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Law is a tool of change for achieving equality – SC

The second in this year’s Bar of Ireland Green Street Lectures, heard last night (6 May) from Marguerite Bolger SC that Ireland only reluctantly recognised full equality for women, as the price of its membership of the EU.

EU law has had an immeasurable impact on Irish employment equality rights, the barrister noted, almost from the moment Ireland joined the EU, despite the ‘lip service’ nature of early references to equality in the EEC.

Complex

Bolger said that the concept of equality is spectacularly simple but also remarkably complex.

“Every child who has ever complained that their sibling is being treated better than they are instinctively understands equality,” she said, while also accepting that it is a concept that is slippery and elusive to define at a legal and political level.

The 1916 Proclamation promoted equality but the subsequent commitment to the concept was more aspirational that real, the barrister said.

Political and economic reality has been commonly used to justify inequality, she added.

“The idea is that the individual should be protected against unnecessary State intrusions.

“This recognises equality as a right akin to an individual right to freedom from unfair discrimination, rather than a wider right to substantive equality, or equality of resources, or equality of outcome,” she added.

This debate is reflective of a major dividing line in Irish legal and political discourse since the mid-1990s, about the perceived neo-liberal orientation of Irish Government policies, Bolger said.

Social partnership

Social partnership agreements from that era reflect equality concerns, as well as policy initiatives to address socio-economic deprivation. 

“In practice, the right to equality in Ireland is restricted by the law in many more and fundamental ways,” she said. 

The premise of equality is that there are no important or immutable differences between individuals that justify different treatment, Bolger continued.

However, the legal system must also determine how to deal with different groups with different needs and abilities.

An example of special treatment is the right to maternity leave, Bolger said. Likewise, ageing or disability may  require differing physical abilities to be taken into account in the workplace.

This model of equality was used by women in their fight for access to education, employment and suffrage, Marguerite Bolger said.

Affirmative action is a more radical application of the principle of substantive equality, Bolger said, and while formal equality has been recognised there has been little concern for substantive equality, in the socio-economic sphere.

Conflict

“The equality principle has sometimes come into conflict with other constitutional values, and where this has occurred, the Irish courts have almost invariably preferred the other constitutional values,” she said.

In the Portmarnock Golf Club case, equality was preferred to the competing constitutional rights of freedom of association.

“Had this approach been progressed more, it could have led to a greater focus on achieving substantive equality,” Marguerite Bolger said.

Human dignity

In other jurisdictions, the emphasis has been placed on human dignity, in order to progress substantive equality, she said.

Marguerite Bolger said that the struggle for change is ongoing at national and European level but the will to force change through the law is there. 

“The law will continue to be a real tool of change in bringing about greater equality in Irish society,” she said.