Mainstreaming Equality in the Governance of Northern Ireland

Fordham International Law Journal, Dec 1998

The purpose of this Article is to discuss this change, concentrating on the development of the approach to equality in the Agreement, and its subsequent incorporation into the Northern Ireland Act of 1998 ("Act"), which now forms the legal basis for the new constitutional settlement in Northern Ireland. The Agreement's approach is that equality should be "mainstreamed" in the future governance of Northern Ireland. But, following the Agreement, there was a real danger that equality would be pushed back to the margins. Fortunately, a coalition of the disadvantaged and politicians ensured that this did not happen. The Act, taken together with the Human Rights Act 1998, which incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") into United Kingdom law, now accurately reflects the Agreement's human rights and equality requirements.

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Mainstreaming Equality in the Governance of Northern Ireland

Journal Northern Ireland - 1998 Article 25 Mainstreaming Equality in the Governance of Northern Ireland Copyright c 1998 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Mainstreaming Equality in the Governance of Northern Ireland Christopher McCrudden The purpose of this Article is to discuss this change, concentrating on the development of the approach to equality in the Agreement, and its subsequent incorporation into the Northern Ireland Act of 1998 (”Act”), which now forms the legal basis for the new constitutional settlement in Northern Ireland. The Agreement’s approach is that equality should be “mainstreamed” in the future governance of Northern Ireland. But, following the Agreement, there was a real danger that equality would be pushed back to the margins. Fortunately, a coalition of the disadvantaged and politicians ensured that this did not happen. The Act, taken together with the Human Rights Act 1998, which incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms (”ECHR”) into United Kingdom law, now accurately reflects the Agreement’s human rights and equality requirements. ChristopherMcCrudden* TABLE OF CONTENTS * Reader in Law, Oxford University; Fellow, Lincoln College, Oxford; Visiting Professor, University of Michigan Law School. INTRODUCTION In Northern' Ireland, talk of equality and human rights has often, in the past, been ignored or marginalized. It has been perceived by too many in positions of power as divisive, ignoring "the real problems," even sometimes as subversive. During 1998, something remarkable happened. Discussions about equality and human rights moved from the margins into the mainstream. The Agreement Reached in the Multi-Party Negotiations1 1. Agreement Reached in Multi-Party Negotiations, Apr. 10, 1998 [hereinafter Good Friday Agreement]. 1698 FORDHAMINTERNATIONALLAWJOURNAL ("Good Friday Agreement" or "Agreement"), drawing on the best international and European practice, identified equality and human rights as a central element in the dispute settlement process and in the search for peace in Northern Ireland. Equality and human rights are now neither marginal, nor peripheral, but rather a central element in the structure underpinning the new constitutional settlement. The purpose of this Article is to discuss this change, concentrating on the development of the approach to equality in the Agreement, and its subsequent incorporation into the Northern Ireland Act of 19982 ("Act"), which now forms the legal basis for the new constitutional settlement in Northern Ireland.3 The Agreement's approach is that equality should be "mainstreamed" in the future governance of Northern Ireland. But, following the Agreement, there was a real danger that equality would be pushed back to the margins. Fortunately, a coalition of the disadvantaged and politicians ensured that this did not happen. The Act, taken together with the Human Rights Act 1998, which incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") into United Kingdom law,4 now accurately reflects the Agreement's human rights and equality requirements. That the Act does now implement the Agreement is a testimony both to those who worked to convince the British Government that it must, and to the Government's ability to listen to and act on the basis of advice. The issues considered subsequently are: How the implementation happened; What it means; What the prospects are of it being done successfully; and what others might take from the Northern Ireland experience so far. But first this Article turns to what does mainstreaming equality mean? "Mainstreaming" is an idea whose time has come, but whose 2. Northern Ireland Act, 1998, ch. 47 (Eng.). 3. See Christopher McCrudden, NorthernIrelandand the British Constitution, in THE CHANGING CONSTITUTION 323 (JefferyJowell & Dawn Oliver eds., 3d ed. 1994) (discussing previous failed attempts). 4. Human Rights Act, 1998, ch. 42 (Eng.). meaning is uncertain and subject to varying interpretations. As a recent major report on mainstreaming put it: "it is striking that ...mainstreaming is very often not defined at all."5 This Article will try to explain the concept in more detail subsequently, but in essence mainstreaming requires that equality be seen as an integral part of all public policy, making and implementation, not something that is separated off in a policy or institutional ghetto. 6 A. Internationaland Regional Developments on Mainstreaming There are several sources from which the idea of mainstreaming has emerged. One early 1980s source was the attempt to integrate gender issues into policy making in the area of development assistance, such as lending by the World Bank,7 decision-making in the United Nations Development Program,' and decision-making processes in developing states themselves. 9 Mainstreaming was seen as "a means of promoting the role of women in the field of development and of integrating women's values into development work."' ° The European Community was instrumental in having the concept adopted more Widely with other governments." The idea of mainstreaming was adopted as a major policy for future action at the Fourth United Nations World Conference on Women, which took place in Beijing in September 1995. Strategic Objective H.2 calls for the integration of gender perspectives in legislation, public policies, programs, and projects. 12 The Strategic Objective has been a major influence in stimulating governments, and the United Nations system itself, to address the issue systematically. The European Commission's Third Action Programme had stressed the importance of integrating equality issues into government decision-making. More recently, the Commission became involved in attempting to develop such approaches in Europe more systematically.1 3 Mainstreaming is a feature of the Community's development co-operation policy.14 Mainstreaming is central to the Fourth Action Program on Equal Opportunities for Men and Women ( 1996-2000 )." 5 The Council Decision establishing this action program reinforced this idea further. 6 The Commission should integrate equality issues into its decision making as should the Member State governments.1 7 A group of Commissioners, chaired by President Santer, i s produced a communication on mainstreaming of equality in all appropriate Community policies.' 9 In 1996, the Commission urged the mainstreaming of equality for people with disabilities 1999] in policy formulation.2 ° The Amsterdam Treaty2 1 amended the Treaty on European Union 22 ("EC Treaty") to incorporate gender equality as a principle of Community law. 2 ' The regulations governing the Structural Funds will be revamped to include greater recognition of the importance of women's equality issues. 24 The report of the Secretary-General to the U.N. General Assembly at its fifty-first session provided a first assessment of the practical implications of gender mainstreaming for the United Nations. 25 In June 1997, the report of the Secretary-General to the Economic and Social Committee addressed the issue of gender mainstreaming by intergovernmental bodies and the U.N. system more fully. 26 On the basis of this report, the-Economic and Social Committee reached agreed conclusions on the issue in July 1997.27 During the next year, the Secretary-General reported on the status of the follow-up activities requested by the Council in their conclusions. 2' The Council followed this report COM (96) 67 Final ( 1996 ). A report critical of the lack of impact of this initiative was completed in 1998. See 18 CREW REPORTS No. 2/3, at 3. 20. European Commission, Communication of the Commission on Equality of Opportunity for People. with Disabilities, COM. (96) 406 Final, at 12 ( 1996 ). 21. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, Oct. 2, 1997, OJ. C 340/1 (1997) (not yet ratified) [hereinafter Treaty of Amsterdam]. 22. Treaty establishing the European Community, Feb. 7, 1992, O.J. C 224/1 ( 1992 ), [1992] 1 C.M.L.R. 573 [hereinafter EC Treaty], incorporatingchanges made by Treaty on European Union, Feb. 7, 1992, O.J. C 224/1 ( 1992 ), [1992] 1 C.M.L.R. 719 [hereinafter TEU]. The Treaty on European Union ("TEU") amended the Treaty establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11 [hereinafter EEC Treaty], as amended by Single European Act, O.J. L 169/1 (1987), [1987] 2 C.M.L.R. 741 [hereinafter SEA]. The Treaty establishing the European Community ("EC Treaty") will be amended by the Treaty of Amsterdam, supranote 21, OJ. C 340/1 (1997). These amendments will be incorporated into the EC Treaty, and the articles of the EC Treaty will be renumered in the Consolidated version of the Treaty establishing the European Community, O.J. C 340/3 (1997), 37 I.L.M. 79 (not yet ratified) [hereinafter Consolidated EC Treaty], incorporatingchanges made by Treaty of Amsterdam, supra. 23. Consolidated EC Treaty, supra note 22, art. 3(2), Oj. C 340/3, at 182 (1997), 37 I.L.M. at 80 (ex Article 3(2)). 24. Proposal for a Council Regulation (EC) laying down general provisions on the Structural Funds (98/0090 (AVC)). 25. Report of the Economic and Social Councilfor 1997, U.N. GAOR, 52d Sess., U.N. Doc. No. A/51/322 (1997). with a further resolution in July 1998.29 B. NationalDevelopments on Mainstreaming There are several examples of "mainstreaming" policies at the national level, some in existence, some in early development. Without attempting to be comprehensive, such initiatives have been in place in the Netherlands for some years."0 The Nordic Council of Ministers developed a project to develop methods of mainstreaming gender into labor market and youth policy. 31 In Sweden, gender issues are considered in the formulation of government legislation and other policies prior to discussion by Cabinet. 12 Mainstreaming initiatives have been developed in Denmark, Flanders, Portugal, and Finland as well. 33 In Ireland, the National Economic and Social Forum produced a report on equality proofing issues in 1996."4 Local governments in several European countries also have experience in attempting to mainstream equality. 35 Outside the European Community, there are also significant developments. In Canada, mainstreaming has been adopted by at least one provincial government 36 and the federal nomic and Social Council on Mainstreaming the Gender Perspective into All Policies and Programmesof the United Nations System, U.N. Doc. No. E/1998/64 ( 1998 ). 29. U.N. Doc. No. E/1998/L.32 ( 1998 ); see Christine Ainette Brautigam, Mainstreaminga Gender Perspective in the Work of the United NationsHuman Rights Treaty Bodies, 91ST ANNUAL MEETING OF THE AMERICAN SOCIETY OF INTERNATIONAL LAw 389 (1997). 30. Emancipatieraad, Van Marge Naar Mainstream: Adviesgrief Onderzoek Over Het Mainstreamen Van Emancipatie, in ALGEMEEN BELEID (Adv. Nr. IV/51/96, 1997); see Mieke Verloo, Planning for Public Space: A Gender Impact Assessment Analysis, Paper for the International Conference on Women and Public Policy: The Shifting Boundary Between the Public and Private Domains (Dec. 8-10, 1994). The author is grateful to Elizabeth Meehan for supplying a copy of this paper. RAPPORTEUR GROUP, supra note 5, at 38-39; see TOM HADDEN ET AL., EQUAL BUT NOT SEPARATE: COMMUNAL POLICY APPRAISAL 25 (1997); EQUAL OPPORTUNITIES, supra note 13, at 17. 31. RAPPORTEUR GROUP, supra note 5, at 38-39. 32. Id. at 39; see HADDEN ET AL., supra note 30, at 25. 33. RAPPORTEUR GROUP, supra note 5, Part 111.2. 34. See NATIONAL ECONOMIC AND SOCIAL FORUM, EQUALITY PROOFING ISSUES NATIONAL ECONOMIC AND SOCIAL FORUM (Feb. 1996); see also EQUALITY STUDIES CENTRE, A FRAMEWORK FOR EQUALITY PROOFING: A PAPER PREPARED FOR THE NATIONAL ECONOMIC AND SOCIAL FORUM (Apr. 1995). 35. EQUAL OPPORTUNITIES COMMISSION, MAINSTREAMING GENDER IN LOCAL GOVERNMENT (1997). 36. MINISTRY OF WOMEN'S EQUALITY, THE GENDER LENS: POLICY ANALYST VERSION (Feb. 1994) (B.C.). government. 7 The latter has undertaken gender analyses of proposed measures 38 and produced a guide for gender-based analysis for policy-makers. 9 In Australia, a novel way of assessing the impact of government policies has been to produce a "women's budget statement" each year to accompany the budget proposals.4" In New Zealand, guidelines for gender impact analysis were published in 1996.41 The Council of Europe ("Council" or "COE") convened a group of specialists on mainstreaming in February 1996 in the context of the activities of the Steering Committee for Equality Between Women and Men. The resulting report, in March 1998, presented a conceptual framework, a methodology for conducting mainstreaming, and a discussion of "good practice" in the area.4 2 In a useful intervention into the debate, mainstreaming was defined as "the reorganization, improvement, development and evaluation of policy processes, so that a gender equality perspective is incorporated in all policies at all levels and at all stages, by the actors normally involved in policy-mak37. STATUS OF WOMEN CANADA, SETTING THE STAGE FOR THE NEXT CENTURY: THE FEDERAL PLAN FOR GENDER EQUALITY 16-17 (Aug. 1995). 38. See, e.g., HUMAN RESOURCES DEVELOPMENT CANADA, EMPLOYMENT INSURANCE: GENDER IMPACT ANALYSIS (Jan. 24, 1996) (submitted to House of Commons Standing Committee on Human Resources). 39. STATUS OF WOMEN CANADA, GENDER-BASED ANALYSIS: A GUIDE FOR POLICY-MAKING (Mar. 1996) (working document). 40. The first such statement was produced in 1984 and "provides a detailed report on the impact of all Federal Government programs and policies, including expenditure, on women." Committee for the Elimination of Discrimination Against Women, Considerationof Reports Submitted by States Parties UnderArticle 18 of the Convention, Third PeriodicResorts of States Parties,U.N. Doc. CEDAW/C/AUL/2, at 6 ( 1995 ) (submitted by Australia); see OFFICE OF THE STATUS OF WOMEN, DEPARTMENT OF THE PRIME MINISTER AND CABINET, AUSTRALIAN NATIONAL REPORT TO THE UNITED NATIONS FOURTH WORLD CONFERENCE ON WOMEN 61-62 (Sept. 4-15, 1995). In 1993, the Review of Government Policy Advice Mechanisms on the Status of Women concluded that "it is now of questionable value in making departments accountable for their performance on women." REVIEW OF GOVERNMENT POLICY ADVICE MECHANISMS ON THE STATUS OF WOMEN, REPORT TO THE PRIME MINISTER BY SENATOR ROSEMARY CROWLEY 18 (Oct. 1993). Since then the statement was re-designed as a "succinct statement of Government budget initiatives for women, and budget initiatives likely to affect women." Letter from Karen Barfoot, Assistant Secretary, Office of the Status of Women to the author, Mar. 20, 1996. The most recent statement is Honorable Judi Moylan, MP, Minister for the Status of Women, MaintainingOur Commitment to Women (May 12, 1998). 41. See MINISTRY OF WOMEN'S AFFAIRS, THE FULL PICTURE: GUIDELINES FOR GENDER ANALYSIS ( 1996 ); see also Robin McKinlay, Gender Analysis of Policy: Discussion Paper (Dec. 13, 1993). 42. Rapporteur Group, supra note 5,at 34, 38. ing."' The Committee of Ministers subsequently recommended that the governments of the member states of the Council "encourage decision-makers to take inspiration from the report in order to create an enabling environment and facilitate conditions for the implementation of gender mainstreaming in the public sector. 44 II. THE ORIGINS OF MAINSTREAMING IN NORTHERN IRELAND It is notable that none of the various studies, useful as they are, have identified developments in Northern Ireland as a suitable case study of the development of mainstreaming, of the problems that it encounters; or as providing a possible model of implementation. In particular, the Northern Ireland model is unusual, if not unique, in two respects. First, the mainstreaming undertaken goes beyond gender. Second, it is underpinned by a firm legal foundation. How did this come about? This Article now turns to this question. But to describe the development of mainstreaming in Northern Ireland fully, this Article begins the story much earlier, with the civil rights movement of the late 1960s. Drawing its inspiration from the U.S. civil rights movement, a Northern Ireland civil rights campaign, established during the 1960s, focused on the need to eradicate discrimination between Catholics and Protestants.45 This movement led to some action by the then Northern Ireland Government, but anti-discrimination legislation began its development only after the Northern Ireland Government was suspended in 1972 and "direct rule" was introduced. A. ConstitutionalAnti-discriminationProvisions As part of the arrangements for its first attempt to reform constitutional relationships in Northern Ireland, the Northern Ireland Constitution Act of 197346 ("1973 Act") introduced 43. Id. at 6. 44. COUNCIL.OF EUROPE, COMMITTEE OF MINISTERS, RECOMMENDATION No. R(98)14 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON GENDER MAINSTREAMING (Oct. 7, 1998). 45. DISTURBANCES IN NORTHERN IRELAND: REPORT OF THE CAMERON COMMISSION, Cmnd. 532 (1969). 46. Northern Ireland Constitution Act, 1973 (Eng.). clear, if limited, legislative anti-discrimination requirements for the first time, replacing the uncertain provisions of the Government of Ireland Act of 1920. 47 The 1973 Act made it unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate, or to aid or incite another person to discriminate, against a person or class of persons on the ground of religious belief or political opinion. An act that contravened this prohibition was actionable in Northern Ireland at the instance of any person adversely affected by it. The court could grant damages and an injunction restraining the defendant from committing, causing, or permitting further contravention of this prohibition in certain cases. The 1973 Act also established the Standing Advisory Commission on Human Rights as an advisory body for government on human rights policy. Two features of the 1973 Act's approach are important. First, although it was a constitutional anti-discrimination provision, its protection was confined to protection from discrimination only in the religio-political context. Second, the conception of discrimination that it incorporated was one that was largely confined to direct discrimination, that is discrimination that arises from an intentional act. There has, as a consequence, been little litigation under these provisions. The provisions of the 1973 Act have been reincorporated, substantially untouched, in the Northern Ireland Act of 1998.48 B. FairEmployment Legislation The second major anti-discrimination law development was in the area of employment discrimination. A government committee, the van Straubenzee committee, considered the question of discrimination in the private sector of employment in 1973 and produced a penetrating report.49 Following this consideration, the Fair Employment Act of 197650 ("FEA 1976") was passed. The FEA 1976 only partially implemented the report, but applied also to the public sector of employment. A Fair Employment Agency was established to enforce the legislation in 1977. 47. Government of Ireland Act, 1920 (Eng.). 48. Northern Ireland Act, 1998, ch. 47 (Eng.). 49. WORKING PARTY ON DISCRIMINATION IN THE PRIVATE SECTOR OF EMPLOYMENT, REPORT AND RECOMMENDATIONS (1973). 50. Fair Employment Act, 1976 (Eng.). This legislation, however, had little effect on employers' practices. Research carried out by the Policy Studies Institute in 1987 showed that the vast majority of employers believed that the FEA 1976 had made little, if any, impact on their behavior.51 Job discrimination was still thought to be justifiable in certain circumstances by a considerable number of employers. Informal recruitment and appointment procedures contributed to continuing levels of segregation. Too often, investigations by the Fair Employment Agency had little impact beyond the individual organization investigated. Very few establishments were formally monitoring the religious composition of the workforce. Indeed, very few establishments were carrying out any type of equal opportunity measure. Voluntary compliance remained the dominant approach. The research by the Policy Studies Institute ("PSI") also confirmed the startling dimensions of the economic inequality between the two communities in Northern Ireland. According to the PSI study, for example, Catholic male unemployment, then at thirty-five percent, was two and a half times that of Protestant male unemployment. Catholic male unemployment continued at this level despite there being over 100,000job changes a year. From the mid-1980s, inequality of opportunity between Catholics and Protestants became again a key political issue, but largely due to pressure from outside Northern Ireland. A campaign in the United States was begun to bring pressure to bear on U.S. corporations, state legislatures, and municipal governments with investments in Northern Ireland to adopt a set of anti-discrimination principles called the "MacBride Principles. '5 2 These principles sought to encourage employers to adopt affirmative action. 53 The MacBride campaign, despite opposition from the British Government, proved popular with U.S. state and city legislators. A number of states enacted legislation requiring U.S. companies in which they invested to ensure fair employment practices in- their Northern Ireland subsidiaries. Though regarded by some as unlawful under Northern Ireland 51. DAVID SMITH & GERALD CHAMBERS, INEQUALITY IN NORTHERN IRELAND (1991). 52. For an extensive discussion, see Christopher McCrudden, Human Rights Codes for TransnationalCorporations: What Can the Sullivan and MacBridePrinciples Tell Us?, OxFORDJ. LEGAL STUD. (forthcoming). 53. In this context affirnative action means action designed to secure the increased representation of previously under represented groups. law, a U.S. federal district court found them to be lawful.54 This U.S. campaign began to fill, however partially and inadequately, the political vacuum caused by the failure of Northern Ireland's political institutions to address the issue adequately. In 1986, the local Department of Economic Development proposed new legislation, which, while offering some hope of a more robust approach, still fell short of what was likely to be effective.55 In particular, it emphasized voluntary compliance, and placed an ill-defined "merit principle" at the heart of its proposals for future legislation, shying away from effective affirmative action. It also suggested the possible amalgamation of the Fair Employment Agency and the Equal Opportunities Commission for Northern Ireland ("EOC-NI"), the principal bodies enforcing religious and gender discrimination legislation, respectively. The amalgamation of the agencies did not go ahead, due to a successful campaign by the EOC-NI, supported by local women's groups and trade unions. The Northern Ireland Government's proposals were thought to have provided a clear analysis of the problem but too weak a policy response. The report did, however, succeed in concentrating the minds of others. The Standing Advisory Commission on Human Rights published a major report in October 1987.56 This report provided the most comprehensive and authoritative analysis of the problem as well as a detailed set of proposals for legislation and other government initiatives. Most crucially, the report shifted the terms of the debate from concentrating on the eradication of prejudiced discrimination, to reducing unjustified structural inequality in the employment market, whether caused by discrimination or not. From its publication, the report has formed a benchmark against which the Government's responses to the problem are judged. In December 1988, the U.K. Government responded by publishing new legislation. After significant amendments this 54. See New York City Employees' Retirement Sys. v. American Brands Inc., 634 F. Supp. 1382 (S.D.N.Y. 1986). 55. DEPARTMENT OF ECON. DEV., EQUALITY OF OPPORTUNITY IN NORTHERN IRELAND: FUTURE STRATEGY OPTIONS (1986) 56. RELIGIOUS AND POLITICAL DISCRIMINATION AND EQUALITY OF OPPORTUNITY IN NORTHERN IRELAND: REPORT ON FAIR EMPLOYMENT, 1987, Cm. 237 [hereafter REPORT ON FAIR EMPLOYMENT]. legislation was passed in July 1989. 57 The Fair Employment Act of 1989 ("FEA 1989") came fully into effect on January 1, 1990. This new Fair Employment Act marked a departure from previous approaches, emphasizing compulsory rather than voluntary compliance. In particular, it gave broader powers to the enforcement agency, the Fair Employment Commission, and required limited affirmative action and compulsory monitoring, among other things. C. The Limits of Anti-discriminationLaw Although necessary, anti-discrimination law was gradually perceived as insufficient to achieve the substantial change that the Standing Advisory Committee on Human Rights ("SACHR") had defined as necessary. The 1987 SACHR Report was clear that anti-discrimination legislation could only be part, though a necessary part, of the process of government addressing the problem of employment inequality.5" During the passage of the Fair Employment Bill in 1989, the Opposition tabled amendments based on this analysis. These amendments aimed to impose on the Industrial Development Board and Government departments more generally a duty to "secure that their various functions are carried out with due regard to the need to promote equality of opportunity," and would have imposed a requirement for published annual reports. No other specific mechanism for enforcing the proposed duty was envisaged. In its Second Report in 1990, SACHR had returned to the issue, arguing that government should establish machinery that would monitor the impacts of legislation, policy, and administration on equality of opportunity'and on relations between the two sections of the community. 59 Another development involved the reform of "community relations" policy-making within the Northern Ireland Office. 6" 1999] In September 1987, Tom King, then Secretary of State for Northern Ireland, announced the establishment of a Central Community Relations Unit ("CCRU") within the Central Secretariat of the Northern Ireland Office. The purpose of this reorganization, according to his announcement, was to ensure "that at the very center of the decision-making process in Northern Ireland, the crucial community relations issues, in their very widest sense, are given the fullest possible consideration."6' 1 The new unit would co-ordinate all Northern Ireland policy-making. SACHR had several discussions with the Northern Ireland Office in 1987 before the new initiative was announced. It was informed that it was intended that a senior officer in each Department would be made responsible for examining policies and proposals in relation to their community impact. If, in the view of that officer, any such policy or proposal might have a disparate community impact, then the matter would be raised with the Permanent Secretary (the highest-ranking civil servant in each development). In turn, that Permanent Secretary might bring the matter to one of the regular meetings of Permanent Secretaries for consideration. If there remained any doubt about the matter, then a Minister would act as chair of a meeting of Permanent Secretaries to give final consideration to the matter for submission to, and determination by, the Secretary of State. More generally, indeed, British administrative policy was becoming more favorably disposed to attempts systematically to engage in "policy appraisal"62 and to "mainstream" other policies in government.6" Since the 1980s, in particular, regulatory impact assessments have often been required throughout British government, as have occasional attempts to require cost/benefit analysis to be conducted of proposed projects, or to require 61. NORTHERN IRELAND INFORMATION SERVICE, SECRETARY OF STATE TAKEs DIRECT RESPONSIBILITY FOR COMMUNITY RELATIONS MATTERS 1 (Sept. 8, 1987). 62. See HER MAJESTY'S TREASURY, ECONOMIC APPRAISAL IN CENTRAL GOVERNMENT (HMSO, 1991) (providing description). Some examples of attempts by administrative policy becoming more favorably disposed to attempts to engage in "policy appraisal" include DEPARTMENT OF HEALTH: POLICY APPRAISAL AND HEALTH: A GUIDE FROM THE DEPARTMENT OF HEALTH ( 1995 ) (health), and CABINET OFFICE DEREGULATION UNIT, REGULATION IN THE BALANCE: A GUIDE TO REGULATORY APPRAISAL INCORPORATING RISK ASSESSMENT ( 1996 ) (compliance cost assessment). 63. See RACHEL HODGKIN. & PETER NEWELL, EFFECTIVE GOVERNMENT STRUCTURES FOR CHILDREN 48-51 ( 1996 ) (discussing children); Exec. Order No. 12,606, 52 C.F.R. 34188 (1987) (discussing family). compliance cost assessments of regulatory proposals.64 In addition, "proofing" government policy proposals to ensure compliance with certain obligations was becoming more common.65 For example, in July 1987, the Cabinet Office issued two circulars to departments advising how to avoid legal challenges under administrative law and under the ECHR.6 6 In particular, it stated that "[a] 11 Cabinet Committee memoranda on policy proposals and memoranda for Legislation Committee should include an assessment of the effect, if any, of ECHR jurisprudence on what. is proposed. ' 67 In 1988, a Ministerial Group on Women's Issues drew up model guidelines to enable Departments to "equal opportunity proof" proposals to avoid sex discrimination. D. The Arrival of PAFT All these elements contributed to a government announcement that a non-statutory policy of "equality proofing" would be introduced in Northern Ireland. 61 In 1990, the Government issued a circular giving advice to all Northern Ireland departments about the need to consider discrimination in relation to religious affiliation, political opinion, and gender. 69 This was coordinated with an initiative launched in the United Kingdom by the ministerial group on women's issues that encouraged all government departments to develop basic guidance on equality proofing throughout the United Kingdom. Consultations took place with SACHR, the EOC-NI Disability Action, and the Northern Ireland Committee of the Irish Congress of Trade Unions 1999] MANSTREAMING EQUALITY ("ICTU"), among others. There were several years of continuing controversy over their content, according to an internal Northern Ireland Office ("NIO") briefing, "on the grounds that they did not match the expectation that they would unambiguously set out and establish a positive and pro-active approach to equality of opportunity. ' 70 More extensively, SACHR reported subsequently: [t]he NIO's guidelines were criticised for failing to cover areas such as race, disability and age, where both direct and indirect discrimination were possible. It was held also that the guidelines were 'inadequately positive', did not give sufficient emphasis to the potential for affirmative action and copiEendgwlainthd oannlyd mWianloers.c7h1anges rules which had been devised for In February 1991, Richard Needham, then Minister, gave a commitment that the British Government would reconsider the guidelines.72 In Britain, progress on using the "equal opportunity proofing" guidelines was reviewed in 1991. This review concluded that, although departments had issued internal guidance based on the model guidelines, their implementation had often not been a priority, and that there had been little training or other follow-up to ensure that staff were familiar with the process. Revised guidelines on "equal opportunity proofing" policy proposals for their gender effect were published internally in 1992. 71 In Northern Ireland, revised draft guidelines, renamed the Policy Appraisal and Fair Treatment guidelines ("PAFT"), were circulated in January 1993, taking into account the parallel developments in the United Kingdom, but seeking to reflect local circumstances. This draft was further amended mainly to provide that the guidelines should apply to most public bodies in Northern Ireland (with the major exception of local government), and to extend the guidelines to service delivery as well as policy-making. The guidelines were finally issued in December 1993, to come into effect in 1994."M "Equality and equity," it said, "are central issues which must condition and influence policy making in all spheres and at all levels of Government activity ",75 PAFT was an attempt to establish a procedure within government decision-making by which those principles could be made effective. According to an assessment by the Central Community Relations Unit ("CCRU"), [t]he aim of the PAFT initiative is to ensure that issues of equality and equity inform policy' making and action in all spheres and at all levels of Government activity, whether in regulatory and administrative functions or in the delivery of services to the public. The guidelines identify a number of areas where there is potential for discrimination or unequal treatment and outline steps which those responsible for the development of policy and the delivery of services should take to ensure that, in drawing up new policies or reviewing exicsrtiimnginpaotelicaigesa,intshteyspedcoifnieodt suencjtuiostnifsiaobflythoer cuonmnmecuenssitayr.il7y6 disThe groups coming within the scope of the guidelines went beyond the two religious communities, and included people of different gender, age, ethnic origin, marital and family status, and sexual orientation, as well as the disabled. We have seen, just as importantly, the final guidelines marked a substantial shift towards equality and away from a narrow pre-occupation solely with discrimination. Little detailed guidance, however, was given to departments or other public bodies as to how to accomplish this task. A commitment was subsequently given that the Annual Report on PAFT implementation by the CCRU would be 74. CENTRAL SECRETARIAT CIRCULAR 5/93 (Policy Appraisal and Fair Treatment, Dec. 22, 1993). 75. Id. 76. CENTRAL COMMUNITY RELATIONS UNIT, POLICY APPRAISAL AND FAIR TREATMENT, ANNUAL REPORT (1994), 1.2 ( 1995 ). 1999] published, providing a degree of transparency to the process,77 but no co-ordination. E. Enforcing PAFT There were several unresolved ambiguities at the heart of PAFT, which contributed to the difficulties the Northern Ireland Government encountered during the development phase of PAFT, and subsequently in their application. The first ambiguity was whether or not they were intended to be substantially antidiscrimination provisions, or whether their purpose was to go well beyond a limited anti-discrimination approach. As we have seen, the Guidelines originally started out as the former, and only after pressure became the latter in form. In the enforcement phase, however, it was never very clear that the importance of that change had been fully appreciated by government. A second unresolved ambiguity was whether the Guidelines were intended to be symbolic or instrumental. The Council of Europe report identified several difficulties that might accompany attempts at mainstreaming equality, one of which is "the danger of talking about ... gender mainstreaming without implementing it. Governments might take a decision saying that equality is to be integrated in all policies and then do nothing more about it or only superficially support gender mainstreaming initiatives. "78 PAFT is an excellent example of this in many respects. It was not accidental that the development of the Guidelines took place when there was substantial pressure on the U.K. Government to demonstrate in the United States in particular the government's commitment to equality. This emphasized the view that some had of the Guidelines as primarily window-dressing for the government, a necessary symbolic gesture, but not much more. On the other hand, there was some evidence that the Government was indeed bent on addressing the problem of Catholic disadvantage. Was PAFT, then symbolic reassurance, or meant to be a tool of radical change? A third ambiguity went ever further. On the assumption 77. CENTRAL COMMUNITY RELATIONS UNIT, POLICY APPRAISAL AND FAIR TREATMENT, ANNUAL REPORT (1994); CENTRAL COMMUNITY RELATIONS UNIT, POLICY APPRAISAL AND FAIR TREATMENT, ANNUAL REPORT ( 1995 ); CENTRAL COMMUNITY RELATIONS UNIT, POLICY APPRAISAL AND FAIR TREATMENT ANNUAL REPORT ( 1996 ); CENTRAL COMMUNITY RELATIONS UNIT, POLICY APPRAISAL AND FAIR TREATMENT, ANNUAL REPORT (1997). 78. Rapporteur Group, supra note 5, at 16. of the concept of discrimination on principle, but more on the ground that this Bill was not the appropriate occasion on which to embark on a general review of anti-discrimination law. The intention was simply to reproduce the anti-discrimination provisions of the earlier Northern Ireland Constitution Act of 1973,192 and not to go beyond it. The Agreement did not require that the legislation should do so. 193 Between the Committee stage and the Report stage in the House of Lords, there was considerable effort made by Government to come up with amendments or statements that met the concerns of those arguing for a more explicit approach to the equality duty on public authorities. This effort resulted in a significant number of new amendments being introduced by the Government. Where the Government felt an amendment was unnecessary, interpretative statements by Ministers often indicated why that was so. The Government introduced amendments that included United Kingdom departments within the scope of the equality duty, reversed the exclusion of new public authorities from the automatic duty to produce an equality scheme, and strengthened consultation with affected interests during the impact assessment process. Government amendments required public bodies to consider whether to produce a revised scheme each five years; required publication of any consideration given to measures that might mitigate any adverse impacts and alternative policies that might better achieve the promotion of equality of opportunity; required public authorities to take impact assessments and consultations into account in making decisions; required the Commission to report specifically on the operation of the equality duty; and required a copy of the Commission's annual report to be laid before both House of Parliament. The Government also made important interpretative statements at the Lords Report stage and in the Commons consideration of the Lords amendments on affirmative action,1 9 4 and on the circumstances under which it was envisaged that the Equality 192. Northern Ireland Constitution Act, 1976 (Eng.). 193. House of Lords, Official Report, vol. 593, Oct. 26, 1998, col. 1745 (Lord Williams of Mostyn). 194. House of Lords, Official Report, vol. 594, Nov. 10, 1998, col. 713 (Lord Dubs); House of Commons, Official Report, vol. 319, Nov. 18, 1998, cols. 1069-1070 (Mr. Murphy). 1999] Commission would exempt a public body from producing a scheme or limit the functions covered.195 The Government also made interpretive statements on its expectations that public authorities would provide the Equality Commission with the necessary information on their compliance with the statutory equality duty to enable the Commission to report on progress, 196 on those whom the Government expected to be consulted, 9 7 and on the range of policies to which impact assessment applied.1 98 VII. MAINSTREAMING EQUALITY: THE LEGISLATIVE PROVISIONS ANALYZED What, then, was the result of all these amendments and commitments? What does the Act, as finally passed, require? This Article now turns to a more systematic discussion of the equality provisions as they emerged from these debates into law. A. Equality Commissionfor Northern Ireland The Act establishes a new Equality Commission for Northern Ireland, to consist of not less than fourteen nor more than twenty Commissioners appointed by the Secretary of State.19 9 The Secretary of State is to appoint one Commissioner as Chief Commissioner, and at least one Commissioner as Deputy Chief Commissioner. In making appointments, the Secretary of State is required, as far as practicable, to ensure that the Commissioners, as a group, are representative of the community in Northern Ireland. The Commission takes over the functions of the Fair Employment Commission for Northern Ireland, the Equal Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland, and the Northern Ireland Disability Council, which are abolished. In exercising its functions the Equality Commission is required to aim to secure an appropriate division of resources between the functions previously exercisable by each of these bodies. It is also required to have regard to advice offered by a "consultative council," which is a group of persons selected by the Commission to advise in relation to the functions previously exercisable by one of these bodies. The Chief Commissioner may not be appointed for more than five years at a time. Other Commissioners may not be appointed for more than three years at a time. The salaries of the Commissioners come from Northern Ireland departmental funds. The Commission may employ such staff as the Commission considers necessary and employ the services of such other persons as the Commission considers expedient for any particular purpose, with the approval of its departmental pay masters. The costs of the Commission come from money appropriated by act of the Assembly. The Commission is required each year to make a report on the performance of its functions during the year. The report is required, in particular, to give details of how resources have been divided between the functions previously exercisable by each of the former separate equality bodies that it replaces. The Department to which it reports is required to lay a copy of the report before the Assembly and send a copy of the report to the Secretary of State. The Secretary of State is required to lay a copy of the report before each House of Parliament. B. Responsibilityfor Equality Issues The Murphy announcement made clear that the provisions of the Bill on equality, basically the Equality Commission and the equality duty, would be made reserved matters for which the Secretary of State would continue to have responsibility, although the Assembly would be able to legislate on these issues with the permission of the Secretary of State. The existing bodies of law on fair employment, gender equality, race relations and disability discrimination in Northern Ireland, however, would become transferred matters, on which the Assembly would have legislative responsibility. The Bill was subsequently amended to reflect this demarcation of responsibility. In addition, further amendments were introduced to ensure that the Assembly would be kept more closely informed on the enforcement of the new statutory equality duty. 1999] Lord Dubs, speaking for the Government, set out in greater detail the rationale for the Government's position as previously announced by Mr. Murphy. 200. House of Lords, Official Report, vol. 593, Oct. 26, 1998, cols. 1694-95 (Lord Dubs). Concern was expressed particularly by Lord Lester that the ability of the Assembly to legislate on the substance of anti-discrimination requirements, including by amending existing antidiscrimination law could lead to a situation where the protections against discrimination were different, and potentially weaker, in Northern Ireland than in the rest of the United Kingdom. "[We] want to be sure that there cannot be any weakening of the equality code dealing with any of those forbidden grounds of discrimination. '"201 He proposed, therefore, that the substance of the anti-discrimination requirements should be a reserved or excepted matter, rather than a transferred matter. This proposal was resisted by Lord Dubs, speaking for the government who attempted to reassure Lord Lester that the Bill included important safeguards.2 °2 There are, indeed, important safeguards included in the Act. Any legislation in the equality area may be made subject to cross-community support. Also, the Assembly cannot legislate in a way that is incompatible with rights under the European Convention on Human Rights or European Community law, which is particularly relevant to gender discrimination issues. Nor may the Assembly legislate in a way that discriminates directly on grounds of religious belief or political opinion. In addition, if the Assembly legislates in a way incompatible with the United Kingdom's international obligations, the Secretary of State may decide not to submit such a Bill for Royal Assent. C. Statutory Duty on Public Authorities 1. An Outline of the Statutory Duty Section 75 provides that each "public authority" is required, in carrying out its functions relating to Northern Ireland, to have due regard to the need to promote equality of opportunity between certain different individuals and groups. The relevant categories between which equality of opportunity is to be promoted are between persons of different religious belief, political opinion, racial group, age, marital status, or sexual orientation; between men and women generally; between persons with a disability and persons without; and between persons with dependants and persons without. Without prejudice to these ob201. Id. col. 1698 (Lord Lester). 202. Id. col. 1713 (Lord Dubs). 1999] MAINSTREAMJNG EQUALITY ligations, a public authority in Northern Ireland is also, in carrying out its functions, to have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group. Schedule 9 makes detailed provision for the enforcement of these duties. 2. Preparation of an Equality Scheme All public authorities included within the definition of public authority are required before the end of the period of six months beginning with the commencement of Schedule 9 or, if later, the establishment of the authority, to submit an equality scheme to the Equality Commission.203 Only where a public authority has been notified in writing by the Commission that it does not need to, is it exempted from producing such a scheme. 2 4 The Commission may subsequently request a public authority, which it had notified that it did not need to make a scheme, to make a scheme.2 °5 A public authority shall respond to this request by submitting a scheme to the Commission before the end of the period of six months beginning with the date of the request. 206 In Parliament, concern was expressed at the apparently open-ended power of exemption granted to the Equality Commission. In response, the Government made it clear the limited circumstances in which it envisaged such exemptions being granted by the Commission either to a body entirely, or with regard to particular functions of a body: We intend the exception to be used only in rare circum stances-for instance, when public authorities' activities in Northern Ireland are minimal, and the effort involved in preparing the scheme involved, and having it validated by the commission, wouuld be disproportionate. In other circumstances, it might make sense to exempt a public authority. For instance, all sub-committees of district councils are defined as public authorities. Provided that their activities were fully covered by district council's own equality schemes, an exemption could avoid each sub-committee having to draw 203. Northern Ireland Bill, Bill 229, July 15, 1998, sched. 9, § 2(1) (Eng.). 204. Id. § 2(1). 205. Id. § 3(1)(a). 206. Id. § 3(2). up its own scheme. 20 7 Where it thinks appropriate, the Commission may request any public authority to make a revised scheme. 2"8 A public authority shall respond to this request by submitting a scheme to the Commission before the end of the period of six months beginning with the date of the request.209 If a public authority itself independently wishes to revise a scheme, then it may submit a revised scheme to the Commission. 210 3. Content of Equality Schemes An equality scheme shall show how the public authority proposes to fulfil the duties imposed by Section 75 in relation to the relevant functions, 211 and to specify a timetable for measures proposed in the scheme. 2 As we have seen, the preferred approach adopted by the CCRU, and set out in the White Paper, was that the legislation should be restricted to setting out the bare bones of the enforcement procedure. Basically, the Equality Commission would have had to request a public authority to submit a scheme showing how the public authority proposed to fulfil those duties in some or all of its functions. 213 The scheme would have had to conform to Guidelines as to form or content issues by the Commission with the approval of the Secretary of State; 214 but few, if any, details were specified on the face of the original Bill. As introduced,, the Bill began to flesh out what, more precisely, the schemes should contain. As the Parliamentary consideration continued, the Schedule became more and more detailed. The Schedule now specifies particular elements that an equality scheme must contain in order to be in compliance, without being exhaustive. 5 207. House of Commons, Official Report, vol. 319, Nov. 18, 1998, col. 1069 (Mr. Murphy). 208. Northern Ireland Bill, Bill 229, July 15, 1998, sched. 9, § 3(1)(b) (Eng.). 209. Id. § 3(2). 210. Id. § 8(1). 211. Id. § 4(1). "The relevant functions" means the functions of the public authority or, in the case of a scheme submitted in response to a request that specifies particular functions of the public authority, those functions. Id. § 4(4). 212. Id. § 4(3)(b). 213. Id. § I(c). 214. Id. § 2(2)(a). 215. Id. § 4(2). 1999] * A scheme shall state the authority's arrangements for assessing its compliance with the duties under Section 75.16 " A scheme shall state the authority's arrangements for consulting on matters to which a duty under that section is likely to be relevant, including details of the persons to be consulted.2 17 " A scheme shall state the authority's arrangements for assessing and consulting on the likely impact of policies adopted or proposed to be adopted by the authority on the promotion of equality of opportunity.218 This Article will return to this issue subsequently in more detail. * A scheme shall state the authority's arrangements for monitoring any adverse impact of policies adopted by the authority on the promotion of equality of opportunity.219 Again, this Article will return to this issue in more detail in a moment. " A scheme shall state the authority's arrangements for publishing the results of such assessments and such monitoring.22 ° " A scheme shall state the authority's arrangements for training staff.2 2 1 * A scheme shall state the authority's arrangements for ensuring, and assessing, public access to information and to services provided by the authority.222 In addition, an equality scheme shall conform to any Guidelines as to form or content that are issued by the Equality Commission. These Guidelines are subject to the approval of the Secretary of State. 22' The scheme must also include details of how the equality scheme will be published. 24 4. Consultation on Draft Equality Schemes Before submitting a scheme to the Equality Commission, a public authority shall consult, in accordance with any directions given by the Commission, with representatives of persons likely to be affected by the scheme, 2 25 and with such other persons as may be specified in the directions. 226 5. Consideration by the Equality Commission What happens after a scheme is submitted for approval to the Equality Commission depends on what type of public body is involved. A distinction is made between Northern Ireland departments and public bodies, and United Kingdom-wide public bodies. A "public authority" is defined to include any department, corporation, or body listed in Schedule 2 to the Parliamentary Commissioner Act of 1967227 and designated for the purposes of this section by order made by the Secretary of State. The inclusion of these latter bodies, being mainly United Kingdom-wide government departments, has resulted in special arrangements being devised relating to the procedures regarding equality schemes with which they must comply. This Article first describes what happens in the former case. On receipt of a scheme, the Commission shall either approve it 2 2 8 or refer it to the Secretary of State. 2 29 Where the Commission refers a scheme to the Secretary of State, the Commission is required to notify the Northern Ireland Assembly in writing that it has done so and send the Assembly a copy of the scheme.23 ° When a scheme is referred to the Secretary of State, he or she has three options:, to approve the scheme, to request the public authority to make a revised scheme, or to make a scheme for the public authority.21 A public authority shall respond to a request to make a revised scheme by submitting a scheme to the Commission before the end of the period of six months beginning with the date of the request. 232 Where the Secretary of 225. Id. § 5(a). 226. Id. § 5(b). 227. Parliamentary Commissioner Act, 1967, sched. 9 (Eng.). 228. Id. sched. 9, 6(1)(a). 229. Id. 6(1)(b). 230. Id. 1 6(2). 231. Id. 7(1). 232. Id. 7(2). 1999] State requests a revised scheme, or makes a scheme himself or herself, he or she shall notify the Assembly in writing. Where the Secretary of State has made a scheme for the public authority, he or she is required also to send the Assembly a copy of the scheme. 233 Certain of these provisions do not apply in the case of United Kingdom-wide departments. On receipt of a scheme submitted by a United Kingdom government department the Commission shall approve it or itself request the department to make a revised scheme. 2 4 A public authority shall respond to this request by submitting a scheme to the Commission before the end of the period of six months beginning with the date of the request.235 Where such a request is made, the government department shall, if it does not submit a revised scheme to the Commission before the end of the period of six months beginning with the date of the request, send to the Commission a written statement of the reasons for not doing SO. 2 3 6 The provisions relating to notification of the Assembly do not apply. 23 7 Nor do the provisions empowering the Secretary of State to make schemes for the public body directly. 2 8 The latter is intended to "avoid a situation where the Secretary of State must reach a decision or issue a direction in a case involving her Department or that of a Cabinet colleague. 23 9 6. Impact Assessment and Participation An equality scheme is required to state the authority's arrangements for assessing and consulting on the likely impact of policies adopted or proposed to be adopted by the authority on the promotion of equality of opportunity. 240 Does this 'require a scheme to state the arrangements for assessing the likely impact of policies that relate to the promotion of equality or for assessing the likely impact on the promotion of equality of all policies? If the former, then only policies designed to promote equality 233. Id. 7(3). 234. Id. 12(2). 235. Id. 3(2). 236. Id. 12(4). 237. Id. 1 6(2). 238. Id. 7(1). 239. House of Commons, Official Report, vol. 319, Nov. 18, 1998, col. 1068 (Mr. Murphy). 240. Parliamentary Commissioner Act, 1967, sched. 9, 4(2) (b) (Eng.). need to be assessed; if the latter, then all of an authority's policies will need to be assessed. In the Parliamentary debates, the Government made clear that the latter was what was intended. Paragraph 4(2) (b) refers to the inclusion in an equality scheme of arrangements for assessing the likely impact of policies adopted or proposed to be adopted by the authority on the promotion of the equality of opportunity mentioned -in [section 75]. There has been some comment that the subparagraph is ambiguous.... To clarify the position, I should state that it is the Government's intention that impact assessments should relate to the general run of a public authority's policies. It is not intended that the assessments should be restricted on2l4y1 to policies aimed at promoting equality of opportunity. In addition, an equality scheme shall state the authority's arrangements for publishing the results of such assessments.24 2 The legislation details with some specificity what is required. In publishing the results of such an assessment, a public authority is required to state the aims of the policy to which the assessment relates. 243 A public authority is also required to publish details of any consideration given by the authority to measures that might mitigate any adverse impact of that policy on the promotion of equality of opportunity, 24 4 and alternative policies that might better achieve the promotion of equality of opportunity.245 In making any decision with respect to a policy adopted or proposed to be adopted by it, a public authority is required to take into account any such assessment and consultation carried out in relation to the policy. 24 6 The Government made clear that it expected consultation "to embrace those directly affected by a policy as well as non-governmental organizations and relevant statutory bodies." 247 This requirement does not lay down a duty to mitigate and to consider alternative policies, but an authority that did not do 241. House of Lords, Official Report, vol. 594, Nov. 11, 1998, col. 814 (Lord Dubs). 242. Northern Ireland Bill, Bill 229, July 15, 1998, sched. 9, § 4(2)(d). 243. Id. § 9(1). 244. Id. § 9(1)(a). 245. Id. § 9(1)(b). 246. Id. § 9(2). 247. House of Lords, Official Report, Nov. 11, 1998, col. 810 (Lord Dubs). 1999] so would be likely to run into difficulty. An authority would have to say in terms in its assessment that it had not considered these matters. If it said that, or was simply silent on the issue in the published impact assessment, then its failure to consider issues that were clearly sign-posted in the legislation could be commented upon in response to the consultation on the assessment. The authority is bound then to take such responses into account in reaching a decision. 7. Complaints and Investigations If the Commission receives a complaint, made in accordance with certain formalities,24 of failure by a public authority to comply with an equality scheme approved by the Commission or made by the Secretary of State, then it is required to investigate the complaint, 24 9 or to give the complainant reasons for not investigating. 250 The formalities that complaints must comply with are that the complaint must be made in writing by a person who claims to have been directly affected by the failure. 251 A complaint must also be sent to the Commission during the period of twelve months starting with the day on which the complainant first knew of the matters alleged. 252 Before making a complaint, the complainant must bring the complaint to the notice of the public authority253 and give the public authority a reasonable opportunity to respond.254 In addition to investigating on the basis of a complaint, it appears that the Equality Commission itself has power to carry out an investigation into the compliance by a public authority with a scheme without having received a valid complaint. Although not without doubt, the power to carry out such an investigation appears to be derived from the Equality Commission's general duty to keep under review the effectiveness of the duties imposed by Section 75. Paragraph 11 of the Schedule, in addition, provides explicitly for the same conditions to be applied to investigations that arise from complaints as investiga248. Northern Ireland Bill, Bill 229, July 15, 1998, sched. 9, § 10(2)-(4) (Eng.). 249. Id. § 10(1)(a). 250. Id. § 10(1)(b). 251. Id. § 10(2). 252. Id. § 10(3). 253. Id. § 10(4)(a) 254. Id. § 10(4)(b). tions that are "carried out by the Commission where it believes that a public authority may.have failed to comply with a scheme "255 What happens to the results of these investigations again depends on the type of public authority involved. A distinction is drawn between Northern Ireland and United Kingdom-wide public bodies. In the case of the former, the Commission is required to send a report of both types of investigation to the public authority concerned2,5 6 the Secretary of State,257 the Assembly, 25 8 and the complainant. 259 If a report recommends action by the public authority concerned and the Commission considers that the action is not taken within a reasonable time, then the Commission may refer the matter to the Secretary of State.2 6 ° The Secretary of State may give directions to the public authority in respect of any matter referred to him or her.2 61 Where the Commission refers a matter to the Secretary of State it shall also notify the Assembly in writing that it has done so. 262 Where the Secretary of State gives directions to a public authority, he or she shall notify the Assembly in writing that he or she has done so.263 Somewhat different provisions apply in the case of United Kingdom-wide bodies. Again, certain of these provisions do not apply, particularly the provisions empowering the Secretary of State to give directions to the public authority in respect of a public authority's failure to present a scheme.2 6 4 Instead, the Commission may lay before Parliament and the Assembly a report of any investigation regarding compliance with an equality scheme by such a department.265 8. Five-year Review A public authority is required, before the end of the period of five years beginning with the submission of its current 255. Id. § 11(1)(b). 256. Id.§ 11(2)(a). 257. Id.§ 11 (2) (b). 258. Id.§ 11 (4) (a). 259. Id.§ 11(2)(c). 260. Id. § 11(3)(a). 261. Id. § 11(3)(b). 262. Id.§ 11 (4) (b). 263. Id.§ 11(5). 264. Id.§ U](3)(b). 265. Id.§ 12(5). 1999] scheme, or the latest review of that scheme, whichever is the later, to review that scheme and inform the Commission of the outcome of the review.266 VIII. AN ASSESSMENT OFMAINSTREAMING IN NORTHERN IRELAND A. Lessons from Northern Ireland? The major part of this Article has been a detailed case-study of the development of a legal approach to mainstreaming equality in Northern Ireland. Can we draw any general lessons from this experience that may be of wider relevance in other jurisdictions? In general, I suggest that we can. Although mainstreaming in Northern Ireland developed out of a unique context, the experience is of more general relevance. One lesson immediately suggests itself. Developing a mainstreaming strategy is likely to prove difficult, time-consuming and highly political. For it to succeed, there must be constant attention paid to both the big picture, and to the minutiae of public policy and public administration. The devil is in the detail. Somewhat tentatively, this Article suggests that three further lessons may be drawn. 1. The Need to Complement a Traditional Anti-discrimination Legislation Approach One of the ways in which governments in North America, Western Europe, and the Commonwealth have sought to address the position of ethnic groups, women, and other disadvantaged groups has been by developing anti-discrimination law in specific areas such as employment or housing, particularly in the private sector. In all countries of Western Europe, and much of the Commonwealth, such legislation is now in place. In addition, of course, many jurisdictions also have a constitutional provision relating to non-discrimination and sometimes equality. These constitutional non-discrimination provisions generally apply primarily, if not exclusively, to the actions of the state, across a broad range of state activity. To that extent, they attempt to apply equality principles to governmental policy making generally. The Northern Ireland experience suggests that while such legislation is necessary, it is insufficient by itself. The legislation 266. Id. § 8(3). is essentially negative. It aims, usually, to prevent discrimination, rather than positively to promote equality. There is growing concern in many countries about the extent to which these traditional mechanisms of securing non-discrimination in the public and private sectors are adequate.267 The implementation studies there have been emphasize the limited extent to which countries make anti-discrimination norms effective in practice. This emphasis has led, in turn, to the development of additional mechanisms to ensure greater compliance. 268 In several countries, specialized bodies are tasked with enforcement, supplementing the individual complaints process. But a specific agency, or other.enforcement body, dedicated specifically to equality issues may be viewed by government as satisfying concerns about inequality, yet have little effect on the -large decisions of government which have the greatest impact on the life chances of women and minorities. In addition, therefore, there have been attempts to develop policies that bring the weight of government to bear more directly. One example that links anti-discrimination law with the more direct use of governmental power is the use of government contracts and grants to require the private sector that deals with government to introduce equality policies. There is now significant experience with the operation of such policies, but their influence touches only a limited sphere of activity. What we have been examining in this Article is an attempt to go several steps further, by requiring that government and public bodies should attempt to weave policies of equality and non-discrimination into the fabric of decision-making across all spheres of government-in short, to "mainstream" fairness issues in public policy. This attempt is a particularly important issue if the problem is defined, as it increasingly is, as involving not only the problem of "discrimination," but the larger issue of unacceptable inequalities affecting women and particular minority groups, whether caused by discrimination or not. How, then, does mainstreaming differ from traditional antidiscrimination approaches? Mainstreaming concentrates on 267. See, e.g., ALFRED W. BLUMROSEN, MODERN LAW: THE LAW TRANSMISSION SYSTEM AND EQUAL EMPLOYMENT OPPORTUNITY 326 (1993). 268. See, e.g., ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, WOMEN AND STRUCTURAL CHANGE: NEW PERSPECTIVES ch. 6 (1994) ("Equal Opportunities Policies on the Labour Market in the 1980s"). 1999] government pro-actively taking equality into account. It does not concentrate primarily on discrimination as the problem to be resolved. Mainstreaming approaches are intended to be anticipatory, rather than essentially retrospective, to be extensively participatory, rather than limited to small groups of the knowledgeable and to be integrated into the activities of those primarily involved in policy-making. Mainstreaming is not inconsistent with traditional legal approaches to dealing with discrimination. Indeed, the Northern Ireland experience supports the view that mainstreaming is a natural extension of these approaches. Even before the Good Friday Agreement, Northern Ireland had one of the most extensive systems of anti-discrimination law in Western Europe. Despite this, mainstreaming was considered necessary to complement and reinforce this system. Underlying the Northern Ireland attempts at mainstreaming is an important perception: that unless special attention is paid to equality in policy-making, it will become too easily submerged in the day-to-day concerns of policy makers who do not view that particular policy preference as central to their concerns. The motivation for mainstreaming fairness and equality lies not only, therefore, in the perception that anti-discrimination law, positive action initiatives, and even traditional methods of constitutional protection of equality, are limited, but also in the perception that questions of equality and non-discrimination may easily become sidelined. Mainstreaming, by definition, attempts to address this problem of sidelining directly, by requiring all government departments to engage directly with equality issues. 2. The Importance of Impact Assessment and Public Participation An important technique has been developed to make the idea of mainstreaming effective in practice. Most countries that have adopted mainstreaming have required that some form of "impact assessment" be carried out as part of the process of considering proposals for legislation or major policy initiatives.269 269. For a discussion of the concept of impact assessment generally, see Peter Boothroyd, Policy Assessment, in FRANK VANCLAY & DANIEL A. BRONSTEIN, ENVIRONMENTAL AND SOCIAL IMPACT ASSESSMENT ch. 4 ( 1995 ). Put simply, the idea of an impact assessment involves an attempt to try to assess what the effect of the legislation or policy is, or Would be, on particular groups, such as women or minorities. As the Council of Europe report on mainstreaming observed: "The advantage of [gender impact assessment methods] lies in the fact that they draw a very accurate picture of the effects of a given policy ..... 270 Mainstreaming should, thereby, encourage greater transparency in decision-making since it necessitates defining what the impact of policies is at an earlier stage of policy making, more systematically and to a greater extent than is currently usually contemplated. And, to the extent that mainstreaming initiatives can develop criteria for alerting policy makers to potential problems before they happen, it is more likely that a generally reactive approach to problems of inequality can be replaced by pro-active early-warning approaches. Current government policy in many countries in the area of equality has often been criticized as tending to be too reactive to problems that might well have been identifiable before they became problems. We have seen that in Northern Ireland, too, impact assessment is a central part of mainstreaming approach. An important feature of the mainstreaming experience to date in Northern Ireland, however, is the extent to which groups inside and outside the mainstream political process have attempted to use impact assessment as part of a strategy to construct a more participatory approach to public policy debate. In short, groups have used'the mainstreaming process to become involved in influencing governmental decision-making. 271 From this perspective, mainstreaming should not only be a technical mechanism of assessment within the bureaucracy, but an approach that encourages the participation of those with an interest. It is common place, of course, that good decision-making should require policy-makers to seek out the views of those potentially affected by the decisions. All democracies do this. Unlike more traditional mechanisms of consultation, however, 270. Rapporteur Group, supra note 5, at 26. 271. For an interesting discussions of participation in the context of impact assessment and cost-benefit analysis, see Allan P. Dale & Marcus B. Lane, StrategicPerspectives Analysis: A Procedurefor Participatoryand PoliticalSocialImpact Assessment, 7 Soc'v & NAT. RESOURCES 253 (1994), and GREGORY A. DANEKE ET AL., PUBLIC INVOLVEMENT AND SOCIAL IMPACT ASSESSMENT (1983). mainstreaming as now practiced in Northern Ireland does this by requiring impact assessments of a degree of specificity which establishes a clear agenda for discussion between policy makers and those most affected. We can see, therefore, the inter-linked nature of the two crucial features of mainstreaming: impact assessment and participation. One of the most far-reaching "by-products" of mainstreaming becomes the development of a crucial link between government and "civil society." This development encourages greater participation in decision-making by marginal groups, thus lessening the democratic deficit. Again, the Council of Europe report makes the point well: "Development of democracy is one of the most important targets [of mainstreaming] ..... 272 There are various methods by which such mainstreaming could take place, but it is arguable that all require significant input of information and analysis of the impact of proposed policies from sources external to government. Non-governmental organizations such as community groups, pressure groups, and unions may wish to assist in supplying such information. This is not to say, of course, that the involvement of such groups is unproblematic, raising issues of the competence of such groups in this field, due to lack of information and lack of resources. In principle, however, a major argument in favor of mainstreaming is that it may contribute to increased participatory democracywhat the European Commission currently terms "civil dialogue." In a recent speech, the U.N. High Commissioner for Human Rights said that "Northern Ireland seems to have come up with some important and ground-breaking models in this regard that will be of much wider interest." She continued: In particular, it is clear.., how crucial to the concept of rights is the concept of participation. People should not be just docile subjects of rights: rights are never "given" to people. Rights must be asserted, and they must be asserted on one's own behalf and on behalf of all other human beings, without distinction. The alliance has produced an understanding of participation which allows people to become agents of their own change.273 272. Rapporteur Group, supra note 5, at 30. 273. Mary Robinson, supra note 117, at 6. 3. The Need for Mainstreaming to Have Clear Lines of Responsibility, Accountability, and a Legal Status There are dangers in mainstreaming. In particular, mainstreaming may result in the over-fragmentation of equality policy, especially if it were to become an alternative to traditional anti-discrimination and other equality mechanisms. If all public bodies have responsibility, then there is the danger that none will regard it as an important part of their function. There needs, therefore, to be some centralized responsibility within government to ensure that mainstreaming is consistently applied, according to common standards. Despite all of the arguments for mainstreaming, one should not overlook the fact that building such a requirement into civil service decision-making will require considerable cultural change. Apart from practical issues, there are the problems of departmental exclusiveness and collective responsibility. Mainstreaming may well cut across the working practices, and even, potentially, the ethos, of the civil service bureaucracy. The dismal experience in Northern Ireland of the non-statutory PAFT approach to mainstreaming before the reforms introduced by the Northern Ireland Act 1998 are eloquent testimony to this. This means, therefore, that a strong political commitment to mainstreaming is absolutely crucial and must drive the new approach to be taken by Departments and other public bodies. But it means more than that. It means also that the legal status of mainstreaming needs to be considered. It is noticeable that many of the jurisdictions that have introduced mainstreaming, discussed in the first part of this Article, have done so without according it any clear legal status. Mostly, mainstreaming has been introduced administratively, by circular, and without any formal legal underpinnings. At best, the status of mainstreaming in many countries is that of "soft law." The Northern Ireland experience suggests that this strategy may need to be rethought if mainstreaming is to be taken seriously by administrators, at least in some jurisdictions. What we have seen in Northern Ireland is the inadequacy of a "soft law" approach. My estimation is that in other jurisdictions the legal aspects of mainstreaming have been ignored to too great an extent. Whether a "hard law" approach will be any more successful in Northern Ireland remains to be seen, of course. It is to that issue that we now turn. B. Prospectsfor Successful Implementation in Northern Ireland What are the prospects of the legal mainstreaming approach adopted in Northern Ireland being effective? The provisions of the Act are promises, not reality. They are a necessary part of the process of achieving substantive equality, fairness, andjustice. But neither the provisions of the Agreement nor the Act itself delivers such change directly. This delivery will require political will at all levels. The provisions of the Act, in other words, represent the potential for change. The provisions will reframe the debate. But we must ensure that change actually occurs, particularly in those areas of disadvantage where equality has been far too slow in coming in the past. These provisions will need to be put into effective operation. And in this context there is a real difficulty. Ultimately, those who will have to operate this system day-to-day are the civil service and other public servants. The response of parts, and I stress parts, of the public service to these initiatives has been problematic in the past. Often it has been ungenerous and lacking in imagination. Sometimes, it seems that it has been actively opposed to necessary change. If, as the vast majority of the population have shown they want, the Agreement marks a new beginning for Northern Ireland, then all institutions have the obligation to change and adapt. The public service cannot be an exception to this obligation, however difficult it must be for some to give up the almost unrestrained power they were able to exercise for a generation. For its own sake, as well as that of Northern Ireland as a whole, the civil service must not be seen as obstructive to this aspect of the Agreement. The Equality Commission can no doubt play a role in assisting the public service to adapt, but ultimately the responsibility will. lie with the public service itself, the members of the Executive, and, of course, the Assembly. The Assembly can provide an important forum in which the successes and problems of the approach adopted in the Northern Ireland Act can be monitored. It will be vital to build up a co-operative relationship between the Assembly and the major statutory body in the area, the Equality Commission, as well as with the various constituencies directly. The relationship between the Assembly and the Commission will be of considerable importance in the future. At several points there will be significant contact: the funding for the Equality Commission will come from Northern Ireland Departmental budgets overseen by the Executive and the Assembly. The Equality Commission will be reviewing the schemes which public bodies, including those overseen by the Executive and the Assembly, produce. The relationship between the Assembly and the Commission has considerable potential for problems. Two possibilities suggest themselves. On the one hand, a confrontational attitude can develop in which the Assembly sees the Commission as hostile and a threat, and a war of attrition against it develops. On the other hand, the Assembly can regard the Commission as actually rather useful to it, forewarning it of problems that have not yet turned ugly, and enabling it to tackle them in a sensible way out of the glare of hostile publicity, or international pressure. I suggest that the second, co-operative approach is the sensible way forward. For it to work, the Assembly's relevant committees need to develop a harmonious working relationship with the membership of the Commission, one based on a mutual respect and recognition of the different roles that each plays in the overall structure. There is also the question of appointments to the new Equality Commission. Much will depend on the quality of people appointed. When the Equality Commission is up and running, much will depend on the Commission's effectiveness in managing the transition from four separate bodies into one. Initially, the workings of the new equality duty on public authorities will be affected by the Equality Commission's Guidelines on the criteria that will guide public authorities on how to comply with the statutory equality duty. Thereafter, it will be important to ensure in particular that these Guidelines are adhered to by public authorities in practice, day-to-day. There will be substantial opportunity for the affected groups to insert themselves in the policy-making process to ensure this. How far the promise of the Agreement's equality provisions is delivered will depend upon the commitment, the determination, and the skill of all the parties in the Assembly, a strong, well-financed, and independent Equality Commission, effective NGOs, and, crucially, the political will to place equality at the heart of decision-making. Using the new tools will be a challenge. For politicians, to ensure that equality and equality VII. Mainstreaming Equality: The Legislative Provisions Analyzed ...................................1755 A. Equality Commission for Northern Ireland ..... 1755 B. Responsibility for Equality Issues ............... 1756 C. Statutory Duty on Public Authorities ........... 1758 1. An Outline of the Statutory Duty ........... 1758 2. Preparation of an Equality Scheme ......... 1759 3. Content of Equality Schemes ............... 1760 4. Consultation on Draft Equality Schemes ...1762 5 . Consideration by the Equality Com m ission ................................ 1762 6 . Impact Assessment and Participation ....... 1763 7 . Complaints and Investigations .............. 1765 8. Five-year Review ............................ 1766 VIII. An Assessment of Mainstreaming in Northern Ireland ............................................. 1767 A. Lessons from Northern Ireland?............... 1767 1. The Need to Complement Traditional Antidiscrimination Legislation Approach ....... 1767 2. The Importance of Impact Assessment and Public Participation ........................ 1769 3. The Need for Mainstreaming to Have Clear Lines of Responsibility, Accountability, and a Legal Status ............................. 1772 B. Prospects for Successful Implementation in Northern Ireland ................................ 1773 5 . Council of Europe, Rapporteur Group on Equality Between Women and Men, Gender Mainstreaming , GR-EG (98) 1 , Mar . 26 , 1998 , at 12 .[hereinafter Rapporteur Group]. 6 . See EU Commissioner Padraig Flynn , REUTER EUROPEAN COMMUNITY REP ., Feb. 9, 1996 ( "Mainstreaming ... seeks to put an end ... to the 'ghettoisation' of equal opportunities .... "). 7 . See JosETTE L. MURPHY , GENDER ISSUES.ON WORLD BANK LENDING ( 1995 ); Jack- GRABER & BERNHARD G. GUNTER , THE WORLD BANK: LENDING ON A GLOBAL SCALE 81 ( 1996 ). 8. SHAHRA RAZAVi & CAROL MILLER, GENDER MAINSTREAMING: A STUDY OF EFFORTS (Aug . 1995 ) [hereinafter GENDER MAINSTREAMING]. 9. ANNE MARIE GOETZ, THE POLITICS OF INTEGRATING' GENDER TO STATE DEVELOP- MENT PROCESSES (May 1995 ). For an interesting discussions of mainstreaming women's equality in the Philippines, see Virginia 0. del Rosario , MainstreamingGender Concerns: Aspects of Compliance, Resistance and Negotiation, 26 IDS BULLETIN , no. 3 , 102 ( 1995 ) [hereinafter MainstreamingGender]. 10. Rapporteur Group, supra note 5 , at 10. 11. Padraig Flynn , Address at the Fourth World Conference on Women, REUTER TEXTLINE , Sept. 8 , 1995 (presenting European Community view ); Stephen Dale, Canada Seeks Gender Impact Assessments at Beijing, INTER PRESS SERV., Aug . 15 , 1995 (discussing Canada's view) . 12. Report of the Fourth World Conference on Women , U.N. Doc . A/Conf.177/20 ( 1995 ). For a general discussion, see Valerie A . Dormady, Note, Women's Rights in Inter- Conference on Women, 30 VANDERBILTJ. TRANSNAT'L L . 97 ( 1997 ). 13. EUROPEAN COMMISSION , EQUAL OPPORTUNITIES FOR WOMEN AND MEN IN THE EUROPEAN UNION 1996 , at 15- 20 ( 1997 ) [hereinafter EQUAL OPPORTUNITIES]; see TERESA REES, MAINSTREAMING EQUALITY IN THE EUROPEAN UNION ( 1998 ). 14 . European Commission , Communication from the Commission and Council tion , COM (95) 423 Final ( 1995 ). 15 . European Commission , Proposal for a Council Decision on the Fourth Me- Men ( 1996 -2000), COM (95) 381 Final ( 1995 ). 16 . Council Decision No. 95 /593/EC, O.J. L 335/1, at 37 ( 1995 ). 17 . See EU Commissioner Padraig Flynn , REUTER TEXTLINE , Nov . 28 , 1995 ( "The the leitmotifs of the Fourth Programme .... ") . 18 . European Commission , Progress Report from the Commission on the Follow- All Community Policies and Activities," COM ( 98 ) 122 Final, at 8 ( 1998 ). 19 . European Commission , Communication from the Commission "Incorporating Equal Opportunities for Women and Men into All Community Policies and Activities," 26. Coordinationof the Policies and Activities of the Specialized Agencies and OtherBodies of the United Nations System , U.N. Doc . No. E/ 1997 /66 ( 1997 ). 27. Report of the Economic and Social Councilfor 1997 , U.N. GAOR , 52d Sess., U.N. Doc. No. A/52/3, ch . IV, sec. A ( 1997 ). 28 . Implementationof the Agreed Conclusions of the 1997 CoordinationSegment of the Eco57 . See Christopher McCrudden, The FairEmployment Bill in Parliament ,in DIscRIMI- borne, eds., 1991 ). 58. REPORT ON FAIR EMPLOYMENT, supra note 56 , ch. 13 . 59. STANDING ADVISORY COMM . ON HUMAN RIGHTS, RELIGIOUS AND POLITICAL DIS- CRIMINATION AND EQUALITY OF OPPORTUNITY IN NORTHERN IRELAND: SECOND REPORT 12 ( 1990 ). 60 . This paragraph draws extensively from an unpublished memorandum by Rights (Sept . 1995 ) (on file with the FordhamInternationalLawJournal) . 64 . See ROBERT BALDWIN , RULES AND GOVERNMENT ch. 7 ( 1995 ). 65 . See CABINET OFFICE DEREGULATION UNIT , IMPLEMENTING EUROPEAN LAW: A TOR'S DEPARTMENT , THE JUDGE OVER YOUR SHOULDER: BALANCING THE SCALES ( 1994 ) (administrative law) . 66 . See A.W. Bradley , TheJudge over Your Shoulder , 1987 PUB. L. 485; A.W. Bradley , ProtectingGovernment Decisionsfrom Legal Challenge , 1988 PUB. L. 1 . 67. CABINET OFFICE , REDUCING THE RISK OF LEGAL CHALLENGE 8 . See further PORATION 13 ( 1993 ). 68 . This introduction was co-ordinated with an initiative launched in the United ernment Departments to develop basic guidance on equality proofing. 69. EQUAL OPPORTUNITY PROOFING: GUIDELINES , CENTRAL SECRETARIAT , CSC1 /90; MAKING (Mar. 9 , 1990 ). 70. BRIAN BLACKWELL , POLICY APPRAISAL AND FAIR TREATMENT (PAFT): AN INFOR- MATION PAPER (May 1996 ). 71. STANDING ADVISORY COMM . ON HUMAN RIGHTS , EMPLOYMENT EQUALITY : BUILD- ING FOR THE FUTURE , 1997 , Cm. 3684 , 5 .5. 72. The commitment was given at a seminar organized by the CCRU . See The ized by the Central Community Relations Unit ( 1991 ). 73 . Guidance on policy appraisal for different social groups was first circulated in 1992. DEPARTMENT FOR EDUCATION AND EMPLOYMENT, EQUAL OPPORTUNITIES INTO THE MAINSTREAM: GUIDANCE ON POLICY APPRAISAL FOR EQUAL TREATMENT 1 (Aug . 1996 ). This was updated and published in 1996. Id. A new initiative was launched on May 18, 1998. SeeJoan Ruddock, Speech at the EOC Conference (June 22, 1998 ) (visited Mar. 8, 1999 ) <http://www.womens-unit.gov.uk/speeches/> (on file with the Fordham Inter- nationalLaw Journal) . The new guidelines were published in November 1998 , Policy Appraisal for Equal Treatment (Women's Unit, Cabinet Office , Nov. 1998 ). See EQUAL OPPORTUNITIES COMMISSION , 1997 ANNUAL REPORT ch. 2 ( EOC , 1998 ). 195 . House of Lords, Official Report , vol. 594 , Nov . 11 , 1998 , cols. 812 - 13 (Lord Dubs); House of Commons, Official Report , vol. 319 , Nov . 18 , 1998 , col. 1069 (Mr. Murphy) . 196 . House of Lords, Official Report , vol. 594 , Nov . 11 , 1998 , cols. 808 , 812 - 13 ; House of Commons, Official Report , vol. 319 , Nov . 18 , 1998 , col. 1067 (Mr. Murphy) . 197 . House of Lords, Official Report , vol. 594 , Nov . 11 , 1998 , col. 810 . 198. Id. cols. 810 , 814 . 199. Northern Ireland Constitution Act , 1976 (Eng.).


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Christopher McCrudden. Mainstreaming Equality in the Governance of Northern Ireland, Fordham International Law Journal, 1998,