Equality Bill

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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 13

Direct 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.
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