EM Letter for Community OrganisationsACLC Contribution
ACLC Govt. led Caste Consultation –
Guidance to Community Organisations on Filling in Forms
Key outcome Objective – Repeal legislation AND Case Law
For Community organisations, the information provided by the Govt in the consultation document presents and offers “choices” that have pre-emptive questions and deceptive options that have the potential that members of Hindu & Jain Communities could misunderstand the process and potentially give responses that would compromise our communities’ future. This has been compounded by the conflicting advice some organisations have started to give out to the Hindu & Jain communities in filling in the consultation forms.
ACLC’s recommendation to community organisations is to
- Submit the long version of the template ACLC has prepared. http://www.dsp.today/aclc/proposed-short-response/
- To sign up to the collective letter (detailed below) to the Equality Minister Rt Hon Justine Greening MP from as many Dharmic organisations as possible.
ACLC’s advice is as concise as we can make it. ACLC’s letter to Rt Hon Justine Greening MP below is consistent in keeping Hindu and Jain Communities secure by seeking the repeal of BOTH legislation and case law. To quote Bob Blackman, MP for Harrow East from 2010 and founding Chairman of the Hindu APPG from 2013 and supported by Matthew Offord MP for Hendon, Mike Freer MP for Finchley and Golders Green and Henry Smith MP for Crawley.
“As Chair of the Hindu APPG from 2013, I have followed closely the caste legislation and its impacts on the Hindu community. The government’s current caste consultation is most welcome as I have been pressing for the community to have an opportunity to repeal this ill thought out, divisive and unnecessary legislation inflicted on the community by the Labour & Liberal Democrat parties. However, constituents have raised concerns that the consultation document is too legalistic and they have experienced difficulties in responding with a set of words that properly reflects their intentions. It should be clear that the Government is ensuring that anyone who claims that caste discrimination exists the opportunity to explain their evidence. I urge individuals to respond to the consultation making clear that they have not experienced caste discrimination and that this should be repealed. Having studied the Anti Caste Legislation Committee’s (ACLC) briefing papers on the potential impacts on individuals, businesses, community organisations and public authorities, and their assertion that case law could end up with adverse consequences, if re-elected, I would seek the support of the government and fellow MP’s to repeal both the caste clause in the legislation and Parliament to overturn any adverse judgements in case law.”
Rt Hon Justine Greening MP
Equality Act (caste) consultation responses
Government Equalities Office
Department for Education
Great Smith Street
Our Ref: ACLC EM letter for community organisations Ed 2 15.06.2017
Dear Rt Hon Justine Greening MP,
Re: Caste in Great Britain and Equality Law: A Public Consultation – Response from community organisations
We the undersigned acknowledge that the Government has responded to widespread anxiety among community organisations and other segments of British society about the impending prospect of legislation on caste discrimination by announcing its consultation on the matter.
We wish first to recognise that the consultation bears out some observations that have already been put to you as Minister for Women and Equalities. These include the recognition that there has not been any universally accepted evidence produced of caste discrimination and that establishing a workable definition of caste is highly challenging given lack of clarity about what the term refers to. The consultation document also rightly recognises that few would be able to recognise caste discrimination but yet might unwittingly become liable to a claim of such discrimination, either because of their own actions or those of their employees.
The Government is to be commended for recognising the force of the arguments being made to it over the course of the past few years. For example, the consultation document at (para. 1.8) makes the forceful observation:
This Government is committed to minimising the risk of unintended consequences, whichever approach – reliance on case-law or specific legislation – is ultimately chosen. In assessing these risks, we need to recognise that caste is a controversial and sensitive issue where even key points are disputed by different groups. There is very little knowledge and understanding about caste in Great Britain and no universally accepted functional definition of caste which can be relied on. Organisations such as businesses and public bodies therefore have little, if any, awareness of what caste is and how it might be recognised. There remains the danger of stereotyping caste as a discriminatory practice of certain ethnic groups creating potential problems in the harmony of the social fabric of modern British society.
It is, however, of some concern to us that the logical consequences of such findings are not pursued to conclude that there is no necessity for any kind of law on caste discrimination in Britain, given that such a law would be impossible to apply coherently, would result in grave injustices, and in the language of the consultation document, unintended implications or consequences would inevitably result. In other words, a law on caste discrimination is unnecessary and unworkable.
The decision by the Government to issue a consultation is a concern to us not only for the above-mentioned failure to pursue to its logic what the Government already accepts. The very structure and design of the consultation invites further criticism. The consultation effectively forces respondents to choose between the two alternatives of case law (option 1) and secondary legislation (option 2). Despite the recognition in the consultation document about the problems of having a law on caste discrimination, which should have led to the conclusion that no law is necessary or workable, the consultation presupposes that some law, whether option 1 or 2, should be introduced (or retained, as the case may be), and it forces a choice to be made between them. We do not see how such a point of departure does justice to our concerns and the Government’s own recognition of potential problems of having any law on caste discrimination.
Further, the consultation, except in a minimalist and very insignificant way, makes no concession to the notion that no law on caste discrimination may be necessary or workable. That is the position we wish to argue for and which we hope the Minister and HMG will take on board in eventually considering their own position.
Option 1: Case law
This option has materialised because case law already covers caste. This happened in the leading case of Tirkey v Chandhok at the Employment Appeal Tribunal (EAT). The EAT decided that caste is covered by the ‘race’ provision in the Equality Act 2010 already because race covers ethnicity, which in turn covers descent, which in turn covers caste. The following formula expresses this logic: Race ≥ Ethnicity ≥ Descent ≥ Caste.
We have severe reservations about the way in which the Tirkey proceedings were conducted and the conclusion that was reached both on the facts and law. It is arguable that the case was decided per incuriam and cannot be relied upon. The facts adduced in the case could never have led an objective observer to conclude the caste discrimination was present. Even the caste of the claimant and respondent was not known. Although unreliable, leaving the case on the books exposes organisations and their members to potential injustice.
Following the case law route means that the widest possible coverage would apply to the Equality Act because ‘race’ has the fewest exceptions, unlike religion and gender where wide exceptions apply. This in turn means that those subject to caste discrimination claims have the fewest exceptions on which to rely.
The Equality Act is based on the award of civil damages for the wrong of discrimination committed under the act. It is like a statutory tort. It extends to harassment and victimisation, to which civil sanctions also apply. There are further powers in the Equality Act such as enabling the EHRC to conduct investigations. There is also the Public Sector Equality Duty. All of this would apply intact if the case law route is followed.
The published consultation only refers to the Equality Act and its scope. However, the case law route has the further implication that laws outside the Equality Act would also extend to caste. Wherever there is a reference to ‘race’ – such as in the Racial and Religious Hatred Act 2006 or in statutory provisions on racially aggravated offences – caste would be included. The EAT did not contemplate this consequence, but it would be an inevitable effect of interpreting the word ‘race’. This means that, by virtue of the Tirkey case, criminal sanctions already apply in British law for caste-related offences. There has been no public or parliamentary debate or consultation about this and it has the potential to also penalise innocent people who are acting in ignorance of the law. There is also the unresolved question of what exceptions or defences might apply to criminal offences that now effectively exist in British law as a result of the case law. The failure to recognise these problems in the consultation document leads to the conclusion that those drafting it have not thought through the full potential consequences of the case law on caste.
As noted, the consultation correctly accepts that it is not known, whether semantically or scientifically, what caste is. This is fatal to any notion that a law on caste discrimination should exist because no judge can decide what caste is either, and it is significant that the EAT in the Tirkey case also desisted from providing a definition, while recognising the definitional problem and the lack of social scientific consensus on what caste is. It would be quite unfair to judges and tribunal members to expect them to decide a matter on which social scientists significantly differ even with respect to basic issues.
It would create a wide uncertainty in the public mind about what caste could potentially include and it would make legal consequences so impossible to predict that behaviour could not possibly be regulated or adjusted to prevent discrimination and legal claims. It could lead to split trials, expert evidence having to be adduced, trial length being increased, and costs implications on community organisations working hard to provide services to their communities. Organisations and community members could be trapped in litigation through no fault of their own depending on what someone considers caste to be and because they merely have a feeling that they are treated differently because of it. These considerations add force to the observation that judges and tribunal members are being compelled do a task that researchers, the EHRC and Parliament have failed to do and they apply also to option 2.
The consultation document (at para. 3.10) observes that the case law option would reduce any additional burden on businesses. Although we do not represent businesses, we have members who are in business, and our organisations would in any case take issue with this claim, not least because we might perform some functions that businesses also do, such as acting as employers, providing services, etc. This claim prompts respondents to the consultation to choose the case law option. We do not accept that having case law would reduce additional burdens upon our organisation because it would apply the Equality Act at its widest possible, thereby importing all the obligations and none of the exceptions available to protected characteristics other than race. We fail to see how this amounts to a reduction in any burden. On the contrary, because the case law now applies anywhere in legislation where the word ‘race’ appears, liabilities on the basis of caste have widened far beyond the Equality Act.
Our recommendation on Option 1: Repeal the case law by parliamentary legislation alongside repeal of section 9(5) of the Equality Act.
Option 2: Specifying ‘Caste’ in the Equality Act 2010
This option would mean that caste would be listed specifically alongside ethnicity, colour and ethnic or national origins, all of them being part of race. Specifying caste in the Equality Act does allow the Government to make an Order limiting the scope of that provision (section 9(5)(b)). In other words, the Government could specify in an Order to what extent the provision applies and what exceptions should be made. Wider exceptions could foreseeably apply to ‘caste’ than to ‘race’ generally. It will all depend on thinking through the exceptions and how the Order will be drafted.
However, what parts of the Equality Act to apply or not apply to caste by an Order is always going to be a difficult decision. No research exists on how this could be done and no comparative examples exist elsewhere in the world. In that regard, the consultation document is correct when it observes that the EHRC-commissioned Wolverhampton University research team did not make any particular recommendation about which exceptions should or should not apply. In fact, that research team singularly failed to consider that question, although one would have expected that the central aspect of its appointed task was to evaluate the feasibility of making caste an aspect of race (a route it appeared predisposed to favour). However, and despite the research team’s failure to think through the question of exceptions, the consultation document is silent about the fact that the same research team did recommend that, because caste would be made an aspect of race, the same exceptions as apply to race should apply to caste. This would entail the widest possible application of the Equality Act to caste since the fewest exceptions apply to race as compared with other of the Act’s protected characteristics.
In fact, the Government accepts in the consultation document that it does not even have evidence of the impact of any law on caste, whether it be the case law (option 1 above) or specific statutory listing of caste as an aspect of race (option 2). As with option 1, option 2 is also therefore laden with potential arbitrariness and lack of clarity.
The consultation document’s acceptance that it is not known what caste is, is fatal because, if it is not known what the subject of the legislation is, any amount of discussion about coverage is bound to be pointless and, in the event an Order on caste is passed, it would be entirely arbitrary in its effects. This observation also applies to the case law option (1 above).
Our recommendation on Option 2: Reject specifying caste in the Equality Act 2010. Repeal section 9(5) of the Equality Act alongside reversing the case law by legislation.
While we have not had the opportunity to do any significant work on measuring possible impacts of any law on caste discrimination we envisage risks community organisations face because of any such law (which both options 1 and 2 might expose them to). In stating the following we make no particular commitment to a definition of caste but recognise that caste grounds may be attributed to the listed set of actions by others:
- If an organisation is primarily seen as based on caste membership (e.g. a jati or gnati belonging) it could be open to allegations of caste discrimination on grounds that an unlawful preference is given to members of one caste. Such organisations are widespread, they are the main associational basis of the Indian community, and they provide a range of vital services to the community.
- If a community organisation holds events primarily for the benefit of people because of what is seen as their caste membership it could be open to claims of caste discrimination.
- If a community organisation provides a preferential treatment on the basis of what are seen as caste grounds for hiring premises for events such as weddings, or the costs of hiring, it could be open to litigation for caste discrimination.
- If a community organisation convenes events such as Navratri or a puja, and invites or allows attendance primarily for members of what is deemed a caste group, it could be open to litigation for caste discrimination.
- If the officials of an organisation are not aware of the caste group to which the organisation’s employees or recipients of services, or visitors to its facilities belong, they could be held liable for caste discrimination, even for inadvertently offending them.
- Not keeping records of the caste status of employees, customers or beneficiaries could also result in a greater risk of a claim of caste discrimination against a community organisation or an organisation’s officials.
- Because it is thought that membership of a caste group survives conversion to another religion, it can be envisaged that non-Hindus – e.g. Christians or Muslims – could, for example, make discrimination claims against an organisation because of the latter’s antecedent caste. The tribunals deciding the Tirkey case allowed just such a claim when the claimant was a Christian and the employers were Buddhists. Such claims are bound to create greater community tensions especially because it is a core tenet of the Semitic religions that followers of Dharmic traditions have a false religion.
- A community organisation or its employees could be subject to criminal prosecution on grounds of racially aggravated offences (which entail a higher add-on sentence for the primary crime) if it were claimed that the unlawful action was aggravated by caste considerations.
- If a community organisation constitutes or assists a business or professional association around a deemed caste group, it risks legal action for caste discrimination.
- A community organisation will have to reassure itself that its insurance policy covers risks of legal claims of caste discrimination or criminal liability. This may result in a higher premium for community organisations because of the presumption as to which groups discriminate, harass or criminally aggravate on grounds of caste.
- Being found liable for caste-based discrimination or an offence aggravated by caste could result in questioning of a person’s ability to be a director of a company, a trustee or holder of public or political office.
- If a community organisation is a charity, being found liable for caste-based discrimination or an offence aggravated by caste could result in the withdrawal of its charity status and therefore affect a significant part of its budget and therefore it ability to continue providing services to its members.
We urge you to reconsider the manner the consultation on caste has sought to elicit views on the propriety of a law on caste discrimination. We reiterate that we support neither the case law nor the legislative route as both are unnecessary and unworkable. Should either remain or be enacted, they would entail gravely unjust consequences, totally disproportionate to any harm they might be intended to recompense. We would be bound to continue to support the reversal of any law on caste discrimination, whether legislated or case law.
Consent to Anti Caste Legislation Committee (ACLC)
1. Our organisation supports and endorses the policy of ACLC to repeal both the case law and caste Legislation.
2. We consent to ACLC forwarding and liaison with the Govt offices on this issue on our behalf.
3. We will share and encourage our members and other stake holders to respond to the government Caste Consultation in accordance to the guidance and replies provided by ACLC.
4. We will support the ACLC policy to lobby our local MP’s and parliament to do the same.
5. We will circulate whatever briefing papers, notes and documents that are prepared by ACLC.
Please email us at firstname.lastname@example.org with your contact details and your preference for using the ‘short’ or the ‘long’ version.
Anti Caste Legislation Committee
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