Hostname: page-component-586b7cd67f-vdxz6 Total loading time: 0 Render date: 2024-12-02T23:29:21.307Z Has data issue: false hasContentIssue false
  • English
  • Français

Mainstreaming equality in Ireland: a fair and inclusive accommodation?

Published online by Cambridge University Press:  02 January 2018

Siobhán Mullally
Siobhán Mullally*
Affiliation:
University College, Cork
Get access Rights & Permissions [Opens in a new window]

Abstract

This article examines the steps taken in recent years to mainstream equality issues into the law and policy process in Ireland. Although official discourse increasingly recognises the need to tackle inequality and social exclusion, there is little to suggest that the mainstreaming process has been a transformative one. A reluctance to move beyond established legal categories or to radically challenge law and policy-making processes has greatly restricted the potential for reform. If mainstreaming is to be effective, the pursuit of equality must be recognised as a core norm guiding all aspects of law and policy making. In the Good Friday Agreement the Irish government committed itself to promoting equality in all social and economic activity and to demonstrating its respect for the diverse identities and traditions on the island of Ireland. Much work remains to be done if this commitment is to be fulfilled.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 1 , March 2001 , pp. 99 - 115
Copyright
Copyright © Society of Legal Scholars 2001

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Partnership 2000 for Inclusion, Employment and Competitiveness (Dublin: Government Stationery Office, 1996). The ‘Social Partners’ are drawn from four distinct strands: Trade Unions, Employers' Associations, Farming Associations and the Community and Voluntary Sector.

2. Partnership 2000 for Inclusion Employment and Competitiveness, above n 1, p 3.

3. Agreement reached in the Multi-Party Negotiations, reproduced at (1998) 37 ILM 751 (hereinafter referred to as the Good Friday Agreement). See generally G Gilbert ‘The Northern Ireland Peace Agreement, Minority Rights and Self-Determination’ (1998) 47 ICLQ 943; C Harvey and S Livingstone ‘Human Rights and the Northern Ireland Peace Process’ (1999) EHRLR 162–177.

4. Good Friday Agreement, para 9.

5. See Browne, N ‘Church and State in Modern Ireland’ in Murphy, T and Twomey, P Ireland's Evolving Constitution 1937-1997 (Oxford: Hart Publishing, 1998) pp 41–50 Google Scholar. The 1937 Constitution was largely conceptualised and written by the then Head of State, Eamon de Valera and Roman Catholic churchmen, most notably Archbishop John Charles McQuaid and the Jesuit, Edward Cahill. See Keogh, D Ireland and the Vatican, 1922-1960 (Cork: Cork University Press, 1995)Google Scholar, especially pp 132–140.

6. The revised arts 2 and 3 were inserted into the Constitution following a referendum in May 1998 and the subsequent enactment of the Nineteenth Amendment to the Constitution Act 1998. The coming into effect of the constitutional amendments followed the completion of the requirements set out in art 4 of the British-Irish Agreement 1998 (annexed to the Multi-Party Agreement).

7. ‘Framework 3 for Social Inclusion and Equality’, Programme for Prosperity and Fairness (Dublin: Government Stationery Office, 2000). The proposals for equality proofing procedures are based on the Partnership 2000 Working Group Report. S Mullally and O Smith Equality Proofing (Dublin: Government Stationery Office, 2000).

8. Re Article 26 and the Mutter of the Employment Equality Bill, 1996 118/97 unreported, Supreme Court, 15 May, 1997 and Re Article 26 and the Mutter of the Equal Status Bill. 1997 unreported, Supreme Court, 19 June, 1997.

9. Report of the Constitution Review Group (Dublin: Government Stationery Office, 1995).

10. Section 75 of the 1998 Northern Ireland Act.

11. Equal Pay Act 1974 and Employment Equality Act 1977. The Unfair Dismissals Acts, 1977-1995, prohibited dismissal on grounds of race or sexual orientation.

12. The enactment of the Equal Status legislation was intended inter alia to facilitate the ratification of the UN Convention on the Elimination of Racial Discrimination signed by Ireland in March 1978. Ireland finally ratified the Convention on 23 December 2000.

13. See Equal Opportunities Review, No 69 September/October 1996.

14. Article 26.3.1°.

15. Re Article 26 and the Matter of the Employment Equality Bill, 1996, above n 8.

16. Article 38.1 of the Constitution provides: No person shall be tried on any criminal charge save in due course of law.

17. As protected by arts 43 and 40.3.1° of the Constitution respectively.

18. Re Article 26 and the Matter of the Employment Equality Bill, 1996 above n 8, pp 72–73.

19. Ibid p 55.

20. See National Economic and Social Forum Employment Equality Bill: Forum Opinion, No 5 (Dublin: NESF, 1996) p 13.

21. Section 37(1)(a).

22. Eileen Flynn v Sister Mary Anna Power and the Sisters of the Holy Faith (1985) ILRM 336.

23. NESF (1996) above n 20.

24. Campaign for Equality Employment Equality Bill 1996: Submission to the Social Affairs Committee (Dublin: NWCI, 1996) p 4.

25. Re Article 26 and the Matter of the Employment Equality Bill 1996, above n 8, p 55. Article 44.2.1 of the Constitution provides: ‘Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.’

26. Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v Amos 4 83 US 327, p 342.

27. See Report of the Constitution Review Group (1995), above n 9, p 222.

28. Equal Status Act 2000 [No 8 of 2000]. The Act came into force on 2 October 2000.

29. Article 14 of the European Convention on Human Rights and Fundamental Freedoms, prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. However, its scope extends only to those rights protected in the Convention. A Draft Protocol to extend the scope of art 14 is currently under consideration. See generally: http://www.dhcour.fr/.

30. See ‘Equal Status Bill: Report and Final Stages’ Dáil Debates, 15 December 1999, at http://www.irlgov.ie/oireachtas/frame.htm per Mr John O' Donoghue, TD, Minister for Justice, Equality and Law Reform.

31. Equal Status Act 2000, s 3(2).

32. ‘Equal Status Bill: Report and Final Stages’ Dáil Debates 15 December 1999, above n 30, per Ms O'Sullivan TD.

33. A number of Progress Reports have been published: All-Party Oireachtas Committee on the Constitution: First Progress Report (Dublin: Government Stationery Office, 1997); All-Party Oireachtus Committee on the Constitution. Second Progress Report: the Seanad (Dublin: Government Stationery Office, 1997); All-Parry Oireachtas Committee on the Constitution, Third Progress Report: the President (Dublin: Government Stationery Office, 1998); Fourth Progress Report: The Courts and the Judiciary (Dublin: Government Stationery Office, 1999).

34. J Morison “A disposition to preserve and an ability to improve”: The Report of the Constitution Review Group' (1997) PL 55–65.

35. Ibid.

36. (1995) 1 IR 1, p 38.

37. See generally: S Mullally ‘Searching for Foundations in Irish Constitutional Law’ (1998) Irish Jurist 333–350; A Twomey ‘The Death of Natural Law’ (1995) 13 Irish Law Times 270. On the relevance of this case to constitutional amendments, see A Sherlock ‘Constitutional Change, Referenda and the Courts in Ireland’ (1997) PL 125 at 127.

38. Report of the Constitution Review Group. above n 9, pp 3–6.

39. See Dooley, D ‘Gendered Citizenship in the Irish Constitution’ in Murphy, T and Twomey, P Ireland's Evolving Constitution 1937-1997 (Oxford: Hart Publishing, 1998) p 125 Google Scholar.

40. Ibid p 122.

41. Article 41 of the Constitution, Bunreacht na héireann.

42. Article 41.1.2.

43. Given the Supreme Court decision in L v L 1992 IR 77 – holding that art 41.2 could not be used to guarantee married women a share in the matrimonial home — it is unlikely that it will be in the near future. The court concluded that 41.2 did not confer jurisdiction on the courts to transfer any particular property right within a family.

44. Report of the Constitution Review Group above n 9, p 337. Concern at the continued existence of art 41.2 has been expressed also by the UN Committee on the Elimination of All Forms of Discrimination against Women in its examination of Ireland's Combined Second and Third Reports submitted in accordance with art 18 of the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women (Dublin: Government Stationery Office, 1997). Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Ireland. 01/07/99. CEDAW/C/I999/L.2/Add.4.

45. The State (Nicolau) v An Bord Uchtála (1966) IR 567. Support for this view is derived from art 41.3.1 which provides: ‘The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.’

46. See L Flynn ‘To be an Irish Man – Constructions of Masculinity within the Constitution’ in P Twomey and T Murphy, above n 5, pp 135–145. See also K Lynch ‘Defining the family and protecting the caring functions of both traditional and non-traditional families’ in Report of the Constitution Review Group, above n 9, pp 627–629.

47. Report of the Constitution Review Group, above n 9, p 332. The Group also recommends that the a commitment to protect the institution of marriage and the family based on marriage should be retained.

48. Ibid pp 322–323. See Keegan v Ireland (1994) 18 EHRR 342.

49. This term is borrowed from Young, I M Justice and the Politics of Difference (Princeton: Princeton UP, 1990)Google Scholar.

50. Report of the Constitution Review Group. above n 9, pp 234–236.

51. See generally Murphy, T ‘Economic Inequality and the Constitution’ in Murphy, T and Twomey, P (eds), above n 5, pp 163–181 Google Scholar.

52. K Lynch and A Connolly ‘Equality before the law’ in Report of the Constitution Review Group, above n 9, pp 586–591.

53. See generally Hogan, G and Whyte, G Kelly: The Irish Constitution (Dublin: Butterworths, 4th edn, 1994) pp 722–723 Google Scholar.

54. Quinn's Supermarket v Attorney General (1972) IR 1 at 14.

55. G Hogan and G Whyte, above n 53, p 722.

56. See Glover v BLN Ltd (1973) IR 388; Conway v Irish National Teachers' Organisation and others (1991) ILRM 497; Meskell v ClE (1973) IR 121. In Hanrahan v Merck, Sharpe and Dome the Supreme Court (per Henchy J) agreed that the tort of nuisance relied on by the plaintiffs was an implementation of the state's duties under art 40.3 to defend and vindicate their personal and property rights. See also Murphy v Ireland (1996) 2 ILRM 461.

57. The Irish judiciary, to date, has displayed a marked reluctance to apply art 40.1, preferring to rely on other fundamental rights provisions where possible. As a result, many questions as to the precise scope of the equality guarantee remain unanswered.

58. Report of the Constitution Review Group, above n 9, pp 224–227.

59. Above n 9, p 227.

60. See S Mullally ‘Equality Guarantees in the Irish Constitution: The Myth of Constitutionalism and the Neutral State’ in T Murphy and P Twomey (eds), above n 5, pp 147–162.

61. See McCrudden, C Benchmarks for Change Mainstreaming Fairness in the Governance of Northern Ireland (Belfast: Committee on the Administration of Justice, 1998)Google Scholar.

62. See Beveridge, F and Nott, S ‘Gender-Auditing: Making the Community work for Women’ in Hervey, T and O'Keeffe, D (eds) Sex Equality Law in the European Union (Chichester; New York: Wiley, 1996) pp 383–398 Google Scholar. See also Barnard, C ‘Gender Equality in the EU: A Balance Sheet’ in Alston, P (ed) The EU and Human Rights (Oxford: Oxford University Press, 1999) p 215 Google Scholar.

63. Women, for example, have remained seriously underrepresented within both houses of the Oireachtas (Parliament) — the Dáil and the Seanad. They have never comprised more than 12% of Dáil membership or 10% of Seanad membership. See generally Report of the Constitution Review Group, above n 9, pp 55–64.

64. The National Economic and Social Forum was established by the government in 1993. It was charged with contributing to the formation of a wider national consensus on social and economic matters. The Forum comprises three distinct strands drawn from the Oireachtas, the traditional social partners — Employers, Trade Unions and Farming Associations - and the community and voluntary sector.

65. McCrudden, C Mainstreaming Fairness? A Discussion Paper on Policy Appraisal and Fair Treatment (Belfast: Committee for the Administration of Justice, 1996) p 4 Google Scholar.

66. Second Commission on the Status of Women Report to Government (Dublin: Government Stationery Office, 1993) p 508.

67. Department of the Taoiseach Cabinet Handbook (Dublin: Government Stationery Office, 1998).

68. Department of Equality and Law Reform UN Fourth World Conference on Women: First Report on Implementation of the Platform for Action (Dublin: Government Stationery Office, 1996) p 67.

69. Department of Equality and Law Reform Ireland's Combined Second and Third Report under the UN Convention on the Elimination of All Forms of Discrimination Against Women (Dublin: Government Stationery Office, 1997) p 34.

70. See generally: Donnelly, M, Mullally, S and Smith, O Predicting the Impact of policy: Gender — Auditing as a Means of Assessing the Probable Impact of Policy Initiatives on Women. Country Report: Ireland (Liverpool: FLRU, 1999)Google Scholar Report commissioned under the European Commission Targeted Socio-Economic Research Fund pp 88–94.

71. See generally, McDonagh, M Freedom of Information Law in Ireland (Dublin: Round Hall Sweet and Maxwell, 1998)Google Scholar.

72. See Concluding Observations of the UN Committee on the Elimination of All Forms of Discrimination Against Women: Ireland 01/07/99. UN Doc CEDAW/C/1999/L/2/Add.4.

73. Mullally, S Gender Proofing within the Context of the European Structural Funds (Dublin: Government Stationery Office, 1999)Google Scholar Report commissioned by the Department of Justice, Equality and Law Reform.

74. See generally Beveridge, F and Nott, S ‘A Hard Look at Soft Law’ in Craig, P and Harlow, C (eds) Lawmaking in the European Union (The Hague: Kluwer Law International, 1998) pp 283–307 Google Scholar.

75. See C McCrudden, above n 65 and N Hutson PAFT in Northern Ireland — A Contribution to the Debate on Mainstreaming Equality (Belfast: SACHR, 1996).

76. See Department of the Taoiseach Cabinet Handbook above n 67.

77. Mullally, S, Donnelly, M and Smith, O ‘Making Women Count in Ireland’ in Beveridge, F, Non, S and Stephens, K (eds) Making Women Count: Integrating gender into law and policy-making (London: Ashgate, 2000) pp 23–46 Google Scholar.

78. Above n 7.

79. See S Mullally and O Smith, above n 7.

80. Ibid.

81. The PAFT Guidelines were issued in December 1993 and came into force in 1994. Policy Appraisal and Fair Treatment, Central Secretariat, circular 5/93, 22 December 1993. See Central Community Relations Unit Policy Appraisal and Fair Treatment: Annual Reports, 1994, 1995, 1996, 1997.

82. See: C McCrudden, above n 65; N Hutson, above n 75.

83. Ibid.

84. Section 75(2). It seems from the drafting process that the duty to have ‘due regard’ to equality of opportunity is weightier than the requirement to have ‘regard’ to the promotion of good community relations. See C McCrudden ‘Mainstreaming Equality in the Governance of Northern Ireland’ in (1999) 22 Fordham J Int Law 1696.

85. See House of Lords, Official Report, 11 November 1998, col 814 (per Lord Dubs).

86. Schedule 9, para 4(2)(d).

87. House of Lords, Official Report, 11 November 1998, col 810 (per Lord Dubs).

88. See: Equal Opportunities Review, No 69, September/October 1996, p 22.

89. See F Beveridge and S Nott, above n 62, p 390.

90. Rhode, D L ‘Feminist Critical Theories’ in Bartlett, K and Kennedy, R(eds) Feminist Legal Theory: Readings in Law and Gender (Boulder, Colo: Westview Press, 1991) p 343.Google Scholar