Tag Archives: Equality Act 2010

Tarunabh Khaitan: Caste as Race—A Welcome First Step

khaitan_tarunabhMy earliest memory of my encounter with the caste system is that of a ten year old growing up in my small hometown in Bengal. Playing with the neighbourhood kids, I spotted the familiar figure of Lakkhi—squatting over the open drain in the neighbourhood, cleaning it assiduously. Her back was turned to us, and thinking it would be a good idea to surprise her, I snuck close and playfully threw my arms around her. That innocent embrace invited immediate criticism from children not yet in their teens, taunting me for having touched an ‘untouchable’. I remember feeling ashamed of myself for having failed to imbibe the nuances of caste. It would take a good few years for me to realise that the real reason to be ashamed was not thinking about what Lakkhi felt at that time.

But caste is not something that exists only in the cities and villages in the Indian subcontinent. With the diaspora, caste has travelled around the world, the United Kingdom being no exception. Despite activist and academic demands, the then Labour government decided not to prohibit caste discrimination when it enacted the Equality Act 2010. Instead, section 9(5) of the Act permitted a Minister to amend the Act ‘so as to provide for caste to be an aspect of race’—a power that was never exercised. Section 97 of the recently enacted Enterprise and Regulatory Reform Act 2013 now requires the concerned Minister to amend the definition of ‘race’ in section 9(1) of the Equality Act to include ‘caste’. The new legislation also empowers the Minister to review the operation of the amended section 9(5) of the Equality Act and repeal it if necessary. The House of Lords would have preferred a more straightforward and permanent expansion of the definition of ‘race’ by Parliament directly, but compromised to persuade a cautious Commons.

The controversy illuminates a key aspect of the point of discrimination law. Discrimination law does not prohibit all distinctions between classes of persons that are unreasonable, arbitrary, or even wrongful. The Equality Act will not interfere with an employer’s refusal to hire a qualified applicant named Wendy because he disapproves of people whose first names begin with the letter ‘W’. Similarly, (unless a correlation with race can be established) eye-colour is not a protected characteristic on its own right. Nor is football club fandom. In order to be protected, the ground has to have some salience in a given society, a salience conferred upon it by its close connection with relative group disadvantage. Sex is protected because women are significantly more disadvantaged than men, and race is protected because blacks (and some other races) suffer pervasive disadvantage (it will take more than a blog post to explain why it may still be alright to protect men and whites anyway). Wendy is not protected because the letters of people’s names do not define any group that suffers (or is likely to suffer) pervasive and systemic disadvantage. The employer’s refusal to hire her is eccentric, arbitrary and wrong, and may even be illegal under certain circumstances—but not by virtue of discrimination law. It is unlikely that another employer will treat Wendy similarly.

The current controversy is really about whether caste is salient enough in this country to merit the protection of the Equality Act. In other words, the moot question is whether, in the UK, a dalit person—someone at the bottom of the caste hierarchy—is more like a woman or a black person or like Wendy. There has never been any doubt about the salience of caste in India. The first legal response in British India came early in the form of the Caste Disabilities Removal Act 1850. The Constitution of 1950 abolished untouchability, provided for dalit access to temples, prohibited caste discrimination and mandated affirmative action for ‘lower’ castes. Several statutes have been enacted after independence too. Of course, serious concerns over the design, implementation and impact of these measures remain. The point is that caste clearly satisfies the salience requirement in the Indian context, and this has been recognised by Indian law for over a century and a half. The question before the Westminster Parliament was whether it is also salient in the UK.

A government commissioned study reported in late 2010 that caste was a relevant feature in the lives of about 5% of the British population to make them potential victims or perpetrators of caste discrimination. It also found that caste was not specific to a particular religion, but affected all religious groups from the Indian subcontinent. The report identified evidence—mostly qualitative case studies—‘suggesting caste discrimination and harassment of the type covered by the Equality Act 2010’. Individual cases involving allegations of caste-related harassment in schools and workplace, denial of admission to a school, discrimination in recruitment and promotions by employers, and discrimination by health and social care workers were recorded. There were also cases of discriminatory treatment which would probably not be covered by the Equality Act, including segregated places of worship, caste-based voting behaviour and attempts to prevent inter-caste marriages.

The study recognised that although ‘a single case of caste discrimination or harassment proves that it exists … legislation to address a single case is rare. Therefore, if any cases of caste discrimination or harassment were identified, the study needed to provide some indication of whether these were isolated cases or not. Within this study, this could only be done qualitatively, drawing on the evidence in the literature, from discussions with interested parties and experts and from the qualitative interviews. Quantifying the extent of caste discrimination would require a representative survey.’ (11) This methodological limitation also meant that no evidence of indirect caste discrimination could be produced. The absence of concrete quantitative data was perhaps one reason why the government and the Commons dithered over the extension of the protection of Equality Act to caste.

Even the limited qualitative evidence unearthed by the 2010 study, along with plausible surmises based on the salience of caste in the subcontinent, caste’s close connection with cultural identity and the enthusiasm with which some migrant communities seek to preserve cultural distinction, suggest that caste-based discrimination is likely to be a significant phenomenon in certain sections of the South Asian population living in the UK. Furthermore, the web of personal, social and professional interactions and relationships is likely to be denser and stronger within a minority ethnic group living in a multicultural society. Caste discrimination can have a pervasive effect on many significant aspects of the life of a ‘low’ caste person living in a largely South Asian neighbourhood—where the local schools, workplaces, places of worship, shops, restaurants and hotels are likely to have a substantial South Asian presence—even though only 5% of the British population is potentially caste-conscious. To such caste-burdened individuals, it is little solace that the rest of the population is indifferent to caste. The relevant experiences of a dalit girl from Birmingham are far more likely to resonate with that of a black man in inner city London than to that of Wendy, wherever she might be from. The issue of caste discrimination in the UK highlights the need to protect even those characteristics that are salient only within particular sub-groups in a given society.

In the absence of good quantitative evidence, Parliament has done well to be guided by the available qualitative evidence and plausible surmises and prohibit caste discrimination (even if only tentatively and temporarily)—for the cost of inaction is likely to be greater. More concrete and comprehensive data is necessary to determine whether treating caste as an aspect of race is appropriate. It may turn out that our surmises were mistaken and the qualitative data inadequate. On the other hand, future research could buttress our commitment to deal with caste discrimination in the UK and require further action.

It may turn out that caste’s particular impact on the marital and religious lives of people requires a rethink of antiperfectionist liberal assumptions about the necessary distance between the state and certain areas of private life. Caste is likely to intersect with race and religion to a significant degree, and caste discrimination could be compounded by discrimination based on sex, disability and marital status. Although section 14 of the Equality Act recognises discrimination based on a combination of two grounds, it may not be adequate to capture the various ways in which caste interacts with other protected grounds. Given caste’s strong connection with an unprotected ground—vegetarianism—the law may need to consider whether distinctions based on food preference amount to indirect caste discrimination.

Instead of being an outlier among grounds protected by discrimination law, caste (like disability before it) may bring new insights to our understanding of the concept of discrimination—insights that may well benefit groups carrying the burdens of other forms of discrimination too.

 

Tarun Khaitan is a Fellow in Law, Wadham College, University of Oxford.

Suggested citation: T. Khaitan, ‘Caste as Race—A Welcome First Step’ U.K. Const. L. Blog (10th May 2013) (available at http://ukconstitutionallaw.org).

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George Letsas: Redfearn v UK: Even Racists Have the Right to Freedom of Thought

In a liberal democracy, everyone should be treated as an equal and everyone should have the right to freedom of thought. How can anyone disagree? Well, some do. Fascists, racists, bigots, sexists, religious fundamentalists, political extremists – just to name a few- endorse ideologies that are incompatible with the very values of equality and liberty that underlie human rights. These people believe in fewer or no rights for people of different race, religion, sex, sexual orientation or political opinion. They are the people who in the course of human history have often acted on these beliefs, inflicting terrible wrongs on women, Jews, Muslims, ethnic minorities, gays, immigrants, disabled people or communists. They are the reason why liberal democracies introduced anti-discrimination laws, seeking to protect the equal rights of unfavorable groups. They are the people whose expression is in many liberal democracies restricted by hate speech laws, not only for symbolic reasons but also to curb the spread of their bigotry before it materializes into wrongful action. So it is often said that a liberal democracy cannot treat everyone’s beliefs the same: it must reject ideas that are incompatible with its own values. It must show “intolerance towards intolerance”. It cannot be neutral all the way down. But does this mean that racists should have fewer legal rights than the rest of us?

Mr Arthur Redfearn is a white British bus driver who worked for Serco, a private company providing government services in Bradford, an area beset by racial tensions. Mr Redfearn’s job involved transporting people with mental disabilities, the majority of which were of Asian origin. The record of Mr Redfearn as an employee had been impeccable, with no complaints about his work or his conduct. Indeed, he was even nominated, by his British Asian supervisor, for the award of ‘first-class employee’. When a local newspaper identified him as a candidate for the British National Party (BNP), the public sector workers’ trade union (UNISON) expressed concern that his continued employment with Serco posed a significant risk to others: the BNP has an overtly racist ideology and Serco’s customer base, as well as its workforce, was of predominantly Asian origin. Serco on the other hand became concerned that employing publicly known BNP members will harm its reputation and possibly cost them the contract with the local authority. When Mr Redfearn was elected local councilor for the BNP, Serco decided to dismiss him summarily.

Did the dismissal violate Mr Redfearn’s human rights? UK courts never got to pronounce on this question. Under UK employment law, workers do not have a right against unfair dismissal unless they have been in the same job for 12 (now 24) consecutive months (the ‘qualifying period’). Since Mr Redfearn had been with Serco for only 6 months, he had no legal right to challenge the fairness of his dismissal except on some very limited grounds including discrimination because of religion, race or sex. And given that this was a dispute between private individuals, he could not directly invoke the Human Rights Act 1998 (HRA) as the legal basis for an action against his employer. Had he been entitled to challenge the fairness of his dismissal, he would have been able to invoke the HRA and ask the court to interpret what fairness in dismissal requires in the light of his human rights.

The case went to the European Court  as an article 11 ECHR case (freedom of association). Mr Redfearn submitted that the UK had a positive obligation to protect him from dismissal on the ground of his involvement with the BNP, even during the qualifying period. The Strasbourg Court found a violation of article 11 ECHR by the narrowest of margins (4 votes to 3). It held that the UK should either add political beliefs or affiliation to the existing prohibited grounds of discriminatory dismissal (race, sex and religion) during the qualifying period or, alternatively, create a self-standing claim for unlawful discrimination on the basis of one’s political beliefs or affiliation.

 The Court’s judgment should be welcomed as a prime example of what a consistent application of the liberal-egalitarian values underlying human rights demand. It is premised, in my view, on the following two principles: first, a state cannot prohibit discrimination on the ground of religious beliefs but allow discrimination on the ground of political beliefs. Second, beliefs whose content is incompatible with the values of the Convention (such as racism, fascism, sexism etc) are in principle as worthy of protection from discrimination as any other belief. These two principles are not new; they have been previously recognized, albeit not always consistently, by the Court.

Take the first principle. Article 9 ECHR, which protects the right to freedom of thought, protects not only religious beliefs but also any other belief, be it political, philosophical or otherwise. Strasbourg organs have examined under article 9 ECHR a number of complaints involving non-religious beliefs, such as pacifism (Arrowsmith v United Kingdom, 1978), scientology (Church of Scientology Moscow v. Russia, 2007) and veganism (W v United Kingdom, 1993). Though the Court dismissed Mr Redfearn’s complaint under article 9 ECHR, and preferred to examine it under article 11 ECHR, this should be seen as no more than a mere formality. Throughout the judgment the Court referred disjunctively to Mr Redfearn’s political ‘opinion’ or ‘affiliation’. Indeed, it would have made no difference to the Court’s reasoning if Mr Redfearn had been dismissed solely because he was a known BNP enthusiast or sympathizer, but not a formal member. He still would not have been able to challenge his dismissal under UK employment law. But he would have been able to do so if he had been dismissed because of his membership to a particular church or his religious beliefs. This differential treatment between religious beliefs and political opinion (or, if you like, between religious associations and political associations), emphasized by the Court in para 54 of its judgment, is arbitrary and goes against the very core of article 9 ECHR. This is why, contrary to what the dissenting judges (sir Nicholas Bratza, Hirvela and Nicolaou) argued, it is not within the states’ margin of appreciation which grounds of discrimination they may prohibit within employment. If states prohibit religious discrimination (which they arguable ought to) then the Convention requires that they must also prohibit discrimination on the basis of political opinion or association. 

Now consider the second principle that anti-egalitarian opinions (such as racism, fascism or sexism) are as worthy of protection from discrimination as any other opinion. This principle does not mean that we should protect wrongful actions that may be motivated by these despicable views, such as race crimes or other horrible abuses. It simply means that in a democratic society we should respect the right of people to have such thoughts and beliefs. We should not, in other words, be engaged in ‘thought control’, which is what states do when they condition the distribution of vital opportunities or benefits (such as employment) on having particular beliefs. People have a right to have any thoughts they like, including bad thoughts. It is a different issue altogether, falling outside the protective scope of the principle, when racists thugs act in a way that harms or otherwise wrongs some vulnerable group. But merely holding certain beliefs, absent harm or a clear and present risk of harm to others, is no reason to dismiss anyone, including BNP members. The distinction between thought and action is here crucial. This is why the Court, rightly, found the fact that Mr Redfearn was a BNP member irrelevant, repeating its known slogan that the Convention protects not only ideas that are received favorably or with indifference, but also ideas that ‘offend, shock or disturb’ (para 56). In this respect, the Court clearly moves away from the view, mentioned in Campbell and Cosans (1982)and repeated in the explanatory notes to the UK Equality Act 2010, that only beliefs compatible with human dignity are protected by the Convention. As far as freedom of thought goes, this view is not defensible.   

In its third-party intervention against the applicant, the Equality and Human Rights Commission argued that employing known BNP members impacts on the employer’s provision of services regardless of whether or not there are any complaints about the manner in which they do their job. It noted further that the justifiability of dismissing a BNP member could turn on a number of factors, including whether employing him undermines public trust and confidence or harms the employer’s reputation. These are all bad arguments: the mere fact that service users refuse to be served by workers who endorse a particular ideology is no reason to dismiss them. Nor is it relevant that the employer’s business interests will suffer as a result of this refusal. These are not legitimate bases for dismissing people. Just like the employer would be unjustified in firing a communist –or, for that matter, an HIV/AIDS- worker solely because clients do not want to be served by her or him, likewise it would be unjustified to fire BNP members, including those holding civil service jobs, solely because ethnic minorities do not want to be served by them. We shouldn’t, absent any evidence or real risk of wrongful conduct, deprive people of employment simply because they may entertain anti-democratic or inegalitarian thoughts. And in any case, the crucial issue raised in Redfearn v UK was that UK employment tribunals were barred in the first place from pronouncing on whether such dismissals are proportionate to the legitimate aim of preventing a clear and present risk of racial violence.

I should end with a comment on the impact this judgment might have on the Court’s approach to discrimination and religion in general. The Court is currently deliberating on four cases pending against the UK (Ladele, Chaplin, Eweida, Macfarlane) to do with religious discrimination and dismissal. They differ from Redfearn in that they involve indirect discrimination claims: the applicants were dismissed because they refused to comply with an imposed occupational requirement that interfered with their religious convictions (such as to officiate in gay marriages) or the right to manifest their religion (such as to wear a cross). Unlike Redfearn, these cases are not about illegitimate restrictions imposed on an employee solely because others, rightly or wrongly, condemn her opinions and refuse to be served by her. Rather, they are about whether employers have a duty to exempt religious employees from otherwise legitimate occupational requirements. Neither of the principles on which Redfearn was decided helps the applicants in the four pending cases. In fact, the opposite could be claimed: just like Mr Redfearn should have no right to be exempt from having to serve immigrants or ethnic minorities, as incompatible with his political convictions, likewise Christians should have no right to be exempt from having to officiate in gay marriages or to counsel gay couples.

All five cases will most likely end up before the Grand Chamber of the European Court of Human Rights. The Court should be steadfast in upholding the principles underlying Redfearn. In a democratic society, we must treat religious beliefs in the same way we treat any other belief and we must respect the right to have bad thoughts in the same way we respect the right to have any other thought. 

George Letsas is Reader in Philosophy of Law and Human Rights at University College London.

Suggested citation: G. Letsas, ‘Redfearn v UK: Even Racists Have the Right to Freedom of Thought’,  UK Const. L. Blog (13th November 2012) (available at http://ukconstitutionallaw.org)

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Patrick O’Brien: Three Thoughts about the Crime and Courts Bill and Judicial Appointments

The Crime and Courts Bill 2012 is currently going through the Lords. This post draws on a longer Briefing Paper – available here – that I’ve written as part of the Judicial Independence Project. The measures on judicial appointments in the Bill take effect primarily as amendments to the Constitutional Reform Act 2005 (CRA).

1. The measures on diversity won’t make much difference

Schedule 12 of the Bill contains two measures that are intended to assist in increasing the diversity of the judiciary. The first concerns fractional working, intended to increase the number of women in the judiciary (the operating assumption being that women retain a greater share of childcare responsibilities than do men). Current statutory limits on thenumber of judges in the High Court, Court of Appeal and UK Supreme Court are replaced with references to ‘full-time equivalents’ (so the new total for the UKSC is 12 judges or full-time equivalent). This approach is very sensible but I doubt that it will have much impact in the short to medium term. Anecdotal evidence suggests that the option of moving to a fractional post, which has been made available to district judges, has generally been taken up by male judges approaching retirement and wishing to reduce their work commitments. Those women senior enough in their careers to be eligible for senior judicial posts must presumably already have adequate childcare arrangements.

The second measure on diversity concerns the ‘tipping-point’ provision of the Equality Act 2010 (s. 159). Where two candidates are of equal merit, s. 159 allows a selecting body to prefer one for the purpose of increasing diversity. Paragraph 9, Schedule 12 of the new Bill inserts a new section 64(4) into the Constitutional Reform Act 2005 (CRA) which provides that the requirement in the CRA that judges be appointed solely onmerit does not prevent the application of section 159 of the 2010 Act (my emphasis). This issue is highly controversial and many judges and lawyers seem to be convinced that it is logically impossible for two candidates to be of equal merit. Nonetheless as it stands this is about the most conservative possible implementation of a positive action policy. Section 63(4) is a negative permission – rather than a positive instruction – to use the ‘tipping-point’ provision and could easily go ignored.

2. The provisions on the Lord Chancellor’s role in appointments are ambiguous

The Bill gives the Lord Chancellor new powers to sit on the committees that appoint the President of the Supreme Court and the Lord Chief Justice (or, more precisely, give the Lord Chancellor the power to make regulations to this effect). New section 27(1C)(c) CRA 2005 provides that the commission to select the President of the Supreme Court ‘may include the Lord Chancellor’ (my emphasis). On the face of the Bill it would therefore appear that the Lord Chancellor is permitted, but not compelled, to sit on a commission to select the President. New section 27A empowers the Lord Chancellor to make regulations about membership and procedures so it is presumably possible for the Lord Chancellor to make rules giving himself the option to sit or compelling him to sit (but not prohibiting him from sitting). The regulations may, further, permit him to reject a recommendation but only if he does not sit out of the understandable concern that the LordChancellor not have two bites of the cherry. So we arrive at a rather odd situation whereby the Lord Chancellor might choose to sit and lose his veto on the appointment or choose not to sit in order to preserve his veto.

Whatever about the rights and wrongs of giving the Lord Chancellor a more direct role in the process (there are good arguments on both sides) the manner in which it is achieved here leaves a lot to be desired. It doesn’t seem appropriate that the Lord Chancellor should be given the power to determine when and how his own veto over judicial appointments should operate. Indeed, allowing the Lord Chancellor the flexibility to choose whether or not he should have the veto potentially gives him more power than a veto alone. A Lord Chancellor who did not like the obvious candidate for the job of President and wished to prevent him or hergetting the job might choose to do the latter. On the other hand a Lord Chancellor who wished to boost a favoured candidate might sit on the committee to influence the process. The point needs to be settled in the CRA itself, not in regulations made by the Lord Chancellor.

The provisions governing the Lord Chancellor’s power to require that a commission reconsider its decision also appear to be contradictory. The Bill prohibits the Lord Chancellor from chairing a commission he sits on. Yet he may (by regulations) give himself the power to require a commission to reconsider a recommendation, apparently irrespective of whether or not he has been a member of the commission. The ‘reconsideration rule’ will place the Lord Chancellor in a pre-eminent position within any commission. The other members will in practice be required to seek his agreement to any decision they wish to make. These anomalies are replicated for appointment panels for the Lord Chief Justice (new section 94C). It is likely that this is in fact an oversight. The rules governing appointment regulations are general, whereas the rules about appointment of the President of the Supreme Court and the Lord Chief Justice are specific. If however, it is intended that the Lord Chancellor should have these overlapping powers then, as in the case of the veto, the appropriate place for this to be specified is in the CRA itself, not in secondary legislation made by the Lord Chancellor.

3. The value of simplicity

Standing back from the Bill itself, I am struck by the sheer complexity of the appointments regime envisaged. The Ministry of Justice policy document Appointments and Diversity: A Judiciary for the 21st Century explains that the drafting of the new provisions has been motivated by the widely held opinion that the CRA is too detailed and prescriptive and so has adopted a philosophy of keeping core principles in the Act but leaving details to be resolved by secondary legislation. This is a sensible approach, but the Bill as its stands doesn’t realise it because the core principles are treated inconsistently. For example, the distinction between the requirement that a judge of the Supreme Court sit on UKSC appointment commissions (required by the Bill) and the separate requirementthat a non-Supreme Court judge must also sit (a policy declared in Appointments and Diversity but which does not appear in the new Bill itself) is surely not one of principle. The new system in its entirety will, if anything, be even more complex than the present arrangements. It will be a hydra with three heads – the Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals (and indeed five heads if you include the formal roles of the Prime Minister and the Queen), all of whom will have roles in approving appointments of various types – and at least five variants of appointment commissions/panels in addition to the JAC. There is the potential for further variations on these commissions/panels through the use of regulations. As things stand, the use of regulations in the Bill adds complexity and uncertainty to the CRA rather than removing it.

These arrangements will no doubt operate reasonably well and the theory may be more difficult than the practice. There is, however, a point of principle at stake in simplicity. The CRA is not just addressed to civil servants and those with an interest in the appointment process. It has constitutional significance and there are sound democratic reasons for it to be comprehensible to the general public. Judges occupy a position of power and authority and their appointment is a small but important aspect of the way we are governed (one that is increasingly questioned in the context of human rights law in particular). An appointments system that cannot easily be explained – and if we are honest is difficult even for lawyers working in the area to follow – will remain closed to the public. It should be possible to achieve the principled changes envisaged in the Crime and Courts Bill in a way that satisfies the ‘Dinner Party Test’.

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

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