The government have published a July 2018 response to the September 2017 consultation about how to ensure that there is appropriate and proportionate legal protection against unlawful discrimination because of caste.
The consultation invited views on whether suitable legal protection against caste discrimination is better ensured by exercising the duty or by relying on emerging case-law under the Act as developed by courts and tribunals.
Of the 16,138 consultation responses, analysis indicated that:
- 8,513 respondents were ‘in favour of relying on case-law
- 2,885 respondents were ‘in favour of legislation
- 3,588 respondents rejected both options
- 1,113 respondents were ‘not sure’ which was the better option.
The Government conclude that:
- The best way to provide the necessary protection against unlawful discrimination because of caste is by relying on emerging case-law as developed by courts and tribunals.
- Reliance on case-law, and the scope for individuals to bring claims of caste discrimination under “ethnic origins” rather than “caste” itself, is likely to create less friction between different groups and help community cohesion.
- Interpreting caste either too narrowly or too broadly could give rise to either the legislation failing to cover some of those it was intended to protect or risk importing concepts into law that it was not designed to cover.
The Government have taken into account the full terms of the Tirkey judgment and the responses to the consultation commenting on it and they will keep any new cases of caste discrimination that come before the courts under review to ensure that the principles established by the Tirkey v Chandhok judgment are upheld.
The duty that currently appears in section 9 (5) (a) of the Equality Act 2010 requires Government to take action to include caste as an aspect of race for the purposes of the Act.
The decision to rely on emerging case-law renders that duty redundant and we will identify the most suitable legislative vehicle that can be used to repeal it at an early opportunity.