Dhamija v The Liberal Democrats In England

Under section 104 of the Equality Act 2010, a political party must assess inequality by reference to its current elected representatives in the relevant body. Positive selection arrangements must be a proportionate means of addressing that inequality. A scheme which gives priority to one protected group at the expense of candidates in other potentially under-represented protected groups is unlikely to satisfy that requirement. The smaller the relevant group of elected representatives, the narrower the scope for lawful preferential measures.

Mr Dhamija challenged the withdrawal of a Liberal Democrat candidate-selection protocol for European Parliament elections. The protocol provided for adjustment of ballot results to promote candidates from specified protected groups, including a rule giving priority to a BAME candidate within the top six positions. The defendant had withdrawn the relevant provisions before the application. The principal issue was whether the protocol was lawful under section 104 of the Equality Act 2010. It was accepted that, if the protocol was unlawful, the challenge to its withdrawal could not succeed.

1. Interpretation of section 104. The reference in section 104(4) to inequality in a party’s representation concerns the number of the party’s candidates currently elected as members of the relevant body who share, or do not share, a protected characteristic. The assessment is therefore directed to the current incumbents, rather than historical representation or possible future representation.
2. Application to the European Parliament group. The relevant comparator was the single Liberal Democrat member of the European Parliament. The fact that the comparator was a woman meant that the protocol’s provision requiring priority for female candidates could not be justified by under-representation of women in that body.
3. Proportionality. Section 104 requires selection arrangements to be a proportionate means of reducing inequality. The BAME priority rule gave one protected group an advantage while disadvantaging candidates from other protected groups, including LGBT+ candidates, who might otherwise have succeeded in the ballot. The possibility that a person might belong to more than one protected group did not remove the proportionality difficulty.
4. The Equality and Human Rights Commission guidance reinforced that it was unlikely to be proportionate to focus exclusively on improving one protected group’s representation where that would further reduce the selection prospects of people in other under-represented groups. The protocol’s BAME provision was therefore unlawful.
5. It followed, on the parties’ concession, that the application challenging withdrawal of the provision failed. Consequential matters were left to be addressed separately.