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The Minister for Local Government (Mr. Nick Raynsford): I am not sure whether I heard the hon. Gentleman correctly, but he appeared to introduce an interesting variation on the definitions in the amendment. He said that a local government candidate, who seeks election for a single-member ward, would not necessarily have to live there, but would have to be resident in the local authority area. How does he justify that in the context of the amendment, which clearly does not allow for such an exception? It would provide that the relationship of a candidate who seeks election for a geographical area had to be

"with that specific geographical area".

Mr. Lansley: I am not talking about a legal qualification for selection. Local government and representation legislation provide that. One should be able to assess a candidate's merits. In the context of a local government election, the candidate's residence in the area will form a substantial part of the assessment. An assessment of a candidate's personal merits should also be made. That cannot be done if a political party imposes all-women shortlists on specific wards in a local authority area to try to achieve gender balance.

Joan Ruddock: The hon. Gentleman is beginning to confuse us all. He appears to place incredible emphasis on exactly where a male candidate lives. He asks why a man should not be able to stand in a specific area. What is the hon. Gentleman's motivation? He has absorbed the culture of the favoured son who serves on the council and is being prepared for a seat. That is the implication of his defence of the amendment.

5.30 pm

Mr. Lansley: I like to think that I am being generous in giving way, but at this point, rather than my being confusing, it is the hon. Lady who is deliberately confused, unless the Labour party is going to introduce all-men shortlists and debar women under this legislation. I am talking about men because, in reality, all-women shortlists are the measure that the Labour party appears to be contemplating.

If the Labour party is contemplating all-women shortlists in specific local authorities to secure gender balance, it might say that, in the election of a member representing a single-member ward, men should be debarred from standing in that ward. I want to enable the Minister to be clear about this. A man could, therefore, be debarred from standing in the ward in which he lived, even though he might meet the local authority's residence qualification and could therefore seek election in that local authority area, somewhere other than where he lived. That seems an absurdity.

It has been entertaining to test the resolution of Labour Members to pursue all-women shortlists, even under what appear to be untenable circumstances. They appear to be set on that course, even though it seems undesirable. The pursuit of equal treatment is important and necessary, and the Conservative party can and should achieve greater equality in its selection processes. We know, although

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Labour Members may not, that to do so by using overt discrimination against men, even in exceptional circumstances, is a denial of our democratic processes of parliamentary representation and of representation in local government.

This legislation should not be the way forward for political parties. Regardless of whether the measures would, in practice, be circumscribed by the courts in terms of a test of proportionality similar to the one that I have described, hon. Members should accept the amendment to demonstrate that they are willing to apply such a test to the measures used to deliver this worthwhile objective. I look for support in the House.

Mrs. Theresa May (Maidenhead): I am grateful to my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) for moving the amendment. I suspect that when he stood up to do so, he little thought that he would be on his feet for quite so long as he was because of the number of interventions that he took, especially from Labour Members. I found some of those interventions a little strange.

One of my hon. Friend's reasons for tabling the amendment is the importance of ensuring that whatever action is taken by political parties under the Bill—when it becomes an Act, as we assume that it will—it will be action that can be supported not only under this legislation, but under European Union legislation. As we have discussed in Committee, action taken by the Labour party is the most likely to be challenged, because the Labour party is the party most likely to move down the route of all-women shortlists, as opposed to the more proportionate attempts at positive action favoured by other political parties.

It is necessary to probe this issue because when we discussed the Bill on Second Reading, most of us expected political parties to be free, under the permissive nature of the Bill—which I entirely support—to introduce whatever positive action they chose to achieve the aim of getting more women selected and then elected to the House and to other elected bodies.

However, the Minister brought us up a little sharp, as did the Under-Secretary of State in Committee, with a number of references to the importance for political parties of seeking legal advice before taking action. My hon. Friend the Member for South Cambridgeshire quoted the Minister directly when he said that the Government expect political parties to take legal advice before proceeding. There was a considerable point in the Minister making those remarks and, I suspect, some feeling in respect of his own party because, as many hon. Members have said, if any action is to be challenged, it is most likely to be that of creating all-women shortlists. The party most likely to go down that route is the Labour party, so the Minister's party is most likely to be subject to a legal challenge and to require that advice.

I want to explore an aspect to which my hon. Friend referred but which has not been dealt with as explicitly as other aspects. It concerns the way in which the European Court of Justice has interpreted the law surrounding positive action. The Amsterdam treaty, which amended article 141(4) of the treaty of Rome, provides for positive action to be taken in circumstances where no gender balance exists in a particular area of representation. However, in interpreting the law in a number of cases,

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the European Court of Justice has tended to suggest that the positive action system should not be so rigid as to bar men totally from access to particular posts.

My hon. Friend made a valid point when he questioned the Minister on the differentiation between a post and selection for election as a representative on an elected body. I looked at cases that tested the original 1976 European Council directive. We should look not just at the Abrahamsson case, but at others such as the Kalanke v. Freie Hansestadt Bremen case—I apologise to the House for my pronunciation—in which the court ruled that

"on the implementation of the principle of equal treatment . . . as regards access to employment, vocation training and promotion, and working conditions precludes national rules such as those in the present case which, where candidates of different sexes shortlisted for promotion are equally qualified, automatically give priority to women in sectors where they are underrepresented".

In the Hellmut Marschall v. Land Nordrhein-Westfalen case, the court made specific reference to the phrase that my hon. Friend has put in amendments Nos. 4 and 3. It said :

"where there are fewer women than men at the level of the relevant post"—

the court was looking at public sector service—

"and both female and male candidates . . . are equally qualified . . . priority be given to promotion of female candidates"—

under various conditions—

"provided that:


in each individual case the rule provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the candidates".

That was again tested in the case of Georg Badeck and others v. Land of Hesse. The same phrase was used in the judgment:

"provided that that rule guarantees that candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates".

The issue was tested again in the case that we tend to quote in this context because it was the most obvious challenge to positive action—the Abrahamsson case. It was held in that case that an automatic preference for an inferior candidate solely because of sex was precluded by the directive, and that application of article 141(4) of the treaty of Rome did not overturn that particular judgment.

As all those cases show, the issue of positive action cannot be addressed in isolation. The issue is set against the background of the need objectively to assess a candidate's specific qualifications and personal situation in relation to the positive action that is being sought. My hon. Friends the Members for South Cambridgeshire and for Fareham (Mr. Hoban) have therefore specifically included in amendments Nos. 4 and 3 the words

"specific personal situations of the candidates".

There were many interventions and much discussion on the issue of locality and whether a candidate should be required to live in a specific locality. As my hon. Friend the Member for South Cambridgeshire made clear, and as anyone reading the amendment would see, the issue of a relationship with a specific geographical area may be encompassed by the "specific personal situations" mentioned in the amendments; it is not an exclusive requirement.

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The distinction may deal with the point that the Minister made in his intervention on the legal qualifications to stand for local authority office and the requirement to live in a local authority geographical area as opposed to a specific ward in that local authority. Nevertheless, living in a specific ward may be part of the "specific personal situations" that could be taken into account in assessing the candidates.

Various hon. Members—including the hon. Member for Hampstead and Highgate (Glenda Jackson), in various interventions—have speculated on what the Conservative party will do. As my hon. Friend the Member for South Cambridgeshire said, he and I are perhaps the two Conservative Members who least deserve to be challenged on the issue by the hon. Member for Hampstead and Highgate because we have proposed to our party a positive way forward on the issue. Although it is, of course, for our party to choose which route to pursue, we have made positive proposals.

I am grateful to my hon. Friends the Members for South Cambridgeshire and for Fareham for tabling their amendments, which are intended to test the issue. Case law sends a message on the issue. If the legislation does not incorporate amendments to reflect that case law, it is possible that a political party—we assume that it will be the Labour party—that chooses all-women shortlists will find that its all-women shortlists are challenged. I apologise to hon. Members as I have not seen the reference, but I understand that Mr. Jepson, who took the Labour party to an industrial tribunal when it first introduced all-women shortlists, has said that he would consider challenging, on the basis that I have outlined, the party's decision to reintroduce such lists.

In a sense, therefore, the amendments have been introduced to help the Government to operate the legislation and to address the issue of what positive action the political parties can take. I look forward to hearing the Minister's response. If he is concerned about the possibility of legal challenge to certain types of positive action, as there most likely will be to all-women shortlists, he should very carefully consider accepting the amendments. They attempt specifically to ensure that the legislation clarifies the types of allowable positive action, thereby reducing the likelihood of legal challenge to political parties that try to take such action.

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