Applying the quota provision in the composition of the municipal strategy working group (TAS 288/2016; issued on 14 November 2016)
The Ombudsman for Equality has been asked to issue an opinion on the decision of a local executive under which less than 40 per cent of the members elected to the municipal strategy working group by the local executive are women.
Under section 4(1) of the Act on Equality between Women and Men (Equality Act), the authorities must in all their activities promote equality between women and men purposefully and systematically and create and consolidate administrative and operating practices that ensure the advancement of equality between women and men in the preparatory work undertaken on different matters and in decision-making. In particular, circumstances which prevent the attainment of gender equality must be changed. All authorities, including the municipalities, must observe this provision in all their activities.
Under section 4a(1) of the Equality Act, the proportion of both women and men in municipal bodies and bodies established for the purpose of inter-municipal cooperation must be at least 40 per cent, unless there are special reasons to the contrary. This provision does not apply to the local council, which is elected by popular vote.
Under section 17 of the Local Government Act (365/1995), the municipal bodies comprise the local council, the local executive and its sub-committees, the local authority committees and their sub-committees, the management boards and their sub-committees, as well as the commissions. There is no specific definition of a municipal body in the quota provision of the Equality Act. According to the Supreme Administrative Court, the municipal bodies referred to in the quota provision may, in some cases, also include bodies other than those listed in section 17 of the Local Government Act (such as working groups). This depends on the role and tasks of the body in question in municipal decision-making. In the assessment, consideration can also be given to the composition of the body, to the length of its term and to how frequently it meets.
The quota provision applies separately to members and deputy members. The quota provision can be deviated from for special reasons, for example when in a special field there are only experts representing one gender. The Ombudsman for Equality is of the view that the concept of special reasons should be given a narrow interpretation and the parties referring to a special reason must justify their decision. The authorities preparing the appointment of a body must ensure that the quota provision is observed.
The case law shows that deviations from the gender quota provision in municipalities usually involve situations where members are chosen on the basis of their official or elected position. The bodies in question are usually commissions to which local government officials can also be elected on the basis of their official position. The status of a local government official or elected official cannot automatically be considered the special reason referred to in the Equality Act. However, there may be situations where, taking into account the task of the body, there are objective reasons for only appointing specific elected and local government officials to a municipal body. This should, however, always be carefully considered and justified on a case-by-case basis. The reasons for the deviation should be stated when the members are being chosen and not after the completion of the selection process.
The request for opinion received by the Ombudsman for Equality concerned the municipal strategy working group appointed by the local executive, which comprises the following members: members of the chief executives’ management team, chairs of the local council groups, chairs and deputy chairs of the local council and the local executive, and the chair of the local council (as chair of the working group). On account of the task of the working group, all these persons were chosen as members on the basis of their official or elected position. When choosing the members of the working group, the local executive has taken into account the quota provision of the Equality Act and, according to its minutes, has justified the deviation from the provision by referring to a decision of the Supreme Administrative Court (KHO 2001:26). Thus, according to the information provided by the local executive, a total of 15 men and 6 women were elected to the working group.
The municipal strategy working group is a municipal commission and its composition should be in accordance with the quota provision contained in the Equality Act under which women and men should account for at least 40 per cent of the members. In her opinion, the Ombudsman for Equality stated that the task of the working group is of such nature that the local executive had the right to choose its members on the basis of their official or elected position and that the local executive had special reasons to deviate from the principle of gender quotas referred to in section 4a(1) of the Equality Act. The decision of the local executive under which 15 men and 6 women were elected to the municipal strategy working group is therefore not in violation of the Equality Act.