Tackling Sex and Race Discrimination

(Sent to Tribune for publication - 24th March 96).

Email: law@peterjepson.com

Recent Tribune articles by Ann Pettifor, Tessa Jowell, and in particular Angela Eagle, suggest a degree of hysteria in response to the all-women shortlist decision in Jepson & Dyas-Elliott v The Labour Party.

The facts are that the tribunal found the male applicants had suffered sexual discrimination and the Labour Party decided not to appeal against that finding.

Ann Pettifor (22nd March 96) raises some criticism of the ruling - with some logical arguments and questions about the difference between the Labour Party and the Monster Raving Loony Party. This issue was debated in the Leeds Industrial Tribunal, and it would seem the answer goes to compensation. In effect, the MRLP could sexually discriminate in a selection process - however, since a persons chances of election are less - this would be taken into account in establishing compensation.

Ann Pettifor further argues that the Tribunal have 'gravely misrepresented the intention of Parliament in 1975'. I argued, successfully, in the Industrial Tribunal that in determining the law in relation to Sex Discrimination you should interpret legislation through the eyes of Europe and not the eyes of Parliament. This, indeed, is a price that must be paid for the United Kingdom's signature on the Treaty of Rome.

By comparison, Tessa Jowell MP, in her article 'The Positive Touch' (8th March 96), argues: 'the choice is between taking the sex discrimination law out of the selection process within political parties and permitting it to apply...as for positive discrimination there remains a strong case for making an exception when it comes to the political process'. This raises a number of issues. Given that people from the ethnic communities have an even greater problem of obtaining fair representation in the House of Commons why is she not prepared to argue for a change of law to allow all-black shortlists? Or, is she really arguing that sex discrimination is more important than race discrimination?

Tessa Jowell also ignores the point that the UK cannot unilaterally opt out of Europe's 'Equal Treatment Directive'. Is she really, as a possible future Minister for Women, going to argue in Europe that the UK want's an opt out of the 'Equal Treatment Directive' so that it can give an exemption to political parties? Surely, if companies and governments are bound by the Equal Treatment Directive so should be political parties. Indeed, the European Court of Justice have recently made clear, in the case of Kalanke (which concerned the German Authorities), that such positive discrimination is not allowed under the Directive.

This hysteria is completed by Angela Eagle MP (8th March 96). She argues the Leeds Industrial Tribunal have ruled out 50/50 shortlists of men and women. This statement, which I understand has been repeated by others, is a nonsense. The case of Jepson & Dyas-Elliott v The Labour Party was not concerned with 50/50 shortlists and it did not consider the issue. It is my view that positive action to establish such a quota on a shortlist is likely to be considered as acceptable. That is, so long as there is no discrimination, on the basis of sex or gender, at the point of appointment or selection.

I have consistently argued that the way forward for women's representation in parliament is through constitutional change. Tony Blair has promised a referendum on electoral reform. This provides us with the ideal platform on which to argue that any electoral system [PR (with an ethnic quota?) or first past the post] should result in the electorate choosing a male and female representative for each constituency.

In the meantime, I challenge Anne Pettifor, Tessa Jowell and Angela Eagle to a public debate. By all means let us discuss the implications of the Leeds Industrial Tribunal decision - but let us not loose sight of the fact that all-women's shortlists did nothing to deal with the unfairness of ethnic representation in the House of Commons. Men, women, and people from ethnic backgrounds should all be treated equally.

There is nothing positive about discrimination against men, women, or ethnic people. The new Clause IV commits the Labour Party to 'promote equality of opportunity'. This is the way forward for new Labour.