Why Parliamentary Parties aren’t Trade Organisations
In an interesting LinkedIn article, Peter Daly of Doyle Clayton Solicitors and Chris Milsom of Cloisters Chambers argue that MPs are entitled to bring discrimination claims in the employment tribunal under the Equality Act 2010 (‘the Act’). In this piece, we will endeavour to persuade you otherwise.
Peter and Chris accept that MPs are not employees in the relevant statutory sense. Their argument proceeds on the basis that MPs are members of a trade organisation.
A trade organisation is defined in section 57(7) as:
(a) an organisation of workers,
(b) an organisation of employers, or
(c) any other organisation whose members carry on a particular trade or profession for the purposes of which the organisation exists.
The argument goes that MPs are in the trade or profession of representing their constituents and of legislating, and a parliamentary party is an organisation that exists for the purposes of that trade or profession. If correct, it opens up the possibility of MPs being able to bring employment tribunal claims against parliamentary parties for discrimination on the grounds of any of the usual protected characteristics including philosophical belief (or absence thereof).
MPs are not carrying on a particular trade or profession
Section 212(1) of the Act tells us that ‘profession’ includes a vocation or occupation. The words should be given a broad construction so as to maximise protection under the Act, but not limitlessly broad. We suggest that the hallmark of a profession is that prospective new entrants are required to demonstrate specialised skill or knowledge in order to be admitted, and are thereafter subject to regulation by an independent body to maintain the profession’s standards.
Traditionally, trades, while also demanding specialised skill or knowledge, had fewer or no formal entry requirements and no statutory regulators. Those differences persist to an extent, though some trades now have systems of training, certification and regulation that are at least as exacting as those of the professions. One characteristic of a trade that has certainly survived, we suggest, is its inherent commerciality: a trader buys and sells goods or services.
We find some support for the relevance of formal qualifications in the Act itself: section 53 prohibits discrimination by ‘qualifications bodies’ and section 54(3) tells us that:
A relevant qualification is an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession.
MPs do not have to pass any test of skill or knowledge in order to take up their seats. Some may lament this, but we suggest it is to be celebrated that people from any and all backgrounds can in principle be elected to Parliament. MPs are also not subject to independent regulation. Although there is a Parliamentary Commissioner for Standards, she is appointed by and can be dismissed by the House of Commons, and sanctions for breaches of parliamentary standards are ultimately a matter for the House, as the Owen Paterson affair highlighted. Again, that is lamented by some, but it reflects the constitutional principle that an unelected person or body should not exercise control over our elected representatives. MPs are also not (at least in theory) in business: commercial success should be the further thing from their minds.
Politicians are protected elsewhere in the Act
There can be no doubt that the Act prohibits discrimination by a political party against its members, including MPs. We know this because Part 7 of the Act, which prohibits discrimination by ‘associations’, makes express provision in section 104 for associations which are also ‘registered political parties’. A parliamentary party is of course a unit within a larger political party, and parliamentarians who are members of a parliamentary party are also members of the associated political party.
Importantly, Part 7 includes some significant exceptions. Marriage and civil partnership does not count as a protected characteristic for the purposes of this part: section 100(1). Religion and belief and sexual orientation do not count as protected characteristics for the purposes of the anti-harassment provisions: section 103(2). Those exceptions are controversial and seem to have been motivated largely by the concerns of religious organisations such as the Church of England, but it is significant that the government said:
We do not wish, for example, to constrain legitimate freedom of expression (such as plays which touch on religious themes) or academic or critical enquiry and debate … Achieving the right balance in legislation is not a straightforward matter.
Discrimination Law Review, para 14.17
It might be said that nowhere is freedom of expression, critical enquiry and debate more important than in Parliament. If Peter and Chris’s argument is correct, the curious result would be that parliamentary parties could not avail themselves of exceptions intended to promote freedom of expression, whereas political parties can. It would also be anomalous that an MP’s claim against their parliamentary party would be adjudicated by the employment tribunal, whereas a claim against their political party would be adjudicated by the county court. There would be obvious potential for the sort of case management issues that can arise in breach of contract claims as a result of the overlapping jurisdictions of the courts and the employment tribunal.
Peter and Chris recognise that parliamentary privilege might present an obstacle to claims by MPs. We disagree with their analysis of parliamentary privilege. While it is a nebulous term whose meaning has changed over time, modern analyses tend to focus on Article 9 of the Bill of Rights 1688:
‘the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.’
Contra Peter and Chris, parliamentary privilege in this sense cannot be waived by the Speaker or anyone else: nothing less than express repeal would suffice.
We consider that the absolute nature of parliamentary privilege means that it should be narrowly construed. It should bar, for example, a discrimination claim based on something said by a party leader to one of their MPs in the course of a debate. It should not, we suggest, bar a claim based on the removal of the whip from an MP.
MPs should not be able to bring employment tribunal claims on the basis that their parliamentary parties are trade organisations. Part 7 of the Act nevertheless opens the door to some fascinating possibilities, not all of them welcome. There seems to be no reason in principle why one of the Conservative MPs from whom the whip was withdrawn before the last election could not have brought a discrimination claim against the Conservative Party on the basis of their philosophical belief in a united Europe.
While few would baulk at the idea that political parties should be prohibited from discriminating against their members in relation to other protected characteristics, it might be said that discriminating on the basis of beliefs is exactly what we would expect from a political party. Philosophical beliefs, it is submitted, remain an awkward fit within the framework of the Act.