Act of bias targets women

Before the last General Election, the Labour Party decided to opt for women-only short lists in some seats to get more women into the political process. This decision was challenged by a couple of men in the party who argued before an industrial tribunal in England that they had suffered discrimination in not being allowed to have their names on the short list.

They won their case. That single industrial tribunal seems to have sent shudders through the political parties. The case turned on an interpretation of Britain's Sex Discrimination Act, but the tribunal also raised certain issues of European law.

The Act makes it unlawful for an authority or body which can confer an authorisation which is needed to allow a person to practice a trade or profession to discriminate against a woman in the terms on which it is prepared to allow her that authorisation. Authorisation means recognition, registration, enrolment, approval and certification.

The Act is written in terms of discrimination against women because that is where most discrimination arises, but it also applies to men. Mr Peter Jepson and Mr Roger Dyas-Elliot argued that the selection process was contrary to this section of the Act.

The tribunal decided to give the Act as wide an interpretation as possible rather than taking the common sense approach usually taken by UK courts. It said that selection for a short-list was the same as conferring a qualification or authorisation. This decision clearly strains the meaning of the Act, which was intended to cover situations where professional or other bodies make a requirement, for example to pass an exam or to enroll in a professional body, before someone practices a trade or profession.

It could only get to this interpretation of the Act by looking outside the words of the Act and well beyond the intention of Parliament. It therefore looked to Europe for help.

The Equal Treatment Directive adopted in 1976, outlaws discrimination in access to employment, promotion, vocational training. It applies to all jobs or posts. The tribunal read this directive as applying to selection for elected posts in Parliament. In reaching this conclusion the tribunal acted illegally. It did not have jurisdiction to interpret the directive. For whatever reason, the Labour Party did not appeal the cause, although it had clear grounds to do so.

Studies of industrial tribunals on sex discrimination matters in England and Wales make abysmal reading. In Alice Leonard's major study, tribunals were criticised for making errors about the law, for applying the wrong legal standards, reliance upon irrelevant matters, and lack of uniformity of levels of expertise among panel members. In many cases, the decision of the industrial tribunal was later overturned. The Jepson case is, therefore, a very weak peg upon which to hang serious political questions about the nature of representation and participation. It cannot be seen as a precedent.

So does the ETD apply to the political process?

The only definitive answer to this question could come from the European Court, but there are certain principles which guide that court.

Firstly, the EU can only legislate in areas where it has the power to do so. It has the power to outlaw sex discrimination in the labour market. It does not have power to legislate to tell the member states how to organise their political structures.

Secondly, the court must interpret the words of a directive to achieve what the directive intended. In the European context, it has never been suggested that the ETD directive applies to the political process. Other member states have used all women short-lists, for example in the French general election last year, and no legal action has ever been suggested.

If all women short-lists were contrary to the ETD the commission could have commenced proceedings against France, but has not done so. In fact, in Europe, gender issues are now at the heart of policy making.

The commission has begun a process of mainstreaming gender issues into all the activities of the EU. Under the terms of the proposed new regulations on structural funds, for example, money from Europe will only be made available for projects which take into consideration equality issues.

This approach is reflected in the new Amsterdam Treaty, which specifically allows (but does not require) member states to take special measures to encourage women to participate in areas where they have been traditionally under-represented.

Bearing all these factors in mind, it seems to me there is nothing in our own law or in European law to prevent political parties from acting in ways which will lead to something like equality of representation in the new parliament, whether this be by all women shortlists, twinning constituencies, or just simply choosing the best person for the job.

However, I may be wrong. The Sex Discrimination Act and the ETD might require political parties to eliminate all forms of discriminatory behaviour from their selection processes. If this is the case, any party which uses a procedure which it knows will disadvantage women may find itself in trouble.

The recently reported Liberal Democrat reliance on secret ballots by party members from mixed shortlists does raise a prima facia case of discrimination. Friday night branch meetings, which more men than women can attend because of family meetings, would have to be deemed illegal if it was at such meetings that selection issues were discussed.

We could argue that if the ETD applies to party selection procedures then it also applies to all aspects of our constitutional and political processes. The rules of succession to the Crown would merely be rules authorising an individual to take up a post in the occupational hierarchy.

The Princess Royal could go to an industrial tribunal to assert her lawful place in the succession to the Crown. Peerages which passed from father to son giving an hereditary right to sit in the Lords could likewise be challenged. Appointments to all Government and Cabinet posts and judicial appointments would be governed by the ETD. All the current law officers in Scotland and in England are male - were any women considered? Appointments to these posts do not even meet the minimal requirements of the Sex Discrimination Act - they are not even advertised. The current Lord Chancellor might be the best man for the job, but how do we know he is the best person? What selection procedures were followed?

Threats by individual men to mount legal challenges to selection procedures which are attempting to eliminate centuries of discrimination in the political process are threats to democracy. Legal arguments are being used as a bullying mechanism to prevent the opening up of political life beyond the traditional white male elites. Hearing and reading about these threats is reminiscent of the 1960s, when Stokely Carmichael infamously suggested that ''the only position for women in the SNCC is prone''.

The White Paper on the Scottish Parliament attaches great importance to equal opportunities for all. Threats by men to resort to courts and tribunals to prevent political parties from attempting to achieve equal opportunities are abuses of the legal process which, in any event, would lead to failure were any cases to come to court.