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13 Jan 2010 : Column 522

Clause 13 : Direct discrimination

Amendment 21

Moved by Baroness Warsi

21: Clause 13, page 7, line 5, leave out "because" and insert "on the grounds"

Baroness Warsi: In Amendment 21 we want to replace "because" with "on the grounds of", which we think is better because it is consistent with all existing and European equalities legislation. We want to keep this wording because if it is changed we fear that it will open the door to legal wrangling and debate. If something is changed which is well established, it may give rise to suspicion that the meaning has also changed, whatever the intention.

The Discrimination Law Association has stated that,

It is nervous that a change in phraseology may mean that courts and others have been intended also to change the meaning. We have tabled Amendment 21 and welcome the rest of the amendments in this group tabled by the noble Lord, Lord Ouseley, which also address this issue.

The Explanatory Notes state that,

This is commendable but is not where the helpful Explanatory Notes should come into play. We agree that clarity and understanding are important but surely the highest priority is precision of legal language so that lawyers can understand it. The meaning can then be conveyed to the lay user in the Explanatory Notes if it is not already clear from the Bill itself.

Furthermore, the DLA has cited a recent example whereby even if Parliament thinks it has not changed the meaning, that just the language has changed, this does not actually translate into the courts. For example, Parliament removed "similar" from the definition of "philosophical belief" in the Employment Equality (Religion or Belief) Regulations of 2003. It was clearly stated that the meaning would remain the same, yet that led to extensive amounts of litigation relating to the extended scope of philosophical belief. A statement of intent therefore may not be enough-it was not in that particular case.

There is a more obvious semantic concern. The word "because" sounds as though the person who discriminated had to make a conscious decision to treat someone less favourably because of one of the protected characteristics. As we are all aware, at the moment the legal position is that there is no need to prove intention. There is a real worry that this change in wording may not only confuse people by changing a well established legal phrase but that it may also cause damage by raising the bar for cases of discrimination.

The Minister in another place tried to assure the Committee that there was no such requirement and that, according to the Oxford English Dictionary, the meanings were synonymous. However, as the most

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important point for the Government appears to be to make this Bill easily accessible to the lay user, does the Minister not acknowledge that the definition in the Oxford English Dictionary is not as important as people's natural understanding of the word? The phrase "because of" is commonly understood by most people to imply deliberate and conscious intention or motivation. In this context, it looks as though proof will be required about the intention to discriminate. The phrase "on the grounds of" retains the idea that there could have been evil or good motives for discriminating.

Also, at the moment it is clear that any less favourable treatment-even something only partly attributable to the protected characteristic-would come under the heading of discrimination. So the Government are potentially altering the grounds of intent and how much the protective characteristic must be the sole cause. Therefore, we are concerned about the changes here, which we think may have the effect of creating confusion and narrowing the law where there is no intention to do so.

In another place, this amendment was supported by the Liberal Democrat Benches. The Government's response was that they wanted to write the Bill in "plain English" and that in everyday usage people would be more likely to say "because" than "on the grounds of". That may well be true but surely, while it is useful for people to be able to understand a legal document completely, the most necessary thing is that it functions legally. As we have said, the Explanatory Notes can set out the issues in "plain English". Furthermore, while "on the grounds of" may not be colloquial, most people will understand what the phrase means. Surely the Minister does not doubt that. The real difficulty lies not in the meaning of "on the grounds of" but in assessing what kind of evidence will be needed to prove direct discrimination. The change of phraseology does not help here.

The Government also argued that there was absolutely no change in the meaning and that the two terms were synonymous. They said that, even if it could be argued that the wording should be changed, its meaning would not alter for the purposes of the law because of the ruling of the noble and learned Lord, Lord Woolf, in 2005 in the case of Regina v Z in the House of Lords, Here, he said that,

However, surely the point is that the Government are trying to introduce clarity but here they are bringing in confusion. They seem to admit this by saying that the terms are synonymous but they then back that up by saying that, even if they were not synonymous, the interpretation would not have to be different. Indeed, it might not be, but this would give rise to legal controversy, which is not what is wanted.

The Government claim that the two terms are synonymous, but they have very definitely changed the phrase that is used across legislation and have therefore removed the certainty that went with it. They think that the terms are synonymous, but what if those who have to interpret them agree with us that they are not? That would mean that the Government had changed

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the law, albeit inadvertently, and that they would do damage in narrowing the scope of the provisions relating to direct discrimination. I beg to move.

Lord Lester of Herne Hill: My Lords, the Opposition are perfectly right to raise this point, just as my colleagues in the Commons were perfectly right to do so. However, the fact that they were right does not mean that the issue that they raised needs to be dealt with in the way suggested.

I have a professional interest in all this because-I am not boasting; it is just a fact-I was in the cases that established that the words "on the grounds of" mean what they do. I refer to the Birmingham education case and the case of James v Eastleigh Borough Council. In the recent Jewish Free School case, in the main judgments led by the noble and learned Lords, Lord Phillips and Lord Mance, and the noble and learned Baroness, Lady Hale, those judgments were all affirmed, interpreting the words "on the grounds of", as the noble Baroness, Lady Warsi, has rightly indicated, to mean objective discrimination. You do not need to show that there is a discriminatory motive or a discriminatory intention. You need to show that the reason for the less favourable treatment complained of, whether it is gender or colour, or anything else, is a forbidden reason.

4.30 pm

Lawyers would say that the words "on the grounds of" are words of causation. They seek to answer the question, "But for his sex, would Anthony Lester have been paid as much as he has compared with Lindsay Northover?". The "but for" question is the question asked when you ask what are the grounds-what are the reasons? Exactly the same arises with the words "because of". It is not a question of motive or intent. The question is, "Was it just because of his sex that Anthony Lester was overpaid compared with his female counterpart?". There is no difficulty about this because the words "on the grounds of" themselves have been held to be ambiguous in the past. That has now been resolved.

I have sympathy with what the Government are doing because ordinary men and women should be able to understand the law as far as possible. I think that the words "because of" are easier for ordinary people to understand-not just lawyers-than "on the grounds of". I would have been perfectly happy if the language had been left as it was. However, provided that we get a very clear assurance from the Government that what I have just said is the case and there is no conceivable change-the objective test remains, and the fears of the Discrimination Law Association, of which I am a member, and the fears of my party colleagues in the Commons, are not well founded in terms of intent-I would treat that as a Pepper v Hart statement and not put the Government to the problem of having to re-amend the whole of this legislation at this stage in its history. If I am not given that assurance then I would of course support the Opposition in seeking to keep the old words as they were.

Lord Ouseley: I am putting forward the amendments to make what I consider to be a very simple amendment to replace the words "because" or "because of" wherever

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they arise in Clauses 13 and 14 with the words "on the grounds of". I support the arguments of the noble Baroness, Lady Warsi, in moving Amendment 21. While accepting the logic that has been put forward by the noble Lord, Lord Lester of Herne Hill, that if the interpretation is to be in effect the same, I shall not spend a great deal of time in going over ground that has been covered already.

However, I certainly want to reaffirm the reasons for putting forward these amendments, especially in so far as the definition of direct discrimination-which includes the "on the grounds of" formulation-is common to all the domestic equality enactments. Having seen this introduced from 1965 with the first Race Relations Act, I know that it is a well established and understood concept. Indeed the relevant European directives, which domestic anti-discrimination law must implement, also use the phrase "on the grounds of".

I think that we are in danger of creating confusion by changing the wording at this stage. There is a well established and legally understood legislative wording. It should not be changed unless the intention is to introduce substantive change in the meaning. If the intention is, as here, to retain exactly the same meaning and effect, the risks of changing the wording vastly outweigh any benefit to be derived from the use of plain English.

In support of that I would refer to the conclusions of the Joint Committee on Human Rights in its legislative scrutiny of the Equality Bill during the 2008-09 Session. It stated:

"We consider that the previously used test in direct discrimination of 'on the grounds of' has acquired a clear and definite interpretation through case-law. The Government is to be applauded for its concern for attempting to ensure the definition of direct discrimination is phrased in accessible terms. However, little is gained by replacing 'on the grounds of' with 'because of'. 'On grounds of' is both readily comprehensible and has the advantage of being a well-established term of art. Replacing this phrase with 'because of' risks the emergence of alternative interpretations and may undermine a clear and well-established legal position which ensures rigorous and clear protection against direct discrimination. We consider that it is strongly arguable that the definition should be amended accordingly".

I would conclude that there is an array of decisions in which the courts have interpreted "because of" more narrowly than "on the grounds of".

Lord Lester of Herne Hill: Can the noble Lord give an example? I am not aware of any case in which the words "because of" have been given a narrower interpretation than "on the grounds of"? It is quite important, if that is the case.

Lord Ouseley: I do not have an example to hand but I shall certainly try to let the noble Lord have that before the conclusion of today's debate.

The Government have stated repeatedly that the term "because of" in the Bill has the same meaning as "on the grounds of" in existing law. If there is no evidence that the phrase "because of" will make the definition of direct discrimination or combined discrimination any clearer for an ordinary user of the Bill, then in consolidating the existing legislation there would appear to be little gain, and a risk of significant loss to protection, by introducing new words that carry the same meaning as words which are, after nearly 45 years, familiar and accessible.

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Baroness Butler-Sloss: My Lords, I also support the amendment, and particularly the speech of the noble Lord, Lord Ouseley. It is sad that there appears to be change in the wording for the sake of change rather than for any good reason. The words "on the grounds of" are already well established, as has been said, and are perfectly easily understood. In my view "because of" is rather poor drafting.

Baroness Thornton: The amendments in this group share a common purpose. However, I shall begin with Amendment 21, which has been proposed by the noble Baroness, Lady Warsi, and is much the same as one tabled by the Conservatives and debated in Committee in the other place. That earlier amendment differed from Amendment 21 only in that it would have replaced "because of" in the definition of direct discrimination in Clause 13(1) with the words "on grounds of" rather than "on the grounds of".

The other amendments in this group-Amendments 23, 27, 28 and 31 to 33-are all proposed by the noble Lord, Lord Ouseley, and would also replace "because" where it appears elsewhere in Clause 13 and Clause 14, which introduces protection from what we describe as dual discrimination, with "on grounds" or "on grounds that", as the case may be. The Government resist these amendments for the same reason as we resisted the earlier one. We maintain that there is no difference in meaning between the two expressions but that the plain English formulation "because of" is a more natural and more frequently used means of achieving the same result. So I beg to differ with the noble and learned Baroness, Lady Butler-Sloss. It will therefore make the legislation more accessible, which I suggest to her is important and in keeping with a key objective of the Bill.

As the law stands, the basic question in a direct discrimination case is: what is or are the "ground" or "grounds" for the treatment complained of? That is the language of the separate definitions of direct discrimination in current legislation. It is also the terminology used in the underlying European directives, as ably described by the noble Lord, Lord Lester. There is, however, no difference between that formulation and asking for the reason why the act complained of was done. Some of the authorities, including the recent judgment of the Supreme Court in the Jewish Free School case, use the third formulation, asking whether the treatment in question was "because of" the protected characteristic. That is of course the formulation that we have adopted in the definition of direct discrimination in Clause 13 and dual discrimination in Clause 14. According to the president of the Employment Appeal Tribunal:

"There can be no objection to this as a synonym for the statutory language".

The president made that remark when giving the judgment of the EAT in the case of Amnesty International v Ahmed, handed down in August last year. We therefore agree with the noble Lord, Lord Lester, that "on grounds of", or "on the grounds of", and "because of" are indeed synonymous, as my right honourable friend the Solicitor-General said in the other place.

Lord Lester of Herne Hill: Can the Minister confirm one thing? It is really important. She mentioned European equality law. I realise that she is not a lawyer, but

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would I be right in saying that if the words "because of" have the narrower meaning that the noble Baroness, Lady Warsi, is concerned about, it would violate EU equality legislation and therefore be invalid? In other words, the objective test, irrespective of motive or intent, is part of European equality law; and therefore the words "because of" must be interpreted, like the words "on the grounds of", in the way that they have been recently by our Supreme Court.

Baroness Thornton: I thank the noble Lord for that question, which is very helpful. I am assured that we have checked this and that he is completely correct.

Therefore, whatever formulation is used, the discriminator's motive is, of course, irrelevant. A benign motive does not excuse direct discrimination.

Some have expressed concern that the change of language may cause unnecessary confusion and undermine existing law. It has even been said that this could lead to more litigation. I sincerely hope that this will not be the case. As the Solicitor-General also said in another place, quoting from the judgment of the noble and learned Lord, Lord Woolf, in the 2005 case of R v Z, the courts are now rejecting suggestions that a change of language necessarily implies a change of meaning. We will be reinforcing this message in guidance and training for judges in the period leading up to commencement and beyond.

On the specific issue raised by the noble Baroness, Lady Warsi, which was that the statement of intent in the Explanatory Notes was not sufficient, given litigation over the removal of "similar" in the definition of religion or belief, here the change is between two synonymous expressions. In the other case, the word "similar" was removed. This therefore led to litigation being more likely; however, the courts concluded that the change made no difference, as the Government had indeed explained. I therefore hope that the noble Baroness will withdraw the amendment and that the Committee will support the use of plain English for these key concepts.

Lord Elton: Since we are considering the comprehension of the supposed reader of the Bill, if the person reading the Bill does not know the meaning of the words "on the grounds of", I do not think he has the slightest hope of understanding most of the rest of the Bill.

Baroness Thornton: I was not sure whether I was being asked a question or told something-I beg the pardon of the noble Lord. I think that the point is that of my last remark, which is that we are seeking to make the important parts of the Bill accessible and we believe that this is one of the ways in which we can do that.

Baroness Warsi: I am still concerned, my Lords. I hear the Minister's detailed explanation and I appreciate her detail. Some of the issues she raised, I raised in my own concerns, and I hear what was said in the other place. It still worries me that, in the interests of plain English, we may be causing more confusion. But at this stage, I am content and beg leave to withdraw the amendment.

Amendment 21 withdrawn.

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Amendment 22

Moved by Baroness Warsi

22: Clause 13, page 7, line 6, at end insert-

"( ) Discrimination does not include marketing or promoting activities targeted at a particular group of people whether or not they share a protected characteristic."

4.45 pm

Baroness Warsi: I shall speak also to the other amendments tabled in my name in this group. We have tabled these amendments to question the Government about their policies regarding exceptions to the provisions surrounding age discrimination. I shall begin with a short description of the amendments.

Amendment 22 prevents marketing or promotions targeted at a particular group of people being defined as direct discrimination. In the same vein, Amendment 57ZA means that age discrimination would be included under the provisions for a "defence of material factor" as long as the differences on the grounds of sex or age in the provision of goods or services was,

Amendment 126 is similar to Amendment 129, which was tabled by the noble Baroness, Lady Knight, and inserts a new clause stating that it is not a breach of the Equality Bill for holiday companies to place age limits on holidays, for financial products to be qualified by special age brackets or for insurance programmes to be based on age factors. We have also given notice that we intend to debate whether Clause 195 should stand part of the Bill in order to question the Minister more fully on this area.

We fully appreciate that this issue has been debated extensively in another place and at Second Reading, where many concerns were raised. In all these areas, the Government have been more than helpful and, indeed, have tried to be very reassuring, and for that, I am thankful.

The Solicitor-General assured the Committee in another place that there would be extensive consultation in this area and that there would be regulations to protect certain goods and services, such as those provided by Saga. She said that,

We welcome that reassurance. However, on Report, she seemed to renege on that promise by stating that there would be secondary legislation or guidance. At Second Reading in your Lordships' House, the Minister, in response to concerns raised by my noble friend Lord Ferrers, was clear that,

She then confirmed that the exception would definitely be in regulations, not guidance.

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