What the law does, and doesn’t, allow the Lib Dems to do for candidate selection

The motion going to the Liberal Democrat spring conference titled ‘Electing diverse MPs’ contains a wide range of recommendations for the Liberal Democrats to improve our diversity and generally they cover the full range of diversity strands, such as:

Create a “2020 Candidate Diversity Task Force” to co-ordinate party-wide efforts to actively recruit parliamentary candidates from under-represented groups from both inside and outside the Party.

and

As a minimum the three state parties should follow the Canadian Liberal Party practice of requiring the relevant Local Party to provide documented evidence to their region or state (as relevant) of a thorough search for potential candidates from under-represented groups before being granted permission to start their Westminster selection process.

One specific area, however, is more restricted in its application, referring to women and, in part, to people with disabilities:

Any local party should be able to vote for an all-women shortlist or an all-disabled shortlist… If any sitting MP elected in 2015 decides not to contest the next General Election, his replacement should be selected from an all women shortlist.

Why this more restricted approach rather than, for example, saying that if a sitting MP stands down their replacement should be selected from a ‘non-straight white able-bodied men’ shortlist, i.e. allowing all the under-represented groups a chance to be on the shortlist? In brief – because the law doesn’t allow it.

When it comes to ‘all-X’ shortlists, the law specifically only allows all-women or all-disabled shortlists, and nothing else.

The Equality and Human Rights Commission has a handy summary of what is, and isn’t legal, of which the pertinent part is:

A shortlist cannot be made up only of people with a protected characteristic, except in relation to sex and disability.

Shortlists entirely made up of the under-represented sex are allowed until 31 December 2030. In practice, that means ‘women-only’ or ‘all-women’ shortlists (although if before that date one of the bodies to which these positive action provisions apply did have under-representation by men representing a particular political party, it could mean a ‘men-only’ shortlist).

A shortlist made up only of disabled people would be allowed as well, because of the exception in equality law which allows disabled people to be treated more favourably than non-disabled people. The aim of the law in allowing more favourable treatment for disabled people is to remove barriers that disabled people would otherwise face to participating in activities.

Certainly there’s a lot of merit in amending the motion to include a call for the law to be changed, but unless the party wants to deliberately select candidates in a way that breaches the law, it has to be all-women or all-disabled shortlists only.

A few points are worth noting about this legal situation:

• The relevant part of the law was last changed by the Equality Act 2010. Therefore what parties did or didn’t do before 2010, or indeed references to laws or court cases from prior to 2010, are liable to ‘but the law changed in 2010’. This may sound obvious, but I’ve seen a few comments made online which refer to, for example, an earlier piece of legislation as if that sets the rules and the 2010 Act never happened.
• Sometimes there is widespread debate amongst expert legal minds as to what the law actually says. In this case, I’ve not seen anyone produce a legal argument which disagrees with the words quoted from the Equality and Human Rights Commission above – which is not surprising given how closely it mirrors what is written on the face of the legislation.
• The definition of ‘woman’ when it comes to all-women shortlists is as set out in the Equality Act, i.e. “a female of any age”, and in turn follows the usual legal definition of “female”. In particular, the Gender Recognition Act 2004 sets out the process for someone to change their gender.
• This provision is specific to candidate selection. It’s different from other areas of law, such as the near-complete ban on positive discrimination when it comes to appointing to company boards.

Note: I’ve updated this post to provide extra details since first publishing it.

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