Committee (1st Day)

Equality Bill – in the House of Lords at 3:30 pm on 11th January 2010.

Alert me about debates like this

Clause 1 : Public sector duty regarding socio-economic inequalities

Amendment 1

Moved by Baroness Warsi

1: Clause 1, page 1, line 7, leave out "outcome" and insert "opportunity"

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government 3:49 pm, 11th January 2010

My Lords, I shall speak to the other amendments in my name in this group as well. It is a pleasure to open the debate for consideration of the Equality Bill as it goes through your Lordships' House. I look forward to the informed discussions that will take place and allow the Bill to be honed and improved in the areas where we need that. There has been much discussion so far about the length of time that the Bill has taken to come to this House, and I am delighted to welcome it-albeit in another decade. We, like the Government, are anxious that the Equality Bill should become law. In this light, we very much hope that the noble Baroness, Lady Royall, and her team will be looking to engage practically and profitably with the concerns that will be raised in Committee.

During Second Reading, on 15 December, we heard great concern from around the Chamber about Part 1 of the Bill. I will not go into those details here again, as our worries will be addressed in a later group of amendments, but I shall raise one specific issue. Our probing Amendment 1 is designed to clarify the Government's position regarding this clause. As it stands, Clause 1(1) states:

"An authority to which this section applies must", when making strategic decisions about the exercise of its functions,

"have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage".

I want to express two worries in connection with this subsection before we go into more detailed arguments about the socio-economic duty itself.

First, the main purpose of this clause appears to be to send out an important message that there is a problem with "socio-economic disadvantage", and that that should be addressed. Up to that point, we agree with the Minister; there is indeed a problem with socio-economic disadvantage, and it must be dealt with. We are living at a time when the Government look set to miss their 2010 target on child poverty by 600,000 children, for example, with the number of children living in poverty having increased since 2004. Furthermore, figures from last May show that the number of adults living in poverty had risen by 800,000 under this Government. Nobody could therefore deny that the problem of socio-economic inequality is urgent, requiring immediate and effective attention.

Does the Minister agree, however, that there is a wide difference between inequalities of outcome and inequalities of opportunity? For example, those in poorer areas may suffer from disadvantage in the quality of the healthcare that they receive. That may be because of a lack of access to good local healthcare, which could result in inequalities of opportunity brought about by socio-economic disadvantage rather than as a result of discrimination on the basis of socio-economic status. Given these different approaches and the use of inequalities of outcome in the Bill, could the Minister clarify the intention behind the clause?

We have also tabled Amendment 4 to raise the worry that there are very different meanings behind the concepts of socio-economic inequality and socio-economic disadvantage. To conflate those two ideas or to allow a murkiness of terminology that might leave scope for misunderstanding or confusion does not help. It will merely add a burden to authorities, which will have to figure out what is required of them, and may prevent any potential benefits from being fully exploited.

That leads me neatly onto my second point. The fanfare behind this part of the Bill is that it is designed, according to Harriet Harman in another place, to ensure that specific public sector organisations,

"play their part in narrowing the gap between rich and poor in the strategic decisions that they make".-[Hansard, Commons, 11/5/09; col. 564.]

In itself, this is clearly commendable. I think all in the Chamber today would agree that it could only be a good thing to reduce the gap between rich and poor. However, does the Minister not agree that addressing inequalities of outcome, without also tackling inequalities of opportunity, may mean that no action is taken to address the root causes of the problem?

A duty to ensure that public sector organisations take into account inequalities of outcome may lead to some tweaks being made at the final stage where, for example, healthcare or education are received, but this will do nothing to address the real problem, which is to have no opportunity at all to receive these services. Does the Minister agree that much more will be needed to address socio-economic duty, and that the phrase "inequalities of outcome" risks giving an unclear message which will have little real impact on a very real and worrying problem?

We have touched on some of the issues which this part of Bill raises, but now we will debate the three clause stand parts that are in the group, which would remove them from the Bill altogether. We have also tabled Amendment 3, which would leave out only Clause 1(4). This is designed to underline our objections to the nature of this part of the Bill by removing the necessity for those authorities which are not specified under subsection (3) but are partners to local authorities to have regard to the socio-economic duty as regards their involvement in the sustainable community strategy.

It was clear on Second Reading in your Lordships' House that a great many noble Lords had objections to this part of the Bill. We objected to it on the grounds that the Government had conflated the ideas of discrimination on the basis of socio-economic disadvantage and the disadvantage itself. It is, of course, easier to legislate for cutting back the weeds of some forms of socio-economic discrimination than it is to attempt to pull out the root causes of disadvantage. We were then supported by the noble Lord, Lord Lester, who said that this so-called duty is a vague and unworkable exercise in political window dressing that attempts to suggest that Labour alone is concerned to reduce socio-economic inequalities, and which might serve to divert energy and attention from the problem of discrimination.

With such great criticism coming from all parts of the House, how can the Government continue to justify clauses in the Bill which they were reduced to justifying in the Commons as acceptable only because there was no harm in them? Can the Minister inform the House of whether the Government are content to pass legislation which they cannot justify in terms of use or value, only because it highlights a problem and can do no harm? We on these Benches think that it is an unacceptable way to frame legislation. We are, of course, here to help form effective legislation which tackles the root causes of problems, not to write press releases which, while they may encapsulate good principles, do nothing to address such problems.

It appears that a Government coming to the end of their Parliament would like to make a big, bold statement about the importance of reducing socio-economic inequalities. I am not surprised, given that, for example, since Labour came to power in 1997, there has been a widening of the gap between infant mortality of the poorest and richest households. Furthermore, as I mentioned previously, child poverty is increasing. Such a statement is commendable on its own terms. I am sure that there will be few, if any, objections to the desire to close the gap. However, the Minister must acknowledge that legislation is not the place to make such an important but, as it stands, vacuous, promise.

There appears to be an increasing trend to create statutory targets in legislation, which tend to promise much and deliver little. As mentioned in another place, legislation was passed which effectively stated that fuel poverty would no longer exist. We see now that not only does fuel poverty still exist, but that when the case was tested in court, the Government were able to plead successfully that resources were not available to follow through their own promise.

On 5 January the Child Poverty Bill was given its Second Reading in your Lordships' House. The Bill also places a duty on the Secretary of State to meet four United Kingdom-wide targets by the end of the financial year in 2020. Here, too, we support the principle but are concerned by the use of legislation for targets, rather than real action.

Furthermore, we are disappointed with the intentions of the clause. Will the Minister acknowledge that the way to address the problem of socio-economic disadvantage is to go right to the heart of the matter, figure out the root causes and then find ways to tackle each and every one of them? Instead, we have a few clauses attached inelegantly on to the beginning of a Bill dealing with discrimination. Does the Minister accept that the way to narrow the divide between rich and poor is to have meaty proposals which engage with the real issues of reducing opportunities that are not available to many poorer communities? In contrast, these clauses do not provide any form of solution to an entrenched problem. Instead, they attempt to smooth over the differences from the top without addressing any of the rot underneath. This is surely not a legacy that any Government would desire.

Unfortunately, we received the Government's new guidance entitled, The Equality Bill: Duty to Reduce Socio-economic Inequalities late on Friday evening. I am glad that the Government have managed to publish this guidance before Committee stage, although they have cut it very fine. Given the lateness of its arrival, I am still working my way through it. Therefore, I apologise if any of the questions that I ask today have been answered in the substantive document. I am sure that the Minister will understand that. The document's summary details what this duty does not do. It states:

"The duty is not about creating new equalities. It is not about addressing discrimination against individuals on account of socio-economic factors. It is not about directly affecting or determining operational decisions and it is not about requiring public bodies to use their resources to remove unequal outcomes".

If that is a list of what this duty is not about, I should like the Minister to explain what it is about. If it is not about dealing with any of the real issues, affecting socio-economic disadvantage in any way, protecting people, or allocating further resources to dealing with the issue, I submit that this list is merely an effective way of deflecting negative press comment and allowing the Government to make a bold statement and look good in a general election year. Could the Minister give me an example of a local authority where this duty could be used, and what real practical impact the use of that duty would have?

There are a number of questions which I am sure the Minister will deal with but at this stage I beg to move.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Labour 4:00 pm, 11th January 2010

My Lords, I support the clause and oppose the amendments. My justification for doing so is that socio-economic disadvantage creates some of the most deep-rooted discrimination and combination of inequalities. There is no question that social class still holds a powerful grip over people's lives. While the clause will not, of course, solve all the problems, it will help to create awareness and make public bodies stop and think before they take strategic decisions on spending and service delivery, with the consequence that, as strategic authorities begin proactively to monitor the impact of key policies for their socio-economic impact, we should start to see significant differences in the way that public services are configured and targeted.

The Women's National Commission, of which I am chair and therefore declare an interest, has consulted its 550 partners, national and local, big and small-these women's organisations represent some 8 million women-asking for their views on the clause. There was not one negative response, rather the opposite, as might be expected, for by enabling public authorities to tackle the root causes of inequality and deprivation, a socio-economic duty would help to reduce inequality of income and improve outcomes and life chances, which are particularly relevant to women. It will also be a key driver towards achieving social mobility and educational success. There is no question that failing to tackle the root causes of this inequality early on in life could cost the taxpayer more in the long term.

An example given by the EHRC is that young people who are not in education or employment are far more likely to go to prison, at a cost of between £15,000 and £50,000 for each prison place. In terms of health, the duty will require public bodies to take into account discrepancies such as health inequalities and the postcode lottery during day-to-day work and while planning and developing new healthcare strategies. This may involve, for example, targeting a geographical region which is known to have poorer healthcare outcomes and providing opportunities for people to achieve better healthcare outcomes.

That is why this clause is fully supported by the Royal College of Nursing, which has long recognised the significance of healthcare inequalities. That view is supported by the British Medical Association in its welcome to the Government's commitment to address socio-economic inequalities which, it says, will help to ensure that the provisions introduced under this legislation are robust and effective. The inclusion of this clause is particularly welcomed by the Citizens Advice Bureau, which on a day-to-day basis is at the front line of dealing with the effects of unfairness and inequality. This clause, it says, could be an effective tool to ensure that public services and policy makers have an overriding objective to tackle systemic problems of socio-economic disadvantage.

As policy-makers, we sit here in this beautiful Chamber, and it is important for us to listen to those who work among the most disadvantaged. The argument that the clause is vague, unworkable or unenforceable is completely unacceptable. How often have we heard that the wrong vehicle is being used and that legislation will have no impact? In fact, history shows us that that is completely not the case. They are often excuses put forward by those who are opposed to the principle behind legislation. I firmly believe that removing this clause would do a disservice to all those it can help.

Photo of Lord Tebbit Lord Tebbit Conservative

The Labour Party has come a very long way over the past 100 years or so. When we look back to those early days of the Labour Party, there was an enormous concentration on education, particularly in the Welsh valleys. Long before Mr Blair discovered "education, education, education", in those Welsh valleys there was a passion for education. It was seen as the way forward for youngsters growing up in rather poor socio-economic circumstances-although they did not use that expression in those days; they were more blunt about it. Education was seen as the way for those children to make their way up and enjoy some social mobility.

Further north were the Rochdale pioneers. They did not spend all their time griping, whining and whingeing about the misdemeanours and the unfairness of the way that retail trade was conducted; they did something about it. They created the co-operative movement, which actually improved retailing across the board and, particularly, improved it for those in the poorest circumstances.

We have come to a stage where everything has to be done by legislation. What have been the consequences in recent years? We have seen a loss of social mobility. Of course, the Bill as a whole and this clause in particular will contribute towards that loss of social mobility. I do not speak from theory but from experience. I was one of those-and there are a good many of us in this House-who was born on the wrong side of the track, and probably at the wrong time. How did I escape from that socio-economic group? It was through education. It was through the grammar schools, which gave me, not the Bill's entirely false promise of equality of outcome, but an equality of opportunity. The more that we strive for an equality of outcome, the worse matters will get.

What a pity that we do not already have former Prime Minister Blair in the House. He could tell us a thing or two about it. He sprang from very difficult circumstances. His family was so poor that he could not be sent to Eton, but had to make do instead with the best public school in Scotland. From those unpromising circumstances, he has given us all an enormous lesson in how to get rich. He is now, in the words of the noble Lord, Lord Mandelson, "stinking rich"-and I know on which of those two words I put the emphasis. What a pity that he is not here to tell us how to do it. I know that some of it comes from his great success as a Prime Minister. He was, after all, a wartime Prime Minister for longer than Winston Churchill; and he has profited rather more from it, too.

I support absolutely my noble friend's amendment, and will support her, too, by voting against this pernicious, anti-libertarian and totally harmful clause.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I congratulate the Government on bringing forward the Bill, which will strengthen existing legislation tackling discrimination. I apologise to the House that I was unable to be in the Chamber for Second Reading. I should probably apologise also for what I say today: I flew across the Atlantic overnight, did not sleep and am probably less well prepared than I should be. However, I feel very strongly about Clause 1.

I am aware that many noble Lords, perhaps even a majority, feel that Clause 1 should not be included in the Bill. If I understand it correctly, the reason is that the clause could lead to many challenges in the courts that may not be successful but would waste resources. If that is the case, we must do some redrafting. However, I argue very strongly for retaining in the Bill a reference to the inequality that has a greater impact on the health and well-being of individuals than any other-I refer to socio-economic inequality. An equality Bill that ignored this major dysfunction in our society would be akin to producing a tree without a trunk. However, noble Lords are no doubt right that some rewording of this part will be necessary.

The Marmot commission on inequalities in health and well-being, of which I am a member, will report on 11 February. The commission has been examining the consequences of socio-economic inequalities. I will mention a few points to underline the importance of Part 1 of the Bill. Life expectancy in London varies by seven years from one borough to another, depending on the socio-economic structure of the boroughs. To make matters worse, the number of disability-free years varies by 17 years between those at the top and bottom of the socio-economic scale. Not only do people in the most deprived socio-economic groups have much shorter lives than others, but they also spend more of their later years with a disability. It struck me, reading the Bill, that if we talk about dealing with disability and fail completely to address the need to prevent it, we are missing the point of anything that might be called an equality Bill.

The noble Baroness, Lady Warsi, argued that the need is to identify all the causes of socio-economic inequality and address each and every one. I agree, and consider that the clause will exert appropriate pressure on government departments to do just that. I shall give just one example. In relation to infant mortality, there is currently a 16 per cent gap-or, at least, there was in 2006-08; those are the latest figures of which I am aware-between babies born to fathers in routine manual occupations and those born to married or jointly registered parents in the population as a whole. Children born into families of low socio-economic status will be affected for their entire lives. Help from public services in their early years to improve their physical, social and cognitive development can transform their educational achievement, employment and health throughout life; hence, the vital importance of Clause 1.

Government departments have a responsibility to reduce the lifelong consequences of these inequalities. To achieve the necessary change, we need a concerted effort across all government departments. This will be the message of the Marmot commission, and, believe me, the research behind that commission is extremely powerful. Professor Marmot led the worldwide commission on inequalities in health for the WHO. His work is being taken very seriously by countries across the world. We now have our own commission in England, and countries all over the world are doing exactly the same to address these very serious issues.

Finally, socio-economic inequalities affect each and every one of us. Many other kinds of inequality affect different groups of people-disabled people, old people such as myself, or whoever-but socio-economic inequalities affect all of us. The UK is one of the most unequal societies in the western world. As a result of these inequalities, our average life expectancy is below that of countries such as Japan with lesser socio-economic inequalities. We can improve the average life expectancy of our country as a whole if we address these matters, and that is why it seems to me that we cannot have the Bill without Clause 1. Therefore, I hope that between now and Report we can work on this clause to make sure that it does the job that the Marmot commission wants the Bill to do. I believe it is the most important job that the Bill can do.

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour 4:15 pm, 11th January 2010

My Lords, it is a pleasure to take part in this debate, and I hang my hat on Amendment 2. I start by congratulating the noble Baroness, Lady Warsi, on making a robust attack on the concept. She was able to give us some interesting aspects of where it was deficient and how it could be improved, which is the purpose of the Committee stage.

One thing that occurred to me when I took an interest in the Bill was that one can get very one-track-minded about equality or inequality but, as the noble Baroness, Lady Meacher, pointed out, there are inequalities in many different spheres. We are now talking about economic inequalities. The noble Lord, Lord Tebbit, spoke about where he came from. I know that he came from Ponders End in Enfield. I know the school that he went to-a first-class school on the Great Cambridge Road-and he was a pillar of that community. He may or may not have got on his bike but he certainly set about putting right the inequalities in which he found himself. Was it Norfolk Road-one of the roads off Lincoln Road?

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour

I know the area and, so far as I know, the people there are very proud of the noble Lord.

I received a brief from a body called the Equality Trust, which states:

"More equal societies work better for everyone".

It comes at the issue not from the point of view of sexual equality, differentials, and so on, but from the view that we can have a better society if we find a means of ironing out some of the inequalities. My amendment strengthens the assertion that social and economic inequalities play a large part in the disparate nature of our society. The Minister who will be replying to the debate should look on it as an opportunity to deal with the issues that are not covered, according to the noble Baroness, Lady Warsi, but should also assert those that are.

Members of this House, who have some responsibility for society, cannot hide or run away from the fact that there are enormous inequalities in many ways. I regard the Bill as an opportunity for the Government to bring forward ideas and aspirations-the word of the day. There are aspirations in the Bill, and I would not criticise this or any other Government for aspiring to change without necessarily being able to argue that every aspiration can be turned into an achievement either now or later.

The opportunity of upward mobility is something to which we all aspire. That should be the aim of all countries, but sadly Great Britain lags behind other societies in many ways. Equality is not just about equal pay; it is about a great many other things as well. Economic democracy leads to fairer disparities in business. Gaps may never be wholly eliminated but they can be narrowed with a little help from our friend-an understanding Government. If there is common cause that inequalities that exist should be eliminated, eroded or substantially affected, surely that is a platform that can stretch right across this Chamber and right across government. It is not what you do, but the way that you do it. If there is common ground about the need to eliminate inequalities, we are half way there.

Trends in the past 20 years can and should be reversed. Businesses do not have to be run only for profit at the behest of rich, external shareholders. We come up against the broad division between public and private enterprise but there is a place for both. I was delighted that the noble Lord referred to the Rochdale pioneers of 1844 and how, over that century and beyond, that organisation has given to those who wish to use the tool an opportunity to improve their lot. I know that the noble Lord will be knowledgeable and generally familiar with the Co-operative movement. The London Co-operative Society, or the Enfield Highway Co-operative Society which operated in his area, was there only because the idea and that example existed. It started in Rochdale and spread, and the Co-operative movement has much to be pleased about. It struggled and was the economic enemy of a great many of the great names in this House and outside in trying to do its job. What job is it trying to do? It is trying to say to ordinary people that, in their busy lives where there are harsh conditions, if you care to combine your facilities and resources, you can improve your lot.

We will never have a completely clear or clean society, but I want to comment on the kind of organisation that the Co-op is pleased to be. Here I declare a non-financial interest as a lifelong supporter of the Co-operative idea. Although in the 1980s and 1990s there was a move to demutualise many businesses and institutions, there are still 63 building societies with 2,000 branches and 38,000 employees. There are still 650 credit unions, 250 friendly societies, 70 mutual insurance companies and 170,000 charities. There is also the Co-operative Bank, which is recognised as one of the finest ethically run and driven organisations.

What are we trying to do? I relied on the brief from the Equality Trust, and it produced some interesting comparisons. For instance, it says that if we could only halve equality in income-only halve it-we would halve the homicide rates, reduce mental illness by two-thirds, halve obesity, imprison 80 per cent fewer people, have 80 per cent fewer teenage births, increase trust of other people, and become significantly more environmentally sustainable. Those are laudable aspirations, but many of them are not capable of being achieved in your Lordships' lifetime or mine.

I hark back to the Rochdale pioneers and their ideas, which they got from Robert Owen. He was a great social reformer in the early part of the 19th century. They would never have expected-and nor should we-to find that all the ills that have been created can be eliminated. However, I congratulate the Government. As has been said, this is an election year and I am sure that the Minister is able to withstand what I call snide remarks about the basis on which the legislation has come forward. It may be years late, but it is about time that we tried to face up to the issue. I hope that the Minister will take heart from the fact that at least if we have the platform rolled out before us in the Bill, Members of this House and interested people all over the place will applaud the fact that an attempt has been made to do so. I congratulate the Minister and the Government on having the courage to take up time now. My amendment is designed to give a cutting edge to this clause and I hope that, without its remotely being able to solve the problem, the Minister will recognise that.

A

With regard to people who suffer from severe and enduring mental illness, they are unable to struggle themselves for equal rights, and their carers are often unaware of the help that is available, and the patient, through lack of insight unwilling or unable to seek help for themselves.
These are not the patients who present to their G.P. telling him that they feel depressed, but people who have an unreal perspective of life. They are not criminals, they are severely disabled.
Although advocates are now on the list of help to which they are entitled, they do not know how to obtain this assistance. Thus severe mental illness should be considered as a severe disability. Finance, trained staff and rehabilitation to the best of the patient's ability to secure a reasonable quality of life should be a priority. This applies greatly to families where there are siblings, or where a parent or other adult carer suffers from mental illness. I do
not include alcoholism or drug addiction.

Submitted by Alix Cull

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

Is it possible for the noble Lord to make available in the Library the statistics that he gave us? We certainly do not want to legislate without evidence and we really must have evidence-based facts. I do not know whether those statistics are fact-I have never heard them before-and I would really like to have a look at them.

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour

As the noble Baroness said, they are breath-taking. I have taken a breath and I will sit down.

Photo of Lord Waddington Lord Waddington Conservative

I should just like to utter a few words of caution. Perhaps the Committee will forgive me if I start on a somewhat light note. Many, many years ago, when I was at university, Lady Astor came up. I am not quite sure whether she came to entertain us or to educate us. She said that she had two sons. She said, "I could put one down in darkest Africa and he would come out leading the natives. I could put the other one down in Piccadilly and he would not be able to find his way home, and we live only just around the corner". That was her view of the likelihood of our ever attaining anything like equality.

It is also apparent from the efforts of the Government in recent years to further their wider equality agenda that such efforts can cause great mischief and unfairness, however great the intentions of the organiser-great mischief and unfairness particularly when the Government's idea of equality turns out, as it has, to be nothing more than institutional intolerance to those with religious convictions. We need to be assured in this context that this encouragement to local authorities to strive for socio-economic equality will not lead to a great deal of trouble and bring very little gain.

There is good reason for uttering those words of caution, because I remind noble Lords that the Solicitor-General in the other place did not claim that Clause 1 would do any good. What in fact she said was that she thought that there was no harm in it. That is what she said in the Commons Equality Bill Committee on 21 September last year at col. 130 of the Official Report. She thought that there was not really much to be gained from it, but that it would not do much harm. I beg to differ. Not so long ago, Brighton and Hove Council, not in pursuit of socio-economic equality, but in furtherance of the Government's wider agenda, cut off a grant to a Christian care home because the managers of the home would not comply with its demand that the elderly residents should be asked every three months what their sexual orientation was. If councils are prepared in the name of equality to act in such a lunatic way, what makes the Solicitor-General think that such a council would not try to implement Clause 1?

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Labour

As a resident of Brighton and Hove, I should be extremely grateful if the noble Lord could present me with the date and the evidence of what he has just said. That is terribly important.

Photo of Lord Waddington Lord Waddington Conservative

I do not have that evidence at my fingertips, but I certainly have the evidence and will certainly let the noble Baroness have it.

My fear is that in their efforts to try to make some sense of Clause 1, councillors will no doubt set about discussing what it means. They will set about trying to decide how on earth they can implement the intention of Clause 1. No doubt, they will appoint expert advisers to advise them on that. They will be inviting councils to liaise with them to further the aims of Clause 1 and they might even plan to set up an office in Brussels to make sure that their thoughts are very similar to those of the Commission. We are entitled to know, because we have not yet been told, what on earth councillors are supposed to do in furtherance of Clause 1.

Photo of Lord Tebbit Lord Tebbit Conservative

My noble friend could perhaps be a bit more optimistic. Perhaps the council would think that it imposed on it a duty to consider re-establishing grammar schools. They are a proven way of reducing socio-economic inequalities. It might be a good thing.

Photo of Lord Waddington Lord Waddington Conservative

Certainly, if that was in the Bill, people would know what the Bill meant.

Photo of Lord Waddington Lord Waddington Conservative

I think that I had better reply to my noble friend first. Certainly, if such a clause was in a Bill, everyone would know what it meant, and everyone would know what was expected of the council. The difficulty with the proposal in this Bill is that no one has said what on earth the councils are supposed to do in order to implement Clause 1. Why on earth should we be expected to approve Clause 1 unless we are at least told that as a minimum? I give way to the noble Lord.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

I was not intervening. I thought that the noble Lord had concluded. If he has concluded, perhaps I may follow him and his brethren.

Photo of Lord Waddington Lord Waddington Conservative

No, I have not. I am sorry, but I will conclude in only a moment.

At this time of all times, when the Government have piled up massive debts to be repaid by our children and our grandchildren, we really should not be imposing further duties on local authorities and encouraging them to spend more money unless there is a real likelihood of some gain coming from it. I have no evidence before me that any gain will flow from this nonsense. I think that we should be encouraging local authorities to empty dustbins more efficiently rather than trying to implement Clause 1.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

It would be a travesty if the ambition of equality of outcome, or, indeed, equality of opportunity, were left in the mouths of spokesmen of the Opposition, whose party has done very little to promote either objective in our society-in particular the noble Lord, Lord Tebbit, who takes as his target and his banner the Rochdale pioneers, which is only one example, but a very important one, of the collective ambition and work of workers in Britain, whose organisations and trade unions he did so much to attack when he was in office. He laughs. He bases his attack on grammar schools, which he says promoted equality of opportunity which enabled him eventually to come to this House. He is not alone in that. My family had scarcely heard of universities before the idea of my being at one took them by surprise. He no doubt is sitting with his brethren who come, as he put it, from Eton. One of them is trying to interrupt me from a sedentary position.

Photo of The Earl of Onslow The Earl of Onslow Conservative

I was actually too stupid to go to university, but I was very privileged to go to Eton. Every time I pass Mrs Messenger's cottage, which was sold to send me there, I regret that it had been sold, because I would be quite happy to go to another school.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

The noble Earl was no doubt fortunate in his circumstances. But to hear grammar schools defended on the ground that Government should not put into legislation an ambition to improve equality of outcome and equality of opportunity is a quite false attack.

When the noble Lord speaks of grammar schools, he-like those of us who succeeded in them-always speaks of those who succeeded in them. He does not say very much about those he left behind, jettisoned into an inferior channel of education. I remember them because many of them remained my friends. They did not pass the 11-plus. If these clauses suggest that local authorities and other government bodies must keep before them the ambition of comprehensive education for all, with an equality of outcome so far as that is possible in our much-divided society, that would be a very good thing.

It is astonishing that an opposition spokesman can suggest that research has not shown that this society has become more unequal in the past 20 years.

Photo of Lord Tebbit Lord Tebbit Conservative

The noble Lord enjoyed going to university; that was denied to me for economic reasons. However, when he attacks my reforms of the trade union movement, I should remind him that his party has now been in office for 12 years without seeking to reverse a single word of the legislation that I took through the House of Commons. I think that answers him completely and totally.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

The noble Lord omits to notice that several words in his legislation have been amended, although I stand with those who wish for more amendments and greater strength in the trade union movement. When he suggests that he did not go to university because economic forces prevented it, he needs reminding that it was legislation by a Labour Government that sustained the means for people to go to university, as I did, with a complete grant. That is now denied by legislation brought forward by people sitting on his Benches. They began the fees for education at universities that would not be in accordance with the ambitions of the Bill. There are, no doubt, faults in the wording of these clauses, which we can discuss in Committee. I apologise for not having spoken at Second Reading, but I did not realise that there was going to be another Second Reading debate, but that is what the Opposition have come to. They hold their fire until Committee because it is more use to them for speaking about grammar schools, whose name they traduce in their case against clauses that point public bodies in the direction of equality. To suggest that that has no place in legislation does little to understand the society in which we live.

Photo of Baroness Whitaker Baroness Whitaker Labour

I apologise for doing the wrong thing in my haste to respond to the question asked by noble Baroness, Lady O'Cathain. There are two pieces of evidence that this Committee should take seriously. One is the book mentioned by the Equality Trust and to which my noble friend Lord Graham referred. I read it several months ago. It is by Professors Wilkinson and Pickett and is called The Spirit Level: Why More Equal Societies Almost Always Do Better. It provides the most compelling evidence about why this clause would do good for our society. I urge all those who have an interest in this clause to read it. I shall not go into it any more in the interests of time.

The other evidence is the work by Sir Michael Marmot, which was mentioned by the noble Baroness, Lady Meacher. Sir Michael gave evidence to the Select Committee on Health on his work for the WHO. It provided the most compelling evidence about the harmful effect of inequality on health.

The noble Baroness, Lady Warsi, suggests that the Government should pay more attention to equality of opportunity than to equality of outcome because it is equality of opportunity that matters. If she has another look at the clause, the phraseology is designed to reduce the inequalities of outcome that result from socio-economic disadvantage. That is not to focus only on outcome. To provide more equality of opportunity could well be a way to reduce the inequalities of outcome. What on earth is the use of focusing on equality of opportunity if it makes no difference to equality of outcome? It would be an empty gesture.

Photo of Baroness Greengross Baroness Greengross Crossbench 4:45 pm, 11th January 2010

My Lords, I ask noble Lords to support Clause 1. I declare an interest as a member of the Equality and Human Rights Commission. Perhaps I may remind Members of the Committee of the duty on,

"strategic public authorities to consider socio-economic disadvantage in the planning and monitoring of the strategic services they provide".

I do not think that there could be a huge number of legal challenges to that. I think that this will be the first time that this has been a duty, and it is an important duty. I go back to what I said at Second Reading, which was very much in agreement with what my noble friend Lady Meacher said. I chair Professor Michael Marmot's advisory group on the English longitudinal study on ageing. Looking across the life course, we see that factors over which no one has any control whatever-such as, where a person is born or grows up, particularly in their early years-can affect the number of years a person lives by between 10 and 17 years. That is a sort of death sentence on some people for reasons over which they have absolutely no control. We are asking public bodies to look at that when they look at priorities in order to improve the lot of people so that they can lead a healthier life, have more control over their life and can flourish, rather than be totally disadvantaged.

We know that if we do not look at young people growing up in such conditions, if they are not in education or employment, they are far more likely to go to prison. Each young person in prison costs between £15,000 and £50,000 a year. If we can stop some of that by reducing some of those inequalities and by prioritising the services that we provide, surely that is good in terms of opportunity and outcome for society as a whole.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, perhaps I may add a small amount to this debate. It is worth pointing out that historically this is a country where social mobility has been extremely common. One only has to look around this House to see that it is full of people who deserve their place, who have come from a humble background-not the privileged and historical background that I came from-for which we should be immensely grateful.

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.

Photo of The Bishop of Chester The Bishop of Chester Bishop

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 then. Indeed, it is one of the tragedies that the comprehensive ideal has not been made to work better in our society. I go into schools a lot, and shall be in one first thing tomorrow morning, which is probably why I will not be able to move my amendment later this evening. However, an awful lot of good work is going on in schools precisely to put into effect what this clause seeks to do.

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.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

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 about Article 45 of the Irish Constitution then?". They said, "Our constitution has no socio-economic rights in it, does it?". I said, "Yes, it does, it has one of the most elaborate sets of socio-economic rights. It then says that they are not to be justiciable. Surely you, Mary Robinson's biographer, and you, the editor of a radical left-wing social policy thing, know that and surely it is important to you". They said, "You are completely wrong. There is nothing in our constitution that guarantees socio-economic rights".

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".

Photo of Lord Tebbit Lord Tebbit Conservative

I lack the noble Lord's legal expertise but subsection (2) states:

"In deciding how to fulfil a duty to which is 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.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

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.

Photo of The Earl of Onslow The Earl of Onslow Conservative

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?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

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.

Photo of Lord Morris of Handsworth Lord Morris of Handsworth Labour 5:00 pm, 11th January 2010

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 should be part of a responsibility that we all have, because we all make decisions that have an impact on the lives of people and communities. I hope that as we develop this debate in Committee we will tell it as it is and not try to oversell the product, because at the end of the day we will create expectations that we cannot fulfil and leave people feeling disillusioned and let down and losing faith in the system. We cannot afford to take such a risk at this stage in the development of a society that is fair and just and which treats people on the basis of their opportunities and their own efforts.

Photo of Lord Stevenson of Coddenham Lord Stevenson of Coddenham Crossbench

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?

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Labour

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 Stevenson, if he wishes to be on that side-from fulfilling their natural abilities and contributing to society as they want to, yet if you have equality of opportunity and only that, without a care for equality of outcome, you will create that kind of society that Wilkinson and Pickett identify as being grossly inadequate.

Photo of Lord Tebbit Lord Tebbit Conservative

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.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Labour

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.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 5:15 pm, 11th January 2010

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,

"particular regard to ensuring greater equality of income as a means to promote well-being and sustainability".

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 doubt that there are disadvantages that result from socio-economic situations. The noble Baroness, Lady Meacher, referred to some of these, as did the noble Baroness, Lady Whitaker-for example, and perhaps particularly, in the area of health.

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".

What exactly is intended to be excluded by that I am not certain, because I think that, if this were a duty at all, it would probably be a public law duty. However, the object of that clause seems to be to prevent the learned friends of my noble friend Lord Tebbit from getting a paid holiday. Whatever the reason, it seems to me to require clarity, because unless the clause contains enforcement procedures, it will not justify the expectations that were raised of it at the outset. What the noble Lord, Lord McIntosh, said about outcome and opportunity and the work of the late Lord Young of Dartington falls to be taken into account in this connection, because I rather think that, in seeking to eliminate the socio-economic disadvantage, you need freedom of opportunity and freedom of outcome.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I wonder whether the noble and learned Lord agrees with me that not only does Part 1 create no enforceable private right or a right not to be discriminated against on the grounds of wealth or social class, but that the public duty can be satisfied by any public authority simply by showing that it has due regard to the desirability of, and takes account of, guidance. In other words, is not this a duty writ in water that cannot be enforceable unless the local authority takes leave of its senses and simply disregards the duty altogether?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My view, for what it is worth, is that, as presently drafted, it would be very difficult indeed to make this an operative sanction in a particular case unless it were ignored altogether. I wonder whether that is desirable. I am not sure what Clause 3 is intended to get at, because some people think that a private enforcement of a public law duty is some kind of private law, whereas others take a different view. That is why lawyers spend so much time arguing one way or the other. It is very important that whatever is being addressed is clear. As far as I am concerned, this is not at all clear at present.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

This has been an absolutely fascinating discussion. Listening to people's histories, I have ranged between fury and misunderstanding. Having listened to this legal interchange, the question now is whether the clause stays in or comes out. That surely must be for the Government to decide.

I am increasingly of the view that some change is needed. Yes, it should be aspirational-I think we all agree with that-but I am also attracted by what the noble Lord, Lord McIntosh, said, because the drive towards equality of outcome must be at the back of all our minds. That is what we want to achieve. We know, for example, that you have only to consider the millions of times that we have debated the many Bills about prison and prison reform that have gone through your Lordships' House to understand how many of those in prison have been economically disadvantaged to an appalling extent and that we have failed entirely to deal with their problems at an early stage.

It is important that at this stage, not least when the economic situation is so appalling, to encourage all public authorities to do their duty by not cutting back on the things that they have already planned and ensuring that a proper proportion of resources goes towards this vital area of achieving equality of opportunity in one way or another.

I am delighted that the noble Lord, Lord Lester, appears slightly to have changed his mind. His initial response was most off-putting, because I had thought that the clause was clear-it was aspirational and it was encouraging that those who command so much of our public spending had moved in the right direction. I have always had the greatest respect for the noble Lord throughout all our debates on anything to do with equality, equality of opportunity between men and women, and in all other areas. I hope-please-that the Government will look again at whether there can be changes. On the whole, I want to keep this clause, but it should make more sense.

Photo of Lord Borrie Lord Borrie Labour

My Lords, I was sorry to hear the noble Lord, Lord Lester of Herne Hill, suggest that the clause was "writ in water" if it was not legally enforceable by some individual. It followed, I suppose, my noble friend Lord Morris of Handsworth, who said that he was disappointed that there was a lack of legal enforceability in this clause. Of course, they are absolutely right, but that is by no means unprecedented. It has been a common situation and the clause, if it is useful, should not be removed simply because it is not enforceable by an individual in a court of law.

In the several parts of Clause 1, a number of institutions are mentioned, particularly local authorities, which are democratically responsible through councillors to the general public. The local press will or may be interested on behalf of the public in whether a local authority that is listed follows the instructions of Parliament-I call them instructions deliberately to be strong about this matter-that may not be legally enforceable by individual court actions but are intended to mean something. Doubts have been expressed as to the precise meaning of this clause with reference to socio-economic inequalities. There have been interesting aspects to the debate on that issue. However, the clause is completely supported by precedent.

I recall that, years ago when various industries were taken into public ownership, Clause 1 would invariably say something like this-I will quote from the Bill establishing the Central Electricity Generating Board:

"The CEGB's principal duty is to develop and maintain an efficient, co-ordinated and economical supply of electricity".

Almost all these Acts had a clause of that kind, which was meant to be an aspiration and a target, not something that was legally enforceable by criminal or civil action. The clause was sometimes referred to by lawyers-it is not a bad phrase just because it comes from a lawyer-as "a duty of imperfect obligation". It indicates to the bodies themselves-in this case they are listed in the clause-and to the people to whom they are responsible, that the clause means something.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 5:30 pm, 11th January 2010

Does the noble Lord agree that the problem is that, unlike in those other statutes, the target duty here is so vague that it can be satisfied by box ticking? It is not so much that an individual would be unable to enforce it but that a judicial review would have nothing to latch on to. Therefore, this is entirely aspirational. It is none the worse for that, but we are not talking about a legally enforceable duty, unless a public authority took leave of its senses.

Photo of Lord Borrie Lord Borrie Labour

I agree that it is not legally enforceable, in either civil or criminal law, and I am sure that the noble Lord's advice would be that any attempt at judicial review would not work.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I spoke about this aspect of the Bill at Second Reading. I conceded then-as other lawyers have done today-the difficulty of enforceability. However, sometimes the purpose of legislation is more than the ability to take something to court. Sometimes it can contain statements of ambition that express our values. That is why I said that this was vital and expressed disappointment that the noble Lord, Lord Lester-a great and good friend, who, as the noble Baroness, Lady Howe, said, has been a great inspiration as a lawyer speaking on equality over all these years-would, along with others on the Liberal Democrat Benches, vote against this. That was what was said at the time. I am glad that a shift has taken place, perhaps as a result of holidays in Ireland. I am glad that the Irish have had this impact, because we are talking about having in legislation a statement of what we want the good society to be like. That is why I am happy to hear that the Liberal Democrat Benches will not oppose this, because it isolates the Conservative Benches. I say to the Conservatives: do you really want to be isolated on this issue, which is a statement about the kind of society that we want to live in and that, in particular, we want to see our children living in? That is what this is about.

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, it is more than 100 minutes since the noble Baroness, Lady Warsi, invited the Minister to explain what the clause is about, what it will lead to and how it will work, as opposed to what it is not about. We heard of the many things that it is not about. We also heard that it will not do much harm. If it will not do much harm, what good will it do? That is what we want to know-how it will work and how the public authorities will address the wonderful aspiration that no one would disagree with and that we all share.

I will leave aside the consequences of non-enforcement, which are important. However, as the noble Lord, Lord Lester, will be aware, it is more than 30 years since the phrase "race equality" appeared as an exhortation in Section 71 of the Race Relations Act 1976. In many ways, that section is phrased like this clause. It took a long time to determine exactly what it meant. Today, in 2010, many local authorities make "appropriate arrangements" by saying, in effect, "We have considered this and our appropriate arrangements are to do little or nothing because that is what we consider to be appropriate". It is quite right that we should consider what this means for us. We all want a society in which we are working towards reducing and, if possible, eliminating inequalities, whatever they are. One cannot dismiss the fact that looking at outcomes is important.

Many speakers today have said that this is a land full of opportunity. Regardless of whether it is full of opportunity or has considerable opportunity, and whether that is for all, no one can deny that opportunity is there. Many opportunities have been placed before many people, but there is still a huge and widening gap between those who have and those who have not-those who are rich and those who are not. That reflects the failure of government to deal with the issue of socio-economic disadvantage over the past 12 years. Now they have stuck this in the Bill without the explanations that we need of what it means, how it will work and how we will get the result.

It is fine to talk about outcomes-I have no problem with that-but we cannot get to outcomes without opportunities. Here I am reflecting what other people have said: the two must go hand in hand. We can have the aspirations that we have and we can create more opportunities as we need to, but we must address outcomes as well and we must be able to measure those outcomes. The way that we get there is the process that we go through and that process is about the values in our society, the principles and the people who make the daily decisions and how they do that.

My experience of being involved in organisations where decisions are made every day that impact on people's lives is that when people do not apply the principles and values that are linked to the aspirations, decisions are made when the opportunities are there but the outcomes remain the same. That is why it is important that we hear from the Minister about what the clause means and how it will work. That will determine where I stand in supporting either the clause or the amendment. I acknowledge, accept and support exhortation built on aspiration-it is something that I want to see in the Bill. However, it is purposeless without a clear explanation of what it means and how it will work and make a difference. If it will do no harm and make no difference, it is not worthy of inclusion and is, as the noble Lord, Lord Lester, says, something written in water.

Photo of Lord Elton Lord Elton Conservative

When the noble Baroness comes to answer, will she give great weight to the question asked by my noble and learned friend? I will rephrase it and ask: why have the Government decided to tackle the symptoms and not the disease?

Photo of Baroness Northover Baroness Northover Spokesperson for International Development, Liberal Democrat Lords Spokesperson (International Development)

My Lords, I did not intend to intervene, given the length of time that we have spent discussing this. However, I will make the point that this extremely important Bill is about the ways in which socio-economic disadvantage affects different groups in different ways. There are many detailed policies in the Bill. Therefore, after the noble Baroness has summed up, we should move on to consider all the detailed policies that my noble friend Lord Lester has done so much, over so many years, to champion. I hope that we will move speedily through, so that the Bill will come into effect and make a difference to all the groups of people who are addressed by the overarching aspiration about socio-economic disadvantage. That is what the Bill is all about.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

This has been an extraordinary discussion and a very good one. It is clear that most of us agree that there is a problem to be addressed. We are against sin and we are against socio-economic disadvantage.

The clause in question is of great value. This is not about window dressing or vacuous promises. It is about strategic decisions. I take issue with the noble and learned Lord about that, because I think that important things need to be decided strategically by local authorities and other authorities to which the Bill applies. Strategic decisions are of importance here and those strategic decisions will ultimately change people's lives, thus benefiting individuals, their families and their communities. It is about strategic decision-making that will lead to practical impacts on the lives of those individuals. My noble friend Lady Gould is right to say that it is not a panacea but a material step forward.

Of course, I recognise that this clause does not go as far as my noble friend Lord Morris of Handsworth would want. It is not a revolutionary tool-I accept that. We should not oversell the clause but nor should we lose sight of its importance. It is, as my noble friend Lady Kennedy of The Shaws said, about values and the good society towards which we are all striving. Will it simply result in another box-ticking exercise or yet another action plan? No, it will not. Currently there is no legal requirement for the public sector to address entrenched poverty and disadvantage. We are confident that this duty will change behaviours, as it will force all the relevant public authorities to think about this issue and to try to tailor their policies to improve the life chances of the most disadvantaged.

Is this clause, which we have heard much talk about, writ in water? I am very grateful to my noble friend Lord Borrie for giving his views and for his statement about the duty of imperfect obligation. We believe that this duty will have a significant effect on the way in which public services are planned and delivered. We are working with the Audit Commission and the other public sector inspectorates to develop suitable monitoring mechanisms for the duty, utilising data that in many cases they already collect. The public will hold these bodies to account through the ballot box and through third sector groups, such as residents' groups and so on. Ultimately, of course, judicial review is available to challenge decisions.

The noble Baroness, Lady Warsi, asked for specific examples of how this new duty will have an impact-that is, how it will affect the way in which public authorities act. The first example that I would cite-it is one with which I am sure the right honourable Leader of the Opposition, Mr Cameron, would agree-relates to healthcare. Health authorities might allocate additional funding to areas with the worst health opportunities and outcomes. Mr Cameron mentioned that on Monday. It is precisely what this duty is there to address.

Various examples are cited in the guide published on Friday. I apologise to noble Lords that it was published rather late, but I am pleased that it was made available before the Committee stage. There are interesting examples in the guide and I shall cite just one, which is about people getting to hospital:

"The Braunstone Bus and the Wythenshawe Local Link are examples of services which address social inclusion in deprived neighbourhoods. Both enable trips to local hospitals which would otherwise be costly and time consuming. Forty-two per cent of those surveyed on the Braunstone Bus and 23 percent of those using the Wythenshawe Local Link said they would not be able to access healthcare without the bus".

Perhaps that should be a matter of best practice throughout the country, but the fact is that it is not best practice and therefore people have to be encouraged to act in a different way. That is precisely what this new duty is all about.

I hope that noble Lords will forgive me as I look through my papers-I have made so many notes to myself.

The noble Baroness, Lady Warsi, also asked what the duty is about. I draw noble Lords' attention to a very useful summary on page 19 of the guide:

"The duty is about public bodies: focusing on key strategic decisions; drawing on the available evidence, and being able to demonstrate this has been taken into account; considering how they can better target their policies and resources to help those who are most disadvantaged; balancing the desirability of that aim against other objectives; working closely with their key partners to deliver change where possible; working within existing resource allocations and budgets"- that is a very important point-

"and working within existing planning, decisions-making, and reporting processes".

This is not about new money; it is about making better use of the resources that are already available. The summary continues:

"The duty is not about: creating a new equalities strand or protected characteristic; creating new justiciable rights for individuals; addressing discrimination against individuals on account of socio-economic factors; superseding all other strategic priorities; creating burdensome new monitoring or reporting processes; directly affecting or determining operational decisions or everyday decisions; or requiring public bodies to use their resources to remove unequal outcomes in every case where they are identified".

This is about public bodies working with their key partners to deliver change. It is about drawing on the available evidence and focusing on key strategic decisions, considering how better to target policies and resources to help those who are most disadvantaged. It is also about better, more effective spending, not about more spending.

Some noble Lords-the noble Lord, Lord Waddington, for example-have not had an opportunity to read the guide, which would answer many of the questions that have been asked. The guide explains in detail what we mean by socio-economic disadvantage, inequalities of outcome and decisions of a strategic nature and so on. It outlines the core principles that the public bodies will need to follow to demonstrate that they have given due regard to this issue when taking their strategic decisions.

Before I address the amendments, perhaps I may go back a little to the raison d'être for this clause. Research shows that socio-economic disadvantage has a huge detrimental impact on people's life chances from early childhood through to later life. I am grateful to the noble Baronesses, Lady Meacher and Lady Greengross, for their references to the Marmot commission, which provides a very strong evidence base. I am also grateful to my noble friends Lord Graham of Edmonton and Lady Whitaker for their further evidence and for the views expressed by my noble friend Lord McIntosh. We believe that it is vital that public authorities prioritise tackling the persistent inequalities associated with entrenched poverty and disadvantage. We have been doing this over the past 12 years but there is much more to be done. Many parts of the public sector do this to some extent, but the new duty will not cut across existing arrangements. On the contrary, it will support those arrangements, promote and increase good practice and put that work on a statutory footing. The measure is necessary-

Photo of Lord Tebbit Lord Tebbit Conservative 5:45 pm, 11th January 2010

The noble Baroness has just said that this is what the Government have been doing for the past 12 years. Let us accept that that is so. In that case, why has it all got worse? Why is there now less social mobility than there was 12 years ago?

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, I fundamentally disagree with the noble Lord. I think that many things in our society-many societal problems-have improved under this Government.

Without this duty, we will never fully tackle the underlying causes of many of the inequalities addressed elsewhere in the Bill. It is true that for each of the equality strands, unique factors need to be addressed to secure the rights of people in those categories and to promote their well-being. However, inequality does not come only from age, gender, disability, sexual orientation or race. At the root of many of those singular inequalities is a much broader one-persistent poverty, or what we refer to as socio-economic disadvantage. To examine the roots and causes of those inequalities, the Government set up the National Equality Panel in 2008, chaired by Professor John Hills. The panel has examined how factors such as who you are, your family background and where you live shape outcomes on how much you earn and how long you live. It also examined how those disadvantages link to the discrimination and disadvantages faced by particular groups, such as ethnic minorities and women.

One clear theme that has emerged from the work of the panel is how socio-economic disadvantage in childhood translates into lifelong disadvantage. Children from poorer backgrounds are less well prepared when they start school; they do less well at school; they then go into poorer jobs and the gap between them and their better off peers continues to widen during their lives; and so the cycle continues. It is that cycle of disadvantage that the socio-economic duty can help address. When the NEP reports at the end of January, I am confident that it will provide a robust analysis and the evidence base for further action.

The duty will ensure that we go beyond simply tackling discrimination against particular groups. It will ensure that key public bodies take a proactive, strategic approach to addressing the underlying socio-economic factors. That is why many third-sector organisations that campaign on single group issues, such as the Runnymede Trust, Race on the Agenda and the Child Poverty Action Group, support this duty. Many organisations that have day-to-day contact with the people who would benefit from this duty support these clauses. The organisation 11 Million, led by the Children's Commissioner for England, Professor Sir Albert Aynsley-Green, supports the Bill and has said that it could helpfully focus attention on the structural causes or aggravators of socio-economic inequality, and on the capacity of central and local government and service providers to alleviate and prevent them. Oxfam supports it. Equanomics UK, which campaigns on race equality issues, welcomed it, noting that it signalled an attempt to reach the root causes of inequality. Social mobility is derailed without economic mobility, and diversity cannot be valued until people recognise the value and economic contribution of BME and poor communities.

Photo of Lord Elton Lord Elton Conservative

The body that the Minister was quoting said that the Bill would lead organisations to tackle the root causes of socio-economic inequality, but that is exactly what it does not do. It says that they will tackle the results of this. My question, prompted by my noble and learned friend, was why does the Bill not go straight to the problem of socio-economic disadvantage, and then all the rest will fall away?

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

I was not ignoring the noble Lord's question, which I shall come to shortly. We believe that it is important to address both the issues, which is precisely what we are doing, but in different ways.

The CAB welcomed this clause as an effective tool to ensure that public services and policy-makers have an overriding objective to tackle the systematic problem of socio-economic disadvantage. Citizens advice bureaux are at the front line of dealing with the effects of unfairness and inequality.

As the noble Baroness, Lady Warsi, might put it, we have addressed the rot in the past 12 years and we have been treating both the symptoms and the diseases in that time. The Government can be proud of their track record on reducing inequality. I could cite many things, including the national minimum wage, which has helped around 1 million low-paid employees; 900,000 pensioners and 500,000 children have been lifted out of poverty, and we have put in place measures to help another 500,000 children escape it. We have increased spending on early learning and childcare to more than £5 billion and we have opened more than 3,000 Sure Start centres, many in deprived areas. We have taken many very significant and effective initiatives, but we recognise that there is more to be done and the socio-economic duty is one way of addressing some of these issues.

Amendment 1 raises issues concerning the policy intent of public sector duty regarding socio-economic inequalities. It would subtly change the focus of duty from reducing the inequalities of outcome to reducing inequalities of opportunity. I have some sympathy with the objective behind the amendment but it is unnecessary. The right reverend Prelate is right when he says that the clause is about both outcomes and opportunities. The point is that inequalities of outcome in terms of wealth, health, housing and so on are directly measurable, whereas measuring the underlying disadvantage in a way that is useful to the public bodies implementing the duty is difficult. Hence we are focused on the outcome. On Second Reading, the noble Baroness, Lady Warsi, said that we must ensure that the Bill brings real outcomes. We believe that this clause will do that.

We are very much committed to promoting equality of opportunity. Indeed, we use that term elsewhere in the Bill. There is obviously a clear link between opportunities and outcomes. Put simply, more equal opportunities promote more equal outcomes as people take advantage of those opportunities. More equal outcomes are good evidence for genuinely equal opportunities, but we need them to be genuine and achievable. It is not enough to say that anyone can apply to a top university or for a top job in one of the professions to promote social mobility. We need to make the chances of success, and the aspirations necessary to achieve them, real for everyone. In short, we need a more level playing field. That is what the duty is designed to do-to influence the big strategic decisions that key public bodies make, which influence people's lives. To do that, and to measure their success in achieving that, they will need to focus on tangible, measurable outcomes. That is why Clause 1 focuses on outcomes rather than opportunities.

Amendment 2 would require the relevant public bodies, when making decisions of a strategic nature, to give particular weight to the question of how their decisions could help reduce income gaps between the rich and the poor with the aim of promoting well-being and sustainability. Once again, of course I have some sympathy with the amendment. A number of noble Lords referred on Second Reading to the work of the Equality Trust, which was summarised in a book, The Spirit Level, much quoted in this Chamber. The gist of the authors' impressive research is that societies that are more equal in terms of income distribution tend to be better societies in every way-richer, healthier, happier, more cohesive, less prone to violent crime and so on. I concur with that analysis, which is why we need the socio-economic duty.

The purpose of the duty is to ensure that certain key public bodies, such as government departments, local authorities, police authorities, health authorities and so on, consider how they can best help people fulfil their potential and remove barriers that hold some people back, through their strategic decisions. The noble and learned Lord, Lord Mackay of Clashfern, spoke of the importance of reducing income in securing improved economic outcomes. But that duty is about more than ensuring that income gaps are reduced, although that is an important factor. It is about helping people get on, get educated, get a job, improve their health and so on. Income is a very important factor that can hold people back, but people can be held back by many things, such as lack of ambition and expectations, and a whole mix of factors related to their health, education, family background and so on, which limits their life chances. For some public bodies, it could be income inequalities, but for many bodies it will not be.

Amendment 3 relates to Clause 1(4). That subsection is important because it ensures that when the long-term vision for an area set out in its sustainable community strategy is being drawn up, all parties involved give due consideration to the desirability of addressing socio-economic inequalities. This long-term strategic planning is vital to achieving the changes that we want. The amendment proposes that we remove that provision-that would leave the local authority alone in taking the agenda forward, which cannot be right. We have been careful to limit the number of public bodies covered directly by the duty, because it will have the most impact if it is built into a high-level decision-making process that has a far-reaching effect across the delivery of public services. But it is vital, when all those local public service partners come together, to make strategic decisions about the long-term vision for an area and that they give due consideration to tackling socio-economic inequalities. Therefore, I do not think that the amendment is very helpful.

Amendment 4 concerns the policy intent of public sector duty regarding socio-economic inequalities. It is intended to prevent the socio-economic duty from having an effect until definitions of "socio-economic inequalities" and "socio-economic disadvantage" are laid before Parliament. The amendment is unnecessary as Clause 1(2) states that the public bodies covered by the duty must take account of guidance issued by a Minister of the Crown when deciding how to fulfil that duty. As I have already made clear, we intend to issue guidance to support the duty. We will consult widely on it and we will issue it in good time. Indeed, officials have already been engaged with the various public bodies covered by the duty, and their representative bodies, to develop the basic principles that will underpin the guidance. These were published last week in the guide to the duty, to which I referred earlier.

Plainly, guidance that can be updated to reflect the changing circumstances would be the most appropriate vehicle for setting out what these terms mean and how we expect the bodies covered by the duty to implement it. We want socio-economic disadvantage to be considered in a common-sense manner in a way that is relevant to each public body's functions. Laying a formal definition before Parliament, as required by the amendment, could lead to an inflexible interpretation and would limit a Minister's ability to update guidance in order to make it relevant to changes in society. However, we are clear about what these terms mean and I am happy to outline them briefly.

The term "socio-economic disadvantage" may not immediately resonate with some people, but it accurately describes the situation of those we want to target for this duty. It is partly about basic inequality-that is straight poverty-but it is also about the lack of aspirations and expectations and about the complex interplay of factors such as health, housing, education and family background that so often combine to keep people in poverty and limit their chances of upward social mobility. It is about the way in which social and economic factors combine. I believe that the concept is clear and we will work with the public bodies concerned to ensure that the guidance makes that clear to them also, and helps them to identify which aspects of socio-economic disadvantage they should be influencing.

The term "socio-economic inequality" is used only in the title of Clause 1. In that context, it is perhaps just read as shorthand for "the inequalities of outcome which result from socio-economic disadvantage". The point is that inequalities of outcome in terms of wealth, health, housing et cetera are directly measurable, whereas measuring the underlying disadvantage in a way that is useful to public bodies implementing the duty is very difficult. That is why in this instance we have focused on the outcome. Inequality of outcome is fairly explanatory. "Outcome" is a term commonly used by government to describe the results and end product of strategies and policies, particularly in relation to the social mobility agenda. So what we are getting at here is the unequal distribution between individuals of the end product of public authority strategies, policies and practices.

Finally, I have to say that when the noble Lord, Lord Tebbit, speaks of Clause 1 as being pernicious and anti-libertarian, I do not recognise the clause in terms of those adjectives. I think that the duty will hugely assist people like the noble Lord, me and many other people who came from far worse circumstances to achieve. It will therefore help to improve the society in which we live-the communities from which we come.

Photo of Lord Tebbit Lord Tebbit Conservative 6:00 pm, 11th January 2010

I thought that I had made it clear that if there is equality of outcome, there is no point in having equality of opportunity. That is what is pernicious about this Bill.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

As I explained earlier, this Bill is about equality of opportunity as well as opportunity of outcomes. The whole Bill is about equality of opportunity. This particular clause relates to equality of outcomes because, as the noble Baroness, Lady Warsi, said on Second Reading, outcomes are measurable. We must ensure that this Bill has a tangible impact on people's lives, and that is why we are discussing outcomes.

Some noble Lords referred to a comment which my right honourable friend the Solicitor-General made in Committee in the Commons. She made many other comments, not just that being quoted by many noble Lords. She said,

"We believe this is a strong measure ... The duty will put all the good work that we ... are doing on a statutory footing. It will help us drive progress and promote better outcomes for people who need the most help ... This is, overwhelmingly, the right thing to do".-[Official Report, Commons Public Bill Committee, Equality Bill, 11/6/09; col. 159.]

So, when noble Lords quote my right honourable friend, they are doing so selectively. I suggest that she strongly supports this clause as a strong part of the Bill.

I am sure that my explanations will raise many more questions, but they are why I believe that the matters should be addressed through the guidance to which I referred. It is currently being drafted in consultation with the affected public bodies, and we have recently published the extensive guide to the duty. Many noble Lords have copies of that-I believe that it is in the Public Bill Office and it is certainly in the Library. I hope that I have demonstrated that Amendments 1 to 4 are unnecessary and that they could lead to inflexible interpretations and stifling of innovation. I believe that they are irrelevant to many public bodies, or would be unduly burdensome. On that basis, I ask noble Lords to withdraw their amendment.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, I thank the Minister for a long response. I also thank all noble Lords from across the House for an extremely interesting and lively debate. I want to make a number of points. First, unfortunately, there is a disturbing level of discussion which appears to me like a class war. The noble Baroness, Lady Meacher, referred to some extremely interesting statistics, which are relevant. The noble Baroness, Lady Greengross, referred to some principles, which are extremely important. However, I am concerned about the comments of the noble Baroness, Lady Gould of Potternewton, who appeared to say that those who oppose the clause oppose the principle of that equality. Such comments are disturbing, as are the comments of the noble Lord, Lord Wedderburn. To suggest that those on these Benches are against the principle of equality is deeply concerning, as is the caricature of those on these Benches.

On a very personal note, I am the daughter of an immigrant mill worker from west Yorkshire-a type that some would like to suggest would not be sitting on these Benches. But I would argue that none of us is of a type to sit on any particular Benches. What brings me here is opportunity. Outcome is what my mother would refer to as kismet-a word to which, unfortunately, I cannot do justice by giving a definition in any language other than Urdu. But opportunity-and equal opportunity, I would suggest-is more than an aspiration, it is a right, and therefore should form part of a duty.

Much discussion was about aspiration without opportunity. I thank the noble Lord, Lord Graham, for his kind comments, but he referred to aspirations being relevant without necessarily being realisable or achievable. I would suggest that nothing is more disheartening or demoralising then having aspirations without any real opportunity to realise them. Indeed, the noble Lord, Lord Morris, mentioned that. The noble Lord, Lord Borrie, referred to aspirationals being referred to in previous legislation. I may not be entirely correct on this, but I understood that he was referring to legislation giving an electricity company a duty to supply electricity. I suggest that that is the purpose of an electricity company, and therefore is not simply aspirational but something that it can achieve and therefore deliver. Clearly, more clarification is required.

I touch briefly on the comments of the noble Lord, Lord Lester, who, as I said earlier, referred to this clause on Second Reading as,

"vague, unworkable, and an exercise in political window-dressing".-[Hansard, 15/12/09; col. 1416.]

The noble Baroness, Lady Howe, says that the noble Lord, Lord Lester, appears to have slightly changed his mind. The noble Baroness, Lady Kennedy, refers to a shift having taken place. The noble Lord, Lord Lester, says that he is now convinced slightly otherwise by his left-wing Irish friends, who have convinced him to take a different opinion.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

The noble Baroness teases me, but she has misunderstood. I was not suggesting that at all; I was suggesting that the danger of having aspirational legislation was illustrated by the argument that we had. She is perfectly entitled to attack me for having changed my mind, but perhaps I may say that women are not the only people who are allowed to do that.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

I am grateful that the noble Lord, Lord Lester, has accepted that he has changed his mind-that is possibly a U-turn-but left-wing Irish friend is certainly not a description that I would give to my Chief Whip.

I turn to the issue of practicability. The noble Lord, Lord Ouseley, rightly refers to whether or not the legislation will achieve what the clause purports to do. Indeed, most of the arguments put forward by my noble friend Lord Tebbit referred to that.

In my Second Reading speech, I did say that outcomes are measurable. It is important to see the context of what I was discussing there-effectively, that there is no point having something in a Bill if it is merely about box-ticking, if the clause does not achieve anything. I return to the concern that I raised when I moved the amendment, which is, in summary, that the Government state in their document that they are not creating new equalities, that the clause will not address discrimination against individuals on account of socioeconomic factors, that it will not directly determine operational decisions and that it will not require bodies to use their resources to remove unequal outcomes. Their document states that no real objective will be achieved.

Much research and opinion has been referred to by many Members around the House, which needs to be considered. I may well need to consider those references, and we may well return to this again at Report but, at this stage, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 and 3 not moved.

Clause 1 agreed.

Clause 2 agreed.

Clause 3 agreed.

Amendment 4 not moved.

Clause 4 : The protected characteristics

Amendment 5

Moved by Lord Avebury

5: Clause 4, page 4, line 17, at end insert-

"caste;"

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

My Lords, we have been talking for almost two and a half hours about how we reduce inequalities of opportunity and outcome. It would be unarguable that the people whom we are now about to discuss, those who are based on scheduled castes and Dalits, suffer from more inequalities of opportunity and outcome than almost any other section of the community. We drew attention to that indirectly when the noble Baroness read out from the list of objectives designed to be achieved by the first three clauses. I was tempted to get up to ask her what the clauses had to contribute to a group or set of groups of people who are so manifestly disadvantaged in our society as those who are to be benefited by the amendments.

The research is lacking. I hope that, as a result of the clauses that we have just approved, there will be the research which has not so far been undertaken, which will give us the hard information that the Government have said has been lacking. Although caste-based discrimination is typically associated with South Asia, where it has been prevalent for centuries, the practice does not miraculously vanish when migrants from South Asia come to states in Europe, particularly the United Kingdom, where it has been manifestly exported into our society. The lack of research means that the exact extent and type of discrimination has not been documented in the UK where, for many, caste has been a long-term, if hidden, reality.

When this matter came up in another place, the Solicitor-General said that the Government had consulted the Hindu Forum of Britain and the Hindu Council as the two largest and most representative organisations in that field, but those organisations do not speak for the lower castes and the Dalits. The Government commissioned no research of their own at all, although the Solicitor-General told another place that they had asked the EHRC not only to carry out research on their behalf but that it should be completed quickly so that, if necessary, we could introduce the necessary measures while the Bill was before your Lordships.

Since then, the policy of the Government has changed without any proper explanation. In fact, when I asked the EHRC about it, it told me that it never had any request from the Government to research caste discrimination. Can the Minister explain what caused that reversal between the proceedings on the Bill in another place and when it came before your Lordships?

People of South Asian origin in the UK number about 2.3 million, or 4 per cent of the total population. Although it is impossible to say precisely how many are of Dalit origin, as detailed research of that nature is lacking, as is all research on these groups of people, we are advised that the number is somewhere between 50,000 and 200,000. Voice of Dalit International puts the figure at the top end of that range in its evidence to the Select Committee on International Development.

Although the Government have recognised in their response to their consultation on the Equality Bill that caste discrimination is unacceptable, the only reason that they give for not dealing with it now that the opportunity presents itself is that they have found no strong evidence of such discrimination here in Britain in the context of the matters dealt with under the Bill-that is, employment or the provision of goods, facilities or services. As I said, they promised that they would consult the Equality and Human Rights Commission about monitoring the position.

The EHRC tells me that it thinks that caste is already covered, even though it has not conducted any research on the matter, nor has it consulted the NGOs that deal with caste discrimination. It believes that the Court of Appeal decision in the JFS case lent support to its approach by opening up arguments on "descent", and that what is needed is a test case to establish the position. It has offered to work with the Anti-Caste Discrimination Alliance to identify and support a case, and it will be meeting a lawyer from the ACDA in February to discuss this further. Having read the judgment of Sedley LJ in the JFS case, I was not entirely clear how an argument that turned on the racial identity of the litigant could somehow extend to caste, but I was advised that the reasoning is this: in JFS, the Supreme Court held that ethnic origin has a descent aspect; descent includes caste under international law, and descent as a UK category could therefore also be argued to include caste. Meanwhile, however, as Robin Allen QC has pointed out, cases of apparent caste or descent-based discrimination are likely to come before advisers, and they will need to know how to respond.

If the Minister prefers the amendment in the name of my noble friend Lord Lester, there must be a clear understanding that under international law caste is a sub-category of descent, which itself is a form of racial discrimination, and that this is the interpretation of "descent" that is intended by my noble friend's amendment. It is certainly the interpretation of the Committee on the Elimination of Racial Discrimination, which has treated caste as being included in descent ever since 1969. Only quite recently-in 2002, I think-the committee reaffirmed its opinion when it issued the general recommendation that affirmed that discrimination based on descent,

"includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status".

Of course, we have been a party to that convention since 1969 when the CERD first arrived at the definition. I would like to hear that argument from the Minister when she replies. I would also appeal to her to modify the statement in the Government's reply to the consultation on the Bill that they have decided,

"not to extend protection against caste discrimination", because that would mean that they were not fully complying so far with their obligations as a signatory to the CERD, by leaving it to individual victims to assert their rights in the courts.

If the Committee agrees to my noble friend's amendment and the Government acknowledge fully in this debate that caste is indeed included in descent, as the CERD and our own EHRC both consider it is, then that would probably be the best solution. However, if that is the position, the Government could have given it as an explanation for not specifically including it in the Bill, instead of saying that there was insufficient evidence and failing to commission any research. If we leave it to a marginalised people to come forward with legal cases that will establish their right to protection, that is not a policy that should be adopted by a Parliament that has always stood up for human rights. In adopting either of the two specifically caste-related amendments, Amendments 17 and 18, or my noble friend's descent amendment, the Government will lay the foundations for a solution and send a positive message not only to the 15 UK-based organisations that are appealing to us today to pass this amendment, but to millions throughout the world who are victims of caste discrimination. I beg to move.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench

The noble Earl, Lord Sandwich, has graciously suggested that I precede him in supporting this amendment, which I very strongly do for the reasons that I set out at Second Reading, which I will not repeat now. I simply want to examine some of the Government's hesitations about including caste discrimination in the Bill in the first place.

It is very widely accepted, and accepted by the Government, that the caste system has been imported into this country through the south Asian diaspora. The Government still query whether, although this is very widespread and distressing, it has actually impacted in the fields of employment, education and the provision of public goods and services, with which this Bill is concerned. That is what I want to address.

First, however, I should like to emphasise the educational effect of a law such as this. Sadly, racial abuse is still around in our society. However, if we think back 20 or 30 years ago, we can recall the extent of racial abuse and how, if not eliminated, it has at least been damped down by the Race Relations Act. That legislation has had a huge educational effect. Terms of abuse that were previously regarded as acceptable are now regarded as totally unacceptable. The evidence of children from dalit communities-I use that phrase; the old phrase, as we know, is "untouchable"-is that a very high percentage of them are the subject of terms of abuse. Some of their stories are very distressing indeed. What is even more surprising is the evidence from universities. Students from these communities find themselves ganged up against, not only abused but isolated and harassed in various ways. Including the term "caste" in the Bill in one way or another would have a huge educational effect.

Secondly, the point has been made to us so strongly that these affected communities do feel deeply discriminated against. That is what they feel and I think that the figures speak for themselves. The survey done by the Anti Caste Discrimination Alliance discovered that 45 per cent of people whom it contacted felt that they had either been treated in a negative way by their co-workers or had dismissive comments made about them because of their caste.

Noble Lords may ask, if they are feeling like this, why do they not go to the Equalities and Human Rights Commission and seek a legal case? We put that to some of the dalit community leaders who had met a group of us previously and they pointed out that, for many of them, there is the fear of losing their job. One example given was of someone from Coventry who was badly discriminated against, and in order to draw attention to it they went on hunger strike. Thank goodness it was a sensitive management which saw that something was wrong and managed to ensure that it did not happen any more. However, it should not have to depend on someone going on hunger strike to draw attention to the fact that they are being discriminated against.

The second point that was made to us was that members of this community are the product of centuries of marginalisation. Many of them do not feel confident or powerful enough to go to a body such as the EHRC in order to bring a legal case. The third point made to us was that at the moment there is no clear remedy in the law. If there was a clear remedy in the law, they might have that much more confidence to draw these examples of discrimination to the attention of the proper authorities.

The Government have said that they do not feel that there is enough evidence of discrimination in these spheres to include this provision in the Bill. They seem to have paid attention to their own report, to which there were only 19 replies gathered over only two weeks. Apparently that is one of the main reasons why they did not include this in the Bill. However, the report Hidden Apartheid-Voice of the Community by the Anti Caste Discrimination Alliance is the result of interviews with more than 300 people over a long period of time. The evidence of discrimination it brought forward simply reinforces the evidence brought forth by other dalit organisations over many years and is very distressing. The Government moved in relation to transgender people, who I suppose number 2,500, on the basis of the stories they had heard. I suggest to the Government that the mass of evidence of real, distressing discrimination now provided by the dalit organisations is far stronger than the evidence upon which they acted in the past.

I stress that I support what the noble Lord, Lord Avebury, said about the amendment in this group tabled by the noble Lord, Lord Lester of Herne Hill. There is clearly an argument for including discrimination on the ground of descent in the Bill as an alternative to the amendment tabled by the noble Lord, Lord Avebury, provided that the word "caste" is clearly mentioned as a major way in which discrimination on grounds of descent might operate. In one way or another, the word "caste" must be included.

This is a serious issue in this country. The noble Lord, Lord Avebury, said that about 200,000 people are affected. The figure put to me is that it could be up to about 500,000. There is hidden apartheid here. We all know that internationally this is a vast and distressing problem. The international struggle against caste discrimination is of even larger proportions than the struggle against apartheid. I hope that the Government will be minded either to accept the amendment tabled by the noble Lord, Lord Avebury, or the amendment tabled by the noble Lord, Lord Lester, provided that, if they accept that amendment, they make it clear that they will include the word "caste" one way or another.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench 6:30 pm, 11th January 2010

I am most grateful to the noble Lord, Lord Avebury, for his expert summary. I apologise that I was not present at Second Reading and realise that that gives me no excuse to go on at length. This raises an issue that is fundamental to the discussion we have had in the past two hours.

I have worked for years with organisations concerned with caste, such as Christian Aid and Anti-Slavery International. I know the dalit organisations that work alongside these outcaste organisations. I have recently become a patron of the Dalit Solidarity Network. I have lived in India and I am familiar with the facts there but, until recently, I had not appreciated the extent to which the caste system has been imported into this country. I have carefully read the Solicitor-General's reply in the summer to the Public Bill Committee, and I fully understand that there was insufficient evidence of discrimination from the earlier scoping survey. However, in that debate she said that,

"it is socially divisive to have legislation against something that is not happening and is needed by no one".-[Official Report, Commons, Equality Bill Committee, 11/6/09; col. 179.]

At that time, the Government seemed to have set their face against this, which seems extraordinary.

Since then, as my noble and right reverend friend Lord Harries pointed out and as was pointed out at Second Reading, the Anti Caste Discrimination Alliance, which represents 23 organisations, has published the report Hidden Apartheid. It contains new evidence of discrimination. My noble and right reverend friend has already given examples. The Minister knows that dalits form a very high proportion of Indians, both Hindu and Sikh, in this country, and they are still regarded as outcasts many years after they have left India. In other words, there are some who are outside the caste system altogether. There can be no doubt that members of such a group are, or may be, victims of discrimination. I do not think the Leader of the House gave a very satisfactory answer to my noble and right reverend friend at Second Reading when she said that much of the new evidence was still anecdotal. Some of it is, but what she said implies that most of it is not. Just now, she said that drawing on the available evidence is what is important in the Bill. She said that a research project had to be undertaken by the Equality and Human Rights Commission on caste discrimination-the noble Lord, Lord Avebury, mentioned this-but nothing has happened since Second Reading as far as we can tell. We are told that the Government are in discussion with the commission, and we would like to know the position. More research will be needed, but the principle must be in the Bill first.

My noble friend Lord Ouseley said earlier that if there are inequalities in our society, we must be rid of them, and we must be careful who gives us the information. My noble and right reverend friend Lord Harries and the noble Lord, Lord Avebury, have already said that the Hindu bodies do not necessarily speak for the dalit community, but ACDA will certainly guide the government statisticians. I hope that the Minister does not underestimate the number of organisations involved in this campaign, many of which were demonstrating this morning.

Whatever the Ambedkar reforms have achieved in India and south Asia, we know that an ancient system of caste is not going to abolished-thousands of campaigners are still working on that in India-but to find it transposed into British society is something else. Quite simply, it is morally wrong, and it cannot be allowed to happen if it is shown to lead to discrimination in our society.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I shall speak to my amendment, Amendment 16, in speaking to Amendment 5, with which it has been grouped, because it has been referred to several times and it would probably be helpful to the Committee if I explain as briefly as I can how I see the position.

First, I do not need persuading that there is a transnational problem of caste discrimination that applies in this country as well as elsewhere. Anyone who doubts that should read not only the evidence we have but also evidence of what has happened in other countries. I believe that there is a problem and that it needs to be covered by a measure dealing with racial discrimination. Secondly, when the United Kingdom drafted the race relations legislation, we had regard to the definition in the UN Convention on the Elimination of All Forms of Racial Discrimination. That is where the phrase, "colour, race, or ethnic or national origins" comes from. Later, nationality was added. The drafters did not include the word "descent", but it was perfectly plain that your ethnic descent was included within the concept of ethnicity because the concept of ethnicity is about your birthright, where you have come from and who your parents and grandparents were. If you like, the Hitler definition of a Jew is a classic example. It was not about belief but where you came from, what your origins were and what your descent was. Jewish descent is a very common example.

I am wholly agnostic about whether the right way of tackling the problem would be by inserting the word "caste" or the word "descent". I am gratified that the Equality and Human Rights Commission stated in its brief that it thought that the more satisfactory approach was "descent" rather than "caste" for the reasons that it gave. This is not a competition between two different kinds of amendment.

In case law, many years ago, when Lord Slynn of Hadley, then Sir Gordon Slynn, was president of the Employment Appeal Tribunal, he explained, in a case called Seide v Gillette, why Jews were part of an ethnic group because of their descent. The same is true of the House of Lords Mandla v Lee case when the Law Lords were dealing not only with Sikhs as an ethnic group but with Jews. It came to a head in the Jewish Free School case, not just in the Court of Appeal, to which my noble friend referred, but also in the Supreme Court. The puzzle in that case was whether the admissions policy of the school was racial or religious, given that the religious test used included a matrilineal test as to whether a person had a Jewish mother and grandmother, as certified by the office of Chief Rabbi. The Supreme Court looked at the Convention on the Elimination of All Forms of Racial Discrimination and the fact that caste was meant to be covered in the word "descent". It did not have to deal with that in that case, but it decided that Jews were a group who could be defined by their ethnic descent as well as by their religious belief, which is not surprising. That is the conclusion to which they almost all came.

In the Minister's reply, as my noble friend Lord Avebury and others have emphasised, it will be important to hear the Government's understanding of whether and to what extent discrimination because a person does not belong to a particular caste or belongs to the wrong caste is capable of falling within the concept of race as it stands. Am I not right in saying that if there were to be litigation about this, the correct approach for the English courts to take would necessarily be to have regard, as they did in the Jewish Free School case, to the definition in the Convention on the Elimination of All Forms of Racial Discrimination? They would do so because we are bound by that convention and by an obligation to give effect in domestic law to the definition in the convention. If I am right in saying, as I think I am, that our courts would do their best to make sure that our statute law fitted the Convention on the Elimination of All Forms of Racial Discrimination-the international obligation in interpreting any ambiguity or doubt about the definition-in doing so would the Government not look at the word "descent" and make sure that whatever the Bill now says "descent" is included if it makes any difference? I believe that they would.

If those two steps are correct, the third step is why not make it clear in the Bill, either by including the word "caste" or the word "descent" so that we do not have to have litigation up to the Supreme Court to decide a fairly obvious question. It is very important that the Minister's reply should be on the record and have regard to the comments made by the noble and learned Lord, Lord Mackay of Clashfern. Pepper and Hart, with all its imperfections, at least leads to the opportunity for the Minister to make a Pepper and Hart statement as to the Government's understanding of whether caste and descent are already included. If we get a clear reply to that, does that need to be embodied in statutory language? Before reaching a decision on that, it is very important to have on the record the Minister's reply on whether and to what extent the Convention on the Elimination of All Forms of Racial Discrimination covers caste and descent-the answer is obviously yes-to what extent it binds us-the answer is that it does-and to what extent must it be taken into account in interpreting our law-the answer is that it must. Surely, if what I have said is right, there should be no problem in accepting either the amendment proposed by my noble friend Lord Avebury or my amendment.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Does descent include factors other than caste?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Yes, indeed it does. The Jewish example is very good. Jews are a classic example of a group defined by religion and ethnicity. Their ethnicity includes their ethnic origins, which includes their descent. Descent is simply another way of expressing the same thing.

Photo of Baroness Flather Baroness Flather Crossbench 6:45 pm, 11th January 2010

My Lords, having made a speech on this subject at Second Reading, I should like to add my voice on this issue. I am possibly the only speaker who has seen other people experience caste discrimination, although I have not experienced it personally. Many years ago, I taught in a secondary school where a number of boys, according to other boys, came from lower castes and they were bullied and mistreated. I cannot believe that all of a sudden these things have gone away. It is very sad to think that, while the Solicitor-General in the other place said that the Government were going to ask for more information and research and the noble Baroness the Leader of the House said that the Government were going to speak the Commission on Human Rights, they have not done so. Even if they had, there would not have been time for a proper research project. If the worst comes to the worst, at least we should have the option to bring this issue back under a further provision. This will be the last chance to put things right because I do not think that we will see an equality Bill like this in the near future. It is enormous and covers more things than we can imagine, but it does not cover caste.

I should like to share with noble Lords something which will bring home the fact that all information gathered by the Government has been gathered from the wrong sources. Last Friday, the National Hindu Students Forum, which is related to the Hindu Forum, wrote an article in Asian Voice. It makes accusations against all organisations working for dalits, scheduled castes or lower castes, whatever we may call them-the fact is that they are people who are considered not to be equal by other Hindus. It states that all these organisations are set on attacking Hinduism and that their whole purpose is to attack the Hindu Forum and the Hindu Council. This is a students' forum and we need to worry about this issue if the young are thinking like that.

The organisation says that this is not an issue in this country. But I should like to ask in a letter how many non-caste Hindus-a word commonly used by upper-caste Hindus-does it have as members of its organisation? If it calls itself Hindu, all Hindus of whatever caste should be able to belong. I am sure that the answer will be none. I have seen boys bullied and I have heard of many cases where people have been bullied at work. It would be a great sadness to allow this Bill to go through without making provision for caste. Unfortunately, as in India, the problem is not going away. In India, you are not allowed to discriminate on the basis of caste, but discrimination is still there. There are quota systems in education and jobs so that people from lower castes can move up the ladder. They are there because there is accepted discrimination and, unfortunately, people have brought that with them here. We would be very remiss if we do not do something for them.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I add my voice in strong support of the amendment tabled by the noble Lord, Lord Lester. Both personally and through the Equality and Human Rights Commission, I think it is very important that we look at descent, which is broader and would cover caste, and thus kill two birds with one stone. Through the commission I was marginally involved in the case of the Jewish Free School, so it is important that descent is part of the legislation. I hope that the Government will consider it seriously.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, it is important that a voice from these Benches should be heard in support of this amendment. There was a lot of talk in the previous debate about equality of opportunity. We are talking here about groups of people who, because of their birth, have absolutely no possibility of any equality of opportunity at all, and no hope of getting any sort of education or job if they ever complete their education. We have been given a great deal of background information by a number of noble Lords-the noble Lord, Lord Avebury, the noble and right reverend Lord, Lord Harries, the noble Earl, Lord Sandwich, and of course the noble Baroness, Lady Flather. All this is incredibly important and comes from people who know what they are talking about. The information is clearly available and I hope, therefore, that the Minister will be inclined to say, this time around, that the Government will give serious consideration to what has been said in this debate with a view to coming back on Report, if need be, with perhaps their own wording in order that caste is at least put on to the face of the Bill. Surely it is appropriate that an Equality Bill should deal with this.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, if the amendment of the noble Lord, Lord Lester, is thought to be appropriate, it would be good to add the words "including caste" so that it is made absolutely plain to the people affected. They might have some difficulty in seeing through the word "descent" to caste, especially in view of what has been said about the alleged connection between caste and religion, which as I understand it is what is asserted in the article. It is therefore important that people should be clear on what the Bill is saying about this.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, we have heard a full and interesting speech from the noble Lord, Lord Avebury, and very insightful comments from the noble and right reverend Lord, Lord Harries, on the issue of caste. It is vital that we consider these issues as this Bill makes its progress through your Lordships' House. Similar amendments were debated in another place, but the Minister's response was to leave the issue open so that, if further research proved it to be necessary, caste discrimination could be dealt with through measures in the other place.

The issue of caste discrimination is a complex one. Letters and briefings from the Anti Caste Discrimination Alliance, which I am sure many noble Lords will have received, state categorically that there is a serious and widespread problem which must be dealt with through this legislation. It maintains that if caste is not made a protected characteristic in the Bill, then caste discrimination will be allowed to flourish in the workplace, in institutions of education and in the provision of services. Can the Minister inform the House of what studies have been commissioned by the Government either from the Equality and Human Rights Commission or other bodies and, if such studies have been commissioned, what are their findings? In another place, the Minister informed the House that research would be needed to assess the most appropriate course of action, and I look forward to hearing about what has been done since those comments.

The noble Baroness, Lady Flather, made an important point. The Government appear to have consulted the Hindu Forum of Britain and the Hindu Council UK. Consultation must go beyond discussions with umbrella organisations, and this is not the first time that I have raised the issue. It appears symptomatic of this Government's approach that they consult organisations that purport to represent groups, but invariably when you speak to the communities concerned they allege that the organisations do not represent them. That is possibly a lazy route to take in order to get to know the communities that make up the multi-ethnic Britain we have today.

This is a particularly important issue because the report entitled Hidden Apartheid-Voice of the Community-Caste and Caste Discrimination in the UK from the Anti Caste Discrimination Alliance illustrates that there is a real and widespread problem, whereas that does not appear to come back from the Government's consultations. The survey shows that 71 per cent of respondents thought that they belonged to the dalit community, 58 per cent stated that they had been discriminated against because of their caste, and 45 per cent stated that they had been treated in a negative way by their co-workers or had had dismissive comments made to them on account of their caste. We should note that the survey was an online questionnaire conducted on only 300 people and nine focus groups between August and October last year, but nevertheless the figures seem to reveal a serious problem. Given that the reason for not including caste is that there was not enough evidence available to warrant it at the time, does the Minister agree that it is important that further research should be carried out, if it has not already been done? We hope to hear about the results of any research, and it is important that those results are given now because they will inform our discussions and make it possible to make this important decision.

A further point which should be raised is that the intention of this legislation is to simplify and consolidate equality law so that it can be understood by all. We must ensure that any decision to extend the list of protected characteristics is taken seriously. There may well be a good case for caste and descent, and if so, they should be taken into consideration. However, there is a worry that other characteristics may also have a good case. The list obviously cannot be extended indefinitely and, if we hope to maintain a level of clarity about rights and responsibilities, it is important that this debate is informed. For these reasons, we can give some support to the amendment tabled by the noble Lord, Lord Lester. I would be interested to know whether the Minister can inform the House whether she thinks that there is a case for including caste in this way, and perhaps she might be able to inform us whether this is already the case; namely that caste discrimination is already covered in some way, because of the characteristics it shares with race and religion. I look forward to the Minister's response.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, these amendments are all linked. Amendment 5 seeks to add caste to the list of protected characteristics covered by the Bill. Amendment 29 seeks to include caste as a relevant protected characteristic for dual discrimination claims. Amendment 40 seeks to include caste as a relevant protected characteristic for indirect discrimination. Amendment 49 would prohibit direct and indirect discrimination because of caste, and Amendment 52 would prohibit harassment because of caste. Amendment 17 attempts to define caste for the purposes of the Bill, while Amendment 18 provides Ministers with a power to add caste to a list of protected characteristics in the future, and Amendment 16 would add descent as a further aspect of the protected characteristics of race, so that the Bill would prohibit unlawful discrimination, harassment and victimisation based on descent as well as colour, nationality and ethnic or national origin. I will address Amendments 5, 40, 49 and 52 together, then turn to Amendment 16 in the name of the noble Lord, Lord Lester, and address separately Amendments 17, 18 and 29.

The first group of amendments would mean that the provisions within the Bill which prohibit unlawful acts such as discrimination, harassment and victimisation would in all cases apply to the characteristic of caste unless further explicit restrictions were made to subsequent clauses. These amendments were previously tabled and debated during consideration of the Bill in the Commons in Committee and on Report. We now have a further opportunity to discuss the issue. As my honourable friend the Solicitor-General said during the debate in Committee in another place, the Government are willing to consider whether there is a case for legislating on caste discrimination. As noble Lords have said and as I am aware, the issue of caste was raised during the wide-ranging consultation held on the Bill. Some issues were raised, but none at the time were appropriate to justify inclusion in the Bill.

At the moment, evidence of discrimination because of a person's caste appears to be predominantly in areas such as marriage and social and personal interactions rather than in those areas covered by domestic discrimination legislation, such as the provision of goods, facilities and services, education and schools, the management and disposal of premises, the exercise of public functions, employment and vocational training. We do not condone any discrimination or prejudice because of personal characteristics or identity, and it is clear that issues such as personal relationship choices and insults or snubs are part of social interaction and therefore would not fall within discrimination law. However, I am aware that since the Committee debate in the other place, the Anti Caste Discrimination Alliance undertook a scoping study on caste and caste discrimination in the UK very quickly over the summer. I have read with interest its recent report, Hidden Apartheid-Voice of the Community-Caste and Caste Discrimination in the UK-A Scoping Study, which reports caste discrimination in the areas covered by discrimination law, which are employment, education, and provision of goods, facilities and services. I have also read with interest the Modern Law Review article-I thank the noble Lord, Lord Avebury, for forwarding it to me-and the joint statement from the many organisations concerned with this issue.

I commend ACDA for a professional report produced very quickly. However, the report acknowledges that it is a scoping study and many of the examples that it includes are still of either an apocryphal nature or outside those areas covered by discrimination legislation. For instance, many examples refer simply to one person asking another their name. The noble Lord will acknowledge that this cannot be considered to be discriminatory even if a person's family name may be indicative of their caste. Furthermore, despite what some may believe, the case for legislating on caste discrimination-

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench 7:00 pm, 11th January 2010

Does the Minister accept that what is felt to be intrusive questioning is distressing for the affected communities? Sometimes they report that they get this kind of questioning from professionals. A high percentage claim that they have been questioned in this way about their caste by doctors, GPs, nurses and members of the social services. They find it very distressing because they know what it is leading up to. This is why they call it the hidden apartheid.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I accept the noble and right reverend Lord's point that this is distressing and I hope that I may be able to offer him some comfort as my remarks progress.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Leaving aside evidence and dealing only with principle, suppose there is one case of an employer discriminating against a worker or a would-be worker because they do not belong to a caste or to the right caste. Does the Minister agree that that should be included in unlawful conduct just as if it was because of colour, being Jewish or anything else? Does she agree it is part of the ethnicity, is unfair and should be within the scope of the Bill as a matter of principle?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

Yes. However, as I hope to explain, that is already covered by other parts of the Bill.

Furthermore, despite what some may believe, the case for legislation on caste discrimination is not so clear-cut that it universally unites the community it is alleged to affect. I am happy to share with noble Lords the number of organisations that have already been consulted but I think we would agree that there are organisations, such as the Hindu Forum of Britain and the Hindu Council UK, which remain of the opinion that legislation is the wrong option to cure what they primarily see as a cultural matter.

Photo of Baroness Flather Baroness Flather Crossbench

We keep coming back to the Hindu Forum and the Hindu Council, which are formed by caste Hindus-the three upper castes. Some of us here are Hindus and we know about this. I know perfectly well what kind of people they are. They feel that to consult them about caste discrimination is to cast aspersions on them, as if one is saying, "You are the lot who are discriminating on the basis of caste". They are not going to admit that they discriminate; no one does.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I am sure that the noble Lady is not suggesting that we should not consult those organisations. They will be consulted along with a wider group of organisations, as, indeed, we have been doing. Whom have we consulted to date on caste discrimination? We have had meetings with many noble Lords about this issue; we have consulted the Hindu Forum of Britain, the Hindu Council UK, the Voice of Dalit International, Indian Christian Concern, the Catholic Association for Racial Justice, CasteWatchUK, the Federation of Ambedkarite and Buddhist Organisations, the British Asian Christian Council, the Dalit Solidarity Network, the Anti Caste Discrimination Alliance and Shri Guru Valmik Sabha. Among these bodies there is not a consensus at the moment. However, that is not a reason for not taking this as an extremely important issue, which the Government intend to do.

We are aware that one of the recommendations contained in the ACDA report was that the Equality and Human Rights Commission should commission an in-depth study into the caste system and caste discrimination in the UK. We consider that to be a sensible suggestion on how to take this matter forward. An intensive and independent study into this matter will help both to determine the extent of the issue and to identify the best way in which to tackle it. We are keen to gain a better insight into caste systems as well as to explore the ACDA findings in further, more in-depth work. That is why the Government Equalities Office is taking this recommendation forward in consultation with the Department for Communities and Local Government and the EHRC. Indeed, the GEO is working up the commission for the research; once the contract has been let, we expect the research to take two to three months to complete. We are determined to push ahead with this research as quickly as we can. However, it is important to place on the record that while caste discrimination is currently not protected in its own right under discrimination legislation-

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

I am sorry to interrupt the Minister yet again-I know that she is trying to get on with her speech-but, as she is on the subject of research, perhaps she could deal with the point that I raised about the statement in the Commons by the Minister that the EHCR had already been asked to conduct research on the matter. Since then, it has said that it has not been asked. What is the truth of that matter?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I am not sure what the truth of that is. Who said what to whom and in what order is often a matter of some confusion. There is no question but that the Government are determined that this research should take place. We are in consultation and discussion about how best to take it forward. We are determined that this research will take place as quickly as we are able to do it.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench

I am sorry to interrupt again. I am glad to hear that strong statement about research if the Government think it is really necessary, but the reply from the EHRC on 6 January said that,

"we do not have a scope nor response time for such a research".

It has not been asked to do it and it has not got time to do it.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

The reason why I am saying that we are determined to do this is that we will proceed with this research as quickly as we can.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I am sorry to interrupt but I simply do not understand why research is needed. The Minister has agreed that, even if there were one case of the kind that I described, that should be unlawful because it is wrong in principle. In that case, why do we need research when all we have to do is to make clear that which I believe to be the case-that discrimination based on your ethnic descent is included, which covers a great deal of what we call caste discrimination? Where is the harm? What are we worried about? Why do we need research into the scientific extent of the problem when all we are talking about is one or two words in the Bill?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

The noble Lord is much too much of an experienced lawyer to say that one or two words in a Bill are insignificant. These words are very significant indeed.

We are of the view that current discrimination law may already cover some aspects of caste discrimination where it can be shown that the active discrimination was grounded in race or religious discrimination. This would, of course, need to be determined based on the facts of each individual case, but it is important to point out that some victims of caste discrimination may already be able to seek redress under existing laws. For example, in employment an instance of caste discrimination being grounded in race or religious discrimination could include the effective demotion of a secretary, where it would need to be established how other employees of different races and religions were treated for this act to be an instance of racial or religious discrimination.

A significant point is that the extent to which caste-related issues are covered by existing laws has not been tested in the courts. I am aware that the Equality and Human Rights Commission is keen to explore further this aspect in partnership with the ACDA and others. Given this position, I hope that noble Lords will agree that the proposal in the amendment, which could amount to a significant addition to the strand-based structure of equality law and, moreover, introduce social or class-based elements directly into protected characteristics, may be an unacceptably high-risk way of dealing with the issue without proper examination of all its implications.

Amendment 17 attempts to define caste for the purposes of the Bill. As anyone who is aware of the nature of caste will say, certain unique aspects of it mean that it is not simply a case of adding "caste" to a list of protected characteristics and anyone instantly knowing who is protected. Many people may not even know what caste means or have a different understanding of it as a concept. The amendment tries to define caste as based on a hierarchy,

"of social stratification where both membership and status are hereditary, ascribed and permanent".

While I applaud this attempt, the definition of caste requires great thought to ensure that it is correct and that the coverage is appropriate if we decided that caste should be a protected characteristic under discrimination legislation. For instance, we know that caste is not always permanent since, for a woman, it can change on marriage to someone of a different caste. The amendment would not cover such people. Defining caste for the purposes of discrimination law would be a difficult and time-consuming exercise, which, given the timing of the Bill, would not be practicable. This is one of the issues that we hope more extensive research would help to determine by uncovering more details on caste systems operating in Great Britain.

Amendment 18 would provide a Minister of the Crown with the power to legislate at some future stage to include caste as a protected characteristic under discrimination legislation if satisfied that there was significant evidence of discrimination, harassment or victimisation because of caste. The amendment recognises the difficulty that the Government have in relation to caste by potentially creating the opportunity to amend legislation at a later date, should sufficient evidence of caste discrimination be uncovered. As the Solicitor-General has always made clear in the other place, the Government are not against legislating in this area, but they will not do so without sufficient evidence of a real problem that can be rectified by discrimination legislation. A power to legislate in the future is therefore not the right approach to take on caste discrimination. It is inflexible and, given the uncertainties around adding caste as a protected characteristic now, it could be the wrong solution. For example, we do not necessarily agree that the main amendment, as drafted, accurately defines the concept of caste. We would not therefore want to be prospectively committed to such a change.

As I said, there are complexities in defining caste for these purposes. There is also the question of what consideration would need to be given to any relevant exceptions already contained in the Bill or any that could, or should, be included relating specifically to matters of caste.

Amendment 29 would amend Clause 14. Clause 14 provides protection from discrimination because of a combination of two protected characteristics-what we refer to as dual discrimination. It enables someone who has been treated less favourably because of a combination of two relevant protected characteristics to bring a claim and secure the remedy that they deserve. Dual discrimination is a new area to discrimination law and the amendment would have the effect of including caste as a relevant protected characteristic for dual discrimination claims. For the reasons that I have just given, it is inappropriate to include caste as a protected characteristic under the Bill. Since it is not a protected characteristic under the Bill, it would be confusing, complicated and contrary to the Bill's aim of simplification and harmonisation to include for the purposes of dual discrimination characteristics that were not protected for other purposes under the Bill. Furthermore, dual discrimination is a complex issue. Clause 14 represents a proportionate remedy based on careful consideration of which protected characteristics to include among other things. Even if new protected characteristics were to be introduced in the Bill for other purposes, we would need to be convinced that the evidence necessitated their inclusion in Clause 14; otherwise, any extension could impose disproportionate burdens.

Amendment 16, tabled by the noble Lord, Lord Lester, would add descent as a further aspect of the protected characteristic of race, so that the Bill would prohibit unlawful racial discrimination, harassment and victimisation based on descent as well as colour, nationality and ethnic or national origin. It is an important addition to the debate.

The International Convention on the Elimination of All Forms of Racial Discrimination-CERD-to which the United Kingdom is a party, refers to racial discrimination as being based on descent in addition to race, colour or national or ethnic origin. CERD has not, however, been incorporated into UK law, as there is no obligation that it should be, and treaties do not have full legal force in domestic legislation.

However, the Government understand our obligation under CERD to be to take all necessary measures, including legislation where and when appropriate, to ensure that the domestic law and practice of the United Kingdom fully respect and implement all the provisions of CERD. We are confident that we will continue to do so. That is why the provisions of CERD are in fact fully respected and, where necessary, consciously enforced in the United Kingdom through our comprehensive race discrimination legislation.

The courts will take into account the provisions of CERD when interpreting our own legislation. An example of this is the recent judgment of the Supreme Court in the Jewish Free School case, delivered on 16 December last year, that a Jewish state school's admission criteria were racially discriminatory. The noble and learned Lord, Lord Mance, took the view that, whether or not "descent" within the meaning of CERD covers caste-and he did not decide the point, because it was not relevant to the case that he was considering-

"the concepts of inherited status and a descent-based community", appeared to cover the situation. That pointed in the direction of a wide understanding of the concept of discrimination on the grounds of ethnic origins. We would agree with that. On the other hand, the noble and learned Lord, Lord Phillips, accepted,

"that descent simpliciter is not a ground of racial discrimination. It will only be such a ground if the descent in question is one which traces racial or ethnic origin".

Currently, to discriminate against someone because he is not the son of a hereditary Peer or the son of a member of a trade union is not racial discrimination. The risk of adding "or descent" to the Bill's definition of race is that the courts would consider the definition of racial discrimination to have been widened to cover these or other examples, as well as caste. I hope that the noble Lord will resist the temptation to press his amendment and accept that this is another aspect of an issue that merits wider consideration.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 7:15 pm, 11th January 2010

I am very grateful for that explanation. What it comes to is that the Government accept that one has to read our domestic legislation compatibly with the CERD and that the CERD refers to descent. There is therefore a gap between the literal language of the definition of race and what is required under the CERD. I think that the Minister has already accepted that the courts must try to make the two fit to each other. The case involving the immigration officer at Prague was a recent example, as was the Jewish Free School case. Why can Parliament not ensure that there is no gap-let us forget about caste-between what the CERD requires and what the statute will say?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, as I have said, the Government are in the process of commissioning further research as recommended by the ACDA report. At the same time, we are considering the Supreme Court's judgment in the JFS case and whether any legislative response is needed in the light of that. We will report back to your Lordships on these actions on Report, when the Government's thinking on caste and descent has developed a bit further. Pending that, I hope that noble Lords will not press their amendments.

Photo of The Bishop of Chester The Bishop of Chester Bishop

If the research that the Government intend to undertake indicates that there is a problem that requires legislation, will there be power within the Act to add a provision by regulation, or would it require primary legislation?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

That is part of the consideration and thinking that is going on and the wider discussion going on with noble Lords and the organisations that are concerned with this.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

Much has been made of the need for further research and evidence. The Minister referred to the lack of time for developing an appropriate and workable definition of caste. Could she tell the House when the Government first became aware that this would be an issue in the Bill? When did the process of consultation, evidence gathering and research therefore start? Was there sufficient time from that initial moment to develop an appropriate definition of caste? What concerns me is that the Bill has been a long time coming but we are now, at this stage, being told that we do not have enough time to discuss what is an important issue.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

The consultation on this Bill took place in the latter half of 2007. At that time, we did not receive evidence that caste was an issue; it was only after we had had that consultation that these issues started to be raised. In fact, that has happened only in the last couple of months. We are now moving as fast as we can, because we accept that this is an issue that we need to address.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

My Lords, I would accept that the Government were moving as fast as they could if it had not been for the fact that the statement by the Solicitor-General in another place that research was being commissioned from the EHRC was not being carried into effect. We have wasted several months, in other words, until this evening, when the Minister assures us in categorical terms that research will be commissioned, although not necessarily from the EHRC. A specification will be put out, to which a number of people will be able to respond. That will take further time. That leaves me reluctant to withdraw the amendment, because the research will not be available by Report.

As my noble friend has said, even if there is only one case we should take this opportunity for legislation. I am tempted to press Amendment 18 to a Division, for the simple reason that it allows the Government to legislate in future but does not compel them to do so if the single case that my noble friend mentioned does not materialise. But I shall give the Government the benefit of good faith on this, because I trust the Minister and believe that she is moving in the right direction. Either on the caste amendment or my noble friend's descent amendment, we shall get something at the end of the day. With that hope in mind, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by Lord Avebury

6: Clause 4, page 4, line 17, at end insert-

"being a Scottish Gypsy Traveller;"

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

We come now to the question of Scottish Gypsy Travellers. I do not expect that there will be quite as many speakers in this debate as the one that we have just finished, but it is an extremely important matter-the anomalous and unjust situation that has existed over many years that Scottish Gypsies are not entitled to the same protection from discrimination in our law as their English, Welsh and Irish counterparts.

There are some 25,000 Gypsies in Scotland, and there are indications that their ancestors have been there since the early 16th century. We welcome the letter from the Solicitor-General to the honourable Member for North Ayrshire and Arran saying that a recent employment tribunal judgement has declared that Scottish Gypsy Travellers are a distinct ethnic group and are therefore covered by the 1976 Act and this Bill. She also adds that,

"there is wider acknowledgement in Scotland that Scottish Gypsy Travellers are an ethnic minority group and are indeed a group that has particularly suffered from discrimination".

In this letter to Ms Clark, the Solicitor-General acknowledges that Romany Gypsies and Irish Travellers did not have the same legal rights in Scotland as they do in rest of the UK and, up to now, had not been treated as eligible for compensation if they had been discriminated against within the terms of the Race Relations Act 1976. Equally, they would not qualify as a distinct ethnic group under this Bill, because it was generally a matter for the courts to decide whether a complainant belongs to a racial group and had been the victim of a discriminatory act because of that status. She added, however, that in this recent employment tribunal judgment, it was held that Scottish Gypsy Travellers were indeed members of a distinct racial group and were therefore covered by the 1976 Act. She says that they are already recognised by public authorities as a distinct ethnic minority and they benefit from measures, which she lists, that are targeted at ethnic minorities generally by public authorities in Scotland. Scottish Gypsies, she says, are specifically mentioned in policy statements and benefit from measures aimed at other minority groups.

But there was a sting in the tail. The Minister said there was an appeal outstanding against the MacLennan case decision, and I heard only this morning that the case had been finally settled. Nevertheless, very few people in Scotland, including most practitioners, seem to be aware of the position, and it would be useful if the Minister would now confirm that as the law now stands after the MacLennan case, Scottish Gypsy Travellers are a distinct ethnic group for the purposes of the 1976 Act and of this Bill. If she could go further and say there is no danger of this being reversed by a court decision in some other case in a higher court, bearing in mind that we are only thinking of a tribunal case, it would give some additional reassurance. Of course, if she would accept this amendment, it would settle the matter once and for all, and it would be irreversibly confirmed that Gypsies in Scotland have the same rights as their cousins in the rest of the UK. I beg to move.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench

For the reasons given by the noble Lord, Lord Avebury, I support the amendment. Clearly, there is a problem at the moment, and I believe that his amendment will tackle it.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, Amendments 6, 19, 30, 41, 50 and 53 all seek explicitly to list being a Scottish Gypsy Traveller as a protected characteristic. I shall address these amendments together.

Although the Government clearly do not condone any form of racial discrimination, we are resisting these amendments. However, I hope that I can offer some comfort to the noble Lord. The Equality Bill already provides explicit protection against racial discrimination-that is, discrimination that occurs because of a person's race, colour, nationality, or ethnic or national origins. However, it is not government policy to list specific protected racial groups as such a list could never be exhaustive. We believe that it is only right that anyone who thinks they have been discriminated against because of their race, colour, nationality, or ethnic or national origins can bring a legal claim, and it would ultimately be for the courts to decide on the facts of any particular case as to whether the act in question amounted to unlawful racial discrimination. Indeed, case law has determined that Romany Gypsies-in Commission for Racial Equality v Dutton in 1989-and Irish Travellers-in O'Leary v Allied Domecq in 2000-are distinct racial groups for the purposes of deciding whether a discriminatory act amounted to unlawful racial discrimination.

The recent employment tribunal judgment on MacLennan v Gypsy Traveller Education and Information Project has held that Scottish Gypsy Travellers are an ethnic group. This has set a precedent for them to be recognised as a minority group. In addition to this, there is wider acknowledgement in Scotland that Scottish Gypsy Travellers are an ethnic minority group and, indeed, one that has particularly suffered from discrimination. Consequently, a number of initiatives and projects have been targeted at this group to give them the same opportunities as other people to offer them a level playing field.

In Scotland, race equality policy statements specifically mention Scottish Gypsy Travellers as an ethnic minority group and encourage public authorities to structure services and public functions to take account of this group. Ongoing initiatives targeted at ethnic minority groups including Scottish Gypsy Travellers include improving opportunities; addressing barriers preventing this group from achieving what they are capable of; more active and vibrant communities, increasing participation of Scottish Gypsy Travellers; responsive communities, with better support from specialist and mainstream services; safer communities, building lasting connections with this group; and developing and implementing an education strategy.

In response specifically to the request from the noble Lord, Lord Avebury, for an assurance that the tribunal decision will not be reversed, the Government are of course not in a position to determine what judgment higher tribunals or courts may make in future cases relating to Scottish Gypsy Travellers, but that is the same as for every other group that tribunals and courts have held to be ethnic groups, such as Sikhs and Romany Gypsies. I reiterate that the Bill provides protection in terms of a person's race, colour, nationality or ethnic or national origins, a provision which the courts will interpret based on the facts of each case.

Amendment 6 would have the specific effect of including being a Scottish Gypsy Traveller as a relevant protected characteristic for dual discrimination claims. For the reasons I just gave, because it is not a protected characteristic it would be contrary to the Bill's aims of harmonisation and simplification. Moreover, as I have stated before, dual discrimination is a complex issue and including it in Clause 14 as well might impose disproportionate barriers. Given the reassurances that I have offered the noble Lord, Lord Avebury-and the recent news that he provided, which is, indeed, correct-I hope that my assurances that Scottish Gypsy Travellers are a protected racial group will allow him to withdraw his amendments.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office 7:30 pm, 11th January 2010

My Lords, I am grateful to the Minister for those reassurances. I will make one additional request of her. I recognise that many public authorities in Scotland have already altered their policies in the light of the MacLennan judgment, and have incorporated Scottish Gypsy Travellers in their race equality statements. Could the Minister discuss with the Scottish Government how they can best circularise all public authorities to make sure that every statement referring to race equality includes Scottish Gypsy Travellers as a specific group to benefit from the legislation?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I am certainly very happy to take that suggestion forward.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

In that case, I have great pleasure in withdrawing the amendment.

Amendment 6 withdrawn.

Clause 4 agreed.

House resumed. Committee to begin again not before 8.32 pm.