Putting a new spin on applications for silk

The ruling of the Leeds Industrial Tribunal on 8 January 1996, that Labour's 'women-only' short lists are illegal, gives rise to some interesting questions (Dyas-Elliott & Jepson v Labour Party).

The applicants were men wishing to be considered for selection in Labour constituencies which had women-only short lists. The men relied on section 13 Sex Discrimination Act 1975 (SDA), which governs “an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade”.

The Labour Party countered that constituency Labour Parties could not be qualifying bodies under section 13, and MPs were office-holders and were not engaging in a particular profession or trade.

As for Community law, the Labour Party accepted that Equal Treatment Directive 76/207/EEC applied. The general prohibition on discrimination in article 3.1 of Directive 76/207/EEC is very broad: “there shall be no discrimination whatever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy”. Labour relied on article 2.4, which authorises “positive action” measures.

The tribunal ruled section 13 SDA was widely drafted and covered “all kinds of professions, occupations and trades in which persons may engage paid or unpaid and whether they be employment as defined in section 82 or not (for example doctors, lawyers and judges) including thereby persons who hold public offices”. Section 82 SDA defines “employment” as inter alia employment under a contract of service.

The tribunal noted that directive 76/207/EEC was not directly applicable, since the respondents were not emanations of the State. But it rejected Labour's contention that women-only short lists were covered by article 2.4 of the Directive. It cited the ECJ's ruling in Kalanke Case C-450/93 (quotas for women unlawful).

The decision of the tribunal does not set a binding precedent, but its broad-brush approach provides food for thought, from the perspective of self-employed practitioners wishing to enter the annual competition for silk.

Silk is not essential to a legal practice, but it undoubtedly facilitates it. The Lord Chancellor's Department views QC status as a rank within the advocacy field. Technically, it is an office under the Crown. The first question is whether, in considering and selecting candidates for silk, the LCD is a “qualifying body” within section 13 SDA.

Strictly speaking, the Lord Chancellor does not award silk; the Queen does by issuing letters patent, after taking his advice. Is the Queen a “qualifying body” within section 13 SDA?

It might be argued that the Queen falls outside the SDA in respect of acts undertaken by her (such as issuing letters patent). Section 85 SDA provides the Act applies: (a) to an act done by or for purposes of a Minister of the Crown or government department; and (b) to an act done by on behalf of the Crown by a statutory body, or a person holding statutory office, as it applies to an act done by a private person.

Section 86 SDA provides that appointments to offices or posts by a Minister or government department are subject to the same non-discriminatory obligation as is directed in the employment field.

It seems unlikely that a tribunal, adopting the Jepson approach, would be impressed by an argument that the issuing of letters patent fell outside sections 85-86 SDA. In any event, arguments founded upon UK constitutional niceties do not cut any ice under Community law. Unlike Jepson, in this case Directive 76/207/EEC (and equal treatment directive for the self-employed 86/613/EEC) would have direct effect.

Whether or not one views the granting of silk as falling within the broad terms of article 3.1 Directive 76/207/EEC, it is worth noting that Article 4 of Directive 86/613/EEC imposes an obligation on member states to “take the measures necessary to ensure the elimination of all provisions which are contrary to the principle of equal treatment as defined in Directive 76/207/EEC, especially in respect of the establishment, equipment or extension of a business or the launching or extension of any other form of self-employed activity including financial facilities”.

Article 9 of directive 86/613/EEC also provides that “member states shall introduce…measures as are necessary to enable all persons who consider themselves wronged by failure to apply the principle of equal treatment in self-employed activities to pursue their claims by judicial process”.

If a court or tribunal were to decide that the grant of a silk to legal practitioners is outside the SDA, it would nonetheless be bound to give effect to Community law. A court or tribunal is bound to afford an effective remedy to an applicant for breach of his or her rights under Community law. Those involved in the grant of silk, therefore, need to ensure their selection process and criteria do not discriminate, directly or indirectly, on grounds of sex.