§ Lord Lester of Herne Hill
asked Her Majesty's Government:
Whether they intend the exceptions made by the Sex Discrimination (Election Candidates) Bill to Parts II to IV of the Sex Discrimination Act 1975 to be read and given effect in accordance with the principle of proportionality; and[HL868]
Whether the exceptions made by the Sex Discrimination (Election Candidates) Bill to Parts II to IV of the Sex Discrimination Act 1975 must be read and given effect in accordance with the principle of proportionality so as to comply with the United Nations Convention on the Elimination of All Forms of Discrimination against Women, the United Nations International Covenant on Civil and Political Rights, the European Convention on 56WA Human Rights and its First Protocol, and European Community Law; and, if not, why not. [HL1375]
§ The Lord Privy Seal (Lord Williams of Mostyn)
The way in which the exceptions made by the Sex Discrimination (Election Candidates) Bill to Parts II to IV of the Sex Discrimination Act 1975 will be construed is a matter for the courts. The Government can give no assurance that alters that fact. Nonetheless the points raised by the noble Lord are important ones and bear examination.
The Government's view is that the selection of candidates falls outside the scope of the Equal Treatment Directive. Our view is that being a Member of Parliament is not an occupation that falls within the scope of the directive. Furthermore, we take the view that the directive does not apply to the electoral process: selection for election is not comparable to normal selection for employment. The principle of proportionality in this respect would not therefore be relevant.
Political parties are, of course, free to take their own legal advice on the point. As with any legislation, particularly where no specific measures are imposed, it is not for the Government to give guarantees that acts done under the legislation are lawful. Ultimately it is for the courts to decide.
It is not clear that the European Convention on Human Rights is engaged. The Government have, however, borne in mind when proceeding with this legislation that the convention could apply and that it might do so because Article 14, along with Article 3 of the First Protocol, is engaged.
Assuming that the ECHR is engaged, although the Government do not accept that political parties are public authorities for the purposes of Section 6 of the Human Rights Act 1998, it is accepted that there is an argument that the convention has horizontal effect, so that the Bill would be interpreted in accordance with convention rights as between private parties.
Assuming that the convention does have this effect, it will be necessary for any measure adopted by a particular political party to be proportionate in ECHR terms. The Bill is permissive. How a political party will use it is a matter for that party: it is about choice and flexibility. It is inevitable that parties will have to take their own legal advice about whether, and, if so, to what extent, the principle of proportionality applies. This is no different from any other case of permissive, non-prescriptive legislation.
Whether a particular measure chosen by a party is proportionate will ultimately be a matter for the courts to decide and, to the extent that the ECHR may be engaged, we would expect the courts to follow any human rights jurisprudence on proportionality.
As the noble Lord is aware, CEDAW (which relates only to discrimination against women) and the UN International Covenant on Civil and Political Rights give rise to international obligations for the UK.
The Government regard those obligations with the utmost seriousness. It is clear, however, that international obligations do not become part of 57WA domestic law unless incorporated into it. Such international obligations do not in the Government's view give individuals a source of rights and obligations that can be enforced directly before the UK courts. In some instances the courts will construe legislation with the presumption in mind that it should be interpreted compatibly with international obligations, but this is the case only where the legislation is ambiguous. To the extent that these treaties would require the exceptions made by the Bill to be read and given effect in accordance with the principle of proportionality, our view is that it is unlikely that they will add anything further to any other considerations of proportionality.