Clause 13
Equality Bill
4:15 pm
Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)
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.