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A person's race is a protected characteristic under the Equality Act 2010. The term "race" is defined in Section 9(1) as including a person's colour, nationality, or ethnic/national origins. However, Section 9(5) contains an unusual provision (my emphasis in bold):

A Minister of the Crown

(a) must by order amend this section so as to provide for caste to be an aspect of race;

(b) may by order amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances.

This appears to suggest that the definition of race was incomplete, raising the question of why "caste" wasn't simply included in Section 9(1) to begin with. On the surface, it seems strange for the act to simultaneously expressly exclude caste from the definition of race, and also note that a minister must amend the definition.

Is there a reason why the act was drafted in this way?

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The Equality Act 2010, as originally enacted, looked different:

A Minister of the Crown may by order ... (a) amend this section so as to provide for caste to be an aspect of race ...

Caste is a difficult concept to functionally define (see Douglas Pyper, House of Commons Research Briefing, The Equality Act 2010: Caste Discrimination (2018)). That difficuly could explain the desire to defer the drafting of this section.

Regardless, in the Enterprise and Regulatory Reform Act 2013, s. 97, Parliament amended s. 9 of the Equality Act 2010 to require the Minister make the amendment to prohibit caste discrimination. The House of Lords would have simply directly amended the Equality Act 2010 to include "caste" as a ground included as part of race (see Lords' Insistence and Reasons re: Enterprise and Regulatory Reform Bill). The House of Commons rejected that approach, saying "it is inappropriate to provide for caste to be an aspect of race for the purposes of the Equality Act 2010 without further consultation."

Since then, the Employment Appeal Tribunal has found caste discrimination is in certain circumstances already race discrimination under the Act.

After a study, the Government concluded that it would rely on the development in the law rather than introduce a statutory amendment. It views the requirement to amend the Act as redundant and its latest announced position is that it intends to repeal the requirement imposed by s. 9 of the Equality Act 2010.

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  • There is a curiosity here: in 2013, the Commons (controlled by the government of the day) eventually gave way to the Lords, making it a legal requirement to make such an order about caste. But the subsequent 2017 government decided not to comply with its legal duty, calling it redundant and planning to repeal it. That repeal has not happened so in theory it remains an unfulfilled duty of the current government. Commented Sep 23 at 11:21
  • @Henry That raises an interesting question - how is the provision even enforceable? Firstly, it doesn't specify any particular minister, so who would you target in a lawsuit? Secondly, it doesn't specify any kind of deadline. Thirdly, if it's now genuinely redundant by way of case law, how would anyone establish a loss to be able to bring a lawsuit? It's a very oddly drafted provision which almost seems like it was hastily inserted as an afterthought. Commented Sep 23 at 18:27

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