness Flather suggested that the issue is out of people’s sight and everyone should speak to their MPs and create Dalit specific organisations. She has recirculated the EHRC reports which do have very specific pro-legislation recommendations.
We need to marshal friends in both Houses – Hindu organisations have been well organised and mobilised – now is the time to agitate. Look at the Sikh Gurudwaras that have been built on caste lines.

Jin Kalkat spoke about his journey and caste discrimination he experienced in the UK. As a result of caste-based discrimination he described feeling upset, hurt and less than a human, no longer safe. He also said he started feeling as an outsider and felt this might lead to radicalisation of an individual. He concluded by asking a question: if there is no respect for human rights in the UK how can we promote it elsewhere?

The second part of the event looked at caste discrimination globally.

Clive Baldwin highlighted that CERD is an international law prohibiting discrimination and recently celebrated its 50 years anniversary. He stated that India has good laws in place, including prohibition of manual scavenging, yet this inhumane practice still exists. Nepal has also made an extreme transition over the past decade, yet there is a political dismissal of discrimination. He concluded that whilst there is good evidence of international law being translated into domestic laws an issue of implementation remains.

Rania El Rajji spoke about caste discrimination in Yemen and the situation of Muhamasheen (“marginalised ones”) people, also known as Al Akhdam, who are at the bottom of the caste system. She highlighted that in March 2015 when the conflict erupted in Yemen, the Muhamasheen ended up at the front of the conflict; yet with very restricted access to humanitarian assistance. She concluded that although normally war brings communities together, the MRG report “Even war discriminates” highlights that Muhamasheen in Yemen are by-passed and discriminated against during the conflict in accessing even the basic goods.

Aidan McQuade started by saying that a failure to recognise caste in the UK is a sign of weak leadership. He highlighted that those enslaved come from discriminated groups. As Ambedkar pointed out, caste restricts opportunities, and instead offers division of labour and economic injustice. Aidan reiterated that law can counteract prejudice. He finished by saying that for the Foreign and Commonwealth Office human rights are no longer a priority but trade deals are, which leaves very little incentive for other states, like Nepal or India, to change. To address human rights violations and discrimination politicians have to be prepared to be unpopular.

The audience was invited to suggest steps to take in moving forward. Those included submitting shadow reports for the UK review in August 2016 under the CERD, using the EHRC’s reports as a reference, educating people on caste-based discrimination and arranging a follow up APPG meeting.

As a result of this meeting Lord Harries of Pentregarth later proposed a debate on caste-based discrimination at the House of Lords, which took place on the 11^th of July 2016.