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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
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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

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References

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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.

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

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

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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).

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35. Ibid.

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

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40. Ibid p 122.

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

42. Article 41.1.2.

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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.

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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.

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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.

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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.

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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.

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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.

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