Sex Discrimination (Election Candidates) Bill

[back to previous text]

Mr. Lansley: My hon. Friend the Member for Maidenhead has set out many of the arguments; I followed some of them. When I asked questions on Second Reading, the Minister responded—I freely admit it—with great assurance. I did not understand him then, although I understand a little better now. It is useful to be clear. It seems to me that the purpose of the clause is to bear upon selection. It is about section 13 of the Sex Discrimination Act 1975, and would remove the question that, for this purpose, political parties are the bodies that qualify those who stand for election, while an election is the process of appointment to a job. If that is the case, and if I understood the Minister correctly, the equal treatment directive will bite upon the question of appointment to jobs rather than upon the qualifying bodies that establish a pre-qualification for those who wish to become employed. That is the distinction that the Minister made between the Abrahamsson case—appointment to a post—and the selection of parliamentary candidates.

The Minister offers us great assurances. However, I am not convinced. I have spent some time—my hon. Friend the Member for Maidenhead might not have done so—looking at the way in which European legislation has tended to permeate the interpretation of UK legislation. I fear that the interpretation of EU legislation, particularly of the issue of proportionality might be subject to the creeping extension of EU legislation to try to interpret the selection of candidates by political parties as tantamount to the election of those individuals, for the very reasons that my hon. Friend has given. The test here is of the treatment of those who are otherwise of wholly equivalent merit in those circumstances in which the arrangements are designed to give automatic preference to women.

In many constituencies the process of election seems to be the secondary issue. The process of selection is the prior and pre-eminent question regarding who takes that appointment. If that is the case, is there not a risk that the very issues raised in the Abrahamsson case, and the proportionality of those measures, will come back into UK legislation? If the measure is interpreted in that way, can we be confident that it will be robust for women-only shortlists? I suspect that we are talking only about women-only shortlists.

Other measures would probably be regarded as proportionate. Other measures on the continent seem to be robust, as was implied in an intervention. As I understand it, on the continent such measures are not normally adopted in relation to first-past-the-post elections in single-member constituencies. We need to establish whether the legislation will be robust—in the terms in which the Labour party might pursue it—where a man who is eminently well qualified to represent a constituency in which he has lived and worked and perhaps been a council leader, brings a case that it is disproportionate to debar him from standing in that constituency.

Mr. Tyler: Will the hon. Gentleman clarify a point, as there is a danger of a misconception? Because he has referred to different electoral systems on the continent, other Committee members might think that his reference to proportionate measures has some relationship to proportionate systems. Of course, it does not. It is important to recognise that proportionality of measure might be affected by the system that is used for election. With respect to the hon. Gentleman, he might be encouraging a misunderstanding. He is right to say that the subject is fraught, and I hope that Ministers will reassure us about it. The lawyers will have huge fun with it unless we are lucky.

12 noon

Mr. Lansley: I do not want any confusion about proportionate measures and proportional representation. In our system and in continental systems, we can all contemplate the idea that taking positive action can be entirely proportionate to the objective. The question is whether one takes the further step. That will be the Labour party's problem, in my humble view. Labour Members no doubt argue that a move to women-only shortlists is proportionate to the objective, because other measures cannot deliver the result. Nevertheless, it may be held in law not to be proportionate, because it means that the individual to whom I referred—a man, in this context—would be debarred from representing the place where he may have lived, worked and represented people for many years. I still have not understood why the issue of proportionality will not be imported back into our courts' interpretation of the Bill, whatever its final form.

Mr. Raynsford: The hon. Member for Maidenhead made it clear that her amendment was a probing amendment and spoke mainly about the implications of the Bill in relation to the Jepson judgment and European Union legislation. I will deal with them and move on to the possible unsatisfactory consequence of the amendment. I hope that I shall make it clear to her that the amendment is unnecessary, and that she will withdraw it.

The hon. Lady started well by taking pride in the fact that, after four and a half years in this place, she had not got into the anorak obsession with the minutiae of EU legislation that some of her colleagues sadly have. Having had to endure some of them in discussion on previous Bills, it is a refreshing relief to hear her far more pragmatic approach.

Difficult issues surround the interrelationship between EU legislation and United Kingdom provisions, and the Jepson case is one that is at the focus of our attention. The key point—I made it when responding to the debate on Second Reading and will try to clarify it—is that the Jepson case depended on section 13 in part II of the Sex Discrimination Act 1975 being interpreted as covering Members of Parliament, because it referred to an

    ``engagement in a particular profession or trade''.

In our view, the Bill does not affect those issues. It affects only positive measures taken by political parties for the process of candidate selection. The hon. Lady may then ask why the wording does not relate only to selection, but I will return to that in a moment. Candidate selection, in our view, is not covered by the equal treatment directive. The subsequent election of MPs and other elected representatives is not sufficiently like the process of being selected for employment to fall within the equal treatment directive.

Mrs. May: I am interested in that point. Will the Minister confirm that one of the arguments used by the Labour party in the Jepson case was that the selection of candidates fell within the equal treatment directive, and that that was rejected by the tribunal, which suggested that the Kalanke case did not authorise positive discrimination of the sort specifically involved in all-women shortlists?

Mr. Raynsford: The hon. Lady raises a valid point, and I hope that she will accept my response. We are keen to set out a constructive way forward that does not unduly fetter opportunities for those who may want to challenge Jepson in future, nor to predetermine any interpretation of it. The Bill approaches the issue in a way that will give the assurance that I think we all want: political parties can be free to introduce appropriate positive measures to assist the selection and election of candidates for various offices without falling foul of the equal treatment directive or of other measures that might fetter their ability to implement proposals.

Mr. Tyler: I declare a non-interest in the sense that my party has few safe seats. Mine is one of the safest, although I originally had a majority of nine. My situation is different from the one that was described. None the less, I want to press the Minister and to be convinced by him. When a Minister says, ``In our view, measures will not be subject to the equal treatment directive'', my instinct, from having spent a long time in this place, is to ask whose view he means. Many legal authorities take the opposite view, and I want to be as assured as I can be that the concerns that Opposition Members have expressed, which are shared by others in the House, will be fully met before the Bill completes its passage.

Mr. Raynsford: I hear what the hon. Gentleman says. He will appreciate that we carefully considered all the issues before framing and introducing the Bill. We have taken detailed advice and are confident that our proposals will achieve our aim, which is shared more widely. At the same time, the Bill will provide the best possible safeguard against legal challenges. However, I must be open with the hon. Gentleman: I cannot give an absolute guarantee because the European Court of Justice could ultimately decide the question differently, and we must accept that such differences are inevitable. However, even if the court decided that candidate selection fell within the equal treatment directive, the hon. Gentleman will be aware that measures under the directive and the treaty—some of which have been mentioned—allow for positive action. I cannot give the hon. Gentleman the absolute assurance that he seeks, but I can assure him that we have examined the matter carefully. I can also assure him and the hon. Member for Maidenhead that others take our view. It was appropriate for the hon. Lady to pray in aid the Fawcett Society on a previous group of amendments. Its briefing clearly states:

    ``Fawcett believes it is very unlikely that any challenge made under European law against a party using positive action as allowed by the Sex Discrimination (Election Candidates) Bill would succeed.''

So, we are not alone. We think that we are right, but I cannot give an absolute assurance. That is why we are saying, as we always have, that the Bill is permissive. We expect political parties to take legal advice before proceeding with a measure, because they will have to defend it if it is challenged. I entirely accept that that applies to the Labour party; indeed, some people feel that it applies even more to our party because of the issue of the proportionality of the response to the problem to be remedied and because some responses might be less thoroughgoing than others. There are interesting issues of balance.

My hon. Friend the Member for Lewisham, Deptford rightly said that we were not alone in Europe. Other European countries have adopted a range of positive action measures, and we know of no legal challenge that has succeeded. There is, therefore, strong support for our proposals, subject to the caveat that I mentioned.

The amendment tries to widen the test applied in the Bill, which deals with the outcome of elections. By using the word ``elected'', we focused on the end result, not on any stage in the electoral process. In providing for equal representation, the correct test must be the numbers of those elected.

The hon. Member for South Cambridgeshire raised the issue of the proportionate nature of the response to the problem. This step has been taken precisely because of the absence of an even moderately representative number of women in this Parliament, in local government and among United Kingdom Members of the European Parliament. We must change that. We cannot determine the outcome and the proportionality of the remedy simply by considering selection. As my hon. Friend the Member for Lewisham, Deptford made only too clear, a party could select a huge number of women candidates for seats to which none of them would get elected.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 6 November 2001