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Equality Bill [HL]

moved Amendment No. 74:"Page 14, line 19, leave out subsection (1)." The noble Baroness said: My Lords, noble Lords may recall that in Committee we had a clause stand part debate on this clause at the request of the noble Lords, Lord Lester and Lord Dholakia, and my noble friend Lady Lockwood. That debate helped to illuminate the complexities of the commission’s power to tackle persistent discrimination. I am sure noble Lords would agree that the commission needs effective tools to tackle the harm that prolonged and serious discrimination can bring. Noble Lords may recall the request from the noble Lord, Lord Lester, to,"““remove the barnacles from the existing system," meaning the requirement that there must have been an unlawful act notice or court or tribunal finding within the previous five years before the commission can apply to a court for an injunction. We agreed to take this away and consider it further. I am pleased to inform noble Lords that these amendments achieve the intention of the noble Lord, Lord Lester—that is, they remove the barnacles. Quite simply, we are persuaded that there is a good case for extending the circumstances in which the commission may apply for an injunction to stop a person discriminating. We are proposing, through these amendments, that the commission can apply for an injunction where it considers that a person, unrestrained, is likely to commit an unlawful act. This would parallel the arrangements proposed in Clause 27 in respect of the enforcement powers of the commission to restrain unlawful advertising and instructions or pressure to discriminate. The major advantage of these amendments is that they enable the commission to bring proceedings directly and immediately once there is sufficient evidence that, unless restrained, a person is likely to discriminate. While the current legislation requires that a person has already discriminated, Clause 26, as amended, will impose no such restriction. The power can be used against a person whom the commission thinks will discriminate, even though there is not an established track record in that regard. But—this is very important and anticipates some of the issues that the noble Baronesses, Lady Miller and Lady O’Cathain, would wish to see expressed—the effect of the amendment is not to make the process of applying for an injunction any less rigorous. This is an evidence-based process, where only evidence of real substance will convince a court that an injunction is necessary to prevent an unlawful act. The commission would be very unwise to launch a case unless it had strong evidence on which to rely. If it were to do so, it would risk costs being awarded against it, as well as damaging its reputation. Enabling the commission to apply directly to a court for an injunction without either the evidence of a court or tribunal finding or having conducted an investigation that led to an unlawful act notice in no way reduces the threshold for securing an injunction. These amendments create a streamlined approach, eliminating preliminary stages. Having said that, the evidence test required by the courts will be rigorous. In practice, it is not likely to be used lightly and there will have to be strong evidence for the court to grant an injunction. A court would certainly take the record of the person into account in the consideration as to whether to grant an injunction. These amendments provide the commission with a rigorous but flexible tool and I commend them to the House. I beg to move.