Hostname: page-component-78c5997874-dh8gc Total loading time: 0 Render date: 2024-11-10T10:44:40.187Z Has data issue: false hasContentIssue false
  • English
  • Français

Positive Action to Promote Women in Politics: Some European Comparisons

Published online by Cambridge University Press:  17 January 2008

Meg Russell  and
Colm O'Cinneide
Get access Rights & Permissions [Opens in a new window]

Extract

The issue of women's under-representation in politics continues to be controversial and pressing in countries all over the world. According to the Inter Parliamentary Union, only 14.7 per cent of the world's legislators are women.1 In no country do women achieve parity with men in terms of parliamentary representation. The record of many of the world's most developed countries is particularly poor. Looking at lower houses of the legislature, in the US women's representation is only 14 per cent, in the UK 18 per cent, France 12 per cent and Italy 10 per cent. These countries are considerably out-performed by others such as South Africa and Argentina, both at 30 per cent.2

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 52 , Issue 3 , July 2003 , pp. 587 - 614
Copyright
Copyright © British Institute of International and Comparative Law 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Figures taken from the Interparliamentary Union database, <http://www.ipu.org/wmn-e/classif.htm>.

2 Ibid.

3 Democracy Still in the Making: A World Comparative Study, Inter-Parliamentary Union, Women and Men in Politics Series No 28 (Geneva, 1997).

4 See the Equal Opportunities Commission report, Women in Parliament, Aug 2001, <http://www.eoc.org.uk/PDFS/parliament>.

5 76/207/EEC.

6 The European Convention on Human Rights has been incorporated into domestic law by the Human Rights Act: for the consequences of this in the context of positive action to promote women's representation, see Part VI below.

7 Until the passage of the Registration of Political Parties Act 1998 and Political Parties Elections and Referendums Act 2000, parties were largely unregulated in UK law, and even this Act has a relatively narrow scope, primarily covering parties’ financial responsibilities. See KD Ewing, ‘Transparency, Accountability and Equality: The Political Parties, Elections and Referendums Act 2000’ PL [2001] 542.

8 John v Rees [1970] Ch 345, Mortimer v Labour Party HC, nr 14 Jan 2000. See also Ewing, KD, The Funding of Political Parties in Britain (Cambridge: Cambridge University Press, 1987), 1–3.Google Scholar

9 See, eg, Norris, P, ‘Legislative Recruitment’, in LeDuc, L, Niemi, RG, and Norris, P (eds), Comparing Democracies: Elections and Voting in Comparative Perspective (London: Sage, 1996)Google Scholar; Norris, , ‘Conclusions: Comparing Passages to Power’, in Norris, (ed), Passages to Power: Legislative Recruitment in Advanced Democracies (Cambridge: Cambridge University Press, 1997).Google Scholar

10 For the new Conservative approach, see the Guardian, ‘Tories Plan More Women and Minority Candidates’, 23 Feb 2002.

11 See Short, C, ‘Women and the Labour Party’, in Lovenduski, J and Norris, P (eds), Women in Politics (Oxford: Oxford University Press, 1996).Google Scholar

12 Jepson and Dyas-Elliot v The Labour Party [1996] IRLR 116 ET. For a more detailed discussion of the case see Davis, H, ‘All-Women Shortlists in the Labour Party’, Public Law, 207–14 (1995)Google Scholar, and R Ali and C O'Cinneide, Our House? Race and Representation in British Politics, 53–4 (Institute of Public Policy Research, 2002).

13 See Russell, M, Women's Representation in UK Politics: What Can be Done Within the Law? (London: Constitution Unit, 2001).Google Scholar

14 Sawyer v Ahsan [1999] IRLR 609 EAT.

15 These clauses are discussed in Russell, Women's Representation in UK Politics at n 13. For the parliamentary debates, see House of Commons Hansard, 2 Mar 1998, cols 787–97 for Wales and 31 Mar 1998, cols 1134–46 for Scotland.

16 The Guardian reported that a leaked cabinet committee minute from the Lord Chancellor argued that the proposed amendments would not remove the possibility of a challenge under the EC Equal Treatment Directive. See Guardian, 3 Mar 1998, ‘Why Irvine sent Dewar plan to boost women in Scottish Parliament back to drawing board’. These concerns were reiterated by ministers in debate—see HC Deb Vol 309, cols 1143–6.

17 A milder form of positive action was also used by Plaid Cymru in Wales. For a fuller discussion of the selection process for the Scottish Parliament and Welsh Assembly, see Russell, M, Mackay, F, and McAllister, L, ‘Women's Representation in the Scottish Parliament and National Assembly for Wales: Party Dynamics for Achieving Critical Mass’, Journal of Legislative Studies vol 8, no 3 (2002) at 79–89.CrossRefGoogle Scholar

18 The indirect discrimination in favour of women inherent in zipping and twinning systems has been justified as designed to remedy inherent discrimination against women candidates. There is considerable doubt however as to whether this rationale would have served as an adequate objective justification for indirect discrimination under the SDA, and these forms of positive action were not tested prior to the legal change described in Section VII below.

19 See Russell, , The Women's Representation Bill: Making it Happen (London: Constitution Unit, 2001)Google Scholar

20 Times Law Reports, 7 Feb 2002.

21 Section 25 only applies to ‘private clubs’, but the Court was of the opinion that a county court, the relevant tribunal under s 25, could find that the Labour party arguably constituted a ‘private club’ by virtue of the possibility of new members being barred from joining the party under its screening process.

22 See Ali and O'Cinneide, above at n 12, 55–7.

23 Chapter 2, Art 16, Swedish Constitution. The European Convention on Human Rights is also incorporated into domestic law. (Lag 1994: 1219).

24 Jämställdhetslagen (1991), 433.

25 Vallagen (1997), 157.

26 See n 1.

27 Note that the second sentence of Art 3(2) was added in 1994, as part of a reform of constitutional law. This gave the government an obligation to promote the factual enforcement of the equal rights principle.

28 Michalowski, S and Woods, L, German Constitutional Law (Aldershot: Dartmouth, 1999), 169–71Google Scholar. See also Peters, A, Women, Quotas and Constitutions: a Comparative Study of Affirmative Action for Women under American, German, EC and International Law (Dordrecht: Kluwer, 1999).Google Scholar

29 See discussion of the EC case law, below.

30 See Poguntke, T, ‘Parties in a Legalistic Culture: the Case of Germany’, in Katz, R and Muir, P (eds), How Parties Organise: Change and Adaptation in party Organisations in Western Democracies (London: Sage, 1994).Google Scholar

31 Party statutes are formally legally recognised by section 6 of the Party Law, which states that: ‘The party must have a written statute and a written programme.’

32 See, eg, Shaw, E, ‘New Labour: New Pathways to Parliament’, Parliamentary Affairs, 54, 35–53 (2001).CrossRefGoogle Scholar

33 In Bavaria, the independent CSU (Christlich Soziale Union) as a sister-party to the CDU uses only targets, not quotas, in their statute.

34 In accordance with CEDAW, discussed below.

35 Lenoir, N, ‘The Representation of Women in Politics: From Quotas to Parity in Elections’, (2001) 50 ICLQ 217–47.CrossRefGoogle Scholar

36 Under the French system there is a second run-off ballot between the top two candidates in seats where no candidate obtained a majority of the vote. France, like the UK, uses different electoral systems for different levels of government. Regional government, plus much of local government and some seats in the upper house (Sénat) are elected using a proportional list system.

37 The Gaullist right attacked the bill as unconstitutional and enshrining unequal treatment, and catcalls of ‘what about hermaphrodites?’ were heard in the Assembly: see Sweet, A Stone, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000), 106.CrossRefGoogle Scholar

38 In localities with more than 3,500 electors, local government elections use a proportional list system. Other areas use a double-ballot system similar to that used for the Assemblée Nationale.

39 Incorporated into the French constitutional framework by the Preamble to the 1946 Constitution: see Bell, J, Boyron, S, and Whitaker, S, Principles of French Law (Oxford: Oxford University Press, 1998)Google Scholar, ch 5. See also Stone Sweet, above n 37, at 99–100.

40 Case 82–146, Recueil 1982, 66, 18 Nov 1982, available at <http://www.conseil-constitutionnel.fr/decision/1982/82146dc.htm>.

41 The Conseil made reference to the Preamble of the 1946 constitution, whose third paragraph states that ‘the Law guarantees to the woman, in all fields, equal rights to the man’. This provision had been ‘ignored’ by the Conseil Constitutionnel in the earlier case: see Stone Sweet, above at n 37.

42 Case 97–394, Recueil 1997, 344, 31 Dec 1997, available at <http://www.conseil-constitutionnel.fr/decision/1997/97394dc.htm>. The words from the new Art 141 of the Treaty are cited below.

43 Case 98–407 Recueil 1999, 21, 14 Jan 1999, available at <http://www.conseil-constitutionnel.fr/decision/1998/98407/98407dc.htm>.

44 A list of seven names must thus be structured, at a minimum, man, man, man, woman, woman, woman, man.

45 See n 16 above.

46 C–450/93, Eckhard Kalanke v Freie Hansestadt Bremen [1995] ECR 1–3051; see also C–409/95 Marschall v Land Nordrhein Westfalen [1997] ECR I–6363.

47 See Fredman, S, ‘Reversing Discrimination’, (1997) 113LQR 575.Google Scholar

48 C–15 8/97, Badeck and others v Landesanwalt beim Staatsgerichtshof des Landes Hessen [2000] [2000] IRLR 432; C–407/98, Abramhamsson v Fogelqvist [2000] IRLR 732. For further discussion, see Russell, Women's Representation in UK Politics, n 13 above, Craig, P and Burca, G De, EU Law (Oxford: Oxford University Press, 2002), 844–8Google Scholar and Fredman, S, Discrimination Law (Oxford: Clarendon Press, 2002), 136–45.Google Scholar

49 Commissioner Padraig Flynn, in answer to question E–1556/98 in the European Parliament from Nal van Dijk MEP, June 1998.

50 Letter of Lord Williams of Mostyn QC to the Joint Select Committee on Human Rights, Appendix to Ninth Report 2001/02 Session, HC 475 available at <http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/60/6002.htm>.

51 Note that stronger arguments can be made for the applicability of the Race Directive to candidate selection: see Ali and O’Cinneide, Our House?, above at n 12, 91–4.

52 See the comments of the United Nations Human Rights Committee in respect of the requirement of equal treatment contained in Art 26 of the UN International Covenant on Civil and Political Rights (ICCPR): ‘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’. General Comment No 18 (37), UN Doc A/45/40, para 10, 45 UN GAOR, Supp (No 40) (1990).

53 In interpreting this provision, the European Court of Human Rights has held that it implied ‘the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for elections’. See Mathieu-Mohin and Clerfayt v Belgium [1987] 10 EHRR 1.Google Scholar

54 [1967] 1 EHRR 241.

55 For an account of the politics of this decision, see Russell, , ‘Women in Elected Office in the UK 1992–2002: Struggles, Achievements and Possible Sea-change’, in Dobrowolsky, A and Hart, V (eds), Women, Politics and Constitutional Change (New York: Palgrave, 2003).Google Scholar

56 Legislation relating to equal opportunities covers England, Scotland, and Wales only under the devolution settlement, with responsibility for equal opportunities in Northern Ireland being devolved to the Belfast Assembly. The Act however extends the exemption to Northern Ireland, by inserting an equivalent new article to that inserted in the SDA in the Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042).

57 See, in particular, Russell, The Women's Representation Bill: Making it Happen, at n 19.

58 The Act does not provide for any exception to the Race Relations Act. Any form of racial discrimination by political parties, negative or positive, is therefore still unlawful, as originally held in Sawyer. Ethnic minority under-representation in candidate selection is still prevalent, which has resulted in calls for positive action to be applied by the parties to reduce inequality, in line with the sex-specific provisions of the Act. However there are difficulties in implementing positive action in the context of race that do not arise to the same degree in the context of gender: see Ali and O’Cinneide, Our House?, at n 12 above 61–3.

59 Subsequent to the Act gaining Royal Assent, the decision in Ali v Triesman (discussed above) has changed the legal position, with the Court of Appeal considering that selection did not come within the definition of employment.

60 For a discussion of this see Childs, S, ‘The Sex Discrimination (Election candidates) Act 2002 and Its Implications’, Representation, vol 39 no 2, 2003CrossRefGoogle Scholar. Russell, ‘Women in Elected Office in the UK 1992–2002’ at n 55.

61 Joint Select Committee on Human Rights, Sex Discrimination (Election Candidates) Bill, 4th Report, Session 2001/02, HC 406 at p 3. Available at <http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/44/4403.htm>.

62 Ibid.

63 See D Oliver ‘The Frontiers of the State: Public Authorities and Public Functions Under the Human Rights Act’ (2000) PL 476, K Markus, What is Public Power? The Courts’ Approach to the Public Authority Definition under the Human Rights Act, Justice Seminar Series, 2002.

64 See n 61 above, at 2.

65 Lord Williams’ letter, above at n 50.

66 The US Supreme Court in Smith v Allwright 321 US 649 (1944)Google Scholar, Morse v Republican Party of Virginia (1996) No 94–203, Terry v Adams 345 US 461 (1953)Google Scholar has treated racially discriminatory acts by parties as constituting ‘state action’ that violated the Equal Protection Clause of the US Constitution.

67 The UK government in the context of the Sex Discrimination (Election Candidates) Act has recognised this possibility: ‘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. How a political party will use [the legislation] 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’, HL Deb, 28 Nov 2001, WA 56 per Lord Williams of Mostyn QC.