Equality Bill [HL]

I am grateful to the noble Lord, Lord Lester, for spelling out what the law has already said about the issue, which is important. I take the point that the noble Baroness, Lady Miller, and the noble Earl want me to say more about how we think this works in practice and to address the issue of the amendment specifically. We intend that the commission will carry out an investigation only where it has reason to believe that the person concerned may have committed an unlawful act   of discrimination or harassment. The concept of ““reasonable grounds to suspect”” is already covered in the word ““suspect””. I shall say a bit more about that in a moment. The commission cannot form a suspicion without the grounds to do so. Combined with its public law duty to act reasonably, the word ““suspect”” suffices to imply a reasonable suspicion based on specific grounds. The noble Baroness will perhaps not be surprised that it does not equate to a belief as high as a civil burden of proof, but there must be material before the commission sufficient to raise a reasonable suspicion that the named person may have committed acts of the kind that it is proposed to investigate. The commission must be able to justify its decision to investigate as reasonable and fair, and it would be required to produce the evidence it based the decision on if challenged. Obviously we do not want to specify precisely what that evidence would be, but we would expect it to include such things as material that flows from an inquiry; material that has been put before a court or a tribunal that may have led to a decision, or the case may have settled and the proceedings withdrawn; information that is brought to the attention of the commission through help line or advice services. A suspicion based on a single unsubstantiated complaint, for example, would be unlikely to be defensible, but a number of complainants over a long period of time, combined for example with a number of settled cases of which the commission is aware, is likely to be sufficient. All that begs the question of whether the belief threshold to exercise this power is appropriate. In my view, to impose any higher level of belief would place the commission in a position where it would in effect be required to know in advance of an investigation what it might find. That is neither feasible not desirable. I hope that I have set out the kind of evidence or material that we would expect the commission to have. We are very keen to make sure that we have the right level of protection to ensure that innocent companies, for example, are not targeted. We do not want this to be an arbitrary use of a power that could be damaging, for example, to a company’s reputation. Combined with what is set out in Schedule 2, we have the right package of adequate safeguards for someone subject to an investigation conducted by the commission. I hope that on reading what I have said about the kind of evidence expected, the concerns of the noble Baroness will be allayed. I asked for advice from parliamentary counsel about the wording of the amendment. That advice tells me that the difficulty with phrasing it in the way that the noble Baroness wishes—although the same effect is there and parliamentary counsel is certain it is there—is that it would cast doubt on other legislation where that phrase is used. I need therefore to avoid it on the basis that I do not wish to cast doubt about the word ““suspects””. For that reason, I have no alternative but to avoid the wording in this case. I hope, on the basis that it is contained in the word ““suspects””, and on the basis of what I have said about the kind of material that the commission would be expected to provide, and our expectation that improper cases would not be brought forward, that the noble Baroness will feel able to withdraw her amendment.