Equality Bill

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. 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.