James Brokenshire (Hornchurch, Conservative)

I beg to move amendment No. 78, in clause 20, page 11, line 2, after ‘suspects’, insert ‘on reasonable grounds’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments:

No. 80, in clause 23, page 13, line 21, leave out ‘thinks’ and insert ‘is satisfied’.

No. 81, in clause 24, page 13, line 35, leave out ‘thinks’ and insert ‘believes on reasonable grounds’.

No. 82, in clause 25, page 14, line 19, leave out ‘thinks’ and insert ‘believes on reasonable grounds’.

James Brokenshire (Hornchurch, Conservative)

The amendments are intended to gain greater clarity on the actions of the commission when it seeks to use enforcement powers or when entering into an agreement with a person suspected of committing an unlawful act, as defined in the Bill. Amendment No. 78 relates to clause 20(2) on the   commission’s investigatory powers and, specifically, to the wording on whether the commission suspects that the person concerned may have committed an unlawful act.

The amendment intends to ensure that the commission acts reasonably and responsibly. There is no suggestion that it would not do so, and I am sure that the Minister will confirm that the actions of the commission are intended to be reasonable and responsible. However, in seeking to insert the words “on reasonable grounds”, the amendment intends to give some assurance to the outside world that the commission will act in a reasonable manner, given the strength and power that it will have with regard to resources and funding. The amendment requires that, when the commission determines that it will investigate under clause 20, it will do so on a reasonable suspicion. We do not intend that, if a complaint is made to the commission, it should not take that complaint seriously. It is clear that it should do so; that is a responsibility and duty of the commission. However, it must consider such a complaint carefully before embarking on a full-scale investigation. Amendment No. 78, therefore, seeks to ensure that the Bill guarantees that the commission will act reasonably and that it will initiate an investigation only if it has reasonable grounds for suspicion.

Amendment No. 80 is concerned with clause 23. Various parts of the Bill are worded in terms of the commission’s “thinking” that something is the case. That is rather loose language in the context of a body comprising various individuals who have a collective thought process—an interesting concept in the light of our debate on legal personality. The amendment seeks clarity by substituting “is satisfied” in the context of a situation in which the commission might seek to enter into an agreement with a person whom it suspects of having been engaged in some form of unlawful act.

Clarification is necessary in that context. If the commission is to enter into an agreement with such a person, it needs to be satisfied whether the person has committed an unlawful act. Given that clause 23(3) refers to whether the commission thinks that a person has committed an unlawful act, I suspect that such an agreement would be admissible in evidence in any subsequent proceedings. The wording will give an indication that the agreement had been entered into in the first place on certain grounds, or as the result of a thought process. It is therefore important for the commission to satisfy itself that an unlawful act has been committed, rather than merely using loose wording that might not stand much scrutiny.

Small businesses or individuals approached by the commission on the grounds that they should enter into agreements, because if they do not do so proceedings will be taken against them under the Bill, might feel that they are suffering from an inequality of arms and, therefore, being pressurised into entering into such agreements. It is incumbent on the commission, when   considering whether an agreement is the correct way to proceed, to satisfy itself that an unlawful act has been committed.

Amendment No. 81, too, relates to my problem with “thinks” in the context of the commission. It seeks to amend clause 24 to allow the commission to seek an injunction—again, if the commission “believes on reasonable grounds” that a person is likely to commit an unlawful act. That is an important power; the commission can stop unlawful acts and breaches of the equality laws. However, the commission must act reasonably, rather than on a whim. In terms of a court’s armoury, I remember having had an injunction described to me as being like a nuclear weapon. It is incumbent on the commission to act reasonably when deciding whether it should seek injunctive relief. To echo the point of my hon. Friend the Member for Epping Forest, we must, as much as anything, ensure that we receive good value for money and that the commission considers its actions carefully when committing funds to such actions.

Amendment No. 82, in connection with clause 25, is on the same point again—

“Where the Commission thinks that a person has done an act to which this section applies”,

it may take certain action. The amendment again seeks to clarify whether the commission is doing so on the grounds of reasonable belief. Can the Minister clarify for us the cognitive processes of the commission and explain whether it has the ability to think in its own right?

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I thank the hon. Gentleman for raising these issues in such an interesting manner. He provides me with an opportunity to explain the background to the measures to which the amendments refer. If I have understood his remarks correctly, the amendments are intended to clarify the triggers for the commission’s enforcement powers in relation to investigations under clause 20, agreements under clause 23 and applications to court under clauses 24 and 25. They are also intended to ensure that the commission does not act in an unreasonable way.

I assure the hon. Gentleman and all members of the Committee that I entirely agree with those sentiments. We want the commission to be a respected, powerful and authoritative regulator that takes legal action as a final resort, directs its efforts strategically, rather than in a scattergun way and gives value for money. It is right that the commission’s enforcement powers should have serious consequences for the parties in question. As such, they should be exercised wisely and judiciously. On that basis, I can assure members of the Committee that the amendments are not necessary.

On amendment No. 78, we intend the commission to carry out an investigation only when it has reason to believe that the person concerned might have committed an unlawful act of discrimination or harassment. That is what the legal definition of suspects in the clause means; it is implicit that the suspicion must be on reasonable grounds.

Similarly, the Bill’s reference to “thinks” in clauses 23, 24 and 25 contains the same implicit requirement that the commission must have reasonable grounds on   which to form its view. It may be helpful to set out what might constitute reasonable grounds in relation to the amendments.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

The Minister may acknowledge that the use of the expression “reasonably suspects”—perhaps not quite the expression used by my hon. Friend—is quite common in legislation. What downside would there be to including it specifically so that anybody who looked at the Bill could see that that was indeed the test that should be applied? I appreciate the Minister’s point, and one can end up—this is rather like counting the angels dancing on the head of a pin—worrying about an exercise in semantics. However, it does not seem that any of the Bill’s thrust would be damaged by including “reasonably”, which, in my experience, appears quite frequently. I therefore wonder why it is not included.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

Clearly, we could have a long argument about that, and I certainly bow to the hon. Gentleman’s greater legal experience. However, I want to give examples of what we expect to be covered and to reassure the Committee that not including the words in the amendments in no way suggests that the suspicion should be on anything other than reasonable grounds. If the hon. Member for Beaconsfield (Mr.d¤Grieve) wishes to do so, he can then come back on the point.

It would not be helpful to specify what evidence would be sufficient. However, examples might include material that flows from an inquiry undertaken by the commission, material that has been put before a court or tribunal, which might have led to a decision or to a case being settled and proceedings being withdrawn, and information brought to the commission’s attention through helpline and advice services.

It would also be helpful to set out what would notd¤constitute reasonable grounds. A single unsubstantiated complaint is unlikely to be defensible, but several complaints over a long period, combined, for example, with a number of settled cases, are likely to be sufficient.

In addition to those safeguards, the commission is bound by principles of public administration law, which require it to act reasonably. The commission must therefore be able to justify its actions and show that they are reasonable and fair, or it will leave its decisions vulnerable to legal challenge.

Public bodies are required to behave reasonably. Adding an express requirement of reasonableness in respect of one public body in one place would lead to unintended inferences being drawn from the absence of such requirements in other places. Eventually, we would have to include references to reasonableness in relation to every statutory duty and power on the statute book which would add unnecessarily to the length and complexity of individual provisions. There are some established and long-standing exceptions to that principle. In relation to constables, for example, reasonableness is often expressly provided for. That derives from the pre-statutory origins of the office of constable. As I said to the hon. Member for Beaconsfield a moment ago, I am sure that his legal   knowledge and experience goes much further than mine, but I am assured that it is not necessary to specify it in this position.

A successful challenge on reasonableness would damage the reputation of the commission, leading to reduced operational effectiveness and credibility with its stakeholders. We are confident that that is a risk the commission will not wish to take. I hope that I have reassured the hon. Member for Hornchurch (James Brokenshire) and his hon. Friends that we entirely agree about the intent of their amendments but do not believe that they are necessary. I ask him to withdraw the amendment,

James Brokenshire (Hornchurch, Conservative)

I am grateful for the Minister’s explanation of the use of the terms that we highlighted in these amendments. I am obviously guided by the comments of my hon. Friend the Member for   Beaconsfield with his knowledge and experience of examining legislation such as this on the use of the reasonableness requirement in this context. In highlighting a number of the examples that should be taken into account and the procedures that should be adopted, the Minister guided the Committee on the steps that the commission would be expected to undertake. It is also helpful that her clear statement that the use of these terms would, of itself, denote reasonableness is on the record. I beg to ask leave to withdraw the amendment.