Agreement Reached in the Multi-Party Negotiations - Transitional ...

equality law in Northern Ireland. With the timetable for a Single Equality Act extended,
Government moved to implement some of these changes through Regulations under the
European Communities Act 1972. 132
A number of issues concern women with regard to the Single Equality Act:
A ‘common template’: The Equality Commission is committed to a ‘common template’
across all the grounds in the SEA and envisages a ‘rising floor’ of principles below which
the standards of the SEA cannot fall. The first is ‘non-regression’, a concept now familiar
in European equality law. 133 The Commission considers that a weakening of the protection
for one group weakens the protection for all and causes confusion and difficulties in multiidentity
cases. For women, this would mean that gender equality measures would not dip
below guarantees for other categories, such as race. On the other hand, if every category
has to be included, does it slow down the rate of progress for all? Or might it assist more
socially excluded women in accessing equality of opportunity, thus narrowing the gap
between women who are in a stronger position to benefit from an equality agenda and
those who are not? There is also the danger that issues with a systemic gender
discrimination root become slipstreamed into one of the other categories, thereby missing
the underlying gender factors at work. For example, ethnic women doubtless suffer
domestic violence. The problem is nonetheless one of gender rather than race. 134
Additional grounds: 135 What grounds will be included? Would numerous additional
grounds affect the template, would it dilute it? Potential additional grounds of relevance to
women are: the definition of gender - is gender reassignment included? A combination of
case law in the European Court of Justice (ECJ) 136 and the European Court of Human
Rights 137 indicates that many aspects of gender reassignment would be appropriate as part
of an extended definition of gender in the SEA. Will gender identity be included as
132 The Equality Commission expressed concern that implementation through the Regulations under the
European Communities Act 1972 ‘will limit the opportunities for debate and amendment which would have
been possible had primary legislation been proposed. Furthermore, it is important that the draft Regulations
do not pre-empt a full and far ranging debate on the Single Equality Act.’ Equality Commission submission
to CEDAW, April 2003
133 For example, Race and Ethnic Origin Directive 2000 (REOD) Article 6.2, and Framework Employment
Equality Directive (FEED) Article 8.2, which provide, ‘The implementation of this Directive shall under no
circumstances constitute grounds for a reduction in the level of protection against discrimination already
afforded by Member States in the fields covered by this Directive.’
134 Note, for example, the Equality Commission’s submission that ‘domestic violence for ethnic minorities
will be dealt with, not under the Gender Strategy but will fall under the remit of the Race Equality Strategy. It
is unlikely, that at a strategic level, domestic violence will feature as a priority for an over arching race
strategy. It is clearly a gender based issue and therefore needs to be addressed in the action plan flowing from
the Gender Strategy.’ Equality Commission Response to OFMDFM Consultation Paper, A Single Equality
Bill for Northern Ireland, November 2004
135 ‘One approach towards additional grounds is to adopt a “long list” approach, including a significant range
of grounds in the legislation. The Commission has reserved its position on their inclusion in a Single Equality
Act. It may be that a “long list” approach is appropriate for a constitutional document [i.e a Bill of Rights]
and a shorter list where the entire edifice of an equality law regime, including indirect discrimination,
affirmative action and the remit of the Commission, is applicable. In a Bill of Rights, the focus is upon nondiscrimination.
An equality clause will set out a list of “prohibited factors”, upon which it is not permissible
to rely. Although the draft Section 4(3) in the NIHRC Update Paper has included indirect discrimination
within the scope of the non-discrimination clause, this is unusual in a human rights instrument, outside of
those specifically directed at equality issues.’ Equality Commission Response to OFMDFM Consultation
Paper, A Single Equality Bill for Northern Ireland, November 2004
136 Case C-13/94, P v S and Cornwall County Council [1996] IRLR 347.
137 Goodwin v United Kingdom [2002] IRLR 664 (ECHR).
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