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My difficulty with the clause as written is that basically it says that policy should be made a legislative aim and, consequently, subject to judicial review. I do not think that anyone would expect any local authority, parish council or Government, including this House, to legislate without the desire that it should be for the benefit of every one of Her Majesty's loyal subjects equally and before the law. That is why this country is, and historically has been, so magic. It has not been like countries on the continent.
In using "outcome" as opposed to "opportunity", we are in danger of making something which should be a policy doctrine into something which becomes legally challenging. I do not think that any of us would want to do anything other than what the clause says we should do. But we do not want to give even more enormous sums of money, at 900 guineas an hour plus VAT, to my learned friends to challenge local authorities. That is where I find that this is the wrong way to proceed. Equality of opportunity and equality of outcome are important, but to legislate for it is a silly way to behave.
We all want equal opportunity for everyone, and we all know of the opportunities that have been seized by people who have come from the poorest and most underprivileged backgrounds to achieve great heights of social, economic and intellectual success. This has been aided by the fact that since the war, for want of a better phrase, the middle-class base has expanded enormously, so people have been able to join it. Thank goodness for that. I know also that there is a grandson of a marquis who is now a woodsman, so there is downward social mobility. Downward social mobility is a correlation to upward social mobility, and we have to be able to accept them both. Let us please continue the great virtue of this country, which is that for hundreds of years it has been a land of opportunity and a place where people can rise according to their ability. Let us not try legislating, and therefore giving more money to our learned friends that will enable them to take their holidays in the Dordogne.
The Lord Bishop of Chester: My Lords, I think it was President Coolidge of the United States who attended church one Sunday and, when he went home for lunch, was asked by his wife what the preacher had preached about. The President said that he had preached about sin. "What did he say?" asked his wife. "He was against it", the President said. An awful lot unites us in what we are saying today, and indeed there is something in what everyone has said that I can agree with. Perhaps that is a good Anglican position to adopt on the subject; I am not sure.
I shall start with the noble Lord, Lord Tebbit. I think I could just about compete with him for humble origins, coming from a council estate in Birmingham. The grammar school system gave me an opportunity. But I would not want to go back to it for the very reasons outlined by the noble Lord, Lord Wedderburn, about the way the secondary modern system worked
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I also agree with the noble Lord about the importance of opportunity and freedom. I am one of those who is grateful for the reforms his Government brought in with the noble Baroness, Lady Thatcher, 30-odd years ago. I have always supported the basic thrust of those reforms. But the problem about releasing opportunity and having a society which emphasises opportunity is that, if unchecked, it leads to exaggerated outcomes of success and failure, wealth and poverty. That has, in many ways, been the defining feature of our society for the past 30 years. We have become more American in that sense and are now almost beginning to ape the underclass that has dogged America over the years, alongside the "land of opportunity".
That is relevant to the clause-I agree with the noble Lord that it is unclear and could be misused-in that, in a society that properly gives a place to freedom of opportunity and allows wealth and poverty to develop as they inevitably will, it is a key duty of government to smooth that out in any way it can. A key task of local and central government is to try to take a view that, as it were, smoothes outcomes as far as possible while encouraging equality of opportunity for everyone. If I had drafted this clause, it would provide for equalities of both outcome and opportunity, as one or two noble Lords indicated earlier.
I agree with the noble Earl, Lord Onslow, that to think that all this can be achieved by passing a law is complete nonsense. The law has a limited role, but perhaps it has one in which it simply gives a programmatic undergirding to the whole range of government policy. In that sense, this clause at the beginning of the Bill is a noble aspiration.
Lord Lester of Herne Hill: My Lords, after 10 speeches I do not propose to add to the autobiographical material that has been provided by so many speakers, because I do not think it would help the House to know how bad were the state schools that I went to until the age of 11. What I would like to do is begin with my own cautionary tale.
At Second Reading I spoke critically of Part 1, as did, for example, the noble Baroness, Lady Young of Hornsey, and the noble Lord, Lord Warner. During my holiday in west Cork, I found myself among close, left-wing Irish friends and told them about the problem with Part 1. They beat me up and said, "It is completely deplorable that you should be in any way critical of this admirable provision. Do you not understand?", and they then said everything that has now been so eloquently said, especially on the Labour side of the debate. They said, "Do you not realise how important it is to tackle socio-economic inequality?". I said, "Yes, I do, but why do you think it matters so much?". They said, "Well, it is aspirational, true, but it really makes a difference to policy". So I said, in that annoying way that learned friends may sometimes have, "What
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On this occasion I was right and they were wrong. The point about my cautionary tale is that if that is in the written constitution of the Irish Republic, and if two really able left-wing social engineers and reformers do not even know that or the value it would have in their work, it surely must give us pause when we make exaggerated claims for what is in Part 1.
Part 1 is certainly not intended to be legally enforceable-it creates no proper enforceable duty-and it is not intended to be funded in any way. The guide which the Government Equalities Office has given us says on page 15:
"The duty will not require public bodies to spend additional resources; nor will they necessarily need to rethink existing projects or programmes, and develop new ones, although they may choose to do that in some cases".
Lord Tebbit: I lack the noble Lord's legal expertise but subsection (2) states:
"In deciding how to fulfil a duty to which it is subject under subsection (1), an authority must take into account any guidance issued by a Minister of the Crown",
so there seems to be the possibility of a judicial review if it did not.
Lord Lester of Herne Hill: I would not give anyone any encouragement to think that that duty could possibly give rise to a successful judicial review. Whether we are talking about the guidance or what is in the Bill already, it is so vague as to be completely unenforceable. That is not a criticism of it; it is simply my own view of the position.
In Part 1 there are no new resources and nothing to create enforceable obligations.
The Earl of Onslow: I know the noble Lord knows that I have great respect for him, but if it is not justiciable and is not legally binding, what on earth is the point of putting it in the Bill other than pure waffle?
Lord Lester of Herne Hill: I am not a Minister of the Crown. I am sure the Leader of the House will be able to answer that question. All I am doing at the moment is attempting to explain why all reasonable people apparently share the objective of reducing socio-economic disadvantage. Even the noble Lord, Lord Tebbit, has that aim, although for some reason he describes the Bill as pernicious and anti-libertarian. If he thinks that, I would like to know exactly what it is about it-other than that it is unenforceable-that is anti-libertarian. However, my point is that here we have in Part 1 an admirable, aspirational statement of values with which I and most people in the Committee entirely agree. No new money will be spent on it and it will not be legally enforceable-which in straitened economic times may not be surprising.
I was very harsh about Part 1 at Second Reading. I have discussed it not only with my Irish friends but with other colleagues, and we have decided that the right course for us to take is not to remove it from the Bill but to hope that the Government can in some fashion make it mean something in practice. While we agree with many of the criticisms made on the Conservative side about the unenforceability and aspirational nature of the statement, we would not support the Conservative Party in the Lobby if it divided the Committee.
Lord Morris of Handsworth: My Lords, I shall refrain from entering the debate about good schools and bad schools. Mine was at night, and you cannot compete with that. My long-held concern about this clause is well known. It suffers in three respects. First, I suspect that it was grossly oversold at the start. Secondly, it is still misunderstood-I am grateful to the noble Lord, Lord Lester, for putting the Bill in context and giving a clearer and more direct perspective. Thirdly, it suffers from a lack of enforceability.
Early in the Bill's life, when it was being debated in another place, it was promoted as a revolutionary tool that would eliminate discrimination, promote opportunity and ensure that all those who suffered economic inequality got on to the road of prosperity, making a difference to their lives. It would be the tool that would change the face of Britain in many ways.
I have no difficulty with any tool that makes our society fairer, more just and more representative of its various cultures. The reality as I see it, and as has emerged from our debate, is that the clause represents an aspiration and should be promoted as a tool that will influence the behaviour of decision-makers and those charged with the responsibility to deliver public services and the framework of the society in which we live. The difficulty is in trying to explain that in Brixton or Handsworth, given the build-up that the Bill received as it started its journey.
There are also issues around enforcement. One has to ask what the purpose is of a prime duty, the backbone of the new legislation, if there is no clear mechanism for enforcing it. That issue has still to be resolved, because of the earlier promotion that the Bill received in terms of the change that it would bring about. The limitation as I see it is non-enforceability. It is difficult to go into the areas that are socially deprived and say that you have a new tool that will eliminate discrimination and correct behaviour but that it is not enforceable. That is the downside to the clause. The questions that will be asked are, "How will it change my life?" and "What are the sanctions for those public authorities that fail to deliver their socio-economic public duty?". People will also ask what remedies are available and how compliance can be ensured in a meaningful way. If we are merely adding to bureaucracy, filling in another piece of paper annually or tri-annually, it will not take us much further forward in creating the sort of society that we all wish to build and be part of.
The clause should be promoted for what it is-a set of expectations, but also a set of aspirations, which
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Lord Stevenson of Coddenham: My Lords, I apologise for not participating in the Second Reading debate. I intended to do so, but I got a more important invitation from grandchildren, so I did not. I shall not make the observations that I would have made then, but I want to make a few brief comments on the debate so far. First, somewhat frivolously, in response to the point made by the noble Earl, Lord Onslow, I think that I may know the woodman. Do not accept for a moment that he was downwardly socially mobile, moving from a marquis to a woodman in three generations-nor in general.
Secondly, reference was made by two speakers to the book The Spirit Level. I strongly support the recommendation that we all read that book. I have read it twice from cover to cover; it is arguably one of the most important books written in recent times. I will not go into the detail, but I have a two-page summary if anyone is interested in having it. However, with the greatest respect to the two speakers who mentioned it, I do not see how it argues for Clause 1. It argues that the more unequal a society, the more lousy it is to be at the bottom of the heap, obviously enough, but-more surprisingly-the more lousy it is to be at the top of the heap. I think that I am right in saying that the Leader of the Opposition referred to the book in a recent speech, which I was glad to see. However, for this discussion and this Committee, I have a question, shared by many people, on the effect of Clause 1, because I am not sure how the socio-economic thing helps that cause. That is what I hope to hear from the Government.
The other observation that I wanted to make is that I am passionate about equality of opportunity. I do not come from the humble origins of the noble Lord, Lord Tebbit, but I am only slightly above him. I would not be where I am without some equality of opportunity and I am passionate about it. I am less passionate, but still passionate, about equalities of outcomes, but why cannot we have both, if it is the right thing to have in the Bill?
Lord McIntosh of Haringey: My Lords, if Michael Young-Lord Young of Dartington-were here now he would be holding his head in his hands, but I do not know whether that would be in laughter or in despair. Michael Young wrote The Rise of the Meritocracy, one of the most misunderstood and yet important books on this subject. The lesson of that book is that, yes, you can move toward greater equality of opportunity and remove the clearly unjust, inefficient and discriminatory measures that prevent people like the noble Lord, Lord Tebbit-and the noble Lord, Lord
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Lord Tebbit: If we are to have equality of outcome, can the noble Lord tell me what the point is of equality of opportunity? Let us just all sit back and let it happen, if it will not make any difference to us.
Lord McIntosh of Haringey: The noble Lord, Lord Tebbit, ought to hear me out and think about not just what Michael Young wrote but the misinterpretations that there have been of what he said-he was one of the great thinkers of the 20th century. The point is that if equality of opportunity works, you will have a society in which the hewers of wood and the drawers of water will be deprived of the opportunities of those at the top of the heap, as the noble Lord, Lord Stevenson, says, not because the society is unfair but because they are not capable of doing anything else.
Now, the things that Michael Young said about society, equality of opportunity and the meritocracy have not come to pass. They have not done so for a very good reason: the immigration to this country, which has always been a source of rejuvenation in all socio-economic classes. Michael recognised that towards the end of his life, but he could not have recognised it when he wrote The Rise of the Meritocracy.
The point about this-and I think that this is the answer to the noble Lord, Lord Tebbit-is that unless you have a continued drive towards what is perhaps the unattainable object of equality of outcome, equality of opportunity will prove to be divisive and will result in an unjust society. It is not that equality of opportunity by itself is wrong but that it is incomplete. The equality of outcome that this clause calls for is the natural corollary of the equality of opportunity for which a number of noble Lords have spoken this afternoon.
Lord Mackay of Clashfern: My Lords, I shall say a word or two about the drafting of the clause and what it really seems to be aiming at. I do that by starting from Amendment 2, proposed by the noble Lord, Lord Graham of Edmonton. The Committee may notice that his proposal is that the authority in question should "exercise its functions" by paying,
In other words, his amendment is directed towards removing the socio-economic disadvantage. That is its fundamental purpose. It is one of the only ways in which socio-economic disadvantage can be dealt with: the amount of money available to people should be more equal than it is.
The clause, as drafted, does not attempt to deal with socio-economic disadvantage; it tends to deal with the consequences. In other words, it seems to accept the existence of socio-economic disadvantage and then try to deal with the outcomes that flow from it. That is what it says-not socio-economic disadvantage itself, but the outcomes that result from it. No one can
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A clause that deals only with outcomes resulting from a situation seems hardly adequate to address the problem. If there is socio-economic disadvantage, there is, almost inevitably, an outcome from that. That is what the research seems to show. Therefore, if this policy is to be useful, it would need to deal with the socio-economic disadvantage itself. The amendment tabled by the noble Lord, Lord Graham of Edmonton, goes directly to that. Is that what the clause should be talking about, or should it be talking about something different? The existence of socio-economic disadvantage and its consequences is something that I, personally, would like to see eliminated as far as possible. I am sure that this is true generally. The question of how you achieve that is another matter. All I am doing is drawing attention to the fact that the clause, as drafted, seems to deal only with the consequences of something that is accepted as being in existence.
The amendment that has been proposed-to insert "opportunity" instead of "outcome"-is, I think, intended to be directed to the removal of socio-economic disadvantage, rather than accepting that it happens and trying to deal with its consequences. I agree with the noble Lord, Lord Lester of Herne Hill, that this clause could certainly benefit from a degree of adjustment and a degree of clarity about what exactly we are seeking to achieve, possibly by means of examples. The noble Lord, Lord Graham of Edmonton, has done us a great service by raising a particular example. Do we mean that to happen under this clause? Do we mean that Treasury Ministers, in deciding on salaries in the Civil Service or the Government, should aim at getting all salaries to be much the same? That is one way to get rid of the socio-economic disadvantage of the Parliamentary Secretary, as against the Secretary of State. I am not sure whether government policy would necessarily go that far. This is the problem that the clause raises and it is important that the clause should be as precise as possible.
I also very much agree with the noble Lord, Lord Morris, that if you want to raise expectations, you have to have something that will justify that raising of expectations and can be seen to work. At the moment I find it difficult to see how, with the best will in the world, this measure will work. Apart from anything else, it talks about strategic decisions. I would prefer to cut that out and talk about all decisions. I do not think that "strategic" adds anything. Indeed, I remember that when I was Lord Chancellor I wrote a letter to the Lords Lieutenant that included the adjective "strategic". I got a letter back from a Lord Lieutenant, I think in Wales, saying that he would be glad if, in future correspondence, I would omit "strategic" because it did not mean anything anyway. I pass that advice to the Government.
Clause 3 talks about enforceability and uses a curious phrase. It states:
"A failure in respect of a performance of a duty under section 1 does not confer a cause of action at private law".
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