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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?

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Outline of the argument paper content the characteristics of the 1998 good friday agreement

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?

The 1998 good friday agreement

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

The 1998 good friday agreement1

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

Democracy peace social justice

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).

The social justice component of the agreement

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?

The positive equality duty s 75

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

Social justice uk ethnic policy

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

Statutory components of the positive equality model

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)

Socio legal character of a positive equality model

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.

Problems with the ni statutory equality duty

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

Remedies for poor social infrastructure

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?

What is a bor approach

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

  • What is a bor approach1

    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

    Assessing the bor option

    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?

    Bor international experiences

    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.


      • “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

    Bor international experiences1

    BOR international experiences

    • India:

      • Bifurcated Approach

      • Civil and Political Rights: Fundamental Rights

      • Social Rights: Directive Principles

      • Expansive interpretation, right to life

    Bor international experiences2

    BOR international experiences

    • Canada:

      • No explicit recognition

      • Equality provision, section 15

      • Substantive and positive approach

      • Jurisprudence

    The ni bor experience

    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



    • 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

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