Tackling Discrimination in Political Parties

Dr Peter Jepson (Written March 96.)

Email: law@peterjepson.com

There can be little doubt that over the years women have been discriminated against when it comes to obtaining fair representation in the House of Commons. Indeed, since Nancy Astor made her maiden speech in 1919, pledging to speak up for women and children up and down the country, only 169 women have taken their seats in the House of Commons compared with nearly 4000 men. Likewise, today in Parliament less than ten per cent of MP's are women, with only a handful of MP's having ethnic origins.

Given that Members of Parliament have recognised the value of the Sex and Race Discrimination laws to tackle problems of discrimination within society you could expect support for its application to political parties. This expectation is especially applicable when you consider that, despite all major political parties having a commitment to equality of opportunity, they have such a poor record of equal representation in their selection procedures.

It is therefore disappointing to see the negative response of Labour to the Leeds Industrial Tribunal decision, in Jepson & Dyas-Elliott v The Labour Party, that political parties are subject to discrimination laws. The Jepson case involved the application of all-women shortlists - with the two male applicants claiming that but for (e1) their sex they could become members of parliament for the respective constituencies. The Industrial Tribunal held that political parties can be considered as qualifying bodies in relation to parliamentary candidature for the job of Member of Parliament - as such they fall within s.13 of the Sex Discrimination Act 1975. The Labour Party chose not to appeal the decision and have opened up its parliamentary selections to both male and female applicants. However, in a political publication Tessa Jowell (Labour's spokesperson on women's issues) has argued: "the choice now is between taking the sex discrimination law out of the selection process within political parties or permitting it to apply...with a strong case for making an exception for positive discrimination in the political process"(e2).

Obviously there may well be questions about the morality of politicians giving immunity, from litigation under Anti-Discrimination legislation, to political parties to which they belong. This article, though, is more concerned about the questions and implications which may stem from such an approach. For example, why is it that the Labour Party seem to regard gender discrimination as being more important than race discrimination? If they are genuinely concerned about inequality of representation in parliament, why do they not propose all-black shortlists as well as all-women?

Of equal interest must also be how a future Labour Government would respond to judicial interference in any legislation designed to give political parties immunity. Indeed, it must be possible that any legislative changes could face a challenge via Judicial Review, with a reference to the European Court of Justice for its interpretation.

On the basis of Kalanke v Bremen (e3) there must be very strong grounds for believing that positive discrimination in the selection of members of parliament would be considered as a breach of the EU Equal Treatment Directive 76/207. Article 3(1) specifies "there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs and posts whatever the sector or branch of activity and at all levels of the occupational hierarchy".

The Kalanke Case involved Mr Kalanke and Ms Glissman both being employed by the City of Bremen as horticultural employees in the Parks Department. Both applied and were shortlisted for the post of section manager, with it being determined that the two candidates were equally qualified. Under Bremen law this enables preference to be given to a women applicant where it can be shown that women are underrepresented in an appropriate quota system. Thus, Ms Glissman was appointed and Mr. Kalanke challenged the decision. When the case reached the Federal German Court it took the view that the quota allocation was in accord with German Law, with the case forwarded to the European Court of Justice since it raised issues of compatibility with the Equal Treatment Directive 76/207.

Notwithstanding the existence of Article 2(4) of 76/207, which provides for the Directive being without prejudice to measures to promote equal opportunities by removing existing inequalities, the European Court found against the German Authorities. Indeed, the ECJ held that national rules which guarantee women absolute and unconditional priority for appointment or promotion go beyond equal opportunities and overstep the limits of the exception in Article 2(4) of the Directive.

While Kalanke was considered to overstep the exceptions to the Equal Treatment Directive it is abundantly clear that Labour's policy (it is still party policy) of all women's shortlists for parliamentary selections is extreme by comparison. For example, in Kalanke men with better qualifications for the post would be in a position to obtain the job - under Labour they could not. Indeed, under Labour policy men could not even get onto the shortlist, such is the extent of the discrimination.

As was remarked (obiter) in Jepson & Dyas-Elliott v The Labour Party "such a total block on one sex as occurs here cannot have been the intention in that Article [2(4)], a view which we regard as fully endorsed by the decision of the European Court in the Kalanke case".

Clearly, new Labour is more pro-European than it has been in the past. If anything, with its support for the EU Social Chapter, it is showing a much stronger commitment to the institutions of the European Community than the Conservative Government. However, being in opposition is very different to acting in Government. It may well be that many Labour MP's, and even Ministers, will become frustrated with a European Court that is prepared to rule against its legislation just as willingly as it has with some Conservative legislation. Thus, a significant European test for a future Labour Government will be how it responds to judgements stemming from the European Court which may undermine its policy actions. Indeed, a test for the Labour Leadership, while in opposition, is whether it will abandon plans for positive discrimination which put the party at odds with the Equal Treatment Directive and, seemingly, on a collision course with the European Court. This especially applies when it can be argued that it is morally shameful that a Labour Party, committed to equality of opportunity, may be prepared to argue for an opt out of the equal treatment directive. If companies and governments are legally bound by the Equal Treatment Directive, so must be political parties.

Instead of taking such a conflictive approach Labour should recognise that, like it or not, all political parties can now be considered as subject to the discrimination laws so far as the selection of parliamentary candidates are concerned. As such, political parties need to revise their procedures and rules so as to try and ensure they remove any discriminatory practices from their selection procedures. They need to set up appeal bodies within their organisations, taking all efforts to stamp out gender or racial discrimination wherever it occurs.

The legal decision in Jepson & Dyas-Elliot v The Labour Party, and also Kalanke, did not consider the use of quotas to promote equality of opportunity in determining a shortlist. Thus, in my view, it continues to be acceptable to use quotas to establish a shortlist in any employment situation. Applying these principles to a parliamentary selection, it would be possible to use quotas to ensure 50/50 male/female representation (also an ethnic quota?) on any shortlist - so long as the quota is reflective of society and, at the point of selection, people are appointed on merit and not on grounds of race or gender.

In the longer term, it is clear that something needs to be done to bring about a fairer representation for women and ethnic candidates in parliament. Tony Blair has committed a future Labour Government to a referendum on electoral reform. This provides the ideal platform for a debate on ensuring that any new electoral system will also provide equality of opportunity for men and women. For example, what about a system of PR (or even a first past the post system) which enables the electorate to elect both a man and women to represent them? We are moving towards a new millennium and it is time for politicians, and Labour in particular, to be practical - while also bold and radical.

While there is nothing positive about discrimination which undermines equality of opportunity - there is something positive about leading by example. Politicians of all political parties should give an example to citizens, and companies, by demonstrating that they are prepared to abide by discrimination laws.

Endnotes.

1. But for test - James v Eastleigh Borough Council [1990] IRLR 288.

2. The Positive Touch - Tessa Jowell MP - Tribune 8th March 96.

3. Kalanke v Freie Hansestadt Bremen [1995] IRLR 660.