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Lord Phillips of Sudbury: My Lords, has the Minister considered making it a requirement for English and Welsh fans travelling to foreign matches that they wear kilts?
Lord Bassam of Brighton: Not Welsh kilts? My Lords, I believe that these measures need to be put on to the statute book. To do other than that would send a wrong and entirely negative message. I believe that we can take great encouragement from the way in which these measures have worked over the past year or so. On the understanding that a sunset amendment will be tabled in Committee, I feel confident in commending the Bill to your Lordships' House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Sex Discrimination (Election Candidates) Bill
1.16 p.m.
Lord Williams of Mostyn: My Lords, I beg to move that this Bill be now read a second time.
This is an important measure and one which will go some way to ensuring that our democracy becomes more representative of society at large. For the first time in 20 years, the last general election saw a drop in the number of women elected to Westminster. By contrast, in 1997 a record number of women were elected to Parliament—120, which was double the number elected in 1992. I believe that that was undoubtedly a direct consequence of the positive measures used by the Labour Party in the run-up to that election. But, as your Lordships know, just before that election there was a challenge—the case of Jepson—in an employment tribunal. That ruling made all-women shortlists illegal under Section 13 of the Sex Discrimination Act 1975.
It is a melancholy fact that women now make up only 18 per cent of the Members of the House of Commons. All parties should be discomfited by that. It is essential that women are properly represented in our country's democratic bodies. It is another melancholy fact that in the past 80 years, of the 4,500 MPs elected, only 240 were women.
I illustrate further. At the 1997 election, six Liberal Democrats—five men and one woman—stood down. In 2001, seven Labour MPs stood down. Also in 2001, 25 Conservative MPs stood down. Not a single female candidate was selected to replace any of those sitting Members of Parliament. There are only two alternative explanations. One is that women simply are not up to the job, which I indignantly, and safely, repudiate; and the second is that the present system is unfair in its operation and in its outcomes.
This Bill is short and simple. Perhaps I may stress that it simply removes the domestic legal barrier to which I referred briefly. And it is permissive, not prescriptive; in other words, it allows parties internally to come to their own conclusions. It amends the Sex Discrimination Act 1975, which applies to Great Britain, to provide that Parts II to IV of that Act will not apply to measures adopted by a political party to
reduce inequality in the numbers of men and women elected. Equivalent amendments are made to the Sex Discrimination (Northern Ireland) Order 1976, which obviously bites in Northern Ireland.I mentioned earlier that the Bill is permissive not prescriptive. I believe that that is right. It is not for government to interfere with the internal workings of political parties. They should put their own houses in order if they have the will and the commitment to do so.
The Bill extends to elections beyond Westminster. It covers elections to the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly, the European Parliament and local government elections in the United Kingdom.
Scotland and Wales have been more successful in ensuring a fairer degree of representation for women, but I believe that is largely as a result of positive measures taken in the run up to the inaugural elections. Women make up 37.2 per cent of the Members of the Scottish Parliament and 41.7 per cent of the Members of the National Assembly for Wales. It is important that those bodies are able to increase, or at least maintain, those levels. It is also important that the Bill covers elections at local government level where the current levels of women's representation range from 27 per cent in England, to 22 per cent in Scotland, and only 20 per cent in Wales.
We believe that the Bill is compatible with our obligations under European law and the UK's international obligations. The Joint Committee on Human Rights published a helpful report on the Bill on 30th November. That committee concluded that this piece of legislation was not incompatible with the ECHR, the UK's other human rights obligations under public international law, or European Community law on equal treatment.
It is pleasing to see the work of that committee proceeding so efficiently and so promptly, not only in the context of this Bill, but notably in the context of the Anti-terrorism, Crime and Security Bill. It is a pleasure to be able to say that as my noble friend Lord Lester of Herne Hill, who serves on that committee, is in his place. He contributed significantly to the speed and to the dispatch with which the report was produced.
The committee drew attention, most helpfully, to the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, and the scope within those treaties for affirmative action. I am pleased that the committee concurs with our view that the Bill is compliant with those obligations. I shall say no more about the legal consequences. What a Minister says about his or her view of the law does not bind the courts, but we are confident that that stance is correct.
I know that the list of speakers is substantial. On the last parliamentary day of this year, I believe that that underlies your Lordships' commitment to ensuring that justice shall be done, even if late on Thursday, 20th December. I believe that I can look forward to
unanimous cross-party support in this House. There was a significant degree of cross-party support in the House of Commons. I commend the Bill to the House.Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
1.22 p.m.
Baroness Seccombe: My Lords, it is a pleasure to speak on this important subject, especially given the high degree of consensus that I suspect will become apparent. Increasing the involvement of women in politics at national and at local level is both necessary and pressing. Such broad agreement on principles is sure to make for constructive debate.
I was a vice-chairman of the Conservative Party for 10 years and in that capacity one of my main roles was to encourage women to take up the challenges of the parliamentary trail. From that experience, I know only too well the frustrations and heartache that can be involved in the process of standing for election. I have always felt that encouraging more women to stand for election should not be about "making up the numbers"; it should be about ensuring that the political process takes advantage of the wealth of experience and the fresh perspectives that women have to offer.
The Bill applies only to those bodies and organisations that are composed of elected members. However, many of your Lordships have first-hand experience of selection, election and indeed non-election, I am sure. No doubt your Lordships will bring considerable knowledge to this debate. I turn now to another place, where the Bill is intended to have a significant impact. The statistics are well known, but perhaps I may remind your Lordships that at present only 18 per cent of MPs are women. It cannot be denied that that is a sorry state of affairs.
There are two issues at stake, but they are connected: the first is the proportion of women involved in decision-making and the second is the inclusion of women's perspectives in government policies and programmes. I do not believe that there is a range of subjects called "women's issues" that men are incapable of considering. In fact, all issues are men's and women's issues. We should recognise that more women are capable of bringing their experience and expertise to Parliament than are currently doing so.
It is difficult to accept that the current system is based on merit alone; few would seriously contend that the 82/18 per cent split is a just reflection of the distribution of talent in the United Kingdom. The involvement of such a small proportion of women in the political process should be seen as part of a wider context and a wider problem; the dwindling number of voters in recent years is indicative of widespread disengagement with politics around the country among men and women. At the last general election 3 per cent fewer women voted than men.
Increasingly it appears to be the case that people see the work of Parliament as irrelevant to their lives. That, as your Lordships know, could hardly be further from the truth. I firmly believe that the Bill should be seen in that context. If we make a sincere attempt to make Parliament more responsive, accessible and attractive, in time this kind of legislation will cease to be necessary. Increasing the number of women returned to Parliament is crucial for enhancing its credibility as a modern institution, capable of effective, responsive government. It is in that spirit that I wish to approach the Bill today.
In spite of my inclination towards contextualising this debate, I know that men and women are confronted with vastly different experiences when they decide to stand for election to Parliament. We cannot avoid discussing women's prospects in isolation, and there is no reason why we should try. Anecdotal evidence of that was in plentiful supply in another place, and it makes fascinating reading. There is plenty of scope for scoring points off one another, but the fact is that men and women have been treated differently in every party to the detriment (or otherwise) of their political careers.
It remains the case for many women that when making their political ambitions known, they are met with raised eyebrows, frosty indifference or derision. We should not delude ourselves that that reaction is confined to men. Women on selection committees practise discrimination against women. Many excellent female candidates do not let that deter them. The fact that some women do is why we should consider ways of improving the situation. If we need a clearer understanding of the reasons why so many women believe that Parliament is not for them, surely this is a good place to start. However uncomfortable it may feel to admit it, politics is still seen by many people as, if I may use the expression, a man's game. The statistics alone are enough to foster that impression and it is, unfortunately, self-perpetuating.
Many women believe that being selected to stand for Parliament will be harder for them than for their male counterparts and that their experiences if they are elected will not be positive. Indeed 29 per cent of women who have stood for Parliament told the recent MORI survey that they were aware of prejudice or sex discrimination at some stage in the process. Every political party has acknowledged that that perception is founded on reality and has undertaken to remedy the situation. I understand that each party will do so in different ways. The Bill is permissive. I genuinely hope that the rhetoric surrounding the Bill will also be permissive in tone.
As the Secretary of State took the trouble to point out, and I believe it should be stressed, it would be inappropriate for the Government to intervene in the internal workings of political parties.
There are, however, important matters on which I should appreciate clarification. It seems myopic to claim that there will be no new burdens placed on
political parties as a result of the Bill. In another place, the Minister for Transport, Local Government and the Regions referred on some occasions to,
- "what will happen in the Government's view",
No one seems entirely sure of what the legislation will permit that is not currently permitted. Twinning, zipping and other special measures seem to have been used without challenge since 1996 and the Jepson case. That is not to say that they would not be a challenge in the future. Assuming that the ECHR is engaged, a political party will presumably only be permitted to take action that is proportionate in ECHR terms. It will of course have to take legal advice to establish exactly what it can do and what it cannot. Whether a particular course of action is proportionate is a matter for the courts.
The Bill as drafted appears to protect political parties from expensive legal challenges. Are we to accept that the funding of legal challenges is to become an inevitable expense for political parties? I would be grateful if, in winding up, the noble and learned Lord the Lord Privy Seal could give some indication of the Government's view on this matter.
The rest of my concerns relate to the possibility of legal challenge under European law and particularly under the Equal Treatment Directive. I believe I understand the Government's position on this point: the selection of MPs and other elected representatives is deemed to be sufficiently unlike the process of being selected for employment to fall within the Equal Treatment Directive.
However, it seems that the Government cannot guarantee that that is the case. The European Court of Justice could well make a different decision. The ECJ has tended to interpret the law to suggest that a positive action system should not be so rigid as to bar men totally from access to particular posts. It seems that the Government are introducing legislation that could well fall foul of European law at some time in the future. I understand that the Government have offered reassurance in another place; namely, that they have considered this aspect of the Bill carefully. My concern, however, remains. I should be grateful if the noble and learned Lord the Leader of the House, will offer similar reassurance to your Lordships' today.
Finally, I reiterate my sincere hope that we shall see more women becoming involved in the political process, at both local and national levels. Representing a constituency in Parliament is an extraordinary job. It is a task which requires commitment, talent and experience. Many women who would make excellent Members of Parliament
are, for a variety of reasons, not coming forward. This disengagement is reflected in the small proportion of women who voted in the last general election. Of those women who do come forward, many experience treatment different from that of their male counterparts. I am confident that every party will work on this issue over the coming months. Because I believe in freedom of choice for political parties, in the freedom to exercise one's talents and be recognised for those talents regardless of one's sex, I accept the need for this legislation. It seeks to allow political parties to rectify a situation that has long been the subject of justifiable and considerable frustration.1.35 p.m.
Baroness Thomas of Walliswood: My Lords, I thank the noble and learned Lord the Leader of the House for introducing the Second Reading of this short but important Bill, albeit at the very end of the Session.
A cynic might point out that the order of today's programme suggests that football is more important than gender equality, but I shall not let myself be distracted by that thought.
I am delighted that the noble Baroness, Lady Seccombe, spoke from the Front Bench on behalf of her party. She has a distinguished record in this area. I sympathise with a good deal of what she said, particularly in the earlier part of her speech.
From these Benches I should like to give a warm welcome to the Government's proposals. This is a simple Bill, but it tackles a significant problem. As the noble and learned Lord said, it disapplies for registered political parties the sections of the Sex Discrimination Act under which the Labour Party was successfully prosecuted in 1996 for its use of all-women shortlists. In effect, it permits, but does not oblige, political parties to use positive action to increase the number of women elected at parliamentary, EU, Scottish Parliament, Welsh Assembly and local authority elections. It is a measure designed to be of a temporary nature although I understand that it can be continued after the original period is over.
In the current House of Commons, only 18 per cent of Members are women. To my sorrow, only five out of the 52 Members elected as Liberal Democrats in 2001 are women. That is despite years and years of effort in trying to persuade women to come forward and to educate them and make them fit for the selection process, and, more recently, trying to train selectors to select in a non-discriminatory fashion.
The problem is not that women cannot get selected to parliamentary constituencies, but that they cannot get selected for winnable seats. That is the significance of the point about the replacement of retiring MPs raised by the noble and learned Lord. Indeed, the failure of the Labour Party to get more women selected in place of its retiring MPs was despite the fact that it had 50:50 men:women shortlists in those particular seats. Even that was not sufficient to get a significant proportion of women put forward as candidates.
The recent EOC survey, to which the noble Baroness, Lady Seccombe, referred, covered 400 parliamentary candidates, both men and women of all parties. It found that 52 per cent of the candidates agreed with the statement that,
- "women have to be better than men to be selected",
- "selection committees in my party tend to look more favourably on male than on female candidates".
How other countries deal with the problem can teach us a good deal. Let us consider, for example, Sweden and Norway. One is inside and one is outside the European Union, but both are signatories to the European Convention on Human Rights. We note that Sweden has the highest percentage of women in Parliament of any country in the world, at 43 per cent, and that in Norway 36.4 per cent of Members of Parliament are women. But in both cases, although there is equality legislation in both countries, that law is not relevant to the selection of parliamentary candidates and it is a matter of choice by political parties whether they adopt positive action to increase the number of women members of their parliament. Interestingly enough, in Norway, by convention every government since 1986 have ensured that 40 per cent of the members of the government are women. In neither Sweden nor Norway has any case been brought by a man against the positive action in favour of women candidates.
The most interesting case is France. In France, the main source of equality law is the constitution, starting with the Declaration of the Rights of Man and of the Citizen. It went on to deal with the rights of men, women, citizens, and so on. Before the French could tackle positive discrimination in favour of women in elected office, the constitution had to be modified. That was achieved in 1999.
In May 2000, a new electoral law was passed. That applied both to local, regional and European Union elections—in which a list system is used—and to parliamentary elections in single-member constituencies. For the list elections, each block of six candidates on a list must contain an equal number of men and women. The effect of that was seen in the local commune elections of March 2001, when the percentage of women elected rose from 22 per cent in 1995 to more than 47 per cent in 2001.
For parliamentary elections, the gap between the number of women and the number of men candidates presented by a party cannot be greater than 2 per cent without the party losing part of its state funding. That weapon is not available in this country, as—rightly or wrongly, and I shall not go into that argument—political parties do not receive state funding. So if, for example, out of 100 candidates, a party presents 40 women and 60 men, its state funding will drop by
10 per cent. We do not know what will be the result of that new rule, but it will become clear in the parliamentary elections in 2002.Much has been written and said about the permissibility of positive action under European and other human rights law. I am no lawyer, and others present today, including my noble friend Lord Lester of Herne Hill, can speak with far greater authority, but as a lay person, it seems obvious to me that if other European nations that are signatories to the European Convention on Human Rights or members of the Union, or both, can promote greater equality between men and women candidates, we ought to be able to do the same without risking legal challenge.
My understanding is that positive action must be proportionate and temporary. The Bill appears to satisfy both of those conditions. However, I should like the Minister to tell us what the Government have concluded in respect of the relevance to the Bill of the equal treatment directive. I wish the Bill well. I hope that it will be passed as soon as rationally possible without amendment, and I look forward to listening to the contributions of the extraordinarily distinguished gallery of people I see opposite.
1.44 p.m.
Baroness Jay of Paddington: My Lords, in my experience it is rare to voice the usual courtesies of your Lordships' House about welcoming a Bill with the genuine enthusiasm that I feel about this one. I also warmly welcome my noble and learned friend Lord Williams of Mostyn to the additional responsibility of being spokesman for women's issues in this House—following, if I may say so, a well-trodden tradition of combining the roles of Leader of the House with spokesperson on women's issues.
As only the gender has changed during the past few months since I stepped down from that combined role after the May election, I feel that I can say without presumption—I hope that this raises neither biological nor ethical issues—that I feel myself to be the surrogate mother of the Bill. It has had a long and complicated gestation, but I am obviously delighted that, following the manifesto commitment made by the Labour Party before the May 2001 election, the Government have brought forward such early legislation on this important matter.
During my time as a Minister dealing with such issues, the arguments against such a Bill came from two main directions. We have already heard some of those arguments and will hear more. The first negative argument is that we do not need heavy-handed legislation on the matter—that, in time, women will find their way into elected office in the proper proportion, if that is where they wish to be and they are good enough to hold such office.
The second argument, which has been more potent and has already been raised by both the noble Baronesses, Lady Thomas of Walliswood and Lady Seccombe, concerns not whether we in Britain want to take any action to get more women into Parliament
and local government but what are the possible complications of our relationship with our European Union partners in seeking to achieve that.When I was involved with the matter in government, together with Civil Service colleagues and political and academic advisers, we tried hard to persuade people—I must say that there were people in government who were opposed to such a move from both points of view that I have just described—that those arguments did not stand up. The big breakthrough came—here I must pay tribute to the Constitution Unit at University College, London, and Meg Russell, who was the lead author on the subject—when we decided to try to approach the question through changing electoral, rather than employment law. Strong legal and political skills were applied to that by my special adviser, Clare Cozens, who is about to take up a post at the Equal Opportunities Commission. Both women were important in finding a way through on the matter.
We now have the Bill, which permits steps to promote women as candidates in elections at all levels. As we have heard, in the Labour Party that almost certainly means a return to the previously outlawed all-women shortlists. I do not mind admitting that I am a late convert to the idea of all-women shortlists. But like all converts on many issues, I am now a strong believer that that is the only way to increase the proportion of elected women representatives. After all, as the noble Baroness, Lady Thomas of Walliswood, explained, we have tried many other ways to engage women in politics and improve their chances of selection, but all-women shortlists have been most successful in achieving the result that we wanted at Westminster.
My conversion to that policy was based on two grounds. Those were my experience of the 1997-2001 Parliament and my experience with ministerial colleagues and others in our European counterpart countries—to which, if I may, I shall return. Perhaps somewhat naively, before the 1997 election, I had assumed that we had definitely put behind us the arguments about whether women were equal in their role and capacity in the political arena. I had hoped that by then we had demonstrated beyond doubt that we were entitled to have more women Members of Parliament, councillors, Members of the Welsh Assembly, Members of the Scottish Parliament and Members of the Northern Ireland Assembly. That was not because of any belief that women can only represent women, or that only women can deal with particular subjects. However, unless we have women in public life in much the same proportion as they are in the population—I remind your Lordships that that is 51 per cent; rather higher than the 18 per cent that has rightly been cited as the proportion in the House of Commons at present—we lose women's distinctive perspective. There is a genuinely different women's perspective.
Furthermore, we lose the different life and work experiences which women have and bring to the political process. And we should have no shame or hesitation in mentioning the benefit of the general political skills which many women politicians and
would-be politicians have. That is the case particularly in a world in which much political endeavour is to achieve consensus.My observation of the past few years has been that I was rather naive in expecting that that view was universally agreed by everyone in the political arena. As has already been mentioned, in the 1997 election after the adoption of the all-women shortlist arrangements, 101 women Labour MPs were elected. I believe that one could say without challenge that those 101 women had ability, just like their male colleagues. They brought a different set of skills to the job, just like their male colleagues. They had different strengths and different weaknesses, just like their male colleagues. It is fair to say that they approached policy-making with intelligence. They changed government policy through evidence-based pressure on Ministers, a fact of which I was well aware.
They did not necessarily make a great deal of noise—they were not always the people heard on radio programmes or seen on television—but they made a great deal of difference to the lives of their constituents. That was often the case, but certainly not exclusively, on issues of importance to women which perhaps had not seemed so significant to their male colleagues.
However, many of the 101 women Labour MPs were dismissed in a derogatory way as "Blair's Babes". And the women who became Ministers were often again denigrated on sexist grounds by commentators and, it must be said, sometimes by their colleagues. The attempts which they often spearheaded to improve and make procedures in Parliament more family-friendly and acceptable were defeated, often by what could fairly be described as the "old-boy network".
It is not surprising that many of them lost heart. Even the 101 women Labour MPs, plus a handful of those from the other parties which made up a total of 119 MPs in the previous Parliament, did not form a critical mass to change things and to make their voices heard as strongly as they should have been in the House of Commons.
As my noble and learned friend reminded us in introducing the Bill, the constituencies apparently listened to the criticisms of women MPs and decided to return to their preference for male candidates. The voluntary cultural change which many of us had hoped might happen as a result of the stimulus of the all-women shortlist in the mid-1990s simply did not happen. As we know, even this year in other parties it was even more difficult for women to take part. I even heard the old chestnut again wheeled out at a selection conference this year, when a women prospective candidate was asked how she would manage without a wife!
We have reached the stage at which it will take decades for significant numbers of women to take their places in Parliament and other elected bodies to form the famous "critical mass" unless we take the kind of positive but none the less proportionate action which
the Bill proposes. I am delighted that a way through the legal obstacle seems to have been achieved by going along the route of changing and making changes to the electoral law process rather than through the employment law, the one which seemed so difficult to confront.The next major question, which was raised by previous speakers, is how the approach can be dealt with and whether it will run foul of Europe, the EU directives and the European human rights legislation. Like the noble Baroness, Lady Thomas of Walliswood, I would never pretend to have any legal expertise in that area. However, I have been reliably informed and feel confident in asserting, as did my noble and learned friend with greater and more expertise on which to rely, that in these matters the selection of parliamentary candidates is not an area in which European legislation can bite; otherwise—and the question was asked by the noble Baroness, Lady Thomas of Walliswood—how could the vast majority of member states within the EU have legislated for positive action such as we now contemplate?
I am sure that the existence of such measures within the EU is the reason that has created a much higher representation in our partner countries in Europe. We have heard of the particularly startling example of how a change in French legislation led to such major increases in local elections this year. One campaign doubled the number of women councillors overnight, as the noble Baroness, Lady Thomas, described.
When I discussed the issues with my European counterparts at ministerial and political gatherings, they were always amazed when I told them that the United Kingdom courts regarded selection of a parliamentary candidate as the equivalent of an offer of employment and therefore subject to EU jurisdiction. I understand that every other EU member state treats it as a matter of electoral law, whereas it seems that the EU has no locus. As has already been stated—and I, too, look forward to hearing the contribution of the noble Lord, Lord Lester of Herne Hill, on the subject—because measures such as those proposed in the Bill are proportionate, any attempts to eliminate discrimination are also permitted and able to fall under the European Convention on Human Rights.
In common-sense terms—and I know that it does not always apply to legal debates, particularly those which are based on some of the European arrangements—it seems to me that those are sufficient reasons not to be concerned either about the European jurisdiction in general or about the European Convention on Human Rights in particular.
In conclusion, I believe that the Bill is necessary and proportionate. It will benefit not only women, but all our democratic institutions. They will become more diverse and have representation and membership which is more representative of the balance of the population. I hope that this unelected House will give the Bill speedy deliberation and a speedy passage. I, too, am delighted that so many distinguished contributors are in the Chamber today. That bodes well for the successful passage of the Bill.
1.57 p.m.
Baroness Howe of Idlicote: My Lords, like the noble Baroness, Lady Jay of Paddington, I begin by congratulating the Government on the Bill and on the many actions they have taken to promote a far better representation of women in public affairs, not least that there are seven women in the Cabinet. That positive approach is reflected—if, as a relatively new girl, I may say this—in the impressively visible role played in all parts and on all sides of this House by its noble Baronesses, still alas, at 16 per cent, a minority of your Lordships.
I welcome the Bill, but at the same time I regret it. I regret it because it is still so painfully necessary. But that, alas, is entirely in line with the whole history of the subject. There were, for example, as many present will remember, no fewer than 28 unsuccessful attempts before women got the first bite at the vote. Perhaps not everyone will remember because they were between 1870 and 1914. The first woman MP was elected in 1919 and during the past 60 years the percentage of women MPs has never risen above 6 per cent.
Therefore, when I chaired the 1990 Hansard Society Commission, Women at the Top, 18 years after the Sex Discrimination Act, it was no surprise that in our recommendations we had to appeal to all political parties to scrutinise the way in which their policies and practices placed women at a real disadvantage in their efforts to be adopted as candidates.
We come to 1997, when at last we can see some improvement. The percentage of women MPs rose to a dizzy 18 per cent, but only after Labour's controversial introduction of women-only shortlists, subsequently pronounced illegal. Hence today's Bill, which seeks to legitimise some forms of positive discrimination of a kind that, as we have heard, have long been outlawed in the employment field.
The irony of this is that all our political parties, while proclaiming the principle of equality of opportunity, seem to recognise that they cannot do the right thing without having a law to make them do it. I understand the need, but despite what was said by the noble Baroness, Lady Jay of Paddington, I have to say that I still hope that none of the political parties will feel it necessary to go back to the particular kind of positive discrimination involved in all-women shortlists—whether technically lawful or not. The permissive nature of the legislation will leave each political party free to decide for itself. That is a major selling point for the Bill.
My hope, however, is that by now all parties will have learnt the important lessons and that instead they will implement much more vigorous forms of positive action rather than positive discrimination to achieve the right results. For I remain wary of positive discrimination for at least two reasons. First, because there are considerable dangers of backlash from that approach. We have seen that in the USA, for example. Noble Lords will recall the 1978 Bakke case where a less qualified student was accepted into a medical school, having been preferred to a white student. That was done as compensation for past race
discrimination. The second reason—I suspect that we shall hear a little more on this from that most knowledgeable of all experts in the field, the noble Lord, Lord Lester of Herne Hill—is that such action might, depending on how it is translated and the proportionality of the actions, fall foul of the European Convention on Human Rights.The question is whether positive action, as opposed to positive discrimination, is likely to have the desired effect. Personally, I am convinced that if it is consistently applied it can make at least a substantial difference, even if it does not provide the complete solution. I say that on the basis of progress achieved in other fields, working from the analysis of our Hansard Commission report.
We started from the premise that, despite the efforts of the Equal Opportunities Commission over the previous 15 years, it was quite clear that even more positive action was needed. Above all, it was needed to remove blocks to women's progress to the all-important decision-making levels. Hansard identified specific barriers. First and foremost was the persistence of outmoded attitudes towards the role of women and, secondly, the need for more flexible and family-friendly structures for work and careers, including more childcare provision. Again, the Government have achieved a good deal in that field.
As for outmoded attitudes, it was clear that the higher the level of responsibility and the "clubbier" the culture of the organisation, the more outdated were likely to be the attitudes. Company boards, senior common rooms and that most exclusive of all men's clubs—the House of Commons, or "the other place" as I now have to refer to it—were among the worst offenders. We described the then proportion of women MPs—it had just risen to 6 per cent—as "wholly unacceptable". After all, the House of Commons is a body which should set the agenda for the whole nation. As we have already heard, women with their experience and expertise comprise 51 per cent of the nation.
That was the message which inspired Business in the Community to establish the campaign originally entitled "Opportunity 2000" which I had the privilege to chair in its early years. It is known today as Opportunity Now. We set out to persuade employers that, above all, it was in their own bottom-line best interests to make the most of their human resources; that is, of the female talent which they had trained and developed, and yet appeared ready to see go to waste. On that basis, very real progress has been made, although still not enough at the most senior company boardroom level.
More enlightened employers, however, in the public as well as the private sector, have increasingly recognised the value of their women employees. They have made the necessary adjustments to allow women steadily to move up the management ladder. Opportunity Now employers are well ahead of the national average in the number of women managers they employ. Furthermore, they are perceived by the
brightest of both sexes at the start of their careers as the kind of forward-looking organisations for whom they themselves would like to work.One of the most important ways that this has been achieved is by organisations setting clear gender targets, by firmly monitoring their progress towards them, and making public the results on a yearly basis. Research shows that by putting in place the flexible arrangements necessary to retain valued employees—increasingly, for men as well as women during periods of family responsibility—the growing awareness that they may otherwise lose those employees to a more enlightened competitor has helped to concentrate minds remarkably.
I would argue that it is that lesson which all political parties have simply got to take more seriously, even if only for their own sake. It is clear today that the Labour Party, with 23 per cent women MPs, heads the list. The Liberal Democrats at 10 per cent would like to do better; we have heard that already. The Conservatives, dismally, are lower still at 8 per cent. But the truth is that no political party can be proud of its record to date. Yet I believe that a party's electoral success increasingly will depend on how well they perform in this field.
Leaders in the other place are already addressing the vexed questions of parliamentary hours and conditions of work, but the parties themselves also have to take action at every level. Above all, however, they must ensure that a proper proportion of women appear on each list of candidates, in particular for winnable seats—a point made by the noble Baroness, Lady Thomas of Walliswood. For that to happen, the parties must ensure that each constituency selection committee, whether choosing councillors, MEPs or parliamentary candidates, is itself properly chosen, trained and equipped to do the job fairly, legally and, above all, positively. If they fail in that, they will fail at the polls as well. Just as in business, so in politics; more forward looking competitors will beat them to the post. And quite right too.
2.8 p.m.
Lord Lester of Herne Hill: My Lords, it is a great pleasure to speak in this debate and to follow the example of the noble Baroness, Lady Howe of Idlicote, and many other Members of the House, of both sexes, who have done so much to promote equality of treatment and opportunity for women.
I am proud to have been one of the architects of the Sex Discrimination Act 1975. I remember that in our discussions in Whitehall when that Act was being debated we had many strong arguments with officials who were passionately opposed to positive action. We managed to get limited positive action written into the Sex Discrimination Act, including special measures to enable the Labour Party, in particular, to have a women's section and special positive action within the party. All that was beneficial.
I have absolutely no doubt that there is a need for positive action to overcome the effects of discrimination and disadvantage. The Joint Select
Committee on Human Rights—about which the Lord Privy Seal has said some generous and kind things—has made it clear that positive action is sometimes required, and that that is certainly compatible with international human rights law and with European law. So far, so good.I have no doubt—and the Joint Select Committee on Human Rights has no doubt—that the Lord Privy Seal was perfectly correct to sign, under Section 19 of the Human Rights Act, on the face of the Bill that the Bill is compatible with the European Convention on Human Rights. It is compatible because the Bill is both permissive and a blank cheque—that is, it does not require any action which could conceivably breach the principle of equality, properly understood, which includes proportionate and necessary measures to tackle inequality.
However, there is a problem which I feel it is necessary to air in public—although I suspect I shall suffer the fate of Cassandra. Noble Lords will remember that Cassandra had the ability to make prophecies that were accurate but which were disbelieved at the time—and then met a terrible fate for getting it right. I feel it is necessary to be a bit of a Cassandra because the version of the risk to political parties presented to the House and to the other place somewhat understates the problem. The problem is not whether the Bill is compatible, but exactly what political parties can and cannot do to write on the blank cheque which is the Bill without finishing up in court facing claims which, if they succeed, could now include damages and, certainly, large legal costs.
What the Government say is summarised in two extremely helpful and detailed Answers given by the noble and learned Lord, Lord Williams, to Questions I tabled. For those who are interested in this kind of thing, one Answer was given on 28th November and the other was given on 17th December. I have never read more helpful and lengthy legal opinions in the course of Written Answers to Questions than one finds there.
The Government's position can be summarised in this way. They say that we do not have to worry about European Union law because this does not concern employment; therefore it falls outside the employment equality directive. They say that we do not have to worry about the Human Rights Act—at least not directly because political parties are not public authorities and so cannot be sued under the Human Rights Act—but it may be that the Human Rights Act will apply as between the party and the member, in terms of the contract of membership, in private law rather than in public law. The Government then say that whatever is done must be proportionate—but they do not say what "proportionate" means, and in particular what it means in relation to all-female shortlists, which is the issue in the Jepson case. They say that it is all up to the courts in the end. That is a crude summary of the Government's position.
The paper written for the Constitution Unit by Meg Russell, who is not a lawyer, was rightly referred to by the noble Baroness, Lady Jay of Paddington, as an
important document. I declare an interest as one of the founders and advisory council member of the Constitution Unit. That paper rightly points to the fact that lots of other member states have recently been doing this kind of thing. But I am afraid that she understates what the real legal problems are.Without boring everyone to death, perhaps I may first say what I believe we should be doing about the gross under-representation of women in Parliament so far as the law is concerned, and then set out what I believe the real legal risks to be.
We should be doing three or four main things. First, we should be applying the full force of the sex and race discrimination legislation to tackle the direct and indirect discrimination now being practised by the political parties. I have no doubt that indirect discrimination is commonplace within all the political parties. I wish that the EOC and the CRE would exercise their functions in relation to that, whether advisory or more coercive.
I am convinced that the great benefit of the Jepson decision—the decision of John Prophet's industrial tribunal in Leeds holding that all-women shortlists were unlawful under the Sex Discrimination Act—was that it made it clear that political parties may not discriminate directly or indirectly on grounds of gender. That decision was applied later by the Employment Appeal Tribunal to race as well. So the first vital point is to eliminate direct and indirect discrimination.
Secondly, if possible, there should be a fairer and more proportionate system of electing Members of Parliament, one that would encourage greater political pluralism and diversity, as has been done across the Continent. That would certainly help. I am not a fanatic about proportional representation. However, I have no doubt that in the United Kingdom, as in the United States, one of the reasons for the gross under-representation of women is a consequence of having the first-past-the-post system. That, of course, is not something that this Government are going to do.
Thirdly, a positive duty should be imposed on political parties under the Race Relations (Amendment) Act 2000 and then under an amended version of the Sex Discrimination Act, unless Members of both Houses consider—and this is arguable—that it is not the place of Parliament to regulate political parties at all, notwithstanding the Political Parties, Elections and Referendums Act 2000, which does a great deal in this field. I can understand the Government saying that they will not impose positive duties on political parties. So the next thing that the law can do is to have a carefully tailored exception to allow positive action which is necessary and proportionate.
The Government have shied away from writing in any proportionality requirements or giving any guidance to political parties, saying, "Let's leave it to the courts". So my last point is: what are the risks so far as the courts are concerned?
The first risk is that this will be regarded as falling within the sphere of European Union law, notwithstanding what has been said in this House. The industrial tribunal, against whose decision no appeal was made, decided in the Jepson case that this did fall within the 1976 equal treatment directive and Mr John Prophet, as chair, used the directive in the context of the Sex Discrimination Act. So the Government have to say that that decision is wrong, and that European Union law does not apply.
Secondly, the Select Committee on Human Rights, in its report—commended by the noble and learned Lord the Lord Privy Seal—regarded it as being strongly arguable that European Union law does apply for the reasons set out in the report. I shall not go into those reasons. That would be boring. But there is a reasonable argument that European Union law does apply. We shall not know that unless and until the European Court of Justice in Luxembourg decides the issue, if it has to do so.
It seems to me that the much greater risk is under the Human Rights Act, which is not dealt with in most of the papers that one has read on the subject. The problem, which the Select Committee identifies, is that political parties are public authorities for the purpose of the Human Rights Act.
I hope that the noble and learned Lord the Lord Privy Seal will forgive me if I say that the weakest part of the Answer that he gave on 17th December to my Question, when trying to explain why political parties are not public authorities for the purpose of the Human Rights Act, was:
- "a body will only be a public authority for the purposes of the Human Rights Act if it has a public function, that is, a function which is governmental or quasi-governmental in nature and which seeks to achieve some collective benefit for the public. The Government's view is that the selection of a candidate to stand for election is internal to the party and its members, and is more a private act that furthers the party's own ends than a public function".—[Official Report, 17/12/01; col. WA 32.]
With great respect, that cannot be true. First, that interpretation of what is a public function is crabbed and narrow—much narrower than the interpretation taken by the courts in the cases under the Human Rights Act. Secondly, even if it were possible to confine the notion of public authority and public function to a function that is "quasi-governmental in nature", whatever that means, there are many examples of American constitutional court cases in which the Supreme Court of the United States repeatedly ruled that pre-primary selection processes in the American South that excluded blacks constituted state action. We are not talking about the Garrick Club choosing members, for heaven's sake. We are talking about a political party selecting official party candidates for public office, either in Parliament or elsewhere. Our American friends would be astonished to learn that that is not held to be a public function on this side of the Atlantic, because it is manifestly state action. Political parties are private for most purposes, but not when they are selecting candidates for public office.
I often have doubts, but I have no doubt that the courts would say that political parties are public authorities for the purpose of the Human Rights Act, in which case they can be sued directly under Section 7 of the Human Rights Act if they act in a way that is not compatible with the convention. The relevant articles of the convention are Article 3 of the first protocol, read with Article 14. If the political party acts disproportionately by having crude or rigid systems of the kind that my party threw out at its recent conference in Bournemouth, I have no doubt that it will be found to have discriminated unlawfully under the Human Rights Act. That is a serious risk. Fortunately or unfortunately, political parties will need a lot of legal advice one way or the other. No lawyer will honestly be able to say whether twinning, zipping or all-female shortlists will be compatible until there is case law.
I have one other point to make. Unfortunately, I have a terrifically good record as Cassandra. I advised the Labour Party informally before Jepson that it would lose and was told that it was none of my damned business, because it was not my party. Unfortunately, I was proved right. I have a terrible feeling that if political parties—the Labour Party or mine—go too far, they will come a cropper, and my goodness me it is going to cost a lot of money.
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