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

I beg to move amendment No. 125, in clause 52, page 34, line 36, leave out 'be likely to'.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 126, in clause 52, page 34, line 38, leave out subsection (2).

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

Subsection (1) of the clause says:

''It is unlawful for a person to operate a practice which would be likely to result in unlawful discrimination if applied to persons of any religion or belief.''

Subsection (2) says:

''It is unlawful for a person to adopt or maintain a practice or arrangement in accordance with which in certain circumstances a practice would be operated in contravention of subsection (1).''

I have tabled two probing amendments, one to each subsection. The first inquires as to the use of the word ''likely'' in subsection (1)—the Minister and I seem to bandy the word about quite frequently. I seek clarification on whether taking it out would make a huge difference; otherwise, I do not object to subsection (1).

I have slightly greater reservations about subsection (2). I appreciate that it might be useful for the commission to take pre-emptive action, and that is what subsection (1) is about. However, subsection (2) takes matters a stage further, because it would allow the commission to interfere in respect of a

''practice or arrangement . . . which in certain circumstances . . . would be operated in contravention of subsection (1).''

That is a pretty sweeping power. In our courts, generally speaking, we give people remedies when something happens; we do not give massive powers to launch speculative pre-emptive strikes. I therefore wonder whether subsection (2) is necessary for the proper enforcement of this part of the Bill.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

Although this also relates to other aspects of the Bill, it is worth saying that the discrimination law review will consider many of the issues on which we are touching and we need to set our remarks in that context.

The Government tabled amendments in the other place to bring the clause more closely into line with the equivalent provisions in other discrimination law, including the Race Relations Act 1976 and the Sex Discrimination Act 1975, by restricting its application to practices that would be likely to result in indirect discrimination. We should pay tribute to the work done by colleagues on all sides in another place to improve the Bill in that regard.

The intention of the discriminatory practices provision is to enable the Commission for Equality and Human Rights to prevent unlawful discrimination by bringing proceedings in situations where no actual complaint has yet been received, but where unlawful behaviour might occur if such practices continue. Of course, we hope that the commission, through its advocacy and proactive work, will seek to persuade those who might adopt such practices that they are heading down the wrong track and need to mend their ways. Amendment No. 126 would remove that ability entirely.

Amendment No. 125 would allow proceedings to be brought only when the CEHR could show that unlawful discrimination would definitely occur as a result of the practice concerned, and not when it was only likely to occur. If a person could show that discrimination would definitely occur, then by the time that action was brought, the discrimination would probably have occurred. The person would then have a real case, and would not need to take the preventive approach that we are providing under the provision.  

In deliberations with the hon. Gentleman on other Bills, I have learned a lot about the word ''likely''; I understand that it means ''probable'' in legal terms, but even so, it does not mean ''definite''. It is important that we retain the power in the provisions.

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

It is noteworthy that, in subsection (2), ''likely'' has not been used. The Government have not suggested that the CEHR should be able to intervene when it thinks that someone is adopting or maintaining

''a practice or arrangement in accordance with which in certain circumstances a practice would be''

likely to be

''operated in contravention of subsection (1).''

There was clearly hesitation about extending the meaning to ''probable'' in that case. There has to be certainty. That is one reason why I thought it right to seek to amend subsection (1). Would the Minister like to comment on that?

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

Perhaps the best thing to say is ''Good spot!''. Clearly, I shall have to consider the hon. Gentleman's remarks on whether the word ''likely'' should occur elsewhere. If it does, I shall need to table an amendment. I hope that that will not be necessary, but as he raises the matter, I will consider it further.

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

As I indicated, these are probing amendments. I am grateful to the Minister for his reply, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 ordered to stand part of the Bill.

Clause 53 ordered to stand part of the Bill.