The Labour Party’s use of all-women shortlists (AWS) going into the next general election has been thrown into doubt after it received legal advice warning they could be “unlawful”.
Papers submitted to the party’s ruling body this month, and seen by HuffPost UK, cite legal guidance from last summer which suggests continuing with the policy could be challenged in court now the majority of the parliamentary Labour party (PLP) is female.
One paper produced by party officials, and presented to the National Executive Committee (NEC), highlights concerns that it may no longer be possible for Labour to retain the policy if it is to comply with the 2010 Equality Act, the legislation parties have relied on to make use of AWS, in all circumstances.
The document, submitted to the equalities committee of the NEC, argued the use of AWS was only “lawful where there is a higher proportion of males in the party’s representation in a body than in the population at large”.
It cited estimates from the Office of National Statistics (ONS) which show that there are now fewer men in the PLP than in the general population while the reverse is true for women — meaning using AWS for Westminster selections may not be appropriate.
According to the ONS, in 2020, 49.4% of the UK population was male and 50.6% was female — but as of October this year, 48.24% of the parliamentary Labour Party (PLP) is male while 51.76% is female.
Labour first supported all-women shortlists for selecting parliamentary candidates at its 1993 conference, and it has since been credited with increasing women’s representation in politics. When the party used the policy in the 1997 general election, a record 101 women were elected to parliament.
Current high-profile politicians in today’s parliament — including Labour deputy leader Angela Rayner and MPs Jess Phillips and Stella Creasy — have all been selected under AWS.
But the policy has not been without controversy, with some arguing it is anti-democratic and discriminatory.
The document sent to the equalities committee said the legal advice it had received was “clear that in situations where women are not currently under-represented in the particular body in question – such as in the current Westminster parliamentary Labour Party – the use of AWS would not be lawful”.
And it added: “Should the Labour Party find itself in court due to the use of AWS for selections to a body where this is not enabled under the Act, it is highly likely the party would lose.
“Given the obligations that the party has to ensure it meets its legal and financial responsibilities – which is also one of the NEC’s key functions, pursuant to the party’s rules – it is untenable for the party to ever pursue a policy position that is clearly unlawful.”
However, despite the strong language used in the legal guidance, it is understood Labour’s position on AWS remains an “active discussion” that is “under review” following opposition to the wording in the papers from a number of sections of the party and AWS advocates.
Some believe that while gender parity has been exceeded in the PLP, any move away from AWS could mean the progress is undone.
“Labour women had to fight hard to bring in AWS, which has proven to be the only effective way to increase women’s representation in parliament,” a Labour source said.
“Scrapping the use of AWS would put our women back decades.
“The NEC must continue to remain vigilant on the retaining of AWS, and push back hard against any moves to get rid of it.”
Labour was first confronted with the dilemma over whether it could proceed with AWS following the 2019 general election, when, for the first time, more women were elected to the PLP than men.
It is understood the NEC at that time took the position that proceeding with the policy would be unlawful, but that the NEC under Keir Starmer took a different view, bringing the issue back to the table.
A renewed spotlight has further been put on the use of AWS as the party gears up for a general election, which it believes could be held as early as 2023.
Despite opposition to the document sent to the equalities committee, a follow-up paper with solidified wording against AWS was then submitted to the NEC’s organisation committee — a move that provoked anger among some.
“Even after they heard so many speak against it, they still went to the organisation committee and strengthened the wording,” a Labour source said.
“The party’s boys in suits think they are more clever than anyone else.”
The party is understood to have changed the wording in the later document to say that Labour would continue to use positive actions to encourage female representation in the party, including the use of AWS.
Former minister Angela Eagle, who sits on the NEC and helped lead the original push for Labour to adopt AWS, told HuffPost UK: “The party is completely committed to ensuring and enabling equal representation of women at all levels.”
The Labour party has been contacted for comment.