Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


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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