The Sex Discrimination (Election Candidates) Bill.

   

This article was published on  www.epolitix.com  in November 2001. 

It was in 1996 - in the case of Jepson v The Labour Party[i] - that an Employment Tribunal declared that the Labour Party had acted unlawfully in using all-women shortlists as a means of selecting its parliamentary candidates. As the person who initiated and argued that case, I was delighted by an outcome that ensured that political parties – like all other UK organisations – were subject to the discrimination laws of the country. Since that time the Labour Party have appeared in a few cases defending their equal opportunities reputation. 

Now the Labour Government wishes to make political parties exempt from the Sex Discrimination Act 1975. Indeed, they seem to be doing this despite claims – ringing in my ears - from the Prime Minister Tony Blair that he is not a supporter of all-women shortlists. 

In this article, I intend to argue that the Sex Discrimination (Election Candidates) Bill, currently going through Parliament, will be fundamentally flawed if its aim is to enable a vehicle for all-women shortlists – essentially because I believe these are unlawful under EU Law and the Equal Treatment Directive 76/206.   

 

The Sex Discrimination (Election Candidates) Bill. 

The EC Bill, as per the explanatory notes accompanying the legislation, is designed to reverse the case of Jepson v The Labour Party (notwithstanding the fact that there was no appeal at the time) and to make political parties exempt from sex discrimination laws. 

The legislation offers no advice on how political parties should deal with problems of inequality and simply enables them to take any steps they wish. Political Parties will be free to leave things as they are – selecting candidates on merit and using positive action programmes to encourage more women and ethnic candidates (with training etc). Or, they can develop an alternative of using a ‘pairing’ process in the selection of their candidates and thereby mathematically ensuring that an equal number of men and women are selected (this was successfully used in the selection of Labour Candidates for the Welsh Assembly). Interestingly, none of these options require legislation, since they are either expressly provided for within, or perceived to be compatible with the SDA 1975. 

Obviously, as seems implicit in the speech made by Government Minister Patricia Hewitt at the Labour Party Conference, the rationale behind the EC Bill is to enable all-women shortlists. 

The problems with all-women shortlists is that they put ‘gender’ before ‘merit’ and thereby produce an act of sex direct discrimination that cannot be justified under the law (since the law does not provide a justification for direct discrimination). It can also be argued those who propose them are indirectly racist, because they provide a solution to women’s inequality and do nothing to tackle inequalities with regards to racial and/or religious representation. Indeed, if the solution to unequal representation in Parliament lies in positive discrimination – why is the government not introducing legislation to enable ‘All-Muslim’ and/or ‘All-Ethnic’ shortlists? 

 

Compatibility with ECHR. 

In the explanatory notes to the EC Bill, Stephen Byers, The Secretary of State, states that the legislation is compatible with the European Convention on Human Rights. Such a statement is accurate in terms of the literal wording of the Bill. 

However, should it enable a single sex vehicle, there is a strong argument that this will lead to inconsistency with Convention rights. For example, in the case of Mathie-Mohin & Clerfayt v Belgium[ii], the Court of Human Rights held that a key phrase under Article 3 of the Fifth Protocol (which concerns the free expression of the people in the choice of their legislature) implies “The principle of equal treatment of all citizens in the exercise of their right to vote and their right to stand for election”.  

Logically, assuming jurisdiction, this should mean that no citizen could be prevented from standing for election because of his/her gender. In arguing the Fifth Protocol, it would certainly be possible to rely upon the rights set forth in Article 3 of the ECHR of the Convention, which shall be secured without discrimination on grounds such as sex, race, colour… or other status. 

 

European Union Law.

While the position of compatibility in relation to Convention Rights is addressed in the EC Bills explanatory notes, it is noticeable that there is silence when it comes to compatibility with European Union laws. Indeed, this reminds me of the Leeds Employment Tribunal where James Goudie Q.C., acting for the Labour Party, seemed happy to discuss ECHR case law but reluctant to relate to legal obligations under the EU Equal Treatment Directive. Essentially, like the good lawyer that he is, he was avoiding elaborative discussion on an area of law that weakened his case.  Similarly, Stephen Byers, the Senior Minister responsible for this legislation, is avoiding the issue of whether this legislation will result in all-women shortlists and whether they are compatible with legally binding requirements under EU law. 

If Stephen Byers examines the words of the Chair of the Tribunal, in the Jepson v Labour Party case, he will find that the tribunal considered EU law. Indeed, it was expressly said - in relation to Article 2(4) of the ETD, which provides for positive action exceptions – “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 [of Justice] in the Kalanke case.” 

It is my considered view - having researched the limited changes by the ECJ since the case of Kalanke[iii] - that positive action developments in cases, such as Marschall[iv] and Bardeck v Hessischer[v], 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 ‘Article 3(1) ‘there 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.’

 

The opportunity for a legal challenge. 

When the legislation 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 - under the equal treatment directive - by stating that “the legal advice we have received is that, provided positive action is proportionate to the issue, there will be no legal problem.” Therein lies 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.  

Weighty legal opinion – such as that of Lord Lester Q.C. - have in the past expressed the view that all-women shortlists are incompatible with EU discrimination laws. I wholeheartedly agree with such logic and it seems possible – if the EC Bill establishes a single sex vehicle – that a claim could be brought against the Labour Party and the UK Government (along Francovich principles).[vi]

 

Dr Peter Jepson, Strode’s College, Egham..

November 2001.

Dr Peter Jepson has a PhD in Discrimination Law.

[i] IRLR [1996] 116.

[ii] [1987] 10 EHRR 1.

[iii] [1995] IRLR 660.

[iv] C-405/95 decided on the 11th December 1997.

[v] C- 158.97 decided on the 28th March 2000.

[vi] That is, a claim against the state may be applicable if the state fails to comply with a EU Directive – see Francovich v Italian Republic [1992] IRLR 84.