8. ASSOCIATIONS
240. Part 7 makes it unlawful for an association
to discriminate against, harass or victimise an existing or potential
member, or an associate, or a guest. Clause 103 provides that
these non-discrimination requirements apply to associations with
at least 25 members, where access to membership is controlled
by rules and involves a genuine selection process based on personal
criteria. These provisions harmonise and extend existing protection,
and establish that an association cannot refuse membership to
a potential member or grant it on less favourable terms because
of a protected characteristic. In addition, an association is
prohibited from refusing an existing member or associate access
to a benefit, or depriving him or her of membership or rights
as an associate, because of a protected characteristic. This would
mean, for example, that female members of a club could not be
denied equal access to club facilities. However, as clarified
by Schedule 16, this does not prevent associations restricting
their membership or guest invitations to people who share a protected
characteristic. This permits for example men-only clubs, or clubs
whose membership is restricted to members of a particular religion,
but Schedule 16(1)(4) prohibits clubs confining their membership
or guest invitations to persons of a particular skin colour.
241. This Part also prohibits private associations
from discriminating against members of an association, associates
or guests except in certain limited circumstances, thereby impacting
upon the right to freedom of association protected by Article
11 ECHR. However, this interference with freedom of association
can be seen as objectively justified under Article 11(2) by the
need to eliminate discrimination. We consider that an appropriate
balance has been struck in these provisions between the right
to freedom of association and the right to non-discrimination
and equality.
Political Parties
242. Clause 101 allows registered political parties
to make arrangements in relation to the selection of election
candidates to contest Westminster, European, devolved and local
elections in order to address the under-representation of people
with protected characteristics in elected bodies. For example,
this will allow political parties to reserve places on relevant
selection shortlists for people with a specific protected characteristic
such as a particular ethnic origin, race or disability. However,
Clause 101(6) and (7) restricts the use of "closed"
shortlists: only single-sex closed shortlists for election candidates
are permitted, in line with existing legislation.[308]
Clause 102 extends the expiry date for the provisions permitting
single-sex shortlists until 2030, but also permits a Minister
of the Crown to extend their use beyond that date.
243. In general, international human rights law
appears to view this type of positive action as permissible if
the measures introduced are necessary, proportionate and time-limited.
For example, in its General Comment 18, the Human Rights Committee
(HRC) charged with interpreting the International Covenant on
Civil and Political Rights (ICCPR) has stated that "[not]
every differentiation of treatment will constitute discrimination,
if the criteria for such differentiation are reasonable and objective
and if the aim is to achieve a purpose which is legitimate under
the Covenant".[309]
Article 4(1) CEDAW provides that:
Adoption by States Parties of temporary special
measures aimed at accelerating de facto equality for men
and women shall not be considered discrimination as defined in
the present Convention, but shall in no way entail as a consequence
the maintenance of unequal or separate standards; these measures
shall be discontinued when the objectives of equality of opportunity
and treatment have been achieved.
244. Article 7 CEDAW makes clear that such "temporary
special measures" may be used to secure equality of representation
in elected bodies:
States Parties shall take all appropriate measures
to eliminate discrimination against women in the political and
public life of the country and, in particular, shall ensure to
women, on equal terms with men, the right ... to vote in all elections
and public referenda and to be eligible for election to all publicly
elected bodies.
245. The ECHR has been interpreted as similarly
recognising the legitimacy of positive action in redressing patterns
of discrimination, with the European Court of Human Rights in
the enjoyment of the rights protected by the ECHR, stating in
the Belgian Linguistics Case that "certain legal inequalities
tend only to correct factual inequalities".[310]
246. In 2002, we concluded that the provisions
of the Sex Discrimination (Elected Candidates) Bill were compatible
with international human rights standards, on the basis that its
provisions permitting closed single-sex shortlists to combat disadvantage
were subject to a sunset clause, permissive in nature, designed
to be a proportionate means of addressing a legitimate aim.[311]
We concluded that "the differential treatment of men and
women which the Bill envisages would be capable of being justified
under Article 14 ECHR, and would be unlikely to be held to be
incompatible with Article 14 ECHR taken together with Article
3 of Protocol No. 1".[312]
We reaffirm our previous conclusion and welcome both the retention
of the same-sex 'shortlist' exception and the more limited powers
conferred upon political parties to take measures to address other
forms of disadvantage. They should have the effect of encouraging
and enabling political parties to undertake a wider range of positive
action to address under-representation.
308 Sex Discrimination (Election of Candidates) Act
2002. Back
309
General Comment 18, para 13 at 28 (1994). Article 4(1) of CEDAW
and Article 1(4) of CERD make provision for the use of measures
to address continuing disadvantage in similar terms. The European
Court of Human Rights in the Belgian Linguistics case has
adopted a similar approach to Article 14 ECHR ((1979-80) 1 EHRR
252 at para. 3). Back
310
(1968) 1 EHRR 252, 284, at para 10. Back
311
Fourth Report of Session 2001-02, Sex Discrimination (Election
Candidates) Bill, HL Paper 44, HC 406, p. 3. Back
312
Fourth Report of Session 2001-02, Sex Discrimination (Election
Candidates) Bill, HL Paper 44, HC 406, p. 3. Back
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