Joint Committee On Human Rights Fourth Report


The Joint Committee on Human Rights has agreed to the following Report:—


Progress of the Bill

1. The Sex Discrimination (Election Candidates) Bill[5] was introduced to the House of Commons on 17 October 2001 and had its second reading on 24 October. It was reported from Standing Committee A with amendments on 8 November. It completed its remaining stages in the Commons on 14 November and had its first reading in the Lords the following day.[6]

The Purpose of the Bill

2. The purpose of the Bill, as set out in the published Explanatory Notes[7] and by the Secretary of State for Transport, Local Government and the Regions during the Second Reading debate,[8] is to amend the Sex Discrimination Act 1975 in order to permit political parties to engage in positive discrimination in favour of women when selecting candidates for election to local authorities, devolved assemblies, Parliament and the European Parliament. The Bill would reverse the effect of a decision of an industrial (now employment) tribunal[9] in which it was held that the selection of candidates fell within the scope of section 13 of the 1975 Act (dealing with discrimination by bodies which confer an authorisation or qualification which is necessary in order for people to be eligible for certain employments). The decision meant that it was unlawful for political parties to undertake positive discrimination, or affirmative action, to increase the number of women who could be candidates for election.

3. The Secretary of State noted that at present women hold 18 per cent of seats in Parliament.[10] In local government, 27 per cent of councillors in England, 20 per cent in Wales and 22 per cent in Scotland are women.[11] In the devolved assemblies, women make up just over 37 per cent of the Members of the Scottish Parliament, and 41 per cent of the Members of the National Assembly for Wales.[12] This was said to give rise to a serious issue of under-representation of women. The purpose of the Bill was said to be to permit, but not to compel, political parties to take steps to address the issue by way of measures of positive discrimination.[13]

The Changes which the Bill would introduce

4. Clause 1 of the Bill amends the law in England and Wales and Scotland. It seeks to introduce a new section 42A to the Sex Discrimination Act 1975. This would exclude the anti-discrimination rules in Parts 2 to 4 of the Act (including section 13) from arrangements which—

If those conditions are met, neither the arrangements themselves nor anything done in accordance with them will be unlawful by reason only of discrimination on the ground of sex.

5. Clause 2 would amend the law of Northern Ireland by introducing a new Article 43A to the Sex Discrimination (Northern Ireland) Order 1976[14] making equivalent provision to that in the rest of the United Kingdom in respect of elections in Northern Ireland to Parliament, the European Parliament, the Northern Ireland Assembly, and district councils.

6. Clause 3 provides that the legislation would expire at the end of 2015 unless continued by order made by statutory instrument.

Human Rights Implications of the Bill

7. Arrangements which give preferential treatment to certain people over others on the ground of (inter alia) gender require justification under human-rights law. By failing to treat people equally, or authorizing unequal treatment, they potentially breach the right to be free from discrimination. However, public international law recognizes that it may be impossible to offer equal opportunities to people of different sexes without taking action to neutralize the effects of socially ingrained, historical patterns of unequal treatment. Unequal treatment for the purpose of overcoming the impact of such patterns of differential treatment on equality of opportunity, sometimes called 'positive discrimination' or 'affirmative action', is therefore often permitted or even required by international law for particular purposes and for limited periods.

8. For example, Article 4.1 of the Convention on the Elimination of All Forms of Discrimination against Women (United Nations, 1979; hereafter 'ICEDAW') provides that—

These 'temporary special measures' of affirmative action may be appropriate measures for the sphere of politics, as Article 7 makes clear—

    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 ...

9. The legitimacy of affirmative action is also recognized by the United Nations Human Rights Committee in its General Comment No. 18 on the International Covenant for Civil and Political Rights (ICCPR). Although Article 26 of the ICCPR appears to make any discrimination on the grounds of sex unlawful, the Committee observed that 'the principle of equality sometimes requires States Parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant.'[15] It has been argued that this, together with the positive obligations on States to advance equality of opportunity by appropriate measures, makes positive discrimination mandatory in some cases.[16] In any case, there is fairly general agreement that, with proper safeguards and in appropriate cases, positive discrimination is at least permissible.[17] We note that the UN Human Rights Committee recently commented, specifically in relation to the UK, that—

    ... despite recent improvements, the proportions of women participating in public life, particularly ... in Parliament ... remain at low levels ... [the UK] ... should take the steps necessary towards achieving an appropriate representation of women in these fields.[18]

The measures proposed in the Bill would be a step towards implementing this recommendation. But the measures taken would fall to be tested by reference to their proportionality to the legitimate aim pursued, because they would inevitably interfere with some people's freedom to participate in the political process, just as they would help other people.


10. Article 14 of the European Convention on Human Rights (ECHR) is an anti-discrimination provision. It is one of the Convention rights which was made part of domestic law in the United Kingdom by the Human Rights Act 1998. Article 14, so far as relevant, provides—

On the face of it, the Article appears to confer only a limited right not to be discriminated against in the enjoyment of other Convention rights. In practice, the Strasbourg organs have given Article 14 substance by two means.

11. First, they have held that there is no need to show that a Convention right has been violated in order to invoke Article 14. It is enough to show that the matter in relation to which discrimination has occurred falls 'within the ambit' of a Convention right, and to that extent Article 14 has an autonomous reach. As the Court wrote in the Belgian Linguistic Case—

12. Although the ECHR contains no express right to be a candidate in an election, Article 3 of Protocol No. 1 to the ECHR requires 'free elections ... under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.' This includes an implied right to stand for election, although it is not absolute.[20] It follows that unequal treatment in relation to selection of candidates would fall within the ambit of that right, requiring it to be justified under Article 14 if it is not to amount to unlawful discrimination. In the interests of caution, we believe it should be assumed that the Article covers the right to stand as a candidate.

13. Second, the Strasbourg organs have drawn attention to the fact that Article 14 imposes a positive as well as negative obligation on States as to the way in which the enjoyment of Convention rights is secured.[21] The Court has held that a ground which might be unacceptable as a reason for less favourable treatment could be a good ground for more favourable treatment, since positive discrimination is regarded as a justified form of differential treatment on the basis that 'certain legal inequalities tend only to correct factual inequalities'.[22]

14. The Court has held that differential treatment in relation to the enjoyment of rights is not unlawful under Article 14 if there is an objective and reasonable justification for it which is the real reason for its adoption. Correcting historical inequalities of representation in the political system would be accepted as a reasonable aim. In addition, the objectivity requirement imports a test of proportionality. The relevant rules must, as the Court has said, 'strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention.'[23]

15. A number of features of the Sex Discrimination (Election Candidates) Bill strongly suggest that it would be regarded as proportionate to the legitimate aim.

  • The legislation contains a 'sunset clause' under which it would expire (unless renewed) after about 14 years.

  • There is no obligation on political parties to take advantage of the permission to engage in positive discrimination.

  • Any one party would be permitted only to take steps to advance the cause of reducing inequality in the numbers of men and women elected as its own candidates. This would seem to require a party wanting to engage in lawful positive discrimination to take account of the number of men and women who are candidates in constituencies for which they have a good chance of being elected, not merely to consider the numbers of men and women among the total number of candidates fielded by that party.

  • For the same reason, it would be unlawful for a party to use positive discrimination to the extent required to advance towards equal numbers of men and women elected for all parties. For example, if Party A refused to engage in positive discrimination when selecting candidates for a general election, Party B could not lawfully give preference to women when selecting candidates in 85 per cent of constituencies in the hope that the membership of the House of Commons as a whole after the election would be more or less balanced between men and women.

  • Nothing in the Bill excludes the powers of the Equal Opportunities Commission in relation to the selection of candidates by political parties.

On balance we consider that the differential treatment of men and women which the Bill envisages would be capable of being justified under ECHR Article 14, and would be unlikely to be held to be incompatible with Article 14 taken together with Article 3 of Protocol No. 1. The political parties would need to ensure that their individual schemes for taking advantage of the freedoms given by the Bill are proportionate to the legitimate aim. The parties are likely to be regarded as public authorities for the purposes of section 6 of the Human Rights Act 1998, so a failure in proportionality would result in unlawfulness and consequential legal liability, including the possibility of liability to pay damages.


16. The principle of equal treatment in European Community law is well established. Generally, the requirement for equal treatment means exactly that: discrimination in favour of women is no more acceptable than discrimination against them. However, the Equal Treatment Directive 76/207/EEC contains qualifications to the requirement for strict equality of treatment. It deals with equal treatment in relation to access to employment and promotion, vocational training, and working conditions. It is quite possible that rules governing eligibility to be a candidate for election to Parliament would fall within the scope of the Directive. Article 2(4) of the Directive allows removal of existing inequalities in order to promote equal opportunities.

17. The scope of the permission given by Article 2(4) of the Directive has been hotly contested over the years. The European Court of Justice held that this was an exception to the principle of equal treatment rather than an expression of it. In a case concerning legislation in Bremen, Germany, which provided that, where a man and a woman who applied for the same job were equally well qualified, the job was to be given to the woman if women were less well represented than men in that particular remuneration bracket, the European Court of Justice held that the scope had to be restrictively interpreted. The object of the legislation was to redress historical inequities which led to men having advantages in access to higher paid jobs. The Court held that the Bremen rule went beyond the legitimate goal of removing existing inequalities, and was aiming at equal representation, not equality of opportunity, between men and women. In the Court's view, it therefore constituted unlawful discrimination.[24]

18. However, more recently Community law has moved further towards accepting the legitimacy of some affirmative action. In a later judgement the Court of Justice upheld the validity of a law giving preference to women applicants who are as well-qualified as males, as long as the men are considered on their individual merits. The Court said that only absolute and unconditional positive discrimination was outlawed.[25]

19. Article 141(4) of the Treaty Establishing the European Community now (post-Amsterdam) reflects, and perhaps goes further than, that decision—

    With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

20. Political candidacy is likely to be a 'vocational activity'. Under Article 141 (4), as under the Equal Treatment Directive the Court of Justice has held that criteria which in general favour women may be taken into account, as long as the criteria prevent or compensate for disadvantages in the professional career of people belonging to an under-represented sex, and the criteria are sufficiently transparent and amenable to review to avoid arbitrary assessment of candidates' qualifications. In addition, all candidates must receive an objective assessment taking account of their personal situations. As long as it does not automatically and unconditionally give priority to women when men and women are equally qualified, an assessment process which satisfies those tests is unlikely to be regarded as disproportionate.[26]

21. We take the view that it would be possible for a political party to exercise the freedom to engage in positive discrimination in selecting candidates, contained in the Bill, in a manner which would be permissible under European Community law.


22. Having examined the Bill, we conclude that the positive discrimination which the Bill authorizes is capable of being carried out in ways which are compatible with human rights, including and in particular Convention rights within the meaning of the Human Rights Act 1998.

23. We therefore conclude that the Bill is not in its terms incompatible with the European Convention on Human Rights, the United Kingdom's other human rights obligations under public international law, or European Community law on equal treatment. Political parties which wished to do so would be able to engage in positive discrimination as permitted by the Bill in ways which would be compatible with those rights and obligations.

5   Bill 28 Back

6   HL Bill 25 Back

7   Sex Discrimination (Election Candidates) Bill: Explanatory Notes, Bill 28-EN (London: The Stationery Office, 2001), paras. 3-6. Back

8   House of Commons Official Report, 24 October 2001, cols. 328-333. Back

9   Jepson and Dyas-Elliott v. The Labour Party [1996] IRLR 116, IT. Back

10   House of Commons Official Report, 24 October 2001, col. 329. Back

11   ibid., col. 331. Back

12   ibid., col. 330. Back

13   ibid., cols. 331, 333. Back

14   SI, 1976, No. 1042, NI 15. Back

15   General Comment No. 18 (37), UN Doc. A/45/40, para. 10, 45 UN GAOR, Supp. (No. 40) (1990). See Stalla Costa v. Uruguay, UN HRC, App. No. 198/1985, esp. at para. 10. Back

16   See e.g. Lord Lester of Herne Hill QC and Sarah Joseph, 'Obligations of non-discrimination', in David Harris and Sarah Joseph (eds.), The International Covenant on Civil and Political Rights and United Kingdom Law (Oxford: Clarendon Press, 1995), ch. 17 at 578-9. Back

17   See e.g. Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991), 281-6; Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1995), 184-6. Back

18   Concluding Observations of the Human Rights Committee, 73rd Session, on Reports submitted by (inter alia) the UK under Article 40 of the Covenant, CCPR/73/UKOPT, para 15. Back

19   Series A, No. 6, Judgment of 23 July 1968, at p 33 Back

20   e..g. Ahmed v. United Kingdom, judgement of 2 September 1998, RJD 1998-VI, at para. 75 of this judgement Back

21   See the Report of the Commission in the Belgian Linguistic Case, 24 June 1965, Series B, No. 3 (1967), pp. 305-306 Back

22   Belgian Linguistic Case at para. 10 of the Judgment. See D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995), 485-486 Back

23   Belgian Linguistic Case at p. 4 Back

24   ECR I-3051, [1996] ICR 314, CJEC, Kalanke v. Freie Hansestadt Bremen Back

25   Case C-409/95, [1997] ECR I-6363, CJEC, Marschall v. Land Nordrhein-Westfalen. See Catherine Barnard and Bob Hepple, 'Substantive Equality' [2000] CLJ 562-85 at 576-9 Back

26   See Case C-158/97 Badeck and others [2000] ECR I-0000, paras 23, 31 and 32; Case C-407/98, Abrahmsson and others [2000] ECR I-5539, paras. 42-56 Back

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