Five women are taking the UK to the European Court of Human Rights alleging sex discrimination, due to their ineligibility to stand for by-elections in the House of Lords because of their gender. All but one of the 92 current hereditary peers are men. The list of 210 hereditary peers willing to be considered on the register of hereditary peers (for by-election) includes just one woman, Baroness Dacre. This is pretty astonishing less favourable treatment on the grounds of gender, or a marked disparate impact if considered in indirect sex discrimination terms.
Section 2(4) of the House of Lords Act 1999 (HLA 1999) makes provision for vacancies among the 92 excepted hereditary peers to be filled by the holding of a by-election on the death (or retirement or expulsion) of existing hereditary peers (which on the face of it appears gender neutral). However, no woman has been elected to the House of Lords in a by-election since the HLA 1999 came into force. Women are excluded from inheriting the vast majority of hereditary titles, by the principle of male primogeniture (namely, where sons, nephews and uncles take precedence over daughters, nieces and aunts when a title is passed to the next generation). The five women mounting this challenge are members of the group Daughters’ Rights. They are excluded from standing for by-election because of their sex and the interplay of the HLA 1999 with the primogeniture rule.
This case challenges the HLA 1999 and the various standing orders of the House of Lords on the basis that they are discriminatory and inconsistent with the rights enshrined within the European Convention on Human Rights. Article 14 of the Convention protects against discrimination. In this context this means treating people in analogous or relevantly similar situations differently, without an objective and reasonable justification (see Kiyutin v Russia  EqLR 530). Employment lawyers typically refer to this as direct discrimination, but the Convention has been held to include indirect discrimination as well (see DH v Czech Republic  ELR 17), where a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which though couched in neutral terms, discriminates against a group. The state enjoys a “margin of appreciation” in assessing the extent to which differences justify different treatment. In combination with this is the Article 3 right in Protocol No 1 to the Convention, namely the right to a free election, which includes the right to stand for election.
In Sejdic and Finci v Bosnia and Herzegovina (2009) 28 BHRC 201, the European Court of Human Rights found that the applicants’ ineligibility to stand for election to the House of Peoples because they were Roma and/or Jewish violated Article 14 of the Convention, when taken in conjunction with Article 3 of Protocol No 1. The court also found that their ineligibility to stand violated Article 1 of Protocol No 12 (the general ban on discrimination). This arguably represents a clear precedent, which should compel the amendment of section 2(4) of the HLA 1999 and the various orders, on the basis they are discriminatory on the grounds of sex.
It is difficult to think of what arguments the representatives for the House of Lords will come up with to justify this disparate treatment when the figures are so stark as to the impact on women and there is so much research around the benefits of diversity. The claim is essentially one of direct discrimination as I understand it, in which case the “very weighty reasons” test should be required on justification.
For the majority of us, if we are being discriminated against, we are able to sue domestically in the UK courts (via the Human Rights Act 1998 and direct effect) rather than having to head off to Strasbourg. However this group of women are unable to do so because of the “exclusive cognizance” of Parliament. This states that proceedings in Parliament are outside the jurisdiction of the national courts, unless Parliament expressly waives this right (see R v Chaytor  UKSC 52). If you have not recently brushed up on your constitutional law, you might think, as I did: what about the Article 50 Brexit challenge? Did that not impede exclusive cognizance? I am advised by Paul Hardy, Director for Brexit at DLA Piper, and the lead lawyer on this Daughters’ Rights case, that the Brexit case did not impinge on exclusive cognizance because the arguments concerned the scope of the Royal Prerogative in international relations and whether the withdrawal from the EU fell within that scope, or whether it required Parliamentary approval. It appears a pretty fine distinction.
Paul Hardy, leading the challenge, said: “Daughters’ Rights’ applications to the European Court of Human Rights in Strasbourg raised profound questions around sexual equality and membership of the House of Lords.” Indeed it does, and I agree that our highest establishments need to reflect and embody the social justice aims of society. The rule of male primogeniture has been waived in the case of royal succession in the UK. Groups are campaigning for equal representation of women on boards of FTSE 250 and 500 companies, and for equal pay across all sectors of the workforce. In this context, it seems arbitrary and outdated for this rule to remain. Parliament certainly needs to get its house in order. Hopefully the European Court of Human Rights will force its hand.