Mainstreaming Equality in the Governance of Northern Ireland
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
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.
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].
("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
"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
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
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 (
)." 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
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
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 (
). 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 (
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
),  1 C.M.L.R. 573 [hereinafter EC Treaty], incorporatingchanges made by
Treaty on European Union, Feb. 7, 1992, O.J. C 224/1 (
),  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),  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 (
29. U.N. Doc. No. E/1998/L.32 (
); 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
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 (
) (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
); 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
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
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"
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.
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
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
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"
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 (
) (health), and CABINET OFFICE DEREGULATION UNIT,
REGULATION IN THE BALANCE: A GUIDE TO REGULATORY APPRAISAL INCORPORATING RISK
) (compliance cost assessment).
63. See RACHEL HODGKIN. & PETER NEWELL, EFFECTIVE GOVERNMENT STRUCTURES
FOR CHILDREN 48-51 (
) (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
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
("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
[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
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
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).
76. CENTRAL COMMUNITY RELATIONS UNIT, POLICY APPRAISAL AND FAIR TREATMENT,
ANNUAL REPORT (1994), 1.2 (
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 (
); CENTRAL COMMUNITY RELATIONS UNIT, POLICY
APPRAISAL AND FAIR TREATMENT ANNUAL REPORT (
); 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
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
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
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
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.
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
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).
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.
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).
* 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
" 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
" 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).
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
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.
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
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
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
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).
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
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).
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
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
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").
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
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 (
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
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
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.
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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 )
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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
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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
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