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Equality Bill [HL]

My Lords, as a member of the Joint Committee on Human Rights, I should like to say how gratified we are with the amendments. I need to deal with one point, of which I have given notice. The noble Baroness is not a lawyer but she is better than any lawyer; she knows that I will raise it and that she will not have to answer it this afternoon. However, I need to raise it now because it has been raised by the Equality and Diversity Forum and by Justice, through Gay Moon, its legal officer. It is quite an important point. The question is whether we need to amend Clause 30 and expand it to deal with cases where an Act of Parliament has a mismatch with European Community law. The Equality and Diversity Forum and Justice, through Gay Moon, believe that an amendment is necessary. I do not, but I should like to explain what I think is the position and then see whether the Government agree before Third Reading so that we can decide whether to table an amendment. The Employment Protection (Consolidation) Act 1978 required that workers could receive employment benefits only if they worked for more than 16 hours a week. It is not an equality Act, it is an employment protection Act. That provision hit disproportionately at women. Therefore, the EOC, which I have the privilege of representing in the House of Lords, was able to bring a judicial review, reviewing the compatibility of the barrier in that Act with the EEC equality directive which says you cannot discriminate indirectly or directly against women. Meanwhile, Mrs Snodgrass, an individual victim, brings her case in the employment tribunal, claiming that she is entitled to the benefit and can knock away the bit of the employment protection legislation which says she must work for more than 16 hours a week. The Equality and Diversity Forum is under the impression that because the Employment Protection (Consolidation) Act is not an equality enactment within the meaning of Clause 30(1)(a), the commission cannot help Mrs Snodgrass to bring her individual proceedings in that case. I think that it is mistaken; it is an important point because of the magical effect of the European Communities Act 1972: one has to interpret Clause 30 subject to directly effective Community rights and the legislation must be interpreted in accordance with the European principles and rules. That is why, under the aegis of the noble Baroness, Lady Lockwood, as she will remember, we were able to bring all those wonderful references to the European Court of Justice in individual cases with names such as Macarthys Ltd v. Smith and Worringham v. Lloyds Bank where we were knocking out provisions that were inconsistent with EC law. The EOC had its power to give assistance stretched by the European Communities Act to allow the EOC to back those individual cases. Therefore, it seems to me unnecessary to amend Clause 30 because of the effect of the European Communities Act wherever it refers to a provision of the equality enactments—that includes the equality directives, the European directives. When it talks about legal proceedings, it must mean legal proceedings under domestic law, where relevant, read with European Community law. I am sorry to tax the patience of the House with all this, but it is important because if that were not the case, there would be regression since it would mean that the new commission could not do exactly what the EOC has been doing ever since the noble Baroness, Lady Lockwood, became its first and distinguished chair. I am sure that that is not the Government’s intention. More importantly, I think it is wrong as a matter of law. This is a grave and weighty matter to which consideration needs to be given and on which letters need to be written before we decide on Third Reading. I am grateful for the patience of the House.