Equality Bill [HL]

Clause 26 gives the commission power to apply to the court to tackle persistent discrimination and to obtain a court order, whether in the county court or sheriff court in Scotland, to bring the unlawful conduct to an end. In one respect, the Sex Discrimination and Race Relations Acts have not been copied into the legislation. For example, there is provision in Section 73 of the Sex Discrimination Act allowing the commission to apply first to an employment tribunal for a finding of unlawful conduct with a view to seeking relief of the kind that is in Clause 26. That is the reason why I am raising the point on this clause. The first issue—raised forcefully by the Equal Opportunities Commission, as I think the Minister knows—is whether something like Section 73 of the Sex Discrimination Act should be included so that the expert employment tribunal, often regarded as more friendly and expert in dealing with discrimination cases than a county court or sheriff court—no doubt with great respect to them—can still be an option open to the commission in employment-related cases. The second issue is whether it is necessary to continue the rather cumbersome language of the Sex Discrimination Act, which as the Committee will see prevents the commission seeking a court order for persistent discrimination, except where there has already been a non-discrimination notice, under the old parlance—where there has been a full investigation or a court or tribunal finding of an unlawful act. I shall give an example to explain what I am talking about. Suppose that it is perfectly plain that employer E is persistently discriminating on grounds of gender or race. Suppose that the employer is stupid and unwilling to comply with the law, and that the commission has done everything it could to bring an end to the unlawful discrimination. Suppose that there has not previously been the whole business of a formal investigation, but that it is obvious from the practice itself that this unlawful conduct is going on. Suppose that there has not been a finding about the practice before because it has not arisen before, but that it is clear that it is going on and will continue unless brought to an end by court order. The great advantage of a power to tackle persistent discrimination with a threat of going to the county court is that it will induce and encourage the unreasonable employer, trade union or whoever happens to be on the receiving end to come to some settlement in a voluntary way. The idea of getting a court order is so unpalatable that normally the very threat of it is sufficient. I appreciate that the matter needs to be thought about and that we need to come back to it on Report, but the two issues in Clause 26 are, first, the option of being able to go to an employment tribunal, and secondly, whether we can remove the barnacles from the existing system. By barnacles, I mean the requirement first to have a formal investigation and non-discrimination notice or a finding when you are dealing with blatant and persistent discrimination that can be ended only by a court order. Is it not possible to modernise that in a way that will make the system work rather better? That is why I oppose the Question that Clause 26 stand part.