need for more women Members of Parliament.
Written by Dr Peter Jepson
(Published in the New Law Journal on the 7th April 2000)
has been speculation in the press,[i]
following comments of Margaret McDonough the General Secretary of the Labour
Party, that the government is considering supporting a bill that will enable
political parties to establish all-women shortlists for the selection of
parliamentary candidates. Indeed, the Sex Discrimination (Amendment No 2)
Bill seeks to facilitate this by exempting political parties from s.13 of
the Sex Discrimination Act 1975.
recent European Court of Justice case of Badeck v Hessischer[ii]
opens up the possibilities for positive action to facilitate the employment of
women in the public sector. I welcome these developing opportunities, but I
believe that all-women shortlists remain unacceptable under domestic and
current legal position in the United Kingdom.
will recall the shambles prior to the last general election when the Labour
Party were forced to abandon its all-women shortlist parliamentary selection
process after a Leeds Industrial Tribunal ruled that this was in breach of the Sex
Discrimination Act 1975. In essence this judgement, in Jepson and Dyas-Elliott
v The Labour Party,[iii]
was based upon the fact that a political party is considered to be equivalent to
a qualifying body under s.13 of the Sex Discrimination Act 1975 and that
to enable the short-listing of a person purely on grounds of their sex amounts
to direct discrimination ñ with there being no justification under the law for
Labour Party decided not to appeal against this decision and accordingly it
established a point of law, albeit that it has limited binding authority due to
the fact that it was only an Employment Tribunal decision.
However, its limited foundations are now more secure in light of the case
of The Labour Party v Ahsan. [v]
Ahsan, the Employment Appeals Tribunal was asked to consider whether similar ëqualifying
bodyí provisions, under s,12 of the Race Relations Act 1976, enabled
jurisdiction for a local council government Councillor seeking to claim race
discrimination in a selection process.
In this case the EAT, while making positive reference to Jepson
v Labour Party as persuasive precedent, decided that jurisdiction did exist[vi]
and the case was duly referred to the employment tribunals for
the current legal position is that all-women shortlists are considered to be
unlawful under UK law. Logically, given the general assumption that parliament
is supreme over domestic courts, it could in theory be possible for parliament
to change the sex discrimination laws so as to exempt political parties and
thereby enable the resumption of all-women shortlists.
European Union perspective.
problem with this approach is that such exemption raises three issues. First, it
gives the impression that political parties are putting themselves above the law
ñ exempting themselves while leaving other bodies and organisation subject to
the rigours of the discrimination laws. Clearly, that is a political public
policy issue and one that I do not intend to consider in this article, other
than to say that there appears to be limited justification for treating a
political party different to other bodies. Secondly, the arguments of Margaret
McDonough seem to relate exclusively to gender, but surely there exists equal
problems with regards to the selection of ethnic candidates. Again, space does
not permit a detailed examination of this issue, but one might infer that some
people may regard gender discrimination as more important than race (which is
clearly undesirable given the broad uniformity between the sex and race laws)?
Thirdly, and the area that I will consider, is that exempting political
parties so as to enable all-women shortlists could place the UK in breach of
European Union law in the form of the Equal Treatment Directive 76/207.
consider this issue of compatibility with the ETD, we can begin by looking again
to the case of Jepson v The Labour Party. In Jepson, the tribunal
rejected the argument of the Labour Party that the positive action exceptions,
under Article 2(4) of the ETD, enable the positive discrimination of
all-women shortlists. Indeed, the tribunal were emphatic on this point in the
such a total block on one sex as occurs here cannot have been the intention in
that Article, a view which we regard as fully endorsed by the decision of the
European Court in the Kalanke case.î
case of Kalanke v Freie Hansestadt Bremen[viii]
involved two horticultural workers, applying for promotion to a more senior
this situation, the post was awarded to the female because a national rule
provided for, where equally qualified men and women candidates for the same
promotion in fields where there are fewer women than men at the level of the
relevant post, women to be automatically given priority. This automatic
preference was held to be beyond the parameters of Article 2(4) of the ETD,
which provides for ëmeasures to promote equality of
opportunity for men and women, in particular by removing existing inequalities
which affect womenís opportunities.í
surprisingly this Kalanke decision has been considered controversial,[ix]
due to its potential for limiting EU and governmental positive action measures.
Accordingly, amidst such criticism, the European Court of Justice looked again
at the issue and, in the case of Marschall v Land Nordrhein-Westfalen,[x]
revised its approach.
Marschall the issues were broadly similar to Kalanke, in that Mr Marschall
applied for promotion to the post of a first-grade teacher in a secondary school
and the post was given to a female despite the fact that both candidates were
considered to be equally qualified.
However, in Marschall there existed one marginal, but noticeable,
difference - in that there was a legislative provision that allowed
administrative latitude where reasons specific to the male candidate existed
which could tilt the balance in his favour.
Accordingly, the ECJ rejected the claim of Mr Marschall and held that it
can be possible to give a preference to a female candidate in circumstances of
promotion provided that (a) the candidates are objectively assessed as equal,
and (b) such criteria for objective assessment takes into account any elements
that tilt the balance in favour of the male candidate (such criteria must not of
course be such so as to discriminate against the female candidate).
Bardeck v Hessischer the ECJ was asked to consider a number of situations
associated with positive action in the public sector. In particular, they
examined provisions where national legislation enables priority to be given to
female candidates in the following situations:
Where a national rule enables priority to be given to female candidates,
i.e. where male and female candidates have the same qualifications, in order to
comply with binding targets in a ëWomenís Advancement Planí.
The ECJ held this to be acceptable provided that candidates are the
subject of an objective assessment which takes account of the specific personal
situations of all candidates.
Where such rules provide for binding targets for women, stemming from the
ëWomenís Advancement Planí, in relation temporary posts of an academic
nature. This being allowed provided that there does exist a minimum percentage
of women which is at least equal to the percentage of women among graduates who
hold the appropriate qualifications.
The establishment of womenís quotas in training with a view to
obtaining qualifications. The ECJ allowed this since the quotas are only for
training and no male candidates are definitively excluded.
Where male and female candidates are assessed as having equal
qualifications and those drawing up a shortlist establish that the same number
of woman as men are selected for interview, notwithstanding that there may be
more male than female applicants. Again, the ECJ allows such positive action
provided candidates have equal qualifications and the intention is to promote
equal opportunities for men and women within the meaning of Article 2(4) of the
The ECJ also accepted a national rule that recommends, in relation to the
appointment of collective bodies and administrative supervisory bodies, that at
least half of the members of the bodies must be women.
This being allowed so long as it is not mandatory and permits, to some
extent, other criteria to be taken into account.
the case of Badeck goes a long way to enabling positive action in the selection
and training of women for posts. The case provides an opportunity for government
to make changes to the domestic discrimination laws to enable positive action in
relation to the appointment of women in the workplace. This must surely be
welcomed, but it is important to recognise that the law still requires a
balanced approach based upon merit. There remains a clear need for an objective
assessment of candidatesí qualifications before it becomes possible to take
positive steps to deal with the historical problems of inadequate representation
of women at work.
It follows, therefore, that EU law cannot be considered as accepting the
principal of all-women shortlists. Such a positive discriminatory approach would
establish automatic exclusion of potential candidates on the grounds of gender,
which would be entirely inconsistent with the cautious methodology of the
European Court of Justice.
follows from these EU cases, that all-women shortlists will certainly fall foul
fall of the ETD, with Article 3(1) making clear that ëthere
shall be no discrimination whatsoever on grounds of sex in the conditions,
including selection criteria, for access to all jobs or posts, whatever the
sector or activity and to all levels of the occupational hierarchy.í
women shortlists - a breach of human rights?
it could be argued that providing greater opportunities for women is a positive
in terms of human rights. There could nevertheless still be a strong argument
that the positive discrimination of all-women shortlists could be in breach of
the European Convention on Human Rights.
This proposition originates from the arguments of Mr R Allen Q.C in the Labour
Party v Ashan case. Mr Allen refers to Article 3 of the Fifth Protocol
and an undertaking by the ìthe High Contracting Partiesî to hold free
elections ìunder conditions which will ensure the free expression of the
opinion of the people in the choice of the legislatureî.
In the case of Mathieu-Mohin & Clerfayt v Belgium,[xi]
the European Court of Human Rights held that this phrase essentially implied:
principle of equal treatment of all citizens in the exercise of their right to
vote and their right to stand for electioní.
is also clear that Article 14 of the ECHR, which may be read together
with Article 3, provides that the enjoyment of the rights set forth in
be secured without discrimination on any grounds such as sex, race, colourÖor
ëpairingí approach that could provide greater opportunities for women.
of these arguments suggest that there could be ample opportunity for a legal
to any domestic legislative changes that may enable all-women shortlists. To
this end, alternative methods need to be explored. For a few years now the
Labour Party have been developing[xiii]
a ëpairingí selection method, which established a less obvious means of
securing women members of parliament. This idea, which originates from a
proposal I submitted to the National Executive Committee in 1996, involves the
pairing of constituencies for selection purposes.
The logic behind the ëpairingí proposal is that, within these paired
constituencies, trade unions and branches can nominate a man and a woman to a
shortlist. Once a shortlist is drawn up, members are then obliged/required to
vote for the man and the woman candidate of their choice.
this will almost certainly result in a man and woman having the highest numbers
of party member votes, with the winning candidate choosing which of the two
constituency seats they wish to stand in. Logically, this method suggests no
obvious direct form of discrimination, since male and female candidates would
have an equal opportunity of being selected.
It could be argued that this ëpairing methodí is indirectly
discriminatory - in that the criteria used could prejudice a certain candidateís
chances of being selected. However, if there were to be an indirect sex
discrimination challenge, it should be possible to justify this discrimination
on the grounds that this selection method is necessary to tackle the inherent
discrimination which, over the years, has resulted in so few women MPís being
elected. Given the European Court of Justices approach ñ as evidenced in Bardeck
v Hessicher - to accepting limited forms of positive action,[xiv]
such a ëpairing methodí must stand a good chance of being found to be within
the limits of judicial discretion.
is no doubt that strong moral arguments exist for providing greater
opportunities for women to become members of parliament. It can only strengthen
our democracy to see more women active in parliament. However, there is no
provision for all-women shortlists in law and any attempt to amend domestic laws
to provide for such seems an invitation to a legal challenge on the basis of
inconsistency with EU laws and incompatibility with the European Convention on
is no need for new legislation, the most effective means of securing the goal of
seeing more women becoming members of parliament is for political parties to
amend their selection process so as to pair constituencies. All political
parties could readily adapt this pairing method for selecting candidates for the
UKís first past the post system of election, with it being suggested that this
approach is preferable to all-women shortlists and a more acceptable method of
ensuring that women can play a more active part within our democracy.
29th March 2000.
[i] ëChange rulesí to allow more women MPís ñ The Guardian, 8th March 2000.
[ii] Georg Badeck and others v Heissicher Ministerprasident and Landedsnwalt beim Staatsgerichtshof des Landes Hessen Case C- 158/97. This case was decided on the 28th March 2000.
[iii] IRLR  116.
[iv] As per James v Eastleigh Borough Council  IRLR 288 HL.
[v] EAT  1299.
[vi] Thereby, indirectly, confirming the ratio of Jepson v The Labour Party.
[vii] The arguments on race are outside the remit of this paper. However, it is worthwhile noting that the pairing proposals suggested later in this article could feasibly be adapted to enable the selection of ethnic candidates.
[viii]  IRLR 660
[ix] See ëCases and Materials on Employment Lawí, at page 261, by Painter, Holmes and Migdal ñ published by Blackstone Press 2000.
[x] Case C-409-95 of November 1997.
[xi] (1987) 10 EHRR 1.
[xii] A legal challenge could be mounted via Judicial Review, with two grounds existing. (1) Incompatibility with legal obligations within the European Union. (2) Incompatibility with Human Rights. A claim could also be made via an employment tribunal, with direct effect arguments (thus reliance on the Equal Treatment Directive) existing due to the post concerned being that of a Member of Parliament.
[xiii] This ëpairingí method has been applied by the Labour Party in Scotland and Wales with a degree of success.
[xiv] As per Article 2(4) of the Equal Treatment Directive.
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