The Equality Act 2010 prevents ‘indirect discrimination’. This is a misnomer because discrimination by definition would involve conscious decision making. What indirect discrimination actually refers to is a policy that applies equally to all but may affect some groups more than others. For example, a rule requiring the wearing of hard hats on a construction site, affects Sikhs more than the general population because Sikhism requires the wearing of a turban.
A policy that is indirectly discriminatory can be justified if it is a proportionate means of achieving a legitimate end. A Court or Tribunal would have to decide such a question.
In relation to political parties, I refer to the response below from the Electoral Commission to a request made under the Freedom of Information Act 2000 – see HERE pdf 49 and document p44; this response opines that the polices of a prospective political party amounted to indirect discrimination under the Equality Act 2010 and this formed part of the justification for refusing the request to register them as a political party. Part of the response is quoted below:
“Membership of the party is open to all those aged 16 years or over who broadly agree with its aims and policies…” 44 The party lists various policies on its website which persons of certain religions or those who identify as LGBTIQ+ would find it difficult, if not impossible, to support. For instance the party’s “plan” lists the following policies: I. “Full face coverings will be banned in public and there will be no religious exception to this” II. “Employers will no longer be forced to provide prayer rooms or special conditions for religious groups” III. “Private enterprises have the right to restrict their employees’ display of any religious symbols as they see fit” IV. “Those resigning on the grounds of religious objections to working practices will no longer be instantly eligible for state benefits”. V. “The traditional family will be promoted as an ideal to be striven for and emulated. No public body will promote any alternative as either equal or superior to the traditional family. To that end, children will be protected from exposure to sexualised material or LGBT propaganda in all public institutions”
Following the above logic, a policy of reinstating clause 28 could be said to indirectly discriminatory because homosexuals and lesbians may be less likely to support it, although this is an empirical assumption.
It is not clear whether the Electoral Commission considered whether the policy was a proportionate means of a achieving a legitimate end. It could be argued that any requirement for a member of a political party to agree with a policy of the party, was a proportionate means of achieving a legitimate end, without requiring Courts or Tribunals to opine on the substantive merits of the policies themselves. Such an approach would avoid political interference from Courts and Tribunals.
However, it would seem that the Electoral Commission are not adopting this approach and are placing themselves in a position, whereby they are able to decide who may be entitled to form a political party based on the substantive policies that a prospective party wishes to advocate for.
This approach is analogous to the case law on philosophical beliefs that are protected by the Equality Act 2010, namely that they must be worthy of respect in a democratic society to be protected by the Equality Act 2010. This involves Courts and Tribunals evaluating the substantive merits of such beliefs.
In the case brought by the then Human Rights and Equality Commission against the British National Party, the polices of the latter were deemed to be indirectly discriminatory:
In the BNP case, the party were not entitled to require that their potential members agree with its policies, something that any other political party would require for obvious reasons.
Despite the current regime in power professing to be a liberal one, this approach in relation to political parties, does not seem to conform to the tenants of liberalism. For example, as Ronald Dworkin sates:
“Fair democracy requires… that each citizen have not just a vote but a voice: a majority decision is not fair unless every-one has had an opportunity to express his or her attitudes or opinions or fears or tastes or presuppositions or prejudices or ideals, not just in the hope of influencing others (though that hope is crucially important), but also just to confirm his or her standing as a responsible agent in, rather than a passive victim of, collective action.”[1]
Dworkin is referring to speech generally and not the right to form political parties. Nonetheless his principle can be applied by analogy to the organisation of political parties; essentially if there is a prohibition on forming political parties that advocate policies which contravene the Equality Act 2010, then the Equality Act 2010 could be regarded as illegitimate as its existence depends on coercion.
One could consider the matter on a wider philosophical level; essentially the current regime is employing a form of liberalism by coercion which is inherently contradictory if one takes the premises of such liberalism at face value.
It is possible that if the Electoral Commission made a similar decision in future, that it could be challenged by judicial review or under the Equality Act itself, although I would be doubtful that any such challenge would succeed.
Subject to any such challenge, it is not hyperbolic to state that the aforesaid decision of the Electoral Commission amounts to the end of democracy in any meaningful sense; the reason for this is that it has been made illegal to organise a political party that would advocate for certain political policies. This plainly goes beyond laws that prevent incitement to violence or criminality.
[1] Ronald Dworkin ‘Extreme Speech & Democracy’ 2006 C Vii