A comparative discussion on the Sex Discrimination (Election Candidates) Act 2002, and whether we need to further extend the use of electoral quotas to empower underrepresented groups.
Today women constitute only 20.4% of the members of parliaments around the world.1 This figure is compelling enough to reveal that there is a world-wide need to have more women in political institutions. Electoral quotas are the best solution to reach a gender balance. In the following discussion we deal with a variety of issues. Firstly, we deal with the contribution of the Sex Discrimination (Election Candidates) Act, 2002 in reducing gender biases and fostering active participation of women in the political field in UK.
Secondly, we deal with the Equality Act, 2010 which will replace the Sex Discrimination (Election Candidates) Act, 2002. The basics of the Equality Act, 2010 for fostering a framework of fairness have been covered. The wider scope of the Equality Act, 2010 has been given due importance , for, example, the coverage of the Act includes not only women but also certain protected categories as specified under Section 4 of the Act.
Lastly, a comparative study of the electoral quota system in Australia is undertaken. Being a commonwealth country the Australian model of gender quota system is closely connected to the UK and gives a wider outlook to the scope, advantages and disadvantages of the gender quota system in a country.
The aim of this study is to prove how gender quotas have help in increasing the political representation of women. Quotas do not remove all barriers; however, they foster more active participation of women in the political process. Since the enactment of Sex Discrimination (Election Candidates) Act, 2002 more women have entered the political field and it is truly a watershed moment in UK’s political history.
Meaning & Nature of an ‘electoral quota’
Firstly, we must understand the basics of quota. A quota covers a range of strategies and can be of 3 types:2
quotas set at different levels (constitutional quota); or
quotas applied at different stages of the selection process (electoral quota) ; or
quotas implemented by law or by internal party rules (party quota).
Currently in the UK, party quota system is followed. The principle drawback of this system is that the burden of creating actual improvements is cast on a limited number of parties.
The application of a quota can be either for party quotas or for candidate quotas.
Norris finds that: ‘in general, ceteris paribus (all things being equal), the higher the level of the specified quota, the closer the quota is applied to the final stages of election, and more binding the formal regulation, the more effective its impact.’ 3
A large number of studies have revealed that quotas contribute positively in representing a larger number of women in Parliament. The European Commission document ‘Women in political decision-making positions’ states that: ‘Quotas regulations are an important tool for giving women access to leading political positions.’
Quota restrictions have been a much debated topic among academicians, legislators, international organizations etc. For example, in UK there have been concerns about whether positive action would be allowed under the Equal Treatment Directive4 which provides for equal treatment in relation to access to employment and promotion, vocational training and working conditions. It is pertinent to note that two cases the European Commission has expressly stated that candidates does not fall within the scope of the ETD.
The following “International human rights legislation” accepts principles of positive action by the operation of a quota:
The UN Human Rights Committee (General Comment No. 18 on the International Covenant for Civil and Political Rights (ICCPR);
Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (ICEDAW, 1979); and
Article 4 of the 1986 UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Quotas are based on the principles of positive action and have been endorsed internationally. All-women shortlists quotas are very effective in UK and have increased representation of women in the electoral system.
Electoral quotas laid down by the Sex Discrimination (Election Candidates) Act 2002
The Collins English Dictionary5 defines the term ‘watershed moment’ as “a critical turning point in time where everything changes that will never be the same as before.” The enactment of the Sex Discrimination (Election Candidates) Act, 2002 was a watershed moment in UK legislative history.
The primary purpose behind the enactment of the Sex Discrimination (Election Candidates) Act 2002 was to exempt the selection of candidates in parliamentary elections from the provisions in the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976 that outlaw sexual discrimination.6 The provisions of this Act expressly allow political parties to select candidates based on gender in an effort to increase representation of women in British politics. The scope of this Act is restricted to political parties registered under Part 2 of the Political Parties, Elections and Referendums Act, 2000.
“The Sex Discrimination (Election Candidates) Act 2002 amended the Sex Discrimination Act 1975 to allow political parties to use all-women shortlists to select candidates for parliamentary elections; elections to the European Parliament; elections to the Scottish Parliament; elections to the National Assembly for Wales; and most local government elections.”7 .
“The Sex Discrimination (Election Candidates) Act 2002 included a “sunset clause” that provided for the Act to expire at the end of 2015, although there were provisions to extend the life of the Act by an order that had to be approved by both Houses of Parliament”.8
“The provisions of this Act are to be applied till the end of 2015 till the passing of The Equality Act 2010 which extends the life of the Sex Discrimination (Election Candidates) Act 2002 which will now continue in effect until the end of 2030”.9
The Sex Discrimination (Election Candidates) Act 2002 amended the Sex Discrimination Act 1975 which did not specifically cover the selection of candidates. In the famous case of Jepson v The Labour Party in 1996, an employment tribunal held that section 13 of the 1975 Act did cover the selection of candidates by political parties and constrained the parties’ ability to take positive action to increase, in that case, the number of women elected to the House of Commons.10
The Sex Discrimination (Election Candidates) Act 2002 has been actively employed by the Labour party to operate all-women shortlists. The operation of all-women shortlists was previously illegal under the Sex Discrimination Act 1975.11
“The legislation is permissive not prescriptive, and allows political parties to decide whether and in what way they wish to reduce the inequality”.12
Fundamental principles of the Sex Discrimination (Election Candidates) Act, 2002
The principle improvement made by the Sex Discrimination (Election Candidates) Act, 2002 is declaring political party’s selection of candidates is ultra vires the Act.
The most important features of the Sex Discrimination (Election Candidates) Act, 2002 are:
A political party’s arrangement for selecting a candidate will be exempt from the Act only if they are adopted for the purpose of reducing inequality in the number of men and women elected.
The Act builds a system of review, i.e., the Act will expire at the end of 2015 unless an order is made extending the Act.
Another interesting feature of the Sex Discrimination (Election Candidates) Act, 2002 that it does not expressly require all-women shortlists nor does it permit them. The Act merely eliminates all-women shortlists from the scope of domestic sex discrimination law if they are adopted and applied for the purpose of reducing an existing inequality.
The Equality Act 2010 –The Framework for fairness
The Equality Bill was published on 24 April 2009. It received Royal Assent before the House was dissolved for the General Election in 2010.
The scope of the Equality Act, 2010 is wider. The Act not only extends the period in which all-women shortlists may be used until 2030, but also the Act made provisions for political parties to make selection arrangements for candidates to address the under-representation of certain groups in elected bodies. Other than all-women shortlists, these arrangements cannot include shortlists restricted to people with other protected characteristics.13 Under the legislation, political parties would be able to reserve places on shortlists of candidates for people on the grounds of race or disability but would not be able to have a shortlist comprised solely of people selected on these grounds. It differs from the Sex Discrimination (Election Candidates) Act, 2002 in this way as it is not restricted to women’s only shortlist but also covers grounds of race or disability.
The time limited provision in section 3 of the Sex Discrimination (Election Candidates) Act 2002 (as amended) can still be changed by order.14
Section 106 of the Equality Act 2010 also gave ministers the power to make regulations requiring political parties to publish data relating to the diversity of party candidates seeking selection. This section is not yet in force.
Comparative analysis of the quota system in Australia
Australia was the first country in the world to allow representation of women in Parliament far back in 1902. However, women are still poorly represented in the Australian Parliament. Women entered federal Parliament only in 1943 more than 41 years before they were granted the right to enter. Progress is still very slow and there is a need for rapid reform.
The Platform for Action adopted by the UN Fourth World Conference on Women in Beijing in 199515addressed the under – representation of women in public decision-making. It is important to note that Australia’s world ranking in terms of women in national parliament has fallen from 40th to 43rd position over the past three years.16 Even with wide-spread electoral reforms due to national and international pressure in 2013, the federal parliament comprised of only 30.8 percent women.17 Experts emphatically stated that 30.8 percent was low and did not comprise of the critical minority’ necessary for women to influence decision-making.
Australia faces the problem of quotas as a mechanism for addressing the continuing under- representation of women. Similarly the United Kingdom is also faced with burdens of the quota system. The Australian Bureau of Statistics noted that:
“Although targets and quotas make a difference to the number of women in senior leadership roles, some believe quotas are wrong in principle, are tokenistic and counterproductive to changing the workplace culture .... Other ways suggested for increasing the number of women in senior leadership positions include reviewing diversity policies such as recruitment practices to address barriers, implementation of family friendly policies and flexible work options, and intervention programs to foster the career development of women employees.”18
Australian governments have consistently endorsed the concept of gender equality through a range of equal opportunity and anti-discrimination laws and policies. Unfortunately, the matter of women’s parliamentary representation has been left in the hands of the political parties. The problem with the aforesaid is that electoral gender quotas are divided due to the different political ideologies of each political party. For example, the Australian Labor Party supports voluntary party quotas and the Liberal Nationals Coalition parties oppose them. Such differences in basic ideologies can led to the further underrepresentation of women in the political system.
In the following we deal with the views of the various parties in Australia on electoral quotas.
1. Australian Labor Party
The Australian Labor Party follows an Affirmative Action Rule from 1994. The basic feature of this Rule is that it commits the party to achieving preselection of women for 35 per cent of winnable seats at all parliamentary elections by 2002.
The Affirmative Action Rule has proved to be a highly effective as between 1994 and 2010 the pre selection of women candidates increased from 14.5 percent to 35.6 percent. Since January 2012, the party has adopted a 40:40:20 quota system. The Constitution of the party states as follows:
The ALP is committed to men and women in the Party working in equal partnership. It is our objective to have equal numbers of men and women at all levels in the Party organization, and in public office positions the Party holds. To achieve the Party adopts a comprehensive affirmative action model of 40:40:20, as set out below, whereby a minimum of 40 percent of relevant positions shall be held by either gender.19
Thus, the aim of the ALTP is to ensure that 40 per cent Labor seats will be held by women and another 40 per cent Labor seats will be held by men. The 20 per cent Labor seats remaining will be filled by candidates from either gender. The main criticism against this system is that the quota must be increased to 50 per cent for each gender to increase the representation of women. Also, there are criticisms relating to tokenism for few candidates ultimately leading to lesser number of Labor women in parliament.
2. Coalition parties
The Liberal Party of Australia and the Nationals comprise the Coalition parties in Australia. The Coalition parties do not expressly gender quotas as they are against the principle of merit for political candidates. However, the Coalition parties have devised various strategies to develop women’s networks within the party and provide support for women to stand for preselection.20
The Liberals are strongly against the policy of quotas and have rejected such quota system from its inception in 1944.
However, in 2010, Liberal Senator the Hon Judith Troeth circulated a policy paper proposing that the quota for women in the organizational wing of the party should be applied to the parliamentary party. She strongly emphasized that women are not ‘progressing through party preselection to parliament and beyond’. She also called for women candidates to be endorsed in a minimum of 40 percent of its seats for the 2010 federal election.21
In 2010, however, Liberal Senator the Hon Judith Troeth circulated a policy paper proposing that the quota for women in the organizational wing of the party (introduced in 1944) should be applied to the parliamentary party. She stated that women are not ‘progressing through party preselection to parliament and beyond’, and called for women candidates to be endorsed in a minimum of 40 percent of its seats for the 2010 federal election. She defended the quota system stated that:
“If it’s demeaning for women to have quotas, it’s equally demeaning to sit in a Parliamentary party room for 20 years without seeing a progressive increase in the number of women members. As if those handful of women members who are there were the only “women of merit” who put themselves forward for preselection!”22
The Nationals has its origins in the Australian Country Party formed in 1920. The Nationals represents the interests of regional Australians.23 In 1959 the Nationals created a Women’s Federal Council within the party’s Federal Council. Such Women’s Federal Council was created to contribute to party policy and decision-making processes. It is encouraging to note that the party ‘supports and encourages participation by women in all aspects of the party or standing for parliament’.
3. Minor parties
The minor parties in Australia are the Australian Democrats (formed in 1977) and Australian Greens (formed in 1992). Both parties have embraced gender equity as a founding principle. Though neither party has adopted a gender quota each has achieved a relatively high percentage of women candidate. Also, both parties have had women as party leaders.
The Australian Greens reached a record high for any party in the 2010 federal election, with women comprising 71.4 per cent or more than two-thirds of their total candidates. The contributing factor for an increase in the number of women candidates to the party’s open decision-making, preselection processes, a strong emphasis on grassroots membership and gender equity as a core principle.
Thus, Australia has one-quarter of Members in the House of Representatives and a little more than one-third of Senators are women. In recent years many high-profile women represent Australia including Australia’s first female Prime Minister (in 2010) and Attorney-General (in 2011) women are grossly under - represented in Australia’s Parliament. There are significant social and cultural factors that deter women from participating on an equal basis with men, and this is a subject to be looked at very closely. Australia aims at fostering a more gender-sensitive parliament to remove the barriers to women’s full participation and offer a positive example or model to society at large.
Thus, by analyzing the provisions of the Sex Discrimination (Election Candidates) Act, 2002, the Equality Act, 2010 and a comparative study of the electoral quota system for women in Australia, we can state that though there have been gender reforms in the political system there is a need for more representation of women in politics in UK. Changes must be made in the existing legislative process to provide “fast-track” quotas allowing more women to enter the political field. Social and cultural changes in the society must allow be made giving women the adequate support to enter active political life.
The Sex Discrimination (Election Candidates) Act, 2002 does make a difference to gender equality through its all-women shortlists. The Equality Act, 2010 has specific provisions allowing political parties to use for positive action to reserve places on electoral shortlists. Comparative research with the electoral quota system in Australia indicates that the electoral system increases the number of women in active politics.
The need of the hour is to adhere to the principles of proportional representation allowing more number of women and minority representation. The scope of the aforesaid Acts must be widened to allow more representation for not only women but also underrepresented minority groups. Such adoption will lead to a more diverse parliamentary system representing the interests of all members of the community. Thus, to conclude, political system will be able to comprehensively address the needs of the society only when there are equal number of men and women in the parliamentary process. The aim of every nation must be to have a political system based equal representation of both genders to achieve change in the society as a whole and the political system in particular.
1 http://www.quotaproject.org/aboutquotas.cfm/ last accessed 11 April 2014.
2 http://ksghome.harvard.edu/~.pnorris.shorenstein.ksg/acrobat/quotas.pdf last accessed 10 April 2014.
4EC Directive 76/207/EEC.
5 http://www.collinsdictionary.com/ last accessed 10 April 2014.
6 http://www.legislation.gov.uk/ last accessed 9 April 2014.
7 Sex Discrimination (Election Candidates) Act 2002 (chapter 2), section 1.
8 Ibid, section 3.
9 Equality Act 2010 (chapter 15), section 105.
10 Jepson and Dyas-Elliott v the Labour Party and others  IRLR 166.
12 Sex Discrimination (Election Candidates) Act 2002 Chapter 2, Section 6.
13 The protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation (Equality Act 2010, section 4).
14 Equality Act 2010 (chapter 15), section 105.
15 M Sawer, ‘Women and government in Australia’, in Australian Bureau of Statistics, Year Book of Australia, 2001.
16 This ranking is based on the percentage of women members of parliament in the lower or single house of parliament in each of the 188 countries surveyed. See Inter-Parliamentary Union, Women in national parliaments, as at 1 October 2013, last accessed 11 April 2014.
17 J Wilson, Composition of Australian Parliaments by party and gender, as at 1 November 2013, last accessed 11 April 2014. Australia is considered to be part of the Asia-Pacific region, and is included here in accordance with its regional categorization by the IPU (Pacific) and IDEA’s Quota Project (Oceania).
18 ‘Women in leadership’, 4102.0 – Australian social trends, Dec 2012, Australian Bureau of Statistics, 11 December 2012, last accessed 11 April 2014.
19 Australian Labor Party, National Platform, Constitution and rules, Part B: Rules, 10, p. 239.
20 J McCann and J Wilson, Representation of women in Australian parliaments, Background Note, Parliamentary Library, 7 March 2012, last accessed 12 April 2014.
21 Senator the Hon J Troeth, ‘Modernizing the parliamentary Liberal Party by adopting the organizational wing’s quota system for preselections’, Policy Paper, 23 June 2010, last accessed 11 April 2014.
22 J Troeth, ‘A quota will level the playing field for Liberal women’, Sydney Morning Herald, 5 July 2013, last accessed 10 April 2014.
23 It was renamed the National Country Party in 1975 and the National Party of Australia in 1982, and is commonly referred to as ‘The Nationals’.