THE RIGHT TO EQUAL TREATMENT IN EUROPEAN
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.
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.
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.
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
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
HL Bill 25 Back
Sex Discrimination (Election Candidates) Bill: Explanatory
Notes, Bill 28-EN (London: The Stationery Office, 2001), paras.
House of Commons Official Report, 24 October 2001, cols.
Jepson and Dyas-Elliott v. The Labour Party 
IRLR 116, IT. Back
House of Commons Official Report, 24 October 2001, col.
ibid., col. 331. Back
ibid., col. 330. Back
ibid., cols. 331, 333. Back
SI, 1976, No. 1042, NI 15. Back
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
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
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
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
Series A, No. 6, Judgment of 23 July 1968, at p 33 Back
e..g. Ahmed v. United Kingdom, judgement of 2 September
1998, RJD 1998-VI, at para. 75 of this judgement Back
See the Report of the Commission in the Belgian Linguistic
Case, 24 June 1965, Series B, No. 3 (1967), pp. 305-306 Back
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
Belgian Linguistic Case at p. 4 Back
ECR I-3051,  ICR 314, CJEC, Kalanke v. Freie Hansestadt
Case C-409/95,  ECR I-6363, CJEC, Marschall v. Land Nordrhein-Westfalen.
See Catherine Barnard and Bob Hepple, 'Substantive Equality'
 CLJ 562-85 at 576-9 Back
See Case C-158/97 Badeck and others  ECR I-0000,
paras 23, 31 and 32; Case C-407/98, Abrahmsson and others
 ECR I-5539, paras. 42-56 Back