Outline of the argument & paper content The characteristics of the 1998 Good Friday Agreement

1. Building Equality & Social Justice through Constitutional Provisions: equality mainstreaming & the Bill of Rights in NI Anne Smith & Eithne McLaughlin • Outline of the argument & paper content • The characteristics of the 1998 Good Friday Agreement • Why a social justice component? • Why positive equality duties & mainstreaming – UK ethnic policy • Why a BOR? ? Linkage/interdependency? • Positive models of equality • infrastructure & technologies • The limitations of equality mainstreaming • what does it mean to include social and economic rights in a BoR? • International experience • Northern Ireland Bill of Rights experience • Is it possible to achieve social justice in Northern Ireland? If no shared past can there be a shared future? What are the best means for the ends?

2. The 1998 good Friday agreement A Negotiated transition from civil conflict, negotiated by the British & Irish governments with local political parties 3 components: Security policy Political institutions Social justice

3. The 1998 Good Friday Agreement • 5 principles • Non-majoritarian democracy consociationalism • subsidiarity • basic moral equality of all individuals parity of esteem of ethno-national ‘groups’& aspirations

4. Democracy, Peace & socialjustice • only a political order which places the transformation of inequalities at its centre [will] enjoy legitimacy in the long run’ (Held (1987) Models of Democracy pp.298-299 • ‘We all have an interest in a stable, secure society. To be that, it has also to be a fair society,Dr Mo Mowlam The Partnership for Equality White Paper (1998) • ‘Good relations cannot be based on inequality between different social groups.’ (Hansard, 1998).

5. The social justice component of the Agreement: • Incorporation of the ECHR into UK and NI law • establishment of a Human Rights Commission, replacing the former advisory committee (SACHR) tasking of the new commission with drafting a Bill of Rights including socio-economic rights; • extension of the reach of equality law beyond the labour market into public policy via statutory positive equality duties • establishment of The Equality Commission for Northern Ireland and its tasking with implementation of the statutory duty • 2 & 3 ? Interdependent? Freestanding?

6. The positive equality duty (S 75) • An Early positive equality duty • The Race Relations Act (GB 2000) & Disability Act (2005 GB) • Outcomes of positive equality duties contingent ie context dependent • Designated public bodies must give due regard to equality of opportunity in policy-making & service delivery along nine dimensions of (in) equality • Give regard to good community relations (s76) • a positive equality duty ‘plays out’ differently in different social infrastructures eg residual Ireland & UK welfare regimes vs northern European social minimum states

7. Social Justice & UK Ethnic Policy • Ethnic policy = the actions and inactions; political institutions and other apparatus of governance which shape relations between majority and minority groups differentiated by ethnicity within the general population of a territory. Merger et al (2004) • inequalitarian; equalitarian; assimilationist or multicultural • UK ethnic policy pre 1972 indirectly inequalitarian • 1972 – 1994 equalitarian & assimilationist • Post 1998 multicultural? • UK ethnic policy based on two misunderstandings • The social justice – democracy relationship in the past • ‘two traditions/ religion/ irrational causes of conflict • The social justice – democracy relationship in the present & future • Social justice is neither charity nor concession • dangerous to treat it as a prize to be given out & taken back in negotiations

8. Statutory components of the positive equality model • social rights to threshold base levels of equality of condition in all five dimensions Baker et al (2004) • And/ or general provision of a social minimum Millar, 2004) equally available to all • The link between negative and positive models of equality justice & liberty • between procedural vs substantive concepts of equality • Equality of opportunity equality of outcome freedom to as well as freedom from • meaningful or fair equality of opportunity; • fairness in opportunities for the development of the capabilities needed for participation in the competition for advantage • Positive Equality duty = limited duty to take equality into account in all policy decision-making (equality mainstreaming)

9. Socio-legal character of a positive equality model • To characterise the positive equality model as ‘legal’ in nature is misleading; • A country’s equality regime is composed of both statutory & non-statutory measures (McLaughlin, 2004), both equality specific statute & general social provision • the welfare regime of a country = the main non-statutory (?) positive equality infrastructure measures • three characteristics of welfare regimes of note • quantity of social provision relative to need; • quality of it relative to need and dignity; • the responsiveness and accountability of providers to users and citizens • These three interact with a statutory positive equality duty to form the effect change capacity of a positive equality model.

10. Problems with the NI statutory equality duty • Standard or benchmark for decision-making too low ‘due regard’ only; no requirement to act • Concept of equality too narrow - equality of opportunity rather than equity • Same treatment practice rather than affirmative/remedial action in favour of minorities • Compliance difficult to assess both too easy & too hard to comply • 3 components of practice • screening + consultation + impact assessment • Non- resourcing of the participatory method • Pseudo- democratisation? • Lack of enforcement mechanisms & powers • Political & civil service resistance to equality proofing ‘high level’ policies & policies originating outside the jurisdiction • Its context the absence of a good enough social infrastructure the duty carries too heavy a burden

11. Remedies for Poor social infrastructure • higher public expenditure ie improved social services/ a collective social minimum • Judiciable individual social rights • The BOR road • But post 1997 UK Exchequer policy of levelling down public expenditure across the countries of the UK + New Labour’s social investment approach not implemented in NI: inconsistent with Unionist family policy?

12. What is a BOR approach? • 3 types of BORs: • Legislative/unentrenched: • Weak form of JR • Judicial penultimacy- ‘Half-way Bill of Rights’ • Entrenched/constitutional: • Supreme law • Constitutional amendment • Strong form of JR • Judicial ultimacy- ‘full Bill of Rights’ • Hybrid/’new commonwealth model of constitutionalism’: • Constitutional protection • Court has power to set aside conflicting legislation • Legislative override

13. What is a BOR approach? • Minimal entitlements for “everyone” • Better protection for politically marginalised and disadvantaged groups • Constitutional politics • Transformative effect on exercise of public policy

14. Assessing the BOR option • International Experiences & Provisions South Africa; India; Canada • Understand the NI specificities: • Why strong political resistance to socioeconomic rights? Why along ethno-national lines? • Implications for the statutory equality duties of failure to introduce a BOR?

15. BOR international experiences • South Africa: • Explicit recognition • Adequate housing, the right to have access to health services, food, water and social security, and guaranteeing the right to education. • NOT ABSOULETE RIGHTS • “the state must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right similar formulation to that in the UN CRC • Jurisprudence

16. BOR international experiences • India: • Bifurcated Approach • Civil and Political Rights: Fundamental Rights • Social Rights: Directive Principles • Expansive interpretation, right to life

17. BOR international experiences • Canada: • No explicit recognition • Equality provision, section 15 • Substantive and positive approach • Jurisprudence

18. The NI BOR experience • 3 options: • Minimum rights in general terms to be enforced by courts • Progressive realisation of larger rights • Combination of options 1 & 2 • why Unionist resistance to both ie to inclusion of socioeconomic rights? • UK government’s unwillingness to commit to resourcing the expansion in social infrastructure required for either option

19. Conclusion • Achieving social justice not ‘either-or’ ie not positive equality duties vs BOR • Both required • Harmonisation with Southern Ireland required by the Agreement • Rise the level of social debate • The price of social injustice: • Instability; the costs of inequalities defensive & compensatory instead of preventative expenditures • Equality a hypersensitive discourse • The price of social justice: • loss of relative superiority & dominance for unionist populations & group identity • + higher taxation & public expenditure