The
Solicitor-General (Vera Baird): I second
that. I
shall keep this simple, I hope. These amendments seek to make explicit
the fact that it is unlawful to discriminate against a person on
grounds of manifestations of their sexual
orientation—appearance, lifestyle, the people they see, the
places they go. However, the hon. Member for Oxford, West and Abingdon
answers his own amendment, because it is absolutely the case that
Amicus v. the Secretary of State for Trade and Industry has
interpreted sexual orientation regulations to say that such orientation
includes manifestations of sexual orientation. We have replicated the
words in those regulations in the Bill, in so far as they are relevant.
Consequently, there is simply no need to do any more; the law is
absolutely clear.
By way of a
footnote, the amendment would introduce a needless anomaly, because we
would put manifestation into the definition of one protected
characteristic without putting it into any others. There might be
manifestations of being a white British person, I suppose; always
singing “Down at the old Bull and Bush”, or going
foxhunting, or whatever we do.
Dr.
Harris: I accept the Minister’s point that the
amendment would bring manifestation into just one protected
characteristic. I agree with her because, as she said, I pointed out in
my contribution that the case law is clear. I was making the point that
there might be some merit in having the statute clear because of the
demand for that, since not every employer is able to access the case
law as easily as they would the statute. It might be particularly
relevant in this area, which is the only one, as far as I know, where
it is such a live issue. No one can doubt that it is a live issue after
the contributions that our witnesses and, indeed, other hon. Members
have made. Is there some merit, then, in clarifying the statute, as
well as what the Minister said about the
law?
The
Solicitor-General: No. Quite honestly, the hon. Gentleman
is stretching it now. When we debate schedule 9, and whether
the exceptions are wide enough or too narrow, the hon. Gentleman can
raise those issues again—and I have a dreadful feeling that he
will. However, the law is plain. The regulations have been interpreted
by the court. That is how our legal system works. The rule is that
sexual orientation includes manifestations of itself, and that would be
unlawful discrimination. There is no need for
more.
Dr.
Harris: I note what the Minister said, and I am not
surprised that she recognises what the law says, which is in agreement
with the point that my amendment makes. That should give other hon.
Members pause to consider what implications that has. I recognise her
position that, just because something is made clear in case law, it
does not have to be replicated in statute law. However, in defence of
my approach, that is not always the approach that the Government take.
They sometimes seek the opportunity to put case law into statute, as
they quite rightly have with paragraph 2(8) of schedule 9.
Nevertheless, on hearing what the Minister says I am quite happy to beg
to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 12 ordered to
stand part of the
Bill.
Clause
13Direct
discrimination Mr.
Harper: I beg to move amendment 7, in
clause 13, page 9, line 5, leave
out ‘because of’ and insert ‘on grounds
of’.
The
Chairman: With this it will be convenient to discuss
amendment 132, in
clause 13, page 9, line 5, leave
out ‘because of’ and insert ‘on the grounds
of’. An amendment to revert the
causality of discrimination to pre-Equality Bill
wording.
Mr.
Harper: These measures should need only a relatively brief
debate. My amendment is similar in nature to amendment 132, tabled by
the Liberal Democrats, and it would leave the words “because
of” out of clause 13 and replace them with “on grounds
of”. That would effectively put the wording in the law back to
what it is at the moment. The reason for doing that is
twofold. First,
the “on the grounds of” formulation is consistent with
all existing legislation and with European equalities legislation. It
is the language that existing case law is already based on, and it
therefore gives certainty.
Mr.
Tim Boswell (Daventry) (Con): The cardinal point, and
probably the only comment that I need make on this amendment, is that
any divergence or departure from the existing “on the grounds
of” is likely to give rise to legal argument. As my hon. Friend
has already said, it may well create further uncertainty or perverse or
difficult judgments that eventually have to be amended. It would be far
better to stick with what has been seen to work since the introduction
of disability discrimination in
law.
Mr.
Harper: My hon. Friend is absolutely right. This is the
only reason given in the explanatory notes for changing the
wording: “This
change in wording does not change the legal meaning of the definition,
but rather is designed to make it more accessible to the ordinary user
of the
Bill.” I
am not quite sure who the ordinary user of the Bill is and it seems to
me that the ordinary users of most Acts of Parliament are lawyers, who
would be perfectly capable of understanding either formulation.
However,
it seems that there is a problem if something is changed that is well
recognised—we may set up lots of unforeseen
consequences. Indeed,
the Equality and Human Rights Commission is supportive of amendment 7,
as is Citizens Advice, so there is clearly a fair bit of concern that
there may well be some negative consequences in changing the wording
and I am unconvinced by the reason given. The Minister says in the
explanatory notes that it does not change the legal position, and she
will no doubt repeat that, but given that there are no significant
benefits and there are risks that are clearly felt by a number of
organisations, will she reflect on whether that risk is worth
taking? The
second reason—this is where I suspect there is an argument about
whether the measure does or does not change the legal
definition—is that the use of the word “because”
may indicate that it would have to be established that the
discriminator consciously intended to treat someone less favourably on
the protected grounds. On the current legal position, proving intention
is not required, so the “because” formulation may raise
the threshold for proving discrimination claims in that the complainant
may be required to prove a conscious motivation to discriminate. That
is what lies behind the concern from those organisations that this
measure may represent an inadvertent change in the law—they
accept that it is
inadvertent. The
final concern is that treating someone less favourably because of a
protected characteristic might be read as meaning that the protected
characteristic must be the whole or the main reason. Under current law,
the protected grounds should in no sense whatever be the treatment in
question, so covering less favourable treatment, which is only partly
attributable to the protected characteristic. Putting the word
“because” in the Bill could change the established
understanding of what is required, so introducing, as my hon. Friend
the Member for Daventry said, a lack of clarity, which may also provoke
more unnecessary legal
challenges. The
Minister really needs to do the job of explaining not just why the
Government believe that this measure does not change the law, but why a
change of wording is necessary. Given that the Bill is carrying over
existing legislation, making a change requires more than the Government
saying it does not make any difference; they need a good reason for
making the change, given that some organisations think there are
significant risks involved. I will listen carefully to the Minister,
and if we are not persuaded by what she says we may seek to test the
mood of the
Committee. Lynne
Featherstone (Hornsey and Wood Green) (LD): I shall speak
to Liberal Democrat amendment 132, which is not greatly different from
the Conservative amendment. It differs only in the word
“the”, which we are quite happy to go without. We will
support the Conservative amendment, because we agree that this measure
might open the door to legal
wrangles.
Mr.
Boswell: I am grateful to the hon. Lady for her slight
variant on our amendment, because I think it is the first time in
recorded history that I have ever spotted the Liberal Democrats using a
definite article about anything.
Lynne
Featherstone: I do not know—this place! Talk about
reform! Given that the measure might open some legal argument or
wrangle, and given that the existing wording has been the subject of
much testing and is tried and tested, it seems unnecessary to open it
up to further interpretation of meaning when that meaning is already
proven in case law. To get rid of that uncertainty, we will support the
Conservative
amendment.
The
Solicitor-General: One of the key objectives of the Bill
is to simplify the law and make it more accessible. I do not think for
one minute that the only people who are going to read it are lawyers,
the easy-read bit at least. We deliberately put the plain
English—the explanatory notes—face to face with the
necessary legalese to make the Bill accessible to people way beyond
lawyers. With that principle in mind, it makes sense to talk in
ordinary English
language. The
word “because” is much more natural when one looks at the
reason for something. If someone is asked, “Why did you do such
a thing?”, the answer will mostly likely be,
“Because.” It is highly unlikely that people will say
“on the grounds of”, and that is the point. However, the
two terms mean the same thing. I do not know what they mean in—I
am glad that the hon. Member for Oxford, West and Abingdon is here to
hear me mention it again—the “Evan Harris English
Dictionary of Peculiar Terminology”, but in the “Oxford
English Dictionary”, the word “because” is defined
thus:
“By
reason of, on account
of”— on
the grounds of. It is absolutely spot on and synonymous. I do not think
that it can be argued that there is any difference of
meaning—they are absolutely
synonymous. The
question in a case of direct discrimination is, “Why was he
treated in that way?” The answer would be,
“Because”, and that is what we need to capture. It need
not give rise to any legal wrangles. The courts are now rejecting
suggestions that a change in language necessarily implies a change of
meaning. There is no change of meaning. I have said it twice; perhaps I
have said three times now. It is very clear that there is no change of
meaning.
In a 2005
case, Regina v. Z in the House of Lords, Lord Woolf
said: “Techniques
in drafting of section 3 of the 2000 Act and section 19(3) of the 1973
Act differ. Section 3(1) of the 2000 Act is drafted more succinctly and
more clearly than its predecessor. It is in a crisper, more
contemporary style. However, there is no reason to think that the
difference in style means that it should be interpreted in any
different way from its predecessor in the 1973
Act.” All
the less reason for any court to think that it should be interpreted
differently. Now I am saying for the fourth time: there is no change in
the meaning from the change of words.
Mr.
Boswell: I am grateful to the Solicitor-General, not least
for the assurance that she has given the Committee, which no doubt will
be remembered and may even appear in the courts in due course. It
occurs to me—I defer to her legal knowledge—that
“on the grounds of” is, in a sense, a more specific set
of tests referring to particular characteristics of the alleged
discrimination. It may well be that there is a concern where there is a
multiple complexity of factors involving discrimination or the
possibility of discrimination, some of which may
be on grounds of the protected characteristics. Others might be much
more at large. Is the Minister satisfied that the new formulation
reflects the balance of those as well? As far as I am concerned, if
there is discrimination it is indefensible whatever the legal wording,
and I hope we are not reversing that in anything we are
considering.
The
Solicitor-General: Of course we are not. The hon.
Gentleman is absolutely right. There are two specific examples where it
has been suggested that the measure might change the meaning. Let me
deal with those in a moment. I also add that there will be some
guidance and a rolling programme of training on the Bill in general to
make that point for county court and employment tribunal
judges.
The first of
the two specific issues that were raised is whether “because
of”, unlike “on the grounds of”, may imply the
need for intent—that is the concern of Conservative Members. The
answer is no: “on the grounds of” and “because
of” are both indicative of causation, but they do not imply
required consent. It is perfectly possible to characterise direct
discrimination as being because of a protected characteristic. The
courts will be able to reject the suggestion that because the word has
changed, the meaning has too, as I have just explained through the
mouth of Lord
Woolf. The
other express concern is that, to be discriminatory, treatment does not
have to be based only on discrimination—it could happen a number
of reasons of which discrimination is one. Would changing “on
the grounds of” to “because of” mean that the
discrimination need be the only ground for less favourable treatment?
Again, the answer is no, because they are totally synonymous and there
is no change in the nature of the essential question of why a person
claiming direct discrimination was treated in the way that he or she
was. 4.30
pm The
Bill is more modern and exactly as Lord Woolf decided. Its style is
crisper and more contemporary than that of more ancient law. It is good
to change and keep up. When a new Equality Bill is introduced to help
people with their rights at work or when they feel that they are being
discriminated against, they want to be able to look at one page for the
technical stuff and the other page for the explanation. That is why we
have put in the plain English: to encourage people to look at it. There
is no point in passing the Bill, after a long Committee stage, if it
just hangs around on the shelf and is only brought out by lawyers to
rebut discrimination. The point of the Bill is to change the culture
and to move forward the whole cause of equality. As we shall discuss
presently, it will require public authorities to drive the equalities
agenda through their policies. We want it to be as accessible as
possible, and this is just a small example of how we can do that. I
assure the Committee that it will not be to the detriment of
anyone’s rights.
Dr.
Harris: I am grateful for the opportunity to respond to
the Minister’s dictionary definition, particularly given that
she used my name in reference to it. She read out the definition of
“because of”. It had three parts, one of which was
“by reason of” and another “on the
grounds of”. It does not necessarily follow that because a new
word includes another formulation that it is synonymous with that
formulation. It could include it, but go further. Regardless of what
the courts might determine, people reading the Bill might think that
“by reason of” is different from “on the grounds
of”. “Reason” implies a cognitive action, and that
might cover intent, which the Minister is keen to avoid. I do not think
that she has made the case that “because of” is
synonymous with “on the grounds of” by reason of that
dictionary definition. I do not think that the Government will find it
easy to defend their position, well intentioned though it might be,
during the Bill’s progress, including in another place, because
of that problem—and on the grounds of that
problem.
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