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Plans for a new legal duty on public bodies to reduce socio-economic inequalities set out in Harriet Harman's Equality Bill will create new bureaucracy, says lawyer Mark Greenburgh. Inequality of opportunity is not a modern plague. Divisions of social-economic class have always translated into a divided labour market, an intransigent gender pay gap and, to a certain extent, a poverty of thought in political decision-making. Therefore, one might think that any attempt to curb inequality should be welcomed – unless, of course, one actually has to implement it. So it is with the new legal duty on public bodies to reduce socio-economic inequalities, set out in [deputy leader of the Labour Party] Harriet Harman's Equality Bill. The practical problems of putting this into effect would be bad enough in itself, but when set against the minimal likelihood of it making any effective difference, the whole exercise will create nothing but the fruitless bureaucracy the public so unfairly assume is the purpose of local government. All this follows more than a decade in which the gap between rich and poor has risen. [Ex-prime minister] Tony Blair's 1997 mantra of ‘education, education, education' and the advent of the Office for Fair Access (OFFA) – aka ‘Off-toff' – prove that a top-down approach to reform may have resulted in increased numbers of university graduates. But, it has so far failed to address a deeper schism in our society – that of social-economic groupings. Recent reviews of the professions show that stubbornly-high percentages of management remains in the hands of the privately educated, and access is more difficult the lower one's social background might be. How does this new socio-economic duty sit alongside existing discrimination law? Our anti-discrimination legislation has always focused on providing equality of opportunity, rather than equality of outcomes. Ms Harman's attempt to address this is unashamedly more pervasive, tackling the patterns of disadvantage from educational achievements, health, housing and environmental factors, through to employment and training, and tilting the balance in favour of ‘positive action'. Advocates of Ms Harman's reforms have pointed out that the new duty will only impact on strategic decisions which public bodies take, relating to policy, planning and resourcing of services – a myopic view. For any strategic decision to have an impact at a grass-roots level, there needs to be a successful transition of strategic decision into operational success. Separating the strategic from operational is, frankly, somewhat misguided, and largely ineffective. Taking the example of a mid-sized local authority. Under the new socio-economic duty, it will need to identify what the markers of deprivation are in its locality. What distinguishes the ‘haves' from the ‘have nots'? In some authorities, it will be health and housing, in others, the inter-play between ethnicity and education may be an overarching concern. Each local authority will need to have regard to these footprints of disadvantage in all areas of decision-making, from housing strategy, and transport plans, through to local area agreements. If a local authority identifies a need to increase the numbers of a particular ethnic group in the local labour market, when it comes to sourcing a new schools' catering supplier, should it pick the most cost-effective supplier or the supplier with the larger proportion of employees from that ethnic group? At a time of public spending cuts and economic unease, what are the ramifications if the local authority selects the cost-effective supplier? Public bodies' compliance with the new socio-economic duty will be monitored by the Audit Commission and Ofsted. The only enforcement mechanism will be judicial review, a prohibitively-expensive mode of redress, making compliance with the new duty somewhat aspirational rather than essential. For local authorities across the country, it is likely to result in disparate levels of engagement and action. Public bodies have, for many years, instituted measures to narrow the opportunity gaps in society with differing results. In 2006, education officials at Durham CC gave £1m worth of omega 3 fish oils to all year 11 students in its 36 comprehensive schools as they approached their GCSEs, in an attempt to improve their performance. The pilot was both innovative and newsworthy, but ultimately, it failed to increase the GCSE pass rate, and so it was discontinued. That's not to say addressing health and nutrition is doomed to failure, but there does need to be an adequate cost-benefit assessment before such trials are implemented. This year, both Newham LBC and Durham CC have launched a two-year trial in which all state school pupils will receive free lunches at a cost of £40m. The intention is to improve behavioural, health and academic standards. To put this in context, it would cost £1bn to provide free school meals to all children in primary schools in England. While there is much empirical evidence that ‘hunger' is a real barrier to learning, is the [Tory leader] David Cameron claim that youngsters need to be cared for, a more affordable option than an extension of the state's responsibilities to feeding children? Whether, at a time of economic uncertainty, placing such a colossal duty on the public sector will be a burden too far is a very open question, potentially resulting in a more pronounced gulf between a fluid, adaptable private sector, where employees are appointed solely on merit, and a public sector, burdened with additional duties and lacking in autonomy. Surely, there is a risk that the new socio-economic duty will be an expensive failure that the taxpayer will pick up at a time when the country is only just teetering above recession. And, above even these economic challenges, there is really no credible evidence that this new regulatory burden will be effective. Mark Greenburgh is head of local government at Wragge and Co

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WHITEHALL

Why the new duty will create more red tape

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