The need for more women Members of Parliament.  

Written by Dr Peter Jepson

(Published in the  New Law Journal on the 7th April 2000)

There 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. 

The 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 European laws. 

 The current legal position in the United Kingdom.

Many 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 such action.[iv]

The 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]  

In 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 consideration. 

Thus, 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.

The European Union perspective.

One 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)? [vii]  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. 

To 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 following terms: 

 ìÖ 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  

The case of Kalanke v Freie Hansestadt Bremen[viii] involved two horticultural workers, applying for promotion to a more senior post.  In 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 

Not 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.  

In 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). 

In 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: 

1.       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. 

2.       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. 

3.       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. 

4.       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 ETD. 

5.       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. 

Certainly, 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.

It 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

All women shortlists - a breach of human rights?

While 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:

ëThe principle of equal treatment of all citizens in the exercise of their right to vote and their right to stand for electioní. 

It 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 the Convention: 

ëShall be secured without discrimination on any grounds such as sex, race, colourÖor other statusí.

A ëpairingí approach that could provide greater opportunities for women.

All of these arguments suggest that there could be ample opportunity for a legal challenge[xii] 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.

Mathematically 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.

There 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 Human Rights.

There 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.

Dr Peter Jepson

29th March 2000.

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