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Motor Vehicles (Prohibition on Use of Hand-Held Mobile Telephones)

Janet Anderson accordingly presented a Bill to make it an offence to use a hand-held mobile telephone while driving a motor vehicle; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 12 April, and to be printed [Bill 50].

WELSH GRAND COMMITTEE

Motion made, and Question put forthwith, pursuant to Standing Order No. 107 (Welsh Grand Committee (matters relating exclusively to Wales)) and Standing Order No. 108 (Welsh Grand Committee (sittings)),

That—


1. The matter of the Pre-Budget Statement and its implications for Wales be referred to the Welsh Grand Committee for its consideration;
2. The Committee shall meet on Wednesday 28th November at half-past Ten o'clock and between Four o'clock and Six o'clock at Westminster to take questions under Standing Order No. 103 (Welsh Grand Committee (questions for oral answer)) and to consider the matter of the Pre-Budget Statement and its implications for Wales under Standing Order No. 107 (Welsh Grand Committee (matters relating exclusively to Wales))—[Mr. Kemp.]

Question agreed to.

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SCOTTISH GRAND COMMITTEE

Motion made, and Question put forthwith, pursuant to Standing Order No. 100 (Scottish Grand Committee (sittings)),

That the Scottish Grand Committee shall meet at Westminster on Wednesday 28th November at half-past Ten o'clock to consider a substantive Motion for the adjournment of the Committee— [Mr. Kemp.]

Question agreed to.

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Orders of the Day

Sex Discrimination (Election Candidates) Bill

As amended in the Standing Committee, considered.

Clause 1

Exclusion of candidate selection from 1975 Act

4.48 pm

Mr. Andrew Lansley (South Cambridgeshire): I beg to move amendment No. 4, in page 1, line 15, at end insert—

'(2A) This section applies to arrangements made by a registered political party which, in respect of elections for a single representative for a geographical area, confer preference on a female candidate who possesses equivalent or substantially equivalent merits to a male candidate but only if such candidatures are the subject of an assessment that takes account of the specific personal situations of the candidates, including their relationship with that specific geographical area.'.

Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to consider amendment No. 3, in page 2, line 23, at end insert—

'(2A) This Article applies to arrangements made by a registered political party which, in respect of elections for a single representative for a geographical area, confer preference on a female candidate who possesses equivalent or substantially equivalent merits to a male candidate but only if such candidatures are the subject of an assessment that takes account of the specific personal situations of the candidates, including their relationship with that specific geographical area.'.

Mr. Lansley: On Second Reading, the Bill received a welcome across the House. It was rightly said that the Bill was short and relatively simple, but important. I support it, and the amendments are not intended to reduce that support.

On Second Reading and in Committee many Members applauded the fact that the Bill is permissive in intent, but by switching off the provisions of the Sex Discrimination Act 1975 it allows the discretion given to political parties to be used to do various things. It became increasingly clear to me in Committee, and I hope that it will become clear to other right hon. and hon. Members, that the Bill runs the risk of reintroducing to this area of law and practice by political parties many of the uncertainties that arose from the Jepson case in 1996, and we would do well to remove them.

Amendment No. 4 is designed to apply to Great Britain and amendment No. 3 to the Sex Discrimination (Northern Ireland) Order 1976. Amendment No. 4 would set a limit on the circumstances in which positive discrimination may be exercised in favour of women. It would ensure that when a single member was being elected for a specific geographical area—that would generally mean individual Members of Parliament elected for a specific Westminster constituency or, in local government, single members elected for a ward—while a woman could be given preference in the selection over a man who had equivalent merits, all the candidates for the post, including men, should be subject to an assessment. Account should be taken of the candidates' personal circumstances, including their relationship with the

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specific geographical area. It may not necessarily be obvious, but the effect would be to exclude the application of all-women shortlists in parliamentary constituencies. Men would no longer be excluded from consideration for selection by political parties in areas where they live, regardless of their merits.

On Second Reading, when I was, frankly, less informed than I have become, I argued that although the Bill switched off the provisions of the 1975 Act that apply to the selection of candidates by political parties, it might none the less become subject to intervention by the courts on the strength of the adoption of the new equal treatment directive, or even the old one. The Minister confidently assured me that as the measure applied to elections and not to appointments, that would not be the case. However, in Committee, the right hon. Gentleman said:

"I cannot give an absolute guarantee because the European Court of Justice could ultimately decide the question differently . . . However, even if the court decided that candidate selection fell within the equal treatment directive, the hon. Gentleman—

the Minister was referring to the hon. Member for North Cornwall (Mr. Tyler), who is in his place—

"will be aware that measures under the directive and the treaty . . . allow for positive action."

He said later in that short debate:

"We expect political parties to take legal advice before proceeding".—[Official Report, Standing Committee A, 6 November 2001; c. 27.]

I do not doubt that the Minister was being both prudent and accurate, but in doing so he highlighted the problem to which I partially referred on Second Reading and which we explored in greater detail in Committee. If a court held that the equal treatment directive applied, it might apply to the measures adopted by political parties—the test of proportionality. That test was summarised in a commentary on the European Court of Justice ruling in Abrahamsson and Anderson v. Fogelqvist in July 2000, in which it was held that it was

"permissible to confer preference on a female candidate who possesses equivalent merits to a male competitor, provided that the candidatures are the subject of an objective assessment that takes account of the specific personal situations of the candidates."

I hope that it is clear that the language chosen for the amendment rests directly on that used to express the test of proportionality that a court might choose were it to apply the equal treatment directive to positive action measures taken under the legislation.

When I questioned the Minister in Committee, he said that he wanted to make it clear that

"providing the remedy is proportionate to the wrong that it is seeking to address, political parties should be able to introduce measures such as we have discussed."—[Official Report, Standing Committee A, 6 November 2001; c. 28-29.]

In that debate, the right hon. Gentleman, regardless of his confident declarations on the inapplicability of the equal treatment directive, was none the less contemplating the possibility that under the Bill political parties would have to act in a proportionate manner. Most of us would want to do so, but the question is, if political parties—in this instance the Labour party—go down that path, will it be regarded as proportionate by a court?

The Government maintain that the judgment applies to a post, but not to the selection of a candidate. I am still not persuaded by their argument. If the Jepson case demonstrated anything, it was that the selection of

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candidates by political parties effectively puts those parties in the position of qualifying bodies under section 13 of the Sex Discrimination Act. By extension, I see no reason why a court, in assessing whether people receive equal treatment when taking up a vocational activity or occupation under the directive, would not hold that the selection of candidates is integral to the process of securing employment.

The purpose of the amendments is pre-emptively to apply a test of proportionality to the positive action that the Bill will enable political parties to take, thus removing the uncertainty about the extent to which they can take action. They will then no longer need to undertake expensive legal inquiries and test cases, with all that they entail, to establish the law on positive action of this sort.

It is not only the equal treatment directive that might impact on positive action measures. If I have read the notes to the Human Rights Act 1998 correctly, protocol 12 to the convention—I do not know whether the Government intend to sign it—which creates a free- standing right to equality looks to a right of member states to take

"measures to promote full and effective equality, provided that there is an objective and reasonable justification for these measures".

A court might regard such a test—of objective and reasonable justification—as being similar to the proportionality test. In those circumstances, the European Court of Human Rights might, separately, look to some of the jurisprudence in the European Court of Justice in order to establish the relationship between those principles and their application to these matters.

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