Positive Action ñ Negative Result?
This article (without the graphic) was published in ëThe Parliamentary Monitorí magazine, March 2002.
While Parliament may have approved the Sex Discrimination (Election Candidates) Bill, the battle for equal opportunities in the selection of parliamentary candidates is far from over. Indeed, this could just be the start of problems for the government with it being possible that any political party that operates in breach of the EU Equal Treatment Directive could find themselves, and the government,[i] embroiled in a legal challenge that could end up in the European Court of Justice.
The (EC) Act, as per the explanatory notes accompanying the legislation, is designed to reverse the case of Jepson v The Labour Party[ii] and to make political parties exempt from sex discrimination laws so far as UK law is concerned.
The legislation offers no advice on how political parties should deal with problems of inequality between men and women and simply invites them to take any steps they wish. Political Parties will be free to leave things as they are ñ selecting candidates on merit and using positive action programmes to encourage more women candidates (with training etc). Or, they can take a number of different routes to ensuring that more women candidates are selected.
The most obvious of these is that of using the ëpairingí process so as to ensure that more women are selected. The basic approach of this is that adjacent, or nearby, constituencies are paired for the purposes of parties selecting their Parliamentary Candidates. The process is relatively simple, in that when nominating/selecting candidatesí party members are required to nominate/vote for a man and a woman. Mathematically this should ensure that a man and woman are selected, with the person with the most votes deciding which of the two constituencies they wish to stand in.
A major advantage of this approach is that it is tried and tested[iii] and unlikely to be seen as overtly sexist. To this extent it is unlikely to be legally challenged and if it were, it should not result in a finding of direct sex discrimination because it is proportionate with members of both sexes having an opportunity to be selected.
In comparison, all women shortlists exclude men from consideration and are therefore directly discriminatory. The case of Jepson v The Labour Party confirmed this point and exempting political parties from UK law will not eradicate the fact that the selection process discriminates.
When the (EC) Bill was given its second reading, in the House of Commons, The Secretary of State Mr Byers responded to a question about the possibility of a legal challenge ñ under the EU equal treatment directive ñ by stating that ìthe legal advice we have received is that, provided positive action is proportionate to the issue, there will be no legal problem.î Therein lays the problem in relation to the legislation. I do not believe that all-women shortlists can ever be described as proportionate to the issue. Indeed, there can be no element of proportionality in a selection process that emphatically excludes people simply because of their gender. To justify this opinion I refer to the judgement in the case of Jepson v Labour Party, where it was expressly said ñ in relation to Article 2(4) of the ETD, which provides for positive action exceptions ñ ìsuch 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 [of Justice] in the Kalanke case.î
It is my considered view ñ having researched the limited changes by the European Court of Justice since the case of Kalanke[iv] - that positive action development in cases, such as Marschall[v] and Bardeck v Hessischer[vi], do not stretch to excluding people from shortlists or selections simply because of their gender. Indeed, in all its jurisprudence, the ECJ consistently supports the wording of the Equal Treatment Directive which says in ëArticle 3(1) 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
A logical approach.
In my opinion, political parties should take the positive step of enabling more women to become Members of Parliament. The statistics show that women are not fairly represented (only 17.9% of M.Pís are women) and it follows that leaving things as they are is not progressive or desirable.
Limited positive action measures, such as training, are important but they will not in themselves produce a quick solution. While all-women shortlists may be appealing to some extremists, it must be remembered that such an approach could well result in an embarrassing and expensive legal challenge. It follows that the logical approach for political parties, intent on improving the numbers of women in Parliament, is in adopting the ëpairingí process.
Dr Peter Jepson.
Lecturer in Law & Citizenship, Strodeís College, Egham.
27th February 2002.
[i] The case of Francovich v Italian Republic  IRLR 84 establishes that a sex discrimination claim can also be made against a government in circumstances where they have failed to implement a Directive.
[ii]  IRLR 116.
[iii] The Labour Party used a ëpairingí method for selecting Welsh Assembly candidates. In the Welsh Assembly 41.7% of elected members are women.
[iv]  IRLR 660.
[v] C-405/95 decided on the 11th December 1997.
[vi] C- 158.97 decided on the 28th March 2000.