This amendment aligns the ‘legitimate aim’ test with one established in community law.

We come to a clause dealing with indirect discrimination. I am not sure how far we will get with it, but we will do our best to make progress while we still have time.

Amendment 153 is straightforward. It seeks to replace the test used for the legitimate aim with one that uses wording set out in community law. So, instead of

“a proportionate means of achieving a legitimate aim”,

we would insert

“objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

We could have a long debate about whether the two sets of words amount to the same thing. In the view of the organisations that have contacted me—they feel strongly about this—not only is it better for us to stick to the words established in community law in this area and to seize the opportunity of this new primary legislation to do so, but also, the phrase

“the means of achieving that aim are appropriate and necessary”

is more helpful than merely talking about proportionate means.

The term “proportionality” is bandied about a great deal in this place, increasingly so because it is the language of parts of the Human Rights Act 1998, and because it is an important concept. Nevertheless, in this area, where careful judgments need to be made around indirect discrimination, as we discussed earlier, it would seem helpful to our courts, and to complainants and defendants—or whatever the correct terms are in employment tribunals and county courts—for us to use the language of community law.

It is important to include the concept of necessity, which is not obvious in the word “proportionate”. The language for many Community law directives talks about discrimination being “necessary” as well as “proportionate”. I do not understand why the mother legislation that we have signed up to in the treaty uses “necessary”, as distinct from “proportionate”, if “proportionate” includes “necessary”. The Government have to have an almighty justification for not doing what the amendment suggests. I look forward to hearing the Minister’s response.