Building Equality

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 social justice

• 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 countrys 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 Labours 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 governments unwillingness to commit to
  resourcing the expansion in social infrastructure
  required for either option

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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