Equality Bill

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 changes 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, ""the phrase ‘on the grounds of’ has, over time and with judicial interpretation, come to have a settled meaning understood by courts and tribunals, practitioners and the public"." 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 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"." 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 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, ""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"." 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 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.