EQUALITY OF OPPORTUNITY

HC Deb 04 November 1999 vol 337 cc569-75

Lords amendment: No. 17, after clause 27, to insert the following new clause—Equality of opportunity—

".—(1) The Authority shall make appropriate arrangements with a view to securing that—

1. (a) in the exercise of the power conferred on the Authority by section 25 above,
2. (b) in the formulation of the policies and proposals to be included in any of the strategies mentioned in section 33(1) below, and
3. (c) in the implementation of any of those strategies,

there is due regard to the principle that there should be equality of opportunity for all people. (2) After each financial year the Authority shall publish a report containing—

1. (a) a statement of the arrangements made in pursuance of subsection (1) above which had effect during that financial year; and
2. (b) an assessment of how effective those arrangements were in promoting equality of opportunity.

(3) The functions conferred or imposed on the Authority under or by virtue of this section shall be functions of the Authority which are exercisable by the Mayor acting on behalf of the Authority."

Mr. Raynsford

I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker (Sir Alan Haselhurst)

With this, it will be convenient to take Lords amendments Nos. 18 to 29, 54 to 57, 499 and the Government motion to disagree and Government amendment (a) in lieu thereof, and Lords amendments Nos. 583 and 612 to 633.

Mr. Raynsford

This is a lengthy group of amendments, and I shall try to cover it as quickly as possible, but I hope that the House will bear with me because a number of different issues are involved. They boil down to four key concerns: equality of opportunity; the standing orders of the Authority; delegations to be made by the Authority; and the office of acting mayor. I shall invite the House to disagree with Lords amendment No. 499.

Amendment No. 17 is a Government amendment, but the credit for it must be shared with the Opposition in the other place. In particular, Lord Dholakia, Lord Harris and Lord Archer deserve recognition for their efforts in drawing up proposals that were designed to match the Government's aspiration of ensuring that the GLA is accessible to all Londoners and provides them with equal opportunities.

The new clause will require the mayor to make appropriate arrangements in exercising the Authority's general power and in the preparation of the mayor's strategies, with a view to securing that due regard is had of the principle that there should be equality of opportunity for all people.

These are not just fine words. The clause also imposes a duty on the mayor to produce, in each financial year, a report setting out the arrangements that have been established, and assessing how effectively they have been in promoting equality of opportunity. That will ensure that the Authority cannot ignore its responsibilities.

I invite the House to disagree with Lords amendment No. 499, which we accepted in another place, and to accept amendment (a), tabled by my right hon. Friend the Deputy Prime Minister. The amendment would make it a duty of not only the Greater London Authority but the Metropolitan police authority and the fire authority to exercise their functions with "due regard" to the need to promote equality of opportunity for all persons irrespective of their race, sex, disability, age, sexual orientation or religion".

Mr. Burstow

I understand that the phrase "due regard", which the Minister just used, is fairly important in legal terms. Lords amendment No. 499 in its original form made an explicit reference to due regard, to which the courts attach particular importance, but the Government's revised draft—the version that we are considering today—does not include the word "due". Would that weaken or change the legal status of this part of the Bill in any way?

Mr. Raynsford

It will not change the impact of the legislation. It will simply reduce the number of words in the Bill by one, which must be a good thing. If one must have regard to need, one must have regard to need, and one must be reasonable in doing so. Adding the word "due" will not enhance the legislation. That is the advice that we received, and that is why, for drafting reasons, we removed the word.

Authorities must also have regard to the need to eliminate all forms of unlawful discrimination, and to promote good relations between persons of different racial groups, religious beliefs and sexual orientation. I am sure that the House will agree that, in a city that is home to so many different communities, this is the least that Londoners should expect from authorities, and, indeed, from all public bodies that serve them. The amendment restores the provisions of the Race Relations Act 1976, which we believe should remain in the Bill but which was removed in the House of Lords by a Liberal Democrat amendment. It also removes the word "secure" from subsection (1).

I should explain why we are doing that. We do not believe that it will be possible in all circumstances for the Authority to ensure that it secures equality of opportunity for all. If the word "secure" remains in the Bill, the Authority will be vulnerable to frequent legal challenges, and we do not believe that that would be correct or fair. We want the Authority to use its best endeavours to promote equal opportunity, but we do not wish to bring about circumstances in which it might find itself in the courts because, despite its best efforts, it had not been able to achieve that objective.

I hope that I can deal with the other amendments more swiftly. Lords amendment No. 18 provides for the Assembly to make standing orders for the Authority in consultation with the mayor. It limits the extent to which the Assembly can make standing orders in relation to the mayor's functions to those involving a formal interaction between the mayor and the Assembly.

Lords amendments Nos. 19 to 26 constitute our response to concerns expressed in the other place about the need for clarification of the mayor's powers to delegate his or her functions. Lords amendment No. 19 includes the Common Council of the City in the list of authorities to which functions may be delegated. Lords amendment No. 20 makes it explicit that the mayor may delegate functions to another authority only with its written consent. Lords amendment No. 21 permits the mayor to apply conditions to any delegations that he or she makes, and makes it clear that those conditions remain when further delegations take place.

Lords amendment No. 22 allows the detailed powers of delegation provided for in part X—the part that deals with culture—to override those in clause 31. One result of that would be the exclusion of Transport for London as a delegate in respect of the mayor's cultural functions. Lords amendment No. 23 adds the Common Council to the list of authorities that can exercise functions on behalf of the GLA, regardless of whether they would already have the power to do so. Lords amendment No. 24 extends to Transport for London and the LDA the delegation provisions of section 101 of the Local Government Act 1972, which permit delegations to committees and sub-committees.

Amendments Nos. 25 and 26 delete current provisions for joint committees, which are replaced by the provisions in amendment No. 27 which are tailored to the GLA's specific needs. Amendments Nos. 28 and 29 provide cross references to part X in clause 32.

The purpose of the final group of amendments is, I hope, self-evident and I shall briefly deal with the principal amendments only. When a vacancy occurs in the office of mayor, the deputy mayor will not, in all circumstances, take on the role of the mayor until that vacancy is filled. The deputy mayor may either be unwilling or unable to take on that duty. In those circumstances, the chair of the Assembly will be invited to take on the duties of the mayor and to act as mayor.

6.30 pm

We believe, therefore, that there should be a formal office of acting mayor to which either the deputy mayor or the chair of the Assembly may be appointed when that is necessary. Amendment No. 613 creates that office. Amendment No. 614 provides the procedures for filling the office of acting mayor. Under these provisions, the deputy mayor becomes acting mayor unless he or she is unwilling to accept office—and notifies the proper officer—or unless he or she fails to make a declaration of acceptance. If the deputy mayor does not become acting mayor, the proper officer notifies the chair of the Assembly of the vacancy and he or she will become acting mayor.

The amendment also provides that, if the deputy mayor or the chair of the Assembly becomes acting mayor, he or she cannot be deputy mayor, chair or deputy chair of the Assembly. The acting mayor will be subject to the provisions of Part II, paragraph 4 of schedule 4, which sets out the functions that are not exercisable by the deputy mayor.

Amendment No. 619 provides that the acting mayor may not act as an Assembly member other than in relation to the Authority's budget. The reason for that is that the acting mayor is not able to introduce a budget in the way that the mayor can. Amendment No. 630 provides for similar procedures where a vacancy occurs in the office of acting mayor. Amendments Nos. 631, 632 and 633 provide for the chair being treated as mayor when the mayor is temporarily unable to act.

The other amendments in the group are consequential upon the principal amendments.

Mr. Burstow

I want to discuss the equality and discrimination provisions in this group of amendments. I shall explore the issues a little further and ask several questions.

During the Bill's consideration in the other place, much attention was paid to equality and discrimination issues. The Minister was right to draw attention to the work of a number of Lords in moving the agenda forward. In the debate on equality on Third Reading in the other place, Lord Whitty spoke for the Government and said: The outcome of those discussions has been in my view to alter the approach of the Government to the matter and to improve the provisions. It is worth recognising that, to some extent and particularly during the Bill's passage through the Lords, the Government listened to noble Lords from all sides. Before the Minister gets too upset, I also recognise that they did that on several occasions when the Bill was in Committee in this House.

Lords amendment No. 499 was tabled by my noble Friend Lord Dholakia, and the Government accepted it, subject to what Lord Whitty described as a minor degree of further amendment".—[Official Report, House of Lords, 1 November 1999; Vol. 606, c. 584–851 During the debates in the other place, concern was expressed that the clause, as drafted at that time, would disapply the Race Relations Act 1976 from the Greater London Authority and its functional bodies, the Metropolitan police authority and the fire and emergency planning authority. That was clearly not the intention of noble Lords and they made that clear in the debates. Therefore, any redrafting that avoids that possibility will be entirely welcome.

Lords amendment No. 499 provides a simplified and more precise duty that moves beyond the duty set out in section 71 of the Race Relations Act. The Commission for Racial Equality takes the view that the formulation in the amendment is better than the one in the Act.

There are three reasons why the new duty that the Government are accepting, albeit in a modified form, is welcome. First, it is more direct and positive for anti-discrimination and equality of opportunity. Section 71 was drafted in such a way as to be sufficiently vague to allow local authorities and other public bodies to pay lip service to the provision, but not necessarily to follow that through into tangible actions in the way that they delivered services and operated as organisations.

Secondly, the duty of promoting equality of opportunity will be extended to encompass all spheres—not only race equality—identified in the European Union treaty, particularly in article 13.

Thirdly, the duty will relate to all types of unlawful discrimination. Currently, discrimination is unlawful only on grounds of race, sex and disability, but Lords amendment No. 499—and the Government's amendment in lieu—would go on to include issues of religion and sexual orientation. Such a change is entirely to be welcomed in our capital city.

On the face of it, the Government's amendment in lieu will meet the concerns expressed in the other place and achieve the aims that my noble Friends have been trying achieve. However, the Government's amendment has some important omissions—on which I shall ask a few questions—that go to the heart of the provision's subsequent interpretation in judicial review or by the mayor and Assembly.

The first omission—which I mentioned in an intervention on the Minister—is in the phrase "due regard". The phrase appears in the Lords amendment, but has been shortened in the Government's amendment in lieu to "regard", omitting the word "due".

I have spoken to the Commission for Racial Equality about the omission, and, in the short time since the amendment was tabled, it has taken an informal sounding of lawyers who are expert in public law and discrimination law. Those informal discussions have revealed that leading counsel believe that the word "due" has a judicial meaning, and that, therefore, the concept of paying "due regard" could be subject to judicial review. The wording is based on section 120 of the Government of Wales Act 1998 and section 75 of the Northern Ireland Act 1998, both of which use the phrase "due regard".

The informal—but informed—view of legal experts suggests that the construction placed on the words in the Government's amendment might lead the courts to attach lesser weight to the provision in the Bill than they attach to the equivalent sections of the Welsh and Northern Ireland legislation.

I was therefore grateful for the Minister's comments on the point, but hope that he might say just a bit more—as the tone and tenor of his comments suggested that he thought that it was trite and almost does not matter. However, the point is very important in determining how the courts might in future interpret the provision. If it is true that the loss of one word will make no material difference, I am sure that a statement to that effect by the Minister will satisfy the CRE and be entirely satisfactory for future construction.

The second change, which the Minister mentioned, is the omission of the words "and secure" in subsection (2)(a) of the Government's redraft of Lords amendment No. 499. We have been told today that the duty to secure could become rather onerous, and that failure to perform it could result in the Authority appearing in court. There is some dispute and discussion about how far one will have to go before being deemed to have secured the promotion of equal opportunities.

We think that removing the words weakens the duty that the Lords imposed only a few days ago, and that the Government should make it clear why they have decided that the duty should be watered down. Liberal Democrat Members—and, I believe, the Government—believe that we have to be ambitious in promoting good race relations and equality in London. We also have to ensure that the mayor, Assembly members and the various functional bodies all are clear about the responsibilities that they have to establish a new culture in both the Authority and London and to give a clear lead.

Lords amendment No. 499 is a vast improvement on the Bill. In our earlier consideration of the Bill, in Committee and on the Floor of the House, we—unlike our noble Friends in the other place—were unable to advance the arguments necessary to persuade the Government of the wisdom of making those improvements. It is a great pity that, in this matter, the Government—who often describe themselves as a progressive Government, and dress themselves in the language of progressivism—failed to take the lead from this place, but required the other place to tell them what to do.

I hope that the Minister will be able to give us the legal clarifications that will be necessary for interpretation of the clause.

Mr. Forth

I have always thought that the term "equality of opportunity" was an aspirational will o' the wisp, and nothing that I have heard in this brief debate has made me change my mind. What worries me about the amendment is that it is one thing to be aspirational and to raise expectations—in my view, rather unrealistically; it is quite another to erect a bureaucratic nightmare in trying to give effect to that.

The measure refers, in the modern way, to the formulation of policy proposals, strategies and implementation, and it then gets worse by talking about publishing reports with statements, or arrangements and assessments of how effective they are. One feels that this will be much more of a self-fulfilling and self-perpetuating bureaucracy than anything that is likely to deliver any remote equality of opportunity.

The thought occurs to me that we may have lost sight of any effort to try—as we once said we would—to give an estimate of the cost of all these exercises. This is not cost free—there is a large price tag attached. The mind boggles when one imagines the amount of bureaucracy that would be required to give lip service to the measure.

Maybe "equality of opportunity" in the end will be that we can fill the bureaucracy with people who aspire to some sort of equality of opportunity, and give them their opportunities that way. I do not see the measure working in any other way at all.

Mr. Raynsford

With leave of the House, Mr. Deputy Speaker, I cannot add much to what I said earlier to the hon. Member for Sutton and Cheam (Mr. Burstow). I appreciate his kind words about the improvement to the Bill, and I assure him that we were keen to listen in Committee and in the other place.

We debated the matter and reflected on it, and there was a further debate in the other place. We agreed an amendment which improves the Bill considerably. This is a practical measure to try to promote equality of opportunity, an objective which I hope we all share. It is designed to ensure that the authority acts in that direction effectively and pragmatically.

We have not sought to impose unachievable objectives, which could put the authority in a position where it might fall foul of the law through no fault of its own. It would be impossible to guarantee the achievement of equality of opportunity by the authority in every case if it found itself in the courts through no fault of its own. That is the reason why we have changed the wording to "promote" equality of opportunity.

I cannot add anything to the issue of "due regard", and our lawyers' views differ. I have given an assurance that it does not detract from the meaning of the duty in any way, and I hope that the hon. Member for Sutton and Cheam will agree.

Lords amendment agreed to.

Lords amendments Nos. 18 to 29 agreed to.