Sex Equality in Political Candidature: Supply and Demand Factors and the Role of the Law
| DOI | http://doi.org/10.1111/1468-2230.6602004 |
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
LEGISLATION
Sex Equality in Political Candidature: Supply and
Demand Factors and the Role of the Law
Nicole Busby
n
Introduction
1
received Royal Assent on
26 February 2002. The Act is intended to assist political parties in increasing the
number of women in certain elected bodies
2
by amending the Sex Discrimination
Act 1975 (SDA) so that positive discrimination measures can be utilised in the
selection of candidates. This is the latest development in a chain of events dating
back to the run-up to the 1997 General Election when an industrial tribunal found
the Labour Party’s policy of women-only shortlists constituted direct discrimina-
tion against men contrary to the SDA. As a result, the scheme was abandoned
and, although the tribunal’s reasoning was never subjected to further judicial
scrutiny by way of an appeal, there has since been considerable doubt surrounding
the legality of positive discrimination measures under both the national and
European legal order. This note aims to consider the proposed legislation, tracing
its origins and tracking its development, in order to determine the likely
effectiveness of such legal intervention as a means of addressing the issue of equal
representation in formal political structures.
The Act enables the use of positive discrimination by political parties during the
selection process only, with no explicit changes to the operation of the law
following selection and election. It, therefore, seems likely that conditions of
employment and working arrangements for elected politicians will retain an
uncertain status under UK law with no clear guidance on whether employment
protection legislation applies. It is submitted that the facilitation of positive
discrimination by way of enabling legislation alone is unlikely to lead to any
sustainable change in the levels of women’s’ participation in political structures.
This is due to the lack of any formal measure of success in improvements in
women’s representation, such as the use of targets or quotas, and the fact that the
Act does nothing to address the issue of covert discrimination which pervades all
levels of the selection process. Furthermore, parliamentary working practices,
which tend to operate without regard for family arrangements thus producing an
indirectly discriminatory effect without any of the associated protection, may
make it difficult for some women to remain in political posts and deter other
women from coming forward for selection in the first place.
n
University of Stirling.
1 Hereinafter referred to as the SD(EC)A 2002.
2 Namely, the Westminster Parliament, the Scottish Parliament, the Welsh Assembly, the European
Parliament and local government.
rThe Modern Law Review Limited 2003 (MLR 66:2, March). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 245
The case for legislation
Historically, women in the UK have been underrepresented across all political
parties and at all levels within the Westminster Parliament.
3
This situation is not
unique to the UK but is mirrored in the Parliaments of many other industrialised
economies
4
and at all levels of governance.
5
Explanations for the relatively low
numbers of women seeking and gaining political appointment are manifold and
diverse.
6
It is outside of the scope of this note to identify and analyse such
explanations in depth. There is indeed a whole body of literature centred around
such issues in which supply and demand factors have been identified as having
influence on the ability of women to participate in political organisations, the
former being subject to certain constraints due to women’s traditional domestic
role and the latter restricted in terms of access for women due to institutionalised
exclusionary factors.
7
Despite the fact that legal intervention should, theoretically,
be useful in countering such difficulties, finding solutions which will help women
to overcome the barriers to participation in relation to these aspects has proved
inherently complex in the political and wider contexts.
The conciliation of private family arrangements with participation in the public
domain has been the subject of policy and law-making since the early 1970s.
8
Although much progress has been made in this respect as evidenced by the
increasing number of women with children who successfully combine paid
employment with motherhood, recent developments in the context of entry to
political life which will be considered later illustrate that there is still some way to
go in facilitating the needs of working parents.
9
Barriers to entry which arise from
institutional factors may, at first glance, appear easier to deal with by legislative
means but can, in practice, be harder to identify than supply-led constraints as
3 Following the 2001 General Election, women accounted for 51 per cent of the adult UK
population but only 18 per cent of MPs in the Westminster Parliament were female. Although
woefully low, this figure represents a significant increase if the gender breakdown is considered in
an historical context. Of the 4,531 who have been elected as MPs since 1918, only 252 (6 per cent)
have been women. Until 1997 when a record number of female MPs were returned to Westminster
(18 per cent), women had never constituted more than 10 per cent of all MPs and, until the 1980s,
the figure remained below 5 per cent. For further statistical information, see House of Commons
Research Paper 01/75, The Sex Discrimination (Election Candidates) Bill, October 2001.
4 Westminster is currently ranked at number 44 in the world league table of women’s representation
in national parliaments as compiled by the Inter-Parliamentary Union (IPU). Sweden tops the
table (42.7 per cent) and is closely followed by Denmark (38 per cent) and Finland (36.5 per cent).
The other EU Member States which rank higher than the UK are, in 6
th
place, the Netherlands,
7
th
Germany, 13
th
Spain, 16
th
Austria, 26
th
Belgium and, in 41
st
place, Portugal. Following the
UK in 44
th
place, Luxembourg is placed 49
th
, Ireland 56
th
, France 60
th
, Italy 74
th
and Greece 82
nd
.
For the full listing as at 1 July 2002, see: www.ipu.org/wmn-e/classif.htm
5 In the UK, women constitute 27 per cent of representatives on local councils, 18 per cent of MEPs
and only 8 per cent of the members of the House of Lords.
6 For a recent study, see J. Squires and M. Wickham-Jones. Women in Parliament: A Comparative
Analysis, (Manchester: Research Discussion Series, Equal Opportunities Commission, 2001), in
which factors determining the level of women’s participation are categorised as socio-economic,
cultural and political.
7 See V. Randall, Women and Politics (London: Macmillan, 1987).
8 The decade which saw, in the national context, the introduction of the Equal Pay Act 1970 and the
Sex Discrimination Act 1975 and, in the European context, the Equal Pay Directive 75/117/EC
and the Equal Treatment Directive 76/207/EC.
9 Recent research findings indicate that the rate of women’s participation in paid employment is not
a powerful indicator of the level of female political representation which does not increase in line
with the proportion of women in the labour market - see Squires and Wickham-Jones cited at note
6ibid. One explanation for this is that the developments in employment protection legislation
which have facilitated the participation of women in mainstream employment have not been
matched by similar levels of protection for MPs.
The Modern Law Review [Vol. 66
246 rThe Modern Law Review Limited 2003
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