Dr Austen Morgan is a barrister at 33 Bedford Row. He is the author of Pretence: why the United Kingdom needs a written constitution, to be published in early 2023.
Three nil. No, not football: politics. The Tories are now on their third woman prime minister: Margaret Thatcher; Theresa May; Liz Truss. Labour, in stark contrast, has never even managed to elect a female leader.
The Conservatives did even better in the diversity stakes, with the original eight in the first leadership; ballot: four women; four ethnic minorities; and only two white males: Tom Tugendhat and Jeremy Hunt, each with mitigating foreign connections.
And in Liz Truss’s still-not-completed government, the Great Offices of Sate are held remarkably by: Kwasi Kwarteng (Chancellor); James Cleverly (Foreign Secretary); and Suella Braverman (Home Office).
The reason for the difference between the parties – political freedom (Conservatives) versus statism (Labour) – raises the question: whose equality agenda should now be pursued by the new government with the resumption of political life?
David Cameron became Tory leader in 2005, with 198 MPs. 17 were women, and two ethnic minorities. He instituted an A-list, promoting female and ethnic minority parliamentary candidates. This was lawful at the time, and politically acceptable – if people had not liked it, the party would not have been de-toxified.
‘A diverse party’, Cameron wrote in July 2022, ‘will be vital as we face one of our next great challenges: proving that our multi-ethnic, multi-faith democracy can be a truly cohesive, united society based on opportunity.’
Meanwhile, Labour legislated the Equality Act (‘EA’) 2010. Tony Blair and Peter Mandelson had opposed the consolidation of domestic anti-discrimination law (from the 1960s and 1970s), even when a so-called business case was put forward opportunistically in the 2000s by proponents of a single equality bill.
It was Gordon Brown in 2007, faced with the surprising election of Harriet Harman as deputy party leader, who allowed women ministers in the equalities office to do their own thing. His attitude was: let Harriet Harman and her supporters have what they want!
He had the 2008 financial crisis to deal with globally, and then the scandal of MPs’ illegitimate expenses.
The Labour women ministers, concentrating on the margin of politics, further prohibited discrimination based upon the protected characteristics (a new concept) of: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation.
Trigger warning! Equality (plus human rights) did not come from Europe, meaning the EU. The EU promoted anti-discrimination law from mainly 2000, relatively late. It is Labour which accelerated so-called equality law domestically; and, of course, the EA 2010 has become the little red book of the social justice warriors.
Labour, of course, lost the 2010 general election, leaving the EA to be brought into force (or not!). David Cameron was in coalition with Nick Clegg, and the Liberal Democrats were (and are) very fond of Europe. But it was Theresa May, as Minister for Women and Equalities in 2010-12, who made most of the EA 2010 commencement orders. That is a fact worth remembering.
Liz Truss – reviewing the Government’s inherited legislative programme – should now consider amending the EA 2010, in the absence of a more constitutional (and juridic) approach to equality between citizens. There are two good candidates in the EA 2010 for immediate reform.
First, sections 158 and 159 on ‘positive action’. We all understand the need for anti-discrimination law. But the Labour sisters – for women against men – provided, under EU inspiration, for reverse discrimination. The practice since 2010 has been widespread social engineering, promoted by NGOs and executed by quangos.
In June 2020, the Supreme Court decided R (Z and another) v Hackney LBC and another  UKSC 40. Z was a single parent seeking social housing. (I do not know her ethnicity.) The real respondent was an orthodox Jewish social landlord. The Supreme Court accepted special pleading about larger families in that community, permitting its exclusion of non-Jewish groups. This was race discrimination – and it should not have been justified.
This Supreme Court decision, and reverse discrimination, should simply be overturned by Parliament at an early opportunity.
Secondly, Labour – legislating for itself – enacted sections 104 to 106 (special provision for political parties). Discrimination in the selection of parliamentary candidates was unlawful. The Labour women, however, permitted all-women shortlists. This statutory exception was to expire at the end of 2030, when, it was presumed, the measure would have ‘reduce[d] inequality in the party’s representation’.
In the 2019 general election (for the first time), more than 50 per cent of the 203 Labour MPs were women. So, what is the basis for the statutory exception continuing? Again, Parliament could repeal the general rule (which benefits only Labour), in the absence of course of Sir Keir Starmer – who does not quite know what a woman is – reverting to a fair system for selecting his parliamentary candidates.
The late Elizabeth II stood in a line of three notable female monarchs: Elizabeth I; and Victoria. That may or may not have helped the Conservatives, with the feminization of its – and the country’s – leadership. Is it too much to hope that the new government might advance a constitutionally respectable equality agenda?