Women Making Constitutions: New Politics and Comparative Perspectives

Women Making Constitutions New Politics and Comparative Perspectives

Edited by Alexandra Dobrowolsky and Vivien Hart

Women Making Constitutions

Also by Alexandra Dobrowolsky THE POLITICS OF PRAGMATISM: Women, Representation and Constitutionalism in Canada (2000)

Also by Vivien Hart BOUND BY OUR CONSTITUTION: Women, Workers, and the Minimum Wage (1994) WRITING A NATIONAL IDENTITY (co-editor, 1993) DISTRUST AND DEMOCRACY (1978)

Women Making Constitutions New Politics and Comparative Perspectives Edited by

Alexandra Dobrowolsky Associate Professor, Department of Political Science, Saint Mary’s University, Nova Scotia, Canada

and

Vivien Hart Professor of American Studies, University of Sussex, UK

Editorial matter and selection © Alexandra Dobrowolsky and Vivien Hart 2003 Chapters 1–15 © Palgrave Macmillan Publishers Ltd 2003 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2003 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 1–4039–0361–1 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Women Making Constitutions : New Politics and Comparative Perspectives / edited by Alexandra Dobrowolsky and Vivien Hart. p. cm. Includes bibliographical references and index. ISBN 1–4039–0361–1 1. Women in politics. 2. Democracy. 3. Equality. 4. Constitutional history. I. Dobrowolsky, Alexandra Z. (Alexandra Zorianna) II. Hart, Vivien. HQ1236.W63863 2003 320⬘.082—dc21 10 9 8 7 6 5 4 3 2 1 12 11 10 09 08 07 06 05 04 03 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

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Contents

Notes on Contributors

vii

Acknowledgements

xi

Introduction: Women, New Politics and Constitutional Change Alexandra Dobrowolsky and Vivien Hart 1

2

1

Constitutional Rights Discourse: Canadian and South African Feminist Engagements Ronalda Murphy

20

Balancing Strategies: Aboriginal Women and Constitutional Rights in Canada Joyce Green

36

3

Gender and Accountability Anne Marie Goetz

4

Women in Elected Office in the UK, 1992–2002: Struggles, Achievements and Possible Sea Change Meg Russell

68

Towards a New Politics? Women and the Constitutional Change in Scotland Fiona Mackay, Fiona Myers and Alice Brown

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Towards Substantive Representation: Women and Politics in South Africa Catherine Albertyn

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5

6

7

8

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Redesigning the Polity: Europe, Women and Constitutional Politics in the UK Vivien Hart

118

The Politics of Human Rights and Gender Equality in Northern Ireland Colin Harvey

132

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Women’s Rights after the Human Rights Act 1998 Susan Millns

142

10 ‘Heightened Scrutiny’: A Judicial Route to Constitutional Equality for US Women Cynthia Harrison

155

11 Increased Rights and Representation: Women and the Post-devolution Equality Agenda in Wales Paul Chaney

173

12 Mainstreaming Equality in Northern Ireland Bronagh Hinds

185

13 Reviewing the UK Equality Agenda in the Context of Constitutional Change Judith Squires

200

14 Group-differentiated Cultural Rights, Constitutionalism and Feminism Amy Bartholomew

216

15 Women, Constitutionalism and Contestation: Some Tentative Conclusions Alexandra Dobrowolsky

236

References

250

Index

273

Notes on Contributors Catherine Albertyn is a Professor of Law and Director of the Centre for Applied Legal Studies, University of the Witwatersrand. Over the past decade, she has been closely involved in constitution writing, institution building and law reform in South Africa. She has written extensively on issues relating to gender equality, human rights, law, democracy and HIV/AIDS in South Africa. Amy Bartholomew is an Associate Professor in the Department of Law at Carleton University. She is currently working on the implications of Habermasian theory for human rights, multiculturalism and justice for/with immigrants in a manuscript entitled Justice Without Guarantees. Alice Brown contributed to this collection in her capacity as a Professor of Politics at the University of Edinburgh. She has since taken up the post of Scottish Public Services Ombudsman. Paul Chaney is a lecturer at the Institute of Welsh Politics, University of Wales, Aberystwyth. He is co-editor of the academic journal Contemporary Wales. He has published a number of articles on political and social issues in Wales and has contributed chapters to a variety of edited volumes and co-edited (with A. Pithouse and T. Hall) New Governance: New Democracy? Post-Devolution Wales (2001). He is author (with Fiona Mackay and Laura McAllister) of Women and Contemporary Welsh Politics (2003). His research interests include public policy and administration, governance and equality issues. Alexandra Dobrowolsky is an Associate Professor of Political Science at Saint Mary’s University. She is the author of The Politics of Pragmatism: Women, Representation and Constitutionalism in Canada (2000), as well as articles on Canadian constitutional theory and practice. She has also published work on women’s constitutional activism in the United Kingdom. More generally, she has published pieces on mobilization and democracy, with three forthcoming chapters on, respectively: social movement activism; identity and democracy; and party politics in Canada. Her current research and writing deals with social policy and changing citizenship regimes in Canada and Britain. vii

viii Notes on Contributors

Anne Marie Goetz is a political scientist and Fellow of the Institute of Development Studies at the University of Sussex. Her work focusses upon the politics of pro-poor, gender-equitable development. She has also studied women politicians in developing countries, analysing the constraints they face to advancing a gender-equity agenda within state institutions and in political parties. She has conducted research in India, Bangladesh, Uganda and South Africa. She is the author of: Women Development Workers (2001); co-author of: Contesting Global Governance (1999), editor of: Getting Institutions Right for Women in Development (1997) and co-editor of: No Shortcuts to Power: African Women in Politics and Policy-Making (2003). Joyce Green is an Associate Professor of Political Science at the University of Regina, and is Senior Fellow at the Saskatchewan Institute on Public Policy for the academic year 2002/03. Her research interests are currently focussed on Aboriginal–settler relations and the possibility of decolonization in Canada; and on the theoretical parameters and political significance of Aboriginal feminism. Her publications include: ‘Canaries in the Mines of Citizenship: Indian Women in Canada’, Canadian Journal of Political Science (2001), and the forthcoming ‘Decolonization and Recolonization in Canada’, in W. Clement and L. F. Vosko (eds), Changing Canada: Political Economy as Transformation (2003), and ‘Towards Conceptual Precision: Citizenship and Rights Talk for Aboriginal Canadians’, in G. Kernerman and P. Resnick (eds), Rethinking Citizenship in the Canadian Federation (2003). Cynthia Harrison is an Associate Professor of History and of Women’s Studies at The George Washington University. She is the author of On Account of Sex: The Politics of Women’s Issues, 1945–1968 (1988), numerous additional articles on women, politics and policy, and former editor of This Constitution. From 1988 to 1993, she inaugurated and served as chief historian of the Federal Judicial History Office at the Federal Judicial Centre. She is currently at work on an examination of the way in which policy-makers shaped and limited the feminist agenda, especially in the area of policy concerning poor and minority women. Vivien Hart is a Professor of American Studies at the University of Sussex and Director of the University’s Cunliffe Centre for the Study of Constitutionalism. She has published books and articles on gender politics and on constitutionalism, including Writing a National Identity: Political, Economic and Cultural Perspectives on the Written Constitution,

Notes on Contributors ix

co-edited with Shannon C. Stimson (1993); and Bound by Our Constitution: Women, Workers, and the Minimum Wage (1994). She is a recent Senior Fellow at the United States Institute of Peace in Washington, D.C., working on constitutionalism today for a forthcoming book, Making Constitutions, Seeking Peace. Colin Harvey is a Professor of Constitutional and Human Rights Law, University of Leeds. He has taught at the University of Wales, Aberystwyth; Queen’s University, Belfast; University of Michigan; and in Poznan, Poland. He serves on editorial boards and with organizations in the fields of refugee and asylum law and human rights. His publications include Seeking Asylum in the UK: Problems and Prospects (2000), Human Rights, Equality and Democratic Renewal in Northern Ireland (2001), (with Jo Shaw and John Morison) Voices, Spaces and Processes in Constitutionalism (2000), a special issue of the Northern Ireland Legal Quarterly for the fiftieth Anniversary of the European Convention on Human Rights (2000), and numerous articles in international law and socio-legal journals. Bronagh Hinds is a Senior Fellow, Institute of Governance, Public Policy and Social Research, the Queen’s University, Belfast and Deputy Chief Commissioner, Equality Commission for Northern Ireland. She was a co-founder of the Northern Ireland Women’s Coalition and negotiator in the Multi-Party Talks 1996–98; awarded UK Woman of Europe in 1999 and International Women’s Democracy Center’s Global Democracy Award in 2001. Her publications include ‘Women Working for Peace in Northern Ireland’, in Y. Galligan, E. Ward and R. Wilford (eds), Contesting Politics (1999); From the Margins to the Mainstream – Working Towards Equality, Development and Peace (edited with Hope, Whittaker) (1997). Fiona Mackay is a Lecturer in Politics at the University of Edinburgh. She is author of Love and Politics (2001) and co-editor of Women and Contemporary Scottish Politics (2001) and The Changing Politics of Gender Equality in Britain (2002). Susan Millns is a Senior Lecturer in Law at the University of Kent and from 2002/04 a Visiting Marie Curie Fellow in the Robert Schuman Center for Advanced Studies at the European University Institute, Florence. She is the co-author (with Jo Bridgeman) of Feminist Perspectives on Law: Law’s Engagement with the Female Body (1998) and the co-editor (with Noel Whitty) of Feminist Perspectives on Public Law

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(1999). She is also a member of the Editorial Board of Feminist Legal Studies. Ronalda Murphy is an Assistant Professor of Law at Dalhousie University, having previously studied at Harvard University and the University of Toronto, clerked at the United States Federal District Court and the Supreme Court of Canada, and taught at the University of the Witwatersrand in South Africa, where she worked on the transition from apartheid to constitutional democracy from 1991–94. She has also practiced civil litigation and taught part time at several Canadian universities. She teaches various courses, among them Canadian Constitutional Law and Comparative Constitutional Law. She has published on constitutional law and theory, evidence law, aboriginal law, feminist legal theory and postmodernism. Fiona Myers is an Edinburgh-based researcher working across a number of policy fields. She has undertaken several reviews focussing on research on women in Scotland. In addition Fiona contributed to an ESRC funded study focussing on the development of the standing orders and procedures of the Scottish Parliament. Meg Russell is Senior Research Fellow at the Constitution Unit, School of Public Policy, University College London. She was National Women’s Officer of the Labour Party from 1996 to 1998 and previously worked for Labour’s Shadow Minister for Women, Clare Short. She was recently on secondment as an adviser to the Leader of the House of Commons. She is the author of numerous reports and papers, and of the book Reforming the House of Lords: Lessons from Overseas (2000). Judith Squires is a Senior Lecturer in Politics at Bristol University. Her publications include Women in Parliament: a Comparative Analysis (with Mark Wickham-Jones) (2001), Gender in Political Theory (1999) and Feminisms (edited with Sandra Kemp) (1997).

Acknowledgements This book was inspired by a seminar series on ‘Women and Constitutional Change in the United Kingdom’ held at the University of Sussex from 2000 to 2002; many of the ideas in this volume were first tested in these meetings. Our first and greatest vote of thanks is to this international group of activists and scholars who urged the importance of the subject, shared their knowledge and experience, built friendships and kept coming back for more and ever-livelier debate. Throughout, Jo Workman has helped with seminars, computers and editorial tasks. We owe her a special debt of gratitude for all this. We are grateful for funding for the first meeting as part of a UK Economic and Social Research Council Research Seminar series on ‘Constitutional Change’ (award no. R45126467097). Subsequent meetings were funded by the University of Sussex Cunliffe Centre for the Study of Constitutionalism. The coeditors thank the Department of Foreign Affairs and International Trade Canada and the Foundation for Canadian Studies in the United Kingdom for a grant enabling us to meet to work on the book. Saint Mary’s University, Halifax, and the Social Science Research Council of Canada contributed research and travel funding to Dobrowolsky. Hart worked on the final stages of the volume under the hospitable roof of the United States Institute of Peace in Washington, D.C., with great help from Tuba Ünlü. We are both grateful for all this support, noting as ever that our views (and any errors) are our own responsibility.

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Introduction: Women, New Politics and Constitutional Change Alexandra Dobrowolsky and Vivien Hart

At the end of the twentieth century, nations both north and south engaged in making or remaking their constitutional agreements. This burst of constitutional activity generated a ferment of debate about governance, human rights and the recognition of diversity. Since many of these deliberative processes remain in flux, and discussions about the nature and forms of democracy continue, constitutional politics have become and will remain a feature of the political sphere in the twentyfirst century. This wave of activity has been accompanied by unprecedented public demands for inclusion in the process of constitution making and in the text of the constitution. Often led by women, these demands have been met in many nations by creative responses, in some by resistance. Canadian women pressed at the beginning of the 1980s to have their rights included, and mean something, in the newly drafted Charter of Rights and Freedoms. In 1986, when the Nicaraguan National Assembly invited comment on a proposed new constitution, women’s vehement opposition ‘stunned everyone. Hundreds of them took turns denouncing the language of the first constitutional draft,’ although its drafters believed it was already strong on women’s rights (Reding, 1986: 435–6; Morgan, 1990). In 1988, women changed the outcomes of constitution making processes in Uganda and Brazil (Verucci, 1991; Fûrley and Katalikawe, 1997: 258). Between 1990 and 1996, South African women debated and demanded inclusion as constitutional change unfolded. They contributed to the massive public consultation instigated by the Constitutional Assembly, and sat by right on committees that were drafting the new text (Albertyn Chapter 6, this volume; Andrews, 2001). Women in Scotland, Northern Ireland and at the Westminster Parliament (as this volume reveals) have urged and implemented new 1

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Women Making Constitutions

institutions and rights as part of the United Kingdom’s constitutional reforms since 1997. Most recently, and in more dire circumstances, women have been active to ensure their presence and articulate their concerns in African nations like Eritrea, with twenty-one women on a Constitutional Commission of fifty, and Rwanda, where women’s civil society organizations were key players in drafting a new constitution (Selassie, 1998: 165; Inter-Parliamentary Union, 2001). From experience, many women are sceptical about constitutionalism, conventional political structures, and lofty promises of democracy, representation, accountability and equality. But when windows of reform have opened women have felt compelled to seize these political opportunities and, wherever they can, to shape them. They have done so because constitutions matter and they matter fundamentally. Constitutions are not only about crafting and entrenching political rules, rights, and institutions, although these are typical features. Constitutions are also about encapsulating a country’s highest ideals and emphasizing its most significant identities. And thus, constitutions are of great consequence. A constitution is intended to stand above everyday politics, authorizing the rules of the game and legitimating the processes and outcomes of government. Constitutions are also, at their core, about power – laying out its distribution, exercise and limits, imposing obligations as well as granting rights. And so constitutional settlements are continually contested, amended or entirely reframed in a process every bit as political as the daily business of elections and policy-making. By constitutional politics, then, we mean a politics concerned with the creation, implementation and maintenance of a framework of governance. This framework includes both institutions and aspirations. It involves citizenship, rights and a politics engaged with those fundamental principles and practices by which the polity is shaped. It is no wonder that women recognize the vital necessity of playing a part in constitutional revisioning, in defining and redefining a nation’s foundational identities, ideas and institutions. Women know well that without their own efforts to frame the rules of membership, access and the exercise of power, their concerns may go unrepresented, underrepresented and/or misrepresented. Women around the world have mobilized for constitutional change, and they continue to do so. Whether they have been able to act boldly and with ambition, or hope at best to create an entering wedge, without doubt women have contributed to constitutional change. However, whether the winds of change stirred up by women’s interventions

Women, New Politics and Constitutional Change 3

ultimately produce sunny skies or stormy weather has been less predictable. Recent episodes from Canada, South Africa and the European Union (EU), regions of the world that with the United Kingdom and the USA are the main focus of this volume, remind us that while women must help write the constitutional text, women’s citizenship and equality must be inscribed in the constitutional text, only constant vigilance and the hard grind of sustained activism ensure that over time textual promises are honoured and – the point of the exercise – women’s lives change for the better.

Constitutional promises, constitutional practice Contemporary constitutional politics in Canada, South Africa and the European Union display both the promise and hazards of this activity for women. In 1989, seven years after the Canadian Charter of Rights and Freedoms came into being and four years after its equality provisions came into effect, the Canadian Advisory Council on the Status of Women (CACSW) produced a report entitled Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? Here, even a statetied advisory body such as the CACSW concluded that, despite feminists’ multi-pronged strategies to include and recast equality rights in the Charter: ‘The news is not good. Women are initiating few cases, and men are using the Charter to strike back at women’s hard-won protections and benefits’ (Brodsky and Day, 1989: 3). Six years later women’s representational routes were circumscribed further, as the Liberal Government did away with the CACSW (Jenson and Phillips, 1996). At the Charter’s twentieth birthday party in 2002, many feminist academics and activists were in no mood to celebrate, as the now defunct Advisory Council’s ‘two steps back’ appeared to be an underestimate. In Canada, women’s substantive equality is still far from a reality (Cossman, 2002; Jhappan, 2002; Majury, 2002). Moreover, making it a reality, in an environment where equality of opportunity is increasingly championed over equality of condition, is progressively more difficult (Broadbent, 2001). For certain women – Aboriginal women, women of colour, immigrant and refugee women, poor women, old women – equality of any variety, in deeds if not in words, remains particularly elusive. Is the party over in Canada, even though the women’s movement in general and the Aboriginal women’s movement in particular, were movers and shakers in the constitutional struggles of the 1980s and 1990s (Green Chapter 2, this volume; Dobrowolsky, 2000b, 2001;

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2003)? Not necessarily. Constitutional politics has more than one string to its bow. The power of its promises may be brought to bear on the state through conventional policy channels and also through legal argument. As legislatures grew hostile to women’s claims (Brodie, 1995; Bakker, 1996), the existence of a Charter with equality provisions enabled women to use the courts as an avenue for change (Bashevkin, 1998). An equality litigation strategy is not without its limitations (Green, Hart, Millns, Chapters 2, 7, 9, this volume). Nevertheless, equality challenges remain important sites of struggle in Canada. Strategically, formal legal equality is still a powerful discourse (Fudge and Cossman, 2002) and since 1982 Canadian judges have been more apt than legislators to recognize substantive equality (L’Heureux-Dubé, 2003). In the early 1990s in South Africa the drafting of a new constitution provided a prime opportunity for women to deploy gender pragmatically, as both a political and moral benchmark (Murphy Chapter 1; Albertyn Chapter 6, this volume; Murray, 1994; Andrews, 2001). South African women ensured that gender equality was enshrined in the constitution and worked to establish new, inclusive principles of democratic governance. A strong civil society and unprecedented representation in the first government under the new constitution facilitated an early flush of legislation matching the rhetorical promises of that document. However, as the nineties progressed, and new institutions and democratic practices were consolidated, political openings for women appeared in danger of dwindling. Sustaining and extending early achievements and making the all-important constitutional channels of accountability effective (Goetz Chapter 3, this volume), in the face of tightening party control and the growth of executive power, presented a new challenge. Like Canadians, South African women have learned that constitutional gains cannot be taken for granted. Every possible constitutional strategy must be deployed in their cause. As a postscript to her account of the frustrating inefficacy of political persuasion on HIV/AIDS policy, Albertyn (this volume) notes the eventual resort to the courts. Before the Constitutional Court, campaigners used the language of the rights of mothers and children and the duties of government to win access to anti-retroviral drug therapy (Minister of Health v. Treatment Action Campaign, CCT 8/02; Albertyn Chapter 6, this volume, n. 34). Again as in Canada, South Africans forced policy implementation by deploying constitutional arguments, thereby achieving judicial enforcement of a social right over the objections of a powerful executive. Yet the same judgement made plain one limitation (of many) of litigation strategies. Social rights to basic necessities of life, including health care, place

Women, New Politics and Constitutional Change 5

positive obligations upon government, the Court declared, developing a recent precedent (Sunstein, 2001: chap. 10), but, it concluded, courts can enforce them only so far as is reasonable within the resources available. The creation or redistribution of material resources is beyond the province of the courts. Rather, it falls back into the hands of the same parliamentarians for whom the moral precepts of the constitution are but one consideration. Given the poverty and disadvantage of the majority of South African women, the danger is that unattainable aspirations may bring constitutional promises and constitutional politics into disrepute. Yet, as in Canada, the unfinished story is of women who would certainly be worse off without the Constitution than with it, and whose decade of experience is an object lesson in constitutional politics. Similar patterns have emerged in Europe as an elaborate constitutional framework for the EU has developed, treaty by treaty. Since 1990, the European Women’s Lobby (EWL), representing more than 3000 women’s organizations, has worked to integrate gender equality into EU treaties. The original Treaty of Rome (1957) gave one crucial right, that is, equal pay for women workers. Through insistent lobbying and efforts at ‘multi-level action coordination’ (Helfferich and Kolb, 2001) women recently secured broader equality provisions ‘for fighting discrimination outside the labour market’, in the Amsterdam Treaty of 1999 (ibid.: 143). Women’s activism resulted in both the ‘inclusion’ and the ‘expansion of formal sex equality rules’, which, as Chichowski suggested, ‘bodes well for future legislative innovations’ (2002: 232). At the same time, however, she acknowledged that while even such minimal equality policy ‘has benefited many women, this equality may be limited’ (ibid.: 233) by, for instance, strict and formalistic treatments. Again, therefore, women cannot afford to rest on their constitutional laurels. To illustrate, EU constitution making continues up to the present moment, with a declaratory Charter of Fundamental Rights attached to the Treaty of Nice in 2001 and the establishment later the same year of the constitution-making Convention for the Future of Europe. The political processes in both cases were roundly condemned by the EWL for similar reasons, that men dominated the decisionmaking bodies, texts used generic male language, and outcomes represented a ‘devastating step backwards’ for the articulation of gender equality as a ‘basic unconditional and fundamental principle of the Union’ (EWL, 2000a). Persistent lobbying won limited improvements to the Charter (EWL, 2000b). But as understandings of gender relationships, inequalities and their constitutional remedies have continued to evolve, women’s constitutional politics has run ahead of the traditional

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and limited vision of gender equality the Charter represents. New demands for freedom from gender-related violence, a gender-sensitive asylum policy, gender mainstreaming and parity democracy, ‘an equal representation of women and men in the organs and institutions of the Union’, have gone unmet. The Convention on the Future of Europe was established to review the governance of Europe, consider whether ‘this might not lead in the long run to the adoption of a constitutional text in the union’, and determine what the basic features of a constitution might be (Laeken Declaration, 2001). The Convention will report during 2003 with action planned for 2004. While sceptics doubt a radical outcome, some change seems certain. Can European women seize this opportunity of a clean slate? Women comprise only 16 per cent of the Convention, despite strong lobbying for parity by EWL and other women’s groups. Two women sit on the agenda-setting praesidium of twelve. On the Convention’s consultative web site (http://europa.eu.int/futurum/) women’s presence is conspicuous. But no public hearing has been dedicated to gender issues although women’s organizations have testified under every available head (European Convention, 2002). Demonstrating how far the EU has to go ‘to bring citizens ... closer to the European design’ (Laeken Declaration, 2001), and how far its women citizens have to go to open up the EU to their voice and claims, the EWL response to an early draft strikes sadly familiar notes: ‘This text could be considered as evidence that the so-called “listening phase” of the Convention ... has not been successful at translating the hundreds of messages that were sent into an acceptable response’ (EWL, 2002). Generic male language, the absence of existing treaty rights let alone a general equality guarantee, the omission of human rights that affect women’s lives, add up to ‘an alarming backlash’ rather than a progressive ‘development and reinforcement of policy in this field’ (EWL, 2002). These recent events in Canada, South Africa and the EU attest to the fact that while women have certainly made constitutional inroads, progress is not a given. This is not a pessimistic assessment, but rather a realistic one. These narratives also remind that, despite generic features of constitutionalism, different opportunities and constraints arise in different contexts over space and time given changing circumstances (Murphy Chapter 1, this volume; Dobrowolsky, 2003). This is also apparent in the context of the United Kingdom, whose recent spate of constitutional reform has made it something of a laboratory for testing the potential and problems of constitutional politics for women.

Women, New Politics and Constitutional Change 7

The United Kingdom and comparative constitutional politics What may surprise many, accustomed to the idea that the United Kingdom with its centuries-old unwritten tradition stands outside the world of formal constitutionalism, is the extent to which recently the United Kingdom has become a source of constitutional innovation. Since the election of a Labour government in 1997, power has been devolved from Westminster to a new Scottish Parliament and Welsh and Northern Ireland Assemblies. A Greater London government exists, and English regional governments are proposed. The European Convention on Human Rights has been incorporated into UK law and judges authorized to declare parliamentary legislation incompatible with its precepts. Reform of the House of Lords has begun. Varieties of proportional representation have been introduced for Scottish, Welsh, Northern Irish and European elections and voluntary affirmative action to increase women’s representation has been legalized. Equality and Human Rights Commissions have been established in some parts of the UK, proposed in others.1 All of these changes have translated into potential politicalconstitutional openings for women. Many essays in this volume demonstrate the extent to which UK women have learned from and even forged ahead of counterparts elsewhere, from the conceptualizing of constitutional claims through the building of new institutions to the creation of channels of oversight and accountability. In some parts of the United Kingdom, women have played a formative role in this process (e.g. Chaney Chapter 11; Mackay et al. Chapter 5, this volume), and in others they have attempted to insert their concerns into more of a ‘top-down’ modernization agenda (e.g. Millns Chapter 9; Russell Chapter 4, this volume). At Westminster, women must still do their best to add new institutions and political preferences to staid structures (Squires Chapter 13, this volume; Dobrowolsky, 2002, 2003), but longer strides have been taken elsewhere. In Scotland, women worked to mould the massive political opportunity of a new Scottish Parliament, setting standards for counterparts elsewhere (MacKay et al. Chapter 5, this volume). In Wales, women have attempted to infuse the Welsh Assembly with the principles of equality and diversity (Chaney Chapter 11, this volume). Women in Northern Ireland provide the clearest example of working from below to achieve inclusion (Fearon, 1999; Hinds Chapter 12, this volume). As we have intimated already, the proof of the pudding – the realization of substantive goals – still lies ahead for women everywhere. But

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this volume reveals how rapidly women in the United Kingdom have advanced from the construction of new institutions and rights to a concern, as these settle into play, with how to implement and sustain their promise. In looking to the maintenance of the new constitutionalism, they follow their Canadian and South African predecessors in the field of constitutional change – one reason why those comparative examples feature largely in this book. Constitutional regimes such as Canada and South Africa, as well the United States, have many lessons to offer the United Kingdom as it embarks upon devolution and incorporates rights into domestic law. An inter/transnational exchange of constitutional practice has grown recently and this book reflects this sharing of experience of engagement in constitutional politics. The volume does not pretend to be comprehensive in its scope, for notable illustrations – for example, women’s constitutional interventions in Australia (see Sawer and Vickers, 2001; Chappell, 2002a,b) and in many nations of the south – are not included due to space constraints. In addition, while we largely draw upon current examples of women’s constitutional interventions, there are lessons from the past in relation to Europe and the United States (Hart, Harrison, this volume). Nonetheless, this sampling offers important insights into women’s constitutional experiences – both positive and negative. Mainstream treatments of constitutional change in all these nations typically overlook or oversimplify women’s varied constitutional analyses and activism. For instance, while many texts have been published on constitutionalism in the United Kingdom (recent examples include Bogdanor, 1999; Foley, 1999; Hazell, 1999b; Jowell and Oliver, 2000; Morrison, 2001; Barnett, 2002) or its constituent parts (Morison and Livingstone, 1995; Morgan and Mungham, 2000), few, if any, specifically examine women’s constitutional engagement. Yet these experiences within the United Kingdom are only some of the latest instances where women have sought to appropriate the processes of constitutionmaking and implementation for their ends. So this book opens up, for the first time, a wide-ranging and timely discussion in relation to women and constitutional change. However, we do not take a stand on whether constitutions and constitutional reform are inherently good or bad when it comes to women’s efforts at socio-political transformation. Rather, we contend that constitutions reflect changing socio-economic, political and cultural environments. Not only is context essential to a full understanding of any constitutional development, but instrumentally lessons can be learned about how both discourses and practices are created at particular moments of history and how women make the

Women, New Politics and Constitutional Change 9

space to intervene in the emerging debate. Sometimes, as Murphy suggests ‘getting a perfect legal document attached to the Constitution’ (this volume, p. 33) is less important than the participatory method employed. Or, as Harrison assesses the impact of the Equal Rights Amendment campaign in the United States, the battle for the constitutional text may be lost and yet the war may still be won. Overall, the picture painted here is one in which constitutional politics for women, while tension-ridden, still reflects a mixture of ‘resistibility, openness, creativity, and incompleteness’ (Honig, 1992: 217) which cannot be ignored. The chapters feature women’s creative thinking about constitutionalism and their multiple forms of engagement. More than merely adding women to the story, this collection illustrates how women have advanced the debate for women and men, in terms of both constitutional theory and practice.

Constitutional theory and constitutional practice The essays in this volume explore the theoretical and practical challenges stemming from such compelling constitutional developments and evaluate their possible repercussions as the twenty-first century unfolds. While the chapters are wide-ranging and diverse, they are linked by their common interrogation of women’s constitutional theorizing as well as their activism. This combination is intentional, for the aim is to advance theoretical debates and critically examine common assumptions in the light of particular case studies. In so doing, current debates about identity, equality and difference, rights and representation are examined and assessed. As Joseph Carens suggests, this theoretical and contextual combination has at least three advantages: (i) it can shed light on the meaning and significance of abstract formulations; (ii) it can illuminate normative insights that may be clouded by theoretical examinations that rest at the level of general principle and, finally (iii) ‘it can make us more conscious of the blinkers that constrain our theoretical visions when they are informed only by what is familiar’ (Carens, 2000: 2). A brief introduction to some important conceptual concerns sets the stage for the chapters that follow. Identity and diversity Many instances of constitution-making today arise in the context of deep divisions between different identity groups within nations (Dobrowolsky, 1998, 2001; Hart, 2001). In contests stemming from the assertiveness of subordinated groups (often newly self-conscious, often

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previously silent), insurgents typically demand recognition of their identity, a share in power and equality of opportunity and condition for the group. Alan Cairns has reminded us of the opposite of recognition, how constitutions can stigmatize groups by the very fact of their absence from the text (Cairns, 1999; see also Dobrowolsky and Devlin, 2002). The most basic symbolic recognition, inclusion by name in the constitution, eluded American women experienced in constitutional politics (Harrison Chapter 10, this volume) while featuring in many more recent constitutional texts. Gender also intersects with other contested identities. Women in Northern Ireland are divided in terms of community, religion, and class, as well as gender. Women of colour in the USA and South Africa, or Aboriginal women in Canada, must reconcile competing loyalties and priorities. All have used gender in strategic ways, for example at some times (as Murphy recounts of South Africa Chapter 1, this volume) setting aside certain claims, at others (as Hinds reports of Northern Ireland Chapter 12, this volume) mobilizing around gender as a universal identity, to create a space and agenda for dialogue that escapes existing and entrenched hostilities. Because such identities are often partial, porous and fluid they lend instability to contemporary constitution-making, creating both an opportunity and a problem for women. A constitutional process begun by well-established groups may inspire a sense of identity and stimulate claims for inclusion where none existed before. The nineteenth- and twentieth-century dialectic between racial and gendered claims in US constitutional politics is a classic example (Van Burkleo, 2001). More recently, Scottish women articulated a Claim of Right and successfully injected gender into the constitutional deliberations of Scotsmen (Woman’s Claim of Right Group, 1991). Cross-cutting claims can also complicate the reaching of consensus. The entry of women, Aboriginal nations and Aboriginal women into Canadian constitutional politics in the 1980s and 1990s ensured the rejection of settlements narrowly concerned with Quebec (see Green, this volume; Mercredi and Turpel, 1993; Borrows, 1997; Cairns, 2000; Dobrowolsky, 2000b). Women in the EU have yet to gain equal access to constitutional deliberations where representation is still apportioned by nation. But in all these cases identities have also been sources of inspiration and energy. Collective identities have enabled campaigns based on empowering claims of inclusion and justice rather than solely self-interest. In the formalistic tradition of liberal constitutionalism, premised on the universal identity of individual citizenship, it is hard to incorporate the facts of diversity and the insistent and multiple claims for recognition

Women, New Politics and Constitutional Change 11

of group identities. It is harder still to do so without losing individual women’s right to autonomy and form/s of identity. Chantal Mouffe’s comment that there are lessons to be learned about embracing a more radical pluralism that ‘gives a positive status to differences’, seems in this context something of an understatement (Mouffe, 1996: 246). Yet enshrining such a status is fundamental to constitutional politics today. How the constitutional framework acknowledges group diversity as well as individual rights, and which diversities, affects all the theoretical concerns and practices of women’s constitutional politics discussed in this volume. Equality, difference, diversity Feminist theorists have problematized the definition of equality, as Squires summarizes in this volume. Equality is often equated with sameness, with treating women the same as men. Women are therefore compelled to stress similarities between women and men, leaving intact both the male ideal and the inequitable distribution of power and social resources that has accompanied this. What is more, not only does equality tend to minimize differences between women and men, it also has trouble dealing with differences between women (Spelman, 1988; Jhappan, 2002). Women of colour have criticized equality strategies that fail to acknowledge the diversity embodied in the category of women. ‘Women’ is read as a unified homogenous category (Mohanty et al., 1991; Yuval-Davis, 1998). Critics have also effectively illustrated how equality strategies are constrained in their capacity to cope with intersecting equality claims. Equality and rights claims, which contest the meaning of norms and may require choices between more than one good rather than of a single optimal outcome, have been central to women’s constitutional politics and crucial to their practical outcomes. Judith Squires seeks to clarify the conceptual issues and to chart a ‘holistic approach’. She distinguishes three dimensions to equality: ‘equality as individual justice, equality as group justice, and equality as diversity’ (Squires Chapter 13, this volume, p.202). Rather than insisting on the theoretical elegance of a single concept, she suggests, we should draw upon all three and use them singly and together according to circumstances. This volume illustrates moments where equality and difference are not mutually exclusive, conjunctures where they not only coexist but are even compatible. The tensions are aptly illustrated in the case of Northern Ireland (Porter, 2000; Harvey, Hinds Chapters 8, 9, this volume). There, the recent establishment of both equality and human rights commissions hits directly at the previous separation between

12 Women Making Constitutions

categories of discrimination and difference, but also risks the submerging of some identities by others. Equality has other ramifications, evident in the move from theory to practice. Succinctly summarized by the 1920s American reformer Florence Kelley, the problem is how there can be equality where there is no equality (Hart, 1994a). Sex equality provisions often fail to go beyond ‘formal’ equality to recognize and address substantive inequalities (Harvey, Hart, Millns Chapters 8, 7, 9, this volume). How can the constitutional guarantee of equal rights, for example, mean anything when women’s social and economic circumstances are typically worse than men’s, as well as greatly divergent amongst women. An obvious example is that access to litigation tends to be limited to those with means, only sometimes mitigated (Hart, this volume) by action on their behalf by civil society groups and sympathetic experts. But the difficulty spreads wider. Substantive inequalities between women and men, poor and rich, include the lack of money, skill, time, not to mention energy when the day of work and caring is done, all of which affect the ability to enter the political sphere on one’s own behalf rather than through more privileged surrogates (if such exist). In Millns’ moving example, gender inequality may extend even to ‘women’s relationship to death and dying’ (this volume, p. 149). Social exclusion thus has a very direct relation to the meaning of women’s citizenship and the span of women’s constitutional and political activism. Rights The equality/difference debate is intrinsically related to discussions about rights and their obverse, the obligations imposed by constitutions (Kerber, 1998). In recent debates about group rights as opposed to individual rights, for example, theorists such as Susan Moller Okin have argued that the cultural rights of social groups not only exist in tension with, but can undermine the equality goal of feminism (Okin, 1999). In contrast, Amy Bartholomew (this volume) argues that a procedural concept of rights understood through deliberative theory shows us that group differentiated cultural rights do not necessarily militate against women’s individual rights. The former may even have the potential to contribute to women’s equality. In assessing constitutional rights as an instrument for effecting change, women join a wide-ranging debate. American scholars have focussed on this in evaluating their two-century old rights culture. On the one hand, rights have been criticized as diminishing civil discourse, fostering a citizenship of isolated and adversarial rights-bearing

Women, New Politics and Constitutional Change 13

individuals (Glendon, 1991), and as ineffective agents of social change through their arbiters and enforcers, the courts (Rosenberg, 1991). On the other hand, some claim high merits in rights talk and the politics of rights, citing their empowering and affirming qualities in the eyes of those who have suffered constitutional exclusion (Williams, 1991) and their widespread adoption and use in many different environments (Epp, 1998). Feminists of various stripes have criticized rights in similar terms. Wendy Brown trenchantly interrogates the ‘fiction of the autonomous, willing, reasoning rights-bearing subject convened by modernity ... articulated in liberal democratic constitutions’ (Brown, 2001: 10). An increase in rights talk, she argues, does not necessarily mean an increase in equality. On the contrary, she refers to three developments. First: a civil society of bureaucratic agencies and a civic currency of proceduralism and litigiousness. Second, the anti-statist, libertarian Right has, of late, claimed for itself the freedom-as-rights discourse, as have those reacting against what they claim to be special rights or protections afforded to disenfranchised minorities. Both kinds of claims make it extremely difficult for liberals and leftists to argue that rights unequivocally pave the road to enhanced freedom and egalitarianism. Third ... the acontextual formalism of rights means that rights, though universally distributed, often yield greater inequalities in societies in which individuals are unequally situated. In some cases they are as likely to entrench existing powers as to redistribute power. (ibid.: 12) While this critique is powerful, as this volume attests, rights theories and practices are highly contingent. For Brown, rights ‘necessarily operate in and as an ahistorical, acultural, acontextual idiom: they claim distance from specific political contexts and historical vicissitudes and they necessarily participate in a discourse of enduring universality rather than provisionality or partiality’ (Brown, 1995: 97). These are precisely the qualities this volume challenges. Contributors examine how women have used rights strategies to describe disadvantage and advance democracy. Their evidence demonstrates the need for a rights discourse that gives voice to identity and takes into account the contribution of rights to women’s agency. Given the centrality of rights struggles to women’s (and other’s) movement mobilization, disdaining rights may throw out the baby with the bathwater and undermine women’s agency (Williams, 1991; Dobrowolsky, 2001). Women of all kinds need a concept such as

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rights as a resource to challenge multiple forms of oppression (Kingdom, 1991; Bartholomew, 2001: 8). Indeed women may expand rather than retract the political uses of rights. Social rights to substantive goods like education, health and basic living standards, it can be argued, are of particular concern to women (Hart, Millns, this volume). Certainly rights can be wielded in multiple and contradictory – even regulatory and coercive – ways. But we cannot afford to give up on the emancipatory potential of rights. Representation A vast literature defines and debates the merits of various forms of representation. Hanna Pitkin originally made the distinction between ‘standing for’ (the mere presence of women regardless of their views) and ‘acting for’ (the presence of women acting in women’s interests) as forms of representation (Pitkin, 1967). Following Pitkin’s concerns, Anne Phillips (1995) has conclusively answered (with a yes) the basic question of whether, in principle, it matters whether women (and other groups) are physically present in the political arena so long as members of the dominant group (white males) responsibly act in the interests of all (for a recent Canadian treatment see Tremblay and Trimble, 2003: 3–4). The arguments for gender balance in democratic institutions, Mackay et al., note ‘are made on the grounds of equality, justice and fairness and on the basis of the legitimacy of the democratic system’. Women ‘may or may not act differently or in women’s interests, but their presence lends legitimacy to democratic institutions as a signifier of justice, inclusion and recognition’ (Mackay et al. Chapter 5, this volume, p. 89). In this volume, we use the language of ‘descriptive’ (sometimes referred to as symbolic or numerical representation as well as ‘standing for’) versus ‘substantive’ representation which ‘implies not only that the elected person shares the opinions and concerns of the persons he or she represents, but also that the elected representative commits to consistent action with a view to representing their interests [and identities]’ (Tremblay and Trimble, 2003: 4). Like formal equality, descriptive representation is necessary but not sufficient to ensure that gender justice will be on the political agenda and that the scrutiny and accountability that Goetz (this volume) regards as essential to adequate representation is fulfilled. In most cases reported in this volume, the descriptive representation of women has increased as a result of constitutional change – new institutions, electoral systems, affirmative action mechanisms – but in none of the nations involved has gender equality increased at

Women, New Politics and Constitutional Change 15

equivalent speed. Representation is about both identity and interest (Dobrowolsky, 1998) and about more than just numbers (Dovi, 2002). As Trimble and Arscott suggest, ‘Anyone concerned about women’s equality must still count numbers, although numbers certainly are not all that count’ (2003: 157). Several authors (Mackay et al; Albertyn, Chaney Chapters 5, 6, 11, this volume) do find substantive differences in the political agenda that they associate with enhanced representation. The entrenched nature of previous power structures may excuse modest progress. But so far the evidence tentatively confirms that the fight for adequate representation or parity democracy is not just a matter of symbolism but a precondition to ‘integrate the needs and interests of women and men’ (EWL, 2002).

Women, politics and constitutional change The essays in this volume combine theory and practice, make comparisons across nations, and are in dialogue with each other. Any division of the book into thematic sections therefore creates an artificial separation between chapters engaged in a single conversation. There is, nonetheless, an order and progression to the volume. This reflects first the chronological pattern of women’s presence in constitutional politics, from the creation of constitutional texts to the establishment of new institutions and practices and thence to attainment of the substantive goals that are the purpose of the exercise. Second, different chapters stress theoretical concerns prominent at different moments in this progression. These move from the strategic definition of gender through exploration of the theory and practice of representation, to the way in which rights concern women, questions of accountability and sustainable constitutionalism, and finally to the question of what conceptual framework and practice will best take women’s constitutional politics forward. Finally, an underlying concern with the nature of identity, democracy and citizenship in the twenty-first century is brought to the surface and reviewed before a tentative conclusion is reached about the condition of women’s constitutional politics today and its future promise. Ronalda Murphy and Joyce Green introduce the circumstances, choices and conflicts in and with which women entered constitutional politics in Canada and South Africa. That there is no single path best taken, that the definition of ‘women’ and ‘women’s interests’ must recognize diversity, and that constitutional politics has, up to now and for the foreseeable future, been a struggle against domination and inequality,

16 Women Making Constitutions

are messages that resonate for the whole volume. Likewise, Anne Marie Goetz’s wide-ranging discussion of accountability sets a standard by which all the experiments described in later chapters should be judged. Goetz’s examples of innovation in sub-Saharan Africa, South Asia and Latin America are also a reminder that the so-called advanced western democracies are not necessarily leaders in the field of constitutionalism. The core of the volume focusses on the United Kingdom, a nation traditionally unfamiliar with the ways of written constitutions but currently engaged in a whole range of constitutional experimentation. Representation is the prime concern of Meg Russell and Fiona Mackay, Fiona Myers and Alice Brown. Russell recounts the interplay of law and politics in the struggle to increase the presence of women at Westminster, and the relative advances made in Scotland and Wales. The passage of legislation allowing affirmative steps to increase the number of women candidates is one (controversial) strategy. In Scotland, proportional representation and an effective campaign by women have already won an unprecedented number of women MSPs in the first Parliament, elected in 1999. Mackay, Myers and Brown describe this as a ‘gender coup’ (p. 84). For them, the question then arises of whether such increased descriptive representation is merely a symbolic victory or leads to change in the legislative agenda or in policy outcomes. This is a helpful moment to consider the recent experience of South Africa, where, as Catherine Albertyn describes, women used constitutional politics to remarkable effect in writing the text of the 1993 and 1996 Constitutions, and in gaining office. Helped by the fluidity of the new constitutional polity and the support of a strong civil society, women at first capitalized on the political opportunity. But powerful partisan and economic interests increasingly control the agenda, to the detriment of women’s concerns. Now women must not only struggle to keep their new place and voice. They must also be watchful over the whole gamut of government activity, requiring a persistence outlasting the moment of constitutional innovation. The next group of essays recalls our earlier remark that constitutional politics has more than one string to its bow. Vivien Hart, Colin Harvey, Susan Millns and Cynthia Harrison consider the legal route to change through using the constitutional text in the courts. Perhaps the most noteworthy agreement between these authors is of the absolute necessity of political activism alongside legal strategies, contrary to the note of warning about the limitations of politics sounded by earlier authors. Experience from the European Union, new rights regimes in Northern Ireland and the United Kingdom, and the long constitutional struggle of

Women, New Politics and Constitutional Change 17

American women, suggests that while constitutional rights can and have been empowering and effective, they also impose constraints and exclusions on the causes women pursue. Nevertheless, none of these chapters advocates abandonment of the difficult and technocratic form of constitutional politics that works through litigation and the courts. Rather, they see it as a strategic choice, hand in hand with or as an alternative to movement politics, electoral campaigns and policy lobbying. The Canadian Charter of Rights (1982), South African bills of rights (1993 and 1996), European Union treaty rights (from 1973 in the United Kingdom) and UK Human Rights Act (1998) have recently created opportunities for women. On the other hand, Harrison’s evaluation of the failure to win an Equal Rights Amendment to the American Constitution might sound initially like the anatomy of a constitutional disaster. In fact the message is of long-term gains impelled in part by the ERA campaign but also by persistent political and legal mobilization to inch forward the cause of equality. Together, the contributions in this book underline the complexity of women’s task in taking hold of and benefiting from constitutional change. They clarify some of the options, skills and circumstances most conducive to success in gaining political access. Chapters by Paul Chaney, Bronagh Hinds and Judith Squires provide early evaluations of how UK women are attempting to implement gender-sensitive policymaking within the new constitutional environment. Chaney and Hinds, reporting on new institutions in Wales and Northern Ireland, remind us of what is at stake in gains in gender justice, the inspirational moral claims that can be made in the name of constitutional principle and the exciting potential of new regimes. As contributions such as those of Albertyn, Harvey and Harrison have already emphasized, these chapters also confirm that there is no such thing as plain sailing on this voyage. Competing goals, limited resources and limited powers are among the obstacles requiring skilful navigation. As Goetz predicted, accountability is at the heart of the new institutions proposed to bring gender considerations into every public decision. As all these authors confirm, holding power-holders to account requires endless attention to detail and unflagging persistence. A strong civil society, credited by Albertyn with invaluable support in the early phase of governance under South Africa’s new constitution, has a role to play here. Indeed, a by-product of constitutional politics can be the strengthening of civil society through use of new claims and institutions. Constitutions are rarely solely about institutions and rules, but usually embody aspirations for a better society. Thus Hinds reminds

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us that the statutory duty to promote equality not only imposes an obligation on government in Northern Ireland, but also ‘engages the public in a way that no previous process has been required to do’ (this volume, p. 193). The expansive claims of constitutional politics inspire work for change and construct the framework within which to do so. Squires’s chapter is a timely continuation of concerns raised by Chaney and Hinds. She engages fundamental debates over definition and diversity that are implicit throughout the volume. Identity and interest overlap, and the competition that lies ahead for the six social groups included in the proposed single UK Equality Commission requires theoretical as well as programmatic clarity. Squires insists that the UK review announced in 2002 ‘must entail public deliberation as to what is meant by equality’, and must integrate into policy-making the normative debates that have long raged within feminist theory: ‘The challenge for contemporary equality theorists is to engage with the intersecting hierarchies of gender, race, economic class, sexuality, religion, disability and age’ (this volume, pp. 200, 202). It is appropriate then to turn to Amy Bartholomew’s account of the intellectual difficulties that such an engagement with the conceptual issues of identities and equalities can create for women. Respecting diversity in multicultural societies, such as all those discussed in this volume, creates contradictions like the combination of gender equality and inegalitarian customary law in South Africa, or Charter rights and Aboriginal law and tradition in Canada. Resolving such conflicts is essentially a constitutional issue (see for example the Constitution of South Africa, 1996, or Canadian Charlottetown Accord, 1992). North American, especially Canadian, theorists have been particularly active in exploring the tensions involved and seeking a satisfactory conceptual framework that respects difference without losing the meaning of gender justice. Bartholomew presents these debates and offers a solution in a procedural, deliberative constitutionalism. In this open-ended model of constitutional politics, it is understood that ‘the interests of cultural minorities and women may overlap as well as conflict’ (p. 230), that difficult and apparently anti-feminist practices in any minority culture are always open to scrutiny – as are those that characterize the dominant, majority culture – and that the resolution of conflicting positions comes through genuine, reasoned discussion, not through edicts from above. Bartholomew’s response to issues of group-differentiated rights might well be extended to the whole field of constitutional decision-making. She points the way forward for women who have now worked their way

Women, New Politics and Constitutional Change 19

through the processes of constitution-making and implementation. Given our evidence of progress made but greater progress still to come, women’s activism in constitutional politics seems doubly important. There will be no quick conclusion to the struggle for a constitutionalism that facilitates gender justice and equality. Meantime, as Alexandra Dobrowolsky concludes, one of the greatest safeguards that women may demand and create is a constitutionalism always open to questioning, to dialogue, and to new understandings, aspirations and demands, one that creates a culture and institutions respectful of all citizens and a politics conducted through imaginative and inclusive fora for deliberation and accountable at every step. This is no small goal, but this is surely what democratic constitutionalism means.

Note 1. Major constitutional legislation from the Labour government includes: Government of Wales Act 1998, Human Rights Act 1998, Northern Ireland Act 1998, Scotland Act 1998, Greater London Authority Act 1999, European Parliamentary Elections Act 1999, House of Lords Act 1999, Sex Discrimination (Election Candidates) Act 2002. In addition much associated and enabling legislation has been passed. See Hazell (1999b). The abolition of the historic post of Lord Chancellor, in June 2003, to be replaced by a department of Constitutional Affairs, as well as plans for the establishment of a Supreme Court, to stand in place of Law Lords, are amongst the most recent constitutional reforms that are causing considerable debate. Setting aside the Prime Minister’s apparent unilateral action on these matters, the potential for women to make representational inroads into these new legal/constitutional fora is far greater than with their male dominated precursors.

1 Constitutional Rights Discourse: Canadian and South African Feminist Engagements1 Ronalda Murphy

Women have long asserted their ‘rights’ to equality and freedom and sought to have those ‘rights’ reflected in domestic and international legal systems. Rights can take a variety of forms in law but the most secure location of rights is within a constitutional democracy. Examining how women’s movements interact with the constitutional rights discourse is illuminating and a comparative approach to the issue is especially so. A comparison of the discourse of women’s rights in Canada and South Africa in the early 1990s provides important insights into the nature of rights generally and women’s engagement with the politics that is associated with law. I begin by noting the role of constitutional rights claims in current political contests and in political theory, in order to justify paying attention to them as a site of both practical and theoretical significance. I then describe the emergence of a race and class critique of feminism within Canada, and the consequent development of an ‘intersectionality’ model of equality. In South Africa, a different approach was taken, giving particular emphasis to gender in juxtaposition to race and class. This essay queries why that happened, and asserts that the South African approach can only be appreciated by a sensitive account of the political circumstances in which the women’s movement found itself when the new constitutional order was being negotiated. The successful invocation of the political category of women in South Africa is fascinating given that it occurred at a moment when the political and philosophical integrity of the concept was thoroughly deconstructed in Canada. I argue that important objectives were achieved by the deployment of the race and class critique within the Canadian women’s movement, and the chief one is that it allowed for the necessary democratization of the movement and its practices. I dispute, however, that the race and class critiques represent a discourse of 20

Constitutional Rights Discourse 21

feminism that is inherently just or appropriate for any women’s movement. I explain the emergence of the political category of ‘women’ in South Africa at precisely the same period in an effort to illustrate the need to assess these discourses as sites of power and contestation designed to ensure women were involved in creating the constitutional texts of post-Apartheid South Africa. I conclude that paying attention to the specific historical and political contexts in which constitutionalism develops provides the key both to understanding why women make the strategic choices they make to assert particular forms of women’s rights claims, and assessing the political value of those decisions.

The significance of constitutional rights Contemporary constitutions may emerge as a response to intense and often violent conflict – as is the case with South Africa, or they may be part of a more gradualist development of a nation-state (however complexly defined), as in the case of Canada. Or they may end up as part of a rule of law package of reforms that functions to condition economic aid and development. Rights are always specific political products and this is apparent in jurisdictions where there is legislative supremacy. But putting rights in a constitution changes the narrative about rights. To explain this difference I need to clarify the task that constitutional rights perform. The difference between constitutional democracy and nonconstitutional democracy is as critical as it is easy to grasp. With a constitutional democracy, there is a decision by a political community to bind itself to a specific constitutional form as the ‘supreme’ political expression, which – absent a revolution – constrains political willformation of a democratically elected government. All constitutional democracies create a dispute-resolution system to ensure that some institutional body exists to ensure that the constitution is observed, and this is expressed (explicitly or implicitly) as the ‘supreme’ law. Typically the decisions on when the ‘supreme’ law is violated are taken out of the legislative hands of elected political actors, as it is too easy for them to resolve conflicts in a manner that privileges short-term political goals (like re-election) over long-term interest in compliance with the constitution. So another institutional body is provided for, to play this supervisory role over the constitution. In addition, procedures for amendment ensure that successive democratic governments can change the ‘supreme’ law as long as they follow the rules for change (again, unless there is simply a new political order established though revolution).

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In the absence of any agreement as to the source of ‘supreme’ law apart from the political collective that calls it ‘supreme’, it falls to theories of government and human agency to account for legitimacy in law, especially in constitutional law. Now there are different ways to go from this point forward, as there are many different ways of articulating the normative value of self-constituting government or government by consent whether it be grounded hypothetically (Rawls, 1971), sociologically (Habermas’s speech-act theory, Habermas, 1996), or actual consent (any constitution ratified by some procedural device that delivers ‘consent’ of the people, as in the case of Canada’s constitutional development in the early 1980s and South Africa’s in the 1990s). Once legitimacy is tied to consent and democracy is normatively secured, it is not so difficult then to assert that if nothing else, constitutional law norms are legitimate because they ensure the preconditions for democratic willformation. The tendency then is rather to deny the political birth of rights and instead focus on developing a philosophical creation story in which fundamental rights or human rights theories are not conceptually tied to any jurisdiction. Because rights and freedoms are defended on the basis of their philosophical correctness, academics engage in ferocious debates over exactly how to ground and elaborate basic rights such as equality, autonomy and the most recent actor on the philosophical stage, dignity. Theorists argue in terms of universals because they are trying to defend a claim in which the basic right involved (freedom, equality, dignity, speech) extends to everyone. It is hard to argue against some type of universalism: How can anyone lack a right to life? A right to be free from torture? To be treated with dignity? This form of universalism does a great deal of work, and is not especially problematic, but only because at the highest levels of abstraction it is easy to achieve consensus. Actual justice of social practices, however, depends mostly on the details. One of those ‘details’, in my view, includes theories of constitutional rights of women. Yet it is very hard to appreciate the way in which constitutional rights are generated in particular locations and to grasp why they take the form that they do. Within a given jurisdiction, it may not seem important to resist the siren song toward ‘correct’ theory; for the most part the discourse is internal in any event. But feminist theorizing on the intersection of race, class and gender within Canada does not seem limited to Canada, and the discourse of constitutionalism, promising as it does to provide guideposts for just societies, now and in the future, generally makes it difficult to identify the political aspects of legal claims within a specific

Constitutional Rights Discourse 23

jurisdiction. Few disagree that women’s movements and assertions of agency in different parts of the world merit their own attention, but I am suggesting that when you look closely, you can see that even the particular theory of rights being advanced has to be understood in relation to the discourses and social conditions that are dominant in the lives of women in particular locations. The key is assessing how women achieve space for intervening in emerging debates. They use different theories depending on what works to make room for their voices. For women, the concerns are wide-ranging and include criminal and civil as well as constitutional law. But regardless of the issue, a theory of women’s rights is deployed to protect or challenge measures on the basis of their impact on women’s lives. The basic claim is that women are denied access to power by a myriad of laws, policies and attitudes that serve to limit women’s lives and possibilities. So, is there a single theory of women’s constitutional rights that can account for all this and serve to guide future legal and normative change in a way that addresses the needs and concerns of women? I believe that even a cursory study of different women’s movements can serve to warn against any sort of constant narrative about women’s rights that will work wherever women are.

Women and constitutional law projects Canada In the past twenty odd years of the Canadian women’s movement, the focus has been on equality theory and the manner in which women’s differences from men are conceptualized on whatever axis of comparison, be it economic, social, political, psychological or physiological. Legal disputes over pregnancy and affirmative action are ready examples of the issues that gave rise to this focus, but violence against women also generates a discussion of why women are subjected to male violence to the degree that they are, and what kind of responses in law are required to take account of that phenomenon. This is familiar terrain for the women’s movement in Canada. The terrain had shifted in an earthquake-like fashion by the 1990s. This was the period in which the women’s movement was identified as a source of oppression for women. The oppression was at two levels: philosophical and political. The philosophical critique is that feminist discourse is essentialist. Essentialism is a reductionist mode of thought that both assumes and/or asserts that women have a shared and common identity. The title to the justly famous book by Elizabeth Spelman

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(1988), Inessential Woman: Problems of Exclusion in Feminist Thought, is suggestive of the theoretical issues that she identifies as caused by essentialist reasoning about women. The political oppression follows: the feminists theorizing about women are white, privileged, welleducated, and they know little about the lives of women who do not share those characteristics. As a result, they advance policies and pursue objectives that vacillate from being irrelevant to being harmful to those women who are not so fortunate. The category ‘women’ was thus destabilized by fundamental critiques of feminism as racist and classist in Canada and the United States in the 1980s.2 The roots of the challenge can be traced in a variety of locations,3 but their success is manifest in institutional forums like the National Action Committee on the Status of Women (NAC), the major umbrella organization of Canadian feminist organizations, and the Women’s Legal Education and Action Fund (LEAF), set up to engage in constitutional litigation on behalf of women’s interests with the advent of the Charter in 1982. In NAC and in the first decade of LEAF’s work, a set of ideas from radical feminism identified the existence, endurance and on-going force of patriarchy as a particular form of power relationship.4 Both groups reflected and produced a feminist discourse in which gender was identified as the determinative category of social thought and action pertaining to the status of women. This discourse was extremely effective and successfully opposed the discourses of progressive conservatism and processoriented liberalism in the male-dominated Canadian political and legal arenas. Race and class had no real existence as discourses within the movement in that first decade. For many years the institutional women’s movement simply did not recognize racism as an important issue while class also took a backseat to dominant concerns that seemed to focus on law and legislation, at the expense of economic and social issues that had a direct effect on women like the loss of jobs or access to affordable day care. The race and class claims that emerged were identity based – and to that extent relied on concepts of authenticity, experience and subjectivity that the women’s movement had long employed to assert the value of women’s voices as contrasted with the dominant male perspective. Race and class are presented as separate and independent critiques, each bearing equivalent force against the dominance of gender as a category of thought and practice in analysing the conditions of women’s lives. Identity politics works to challenge the way in which many liberal regimes steer clear of difference between groups of people and rather insist on the primacy of the individual and what makes that person

Constitutional Rights Discourse 25

distinct from all others. Drawing attention to the group allows for recognition of patterns of maldistribution of all manner of social resources and privilege. Drawing attention to difference within groups raises different issues because it risks infinite regress, and an inability to point to patterns and thus to mobilize around disadvantage being redressed. Ironically, it can come back to an excessive focus on individual contexts. The change is in the content of the individual – instead of being essentially empty of difference (the liberal model), the individual is all difference (the postmodern model). When poor women, Aboriginal women and women of colour felt that their concerns, their issues, were not being addressed, they looked to the forms of dominant discourse and found themselves being constituted by a discourse of gender exclusivity. It was, from their perspective, a source of the problem, yet another form of oppressive treatment, and one that they would be powerless to contest until they created and deployed a counter-narrative challenging the legitimacy of the basic claims of the women’s movement. But it was a critique that was threatening at several levels – personal, political and philosophical. I have found two main responses in the Canadian women’s movement to the race and class critique (Murphy, 1998). First and foremost, the criticism was conceptualized as a form of moral condemnation to which feminists responded defensively by recitation of various initiatives undertaken by the women’s movement that ‘demonstrated’ an absence of racism or classism. I will call this the ‘inclusionary response’ to the race and class critique, where the goal is to ensure that everyone’s story of struggle is told. A subsequent response, however, proved more powerful. Now dominant, this response interpreted the race and class critique as primarily directed at theory itself. Feminist theory was recast in terms that avoided ‘essentializing’ the ‘nature’ of the ‘woman’. The object was to eliminate the practice of positing as the ‘universal woman’ a woman in fact representative of only a particular community of women: the white, educated middle class. The legitimacy of the feminist movement in Canada and the United States has always been derived from its purported ability to tell the ‘truth’ of women. This shift redirected political contests over access to discourse within the movement itself to debates over how to ensure the correct articulation of philosophy. The feminist movement’s response categorizes racism and classism as problems to be solved; and proposes that the solution is a matter of finding a way to continue telling the truth about women, that is, all women. It remains, then, a question of subjectivity; a belief in the political power of telling the truth about women and now also about ‘black women’ and

26 Women Making Constitutions

‘Aboriginal women’ and ‘disabled women’ and ‘women of colour’. While I do not disparage this analysis or belief, I do believe that it overlooks the most powerful implication of these events. I believe that race and class challenges have been ‘managed’ in this way partly because feminists have failed to fully conceptualize the discourses themselves as locations of power and thus subject to democratic critique. Clearly, there is acknowledgement that individual women or groups of women are power-holders; but these have achieved their power independently of the feminist movement. And this is also how their power is understood: that is, independent from, but deployed within, a feminist context. It is critical that we understand the discourses of race and class in Canada as politically strategic sites of democratic contestation against the forms of power wielded by the discourse of a feminism that had become hegemonic and institutionalized. While feminism is certainly not the most powerful source of the oppression facing those contesting racism and classism, it is one such source nonetheless. In order to comprehend how gender discourses operate and are contested in different parts of the world at different times, especially in terms of constitutional law, it is insufficient to merely historicize them; they must be politicized as well. If we shift the discussion away from the ‘truth’ of the race and class discourses and toward the terrain of politics and political action, I believe race and class discourses can be read as claims for participatory democracy in the women’s movement itself. Women whose faces, histories and bank balances were strangers to forums such as NAC and LEAF were being ignored or treated poorly by the state, even as members of many institutional sites of feminism, and the many practitioners of feminist legal theory were purporting to speak for them. While feminists may disagree with this for strategic reasons (i.e., because feminists are not the ‘real’ enemy), it is clear that the ‘feminist discourse’ wields sufficient power to make it a site of political contestation. The discourse of identity of race and class deployed against the feminist movement successfully undermined the feminist movement’s foundation of authenticity, forcing it to understand that legitimacy is not a given but something that has to be achieved. I think these developments in feminist politics are extremely positive: necessary advances in feminism and democracy alike. In the absence of any factual consensus on theory and action, the only sure basis of legitimacy for any social movement will be whether it emerges from a process that is internally democratic. I interpret the race and class critique as one primarily effective in securing participation in a movement that was more than merely frequently racist and classist, but one which, through the

Constitutional Rights Discourse 27

rhetoric of representation, claimed to speak on behalf of all women. But can we conclude from this history that the emerging discourse of a Canadian (or American) feminism that incorporates a simultaneous opposition to all forms of oppression is inherently progressive? Have we solved the analytical and personal problems to such an extent that we can now articulate this new feminism as the universal feminism of the future and thus the discourse of gender rights everywhere?

South Africa Any review of the history of women’s distinctive struggles in South Africa demonstrates the absence of feminism as a discourse, even when the particular battle is waged overwhelmingly by women. This was the political effect of the incendiary race–class debate in popular political movements and in academic discourse in South Africa during Apartheid’s heyday and until its demise in the 1990s. The debate was about which of a race or class-based analysis accounts for Apartheid and the resistances it engendered, but it produced the effect of rendering it impossible to organize around gender. In this final section I explain the emergence and assess the utility of the ‘Women’s National Coalition’ (WNC) in South Africa. This group was created by the women leaders of the liberation struggle to intervene in the male-dominated processes that were leading up to the writing of a constitution for a democratic South Africa. The history of women’s movements in South Africa during Apartheid is detailed and complex5 but there is no debate over the absence of a feminist consciousness in the various struggles within which women in South Africa engaged. Race mattered more than anything else and competed only with class as the major conceptual basis upon which all women of South Africa understood their realities. Perhaps in no place on earth is the utter paucity of the claim of female ‘sisterhood’ more readily revealed. This is not, however, to say that black women did not successfully organize with sympathetic white women, as indeed they have done at significant moments in South African history. It is to claim that when they did, it was not in the name of a sisterhood that women bonded. The three main episodes of women’s historical movements involve resistance to laws that regulated the vote, the sale of beer and passes (documents used to restrict movement of people). The voting struggle was resolved in racist terms: white women eventually obtained it but they did so because granting it to them served to dilute the stillexisting black male vote in one region of the country (subsequently taken away). But even the struggle for voting rights by white women was

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not feminist. The ‘Beer Protests’ are an infamous period in South African history and this was a struggle of black women. Beer protests were well known in South Africa and they drew the attention of political and social historians. Beer making was done by women and represented an important source of autonomous income for them. The protests were against government policy that made the production and sale of beer illegal except in ‘beer halls’ that were newly constructed and controlled by white municipal governments. The most clearly transformative political action undertaken by women under Apartheid involved resistance to ‘pass laws’.6 Passes gave the Apartheid state pervasive and perpetual control over movement, and provided an ever-ready means by which the police or an employer could harass or punish. The resistance of these women is historically significant because their concerted protests marked the first mass action against Apartheid since the ANC (originally called the South African Native National Conference) was formed in 1912. Neither the ANC nor the African People’s Organization (APO) allowed women to be admitted to full membership. Since women were not permitted to join the organizations as members, they formed autonomous groups and mobilized on the issue. The most important lesson, Walker argues, that women drew from the anti-pass campaign was one that is best understood within notions of Black Nationalist thinking: While the resistance focused strongly on the particular evils seen to be inherent in applying these laws to women, the pass laws provided an area of common experience for both men and women that was exclusive to the African group. The suffragists had shown how indifferent they were to the problems and the organization of black women; the only possible political home black women could find at that time was in the already existing black political organizations. From the beginning, then, African women’s political behavior was shaped in terms of their community of interest with African men. (Walker, 1990: 32) The anti-pass campaigns of the later period were unique in that they developed within a national movement to challenge the entire Apartheid system (at this time the resistance movement was generally well organized as the Congress Alliance, but was restricted to passive and non-violent methods), but were eventually spearheaded by women’s organizations.7 While the women’s anti-pass campaigns were incredible, they were not conceptualized as protests for women; they were clearly part of the larger struggle by many organizations against Apartheid.

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The dominance of the race and class-based accounts of Apartheid can hardly be overstated. Gender was not ignored as much as theorized to be either subsumed within the liberation struggle or understood simply to be unimportant as a political issue until after the liberation struggle was won. The liberation heroines could advocate gender issues ultimately because they could prove that they had spent their lives privileging the nationalist and liberationist struggles. The gradual emergence of a discourse on gender was not primarily a function of the interventions of a few prominent women; rather, women on the ground were beginning to question the wisdom of a strategy that places genderspecific demands at the bottom of the hierarchy. In this section I explore the fact that ‘[p]olitical organization of women in South Africa has always been (and still is) overshadowed by what are considered to be the central, most important issues – race and economics’ (Murray and O’Regan, 1991: 37). A 1987 article noted the contribution of many women’s organizations had gone unnoticed in contrast to other groups in the mass opposition movement. Over a 75-year period, ‘the women’s question has moved through distinct phases where the issue was not being considered at all, to the contemporary period where women are beginning to articulate women’s demands as part of the national political struggle’ (Patel, 1988: 25). Other activists at the time commented that ‘[g]ender oppression has been, and continues to be, an issue of secondary or little importance in the political life of South Africa’ (Segar and White, 1987: 95). In terms of the ANC, where it had previously been ‘almost taboo to talk about women’s emancipation’ (Serote, 1991: 5) there were several resolutions and 1984 was declared by the ANC in exile to be the ‘Year of the South African Women’. In debates that year among ANC members, ‘[i]t was felt that two aspects affecting women, race and class oppression, were being dealt with while the other one of patriarchy was being overlooked’ (Manzini, 1998: 100).8 In the Mass Democratic Movement, a serious attempt was made in 1987 to develop a national women’s group but the state of emergency imposed extreme and disabling restrictions on political organizations. In 1990 the Malibongwe Conference was held by the ANC in Amsterdam on gender issues. This conference had been preceded by an in-house seminar held by and for the ANC in Lusaka (Zambia), which resulted in ANC women drawing up a list of women’s demands. The Malibongwe meeting is described as a ‘watershed’ in the history of women in South Africa and in the ANC in particular, because the women’s concerns were ‘legitimated as political issues to be addressed within the process of national liberation’ (Memo dated 20/01/90,

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summarizing the Conference and the resolutions that were passed. This and conference papers on file with the author). The purpose was to integrate women’s emancipation into the national liberation struggle but gender oppression and exploitation were explained by an analysis of Apartheid and capitalism alone. In May of 1990 the ANC leadership issued a document entitled ‘Statement on the Emancipation of Women in South Africa’ (document on file with the author). In this the ANC states that in the commitment to eradicate racism, oppression and exploitation in South Africa, it ‘cannot fail to address also the question of the emancipation of women’. After articulating its understanding of the oppression that women endure in South Africa and committing to rid itself of sexist patterns and practices, the ANC called on its Women’s League to initiate a campaign for a ‘Charter of Women’s Rights’ which will be designed to ‘elaborate and reinforce our new Constitution’ (ANC, May 1990: 4). The mobilizing effects of such a campaign were understood to be themselves part of the way to redress the lack of full participation of women in the liberation movement’s operations. The idea of a Charter was work-shopped within the ANCWL when it was officially relaunched in South Africa on 9 August, 1990. Some women began to assert that the role of women’s organization simply had to change from its primary absorption with the liberation movement if gender was to be successfully on the negotiating table in the processes governing a transition to democracy. Equally important was the necessity of challenging the use of conceptual frameworks that on the one level seemed progressive, because they acknowledged the codetermination of factors such as race, class and gender, but in the context of South Africa, served once again to ignore the gender aspect of women’s worlds. The value of developing a more gender-oriented approach was touted as politically useful because it would widen the support base for liberation movements. Shireen Hassim argued, for example, that: [w]ithin women’s organizations, analysis of patriarchy has not extended beyond the notion of triple oppression with its concomitant focus on the needs of black working class women ... Broadening the scope of politics to include these issues [control over women’s bodies, and women’s labor, sexuality and the social legitimation of violence against women] would mean that the ANCWL can begin to appeal to a much wider constituency, not merely those that suffer ‘triple oppression’. (1990: 5)

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The ANCWL committed itself to organizing a ‘Charter for Women’ and did so on the basis that the Charter would replace any existing documents that purported to identify women’s demands and that ‘the process of developing the Women’s Charter is as important as the product itself’ (Hassim, 1990: 5). In other words, there was to be no advance conception as to what women’s needs, concerns and aspirations were; the objective was to determine these in a way that empowered women to define their own conception of what ‘rights’ they sought to obtain. Moreover, the movement argued a participatory research approach was required to reach out to women in the more remote parts of the country. These women lived in extremely harsh conditions and were usually unable to be involved in political activities. After regional and local community meetings, designed to determine the level of support for such a campaign, on 25 April 1992 the WNC was formally established by a wide variety of women’s organizations. Frene Ginwala, the ANC activist who went on to become the Convener of the WNC, addressed this diversity as follows: Our common past, over these last four decades especially, is of separation; divided by race, ethnicity, language, by poverty and privilege; divisions entrenched in law and sanctified by practice. These we have shared as South Africans, men, women and children alike. But we have also been divided as women, isolating ourselves in separate struggles and because the over-arching divisions in our society have placed women in unequal power relations with each other. ... ALL this is part of our history, but though we cannot forget, we do not have to be overcome by the past. We are all the products of history, but each of us can choose whether or not to become its victims. Our past can be the reason for retaining our divisions, or can be something we move beyond as we go forward together. That is our choice. Our presence here today indicates, that despite the many things past and present that divide us, women are anxious to work together for a common future. (Non-Racial Democracy – Soon Non-Sexism – How? Speech given at the Women’s National Coalition – National Workshop, Johannesburg, 25–26 April 1992. On file with the author) This discourse of unity is not valid because ‘unity’ is the best philosophical position, quite the contrary; it is valid because it reflects a strategic understanding that the dominant justice narratives of race and class oppression served to silence women. The challenge of the WNC was to break that silence in a politically effective manner. In the

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Constitution of the WNC, s.2 states that its role is ‘to coordinate a national campaign for the development and education of women which will (1) acquire and disseminate information about women’s needs and aspirations and (2) unify women in formulating and adopting a Charter to entrench equality for women in the new Constitution’ (WNC, Constitution of the Women’s National Coalition, 1992; on file with the author). The campaign itself was pursued from November 1992 until February 1994 and identified several major concerns: inclusivity in decision-making; promotion of women’s awareness and rights, gender equality, women’s assertiveness, the Charter as an enforceable document and women’s unity. From these broader concerns, five specific and powerful issues were chosen both to mobilize women and to further explore the specificities of women’s needs and demands. These were women and (1) legal status; (2) land resources; (3) violence; (4) health; and (5) work. As a result of these extraordinarily wide-ranging initiatives, both a Charter and political movement were solidified. As stated by the WNC, the Coalition’s Charter Campaign stimulated public awareness about and promoted considerable debate on women’s issues. It gave women the opportunity to act together to begin to change their lives. The Campaign unified women, both within and outside established organizational structures, on issues that affected their lives. It constituted a unified women’s movement where none had existed before. The Charter that was the product of this unity is more than an important political document. It is a symbol that speaks about women’s empowerment and their desire to take an active role in transforming their lives (WNC, 1994: 29, on file with the author). A draft Women’s Charter was adopted as ‘The Women’s Charter for Effective Equality’ at the National Convention convened by the WNC on 25–27 February 1994. It did not just represent the demands – for reforms in all sectors from law to the economy – but was a continuation of the participatory process the WNC encouraged and validated. The Charter can be summarized as follows. Apart from demanding particular changes in laws and policies, and the satisfaction of basic needs such as water and food through a range of mechanisms, the Charter places overwhelming emphasis on the need for women simply to be represented in every area of decision-making in their communities and in the nationstate as a whole. The WNC then can be seen as a success. It was a fully representative body that managed to reach out to a wide cross-section of South African society. It sustained its commitment to democratic, grass roots

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determination of women’s needs and rights, and it functioned as a political mechanism for women to ensure that some of those issues were dealt with in accordance with women’s articulated demands. As a result, women intervened in the constitutional debates effectively and secured many gains, in part by invoking the political and normative status of the WNC. Part of the reason why the WNC was effective was that while it stressed and proceeded on the assumption of ‘unity’, there were no pretences that there was a ‘sisterhood’ among the women of South Africa. Apartheid makes that an untenable myth. Thus the women involved did not need to be educated about racial and class diversity. They were able to operate from the valid belief that all women were well aware of the differences in the lives of rural women in the Western Cape and the affluent urban whites in Johannesburg. Another factor of import was women’s long history of varied political activity. This gave them a basis on which to survive internecine conflicts (including race and class ones) and to accommodate the power politics that did emerge as the WNC became more influential and thus offered a base for individuals to improve their own political status. There were many organizations involved, and the WNC did not attempt to control the work of these groups but rather offered support, direction and a common aim. Unity was not an oppressive concept but a facilitative one. The Coalition was fragile, but not politically naive. Finally, instead of trying to fit women’s needs into a standard legal claim, the appeal of the participatory method was viewed as more important than getting a perfect legal document attached to the Constitution. In other words, participation was legitimated as an independent value that overshadowed the significance of achieving consensus on even controversial issues. Process was not just important to the end result, it rather became recognized as a normative claim in and of itself. Indeed, the right to participate in decisionmaking affecting their lives was translated into one of the most significant rights claimed by women. Apartheid destroyed the lives of people, and it did so overwhelmingly on the basis of their race and their class. Apartheid deployed narratives of difference based on race, and it was opposed primarily by a narrative of justice that argued against the recourse to racial categories at all. Apartheid constantly denied its economic dimension, while the opposition movements constantly stressed the exploitation of the poor and working classes. Gender and ‘women’ were chosen concepts; advocates of Western feminism did not force them on the women’s movement. Moreover, the use of ‘women’ as both a mobilizing and

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conceptual framework was completely intelligible from the perspective of politics in South Africa. It was never the case that the women involved in politics in South Africa did not appreciate the intersection of race, class and sex. But the dominance of race and class narratives exhausted all the space for justice and the invocation of the concept of ‘triple-oppression’ was of little value unless gender first achieved some political content. The emergence of the WNC reflects both a decision to develop a concept of gender-specificity, and the political unity of organizing around the notion of ‘women’. But most significantly for me, it reflects the need to locate these developments squarely within their precise historical context before any judgement about their philosophical value is made. Organizing around gender, with a unifying call to women, was not merely strategically correct for women in South Africa; it was the only course of action that would ensure representivity in the women’s movement. The emergence of the race and class critiques of the women’s movement in Canada successfully contested exclusionary practices and accounts of feminism. In Canada it was, and remains, a progressive intervention that aims to secure democratization in the political movements of women and in the theories of feminism they employ in responding to the conditions of their lives. Achieving it required a deconstruction of the concept of ‘women’. But in South Africa a narrative in which race, class and gender were equivalent would have failed to disrupt the power relationships that were impairing the ability of women in South Africa to become actors in a participatory democracy. The decision to create a distinct women’s movement in the early 1990s, to press for constitutional rights and other forms of response to deprivation of needs, cannot be judged by reference to whether it would make sense to do that in Canada or the United States or anywhere else at the same period of time. The continuing insistence in Canada on the theoretical and strategic coherence of women’s rights in the early 1990s had very different effects (overwhelmingly negative) than the same insistence in South Africa at the same period of time (overwhelmingly positive). You cannot understand women’s rights discourses without situating them historically, and certainly it would be unwise to judge them without assessing their political purpose and effect. Theories of rights alone cannot provide us with the information needed to assess whether particular claims operate in manner that increases access by people to challenge forms of power that undermine democratic will-formation by a political community. It is necessary to consider what works to secure participation in the creation of constitutional discourse itself.

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Notes 1. The author expresses appreciation for the assistance of her student, Elaine Craig, in preparing this chapter for publication. 2. There were, and are, other criticisms – heterosexism and ableism figured as well. In this paper I refer only to race and class, as these were concepts of particular lucidity in South Africa at the same time. 3. I cannot fully document these assertions in this paper. I do fully document the history of the discourse of race and class in the Canadian women’s movement over a time period of 1970–90 as reflected in a variety of locations: institutional feminism (the National Action Committee and the Prince Edward Island Advisory Council on the Status of Women); grassroots feminism (20 years of the publication of Kinesis in British Columbia); academic feminist writing throughout Canada; and finally legal feminism in the 1990s in which the constitutional issues are more directly addressed, in my doctoral thesis. See: Murphy, 1998. 4. I draw on J. M. Vickers et al. (1993) and my own review of available NAC resolutions and documents over the period of 1970–90. For LEAF, I draw on my own reading of the facts submitted in Supreme Court of Canada litigation over the years on a range of cases. See also: LEAF, 1996; Razack, 1991. 5. Excellent treatments on the history of women’s political activity in South Africa include: Walker, 1982, 1990; Beall et al., 1989; Bozolli, 1991; Murray and O’Regan, 1991; Cock, 1993; Hassim, 1993. 6. The historians Julia Wells (1993) and Cheryl Walker (1990) both examine the pass law issue and provide excellent summaries of the history on which I draw in this section. They come to different accounts of the implications for feminism, however. In the discussion that follows I draw mostly on Walker’s account of the anti-pass activity. 7. The ANC Women’s League was formed, a Women’s Charter was formulated, and the Federation of South African Women (FSAW) was launched in the 1950s. FSAW was the more significant actor in this period. It was explicitly non-racial in its organization. It was formed for the purpose of uniting women in ‘common action for the removal of all political, legal, economic and social disabilities’. It generated two key documents: a ‘Women’s Charter’ (1955) and a list of ‘What Women Demand’ (1956). The documents are overwhelmingly directed at a critique of the Apartheid regime, especially in terms of its economic and social effects. (On file with the author.) 8. Within the various working class and union activities, the gender issue was also being raised. Space does not permit me to expand on these developments here. I do so in Murphy (1998) and briefly in a forthcoming essay in Newman (2003). In addition, a more in-depth analysis is provided in Murphy (2003).

2 Balancing Strategies: Aboriginal Women and Constitutional Rights in Canada1 Joyce Green

Constitutional change in Canada has, for most of the country’s history, been a cautious process driven by white male elites within colonial and federal–provincial relationships, in a context driven by capitalist rather than democratic interests. Occasionally, women qua women have used law and politics to secure a measure of equitable justice, as in the 1929 Judicial Committee of the Privy Council (then the highest appeal court) Persons decision2 that held that Canadian women were persons for the purpose of Senate appointments. This decision did not, however, translate then and since into an equitable or even significant number of female appointments to the Senate, itself an unrepresentative, unaccountable and highly problematic vestige of a more anti-democratic historical period. Legal action has also produced decisions like the infamous 1974 Attorney-General v. Lavell and Isaac v. Bedard decisions, in which the Supreme Court of Canada confirmed the racist, sexist status quo of the pre-1985 Indian Act as de jure equality, as all Indian women were equally subject to the offensive provisions. However, in 1982 the patriation of the then-British North America Act of 1867 (now re-named Constitution Act 1867), together with constitutional revisions and the adoption of the Charter of Rights and Freedoms, signalled a change in both constitutional vision and in federal and democratic engagement in constitutional politics in Canada. Constitutional and federal politics would be contested by citizens, mostly through social movements. Citizens would henceforth have rights guarantees under the Charter, including protection from sex and race discrimination, and recognition of Aboriginal and treaty rights. This democratic challenge to the Canadian tradition of constitutional politics as a preserve for the administrative engagement of federal and provincial governments is still being worked out. 36

Balancing Strategies 37

The reality of citizens engaging elected politicians and governments over constitutional visions and practices is an emerging phenomenon in Canada. Democracy has developed over the span of the country’s existence, from a class, sex and race limited franchise, to the more thorough engagement of diverse citizens in matters far from the political intentions of the Founding Fathers. White women gained the federal vote in 1918; Canadians of Asian background were disenfranchised until after the Second World War; status Indian men and women only got the right to vote in 1960. The franchise, however, has not translated into equitable representation in political and economic institutions, nor has it consistently produced policy favourable to marginalized groups of Canadians. Many activists prefer social movements to political parties as vehicles for democratic engagement. Of the citizens’ groups that emerged in the 1970s as powerful political and constitutional actors, none were more prominent and compelling than mainstream women’s and Aboriginal women’s organizations; and Aboriginal3 organizations. Aboriginal organizations forced consideration of the constitutional implications of pre-existing, unsurrendered political and land rights onto the Canadian constitutional table, despite the hostility of most provincial premiers and the federal government. Consequently, the 1982 patriation of the Canadian Constitution, accompanied by the Charter of Rights and Freedoms and the Constitution Act 1982, confirmed recognition of the undefined Aboriginal and treaty rights of Indian, Inuit and Metis peoples.4 During subsequent national constitutional debates, including the failed Meech Lake Accord of 1985 and the failed Charlottetown Accord of 1992, women’s groups such as the National Action Committee on the Status of Women, the Féderation des Fémmes du Québec, the Native Women’s Association of Canada; and the malestream Aboriginal organizations, all contributed to Canadians’ understanding of constitutional change and democracy. Aboriginal disapproval, voiced by the strategically-placed Aboriginal Manitoba member of the legislative assembly Elijah Harper, was central to denying the passage of the Meech Lake Accord. Again, in 1992, settler women, Aboriginal women, and malestream Aboriginal organizations injected questions of representation, citizenship, inclusion, identity, democracy and colonialism into the constitutional debate. This is remarkable because women of all ethnicities and Aboriginal people of both genders constitute historically marginalized people in Canada. While changes to the Canadian Constitution have not erased the consequences of state-sponsored sex and race discrimination and colonialism, constitutional changes have gone some distance to identifying these matters and creating legally enforceable rights.

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Most significantly, the constitutional enumeration of protected rights has created space for meaningful contestation of certain kinds of oppression. While this is laudable, it must also be remembered that incremental successes occasionally obtained by using a legal and political system designed by and for race, class and male privilege, will not secure profound institutional and cultural changes any time soon. However, social movement activism continues to till the fields of social justice, creating the conditions for solidarities, political activism and public education. All political communities are acts of imagination. Project Canada is the realization of the colonial imagination, now infused with liberal democratic settler populations’ visions. Project Canada is not yet, however, a realization of indigenous imagination. This reality sustains the colonial and subsequently settler assumptions, values, cultures and practices in the apparently neutral apparatus of the state. Because of this, all women, but especially indigenous women, must use the state apparatus and liberal democratic practices cautiously, while remaining aware of their inherent limitations and preferences. Prior to 1982, the bulk of constitutional litigation involved courts arbitrating jurisdictional disputes concerning governments. Since 1982, the courts are constitutionally directed to arbitrate tensions between government action and citizen rights and freedoms, and to hold government actions accountable to constitutional human rights obligations. Since 1982, Aboriginal peoples exist in the constitutional declaration of the vision of Project Canada, in an uneasy and undefined relationship with the colonizing state. The judiciary has an important role in defining the parameters of that relationship. And post-1982, citizens are foregrounded as necessary and legitimating agents of constitutional life. Subsequent efforts to change the Constitution have been characterized by the will of many Canadians to be involved. Indeed, the legitimacy of mega-constitutional politics may now be dependent on the inclusive nature of consultative processes leading to new agreements; a democratic imprimatur is now implicitly necessary, while prior to 1982 it was assumed to be conferred by the participation of First Ministers in the elite fora of executive federalism. In all of these transformations, activist Aboriginal women have been and continue to be agents for democratic, inclusive justice for all Aboriginal people. On 17 April 2002, the patriated Constitution, its new 1982 components, and the Charter turned twenty. Youthful in constitutional terms, it is nevertheless time to consider how the record is shaping up. Attention has been paid primarily to the Charter articulation of the rights and freedoms of citizens, and to the 1982 constitutional

Balancing Strategies 39

amendment acknowledging Aboriginal and treaty rights. These are indeed important historical moments, with significant consequences. They are, however, only steps on the journey toward ideals of justice. As we commemorate the indubitably important constitutional elements and their social and legal consequences, it is also important to remember that the ideal of justice has not been attained, and will not be attained with the constitutional tools at our disposal. Justice requires not only transparent, accountable, and representative democratic political processes, but protection and implementation of minority rights relative to majority interests. In particular, in Canada, justice requires a gendered decolonization process that re-inscribes indigenous peoples, institutions, and processes into Project Canada (Green, 2003).

Confronting colonial power relations As the aphorism says, where you stand depends on where you sit: location matters. All Canadian citizens have not benefited equally from the Constitution and from the Canadian political regime. For some, emancipatory objectives are frustrated by the ideological assumptions embedded in law and concretized in state institutions. For others, there is a chronic tension between the laudable protections guaranteed by the Constitution, and the limitations of law and policy for, especially, Aboriginal women. Finally, while freedom and equality are celebrated in the Constitution, the barriers that hinder their attainment are not taken account of, and those are primarily economic, including the economic practices of colonialism. This is consistent with western liberal democratic theory and ideology, and compromises legal and political gains for all. Colonialism is both an historic and a continuing wrong. A term that encompasses economic and political practices, it refers to the appropriation of the sovereignty and resources of a nation or nations, to the economic and political benefit of the colonizer. Additionally, the practices by which colonialism is normalized and legitimated include racism, which is encoded in law, policy, education and in the political and popular culture of the colonizer. Thus, the subordination and immiseration of the colonized is understood as the inevitable consequence of their deficient civilization, lack of technological development and innate moral and intellectual incapacity (Said, 1979, 1994; Blaut, 1993; Green, 1995; Anaya, 1996: 20). Aboriginal peoples in Canada have endured colonialism in its different forms during the evolution of Project Canada. While there is solidarity among Aboriginal peoples because of this, men and women

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have not had identical experiences. The reality of gender role distinction and especially, of the imposition of European-derivative and Christianityconditioned patriarchy, has constructed Aboriginal women’s specific experiences with colonialism. For Aboriginal women, then, struggling against sexism, racism and colonialism is complicated by the intersecting allegiances with other Aboriginal men and by the reality that settler women and men are complicit in and benefit from the colonial policies of their government. Sexism within Aboriginal communities is often minimized as only a consequence of colonialism, while Aboriginal women’s resistance is often done within the context of male-dominated politics. Similarly, when Aboriginal women adopt feminist analyses, they are often criticized for being culturally inappropriate and politically maladept (Green, 1997; LaRocque, 1999; Blaney, 2002). All of this makes political solidarity challenging, and constitutional politics fraught with difficulties. Liberation from colonialism, then, is not simply tied to a formula for equality with the colonizer, on terms dictated by the ideology of the colonizer. Liberation includes the possibility of traditional or contemporary institutions and practices chosen by the colonized. It includes reparations for the damage wreaked by colonial practices, which have not coincidentally enriched the complacent and historically oblivious colonial or settler populations. Truly liberatory constitutional and legal strategies must be able to advance these political and cultural objectives, and not simply reduce Aboriginal and women’s claims to simple equality with the not-so-neutral white male norm in the colonial state. Both human rights and decolonization are entitlements of Aboriginal women. Instructionally, at the Beijing Fourth World Conference on Women in 1995, in the Beijing Declaration of Indigenous Women, indigenous women demanded recognition of both their Aboriginal rights and their equality rights, unfettered by tradition.5 We, the women of the original peoples of the world have struggled actively to defend our rights to self-determination and to our territories which have been invaded and colonized by powerful nations and interests. ...[We demand] (36) That Indigenous customary laws and justice systems which are supportive of women victims of violence be recognized and reinforced. That Indigenous laws, customs, and traditions which are discriminatory to women be eradicated. (37) That all internally displaced Indigenous peoples be allowed to return to their own communities and the necessary rehabilitation and support services be provided to them.

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Aboriginal women have suffered from colonialism in general and also in gender-specific ways, including the loss of culture, traditional territories, identity and status, children and culturally respected gender roles (Sayers and MacDonald, 2001: 11). Most Aboriginal women’s organizations identify colonialism as the cause of their social, economic and political inequality, and many suggest that the solution lies in reclaiming Aboriginal cultural traditions and political autonomy. Colonialism also inflicted European patriarchy and sexism on Aboriginal women. It fused with racism, creating a social scourge that affects Aboriginal women today. The most notorious case of legislated sex discrimination involves the membership provisions of the pre-1985 Indian Act, which define Indian status. These provisions faithfully reflected colonial assumptions that women took on the identity and status of their most proximate patriarch – father or husband. Therefore, Indian women who married non-status men were stripped of their status; non-status or nonAboriginal women who married status Indian men gained status. These sex discriminatory provisions were amended in 1985, but were replaced with provisions that arguably continue sex discrimination and which permit sex and race discriminatory band membership codes to determine band membership (Green, 1985, 1997). While there is no consensus on whether sexism in Aboriginal communities is an entirely colonial creation, or whether it preceded colonialism in some communities, sex discrimination is a contemporary reality for many Aboriginal women. Some Aboriginal women suggest that Aboriginal political elites and governments must also be accountable for sexism, and that Aboriginal governments must guarantee women’s equality rights and political participation along with women’s Aboriginal rights (LaRocque, 1997; Sayers and MacDonald, 2001). Arguably, political institutions and practices emerging from decolonization must conform to international human rights law (Green, 2003) and Aboriginal women must benefit both from decolonization and from human rights.

Engaging the Constitution The process of political machinations leading up to patriation of the British North America Act in 1982 and the creation of the Charter resulted in politically aware constituencies of citizens who had not previously been taken account of in the practice of executive federalism (the highlevel political and bureaucratic interactions of both orders of government on matters of mutual concern), nor of constitutional governance

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(Cairns, 1988, 1995; Russell, 1993: 115, 134; Trimble, 1998). While white and Aboriginal women had certainly been politically active through selfconscious organizations prior to 1982 (Sawer and Vickers, 2001: 12–28), it is in the constitutional process that then emerged, and subsequently, that both have come to be perceived, and to perceive themselves, as legitimate collective political actors in federal and constitutional politics. Indeed, it is certain that without the collective activism of women and of Aboriginal peoples, neither would be explicitly protected in the Constitution. The Charter’s section 28 explicitly guarantees constitutional protection to women and men: ‘Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.’ The First Ministers were uncomfortable with sex equality guarantees (Kome, 1983; Sawer and Vickers, 2001: 24–8) and with an acknowledgement of Aboriginal and treaty rights, and had to be forced by political and legal pressure to acquiesce to the very limited relevant constitutional sections on these categories. A constitutional amendment in 1983 extended Aboriginal and treaty rights protection to modern land-claims settlements, and required a First Ministers Conference, including Aboriginal representatives, prior to any future constitutional amendment directly affecting Aboriginal rights (Russell, 1993: 130–1). Most significantly in the 1982 Constitution, and only because of organized political pressure by Aboriginal peoples, is the recognition by the colonial state of those whom it has colonized. This must be considered in light of the history of colonial and settler relations in Canada with indigenous peoples.6 Prior to 1982, the single reference in the British North America Act was section 91(24), which gave to the federal government sole jurisdiction over the subject matter of ‘Indians, and Lands reserved for the Indians’. It is this section that gave the federal government jurisdiction to pass and enforce the various incarnations of the Indian Act, a fundamentally racist piece of legislation that injured all ‘Indians’ but not in a gender-neutral fashion. By defining ‘Indian’ consistently with colonial patriarchal social assumptions, and then bureaucratizing and enforcing this definition, the federal government stripped generations of women of their status as Indians under the Indian Act, simultaneously depriving them of the right to live in their communities, raise their children in their cultures, and participate in the social, economic and political life of their communities. This violation of fundamental human rights guaranteed in the International Covenant on Civil and Political Rights was condemned by the United Nations Human Rights Commission (Green, 1985).7

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The loss of the human capital of these women and their children to Indian communities is inestimable; the loss to the individuals who were exited from these communities is serious and more quantifiable (Jamieson, 1978; Green, 1985, 1993, 1997; Silman, 1987; Weaver, 1993). By defining ‘Indian’, the federal government identified those Aboriginal people who would be acknowledged for the purposes of the Indian Act; however, legislatively unrecognized Aboriginal peoples were ignored as subjects of targeted public policy. Simultaneously, they were subjected to the racism endemic in colonial societies (for analyses of this phenomenon see Memmi, 1965; Said, 1979; 1994; Blaut, 1993). The result of the relevant Charter and Constitution sections was that courts could be asked to consider cases where women’s and Aboriginal rights were alleged to be violated. The government could be held accountable by citizens, through the courts, for infringements of rights named in the Constitution (and more recently, for equality rights that are analogous to the protected section 15 subjects). Obviously, however, the litigation remedy is most available to those with education, wealth, information, time and a sense of political efficacy. And, Section 15 equality rights8 were not in force until 1985, three years after the rest of the Charter was operative, a tactic intended to permit governments to bring discriminatory legislation in line with the Charter’s equality guarantees. The 1982 Constitution, then, promised not just the possibility of confronting colonialism, but the necessity of confronting sexism; and of doing so not only in relation to colonial institutions, but also in relation to Aboriginal ones. These confrontations were to occur in a political environment made more porous to citizen activism by the great degree of citizen interest in and activism around constitutional change. Quebec, alone of the ten provinces, had not accepted the 1982 patriation and Charter of Rights and Freedoms. The 1985 Meech Lake Accord, designed by then-Prime Minister Mulroney to bring Quebec into the Constitution ‘with honour and enthusiasm’, was rejected by a majority of Canadians outside of Quebec partly because of its process – it was the product of executive federalism, and was seen to be antidemocratic and secretive – and partly because of opposition to what was seen to be ‘special status’ for Quebec (see Cairns, 1988 for a discussion of this process). The Accord was also opposed by Aboriginal peoples because of anger that the First Ministers were able to cobble together a unanimous agreement for constitutional change to accommodate Quebec, while the majority of those same First Ministers had, at three constitutional conferences held after 1982, refused to come to a similar

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consensus to accommodate the definition of Aboriginal ‘self-government’. Chastened by the rejection of the Meech Lake Accord but still committed to repairing the constitutional rift with Quebec, Prime Minister Mulroney initiated the discussions that would culminate in the Charlottetown Accord. These discussions were far more inclusive and representative than any constitutional process had ever been in Canada, and the resulting package was taken to the electorate in the 1992 referendum. It was narrowly rejected, because of its complexity, and because the public was by then thoroughly disenchanted with and mistrustful of its government and with constitutional processes. Consequently, legitimacy of new political, constitutional and administrative arrangements with Aboriginal elites and communities was also dependent on democratic consensus, and that meant involving Aboriginal women and taking account of their interests in meaningful ways. This is evident when, for example, Judith Sayers and Kelly MacDonald (2001) suggest that Aboriginal gender analysis is essential in assessing policy that falls under the rubric of ‘governance’. Male elites did not automatically include gender analysis and women activists in the next constitutional initiatives, the 1985 Meech Lake and 1992 Charlottetown Accords, and have yet to demonstrate much willingness to incorporate gendered analysis into political and policy debates. The democratic impetus that emerged in the patriation process of the 1982 Constitution impelled self-conscious collective actors such as the National Action Committee on the Status of Women and the Native Women’s Association of Canada (NWAC) to insist, with differing degrees of success, on voice in subsequent constitutional negotiation processes (Green, 1993; Dobrowolsky, 1998). Importantly, it also impelled women’s organizations to educate each other on different perspectives, political agendas and the tentative and conditional nature of women’s solidarity (Kome, 1983; Dobrowolsky, 1998: 737–8). This is a continuing challenge, and one that destabilizes assumptions about a unitary women’s movement, agenda, or identity. The differences in the agendas of the Aboriginal participants, including status Indians, Metis, nonstatus Indians, Inuit, and women-focussed Aboriginal organizations such as the Native Women’s Association of Canada, the National Metis Women of Canada and Pauktuutit, the Inuit women’s organization, forced Aboriginal people, and more importantly settler Canadians, to consider how to constitutionally accommodate this diversity. Aboriginal women have been visible and active in constitutional negotiations, and have dramatically increased the public space for

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Aboriginal women’s voices and participation. Unsurprisingly, Aboriginal women don’t have a unified political analysis, either on decolonization strategies or on feminism. NWAC, long considered the national voice of Aboriginal women, has recently found itself sidelined by the federal government from controversial discussions on First Nations governance. The federal government began funding a new organization, the National Aboriginal Women’s Association or NAWA, apparently to replace NWAC in its First Nations Governance Initiative consultations (Boisard, 2002). The federal government has historically used the power of funding and recognition to cultivate certain groups and leaders, and to marginalize others, and NWAC could be forgiven for thinking this was happening in the above instance. Some analysts (Sayers and MacDonald, 2001: 42) have called on the federal government to fund Aboriginal women’s organizations as part of a capacity building process in the Aboriginal community, but this did not contemplate a politically punitive role for government in the funding process. Diversity, factored by class, gender and other social markers, also places the fact of intersectional identity before political actors and theorists: we are all, always, all of our identities simultaneously, and that makes identity claims conditional and contextual in ways that we are still exploring. For Aboriginal women, then, identification as only woman is not possible in the context of a racist colonial society, where white women unconsciously enjoy race privileges while they seek gender solidarity from those injured by that privilege.9 Many Aboriginal women activists ‘interacted with the constitutional order through a paradigm of nationalism and highlighted continuing colonialism’ (Sawer and Vickers, 2001: 25). For white women, the identification as only woman is possible only by being oblivious to the race privilege of their location in a racist settler society. Women’s solidarity across organizations, ethnicities and analyses created a powerful lobby. Yet, while diversity characterized both Aboriginal and non-Aboriginal women, male political elites were unable and unwilling to engage women’s organizations speaking for diverse constituencies.

Charter litigation for Aboriginal women While the Charter has produced some important litigation on women’s rights generally, there is no new precedent on Aboriginal women’s rights specifically. New precedent on First Nations rights has been focussed on self-government, restorative justice, fishing, and hunting, all pursued under section 35, not under the Charter. As noted earlier, these cases

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strengthen Aboriginal women’s rights as Aboriginals, though they are not gender-specific nor gendered in their application. Some cases may potentially produce significant benefits for Indian women who have regained their status since 1985; for example, in Corbiere v. Canada [1999]10 Indian Act ‘provisions barring off-reserve band members from voting in band elections were found to be unconstitutional’ (Cornet, 2001: 123). This will affect many off-reserve women, who will now be able to vote in reserve elections. (However, reserve residency remains a requirement for running for office; many women who have regained status have been unable to acquire reserve residency, and it is likely that the residency provision also will be challenged as unconstitutional in the future.) While arguably women also benefit from an expansion of and concretization of these rights, there is little new law pertaining to Aboriginal women’s rights or to a requirement for gendered policy analysis in the development of Aboriginal and treaty rights, or equality rights and social processes.11 The following examples provide an indication of the ways in which Aboriginal women’s rights have been sustained or thwarted by politics and Charter law. Immediately prior to the conclusion of the Charlottetown Accord, the NWAC attempted to use the courts to declare that Aboriginal women had a right of representation by Aboriginal women’s organizations in constitutional negotiations affecting their rights. NWAC criticized the consultative processes leading up to the ill-fated Charlottetown Accord because they did not provide space for the participation of Aboriginal women, corporately constituted in organizations, while they did provide space for the malestream Aboriginal organizations. Central to NWAC’s position was the issue of sex discrimination and lack of gendered analysis within Aboriginal communities, in political elites, and in constitutional proposals; and the need to protect Aboriginal women’s human rights against real or potential abuse by Aboriginal and settler governments. Along with other women, NWAC took the view that representation of women’s interests, especially when they were oppositional to dominant interests, required the voice of the affected constituency. While some (Russell, 1993: 194–5) have argued that women were already represented by malestream organizations, NWAC took its stand after a series of protracted and unsuccessful negotiations with especially the Assembly of First Nations (AFN) on inclusion on the constitutional agenda of a range of issues of particular interest to NWAC. In short, the AFN and others refused to represent NWAC on terms acceptable to NWAC and most importantly, would not agree to Charter

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application, and hence equality rights guarantees, to future aboriginal governments. Some Aboriginal women, especially NWAC, wanted the protection of the Charter, including having it apply to Indian governments. The Assembly of First Nations opposed Charter application to Indian governments on the argument that the Charter was a colonial imposition that could violate cultural practices (Green, 1993; Cairns, 2000). NWAC lost at trial, won on appeal and then lost again, ultimately, in the Supreme Court of Canada.12 Following the 1985 C-31 revisions to the Indian Act, a number of Indian bands drafted membership codes, pursuant to the revised Indian Act. Some of these codes are racist and sexist in their effect, and some seem to resurrect the discriminatory formula of the pre-1985 Indian Act, now presented as ‘custom’. Yet, the 1982 Constitution prohibits discrimination and guarantees aboriginal and treaty rights equally to men and women. In order to prevent exited women and their children from being reinstated to their bands of origin, several bands initiated a legal action arguing that Aboriginal tradition legitimated the exclusion of women where they married anyone other than a band member, and that this tradition was itself protected by the Constitution’s recognition of aboriginal and treaty rights. The case, Sawridge v. The Queen, lost at the Federal Court (Appeal); however, the comments of the judge were considered to be sufficiently inflammatory to create a ‘reasonable apprehension of bias’ and so the case was bounced back through the court hierarchy to trial, and is now on its way back through the system (Green, 1997).13 This case may make an important precedent for all women, if it settles the question of whether ‘tradition’ can trump women’s human rights to equality. In McIvor v. The Registrar, Indian and Northern Affairs Canada and the Attorney General of Canada,14 Sharon McIvor and her children are challenging discrimination under the registration provisions of the 1985 Indian Act, R.S.C. 1985, c. 1-5. The plaintiffs’ claim is that the registration provisions contained in ss. 6(1), (2) of the 1985 Act discriminate on the ground of sex, contrary to s. 15 of the Canadian Charter of Rights and Freedoms, in that the two tiered system of entitlement under s. 6 provides preferential entitlement to registration through the male line of descent, and through marriage to a male Indian. In this litigation Sharon McIvor and her children seek to establish their entitlement to registration as status Indians under s. 6(1)(a) of the 1985 Act, an entitlement which they would have were it not for the different treatment of men and women in previous Indian Acts which has been incorporated into the registration hierarchy under s. 6 of the 1985 Act (Brodsky, personal communication, 2002).

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These instances show that the constitutional guarantees may require successful litigation to secure their implementation. Law, political culture and bureaucratic practices are still being reshaped by constitutional changes, and much of that reshaping is driven by litigation. However, not all decisions are favourable, so legal strategies are uncertain; and even favourable decisions are occasionally resisted by those charged with changing social, bureaucratic and political practices. Furthermore, class factors mean that the likely litigants, marginalized Aboriginal women, are least likely to have the money, confidence and expertise to pursue legal remedies. Finally, while the Charter has provided some important support for equality and anti-discrimination claims, it has been an inadequate tool for obtaining social and economic relief from poverty, a condition that, for Aboriginal people, is a consequence of colonialism and is systemic in its perpetuation. The Charter’s focus on rights and freedoms is not matched by attention to equality of opportunities, nor to social and economic minimums for basic human needs. However, if the political will to address this can be marshalled, international law provides some direction on how that lacuna could be addressed domestically. International law is increasingly reflective of normative claims to justice, with the United Nations Charter affirming the centrality of states and the promotion of ‘equal rights and self-determination of peoples’, ‘respect for human rights and for fundamental freedoms ...’, and ‘conditions of economic and social progress and development’ (Anaya, 1996: 40–2). The Charter, of course, is drawn extensively from international law to which Canada is also committed. Yet it is devoted to only part of this corpus, particularly the individual equality rights found in the Universal Declaration of Human Rights, and the Covenant on Civil and Political Rights. The guarantees in the Covenant on Economic, Social and Cultural Rights have been largely neglected. So it is in Canada, where the prince and the pauper are still equally entitled to sleep under the bridge. Aboriginal peoples are disproportionately poor, and suffer from poor health and low education relative to Canada’s first world norms (see Statistics Canada data sets for the most recent indices of this disparity). Sarah Lugtig and Debra Parkes (2002: 14) argue that ‘the Charter will not be a success until it is interpreted and applied in a way that meaningfully addresses the growing social and economic inequalities in Canada’. Similarly, Trimble (personal communication, 2002; 1991) argues: ‘The impact of gender equality guarantees in the Charter pale beside the federal government’s retrenchment and offloading of responsibility to the provinces for the welfare state, the ever-increasing

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democratic deficit exacerbated by the lack of institutional reform, and the impact of neo-liberal and neo-conservative policies on citizens.’ Constitutional rights, surely, should include basic human needs.

Conclusion Aboriginal women have obtained a theoretical benefit, along with white and other women, from the equality guarantees in the Charter and from the emerging convention that constitutional change requires democratic participation of even marginalized groups for its democratic legitimacy. Yet, this has not translated into equitable treatment or representation as Aboriginal women in either Aboriginal or settler political institutions or policies. For Aboriginal women, many of whom suffer from the kinds of oppression that the Constitution is designed to address, there remains the paramount problem of colonialism, and the difficulty of entertaining the prospect of liberation via the colonial state and its imposed Constitution. Even when the Constitution serves as an instrument to contest particular cases of oppression, some of which are generated within Aboriginal communities, many Aboriginal women are often deeply uncomfortable with using the colonial Constitution and legal system to defend their rights as Aboriginal women and most acutely uncomfortable when this involves using colonial institutions to challenge Aboriginal men, organizations and governments. Activist Aboriginal women, however, have not only focussed on constitutional and legal strategies for combating sex discrimination and colonial immiseration. Aboriginal women’s groups have emerged at especially the local level, sometimes around a particular issue, and sometimes around clusters of issues or objectives. The following examples are illustrative. The Aboriginal Women’s Action Network (AWAN) of Vancouver is very active in an urban setting, combating poverty, violence and discrimination, especially on the downtown Eastside, the most impoverished urban area in Canada. AWAN works in solidarity with other social movements, and performs a public educative and advocacy function as well as developing its ‘members’ political and related skills. The Liard Aboriginal Women’s Society, of Liard, Yukon, is focussed especially on ensuring women’s participation in the constitutional development of the Kaska Dene. And in Nunavut, where Inuit form a majority, Qulliit, the status of women branch of the Nunavut government, includes Inuit and non-Inuit women in its mandate. Clearly, many Aboriginal women are important political and social

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forces in Canada, and will only continue to broaden and deepen our collective understanding of Aboriginal rights and governance, Canadian decolonization and democracy.

Notes 1. This chapter has benefited from the author’s discussions with Gwen Brodsky, plaintiffs’ counsel in McIvor and adjunct professor, University of British Columbia; and Kelly A. MacDonald, private scholar, Vancouver. However they cannot be held responsible for the author’s opinion nor for any errors in this chapter. 2. Henrietta Muir Edwards and Others v. Attorney General for Canada and Others, J.C. 129, in Richard A. Olmsted, ed., Decisions of the Judicial Committee of the Privy Council, Vol. 2. Ottawa: Queen’s Printer, 1954. 3. The term ‘Aboriginal’ refers to indigenous peoples, including Indians, Inuit, and Metis. Section 35 of the Constitution Act 1982 acknowledges this. The term ‘Indian’ refers to those Aboriginal peoples who are recognized under the Indian Act, and also include non-status Indians. ‘Status’ refers to those Indians who are recognized under the Indian Act; they may be treaty or non-treaty. ‘Metis’ is used to refer to persons of both settler and indigenous ancestry, though some Metis communities and the Metis National Council prefer a definition based on historical connection with the early Red River Community, and with association with Metis communities and culture(s). The Inuit are distinct from Indian and Metis peoples and historically are from the circumpolar arctic. ‘Indigenous’, the preferred international term, refers to people who are descended from communities which preceded settlement by colonial populations; they are connected to particular lands by culture, economics and history. In this chapter I use the terms Aboriginal and indigenous interchangeably. 4. Section 35 of the Constitution Act 1982 reads: (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Metis peoples of Canada. (3) For greater certainty, in subsection (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. Section 35 must be read together with section 25 of the Charter of Rights and Freedoms: 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada ... 5. http://www.ipcb.org/resolutions/htmls/dec_beijing.html.

Balancing Strategies 51 6. The term ‘settler’ refers to those descended from the colonial population, together with contemporary immigrant Canadians. For discussions of this relationship, see, in no particular order, Manual and Posluns, 1974; Cardinal, 1977; Jamieson, 1978; Silman, 1987; Miller, 1989; Green, 1995. 7. Re Sandra Lovelace, United Nations Human Rights Commission 6-50,M 21551 CANA. The case was brought against Canada by Sandra Lovelace, a Maliseet Indian woman deprived of status by the discriminatory membership section of the pre-1985 Indian Act. The decision held that Lovelace was deprived of her right to live in her cultural, religious and ethnic context in her community, contrary to section 27 of the Convention on Civil and Political Rights. 8. Section 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 9. For a useful discussion of white privilege and the politics of inclusion, see Olson (2001). 10. [1999] 2 Supreme Court Reports, 203. 11. I am indebted to Kelly MacDonald, L.L.M., for her discussion of these matters. Personal communication, 16 September 2002. 12. Native Women’s Association of Canada v. Canada [1994] 3 S.C.R. 627 (S.C.C.), reversing (1992), 95 D.L.R. (4th) 106 (F.C.A.). Citation taken from Sawyer and Vickers, 2001: 27. 13. Sawridge Band v. Canada [1995] 4 Canadian Native Law Reporter 121 (Federal Court Trial Division); [1997] 215 National Reporter 133 (Federal Court of Appeal). 14. Statement of Claim filed in the British Columbia Supreme Court in 2002, No. A941142. Thanks to Gwen Brodsky, plaintiffs’ counsel, for this reference.

3 Gender and Accountability Anne Marie Goetz

Some developing countries have seen very high numbers of women in national and local government since the 1990s, in some cases in numbers that outstrip those of women in office in the industrialized world. Indeed, so great is the range of experimentation in some young democracies with constitutional and other measures to enhance women’s political participation that these efforts merit study for the lessons they offer to more established democracies. A major preoccupation in the South as in the North is with whether and under what conditions women in representative politics transit from a ‘descriptive’ presence in office to offering a more ‘substantive’ representation of women’s interests as a gender. A disappointing observation almost everywhere has been that women in power – even feminists in power – have not easily been able to translate their numerical presence into a feminist impact on policy-making. Not only are many women in public office not necessarily representative of women’s interests, but even if they are, there are profound institutional obstacles to translating a feminist political ‘voice’ into gender justice in public sector actions. This chapter suggests that this outcome obliges us to scrutinize institutionalized gender biases in accountability systems. Accountability systems are one of the key components of an effective relationship between political ‘voice’ and a satisfactory public sector response. Constitutions are central to establishing the foundations of accountability systems in the rules they lay out for the relationship between the executive and the legislature, audit office, judiciary and public administration, as well as in the rules they establish for electoral systems and political competition. Understanding gender biases in accountability systems can both help to guide institutional change in a gender-sensitive way, and take the onus of performing in women’s interests off women representatives alone and put it onto the government of the day. 52

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Understanding accountability systems from a gendered perspective Accountability relationships conventionally serve two functions: first, they require power-holders to ‘account for’ – to explain and justify – their actions, to answer to those who have delegated them their power and authority. Second, where poor or illegal decision-making is detected, accountability systems impose penalties on power-holders. Accountability institutions are designed to support the rights of less powerful actors (such as voters, or the judiciary, or the tiny audit office) to demand answers of and enforce punishments on more powerful actors (for instance the executive). However, they do so unevenly. They may selectively amplify the ‘voice’ of particular groups, making authorities answer only to powerful social actors, or making a developing country government more accountable to foreign corporations and international financial institutions than to its own citizens. In this sense, the real-life workings of accountability institutions (who answers to whom, who is able to punish authorities?) provide us with a key to uncovering power relations in any polity. Accountability institutions facilitate these functions of answerability and enforceability along ‘vertical’ (citizen–state) or ‘horizontal’ (intrastate) dimensions (O’Donnell, 1999). The key accountability relationship is that of the government to citizens, and the institutions that most directly enable citizens to hold governments to account, or to dismiss them in the event of poor performance, are those enabling regular, free and fair elections to be held. Beyond the formal electoral system, the lobbying activities of civil society, the role the media plays in monitoring politicians and the role of parties in aggregating interests, all play key roles in this vertical accountability relationship. On the horizontal dimension, key institutions are the legislature, where opposition parties demand answers from the government, the audit office, which reviews government spending, the public administration, which reports to the legislature, and the judiciary, which can examine the consistency of government actions with the constitution, and has the power to impose and enforce punishment for criminal behaviour. In what sense might we argue that these institutions and relationships are gender-biased? The main constraint in making standards of accountability gender-sensitive is that violations of women’s rights are often not registered as an accountability failure. Accountability failures are most often understood to involve corruption or ‘capture’ – the abuse of public office for private gain. Corruption is not obviously gendered in its

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practice or its effects. Women are as much disadvantaged as men when corruption reduces the resources available for social services or when it erodes confidence in public institutions. And though there is a contemporary interest in establishing that women may be less corrupt than men (Swamy et al., 1999; World Bank, 2001) this relies on unsafe evidence (women have simply not been in power for long enough, or close enough to illicit earning activities, for us to say for certain that they have a lesser propensity to engage in corrupt acts). It also reinforces unhelpful essentialist assumptions about probity as an inherently female virtue. It is nevertheless certainly possible to look at the problem of illicit capture of state resources from a gender perspective. In developing countries it may be that it is easier for state officials illegally to appropriate resources when they are earmarked for women’s services and development activities, because women are seen as a less assertive constituency than men. One could argue that ‘capture’ includes tacit or explicit collusion between male officials and citizens to deprive women of rights and resources. An example could be when male offenders, police, lawyers, prosecutors and judges discount women’s testimony in rape trials in order to collectively ensure that the legal system defends men’s sexual prerogatives. Another way of identifying gendered patterns of corruption is to ask whether the currencies in which illicit payments are extracted from female clients are gender-specific – for instance, sexual harassment of schoolgirls in return for extra instruction could be interpreted as a form of exploitation of public office for private gain.1 The forms of accountability failure that afflict women fall more readily into a broader category of gender ‘bias’ in the oversight and enforcement functions of accountability institutions. ‘Bias’ can involve unintended gender-blindness in provisions for assigning votes to candidates, or in the terms of access to public institutions, or in the procedures of politicians and bureaucrats for gathering information and setting priorities. Or it can be a matter of intentional discrimination – outright sexism or misogyny – in the practices of state agents or the rulings of lawmakers. Biases of this kind contribute to systematic failures across accountability institutions to answer to women as a social group, or to enforce sanctions for violations of their rights committed by both private and public institutions. For instance, in the ‘vertical’ accountability relationship where politicians answer to citizens, the organization of voting can produce gender-biased outcomes if it strongly favours incumbents and denies proportionality in the representation of divergent interests (Rule and

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Zimmerman, 1994). As many feminist analysts of electoral systems have shown, majoritarian single-member constituency systems exacerbate voter reluctance to select women candidates (Phillips, 1991; Reynolds, 1999; Squires and Wickham-Jones, 2001). This represents a largely unintended bias, the consequence of systems of preference for men of a certain race and class that have been institutionalized over time. At the horizontal level, systems of oversight between branches of government frequently fail to detect and punish gender biases in public actions. In the legislature, opposition parties may fail to note or challenge gender biases in existing and proposed legislation. Even an area as technical as fiscal accountability arguably contributes to gendered accountability failures in state actions because audit offices or budgetary review processes fail to assess the extent to which public resources have been equitably distributed by gender. Accountability systems in the public administration fail to assess or reward the performance of public sector workers in advancing women’s interests or checking discrimination against women. Finally, judicial systems have frequently failed to criminalize or prosecute offences against women such as domestic violence or rape within marriage. They sometimes effectively condone violations of women’s physical security, or their property, inheritance and child custody rights, by confining these to a domain of family or customary law beyond the domain of modern constitutions. Biases of these kinds become routine in two ways: first, accountability institutions may simply have no remit for punishing officials whose actions produce a pattern of bias against women. In other words, standards of justice and of probity in the performance of duties focus on procedural correctness rather than the achievement of positive outcomes for women. Second, gender biases may be built into the mechanisms through which people are entitled to use accountability mechanisms directly, such as literacy or official language requirements for access to the legal system, or norms for presenting evidence which disqualify women’s evidence in rape cases (Goetz and Jenkins, 2001a). This absence of a gender-equity remit, and the existence of gender-specific access barriers prevents women – particularly poor women – from demanding answers or triggering sanction-enforcement procedures. The second half of this chapter reviews experiments in challenging gendered ‘capture’ and bias in formal vertical and horizontal accountability institutions, evaluating them according to the degree to which they improve the public sector’s answerability to women, and the enforceability of sanctions for violations of women’s rights.

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Vertical accountability There are many well-known reasons why systems for articulating political preferences, and for allocating votes to seats, do not transform women’s preferences (or those of other social groups such as the poor, or ethnic or religious minorities) into adequate representation in politics. One major difference in electoral systems is whether they encourage voters to focus on the party or the candidate in making their selection. Proportional representation systems with closed lists focus attention on the party and diminish the importance of the party rank-and-file in selecting candidates. Though this may provide an occasion for evading the hostility of local selectors to women candidates, it can make all candidates overly responsive to the party executive, provoking overcentralization in parties.2 On the other hand, when the representative– geographical constituency relationship is less central, an incentive is provided to campaign on issues that might be electorally catastrophic were they to be a candidate’s platform in an individual constituency – issues such as feminist policy concerns. Another difference between electoral systems is in the rewards they provide for representing diversity in candidate lists and in campaign platforms, with, as we know, proportional representation systems with multi-member constituencies providing parties with incentives to front a range of candidates to represent a diversity of interests in an area (Reynolds, 1999: 8). While certain institutional arrangements favour the representation of social diversity in elections, these do not necessarily advantage women unless either parties or their leaders are already gender-sensitive, or explicit affirmative action measures have been put in place to privilege women’s candidacies. In Africa, for instance, although countries with PR systems have legislatures in which women represent on average 11.65 per cent of representatives (compared to 5.46 per cent in majorityplurality systems), only those where dominant parties have voluntarily adopted minimum quotas of female candidates rise above this average (Mozambique with a 30 per cent female parliament, and South Africa with a 29.8 per cent female parliament) (Yoon, 2001: 181). In singlemember constituencies in majority-plurality systems other affirmative action measures have been attempted, such as all-women shortlists (UK – described by Russell Chapter 4, in this volume), the reservation of 30 per cent of seats in local government for women-only competition (India), and the creation of women-only seats in parliament (Bangladesh, Uganda and Tanzania).

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Do any of these measures improve connections between women candidates and the women’s movement? How do they affect the perceived legitimacy of women as politicians, let alone as representatives of women’s interests? Much depends upon the mechanisms for the selection of women candidates. Least promising of the methods for returning gender-sensitive women to office are reserved seats filled by government appointment or by closed electoral colleges. In Uganda for instance, the majority of seats held by women in parliament are not decided by universal suffrage. Instead, the ‘woman representative’ for every district is selected by an electoral college composed of local government representatives, who are not only primarily men, but represent elite interests. Advancing a feminist agenda, or confessing connections to the women’s movement, would likely be electoral suicide for the women who enter themselves as candidates for this position (Tamale, 1999: 76–86).3 Potentially more promising is the rotating reservation of constituencies for all-female competition, as in India, following a constitutional amendment in 1992 to ensure that one-third of local government is composed of women councillors. In principle this ought to encourage parties to cultivate female candidates and build their political skills. It also ought to encourage them to appeal to female voters by addressing women’s needs and interests. In practice this has not yet been the case. Parties have not felt the need to cultivate women candidates because they interact primarily with the husbands of women candidates – husbands who would have stood for office had the constituency not been reserved for women. These men are seen as the real actors who work through their wives as proxies (Vijayalakshmi, 2001: 18). A peculiar variant on this system is the way women have been brought into local government in Uganda, not through reserving existing seats for all-female competition, but by expanding all local councils by a third and designating those new seats for women-only competition. The new seats are made by combining existing wards – elections to them are held separately, two weeks after elections for the ‘general’ seats. The awkward and artificial clustering of wards imposes a larger duty of constituency representation on women, while the fact that each ward already has a ‘general’ representative, and has already gone through elections, gives the women councillors a secondary role and an ‘afterthought’ status (Ahikire, 2003). Democratically agreed and voluntarily adopted party quotas of female candidates have tended to be most effective at securing the legitimacy of women as politicians. In the ANC in South Africa, a history of struggle between the women’s movement and the ANC to give gender equality

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equivalent status to race equality also produced practical affirmative action measures such as the 30 per cent quota of women candidates on the party list. This extended engagement with the women’s movement has meant that the quotas are seen by the party rank and file as a legitimate way of responding to a civil society concern, and not special pleading for a socially marginal concern. It has also meant that many of the women on the list are themselves from the women’s movement, and that the women’s movement actively holds them to account for representing gender equity matters (Hassim, 2003).

Horizontal accountability The nature and institutional make-up of the state, as indicated in constitutional provisions on the extent to which the administration, the judiciary, the military and the legislature limit the powers of the executive, shape the accountability of different parts of the state to each other. To understand how variations in these systems might affect women and men differently we must ask whether violations of women’s rights are one of the accountability failures that are punished by intra-state accountability systems. A second concern is to assess the sense in which these institutions answer to a female constituency. But these horizontal accountability institutions are not designed to encourage public authorities to answer directly to women or to any other social group. They are designed to enable different branches of the state to demand answers of each other. However, around the world, citizens are expressing concerns about delegating responsibility for monitoring public probity to horizontal accountability institutions (Luckham et al., 2000) and are seeking to expand the remit of these institutions in two senses. First, they are seeking more direct engagement in these formerly closed institutions of public sector oversight (Goetz and Jenkins, 2001a). Second, they are seeking to expand the role of these institutions in addressing injustices beyond the state, in domestic and private sector relationships. Thus we can investigate how far horizontal accountability institutions are proactive in responding to women’s interests in terms of their support for gender equity in legal systems, in public services and in the type of access they give citizens to policy debates. This section of the chapter reviews typical gender-specific accountability constraints as well as examples of gender-sensitive reforms to accountability systems in the four main arenas of horizontal accountability: political, legal, administrative and financial. I will distinguish between measures that promote better access or consultation between women

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citizens and public authorities, measures that provide for a presence in the state for women and for ‘femocrats’ (bureaucrats mandated to promote gender equity – see Sawer, 1995), and measures that build women’s influence on decision-making and policy implementation.

Political accountability: the organization of power in the country There are many different models of organizing public authority. Beyond the obvious contrast between democratic and authoritarian states there is a range of important distinctions about the relationship between the executive and other branches of government. A key choice is between presidential and prime ministerial systems, with many new democracies opting for a presidential system because it offers dominant parties a means of racing ahead with bold new policy initiatives and entrenching any initial political advantage they have (Geddes, 1996). Waylen’s (2000) comparison of Argentina and Chile shows that if gender-equity is on the president’s agenda, the dilution and erosion produced by extended debate and interest group engagement in a parliamentary system can be avoided. In Argentina, even in the absence of an effective women’s movement, Menem was able to move rapidly in 1991 to support women’s presence in politics and the state, establishing a national women’s bureaucracy (the Consejo Nacional de la Mujer) by decree, and supporting the Ley de Cupos (the quota law) that obliges parties to ensure that 30 per cent of closed party lists are female. In Uganda, President Museveni has gone against social convention by championing women in politics; creating new seats for them in national and local government, assigning them key ministries, and appointing them to highpowered positions in the bureaucracy and judiciary. But while strong, centralized leadership can provide a vital impetus to social change projects, bulldozing past social resistance, it is also vulnerable to slipping into authoritarianism or non-participatory ‘delegative democracy’, particularly where party systems are weak or underinstitutionalized (O’Donnell, 1994). A ‘counter-cultural’ policy goal such as gender equality that is only weakly internalized by the public sector is particularly subject to reversals on any loss of presidential patronage. By 1995, for instance, Menem was becoming more pro-Vatican and was disturbed by the way women politicians had excluded anti-abortion principles from new reproductive rights legislation. Though he could not attack women in politics by revoking the constitutional amendment on quotas, he crippled the Consejo by slashing its budget and dismissing its leader (Waylen, 2000: 789). In Uganda, women in parliament have not been

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able to risk the loss of presidential patronage by visibly opposing rights in key new land ownership legislation, or to make progress in passing a new domestic relations bill that would override customary law in personal relations (Kawamara-Mishambi and Ovonji-Odida, 2003). In legislatures, the effectiveness of opposition parties in scrutinizing the government’s performance in relation to gender equity goals is highly uneven and depends greatly upon the success of feminist lobbies within or across these parties, or alternatively, on calculations about the political capital to be made out of championing women’s rights. Because women’s rights are so often seen as a counter-cultural or minority interest, there are few cases where governments have been brought down for failure on this area. Where this has happened, it has been because women in civil society, and opposition parties, have been able to show the general social importance of women’s concerns. One good example of this is the way an anti-alcohol campaign started by rural women in Andhra Pradesh (India) in the early 1990s was championed by opposition parties to expose the relationship between liquor licensing patterns and corrupt campaign-financing and patronage systems (Ilaiah, 1997). This eventually enabled the opposition to win the state elections and go on to impose temporary prohibition in the state. More sustainable means of raising the salience of gender equity matters in parliamentary debates have included the formation of parliamentary committees to review the gender-differential impact of proposed legislation. One of the strongest examples is the Joint Standing Committee on the Improvement of the Quality of Life and the Status of Women in South Africa, initially set up to review the government’s performance on commitments made under the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and subsequently made a permanent part of the committee structure in parliament. A problem from the point of view of the answerability to women is the relative accessibility of these committees to women in civil society. Some Australian states have responded to this by enabling legislative committees on the status of women to hold hearings away from the capital city in order to eliminate travel costs for women in civil society (Sawer, 2000). However, parliamentary committees do not provide civil society representatives with ‘hard’ accountability rights – rights to answers, to official information, or to impose sanctions for poor decision-making on the part of women parliamentarians or any other members of the government. Political and administrative decentralization creates a greater number of opportunities for citizens to engage in policy-making and to officials

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to account, and is currently popular in developing countries as a means of improving accountability in distended and low-capacity states (Parry, 1997: 211). Women are expected to benefit as much as other citizens from the localizing of control over politicians and officials – indeed, perhaps more so, because it is assumed that constraints on women’s time and mobility are less severe at local than national levels, and therefore they will engage more effectively in politics. This assumption seems to be drawn on women’s experience of local government in the West, where they have long been more successful at winning seats at local than national levels. The opposite appears true of developing countries,4 indicating that the tyrannies of caste, class and patriarchy are more immediate at the local level. Contemporary experiments to increase levels of women’s representation as local councillors such as the Indian and Ugandan efforts to feminize one-third of local councils reflect awareness of this problem.

Legal accountability The judicial system is the key to the effectiveness of accountability institutions because it is the main agency for prosecuting illegal public acts and for enforcing punishments. Although judicial activism in some contexts (for instance Canada) has been critical to rooting out gender biases in the law, in many countries there remain two significant barriers to women’s capacity to appeal to the judicial system to promote gender-sensitivity in accountability systems. The first is the fact that in many countries gender biases are built into the letter and practice of the law. The second are the serious gender biases and even misogyny built into the culture and practices of the police and other services necessary to the investigation and prosecution of crimes against women. These ‘other services’ include, for example, medical services managing forensic evidence of rape. This second set of problems is arguably much more severe in developing than developed countries. In many countries laws are simply not framed to cover many of the abuses that women face in the privacy of their homes, making some types of violence or discrimination against women – such as rape within marriage – not actually illegal. In Brazil, for instance a Human Rights Watch report on domestic violence found that women faced a criminal justice system so biased against them that even a crime as serious as wife murder was excused by the courts as a legitimate defence of male honour (Thomas, 1999: 183). Legal discrimination against women may be even more explicit in countries where religious or customary law is

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given precedence over constitutional rights and civil law in the case of personal and family matters. In effect, women’s rights become secondary to the objective of securing the allegiance of ethnic or customary authorities to the state, and are therefore surrendered to the control of traditional authorities. A gender bias against a fair hearing for women is built into procedural aspects of some legal systems. Language and informational barriers may keep women, with a lower educational endowment than many men, away from the courts. Another access barrier that can keep women and other marginalized groups from prosecuting abuses against them more effectively are laws of legal standing, which make it impossible for them to sue the government collectively in civil suits (for instance in public interest litigation) and thus overcome informational, financial and psychological barriers to holding officials to account. This constraint holds in countries that have inherited continental European legal systems, such as many Latin American states. Gender-sensitive accountability reforms within the judicial system, therefore, begin with comprehensive legal reform, particularly in matters having to do with women’s rights in domestic relations. They must involve revision of the access requirements for ordinary women to bring cases to the courts. They involve cultivating a greater female presence within judicial institutions including the police, magistrates, judges, lawyers and court officials, particularly the lower-level clerks who act as gatekeepers to access the legal system. And they have to involve the extension of new rights to collective representation so that women can overcome mobility and resource problems to pursue public interest cases.

Administrative accountability Accountability systems in the public administration operate internally in reporting systems from each level of the hierarchy upwards, and externally, between the bureaucracy and the legislature. These reporting and reward systems tend not, as noted earlier, to detect or punish gender-insensitivity in performance. Quantified performance measures tend not to register the wide range of time-consuming and potentially socially unpopular acts that might contribute to the empowerment of women clients. As in the political arena, there is an assumption that more women are needed in public service not only to democratize recruitment but to ensure better treatment of female clients. Some states have advanced the

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presence of women in public bureaucracies through quotas for women recruits. Bangladesh’s constitution, for instance, provides for a 15 per cent quota of women staff in the bureaucracy. These quotas, like those of candidates in political parties, have been effective at edging women through some barriers to public space, but can also act as ceilings on further recruitment, and can undermine the perceived merit of the women who are hired to fill quotas. The record is mixed on whether a larger concentration of women (usually above the ‘critical mass’ of 30 per cent) in an institution makes for gender-sensitive service provision. Studies of women micro-finance workers and family planning workers in Bangladesh suggest that women staff invest much more than their male colleagues in addressing non-service related problems such as domestic violence, divorce and so on (Simmons and Elias, 1993; Goetz, 2001). Some women-dominated workplaces show the opposite effect: extremely antagonistic relationships between women service providers and women clients. For instance, in several antenatal clinics in the Western Cape, South Africa, a study found that mid wives were highly abusive of women in labour, pushing them to deliver quickly so that mid wives could end their shifts, and forcing them to do the cleaning that was the responsibility of the mid wives (Jewkes et al., 1998). Incentive systems are probably more important than gender in determining the responsiveness of workers to their clients, and therefore making these systems more women-friendly is as important as hiring more women. Contemporary measures to enhance the accountability of public service providers include new means of consulting directly with clients. These exercises include citizens’ juries, participatory needs assessments, participatory planning exercises, social audits of existing policy or services and conventional surveys or opinion polls. Women, particularly poor women, have in fact been enthusiastically sought out as participants in such forums, because they endow these exercises with a patina of grassroots authenticity. Though frequently trumpeted as examples of improved accountability in the public sector, these exercises are at best really only contributions to improving the responsiveness of bureaucrats to citizens. They enable bureaucrats to test public opinion about proposed policy changes, or else gather information about client needs. But they do not endow participants with rights to demand answers, pursue complaints through clear grievance procedures, nor do they provide participants with crucial information about the basis upon which decisions are made, or the way public funds have been spent. These ‘access’ exercises must be assessed in terms of ‘hard’ accountability

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rights: whether women (and other) participants are given an institutionalized place in policy discussions, whether they have formal rights of redress or at least the right to issue a dissenting report to higher authorities, whether they have the right to official information about the policy or service in question, and whether they have the right to litigate against the public agent if necessary (Goetz and Jenkins, 2001b). The persistent problem of gender biases in the public administration has produced thirty years of experimentation in ‘bureaucratic representation’ for women. This takes the form of dedicated women’s desks in line ministries, or else equal opportunities commissions, or even whole Ministries devoted to advancing women’s status. These bureaucratic units can act as accountability institutions, but much depends upon their formal remit, resources and powers. For instance, many of these units are set up primarily to provide what Staudt calls ‘advocacy administration’ (1985). They make efforts to impress the importance of gender equity upon bureaucrats in other parts of the public administration. Others may be mandated to pilot gender-equitable service delivery, or else they may fill gender-specific gaps in public provision. But these efforts tend not to catalyse similar efforts elsewhere in the administration because the women’s unit lacks the staff and resources to encourage emulation or to overcome resistance. Of more interest from the point of view of improving the state’s answerability to women are forms of bureaucratic representation that come with a Cabinet seat for the unit’s head, or else with automatic rights of review over all new legislation. These types of provisions enable gender equity commissions or women’s ministries to enhance government answerability to a female constituency. Though they may lack rights to veto new legislation, they can demand reviews and investigations and thereby improve the prosecution of violations of women’s constitutional rights. The state-level women’s commission in Kerala (India) has the unique feature of close institutional ties with the police. This gives it powers of search and arrest when prosecuting cases of women’s rights violations. Key questions to ask about the capacity of bureaucratic representation to advance state answerability to women include whether these units have adequate resources in staff and funds not just to investigate abuses of women’s rights but to charge other parts of the government to better respond to women’s concerns, whether their location within the bureaucracy endows them with access to key policy-making arenas – particularly in public expenditure planning – and whether they have powers to review and if necessary veto all legislation likely to have an impact on gender relations.

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Financial accountability Strictly speaking, audits of public spending do not have a gender dimension – either funds have been misused or not, and the main accountability concern is to prevent political interference in the audit function. However, concerns with financial accountability can be broadened to include the public expenditure management process, in which case there are a number of areas that can be scrutinized from the perspective of their responsiveness to women’s needs: the spending departments setting priorities for public services, local governments with oversight of service delivery and Public Accounts Committees in legislatures scrutinizing proposed budgets. Do spending departments and local authorities devote sufficient funds to programmes that benefit women? Do legislatures scrutinize spending in areas of benefit to women or ensure that these are adequately resourced? Do audits pick up on poorly targeted or misused funds in areas of benefit to women? Accountability questions can be raised about the revenue-generation side of the equation as well. In many countries women are not seen as the main tax-payers, and as non-contributors to the fiscus, they may not be seen as having the same rights as men to challenge public spending patterns (particularly at the local level). There are a number of contemporary innovations engaging citizens in reviewing public expenditure, and some of these are distinguished by high levels of women’s participation. Women are the majority of participants in participatory municipal budgeting in Porto Alegre and Belo Horizonte in Brazil, for instance, where they are able to direct public spending to the local amenities of greatest importance to them (de Sousa Santos, 1998). Experiments in gender-specific reviews of budgets – pioneered in Australia in the 1980s, refined in South Africa in the 1990s and now replicated all over the Commonwealth (Esim, 2000) – are showing how gender biases in service delivery can be traced to male preference in public spending patterns. Few of these exercises have moved to the more challenging accountability exercise of actually auditing public spending from a gender perspective – an exercise resisted by the state as it would mean granting the right to sensitive information about public spending. There are some examples, however, of citizen auditing initiatives that have done just this, to great effect. In Rajasthan, India, a rural social movement has conducted public audits of local government spending throughout the 1990s (obtaining information on local spending through friendly officials). It has exposed corruption in the use of funds destined to pay poor women for their labour in drought relief programmes, and in the

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process, has challenged inadequate accountability systems in local government in the state (Jenkins and Goetz, 1999). For citizens to take such initiatives to the point that they can provoke investigations into corrupt or biased official actions, they require at least two rights: a right to information (for instance access to official accounts), and a right to litigate against the state. Few states are willing to concede such powers directly to citizens.

Conclusion While many of the concerns raised here about accountability failures may seem to be pertinent mainly to low-capacity, corruption-riddled developing states, the point of the focus on accountability systems in a volume like this is to remind us that gendered biases in accountability institutions can obstruct the capacity of women and feminists in politics to transform their political ‘voice’ into gender-equity in the outcomes of state policies – to move from a ‘descriptive’ presence to a more substantive form of representation. Moments of constitutionwriting or renegotiation can provide opportunities for exposing and removing biases in accountability institutions. Periods of openness to the creation of new accountability institutions such as the Equality Commissions discussed in Chapters 11, 12 and 13 by Chaney, Hinds and Squires in this volume, likewise provide opportunities to strengthen the accountability of the public sector to a gender-equity constituency. One suggestion made here is that a key guide to the effectiveness of such institutions is the degree to which they provide for both ‘soft’ (answerability) and ‘hard’ (enforceability) dimensions of accountability, and orient both to the needs of a gender-equity constituency. Gendered ‘capture’ and ‘bias’ in accountability institutions are the main reasons why we do not see in politics a linear relationship between the articulation of interests (‘voice’), the representation of those interests and influence on official policy and practice. The expectation that there should be a direct voice-to-representation-to-accountability relationship is precisely why so much importance is put upon building up the women’s movement and putting more women into public office. But gendered biases in accountability institutions can prevent feminist politicians from getting into office, or can undermine their efforts to advance women’s interests once there. A feminist measure of the value of institutional engineering to enhance women’s participation in politics should be based not on the numbers of women they return to office,

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but on their contribution to consolidating a gender-equity constituency, improving the answerability of public actors to women, and improving the enforcement of sanctions when public sector actors fail women.

Notes 1. One of the reasons for the high rate of school dropouts among girls in subSaharan Africa is sexual harassment and rape by male teachers (Leach et al., 2000: 17–20). 2. For discussions of how this is happening in South Africa, see Albertyn Chapter 6, this volume, and Hassim (2003) and Meintjes (2003). 3. This electoral college system has not always weeded out feminist politicians, however. The woman most often cited in this regard is Miria Matembe, who has held her district’s woman representative seat through three Parliamentary elections and who is the most outspoken feminist in Parliament. 4. Statistics on numbers of women in local councils in developing countries are very poor. However, available figures show generally lower levels of women in local than national government–see for instance UNESCAP, ‘Women in Local Government’, http://www.ûnescap.org/huset/women/reports/comparative_report.pdf.

4 Women in Elected Office in the UK, 1992–2002: Struggles, Achievements and Possible Sea Change Meg Russell

This chapter tells the story of developments in women’s representation in UK elected office, 1992–2002. It is primarily a historical narrative, with a focus on the important political and legal changes during the decade. In particular it focuses on the use of positive action mechanisms, or ‘quotas’, to ensure the election of larger numbers of women. Rigid positive action mechanisms first came into use after the 1992 general election, were subject to legal challenge in 1995–96, were redesigned and reapplied subsequently, and were finally endorsed through legal change in 2002. At the end of the chapter I consider the relationship between women’s representation and constitutional change, and the factors influencing what I consider the four key political decisions over the decade. The chapter ends with a reflection and consideration of future prospects.

Setting the scene: Britain in 1992 In 1992 Britain had already had its first woman Prime Minister, but women otherwise remained poorly represented in elected office. And few practical steps had been taken to rectify the situation. After thirteen years in opposition, the Labour Party appeared set to defeat the incumbent Conservatives at the 1992 general election. Of the two, Labour enjoyed relatively better women’s representation in Parliament – in 1987 nine per cent of Labour MPs elected had been women, compared with five per cent of Conservatives (Norris and Lovenduski, 1993). Labour’s 1989 annual conference had agreed a programme of quotas for women on all party bodies, including the annual conference and ruling National Executive Committee, and amongst 68

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local party officers (Short, 1996). However, this programme of internal reform stopped short of introducing meaningful quotas for Labour’s parliamentary candidates. Here constituency parties were required only to include one woman on their shortlist if one or more women had been nominated by their branches or affiliates. A new organization, ‘Labour Women’s Network’, had been established within the party, alongside the traditional women’s organization, to provide training and support for women seeking office. Neither of these developments meant that local parties were obliged to select more women. At the election itself Labour fielded a relatively high number of women candidates – 138 compared to the Conservatives’ 63 and Liberal Democrats’ 143 (Norris and Lovenduski, 1993). However, contrary to popular expectation the party did not win the election, and instead the Conservatives retained a small majority. The increase in Labour-held seats from 229 in 1987 to 271 in 1992 brought with it a near doubling in the number of Labour women MPs, from 21 to 37. But with little change amongst representatives of the other parties, the overall effect was only a small increase in women’s representation in parliament, from 6.3 to 9.2 per cent.

The first battle for quotas: all women shortlists in the Labour Party Labour’s historic 1992 defeat led to much reflection and, in the analysis of what went wrong, women came to the fore. Voting figures had shown a ‘gender gap’, with women remaining more loyal to the Conservatives than men. With such a close result, this mattered. It seemed that if women had voted Labour in the same proportion as men, the party could have won the election (Short, 1996). Focus group research had already shown that Labour was seen as the most male-dominated of the political parties, despite its relatively good record (Hewitt and Mattinson, 1989). The recent reforms seemed not to have changed that perception. These factors gave fresh impetus to the campaign by women within the party to extend quotas to selection for elected office. The shift from an argument based on justice to one based on electoral necessity won some reluctant supporters, and was enough to tip the balance. This is the first important decision point with respect to women’s representation in elected office, which I will return to at the end of the chapter. Labour women activists had been influenced by practice in other socialist and social democratic parties around the world in adopting quotas (Short, 1996). However, their challenge was far greater than that

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in, for example, the Nordic countries, where the list-based electoral system made effective quota systems easier to design. In the UK’s single member constituency system each individual constituency party selected its own candidate, so any quota mechanism adopted would necessarily restrict local party autonomy. The mechanism Labour chose required local parties in half the seats they hoped to win (aside from those with sitting MPs) to select their candidate from a women only shortlist – thus excluding men from applying for selection in these seats. This policy was controversial, but was felt necessary if progress was to be made. It fell short of the demand of more radical campaigners who wanted all such seats to select women until a better balance was achieved. The policy was agreed on a close vote at the annual conference in 1993 (Short, 1996; McDougall, 1998). Its implementation was to be, as far as possible, voluntary. Party officers from the relevant constituencies in each region were brought together at a ‘consensus meeting’, where they were asked to decide which constituencies would adopt all women shortlists. Only where this failed would the national party impose a solution. In practice consensus was found in most cases, although the policy remained highly controversial. Inside the party there was general acceptance of its necessity, but a small group campaigned against it, and tried unsuccessfully to reverse the policy at the 1994 conference (Short, 1996). The greater opposition came from outside, with hostility from opposition parties, and particularly the tabloid press. The Daily Mail in particular took care to report every local dispute and carried a regular ‘quota watch’ column to monitor developments.

Reform frustrated: the defeat of all women shortlists From the outset all women shortlists were controversial, not just politically but also in legal terms. After the policy was adopted, some high profile lawyers said publicly that they thought it was incompatible with sex equality legislation, and particularly with the Sex Discrimination Act 1975. Under the Sex Discrimination Act only a direct victim of discrimination can launch a legal action. Hence this route was not open to most campaigners. However, in 1995 two male party members who had sought to apply as candidates in designated all women shortlist seats took the party to an employment tribunal claiming that their exclusion from selection constituted unlawful discrimination (Davis, 1995; Russell, 2000; Russell and O’Cinneide, 2002).

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The case hinged upon whether selection of candidates for political office should be considered employment related. The complainants claimed that candidate selection fell under the employment sections of the Act, and particularly that it constituted ‘an authorization or qualification which is needed for, or facilitates, engagement in a particular profession or trade’ as recognized by Section 13(1). The party argued that candidate selection was covered by separate parts of the Act, and particularly by Section 29(1), which expressly allows for ‘special provision for persons of one sex only in the constitution, organization or administration of [a] political party’. In January 1996 the tribunal found against the party, ruling that, although MPs are ultimately chosen by the electorate rather than the political parties, and do not actually have employment contracts, selection of parliamentary candidates amounted to a qualification which is needed for engagement in the profession of MP. This judgement was obviously a major blow for Labour. Supporters of all women shortlists urged the party to appeal the decision to a higher court. However, this course was not pursued, for a number of reasons. Primarily, in legal terms, the judgement had applied only in the two constituencies concerned, and did not affect the status of the thirty-five women candidates already selected from all women shortlists. An appeal to a higher court would have had general application, and had it gone against the party could have resulted in overturning these selections. There was also no certainty that an appeal could have been resolved before the general election (which the Government could call at any time) and this would have resulted in prolonged instability and speculation. Given the attitude of the press, and the high profile of the initial court case, the party decided to simply cut its losses and quietly abandon the policy.

1997: symbolic and substantive change The 1997 election brought the change in electoral fortunes that Labour had been waiting for, and indeed its landslide victory exceeded all expectations. On 1 May 1997 the party won 418 seats, to the Conservatives’ 165. Tony Blair had become party leader in 1994, after the death of John Smith, and campaigned to win under the banner of ‘new’ Labour and a programme of ‘modernization’. The election saw a step change in women’s representation at Westminster, which came to symbolize the party’s modernity. The number of Labour women MPs, just 37 in 1992, leapt to 101. This was

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accompanied by a drop in the number of Conservative women MPs, and even in the number of Liberal Democrat women – despite the Liberal Democrats having gained many seats. Nonetheless, the 1997 election saw the number of women MPs at Westminster double, from 60 to 120 (18 per cent of the total). Labour’s breakthrough could be traced almost wholly to its adoption of all women shortlists. All thirty-five women selected under the mechanism won their seats. A further five women were selected to replace sitting Labour MPs after the intervention of the national party. Contrary to popular myth the large increase in the number of women MPs was not a result of the landslide victory – in those seats that the party won unexpectedly, relatively few women (just eleven out of sixty-six) were selected. And analysis of the pre-1997 selections showed that the record of local parties in selecting women where there was no compulsion to do so was as bad as ever (Eagle and Lovenduski, 1998). Yet despite the earlier controversy about all women shortlists, there was widespread celebration of the 101 Labour women elected. Even those newspapers that had vehemently opposed the policy published photographs immediately after the election of Mr Blair surrounded by his mass of women colleagues, without a mention of how they came to be there. The warning that those selected from all women shortlists would be marked out as ‘quota women’ was never realized, at that point or subsequently. The appointment by Tony Blair of five women to his first cabinet accentuated the link between the new government and higher women’s representation. Although still only 22 per cent of members this was a record, and in stark contrast to Margaret Thatcher and John Major’s cabinets – which had at times been all male. Within the cabinet one woman, Harriet Harman, was given responsibility as Minister for Women, as well as being Secretary of State for Social Security. Subsequently a full time junior Minister for Women, Joan Ruddock, was appointed, albeit without a ministerial salary. Analysis of voting in 1997 showed that the gender gap that was present in 1992 had all but disappeared (Stephenson, 1998). Whilst older women remained more Conservative in their voting habits than older men, this was counterbalanced by Labour’s huge popularity amongst younger women. Although the reasons for this (and for the original 1992 gap) were many and complex, it reinforced the belief that fairer representation for women would boost the party’s electoral fortunes. Labour came to power with an ambitious policy programme, particularly in the constitutional field. It was committed to devolving power in

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Scotland, Wales and the English regions, to reforming the House of Lords, and to incorporating the European Convention on Human Rights into UK law. More broadly the Government expressed its support for institutional reform and modernization and for changing the culture of politics. The new intake of women MPs was seen as the first step in this process.

Victories hard fought: Scotland and Wales The programme of constitutional change, and establishment of new institutions, ensured that the representation of women in elected office was a live issue throughout much of Labour’s first term. The first instance of this came almost immediately after the election, with the establishment of the new Scottish Parliament and National Assembly for Wales. The Bills to provide referendums on establishment of the new institutions were introduced almost straight away, and the referendums held in September 1997. The Bills to actually create the new institutions were passed in 1998 (Hazell, 1999b; Morrison, 2001). In Scotland, in particular, the campaign for a new Parliament was well established, and women had played a central role (see Mackay et al., in this volume). Fairer representation for women had become an important part of the ‘new politics’ that Scottish devolution campaigners were seeking to create. In 1995 the ‘Electoral Agreement’ signed by Labour and the Liberal Democrats committed to the use of a proportional electoral system for the new Parliament and that both parties would ‘select and field an equal number of male and female candidates ... [and] ensure that these candidates are equally distributed with a view to the winnability of seats’ (Scottish Constitutional Convention, 1995). In Wales the campaign was less well advanced, and women’s role was less visible. However given Wales’ poor historic record (just one woman MP out of forty from 1984–97 and none from 1970–84), women’s representation was clearly an issue of concern. The original Wales Labour Party plan for an Assembly would have seen one woman and one man elected for each of forty constituencies (Feld, 2000). However, prior to 1997 this was changed to an Assembly elected using an additional member system, with just one member for each of the forty constituencies and a further twenty elected from regional lists. After the ruling on all women shortlists, concerns were immediately raised about how women’s representation was to be guaranteed in the new institutions. If other courts shared the tribunal’s view, rigid quota systems could be ruled unlawful. Thus when the Bills to create the new

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institutions passed through Parliament, Labour women back-benchers sought to amend them in order to make quotas explicitly legal. In March 1998 Maria Fyfe MP sought to amend the Scotland Bill and Julie Morgan MP to amend the Government of Wales Bill (Russell, 2000). However, advice from the Government’s Law Officers (as reported in a memo which was simultaneously leaked to The Guardian newspaper) suggested that a change in domestic law to accommodate quotas might be in breach of the European Convention on Human Rights or EU equality law. Consequently the Government did not support these amendments, and they were not passed. This left the political parties wishing to see women well represented in the new institutions, but with no framework to do so and a relatively high risk of legal challenge. Labour, having made such progress at Westminster, and being the party of government that was promoting devolution, was under particular pressure. It was at this point that the upward progress of women’s representation looked most at threat. If Labour had not chosen to persevere with quotas at this point, the new institutions might have been established with very few women members (particularly given the poor historic record of women’s representation in both Scotland and Wales), and the progress in 1997 might have gone down in history as a mere aberration. One of the most interesting questions therefore is why the party pressed ahead. This is the second important decision point, to which I will return. In summary, there were a number of reasons for the party’s decision. Perhaps the most important was the symbolic connection that had formed between the presence of women in public office and the ‘new politics’ that Labour sought to create. The Conservatives opposed devolution, and sought to present it as an opportunity for ‘the usual suspects’ (overwhelmingly male) from Scottish and Welsh local government to gain lucrative positions. If this prediction was proved right it could have severely dented the Government’s modernizing credentials. In addition, at least in Scotland, Labour had made a very public commitment to field equal numbers of male and female candidates. To backtrack could have been damaging. And there were many women activists who wanted to deliver on the commitment – as a result of internal party quotas, and the new influx of women MPs and ministers, many of these women were now in powerful positions. After a protracted period of internal debate, Labour chose to adopt an alternative positive action system, as proposed by women activists in Scotland (Russell et al., 2002). Under this system, pairs of constituencies

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were ‘twinned’ together in order to select candidates and required to select one woman and one man. The twinning was done on the basis of both geography and ‘winnability’. The system would be relatively difficult to challenge legally, since men were not excluded from selection contests. To prove he was a ‘victim’ a man would need to have got through to the final shortlist and then lost out to a woman. This cut down considerably the pool of potential complainants. Although twinning originated in Scotland, it went on to be applied simultaneously in selections to the Welsh Assembly. Here the struggle was particularly difficult, as women’s networks were less well developed and there was no public commitment to equality of representation. However, under pressure from the national Labour Party, the Welsh Labour conference in May 1998 agreed to twinning on a very close vote – with just 51.95 per cent in favour (Russell et al., 2002). Most of the other parties took less direct action, although after Labour’s decision they were under significant pressure. They too wished to be seen as modern, and appreciated that selecting women candidates might have electoral advantages. The Liberal Democrats had signed the Electoral Agreement in Scotland, but did not take strict action to ensure that women were selected. The leadership argued for a change in the law, and when this did not happen it offered an opportunity for inaction. The party required constituency shortlists to be gender balanced, but this did not guarantee that women would be selected. A proposal that women be placed high on regional lists in order to counterbalance poor representation in constituencies failed to be supported at the Scottish Liberal Democrat conference in 1998 (Russell et al., 2002).1 The other UK-wide party, the Conservatives, remained implacably opposed to positive action (and opposed to devolution) and did not even debate its possible use for these elections. The two nationalist parties were the main challengers to Labour in the Assembly and Parliament elections, and went further to guarantee that women were selected. The Scottish National Party had a relatively good record of women’s representation at Westminster amongst their small group of MPs. Although they did not apply a rigid quota, strong persuasion from the top of the party, networking amongst women activists and a fear of being outflanked by Labour were enough to ensure that a high proportion of the party’s candidates were women (Russell et al., 2002). In Wales, Plaid Cymru failed to select many women in constituency seats, but the party’s National Executive Committee agreed a policy whereby each regional list was headed by a woman, with a man second and a woman third (Russell et al., 2002).

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The results of the elections, in 1999, were remarkable. In Scotland 37 per cent of those elected to the new Parliament were women, whilst women represented 40 per cent of those elected to the Assembly in Wales. Even following the results at Westminster in 1997 these represented a high water mark for women’s representation in British politics. Although well short of parity, the proportion of women in the new institutions compared well with national parliaments such as Norway and Sweden which enjoy the highest level of women’s representation in the world. In fact, as in 1997, the numbers were boosted by certain parties only. In Scotland Labour achieved 50 per cent representation and the Scottish National Party 43 per cent, whilst the Conservatives elected only three women out of eighteen members (17 per cent) and the Liberal Democrats only two out of seventeen (12 per cent). In Wales Labour actually elected more women than men, Plaid Cymru achieved 35 per cent representation and the Liberal Democrats elected three women Assembly Members out of six. In contrast the Conservatives elected an all male group of eight Assembly Members.

1998–2001: consensus grows The elections to the Scottish Parliament and National Assembly for Wales represented a real breakthrough, and a shift in attitudes probably more profound than that which followed 1997. The arguments over twinning had largely been a localized rerun of those over all women shortlists, particularly in Wales. There had been internal party opposition, media hostility and even a threat of legal challenge (which in this case never reached court). But at the end of the process there was celebration at the high number of women elected. And there were again some startlingly poor results by those parties that had rejected quotas. In retrospect this may be considered the point at which the argument for quotas was finally won. In 2000 elections were held to the new Greater London Assembly, and Labour again used twinning for selecting its candidates. This was utterly uncontroversial within the London party, and went unremarked in the press. The Assembly was elected with 40 per cent women members. In the same year the Royal Commission on Reform of the House of Lords issued its report, proposing a statutory minimum quota of 30 per cent women amongst appointees to a new upper house (Royal Commission on Reform of the House of Lords, 2000). This likewise attracted little comment. The biggest obstacle remained elections to the House of Commons, where no party had found an effective alternative to all women

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shortlists. Twinning was inappropriate, given that seats change hands rarely and vacancies are geographically dispersed. For the 2001 general election only Labour used any kind of positive action. The Conservatives had most potentially to gain, in terms of seats, but they remained opposed to quotas. Labour used gender-balanced shortlists in all vacant seats. This policy had failed for the Liberal Democrats in Scotland, and it failed again here. Thirty-nine Labour MPs retired, but only four were replaced by women – the proportion of new candidates who were women was actually lower than in 1992. At the election itself very few seats changed hands between the parties. However, the number of Labour women MPs fell from 101 to 95. Overall representation of women in the House of Commons dropped – for the first time in 22 years – from 120 to 118.

Lasting reform: legal change to permit quotas The combination of changed attitudes and disappointment at this result focussed attention again on the possibility of legal change to permit rigid positive action. However, as recently as March 1998 the Government opposed this on the grounds that it might breach EU and international human rights law. In early 2000 Labour’s ex-Minister for Women Joan Ruddock promoted a parliamentary Early Day Motion calling for a change in the law, signed by over a hundred MPs of all parties. She also moved a Private Member’s Bill that sought to achieve this change. Although this had little chance of becoming law it raised the profile of the issue. Significantly, the Government did not oppose the principles of the Bill when it was debated (Russell, 2000). From this point matters progressed remarkably fast. In June 2000 the results of a research project conducted by the well-respected Constitution Unit at University College London were published, suggesting that legal change would not in fact breach international legal agreements (Russell, 2000). In October, Labour’s annual conference endorsed a document saying it would ‘take action, including legislation if necessary, to ensure that all political parties can introduce measures guaranteeing selection of women and ethnic minority candidates for winnable seats’ (Labour Party, 2000: 150). The party’s 2001 election manifesto reinforced this, stating ‘We are committed, through legislation, to allow each party to make positive moves to increase the representation of women’ (Labour Party, 2001: 35). After the election the Queen’s Speech setting out the new Government’s programme included a commitment to introduce a Bill.

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Consequently the Sex Discrimination (Election Candidates) Bill was introduced in the House of Commons in October 2001. This sought to exclude from the Sex Discrimination Act any action taken by a political party ‘for the purpose of reducing inequality in the numbers of men and women elected, as candidates of the party’. It would apply to elections at all levels of government. Whilst some were nervous about introducing legislation on a subject previously so controversial, the Bill, remarkably, passed all its stages in both houses of parliament without a vote (Childs, 2002c). This type of expedited parliamentary passage would normally be reserved for totally non-controversial Bills on topics of low public salience. The primary reason in this case was the decision by both major opposition parties not to object – representing a significant change of approach by the Conservatives, and the fourth key turning point in political opinion. As a result, the press paid little attention to the issue, either when it appeared as a public commitment or when the Bill was published. It passed virtually unnoticed into law in February 2002.

Representation and constitutional change: cause and effect This is a story about women’s representation and constitutional change, and how one influences the other. But in this case the relationship has been complex, and the influences two-way. Having focussed on the impact on constitutional change by women’s representation, we end with a small but important constitutional change implemented specifically to facilitate greater representation for women in the future. The movement towards greater women’s representation in elected office, and specifically towards quota systems, began before the current programme of constitutional change. Its early and more general influences are discussed in the next section. But the acceleration of this movement was undoubtedly made possible by the constitutional changes that took place, and most particularly by devolution. It was the creation of the Scottish Parliament, National Assembly for Wales and Greater London Assembly, which kept the issue of women’s representation firmly on the agenda after the abandonment of all women shortlists. Without this, the parties wouldn’t have faced the question of selecting candidates for high-profile public office until preparations for the 2001 general election. Instead the devolved institutions, free from the usual obstacle of incumbent candidates, offered a new opportunity, but also a new threat. Could Britain in the late 1990s – and Labour in particular – risk creating new elected bodies where women’s representation

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was as low as it was in the House of Commons, or possibly even lower? It was thus the advent of the devolved institutions that forced the political parties to face the difficult choices left after the 1996 tribunal ruling. But women did not only stand to be the beneficiaries of seats in the new bodies, they had actually helped shape these bodies and the expectations around them. In Scotland women had been central to the planning of the Parliament, from its electoral system and procedures to the political ethos that it sought to embody. Through this work, equality was written into its specification from an early stage, creating a huge expectation that women’s representation would be high. Once the legal context had changed, after the tribunal, it was already almost impossible politically to countenance a return to the ‘old politics’ of male dominated institutions in Scotland. Another important factor driving these reforms was the new electoral systems used for the devolved institutions. The link between proportional electoral systems and higher women’s representation is well established (e.g. Norris and Lovenduski, 1995; Norris, 1996; Linton and Southcott, 1998). There was therefore an expectation that the electoral system used in Scotland and Wales would facilitate greater women’s representation. However, the nature of the system made this less than inevitable. Whilst electoral lists may be manipulated to place women in winnable positions, the majority of seats in these institutions were elected through single member constituencies. Furthermore, some parties were set to benefit disproportionately from one type of seat or the other (in Scotland, for example, Labour won fifty-three of its fifty-six seats in constituencies, whilst the SNP won twenty-eight out of thirtyfive of its seats from the lists). The electoral system did not, at least mechanistically, facilitate the high number of Labour women representatives, although it allowed other parties – particularly Plaid Cymru – to use the lists to rebalance under-representation in constituencies. What it did do was introduce a level of electoral competition traditionally unseen in Scotland or Wales. Labour was on the defensive and the prospect of reneging on its commitment to gender balance held real electoral risks. These included fear that a women’s party would be formed, along the lines of the Northern Ireland Women’s Coalition (Fearon, 1999; Dobrowolsky, 2002, 2003; Hinds Chapter 12, in this volume) which could split the Labour vote. Thus in an indirect but very real way the new electoral system had an important effect. The story ends with a small but significant constitutional reform which gives political parties the freedom to adopt positive action systems for candidate selection, whilst women remain under-represented. This

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change was won almost entirely by women. It, in turn, should facilitate better representation following future constitutional reforms, such as introduction of English regional assemblies and a reform of the House of Lords.

How we got here: key decisions and influencing factors Looking back over the decade, I have suggested that there were four key decision points, as follows: the decision of the Labour Party to adopt all women shortlists; the decision of Labour, again, to press ahead with twinning; the decision of the Government to promote legal change; and the decision of the opposition parties, particularly the Conservatives, not to oppose it. These decisions have all been influenced by factors familiar from the literature on candidate selection and women’s representation. We can see, for example, that the driver for change politically was the party of the left, although other parties – first the centre party and left-leaning nationalist parties, and ultimately the party of the right – have gradually acquiesced and even become promoters of change themselves. This is a recognized dynamic (Norris and Lovenduski, 1993; Norris, 1997; Caul, 1999; Russell, 2000). The Labour Party’s lead was also facilitated by its being traditionally a centralized political party (Shaw, 1988) and thus able to impose rule changes on its local and subnational parties. This is another recognized factor in a party’s ability to select women candidates (Norris, 1996; Caul, 1999). Women’s political activism has had a major part to play, both at grassroots level and – crucially – at senior levels in the parties as women have become gradually better represented (Caul, 1999). And electoral competition between the parties, demonstrated in many and varied ways, has been central. The first key decision was that of Labour in 1993 to adopt all women shortlists. This was driven by a combination of women’s activism, leading to demands for quotas, and electoral factors sparked by a fourth election defeat. Concern over the party’s image, and the gender gap, finally won leadership support for this change. Its implementation was eased by the high degree of control given to Labour’s national rule book with respect to local selections. But the earlier programme of internal party quotas, and resulting presence of women at crucial stages, was also important. A quota applied to the delegates at the 1993 conference, which took the initial decision, and half the party officers attending regional ‘consensus meetings’, to agree its implementation, were women.

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The second, and equally challenging, decision was that by Labour to adopt twinning in 1998. This was more complex, involving the Scottish, Welsh and UK levels of the party. Again the same combination of factors is seen. Women’s activism, primarily in Scotland, had put women’s representation on the agenda. But in the face of legal uncertainty, electoral competition played a major role in keeping it there. The increase in women MPs in 1997 had become symbolic of Tony Blair’s modern Labour Party (somewhat ironically, given that it was his predecessor John Smith who had backed all women shortlists, which were then dropped under Blair’s leadership). The party wished to capitalize on its modern image in building the new institutions, and feared reneging on earlier commitments in the face of serious electoral competition from nationalist parties. The positioning of women in the party by this stage was also very important. Women now made up half of the party’s National Executive Committee, as well as holding many senior ministerial positions. The now enlarged group of Labour women MPs, and the new Ministers for Women, exerted pressure on the national party to accede to the Scottish women’s demands, despite the legal risks. Once agreement had been taken in principle (at the national conference in 1997) the centralized nature of the party, as well as these earlier factors, helped ensure that twinning was accepted reluctantly in Wales. After this, electoral competition meant other parties needed to respond in kind, though notably the less centralized Liberal Democrats were unable to impose action on their Scottish and Welsh parties (Russell et al., 2002). The third crucial decision was that of Labour in government to support a change in the law to allow positive action, following the defeat at the 1996 tribunal. This decision was not finally taken until almost five years later. Once again, the role of women in senior positions, including the Ministers for Women, women MPs and women on the National Executive Committee, were important. So too were fears that the women-friendly image of the party would be damaged, once it was clear that the number of women Labour MPs was set to decline. But by this stage other external factors were also important. The hostility of the press and opposition parties to quotas had gradually died away, following the celebration of the women elected in Westminster, Scotland and Wales. These elections, and the disappointment in 2001, supported what many Labour women had long believed – that significant improvements in women’s representation required rigid positive action. Thus we have the explanation for the last, and equally significant, political decision – that of the Conservatives not to oppose the Bill. Itself

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having now lost two general elections, parallels can be drawn between the Conservative Party of 2002 and the Labour Party of a decade before. The party must appeal to women voters and appear modern. Yet it has repeatedly failed to elect more than a token number of women representatives. At the very least its acquiescence to this Bill avoided public scrutiny of its own record. At most it offers the party an opportunity to drop its opposition to positive action and adopt mechanisms that will improve representation in its own ranks.

Conclusion: Britain in 2002 – sea change? The period 1992–2002 has seen very significant change in the UK with respect to women’s representation in elected office. This was facilitated by the 1997 government’s programme of constitutional change, though there have been many other influencing factors. In 1992 the United Kingdom appeared to provide a relatively hostile environment for women’s representation, with a poor record in Parliament, an electoral system that was difficult to negotiate and a press (and to an extent public) that was hostile to notions of positive action or positive discrimination. By 2002 the environment had been transformed, with new institutions elected via proportional systems enjoying high levels of women’s representation, a legal framework which explicitly endorses positive action by political parties in selecting candidates, and a press and public which accept, celebrate and even demand fair representation for women in elected office. Prospects for the future suggest more change in the same direction. In 2002 the Government began preparations for elected regional assemblies in England. It would be surprising if Labour did not adopt twinning for these elections, whilst other parties, most likely the Greens or Liberal Democrats, may also adopt some form of positive action. In late 2001 a Government White Paper on House of Lords reform supported the Royal Commission’s suggestion of a statutory quota on appointees to a new second chamber, although the prospects for this reform are less clear. Following the passage of the new law, Labour used all women shortlists for half its vacant seats in preparation for the 2003 Welsh Assembly elections, and agreed a similar principle nationally for the next general election. Attitudes to women’s representation have emerged as a key battleground in the Conservative Party, with at the time of writing a lively debate going on about the possible adoption of quotas for parliamentary selections.

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Though still low down the world rankings for women’s representation in national parliaments, the UK has come a long way since 1992. The pattern of developments during this decade provides an interesting case study, and an examination of the dynamics behind change may yield lessons for women facing similar struggles for electoral representation elsewhere.

Note 1. This contrasted with the decision taken the same year by the party nationally to adopt ‘zipping’ (alternation of male and female candidates) for the elections to the European Parliament, which were for the first time conducted using regional lists. Although the UK party had backed positive action the Scottish conference rejected it, both for the new Parliament and for the Scottish European list.

5 Towards a New Politics? Women and the Constitutional Change in Scotland Fiona Mackay, Fiona Myers and Alice Brown

Constitutional change has transformed the political voice and role of women in Scotland. One of the most striking features of the post-1997 restructuring of the British state has been the creation of a devolved Scottish parliament with initially 37 and now 39.5 per cent female elected members – one of the highest proportions in the world.1 Furthermore, under the parliament’s power-sharing model, there are increased opportunities for women as citizens to participate in policy development. In short, the process of devolution has resulted not only in the renegotiation of powers between centre and sub-state nation or region, but also in the redistribution of political power between the sexes. High levels of women’s representation were not a ‘natural’ or inevitable outcome of devolution, rather they were the result of sustained struggle by a pluralist coalition of women who seized the opportunities presented by constitutional change. This gender coup is all the more dramatic given the poor track record of Scotland and the rest of the United Kingdom with respect to women’s representation.2 This chapter discusses the constitutional activism of women in Scotland who successfully entrenched issues of women’s political representation and gender equity into the reform process, and who helped to engineer the gender coup. Devolution campaigns opened up opportunities and new spaces for women to engender mainstream debates about democracy, representation and citizenship. Women activists intervened to promote the representation of women in its broadest sense and to play a part in shaping new political institutions. We place these struggles in context and discuss the influence of women on constitutional change in Scotland. Women aspired to a gender-balanced parliament that would be more democratic, responsive and inclusive than Westminster: a space wherein a new sort of politics – more appealing to women – might 84

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be played out. We examine the extent to which these aspirations have been borne out in practice by focussing upon the experience and role of female and male parliamentarians. We ask what difference has the substantial presence of women made to political institutions and political practices? In exploring women’s agency in the reform process and the question of whether devolved institutions can alter traditional patterns of politics, we distinguish between two different meanings of political representation. On the one hand we use symbolic representation to denote the presence of women as elected members of the new parliament. On the other hand, substantive representation is used with regard to the opportunities for the concerns and interests of women to be heard and taken into account in the policy-making process.

Women’s intervention in constitutional campaigns A coalition of women’s organizations, grassroots activists, female trade unionists, party women, key insiders and gender experts came together under the umbrella of the Scottish Women’s Co-ordination Group. Over a period of about ten years they worked to build a public and political consensus around the key aims of improving the representation of women in political office (symbolic representation) and institutionalizing gender concerns in the new Scottish Parliament through policy machinery and channels for consultation and participation (substantive representation). They also lobbied for a role in shaping a ‘womanfriendly’ Scottish Parliament and politics in order to counteract the traditional masculinist biases of political institutions and the prevailing gladiatorial political culture. The campaign took advantage of the institutional, political and discursive opportunities that the devolution debate and subsequent restructuring process presented. In addition to long-standing aspirations to greater autonomy and self-determination, contemporary demands for devolution were fuelled by dissatisfaction with Westminster politics and neo-liberal Thatcherite social and economic policies. Frustration intensified over the 1980s and 1990s at being governed by a Conservative government that was opposed by the majority of the Scottish electorate. This sense of grievance provoked claims of ‘democratic deficit’, a wide-ranging critique of Westminster politics, and debates about representation and new forms of democratic institutions. A broad-based and popular movement was built up involving trade unions, some of the political parties, business, churches, academics and

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a wide range of community groups and voluntary organizations. This partnership was facilitated by the strength of Scottish civil society and by the tradition of approaching devolution as the re-establishment of popular sovereignty. In particular devolution campaigners aspired to a ‘new politics’, more inclusive and representative than that of Westminster. ‘New politics’ is a broad and rather vague term. However certain key themes emerge relating to new institutions, new processes and new political culture (e.g. Brown, 2000; Mitchell, 2000). ‘New politics’ would be achieved through the devolution of power from Westminster to Scotland; a move from an adversarial system dominated by two parties elected by First-Past-ThePost to a more plural system where smaller parties would gain representation through a proportional electoral system; and by power-sharing through multiparty bargaining, coalition government and a strong parliamentary committee system. Furthermore, building from experiences of exclusion, campaigners also sought to promote a more participatory democracy with opportunities for civil society groups and citizens to play a greater role in political debate, policy development and the prelegislative process (Sloat, 2002). Women introduced a gender perspective to these ‘new politics’ debates and, in the process, transformed them. They claimed that women in Scotland suffered from a ‘double democratic deficit’ on the grounds that as Scots they were governed by a party that they did not support; and, as women they were relatively excluded from decisionmaking positions within Scottish and UK political parties and were poorly represented in elected office. Women argued that it was not enough to achieve a Scottish Parliament if it reproduced the gender inequalities and exclusions so evident at Westminster. Not only would the equal presence of women contribute to a parliament of all talents, gender balance would provide a powerful and visible symbol of a modern, relevant and democratic Scotland. They further argued that if the new institution was to realize its vision of radical difference, women needed to play their part in shaping the parliamentary blueprints. The detailed story of women’s mobilization in the 50 : 50 campaign – ‘one of the most strategic campaigns for equality for women in Scotland’ (McDonald et al., 2001: 233) – has been told elsewhere (Brown, 1996, 1998, 1999; Breitenbach and Mackay, 2001). Although campaigners did not achieve everything they had wanted they did make substantial gains. As Table 5.1 demonstrates a significant proportion of women was elected to the Scottish Parliament in 1999. This was largely due to the use of formal positive action in the case of the largest party, Labour and

Women and the Constitutional Change in Scotland 87 Table 5.1 Gender composition of the Scottish Parliament, 1999 Party

Constituency seats

List seats

Total

Men

Women

Men

Women

Seats % women

Labour SNP Conservative Liberal Democrat Green Scottish Socialist Independent

27 5 0 10 0 0 1

26 2 0 2 0 0 0

1 15 15 5 1 1 0

2 13 3 0 0 0 0

56 35 18 17 1 1 1

50.0 42.9 16.7 11.8 0.0 0.0 0.0

Total

43

30

38

18

129

37.2

informal measures in the case of Labour’s main contender, the Scottish National Party (SNP) (Russell Chapter 4, in this volume, see also Brown, 1999; Brown et al., 1999, 2002; Russell, 2000; Russell et al., 2002). Women gained a strong and visible presence as 37 per cent of elected members in the first parliament. They also held a number of influential positions in the Executive and the parliament. They comprised around a third of ministers and junior ministers and were Conveners of about a third of the all-purpose parliamentary committees. In the first term of the parliament, women held ministerial positions in policy areas traditionally labelled as ‘feminine’ such as Health, Education, Communities and Social Justice and also held portfolios in more ‘masculine’ fields such as Transport and Environment, Enterprise and Lifelong Learning, Rural Development and Sport. Women have convened a range of committees including Local Government, Justice and Home Affairs, Health and Community Care and Europe. Therefore women were and are not only present but also have significant positional power and influence.

Women and institutional design The influence of women campaigners can be also discerned in a number of the institutional features of the post-devolution Scotland. ‘New politics’ is perhaps best encapsulated in the four key principles of the Parliament: the sharing of power, accountability, access and participation and equal opportunities.3 These principles also guide the work of the Scottish government (known as the Scottish Executive). For example, the Standing Orders of the Parliament require that all Executive Bills are accompanied by a statement of their potential impact on equal opportunities (including gender equality). An Equal Opportunities

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Committee has been established within the Parliament and an Equality Unit has been set up within the Scottish Executive. In addition, under the Standing Orders and Procedures the parliament meets at times that are more compatible with family life and recognizes Scottish school holidays. Although women campaigned for equal opportunities legislation to be devolved it remains a matter reserved to Westminster. However, after lobbying by women and equality organizations, the Scotland Act 1998 gives the parliament the power to encourage equal opportunities (other than by prohibition or regulation), particularly the observance of the equal opportunities requirements; and the imposition of duties on Scottish public authorities and cross border public authorities in relation to their Scottish functions. A broad definition of equal opportunities is presented in the Act (1998, Sch.5, Section L.2) as: The prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes including beliefs or opinions such as religious beliefs or political opinions. However, in practice, the provisions are not as enabling as are the statutory duties in Wales and Northern Ireland (see Chaney, Hinds Chapters 11, 12, in this volume). Nor have they played as high a profile in the equalities debate and agenda-setting. Instead, the key principles (seen earlier) and a commitment to mainstreaming have provided much of the drive for progress. Nevertheless the Scottish Parliament can legislate to encourage equal opportunities, and in particular, can place statutory duties on others (such as public bodies and local authorities) to encourage equal opportunities, as it has done in a number of key pieces of legislation. The Executive has adopted a ‘mainstreaming’ approach, endorsed by the Parliament and championed by the Equal Opportunities Commission (EOC) in Scotland, whereby equalities considerations, including gender, are being integrated into the everyday work of government such as policy development and the drafting of legislation. The institutionalization of gender (and other dimensions of discrimination) through mainstreaming was not widely discussed as a strategy prior to 1997. However, in the period 1997–99, intensive lessons were drawn from international experience by the EOC and feminist academics to inform the recommendations of the Consultative Steering Group on the

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Scottish Parliament. As a result a participatory model, stressing public consultation and outreach as well as bureaucratic–technocratic instruments, has been promoted and developed in Scotland through the Scottish Executive Equality Strategy (Scottish Executive, 2000; Mackay and Bilton, 2000; Mackay, 2001b). Post-devolution, there have also been commitments from the executive and the parliament and some developmental work undertaken to make the budget process more gender sensitive (McKay et al., 2002). Devolution has brought new opportunities to feed in the views of women in the community or from different groups and organizations through consultative channels and mechanisms that operate for the parliamentary committees and, for the Scottish Executive, through the pre-legislative process. Extensive consultation exercises have been conducted and considerable energy expended by parliamentarians and civil servants to reach and meaningfully involve previously marginalized groups. Other participatory mechanisms include the Scottish Executive’s Women in Scotland Consultative Forum, the Scottish Parliament Cross-party Group on Women and the Public Petitions Committee4 and the parliament-sponsored Civic Forum. Thus, in addition to the visible improvement in the symbolic representation of women there are also developments that promise women’s improved substantive representation through the institutionalization of their access and voice.

Making a difference? Women in the Scottish Parliament We turn now to the question of what difference women MSPs have made to the Scottish Parliament. The arguments for gender balance in democratic institutions are made on the grounds of equality, justice and fairness, and on the basis of the legitimacy of the democratic system, which Anne Phillips (1995) describes as symbolic arguments. Women make a difference by their mere presence: they ‘stand for’ women in a symbolic sense – as descriptive representatives – in a political institution. They may or may not act differently or in women’s interests, but their presence lends legitimacy to democratic institutions as a signifier of justice, inclusion and recognition. Earlier in the chapter we used substantive representation with regard to the opportunities for the concerns and interests of women to be heard and taken into account in the policy-making process – through the institutionalization of channels and mechanisms. However, arguments have also been made with the expectation that the increased

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presence of women in a parliament or council will make a substantive difference in terms of policy outcomes or political behaviour. These sorts of substantive arguments are commonly classified into two types. Arguments based on different interests contend that women need to be present to ‘act for’ women, and in their own interests (which are seen to differ from men’s). Arguments based upon different resources contend that women bring particular knowledge, values and skills to politics. In this scenario women make a difference by ‘acting like’ women (Hedlund, 1988; Skjeie, 1991; Mackay, 2001a). The relationship between ‘representation’ and ‘representativeness’ is by no means straightforward and conclusions drawn from the international research literature are somewhat ambiguous. Nevertheless, there is a plausible case that the presence of women in political institutions may result in substantive as well as symbolic outcomes (e.g. Dodson, 2001; Mackay, 2001a; Squires and Wickham-Jones, 2001; Thomas and Wilcox, 1998; Wangnerud, 2000). Women politicians appear to have different views of power and political process from their male counterparts. There is an apparent difference in terms of policy interests and priorities, which can result in an impact on political agendas and policy outcomes. Finally, there is some evidence of a politics of ‘connectedness’, relating to issues of communication, consultation and responsive responsibility. These differences are conditioned, sometimes dramatically, by political party. The belief that more women politicians would ‘make a difference’ was instrumental in mobilizing large numbers of women politicians, party and trades union activists and women’s groups in Scotland to campaign for gender equality and women friendly practices in the new Scottish Parliament (Brown, 1996, 1998; Breitenbach and Mackay, 2001). The Scottish Parliament was perceived by many women activists to offer the opportunity for a different type of politics and the development of a political culture which would be less adversarial and male-dominated and would incorporate the values and concerns of women (Brown, 1998; Mackay, 2001a): a move away from the old ‘command and control’ model to more fluid models which would promote wider participation and inclusion. A connection was thus assumed between ‘new politics’ and women’s supposed preferred ways of working (Mackay, 2001a). Although not always explicitly articulated, there were also substantive expectations that women politicians in sufficient number – or ‘critical mass’ – would ‘make a difference’ in terms of shaping political practices (‘acting like’) and making the political agenda more reflective

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of women’s concerns (‘acting for’). Finally many grassroots women activists expected that women politicians would help them to be heard. It is, of course, too early in the life of the parliament and the government to make a systematic assessment of what devolution – and female parliamentarians in particular – have delivered for women in terms of concrete outcomes: the policy and legislative process and implementation cycle is lengthy. However it is possible to make some preliminary observations. We report on exploratory research that captured the first two years of the operation of the Scottish Parliament. Based on an analysis of parliamentary records and more than seventy in-depth interviews with parliamentarians and other commentators, it explored the question: What difference does a substantial proportion of women politicians make to political institutions, political practices and policy agenda?5 It is worth stressing the different context in which women parliamentarians are operating in Scotland as compared to women MPs at Westminster (e.g. Childs, 2002a). The first difference to note is the effect of the electoral system. As a consequence of the operation of a more proportional system, the Additional Member System, no party has an overall majority. A coalition was formed between the Labour Party and the Liberal Democrats with the SNP as the largest party of opposition ahead of the Conservative Party. In addition, there are representatives from two smaller parties, the Scottish Socialist Party and the Scottish Green Party, as well as an independent MSP. The result is a more plural political system with different balances of power. In these circumstances, and in a relatively small chamber of 129 members, there is the potential for the back-benchers to play a critical role. Another major difference relates to the role of the Parliamentary Committees in a unicameral system. The Committees have the power to hold the Executive to account and an important role in the development, scrutiny and monitoring of policy. They can hold their own inquiries and have the power to initiate legislation. Their membership reflects the party balance in the chamber and Conveners are not always drawn from the executive parties. Thus they provide another forum in which alternative political careers can be developed and in which politicians of all parties can make an impact on policy. These institutional differences are best illustrated by the strong feelings of political efficacy expressed by MSPs (male and female, and across party). In contrast to Westminster, most MSPs interviewed felt empowered, effective and able to ‘make a difference’ as back-benchers within the new structures of the Scottish Parliament.

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Overall there was a broad consensus amongst parliamentarians and commentators that the relatively large presence of women MSPs has made at least some ‘difference’ to political practices and political agenda in the Scottish Parliament, although this impact was seen to be highly conditioned by party politics and political context. It is also somewhat difficult to disentangle differences that may be due to the ‘new politics’ principles and institutional design of the Scottish Parliament and differences that may be due to the presence of women. We contend that they are mutually reinforcing.

Are there differences in legislative and political conduct and styles? There were few discernible gender patterns in terms of how MSPs prioritized their work: most prioritized constituency and committee work over party and chamber. Nor were there marked differences in terms of the parliamentary procedures and mechanisms male and female backbenchers used. However, many women MSPs perceived themselves to work in different ways to men: in particular they suggested that they work in a low-profile ‘solution-oriented’ way. One female MSP commented: Men instinctively look for someone to blame, and say ‘no, that was your fault’. Women look at a problem and say ‘let’s find a solution, we will sort out allocating blame later’. It’s a bit like finding a burst pipe. A woman’s first reaction will be ‘let’s get cloths and a bucket and get it tidied up’. A man’s reaction will be ‘what bloody plumber did this?’ ... That is my experience of working with women from other parties in the Scottish Parliament. Women described a more outward facing and collective orientation. They placed less emphasis on oratory and a capacity for thinking on one’s feet, and more on establishing a dialogue based on evidence and prior preparation. Another approach (particularly for Executive party women but also used to some degree by non-Executive women) was informal approaches to ministers in order to highlight a problem before it became a crisis. As one non-Executive party MSP commented, this approach was a way of achieving something for local constituents ‘rather than letting some horrible thing happen for political advantage’. This is an invisible way of working that is hard for researchers to monitor or measure, nevertheless it is an approach with the potential power

Women and the Constitutional Change in Scotland 93

to effect change. However women were wary about the use of the term ‘consensual’ to describe their approach: arguing that conflict was an inherent part of political reality. Female parliamentarians suggested they were more authentic in their actions, less concerned with ‘posturing’ or ‘playing games’ and more with ‘real issues’. This authenticity was seen to relate to their concern with substance, of achieving the desired outcomes, not with how they appeared as MSPs or whether they ‘sound good’. Women felt that men were more likely to emphasize style over substance; to be concerned with the headline rather than the outcome. Turning to the views of male back-benchers: in general, men were more ambivalent about whether there were gendered differences in style. Among Labour and SNP MPs, any reluctance to identify difference seemed to be underpinned by a desire to acknowledge equality: differences, if any, were attributed to individual styles and abilities, rather than gender per se. Some men described their own way of working as co-operative and collective, one that emphasized ‘diligence over charisma’. However, in ways not evident in the women’s accounts, male MSPs used military or games imagery to describe their practice, presenting the image of an individual playing a tactical game: sometimes a game of chess – of manoeuvring or working the system – sometimes a war game of ‘defending an assaulted position’ or engaging in ‘hostile questioning’. Men seemed to place a higher value on public ‘performance’ – in terms of effective styles of presentation – than did women: when women were criticized by men it was for their apparent lack of presentational skills rather than the substance of their actions. The interviews therefore suggest that women and men have somewhat different views about the political process and different perceptions of political efficacy. Although women’s understandings of political efficacy as problem-solving and outcome-oriented are in keeping with the features of ‘new politics’, there were concerns that MSPs are still publicly judged by traditional male (or Westminster) criteria of effectiveness. The difference was nicely illustrated by one female MSP: Once I got really angry in the Chamber ... and lost it in a way. I was having a go at the Lib-Dems and they were standing up to intervene and I was like ‘sit down’, which is not really like me. And the amount of my male colleagues that came up to me and said ‘that was really good, that’s the best speech you’ve ever made’. Whereas in the [...] debate, where I was very calm, very reasoned, very supportive of the Executive, but also came up with some really good points, my female

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colleagues said ‘that was an excellent speech’, whereas none of the men mentioned it. For the men, telling someone to sit on their arse is much more effective than saying ‘I think we can be constructive here’. On the other hand, differences may be less than they at first appear: for instance, the gendered perceptions of different practices were less in evidence when MSPs were asked to describe, in abstract, the qualities of an effective MSP. Similar core skills are valued by both. It is also the case that behaviour was seen to be context and issue sensitive. Therefore, rather than thinking of mutually exclusive opposites it may be more appropriate to consider a continuum of styles. At one pole would be those MSPs who might be characterized as ‘background activists’, seeking to achieve goals by diligence, solution focussed, more oriented towards consensus working and using committees as the main vehicle for influence (mostly, but not exclusively women). At the other pole would be ‘foreground activists’ who seek to achieve goals by declamation, playing an active role in plenary sessions, taking a more individualist approach and employing a game playing strategy (mostly, but not exclusively, men). What is significant is the potential for overlaps and for shifts over time, or in response to specific issues, in either direction, in the characteristic patterns of men and women politicians.

Have women made a difference to policy agenda and political priorities? All the women MSPs surveyed (across party) argued they had had made a difference to the policy agenda in the parliament. Women felt they had been able to put items on the ‘agenda’ and ensure they stayed there. This is best illustrated by the high profile given to domestic violence in both the parliament and the Scottish Executive. A striking example is The Protection from Abuse Act (2001). Under the Scottish system, parliamentary committees have the power to initiate their own legislation and the first Committee-initiated legislation was concerned with domestic abuse. It was driven by women politicians from across the political parties with the support of key men and worked to strengthen legal safeguards for women who have been abused by partners or ex-partners. Women and some men agreed that the priority or ‘weight’ accorded to certain issues had changed as a result of the presence of women, for example issues relating to children.

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Among the male and female MSPs who did feel women had had an impact on the substance of the parliament’s work, this was felt to extend beyond areas primarily affecting women, or traditionally identified as ‘women’s issues’, to encompass the core areas of the Parliament’s work. For example, women were felt, as women, to have influenced discussions on enterprise, transport, rural development and environment. It was also the case that a female-led response to issues was not always articulated in specifically gender terms, as, for example, in the successful back-bench campaign to press the Executive to provide free personal care for the elderly. In a similar vein, women ministers interviewed for the study contended that they had played a role in Cabinet and the Executive putting issues on the agenda and ensuring their relative prominence, for example, equality mainstreaming, women’s and girls’ health issues, childcare and domestic abuse. They also reported that they had introduced a gender perspective to traditionally gender blind portfolios such as transport and economic development.6 Although male MSPs were divided, many agreed that the high proportion of women had made a difference. Those men who have served at Westminster saw stark contrasts between the two places. There was perhaps more consensus that women had made a symbolic difference (in terms of ‘normalizing’ the presence of women) rather than substantive (in terms of conduct or policy impact). Interestingly, women were perceived by some of the male parliamentarians as having an impact on men. Some men reported that their awareness of issues had been raised. As one male MSP remarked: There are issues I may not have thought about or, even if I had thought about them, I may not have seen them as significant as I can now appreciate that they are. That’s very much about some women colleagues, not even pointing it out to you, but just by what they say and you go ‘hmm, haven’t thought of that’. This was not necessarily a radical shift in perspective, but rather a ‘tilting’ or shifting of their views or priorities in response to the persuasive arguments proposed by women. Such change on the margin is significant, however, in terms of shaping political priorities and nudging issues up the agenda. Indeed, the data suggest greater preparedness and willingness by men to raise issues traditionally reflective of women’s interests and concerns, at least in part because of the certainty of receiving support from women MSPs. Finally, some male politicians perceived

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that the strong presence of women had created an environment in which they were able to reflect upon and reform their own political practices. In sum, in terms of perceptions and experience, women and some men believed that women had made a substantive difference upon the political agenda. There is some evidence to support this in terms of the relative prominence of some classic women’s issues on the political agenda. The difference is best understood as subtle rather than radical and relates to a ‘tilting’ of the political agenda. The data also begin to suggest that more men are taking up some of these issues. As a result some traditionally gendered policy areas, such as childcare or domestic violence, were becoming re-framed as mainstream issues. For example, a male non-Executive MSP heads up the Cross-Party parliamentary group on Men’s Violence Against Women and Children; and two successive male convenors of the Finance Committee have championed work on gender proofing budgets.

Conclusions: towards a new politics? As a strategy constitutional activism has delivered significant gains for women in Scotland in terms of opening up the political process and improving their place and voice in Scottish politics. The Scottish case provides another example of feminists using constitutional ‘pegs’ upon which to hang campaigns for gender equity, rights and representation (see Hart Chapter 7, in this volume). Women played a part in envisioning the reformed politics of Scotland; and staked a claim to be present in strength in the new institutions in which this reformed politics was to play out. It was hoped that gender balance in the parliament would improve the representation of women in the broadest sense. One of the greatest fears of women campaigners was that they would have ‘campaigned long and hard for a new democratic institution but that it will be dominated by old politics’ (Brown, 2001a: 226). How would an initial scorecard read with respect to women’s representation and aspirations? There has been a dramatic leap forward in terms of the presence of women as MSPs in the parliament. The political process has undoubtedly opened up to enable women activists as members of organizations or as individual citizens to have a greater role and say in policy development and to make their views known on political issues. Women’s organizations report unprecedented access through new channels and also through women MSPs and ministers. Some

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classic women’s issues, particularly domestic violence have achieved a high prominence on the political agenda. We argue that the presence of women has made a difference in both symbolic terms and substantive terms. We also contend that the presence of women and the new constitutional arrangements and institutional designs are mutually reinforcing. The new politics model – with its emphasis on proportionality, coalition, strong committees, consultation and more collaborative working – resonates with the preferred political practices and style of many women interviewed in this study and elsewhere. There are a number of interrelated effects: first, the ‘goodness of fit’ further legitimizes women’s traditional ways of working; second, women parliamentarians’ daily practice provides men with alternative models of working; and third, the presence of a substantial proportion of parliamentarians who ‘do’ politics differently provides a counterweight to traditional adversarial politics. This may help to explain one of the most striking findings: the apparent convergence in the working practices and policy priorities of women and men politicians and a move away from the gender stereotyping evident in many other political institutions. Whilst this trend can in part be explained by the constraints of party discipline and the pull of ‘politics as usual’ on women, it is more adequately explained by a subtle shift in men’s attitudes, practices and policy agendas. As such the presence of women may have provoked a reconsideration of the masculine norms, values and behaviours traditionally played out in power politics. The presence of a substantial proportion of women politicians in a new political institution, which has been shaped, in part, by women and feminist ideas, has contributed to a more ‘feminized’ parliament. It is important not to overplay these changes in political life and culture, nor to underestimate the pull of ‘politics as usual’. We see partisan politics and traditional political culture mediating and shaping the opportunities for women – and men – to act differently and across party lines. The next few years will be crucial in terms of assessing whether early gains will be sustained and consolidated or whether, as has been the case elsewhere, the political process begins to close down again and the gender agenda stalls (see Albertyn Chapter 6, in this volume). Nevertheless this first study of gender dynamics in the new Scottish Parliament suggests there is a wider range of political possibilities for both women and men in terms of practice, norms and values and priorities in the new institution. Whilst the first few years of the parliament have been marked by conflict and dissent in a number of areas, the new

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gender settlement has not attracted controversy or political point scoring. The ‘normalizing’ of women politicians and the concerns of ‘ordinary’ women is an important part of a new – more balanced – political culture and a broadening of the mainstream political agenda. These are conditions that may deliver and sustain concrete change for women in the longer term.

Acknowledgements This chapter draws upon two projects funded by the Economic and Social Research Council (ROO223281) and (L219252023). The authors gratefully acknowledge this support.

Notes 1. At 37 per cent Scotland compares with international leaders such as Norway at 39 per cent and Sweden at 40 per cent. However it should be acknowledged that there are differences between full and devolved legislatures and that therefore a direct comparison cannot be drawn. The Scottish Parliament has the most extensive powers of the three new devolved assemblies in the UK. It has primary legislative powers across a wide range of domestic policy and also has tax-varying powers. However foreign policy, defence and macroeconomic policy are reserved to Westminster. A useful summary of the different settlements can be found in (Hazell, 2000). It should also be noted that a higher proportion of women (40 per cent rising to 42 per cent) was elected to a relatively weak National Assembly for Wales, which does not have primary legislative powers. The numbers of women increased again after the May 2003 elections, with 39.5 per cent women elected in Scotland and 50 per cent in Wales. 2. See Russell Chapter 4, in this volume for details of the trends in women’s representation at UK and devolved level. 3. These principles were recommended by the Consultative Steering Group, a body set up by the incoming Secretary of State for Scotland to consult widely and make detailed recommendations on the parliament’s standing orders and procedures (CSG, 1998). Women members of the CSG, backed by the Women’s Co-ordination Group and the Equal Opportunities Commission, successfully put the case for equal opportunities to be included as a key principle (McDonald et al., 2001). 4. Although, interestingly, the petitions process has been, to date, dominated by men. 5. For a detailed report of the methods used in this study and its key findings see (Brown et al., 2002; Mackay et al., 2001). 6. This gender-proofing work was seen, in some cases, to add to individual minister’s workloads because of a lack of understanding and capacity within the senior civil service.

6 Towards Substantive Representation: Women and Politics in South Africa Have Women Made a Difference in Post-Apartheid South Africa? Catherine Albertyn

In the early 1990s, South Africans captured the imagination of the world as they sat down to negotiate a new Constitution and a peaceful transition of power from a white minority government to one elected by all its people. The political transition to a democratic order and the writing of a new Constitution provided South Africans with a unique opportunity to establish new and inclusive principles of democratic governance. What was perhaps unexpected was the extent to which women were written into the heart of the new democracy. Not only did the first democratic Constitution enshrine gender equality as one of the ‘moral touchstones’ of the new democracy, but women achieved unprecedented representation within the new state. After the 1994 elections, just over one quarter (27 per cent) of members of Parliament were women (catapulting South Africa to seventh in the world). Women made up 15 per cent (four out of twenty-seven Ministers) of the new Cabinet and 56 per cent (eight out of fourteen) of the deputy ministers. In a world where the average representation in national legislatures was only about 14 per cent (Inter-Parliamentary Union), this was a significant feat. However, it meant that South African women immediately faced the challenge of ensuring substantive representation, namely, of ‘making a difference’ by influencing the policies, laws, priorities and programmes of the new government to improve the status of women. This chapter interrogates whether, why and to what extent women were able to go ‘beyond numbers’ to achieve a more substantive 99

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impact in these terms. It thus considers the ability of feminists in the state and the women’s movement to maintain, and capitalize on, the constitutional gains of the early 1990s to effect meaningful change in women’s lives. The chapter begins with a discussion of the early 1990s, the time of negotiating the Constitution that was to govern the first five years of a democratic South Africa.1 It looks at how women were able to participate in developing a constitutional framework for advancing gender equality, and how they succeeded in achieving such a high proportion of women in the new Parliament. The next section considers whether and how women were able to exploit these achievements and the opportunities offered by the first five years of democracy (1994–99) to engage with law making and policy formulation processes to advance women’s interests. Part four then assesses the period after 1999 where evidence of the disjuncture between newly won policy and legal frameworks and the hard reality of gendered poverty, violence and HIV/AIDS threw up new challenges for women in Parliament. The section briefly illustrates how a greater emphasis on the oversight function of Parliament coincides with a greater centralization of power in the Executive (and the party), and a consequent lessening of the role of Parliament. In this context, the ability of women to ‘make a difference’ is compromised. The chapter concludes with a brief assessment of the lessons of the first eight years of democracy in South Africa.

Entrenching gender equality in the new democracy In 1990, the African National Congress (ANC) and other prohibited organizations were ‘unbanned’,2 starting a process of political negotiations for democracy and peace in South Africa. This collective creation of a new democracy provided women with unprecedented opportunities to write gender into the new constitutional order. Democratic transition, with its emphasis on consensus-building and the need to avoid racial or ethnic conflict, created positive conditions for developing a stable, legitimate and inclusive state. These conditions, together with the readiness of the ANC to promote gender issues, facilitated women’s claims for equality and inclusion (Friedman, 1993; Albertyn et al., 1999; Goetz and Hassim, 2002). Soon after its return to South Africa in 1990, the ANC made a public commitment to the ‘equality of women’ and ‘women’s right to democratic participation in all decision-making ... in principle and practice’ (ANC, 1990). This public statement was the result of intensive political

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activity and advocacy by women within the ANC in the late 1980s to prioritize gender in internal policies and debates about a post-apartheid constitution (Albertyn, 1994; Hassim, 2002a). The ANC statement went on to urge women to take the lead in the process of ‘creating a nonsexist South Africa’ (ANC, 1990). They were quick to do so. In a broad range of activities, women in the ANC, in other political parties and in civil society applied their considerable political acumen and expertise to the task of including women in the new democracy – in the Constitution, in the institutions of the new democracy and in nascent debates on future policy positions.3 One of the major characteristics of this period was the fact that, despite the apartheid past, women were relatively united across deep racial and other historical divides. This unity was forged in a common experience of political exclusion as the rhetoric of gender equality failed to materialize in the composition of the delegations to the various negotiating fora.4 Women aligned across parties to demand and secure a place at the negotiating table. In the main negotiating process of 1992/93 women achieved 50 per cent representation in official delegations and a representation of ‘at least one’ on the technical committees. These committees, made up of about six experts, played a key role in preparing drafts for consideration and decision by the negotiating forum (Albertyn, 1994). In theory, this gave women a voice at key levels within the negotiations. In practice, the power of that voice varied considerably across political delegations and committees (Albertyn, 1994). Particularly important was the creation of a constituency of women in civil society. Again, the common thrust towards political inclusion and gender equality enabled women in the ANC to ally with women in other political parties, in academia and in civil society to form the Women’s National Coalition (WNC) in 1992. The main objective of the WNC was to influence the negotiating process to include women’s demands for gender equality in the new constitution. Through its campaigns, especially the mobilization of women to write a ‘Women’s Charter for Effective Equality’, the WNC was able to achieve the force of moral suasion in the negotiations (Albertyn, 1994). Women within political parties, especially the ANC, were able to use the constituency of the WNC to exert pressure within their own party and within the negotiations as a whole (Albertyn et al., 1999). The WNC also lobbied the negotiations directly to promote and defend the constitutional principles of non-sexism and gender equality and to stave off a concerted attempt by traditional leaders to have customary law exempted

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from the equality provisions of the Bill of Rights (Albertyn, 1994; Kaganas and Murray, 1994; Hassim, 2002a). The capacity of the WNC and key gender activists to intervene strategically in the interests of women was manifest in the final product of the negotiations, the 1993 interim Constitution. Importantly, this included gender equality as a founding principle of the new state (Preamble, s. 1), strong and substantive equality protection5 and an independent constitutional body to promote gender equality – the Commission on Gender Equality.6 At the same time none of these were solely the result of gender activism, and the overall form and content of the Constitution was influenced by a broad range of international and national factors (Albertyn et al., 1999; Andrews and Ellman, 2001; Klug, H., 2000). Nevertheless sustained advocacy and activism were necessary at times to shape and defend the gender provisions in the Constitution. For example, at different times the WNC and women in political parties had to intervene to defend the constitutional principles and provisions of non-sexism and gender equality.7 The Constitution provided for an electoral system based on proportional representation. Although not chosen to accommodate gender (at stake, rather, were regional, ethnic and party interests),8 this system facilitated a high representation of women in the first Parliament. However, the level achieved was largely a result of ANC women persuading their party to adopt a 30 per cent quota on the ANC party list.9 This, in turn, allowed women in other parties to fight for positions on their own party lists.10 In the end, it was the hard work of skilled political activists, supported by technical advisors and a broad constituency of women, that helped to keep gender equality at the centre of the new Constitution. This work was not limited to the task of negotiating the Constitution. Within the ANC and its allies, gender activists were also engaged in influencing the early policy frameworks of what was effectively a ‘government in waiting’. This included policy on the establishment of structures and institutions to integrate gender into the work of the new state, as well as policies in sectors such as health and housing.11 By the time that the ANC assumed office in April 1994, women were equipped with a positive constitutional framework, significant representation in the state (especially Parliament), preliminary policy positions in some key sectors and a basic agenda for action (in the Women’s Charter of the WNC and the foundational work done on various policy issues).

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Making a difference? Women in Parliament in the first five years In 1994, 117 women entered Parliament to take their seats as MPs.12 Just over one quarter (27 per cent) of all elected representatives in the national legislature were women. A woman was also elected Speaker. This section looks at whether women (within and outside of Parliament) were able to seize the opportunities offered by a positive constitutional framework and significant numerical representation to make a substantive difference in terms of the law making and oversight functions of Parliament. In evaluating this, I look briefly at the internal readiness of women to make that difference, and then assess the work of Parliament within the broader policy formulation and law-making processes of the state in the 1990s. It is an obvious point that parliamentary representatives need to be equipped with the necessary skills and knowledge if they are make a substantial impact on Parliament (Lovenduski and Karam, 1998). In South Africa in 1994 the majority of parliamentarians, women and men, were entering the institution (even the building) for the first time. Both women and men had to learn the rules and develop the skills necessary for legislative work. There is little public information available on (or attention to) men’s levels of skill and knowledge, a fact that is revealing about the extent to which politics is assumed to be a ‘natural’ male occupation. However, several studies document the fact that many women parliamentarians lacked the knowledge, information and skills for effective participation in the 1990s, and that this reduced their overall levels of participation.13 Thus particular attention was paid to women’s position in Parliament and the removal of gendered barriers in the form of institutional rules and culture, as well as capacity building for women MPs. Several programmes and structures were established to address this. For example, the Parliamentary Women’s Group was formed in 1997 as an informal (and thus unfunded), multiparty forum to build capacity of women and address the institutional culture. The Women’s Empowerment Unit, a project of the Speakers Forum, was set up in October 1997 as an autonomous body to support women in national and provincial legislatures. These structures seem to have had some impact as recent research has suggested that growing levels of ‘empowerment, change, confidence, support and commitment’ over the first five-year term resulted in women reporting increased levels of confidence and participation (Mtintso, 1999).

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Despite initial evidence of low levels of participation by women generally, the legislative record of the first five years demonstrates that Parliament passed several laws that aimed to improve the lives of women. These included social laws that benefitted women by directly addressing their oppression in the private sphere – laws on reproductive choice,14 equal rights and status in customary marriage,15 enhanced protection against domestic violence16 and improved access to private maintenance.17 Legislation also provided women greater protection in the workplace18 and began to address discrimination in access to basic needs such as land,19 housing20 and water. In addition, laws dealing with local government sought to enhance women’s participation at that level.21 However, a list of laws does not tell us much about the substantive influence of women in Parliament. With few exceptions, parliaments do not initiate laws and generally have a limited capacity to influence their content. Policy and law reform processes in South Africa have also been complex and non-linear processes that involve multiple players in the state and in civil society (Albertyn et al., 1999; Friedman, 1999; Klugman, 1999; Meer, 1999). Research suggests that in the unique context of South Africa in the 1990s, the successful passage of social laws for women emerged from a variety of factors (Albertyn et al., 1999). Within this broad context, the role of women in Parliament has sometimes been minimal. However they have also actively participated in law-making, enhanced civil society participation and held government accountable for enacting laws that secure women’s rights. The new government’s embrace of gender equality as a foundational principle of democracy meant that it became a political and moral standard that gender activists (within and outside the state) could use to advocate for policies, laws and programmes that advanced the interests of women. Many of these policies had already been discussed within the ANC and amongst progressive civil society actors prior to the ANC taking power. Some had been enshrined in the ANC’s electoral platform, the Reconstruction and Development Programme (RDP) (ANC, 1994); others had formed part of the country commitments after the Fourth World Conference in Beijing in September 1995 (RDP, 1995). In the second half of the 1990s the priority was to translate this ‘shopping list’ into workable laws, policies and programmes of the new government. The immediate post-democracy period, 1994–99, witnessed enormous activity on policy formulation and law making as the new government sought to transform the inherited inequalities of apartheid reflected in existing policies and laws. Laws, framed by human rights, were major

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tools for shaping the new society. In addition and in line with the constitutional imperative of open and accountable government, the state sought to deepen democratic participation by developing public participation processes in policy formulation and law reform. Most policy formulation processes were not only open to public participation, but members of civil society were intimately involved in writing policy as consultants and members of drafting teams. The constitutional requirements of ‘facilitating public involvement in the legislative and other processes of the Assembly’ (1996 Constitution, s. 59) opened up the legislative system to public notice periods, the receipt of written submissions and public hearings (De Villiers, 2001). In the new democratic era, Parliament rejected the role of ‘rubber-stamping’ executive policy. It looked to play a substantive role in law making and to exercise its considerable oversight powers to ensure accountability of the executive (1996 Constitution, s. 55). A significant factor was the movement of women into decisionmaking positions in the state. Many were key gender activists of the pre-1994 period who were also influential in the ruling party. With their immediate roots in civil society based gender activism, they were committed to lobbying for gender equality within the state. Indeed, the presence within the state of women and men deeply committed to progress on gender equality was central to the achievement of many policies and laws, as it has been in other countries (Eisenstein, 1996; Sawer, 2000; Chappell, 2002b). In many cases, they retained relationships with women in civil society and were able to work in partnership to advance particular laws and policies (Albertyn et al., 1999; Klugman, 1999). Another priority for gender activists after 1994 was the establishment of structures to integrate gender into the policies, programmes, budgetary allocations and priorities of the state. In Parliament a Joint Standing Committee on the Improvement of the Quality of Life and the Status of Women (CQLSW) was established in 1996 as a temporary committee to engage both the law-making and oversight functions. Its initial mandate was to monitor and oversee progress in the government’s implementation of the Convention on the Elimination of All Forms of Discrimination Against Women and the Beijing Platform for Action through producing a report with recommendations that could be taken up by other parliamentary committees. However, the Committee soon became permanent and expanded to play a more active role in advancing gender equality. It was to play a definitive role in Parliament’s gender work in the first term, especially by promoting priority legislation for women and enhancing the participation of women MPs in law-making

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processes, as well as initiating a gender analysis of the national budget and advocating for budgetary change.22 It also became a focus for advocacy by civil society. This positive constitutional and political environment meant that women’s organizations with specialist research and advocacy skills honed in the early 1990s were able to engage the state in policy and law reform processes. In doing this they forged sectoral and issue-based alliances with other non-government organizations (NGOs). They were also able to work closely with women who had moved from civil society into the state in 1994. Using a combination of technical and political resources, and with a degree of trial and error, they were able to engage the state strategically. In this they learnt that the state was not always receptive to women, but that it constituted a set of different institutions with different objectives and practices (Friedman, 1999). Parliament was one of the more accessible institutions to women at this time. It is in this broad context that the substantive work of Parliament can be evaluated. A few case studies will be discussed here. The first concerns the enactment of the Choice on Termination of Pregnancy Act in 1996 (Albertyn et al., 1999). This is one of the few laws that was largely written by Parliament and that required careful steering through the institution given its potentially controversial subject. It is also the first women’s law (in the sense of a law that specifically addressed issues of women’s subordination) addressed by Parliament. It was placed on the agenda in August 1994 when the Minister of Health announced the appointment of an ad hoc parliamentary committee to investigate problems in the existing law. It is relevant that the Minister was a feminist and a pro-choice advocate who had been part of pre-1994 policy decisions around women’s health. 23 The chairperson of the parliamentary committee was also part of those policy processes. The committee was assisted by extremely active women’s rights and women’s health organizations which had formed an alliance (the Reproductive Rights Alliance) to advance a pro-choice law. These organizations submitted a draft law that was adopted by the Committee in its report (Parliament, 1995). When the Bill was tabled in Parliament the following year, women and men in parliament and in the ANC worked together with women in civil society to steer the Bill through the parliamentary process of public hearings and debates. Key women and men within the ANC engaged in extensive advocacy within the party to ensure that the Bill was passed by Parliament. Significant here was the advocacy within the ANC to secure a caucus vote and not a conscience vote.

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Many things came together to make the law reform process work. A feminist Minister of Health was critical. Support for reproductive rights within the ruling party was equally important. This support had been obtained through sustained advocacy within the ANC throughout the early 1990s (Albertyn et al., 1999). The role of women’s organizations in civil society was particularly important in providing technical expertise and political support as and where required. The relationship between women’s organizations, the Minister, ANC gender activists and parliamentarians was a close one, forged in the pre-1994 days in the WNC and in the health sector policy discussions. This facilitated the co-operative role between civil society and Parliament. However, parliamentarians played a hugely significant role. Not only did key MPs (especially the chairpersons of the various parliamentary committees) steer the investigative and law-making processes, but ANC representatives worked within their party to maintain its commitment to the pro-choice law. Both ministerial commitment and the hard work of MPs in Parliament and within the party sustained the process. The broader constitutional and political context of a commitment to gender equality and women’s reproductive rights provided the political and legal resources for promoting women’s choice. There is no other example of such extensive feminist influence on law-making in Parliament. Most other law reform processes originated outside of Parliament and draft laws were prepared in the South African Law Commission (the state law reform body) and government departments and were subjected to public participation processes by those institutions. However, women in Parliament played a central role in speeding up some of these processes to bring important women’s laws to Parliament. Here it was the CQLSW that played a determinative role (Albertyn et al., 1999). A number of law reform processes were in progress in the late 1990s. In particular, laws relating to customary marriage, private maintenance and domestic violence were reviewed in the South African Law Commission. By early 1998, none of these laws were ready to be tabled in Parliament. Mindful of its responsibility to promote and prioritize women’s laws, the CQLSW developed a list of legislative priorities in consultation with civil society early in 1998. It then engaged in an advocacy campaign within the ANC to push for the laws to be tabled in Parliament. Many women parliamentarians were engaged in this process. In particular, the chairperson of the Committee, a shrewd, experienced and committed activist, played a significant role in persuading the relevant decision-makers in the party and in the

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government, including the President and the responsible Minister, to prioritize these laws. As a result, the laws were ‘fast-tracked’ into Parliament without going through the requisite departmental costing and implementation plans. Once the laws were before Parliament, the CQLSW worked with the Justice Portfolio Committee to drive the laws through the parliamentary processes. This included workshops to educate MPs about the importance of the laws. This example sees a combination of Parliament’s oversight function and law-making function. The CQLSW held Government to account to enact laws that enshrine important rights for women and ensured that the laws were effectively addressed within Parliament. The ability of women parliamentarians to work within the party was critical to achieving these objectives. In accelerating the passage of the laws, the Committee was not particularly reliant on external pressure from civil society. It worked within the ruling party to ensure that the party, as government, responded to the call to hasten law-making for women. The role of civil society organizations in these law-making processes was to engage the content of the law before it entered Parliament and within Parliament (Albertyn et al., 1999). Thus far, I have focussed on laws that directly address women’s subordination. It was in respect of such laws that women parliamentarians made the most substantial impact. In addition, women MPs used special debates and resolutions to promote internal and public awareness on women’s issues and to exercise a broad oversight function on the government’s progress towards gender equality. The fact that the Speaker had been a leading gender activist in the early 1990s assisted these processes. Here, again, the primary focus was on issues of women’s subordination, especially violence against women (Albertyn et al., 2002). Overall, the evidence suggests that women parliamentarians across all parties willingly promoted such issues in the South African Parliament (Budlender et al., 1999). The correlation between an increased presence of women and greater attention to women’s issues in Parliament is a common consequence of enhanced gender representation (CAWP, 2001; Grey, 2002). A more difficult question concerns the extent to which women parliamentarians engaged in the more technical work of ensuring that gender was integrated into the work of all parliamentary committees and all laws.24 This responsibility of parliamentarians had been identified by gender activists prior to 1994 and required specialized gender expertise in a wide variety of areas and spread across all committees (Mtintso, 1999: 64).25 Here, the record of participation was uneven, partly

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attributed to a lack of capacity or technical skills (Serote et al., 1995). A significant exception to the pattern of limited technical engagement was the partnership between women in civil society and the parliamentary Joint Standing Committee on Finance to challenge government to address gender concerns in the national budget (Budlender, 1996, 1997). The Women’s Budget Initiative had a research and an advocacy component, reflected in the partnership of technical skills in civil society (where the research was produced) and advocacy skills in Parliament. Strategically choosing achievable objectives, the research sought to analyse the gender impact of the South African budget in all government departments (Budlender, 1996, 1997; Budlender et al., 1999). This formed the basis for advocacy within Parliament (and outside) to ‘engender’ the budget. In this respect, women parliamentarians, in partnership with civil society, have influenced the transformation of the budget and the budget process into one that takes more account of women. For example, in 1996, the Minister of Finance announced during his budget speech that his Department would disaggregate data by gender, introduce targets and indicators of gender equality and develop a performance review mechanism in respect of gender (Budlender, 1997: 15). Taken as a whole, the first term of Parliament provides many examples of the substantive difference that women can make. However, each case needs to be understood within its particular context. The role that women in Parliament can and do play is inevitably part of a much wider set of questions about the political and constitutional context, the nature of the state and of civil society, as well as more obvious questions concerning the nature of Parliament and the political parties. Within this are the vagaries of policy processes that sometimes generate their own momentum and provide opportunities for creative initiatives to influence laws. The ability of groups and individuals in Parliament and civil society to do this has sometimes resulted in important gains for women. This has been easier in relation to legislating issues that fall squarely within an understanding of ‘women’s laws’, or laws that deal directly with aspects of women’s private inequality, than the more technical concerns of integrating gender across all laws. The partnerships and synergies between women in Parliament and in civil society have been an important aspect of successful interventions. (To the extent that partnerships tended to be with specialist and expert NGOs rather than community activists, this was to have costs further down the line.) However, in many instances women had to work within the party to achieve specific ends. In both cases, hard work has made the

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difference. Overall, the evidence confirms that women need a presence throughout the state, and that creativity and energy are required to make the most of one’s position within the state. Importantly, the South African case suggests that the strength and creativity of individuals can often be as important as the moral force of numbers.

The second Parliament Women improved their representation in Parliament in the 1999 elections to achieve 29.8 per cent of parliamentary seats. Women constituted 36.5 per cent of ANC MPs.26 The Speaker and one of the deputy Speakers were women. The 1999 Cabinet had eight (out of twenty-nine) women Ministers, while eight out of thirteen deputy ministers were women. Women now headed Foreign Affairs and Mineral and Energy Affairs and were deputy ministers in Trade and Industry and Defence. However, this improvement in descriptive representation was not necessarily matched by enhanced substantive representation. The period after 1999 saw a general slowing down of legislation directly affecting women. The only law passed that directly addressed women’s inequality or subordination was the enactment of an antidiscrimination statute, the Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000). Throughout this period, the areas of customary inheritance, Islamic marriage, rape and sexual assault, sexwork, cohabitation and domestic partnerships were subject to investigation by the South African Law Commission.27 The tardiness of these processes and the paucity of laws relating to women partly reflect a shift in state priorities to the effective implementation of policies and laws developed in the first term of office, as well as an emphasis on socio-economic issues. In general, the ANC’s second term of office has been characterized by an emphasis on ‘delivery’ to reduce socio-economic inequalities based primarily on race. Here it has inevitably been constrained by the difficulties of transforming the apartheid state into one able to address these deep inequalities. This partly explains the disjuncture between sophisticated policy and legislative frameworks and the practical problems of implementing and enforcing these. Problems of insufficient resources, as well as state capacity to implement laws and government programmes (even where there are financial resources), have emerged strongly since 1999. The delays experienced in implementing the trio of ‘women’s laws’ fast-tracked through Parliament in 199828 (without the usual prior budgetary allocation and implementation plan in a government department) alerted many in the women’s movement to the gap

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between law and practice. The general problem was recognized by Parliament at the end of its first term when it passed a resolution setting out the objectives for the next five years (1999–2004), noting that the legislative framework established during the first term should be fully implemented by government with sufficient resources (South Africa. Parliament, 1999). Although women in South Africa now enjoy unprecedented political and legal equality in the form of political participation and entrenched human and legal rights, this has still to translate into material gains more than eight years after the achievement of democracy. While some women enjoy greater access to basic needs such as healthcare,29 water and housing (Cawthra et al., 2001)30 and have benefited from gender quotas in development projects,31 there is growing evidence that the concrete conditions of most women remain agonizingly unchanged, and are worsening in some areas. Poverty is deepening (Bharat et al., 2001).32 Violence against women has maintained consistently high levels (Vetten and Bhana, 2001) and women are demonstrating high rates of HIV infection (about one in four women are estimated to be infected).33 It is also clear that high levels of poverty, violence and HIV/AIDS amongst women are inextricably interlinked (Vetten and Bhana, 2001; Albertyn, 2003). Since 1994, the women’s movement has experienced a decline in the sense that there is less unity of purpose, a division into sectors and a growing gap between specialist NGOs and community based organizations. While there are large numbers of organizations engaged in welfare and survivalist projects within communities, these tend to be delinked from formal political participation (Kraak, 2001; Swilling and Russell, 2002). Some of this is inevitable, given the specific conditions that fostered the unprecedented unity of the early 1990s. It has also been shaped by the way in which feminist political engagement with policy and law-making processes has privileged specialist and expert NGOs as those who have access to the state. The division into sectors has meant that there are core areas of feminist activity in which civil society organizations continue to engage the state. For example, the sector on gender-based violence is active in advocacy initiatives and partnerships to build capacity to implement laws. Overall, however, the movement is fragmented in the sense that it is unable to mobilize broad support on women’s issues. In addition, the exclusive sectoral focus makes it extremely difficult to mobilize feminist support on cross-cutting issues such as HIV/AIDS (Albertyn, 2003).

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Within the overall emphasis on implementation and delivery, the oversight role of Parliament, and hence its independence from government, has become more important. Its record since 1999 is uneven. There are highly publicized criticisms of government in some areas, such as under-spending of the Department of Welfare’s poverty alleviation funds. At the same time, Parliament has failed to take a fully independent position in critical areas such as allegations of corruption in the purchase of weapons and military equipment by the state (Jacobs et al., 2002) or criticisms of the government’s HIV/AIDS policies. Such examples are seen to represent a shift in power to the Executive and a decline in the role of Parliament and its committees. Underlying this is a greater centralization of power within the ruling party and less tolerance, even a silencing, of difference and dissent. Within this context, women in Parliament have focussed on specific issues relating to poverty and gender-based violence. Although the CQLSW worked to promote laws that are relevant to these issues, such as legislation on gun control (Govender, 2002), the greater emphasis was on the oversight function. Thus the CQLSW has sought to monitor government actions in reducing the impact on women of poverty, violence and, more recently, HIV/AIDS. The Committee’s activities on these three priority issues included hearings in Parliament, workshops in rural areas, provincial meetings and a workshop in Parliament of 200 women, most of whom came from rural areas (South Africa. Parliament, 2001). The public hearing on HIV/AIDS occurred in 2001, a time of deep controversy on HIV/AIDS in South Africa, especially around the President’s highly publicized questioning of the link between HIV/AIDS and his belief that anti-retroviral drugs were too toxic to administer safely (Mbeki, 2001). As a result, in the face of statistical evidence that nearly one quarter of pregnant women attending public hospitals were HIV positive and more than 90,000 babies were born HIV positive each year (South Africa. Department of Health, 2002), the government refused to extend universal anti-retroviral drug therapy to prevent maternal HIV transmission or to provide treatment to those who were ill and dying (Heywood, 2002). In addition, although there was a growing social movement calling for treatment,34 there was little public evidence of opposition to the President’s position within the ANC. Despite this climate (or perhaps because of it), the CQLSW ‘audaciously’35 provided a forum for representatives from government departments and civil society to make a broad range of submissions about HIV/AIDS and its impact on women and children. This was documented in a report, together with recommendations on prevention and

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treatment, including the provision of anti-retroviral drug therapy (South Africa. Parliament, 2001). The Report notes and details the intersection between gender inequalities, poverty, violence and HIV/AIDS. It is a potentially powerful advocacy tool for Parliament to use in monitoring government action on HIV/AIDS, and especially women’s particular vulnerability to the epidemic and its devastating consequences. However, it was not taken up in the National Assembly or in committees. Nor has it formed the fulcrum of any civil society activity. As a result, the Report is emblematic of the strengths and weaknesses of Parliament as an institution that women can engage to ‘make a difference’ to the day to day lives of poor and vulnerable women. The failure of Parliament to take up the report suggests that the ability of women ‘to make a difference’ is linked to the relative independence and openness of the institution, and its readiness to hold government to account under the Constitution. In a climate of greater executive power, Parliament’s role is, obviously, more limited. ‘Audacious’ action by women in Parliament is possible, but it is also constrained by the relative autonomy of the institution. Closely linked to this is the role of the party. As Goetz and Hassim (2002) have argued, political parties are central mechanisms for channelling demands in democratic systems. Women need to work in and through them to achieve change. This was illustrated in the case studies cited earlier. However, Goetz and Hassim highlight a strategic dilemma for feminists. Women in civil society are dependent upon women in the party to pursue and defend a gender ‘agenda’, but the effectiveness of women in the party can be neutralized when the dominant political and economic interests mitigate against feminist interests. While the CQLSW was able to hold hearings on HIV/AIDS, it was unable to advocate successfully within the party for the report to be taken forward in Parliament. The balance of forces within the party closed that political space down, as it was closed to feminist opposition to economic policy or to the choice of military spending over poverty alleviation (Goetz and Hassim, 2002). This ‘closing down’ is not limited to feminist issues. ANC parliamentarians who wished to raise questions over official economic policy or allegation of corruption in the state arms deal also confronted a ‘closing of ranks’ in the ruling party (Jacobs et al., 2002). At the same time, the work of the CQLSW was not supported by any sustained activity on HIV/AIDS by women’s organizations in civil society. This absence of political activity is partly a result of the strict sectoral divisions in the women’s movement after 1994 that emerged out of conditions of public engagement with the state in specialized areas.

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Contrary to this tendency, the complex and intertwined relationship between sexual inequality, poverty and culture in fuelling women’s vulnerability to HIV/AIDS suggests a need to think across boundaries and combine diverse forms of knowledge and skills in new alliances across multiple public spaces (Albertyn, 2003). The disjuncture between women’s activism on HIV/AIDS in Parliament and the absence of activity in civil society suggests that partnerships between women in the state and those in civil society are as important under adverse political conditions as they are in more favourable times. But they need to be recreated and reinvented in line with changing conditions.

The politics of presence in South Africa Anne Phillips argues that women need to achieve a presence within the state in order to participate within and influence politics (Phillips, 2000). The South African experience supports this argument and points to the broad range of factors that affect the shift from numerical to substantive representation. The case studies and examples have shown that women need to use multiple strategies at different sites within the state and civil society to advance a gender agenda. These change over time and in changing circumstances. As South Africa settles into the everyday business of democracy, and as institutional positions and relationships solidify, the fluidity within the state (and the party) of the 1990s and the political space this gave women has declined. At the same time, the task for women in Parliament has become more complex. Not only is the law-making function more technical, but also the more difficult oversight role is becoming increasingly important. Many of the ‘real’ issues facing the majority of South African women are about surviving poverty and violence and the threat of HIV/AIDS each day. Dealing with these problems is not just about making new laws. Some of it is about the fact that policies and laws are made and not fully implemented, or constitutional commitments are not met. Issues of state resources and capacity matter, as do the values, norms and attitudes of our society. Women in Parliament can play a role in addressing all of these issues. But they will only do so successfully if they are able to operate within a strong climate of accountability, not only of government to Parliament and of Parliament to the women they represent but also accountability within the party. Only then will the hard won constitutional commitment to gender equality move beyond the rhetoric of democracy to take root in day to day life.

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Notes 1. There were two processes of political negotiations before 1994. The Convention for a Democratic South Africa or CODESA lasted from December 1991 to mid-1992 (when it was called off due to excessive political violence) and the Multi-Party Negotiating Process which resumed the process and took place during 1993. For general discussions of the South African transition, see Friedman, 1993; Marais, 1998. 2. South African security laws declared the ANC to be a prohibited or ‘banned’ organization in 1960. 3. There is a growing literature on women’s role in the transition to democracy. See Albertyn, 1994; Cock, 1997; Meintjes, 1998; Albertyn et al., 1999; Goetz and Hassim, 2002; Hassim, 2002, 2002a. 4. At the Convention for a Democratic South Africa (CODESA) in 1991, only 23 out of 400 delegates were women. Protests from women across the political spectrum resulted in the appointment of a Gender Advisory Committee as a working group at CODESA. This was a symbolic victory as there was no guarantee that the views of this committee would be heard or taken account of (Albertyn, 1994). 5. Section 8 of the 1993 Constitution and s. 9 of the 1996 Constitution. This right includes protection against unfair discrimination, as well as provision for remedial and positive measures to achieve equality. 6. Section 187(1) of the 1996 Constitution requires the Commission on Gender Equality to ‘promote respect for gender equality and the protection, development and attainment of gender equality’. 7. This occurred at least twice. First, when the principle of ‘non-sexism’ was removed from the founding principles of the new state. Second, when Traditional Leaders sought to have customary law excluded from the Bill of Rights. See Albertyn, 1994; Albertyn et al., 1999; Hassim, 2002. 8. The PR system was adopted as part of the 1991 Declaration of Intent of the first Convention for a Democratic South Africa (CODESA). This stated that ‘in general the basic electoral system will be that of Proportional Representation’ (Friedman, 1993: 25). 9. The first ten candidates on the list were voted by party members on the basis of popularity alone. After that three in every ten on the list had to be women. For a discussion on the process of achieving this quota see Albertyn et al., 2002; Hassim, 2002. 10. Interview with Sheila Camerer of the New National Party, 20 April 1999. Note that the Inkatha Freedom Party managed to get 26 per cent of women on their very small list, without a quota. 11. Some of this found its way into the (1994). Reconstruction and Development Programme. Johannesburg: ANC, the election manifesto of the ANC. 12. 101 in the National Assembly and 16 in the NCOP out of 400 in all. 13. There is a small body of research on this in South Africa. See Serote et al., 1995; Women’s Empowerment Unit, 1998; Budlender et al., 1999; Mtintso, 1999. 14. The Choice on Termination of Pregnancy Act, 92 of 1996 provides for abortion on request in the first twelve weeks and in terms of broad conditions between twelve and twenty weeks.

116 Women Making Constitutions 15. The Recognition of Customary Marriages Act, 120 of 1998 recognized customary marriages and provided for equality in status, decision-making, rights to marital property and children. 16. The Domestic Violence Act, 116 of 1998 provided for increased protection against violence by removing several definitional and legal barriers to obtaining restraining orders against abusive partners. 17. The Maintenance Act, 99 of 1998 improved the system of securing private maintenance. This was especially important for women claiming maintenance for their children from fathers. 18. The Basic Conditions of Employment Act, 75 of 1997, extended maternity and parental protections and the Employment Equity Act, 55 of 1998 provides protections against sexual harassment and discrimination on the basis of sex, gender, pregnancy and marital status. 19. Various land tenure reforms and laws providing for restitution of land sought to address customary rules that excluded women from land ownership and control. 20. Section 2(1)9d(x) of the Housing Act, 107 of 1997 obliges the government to promote the housing needs of marginalized women and other disadvantaged groups. 21. Section 11(3) of Schedule 2 of the Municipal Structures Act, 117 of 1998, provides that parties should ‘seek to ensure’ that 50 per cent of candidates on their lists were women ‘evenly distributed’ throughout the list. 22. These objectives of the Committee for 1997–98 were set out in a Programme of Action: ●

●

Assess the extent to which departments have prioritized women’s needs, and examine the differential impact of spending on men and women, through an analysis of the national Budget. Identify gaps within existing and proposed policy and legislation, and identify priorities for women. The Committee identified the areas of customary law and violence against women as key areas.

23. This included influencing the 1994 ANC Health Plan to include the principal policy tenet that ‘(e)very women must have the right to choose whether or not to have an early termination of pregnancy according to her own individual beliefs’. A National Health Plan for South Africa, ANC Johannesburg 1994, p. 57. 24. In 1992, a workshop hosted by IDASA and the University of Natal’s Gender Research Group in Durban focussed debate within the country on how gender should be institutionalized in the democratic government. General agreement was reached on the need for a ‘package’ of mechanisms to integrate gender across institutions of the state and civil society. A similar agreement was reached at a 1993 workshop of the Women’s National Coalition on ‘Ensuring Gender Equality in the new South Africa’. 25. In terms of membership of portfolio committees in the first Parliament (1994–99), women’s representation ranged from 0 per cent (Public Accounts) to 73 per cent (Health). Committees in which women dominated included Welfare (60 per cent), and Communications (66 per cent). Women were

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26. 27. 28.

29.

30. 31. 32.

33.

34.

35.

notably under-represented in Land Affairs (18 per cent), Mineral and Energy (12 per cent), Transport (12 per cent), Foreign Affairs (12 per cent) and Labour (19 per cent). The representation in other parties ranged from 33.3 per cent to 0 per cent. It was 15.8 per cent in the official opposition, the Democratic Party. See generally http://wwwserver.law.wits.ac.za/salc/salc.html. For example, the Recognition of Customary Marriages Act was only made operational in November 2000, two years after it was enacted by Parliament. The reasons for this included difficulties in drafting regulations, the need to develop procedures and train officials, as well as the need to identify and allocate economic resources from the budget of the Departments of Justice and Home Affairs. During the presidential state of the nation address to the first democratic Parliament in May 1994, President Mandela announced that there would be free health care for all pregnant women and children under six years. http://www.polity.org.za/govdocs/1994/sp0524.html. In a survey by Nedlac released in June 2000, close to 50 per cent of respondents said that the provision of water, housing and health had improved. For example, the Community Based Public Works Programme has a 50 per cent quota for women in any workforce. Indicators on poverty and inequality since 1994 suggest that the gap between the poor and the non-poor has widened. Inequality is on the increase along race and gender lines. The SA Department of Health found that 24.8 per cent of women attending public health clinics in 2001 were infected with HIV. This was estimated to result in 4.74 million (one in nine) South Africans (2.65 million women and 2.09 million men) infected by the end of 2001. National HIV and Syphilis Seroprevalence Survey of Women Attending Public Antenatal Clinics in South Africa – 2001 SA Department of Health (2002) http://www.doh.gov.za/aids/index.html. The Treatment Action Campaign eventually took the government to court over its refusal to expand provision of drugs to prevent mother to child transmission of HIV. It won in High Court in December 2001 and in the Constitutional Court in July 2002. See Minister of Health v. Treatment Action Campaign CCT 8/02 www.concourt.gov.za. This was the media’s characterization of the Committee’s project.

7 Redesigning the Polity: Europe, Women and Constitutional Politics in the UK1 Vivien Hart

In autumn 1993, the Equal Opportunities Commission (EOC) and Trades Union Congress (TUC) each lodged a complaint with the European Commission against the British government. Months before, the Conservative government had abolished the Wages Councils which, since 1909, had embodied Britain’s scant and gendered minimum wage policy. Unlike every other Western European and North American state, the United Kingdom now had no statutory minimum wage at all. To the government, the abolition of Wages Councils represented a policy decision properly made by Parliament. Under the constitutional doctrine of parliamentary sovereignty, this was the final word. The EOC and TUC reopened the issue. Their radical claim was that repeal of this policy was unconstitutional under European fundamental law, a breach of positive obligations which had been incurred by Britain through membership of the European Community (EC).2 The two complaints vanished into the unaccountable channels of the European Commission and were never answered. Nonetheless, the constitutional politics, logic and legal reasoning that gave rise to these submissions broke new ground and offer instructive lessons about constitutional change and women’s empowerment. First, they serve as a reminder. Current interest (in this volume included) in constitutional change in the United Kingdom focusses upon the post-1997 agenda of New Labour. Modern constitutional change in Britain actually dates from 1973, with Britain’s accession to the EC. Community law effectively gave Britain fragments of a written constitution. In particular, Article 119 of the Treaty of Rome, stating that ‘men and women should receive equal pay for equal work’, created a constitutional opening. Second, women seized this new opportunity to advance their equality agenda by using litigation as well as traditional lobbying. Third, it is true 118

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that the so-called legalization of politics under a written constitution comes with health warnings from some experts. It is argued, for example, that politics and claims of justice become subordinated to lawyers and constitutional technicalities and that when politics moves into the courts the outcomes characteristically favour the wealthy and powerful (Millns Chapter 9, this volume). But gender politics is not just subjected to constitutional innovation, it both creates change and itself changes. Constitutional change is, in a classic Canadian phrase, a process of ‘redesigning the state’ (Banting and Simeon, 1985) in which women will seek to participate. The redesign of state institutions will go hand in hand with the redesign of women’s politics, with new groups, new coalitions and new tactics appropriate to the opportunities that appear. Fourth and finally, the case study of minimum wage policy, with its gender, class and ethnic overlap of needy clientele, exemplifies how group claims for constitutional protection require recognition both of diversity amongst women and difference between women and men. In forging a coalition at the intersection of multiple social identities and redefining the issue to meet the available constitutional opening, women began to redefine the politics of gender to incorporate class and ethnic diversity.

European constitutionalism Britain used to be regarded as the most resistant of nations to the idea of fundamental law. The un-codified constitution of the United Kingdom, based on the principle of unconstrained parliamentary sovereignty, is a mixed bundle of statute, convention and habit. In line with tradition, constitutional changes since 1997 are embodied in statutes which, to leave no doubt, specify the authority of last resort of Westminster over devolved institutions in Scotland, Wales and Northern Ireland and over the Human Rights Act. In 1972, parliamentary legislation, in the form of the European Communities Act, effected Britain’s European membership. While the devolution and Human Rights Acts of 1998 effectively alter Britain’s constitution, and their repeal already seems politically impossible, their formal status leaves parliamentary sovereignty intact (Bradley, 2000: 46–56; Ward, 2000). By contrast, EC membership gave the United Kingdom a partial constitution in the formal sense of fundamental law standing above and constraining Parliament. Technically, the Westminster Parliament could withdraw from Europe, as it could from devolution. But barring the presently unthinkable, for all practical

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purposes Parliament knowingly ceded a degree of sovereignty in the European Communities Act (Bradley, 2000: 39–46; Craig, 2000: 69–79). Even before Britain’s entry, the European Court of Justice (ECJ) had declared that European treaties, regulations and directives formed a ‘new legal order’, one ‘for the benefit of which the states have limited their sovereign rights’ (Van Gend en Loos, Case 26/62, 1963). For the United Kingdom to incur rules and obligations possessing a ‘higher law status with regard to the laws of contracting powers’ was a constitutional revolution (Mancini, 1989: 599). This constitutional revolution differed from the post-1997 changes. It was well-camouflaged, confined to limited aspects of life, and made entirely from above. All of these features of European constitutional change will be seen to affect the practice of women’s politics. To those familiar with constitutions embodied in single documents, from the American Constitution of 1787 to South Africa’s Constitution Act of 1996, the European Constitution is opaque, ‘found, messily, in the Treaties and in a constitutional common law developed by the European Court and its Member State counterparts’ (Weiler, 1999: 7). On top of the accumulation of texts confronting the would-be constitutional claimant is the complexity of what is and is not covered by European law. The enumerated powers and rights originally concerned member states only as participants in an economic community. The details, the product of intergovernmental wrangling over the years, are often timebound and arbitrary reflections of national interest. Much later in the history of European union, the discovery of a ‘democratic deficit’ caused concern. But intergovernmental negotiation remains the paradigm. The absence of feminist involvement in creating the constitutional framework (though not in using it) stands out by comparison with later examples of constitution-making as in Scotland, or Canada, where: ‘Largely through the efforts of feminists and their allies, it became clear that constitutionalism was not the realm of “high politics” and beyond the reach of regular citizens,’ as ‘feminist activists not only seized opportunities but created them’ (Dobrowolsky, 2000b: 202). Article 119 of the EC Treaty is a case in point. Article 119 required equal pay for men and women. It was not drafted with an equality agenda in mind, nor by women, but to meet the French post-war anxiety that a policy to attract women into work should not be undercut by other states paying women less (Ellis, 1998: 59–62). Conceived from this parochial standpoint, the Article ignored the inseparable problems of discrimination in women’s private and civic as well as work lives. Nor did the Article or the treaty address other grounds of discrimination.

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Gender was the exceptional presence in the new legal order, while race, age, disability, religion, sexual orientation, went unconsidered (Bourn and Whitmore, 1993). It took until 2000 for the European Union to proclaim a Charter of Fundamental Rights. It took until 2001 to embark on writing from scratch a comprehensive constitution for Europe.

Women and Europe Nevertheless, this incremental ‘constitutionalizing’ of Europe opened up a new political opportunity for British women. Article 119 and the Directives which fleshed out its requirements were binding on national governments. Now women could argue through traditional policymaking channels that equality in work conditions was a constitutional obligation rather than a political choice, a claim less easily evaded. In addition, given an appropriate case, equality could be promoted through the courts. For a movement of women this constitutional opportunity brought its own problems. The case chosen for action would be one that nicely hung upon some constitutional ‘peg’ or clause and this might not always be the most deserving or urgent. Inevitably, Article 119 created an elitist rather than a democratic opening. Action required legal expertise and financial resources as well as infinite patience with the slow European judicial process, hardly a package to inspire feminist mobilization. The one-dimensional focus on gender placed all women in the same category regardless of sexuality, ethnicity or class, at a time when the recognition of diversity was reshaping the women’s movement (Gelb and Hart, 1999: 157–9). The one-dimensional focus on work discouraged an approach to women’s disadvantage informed by consideration of the gendered structures of the whole of women’s and men’s lives. British women in Europe thus contended with the political and legal consequences of an economic community and a constitution built on neo-corporatist principles and constructed and run by intergovernmental decision-making, incorporating general equality norms and individual citizenship only in the 1990s as late additions. Such imbalances of power and the technical limitations of legalistic constitutional politics were familiar to women elsewhere. In the United States, women have persisted with the political deployment of constitutional rhetoric and law, despite the silence of the text itself on gender equality and their frustration at the glacial pace of change (Van Burkleo, 2001). Canadian women captured the moment to intervene in the writing of the Charter of Rights and Freedoms of 1982 and strengthen its textual guarantees of

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equality. Their lesson of how important it is to get secure and usable rights and gender-sensitive language into the text itself has been welllearned, from Scotland to South Africa (Dobrowolsky, 2000; Breitenbach and Mackay, 2001; Bazilli, 1991). But there are also grounds for optimism in women’s experience with Europe, as with other constitutional systems. Cynthia Harrison describes the stimulant effect of anticipation of an Equal Rights Amendment on governments and courts in the United States. In the United Kingdom, progress was made even under Conservative governments, when it might be expected that the feminist agenda would falter (Gelb and Hart, 1999). Sylvia Bashevkin, comparing women’s political fortunes in conservative times in Britain, Canada and the USA, found one redeeming feature, the moments of constitutional change in two of these nations: ‘British and Canadian activists were advantaged by ... access to European Community levers in the case of the United Kingdom and constitutional equality rights in the case of Canada’ (Bashevkin, 1998: 12). European leverage stimulated reorganization and even revitalization of gender politics. And by the 1990s European litigation had brought landmark advances. Article 119, its accompanying Directives and a series of cases in the ECJ forced progress towards equality in the British workplace. Pay and job security, retirement and pension rights, taxation, sexual harassment and the rights of part-time workers have been changed through legislation or litigation to meet European requirements (Lester, 1996; Meehan and Collins, 1996; Ellis, 1998; Gregory, 1999). A frequent criticism in North America of simple equal rights statements (and of constitutional politics) has been that a ‘ “one-size-fits-all” equality, or “unisex” parity with men’ (Hoff, 1991: 19) both ignores relevant differences among women and reflects privileged white, middleclass women’s conception of equality as with privileged white, middle-class men (e.g. on the USA, Hoff, 1991, chap. 10; on Canada, Bakan and Schneiderman, 1992). Thus equal pay claims under Article 119 required a comparator, a male equivalent to the plaintiff. Such is the gendered structure of the labour market that many poor and minority women work in female-dominated occupations where comparators are non-existent. Nonetheless, the history of Article 119 has been one of pushing at the limitations of narrow definitions of sex and discrimination, work and pay (Ellis, 1998: 63–4; Gregory, 1999). Cases have addressed the rights of lesbian partners and transsexuals to benefits. Pay has been defined to include benefits, discrimination to include the indirect effects of policies on women in general as well as direct discrimination against an individual. Decisions on the rights

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of part-time workers (especially EOC v. Secretary of State for Employment, 1994), have most benefited the minority and poor working women who predominate in this sector of the workforce. But nowhere have women entirely ironed out the generic problems of using a constitution as a political weapon (described, for example, by Schneiderman and Sutherland, 1997). Article 119 promised equality and opened a door. To fulfil that promise involved hassling with the silences of the text, the limitations of legal procedure and bias in the courts. An assessment of benefits gained from the development of European constitutionalism may yet agree with the Canadian experience that constitutional politics rather than constitutional law is most important to the disadvantaged. In Canadian politics, ‘the least powerful actors in society perhaps have been most profoundly affected and shaped by the existence of the Charter’, as for example, indigenous peoples, women and gays. In the courts, the outcome of constitutional litigation has differed: ‘those Charter claims that fit well with the dominant intellectual and political milieu – for example, claims by business enterprises – fared well. Those that did not fit – for example, claims based on grounds of poverty, sexual orientation, and race – did not do so well’ (Schneiderman and Sutherland, 1997: xiii).

Cause for complaints There are few better examples of how a movement must make the best it can of gender-insensitive constitutional texts than the American efforts to use constitutional politics to gain minimum wage policies for the worstoff workers, predominantly women (for a full account, see Hart, 1994a). Achieving legislation, from the first, gendered Massachusetts law in 1912, was only the beginning. Opponents immediately opened a second front on the constitutionality of the laws. Constitutional challenges threatened every basic feature of the policy: the right to regulate the economy; the social responsibilities of state and federal governments; and, crucially, the principle of coverage – whether for women only as a special case, or for all workers regardless of their individual liberties. No wonder Americans looked wistfully across the Atlantic, where the 1909 Trade Boards Act was not ‘bound by our constitutional limitations’ (Hart, 1994a: xi). With no call to conform with fundamental law, Parliament could legislate even ‘before we began to look for the doctrines which underlay our action’ (ibid.: 177). Taking for granted that the policy was for women (always the prime beneficiaries), Parliament nevertheless legislated for ‘low-paid workers’.

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The gender issue was fudged, not openly discussed as in America. But without pressure for consistency, inclusion was governed by power as much as need, and employers and unions held undue influence. With less than 10 per cent of the workforce covered throughout the twentieth century, 70 to 80 per cent of these were women who often received authorized discriminatory lower wage rates. One estimate was that at least a quarter of all minority workers were in these occupations, and in some Asian communities ‘the vast majority of women’ worked at home for the lowest rates of pay (National Group on Homeworking, 1992). Exclusion on no consistent ground was as easy as inclusion. Before abolition in 1993, powerless industries and young workers had already been picked off the list. In its early years, minimum wage policy was regarded as a safety net, not a positive instrument for equality. Quite the reverse indeed. Gendered by law in the United States and in practice in the United Kingdom, such government protection was often alleged to demean women and confine them to low-paid occupations. In 1970, however, the UK Equal Pay Act mandated non-discriminatory minimum wages. Here for the first time Wages Councils were specifically identified as a means of advancing gender equality. Regardless, the Conservative government elected in 1979 promised their abolition. And so defenders mobilized, led by the Low Pay Unit (LPU), EOC and TUC, between them representing the ethnic, class and gender dimensions of the issue. The LPU, an independent research group, spoke particularly for ethnic workers, homeworkers and young workers. It reported to the EOC in 1980 in favour of an inclusive approach to minimum wage policy: ‘attempts to alleviate the low pay of women through selective policies such as the Equal Pay Act, are likely to be less effective than measures to tackle the low pay of men and women and its industrial roots’ (LPU, 1980: 2). Women would in fact still benefit most, since minimum wages ‘would have a disproportionate effect in closing the gap between men’s and women’s earnings’ (ibid.: 26). Between the government’s declaration in 1983 that it would definitely abolish Wages Councils and legislation finally introduced in 1992, allies from the unions to the Maternity Alliance swung into action.

Legalized politics Politics and law converged in the use of European constitutional openings.3 Years later, leading counsel Lord Lester admitted that at first ‘it did not occur to us that European Community Law would play a crucial

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part in promoting equality for women’ (Lester, 1996: 25). He credited the eventual successes before the ECJ in part to a coalition of organizations by no means all previously associated with women’s rights: ‘trade unions, the EOC, the CRE [Commission for Racial Equality], and law centres’ (ibid.: 25). The redesign of labour politics, driven by social and constitutional change in tandem, helped prepare the ground. Historically, unions had marginalized women and opposed government wage rates (Hart, 1994a, chaps 2, 3). As unionized heavy industries employing skilled male workers declined, however, unions looked for new recruits among women. A new approach was confirmed by the establishment of an Equal Rights Department of the TUC in 1988. Organizations like the LPU and National Group on Homeworking (NGH) sprang up to represent some of the least organized, least articulate and least unionized workers. Encouraged by European opportunities, traditional civil liberties organizations took on economic issues, whence came another collaborator, the Pay Equity Campaign. Often these bodies were staffed by a new cadre of trained equal opportunities professionals. Their appointment to its Commission brought both expertise and consensus to the policymaking level of the EOC, which itself had abandoned an early aloofness from the women’s movement in favour of extensive networking. Launched in 1976 to rectify sex discrimination, the EOC had been marginalized by governments and by the delicacy of lobbying its own paymaster. Institutional caution initially discouraged too close an association with ‘radical’ feminism, until a more hostile environment left the EOC little to lose (Lovenduski and Randall, 1993: 178–91). Authorized to take legal action where principle was involved, in the European context the EOC became the right institution at the right time. It found an independent channel and new allies in the women’s movement, in the process raising its own reputation as an advocate for women. This informal coalition educated the public, pressured government and produced the economic, social and legal analysis needed to make a case to the European Commission. When the EOC and TUC finally went to the Commission, both had benefited from this coordinated preparation. They also shared one more, powerful, political motivation – frustration from their close dealings with government. The maturing of women’s constitutional politics in Britain had something to do with opportunity, much to do with timing. Fifteen years of unsympathetic Conservative rule followed hard on the heels of the European equality directives. Successive Conservative electoral victories created a

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class of long-term political losers, just as European opportunities developed. This was the optimal situation for mobilizing around a constitutional strategy, by ‘litigants [who] are highly dependent upon the judicial process as a means of pursuing their policy interests, usually because they are temporarily, or even permanently, disadvantaged in terms of their abilities to attain successfully their goals in the electoral process, within the elected political institutions or in the bureaucracy’ (Cortner, 1968: 287).

Politicized law In June 1991, the TUC arranged a seminar on ‘Using European Equality Legislation’. For most of the twentieth century, there were no counterparts in Britain to the reform-minded lawyers and legally-minded reformers who formulated American minimum wage policy with an eye to the United States Constitution. Now, in workshops on pay equity and the minimum wage, lawyers and academics regularly joined the EOC and TUC, LPU, Pay Equity Campaign, Maternity Alliance, British and European trade unionists and Members of the European Parliament. On this occasion, barristers, law professors, EOC and union experts, activists and authors on discrimination and labour law spoke. Much like American strategy meetings, the seminar brought together ‘the key people’ involved in using European equality law for women, to ‘reach a consensus as to the aspects of UK law which are most vulnerable to challenge ... ’ and to prepare a ‘strategy for the 1990s which will give practical effect in the UK to the EC’s positive concept of equality’ (TUC, 1991). The spark igniting the legal strategy came from Chris Pond of the LPU. He asked lawyer Michael Rubenstein whether Europe could save the Wages Councils. Rubenstein ingeniously suggested that a European case would require several determinations. First, whether abolition would disproportionately disadvantage women; second, whether abolition was objectively justifiable – a question for the government; third whether the British government could be sued to overturn UK legislation; and finally, whether abolition contravened European law. Rubenstein’s view was that such a case might be made. The government’s alleged breach of its obligations would be a legal failure demonstrable only by sociological evidence of the disadvantage to women. So, even before Parliament acted to abolish Wages Councils, the TUC briefed Anthony Lester, QC, to draft a complaint under procedures laid down in Article 169 of the EC Treaty. Union officials set to work to assemble the documents and

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statistics that made the eventual TUC Complaint an inch-thick volume (for a full analysis of the evidence, see Hart, 1994b). In the summer of 1993, the Trade Union Reform and Employment Rights Act became law and Wages Councils ceased to exist. The TUC was ready, and lodged its complaint immediately (TUC, 1993). The EOC was still cautious, doubting that a court would be prepared to acknowledge a condition of inequality brought about by ‘undoing rather than doing’.4 The EOC currently had other arguments with the government and feared that one more might be one too many. But the constitutional case for Wages Councils could be made only for women under Article 119, and EOC involvement would give it weight. At this time, the EOC had long been pressing for comprehensive reform of equal pay law. A government rejection of this demand, combined with the Wages Councils evidence, would make a powerful argument of a broad failure to meet treaty obligations on equal pay. The EOC pushed, finally receiving the government’s decision to reject all but a few minor changes to the law. EOC Chairwoman Kamlesh Bahl regretted that, after twelve years, the government had neither taken their advice nor offered alternatives. The EOC ‘has therefore decided that it must now request the Commission of the European Communities to deliver a reasoned opinion under Article 169 of the EEC Treaty ... ’ (EOC, 1993). The TUC and EOC did not ask for reinterpretation or revision of an existing law, rather that a vacuum be filled. Article 169 of the EC Treaty allows the European Commission, when it ‘considers that a Member State has failed to fulfil an obligation under this Treaty’, to take the offending nation to the European Court of Justice. The UK was accused of breaching Article 119, the requirement to ensure and maintain ‘the application of the principle that men and women should receive equal pay for equal work’. In addition it allegedly failed to meet the terms of the 1975 Equal Pay Directive, requiring that governments provide adequate legal recourse for equal pay claims, ‘take the measures necessary to ensure that equal pay is applied [and] see that effective means are available to take care that the principle is observed’. Finally, Article 5 requires Member States both to take all measures for, and to abstain from any measures which might jeopardize the attainment of, the objectives of the Treaty. The double negative in Article 5, of not doing anything which would not advance European objectives, was used to attack the abolition of Wages Councils as a failure to prevent discrimination against women. These submissions launched British campaigners into a legal arena whose general type was familiar to their US counterparts. In this one

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important respect, however, as a demand for the enforcement of positive rather than negative rights, this was both an unprecedented constitutional claim for Britain and an unthinkable one for the United States. Departing from the now well-established practice of interpretation of British legislation in the light of European law, the claimants instead used the terms and procedures of European treaties and directives to challenge the parliamentary decision to terminate Britain’s minimum wage policy. In their view, abolition was a breach of positive obligations which had been incurred by Britain through membership of the EU. The absence of a means to fulfil a duty to women, not the presence of a means incompatible with European guarantees, provided the grievance. Many national constitutions promise positive, social rights as well as negative, civil rights. Some American constitutional scholars have argued that social (or second generation) rights – to decent social conditions, health, education, a clean environment – can never equate to civil rights. Social rights can be no more than ‘pious exhortations to the political branches of government’, for enforcement would place an inappropriate burden on courts to specify acceptable social conditions (Currie, 1993: 52, 47–54). American efforts to circumvent this obstacle, as by the welfare rights movement (Davis, 1993), have failed. As Millns also argues (this volume, Chapter 9), social rights matter more to women wherever (everywhere) social structures differentiate women’s lives usually to their disadvantage. So long as women bear prime responsibility for parenting, the health and education of their families and cleanliness of their environment, and they predominate in the secondary economy or are on welfare, so long will the problem of turning social rights from rhetoric to material outcomes be a women’s issue. The Wages Councils approach offers a new solution to the issue of proof. Defining a positive standard of equality for women in the workplace may indeed be a political exercise beyond the remit of judges and judicial enforcement. Declaring something not acceptable in terms of procedures and outcomes is akin to what judges already do when they rule on questions of due process or discrimination in many social aspects of life. In this case, the justices of the ECJ were not given the opportunity to respond to this innovative argument. Had the European Commission, the appointed executive arm of the Community, decided to take the case forward, the Commission’s own experts would, without discussion with the original plaintiffs, the EOC and TUC, have presented their own argument to the ECJ. Complaints under Article 169 could take years to run a full course, or be terminated at any stage and without explanation by

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the Commission. And indeed all we know is that the Wages Councils complaints were ‘apparently shelved’ (Lester, 1996: 27; Gregory, 1999: 104). The coalition around this issue survived, however, and in short order its painstakingly compiled evidence and arguments, the silenced ethnic case included, became the basis of a new Labour Party proposal. In 1997, Labour formed a government and introduced a national minimum wage, hailed for its benefits for both women and minority workers (Low Pay Commission, 2001: 6–7).

Conclusion The Wages Council rescue through European channels failed. Was this a generic failure of constitutional politics? Europe had offered impoverished women workers a second chance in the face of government rebuffs. But the opportunity was at the cost of abandoning a public defence of minority workers, because there was no foothold in the EU discrimination clauses. If there is one overriding moral in the Wages Councils fight, it is that the original composition of any rights instrument is all-important. Article 119 was better than nothing, but its limitations distorted the politics of this issue, arbitrarily including those who matched the constitutional clause and excluding those who did not. Further, for all its ingenuity, the legal campaign failed to meet criteria of access and accountability such as those demanded by authors in this volume (see especially Goetz Chapter 3, this volume). This was a distant relative of democratic politics, taking the action far from the workers into the hands of mostly male experts on European law. As predicted by Schneiderman and Sutherland (1997: xiii), the legal strategizing was intellectually challenging and expanded the repertoire of the experts, but without direct benefit to Wages Councils workers. As Harrison suggests of the US experience, in the end it was traditional electoral politics, not constitutional litigation, that brought Labour to power and won comprehensive legislation for all low-paid workers. As Schneiderman and Sutherland also predicted, the political dividends of the Wages Councils campaign were greater, and came closer to the workers themselves, than the legal outcomes, even though nowhere approaching the goal that Alexandra Dobrowolsky has set, where constitutionalism is no longer ‘the realm of “high politics” and beyond the reach of regular citizens’ (Dobrowolsky, 2000: 202). The politics of the minimum wage, which might be expected to have hit rock bottom with the abolition of Wages Councils, were unexpectedly strengthened by this European experiment. Women’s organizations worked with ethnic

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and class-based groups, aided by the maturing of a trained cadre of equal opportunities professionals employed in labour and civil rights as well as women’s organizations. In this case, and with concurrent victories in more conventional European cases, the EOC shook loose from government, its more adversarial role gaining it respect. Campaigners reaped the reward when the Labour government introduced a national flat-rate minimum wage which has, as the LPU predicted, begun to tackle ‘the low pay of men and women and its industrial roots’ while having ‘a disproportionate effect in closing the gap between men’s and women’s earnings’ (LPU, 1980: 2, 26). One expert assessment is that ‘without wishing to overstate the significance of European policies and practices’, European constitutionalism has benefited British women. Its existence ‘has prevented the marginalisation of sex equality from the political agenda in the United Kingdom. And the existence of Community institutions and transnational networks means that women have allies elsewhere and other arenas in which to stake claims that are thwarted at home’ (Meehan and Collins, 1996: 234). The prize of a women-friendly constitution has hardly been fully attained anywhere yet (see Albertyn on South Africa Chapter 6, in this volume). In the EC, British women faced a daunting constitutional system, a jumble of documents and authorities offering only fragments of gender and equality rights, a tangle of national and Community channels and interests, inaccessible executive and intergovernmental decision-making, a Parliament with more power to review than to make policy. When the United Kingdom entered the EC, British women were uniquely lacking in experience of the politics of a written constitution and of judicial review of policy against the standards of fundamental law. But they learned, finding their opportunity in the expansive development of judicial review by the ECJ and the criterion for pay equality contained in Article 119. While there has been no uninterrupted narrative of progress, the development of European gender equality law has meant substantive gains for British women and has helped to impel forward a broader European equality agenda. Perhaps most important in the long run, these first decades of European constitutionalism were a training ground for women in the United Kingdom, who learned to think in terms of constitutional politics and experienced the potential and problems of this mode of action. Thirty years on from British entry to the EC, domestic constitutional politics is a new and open field for women within the United Kingdom, while the European Union’s Convention on the Future of Europe is attempting to draft a codified constitution for Europe. Unlike the early years of EC politics, there exists

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a cohort of feminist lawyers, scholars and activists who understand what is at stake. A lasting legacy of campaigns such as that for the Wages Councils is the readiness of women to take the initiative and to seek to shape the constitutional opportunities of devolution and the Human Rights Act at home, constitutional reconstruction in Europe, in the interest of all women.

Notes 1. The research on which this chapter is based was first presented at the conference on ‘Redesigning the State’ at the Australian National University, Canberra, 1994. I am grateful to Professor Peter Russell and the participants for support and comments. 2. The European Economic Community (EEC) was established by the Treaty of Rome, 1957, merged with two other collective entities as the European Community (EC) in 1967, and brought under the new umbrella, the European Union (EU) in 1993. Although some references in this chapter overlap these periods, for simplicity I have abbreviated the European entity as EC throughout. 3. This account draws on interviews by the author in April–May 1994: Alan Hart, Chief Executive of the EOC, 1985–90; Alan Lakin, Chief Legal Officer of the EOC; Jo Morris, Equal Rights department, TUC; Michael Rubenstein. I am grateful for their help. The interpretation is my own. 4. Interview with Lakin, April 1994.

8 The Politics of Human Rights and Gender Equality in Northern Ireland Colin Harvey

Constitutional developments in Northern Ireland have attracted considerable attention. This is unsurprising given the attempts made to find a political solution to the conflict. After a considerable period, it was finally recognized that the answers lay in politics rather than in security measures or armed conflict by non-state actors. Numerous constitutional solutions and proposals have been advanced in the last three decades. Yet, until recently, all ended in relative failure; if failure is judged in terms of holding out the prospect of a definite end to violent conflict. Despite continuing problems, the Good Friday Agreement 1998 is still regarded as a significant achievement and most continue to view it as the overriding template for political progress. This negotiated document has formed the basis for political and legal changes in the last few years. Since 1998 the emphasis has been on the effective implementation of the Agreement (even if there is continuing disagreement over precisely what the Agreement means). The aim of this chapter is to sketch significant aspects of the process with a focus on the possible implications for gender equality in Northern Ireland. In particular, the focus is on human rights and equality. A starting point for this chapter is that constitutional change has no necessary implications for women (even when it takes legal form). Everything depends on context. Legal standards, even in the areas of human rights and equality, can have detrimental or beneficial results. If judges use human rights law to nullify legal protections surrounding rape trials does this promote or harm gender equality? In other words, a knowledge of how human rights norms are applied is essential as is the ability of group to engage with standards and make use of them. The suggestion here is that social change depends on the politics of translating legal and other standards into practical action. This is not to suggest 132

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that law is irrelevant; quite the reverse. It is simply to restate a familiar position: legal rules do not apply themselves. Unless individuals and groups are prepared to engage then norms tend not to become part of lived experience. One of the lessons from Northern Ireland is that political engagement is a central part of the process of trying to achieve legal and social transformation.

The constitutional context The Good Friday Agreement provided the political basis for the legal changes that have taken place in Northern Ireland since 1998. The Northern Ireland Act 1998, the Police (Northern Ireland) Act 2000 and the Justice (Northern Ireland) Act 2002 all reflect attempts to address in law the implementation of the Agreement. The Declaration of Support committed the participants to the ‘protection and vindication of the human rights of all’ (para. 2). It also contained a commitment to ‘partnership, equality and mutual respect’ (para. 3). The language of human rights flowed through the document. But what about gender equality? A first point to note is that the language of equality is frequently used in Northern Ireland. It is, however, not always clear that the political actors who use it understand precisely the different types of equality involved. At minimum, references to equality in the Agreement must be assumed to include the established grounds of discrimination. There is little in the document that explicitly addresses the position of women in Northern Ireland. This is in a sense unsurprising. The Agreement is constructed around a bi-national conception of the conflict in Northern Ireland (O’Leary, 1999). The main problem requiring a political solution was said to be the nationalist/unionist divide and it is this that the drafters focussed on. Those who negotiated and drafted the Agreement did not view it as aimed primarily at gender equality. Therefore, when many politicians talk of the problems of Northern Ireland they tend not to be discussing the levels of inequality for women in that society. What the Agreement reflects is aspects of a consociational and confederal model of democracy (O’Leary, 1999; Wilford, 2001). The institutions were, in particular, designed to secure participation by the two main national communities in Northern Ireland. The result is evident in the design of the Northern Ireland Assembly (Northern Ireland Act, 1998). To participate in this devolved institution a Member of the Legislative Assembly (MLA) must designate as a nationalist, unionist or other. She is not required to designate as a nationalist or unionist and may in effect

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opt out. It is not difficult to see why some might have a significant problem with the ‘other’ label. Aside from problems with the label, there are real political consequences that flow from the voting structures. For example, the principle of cross-community support is applied in relation to key votes within the Assembly. This has the effect of reducing the practical importance of those designated as ‘others’. This was demonstrated when, in order to ensure the political survival of the First Minister, the Northern Ireland Women’s Coalition (NIWC) opted to alter the designations of their two MLAs. One re-designated as a nationalist and one as a unionist. The episode demonstrated that while some have significant problems with the consociational aspects of the Agreement, tactical use of the structures is also possible. It is essential to note that women also participate within the context of the nationalist and unionist political blocs. The NIWC has played a particularly prominent and important role in arguing for gender equality (Fearon, 2000). The NIWC was established with the express purpose of contesting the elections that determined the delegates to the talks (Fearon, 2000: 153). It is a cross-community political party and is based around three core principles: human rights, equality and inclusion (Fearon, 1999: 153). Although it has faced problems the NIWC continues to be a significant political actor in Northern Ireland. The nationalist-unionist construction of Northern Ireland’s political problems is likely to remain the dominant one for some time. In many ways this is the societal conflict which has attracted the most international attention. Those who support the Agreement tend also to argue for the institutional arrangements. The institutional structure of the Agreement is seen by some political actors as a template which will inform the political structures of Northern Ireland indefinitely that is, even if there was to be a positive vote for a United Ireland within the terms of the Agreement and law. For those who are troubled by the current institutional arrangements this is a problematic prospect. Critics of the Agreement’s institutional design fear that the group rights of the two main communities may override important individual’s rights. Those who support the arrangements correctly point out that it is difficult to imagine how any alternative proposals would ever be accepted. In other words, power-sharing has become an established part of the political language of Northern Ireland. There are some exceptions in the Agreement to the general neglect of gender equality. In the section on ‘Rights, Safeguards and Equality of Opportunity’ there is reference to the ‘right to equal opportunity for all

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in all social and economic activity, regardless of class, creed, disability, gender or ethnicity’ (para. 1). In this section of the Agreement the participants also affirmed the importance of the ‘right of women to full and equal political participation’ (para. 1). There is no doubt that this section of the Agreement can be traced to the political input of the NIWC, a fact that highlights the importance of political participation in the negotiating process. What this demonstrates is that organized political engagement is essential. Without this the NIWC would never have been able to operate as such an effective actor in the negotiation of the Agreement. Many other aspects of the Agreement are of general relevance. There are a number of human rights and equality guarantees which are intended to operate as safeguards. The governing arrangements are, for example, made subject to the protections in the Human Rights Act 1998. The Labour government that came to power in 1997 was committed to legislating for human rights. The Human Rights Act 1998, gives further effect in domestic law to aspects of the European Convention on Human Rights. It is still too early to determine with certainty the precise impact of the Act. It is, however, already clear that the judges are prepared to be proactive in interpreting legislation compatibly with the Convention rights. The Act applies throughout the United Kingdom and thus will have an impact too in Northern Ireland. The establishment of the Northern Ireland Human Rights Commission is also relevant. This development is discussed in more detail below. The creation of a new single Equality Commission was criticized in Northern Ireland by those who were concerned that a ‘hierarchy of discrimination’ would emerge. By replacing the Fair Employment Commission, the Equal Opportunities Commission (NI), the Commission for Racial Equality (NI) and the Disability Council with one Equality Commission the government invited the objection that some forms of discrimination would be regarded as more important than others. The Good Friday Agreement therefore presented an opportunity, as well as containing concepts and institutional devices which troubled some. In terms of the role of women in Northern Ireland the Agreement was shaped to some extent by the participation of the NIWC. By participating in the negotiations it was able to insert some of its concerns into the final document. It was also able to feed into the process more general human rights and equality issues. Many aspects of the Agreement were to find a home in the Northern Ireland Act 1998 and thus become part of the law of Northern Ireland. This demonstrated the fact that political engagement can make a difference. However, it is not evident that the limited references to gender equality are fully reflected in the current legal framework.

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Rights in perspective There is an intense debate in law and politics about the nature and utility of ‘rights-talk’. The easy assumption often made is that rights must be necessarily progressive in terms of gender politics. But as has been pointed out, by Carol Smart and others, this is not always the case (Smart, 1989). Rights need not have progressive results, as work examining rape trials, for example, demonstrates. ‘Rights-talk’ can on occasions undermine attempts to address structural problems that must be tackled through detailed statutory regulation. This is not only a question of the nature of rights, but also of the institutional context within which the meaning of rights is contested. There is often sharp disagreement about what individual rights mean in practice. Take, for example, the issue of the right to a fair trial. Does the exclusion of sexual history evidence compromise the right of the defendant to a fair trial? In the United Kingdom, the House of Lords has decided that it may (R v. A (no. 2) [2001] 2 W.L.R. 1546). The tendency now in critical circles is to approach ‘rights-talk’ with a measure of caution. In other words, to engage in the discourse without illusions about what the practical result might be. This pragmatic mindset focusses on strategies and practices of rights enforcement and acknowledges that there are other important legal and political values that must be defended. For example, there is much talk in the literature now of relational understandings of rights. This, in effect, means approaching human rights discourse in its contextual setting and recognizing that rules do not apply themselves. It is also an acceptance of the contested meaning of human rights norms and the fact that attention must be paid to the institutional contexts within which these contestations take place. These considerations are important when reflecting on the gender debate around rights in Northern Ireland, as elsewhere. The Human Rights Act 1998 plays an important part in the new constitutional structures of Northern Ireland. The Act gives further effect in domestic law to selected rights from the European Convention on Human Rights. The Act does not incorporate the Convention as a whole. The aim of the government was to ‘bring rights home’. What was intended was that individuals could make use of selected Convention rights before domestic courts, rather than being forced to take a case to Strasbourg. In addition, the government argued that it was time to allow British judges to shape the meaning of Convention rights. Rights now protected in law include: the right to life; the prohibition of torture; the right to liberty and security of the person; the right to a fair trial; the

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right to respect for private and family life; the right to free expression; and the prohibition of discrimination. The anti-discrimination provision (Article 14) has attracted considerable criticism for being weak and parasitic. As a result of these concerns the Convention was recently supplemented by a new Protocol 12. It is possibly too early to tell the precise impact that the Human Rights Act 1998 has had on women in the UK generally. However, it would be a mistake to assume that all the implications will necessarily be positive (McColgan, 2000; Millns, this volume). In Northern Ireland there is a body charged with ensuring the promotion and protection of human rights: the Northern Ireland Human Rights Commission. Its functions include: keeping under review the adequacy and effectiveness of laws and practices; making recommendations to government as necessary; providing information and promoting awareness of human rights; and considering draft legislation which has been referred to it by the Assembly (‘Rights, Safeguards and Equality of Opportunity’, Northern Ireland Act 1998, s. 69 para. 5). The Commission began its work in March 1999 and its early years have been troubled. Unionist politicians have consistently questioned the ‘representativeness’ of the Commission and this has been a theme running through much of the debate. In law the Secretary of State for Northern Ireland is required to reflect the community balance in appointments, and this has continued to be a point of some tension. The original Commission had four women members: Christine Bell; Margaret-Ann Dinsmore; Patricia Kelly; and Inez McCormack. However, four new appointments were made to the Commission in November 2001, including one woman: Christine Eames. The situation altered again in September 2002 when two commissioners (Christine Bell and Inez McCormack) decided to resign from the Commission. In their resignation letters they criticized the British government for failing to respect the Agreement in its approach and the Commission itself for the failure to promote and protect human rights in Northern Ireland. The Commission continues to be a troubled body but has done useful work. Since it was established the Commission has undertaken objectives that are of interest for the purpose of this chapter. Perhaps the most significant task that it has been asked to undertake is the Bill of Rights process. On this the Agreement provides: The new Northern Ireland Human Rights Commission ... will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the

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European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland. Among the issues for consideration by the Commission will be: ●

●

the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors. (‘Rights, Safeguards and Equality of Opportunity’, para. 4)

The Commission launched the Bill of Rights process in March 2000 after a request from the Secretary of State. Its aim was to provoke as wide a public debate as possible. The Commission published discussion pamphlets in February 2001 including one on the rights of women. It established a number of independent advisory working groups to report back to the Commission on selected topics. A decision was taken not to have a group dealing specifically with women’s rights. Instead, the Commission established an equality working-group. This group focussed on addressing equality in all its forms. This ‘mainstreaming’ approach did not appear to work. As a result of the consultations in September 2001 the Commission published its preliminary views on what should be included in its draft advice to the Secretary of State. Making a Bill of Rights for Northern Ireland contained a section dealing with the rights of women. This section explicitly recognized that women in Northern Ireland are a ‘systematically disadvantaged group’ (Part 2, Chapter 5). In this section the Commission noted the particular circumstances of Northern Ireland by highlighting the high level of domestic violence and the low level of participation by women in political life (p. 35). As noted, the Commission was initially in favour of a mainstreaming approach (p. 35). The aim was to encourage each group to consider the specific gender issues raised in different contexts. As the Commission acknowledged, this approach did not work (p. 35). Reflecting the submissions it had received, the Commission noted particular concern with the following issues: persistent gender inequality; the inadequacy of reproductive rights; under-representation in the political process; and the prevalence of violence against women and

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girls (p. 35). As a result of these public concerns the Commission opted to propose entrenched and legally enforceable rights in these areas (p. 35). This included ‘the right to adequate and accessible reproductive health care’ and ‘a state duty to promote fair, full and effective participation in public life and freedom from gender-based violence’ (p. 35). The document contained several other sections of relevance to women in Northern Ireland. For example, reference was made to social and economic rights. The document reflected preliminary views and remains largely aspirational. The proposals received a mixed reaction. Christopher McCrudden, for example, argues that they are not the way forward: In large measure, the chorus of criticism to which the document has been subjected is justified. It is sloppy, rushed, internally inconsistent, technically unconvincing, and lacking any coherent vision (McCrudden, 2001: 383). The approach of the Commission was debated in the Northern Ireland Assembly and at the Northern Ireland Grand Committee at Westminster. The Commission has also appeared before the Committee of the Centre of the Northern Ireland Assembly. The Civic Forum has also considered the process. The Commission has now suggested a third phase of public seminars as a way to finalize its advice. However, following the resignations of two of the Commissioners the Commission (at the time of writing) appeared to lack a clear strategy for the way forward. In this respect the creation of an ad hoc Bill of Rights Coalition by the community and voluntary sectors in Northern Ireland may prove to be a significant development in furthering the Bill of Rights debate.

Mainstreaming equality Equality forms a central place in the political rhetoric of Northern Ireland. Political parties often refer to the term. However, they are often less forthcoming on what precisely they mean. In other words, it is unclear whether the mainstream political parties are referring to anything more than the national aspirations of the communities they represent. This highlights the fact that there are different types of equality. National equality has tended, for understandable reasons, to dominate the debate in Northern Ireland. Equality between the two main communities has been identified as one way to secure lasting peace.

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While there is little doubt that women in the two main communities have benefited from this, the result has been a general neglect of gender equality. In its attempt to bring human rights and equality from the margins to the mainstream the Agreement reflected a broader vision. Gender equality assumed an important place. In other words, social equality as well as national equality was at the core of the Agreement (McCrudden, 1999). The establishment of a new single Equality Commission in Northern Ireland was not universally welcomed. There were fears that it might lead to a ‘hierarchy of discrimination’ with gender equality losing out to issues of fair employment. There is some evidence to suggest that integration within the Commission has not been a smooth process. This is, however, to be expected given the practical problems involved. It is still too early to reach firm conclusions about the work of the Equality Commission in implementing the statutory equality duty contained in the Northern Ireland Act 1998. However, the duty is a reflection of the fact that equality forms an important part of the new legal framework. One aspect of the equality debate in Northern Ireland is what it means to talk of ‘reflecting the community balance’ or to say that a body must be representative. Unsurprisingly, this matter has arisen within the context of public appointments. In Northern Ireland, for reasons that should now be obvious, public appointments are scrutinized closely. The issue of appointments to public bodies has already been discussed in relation to the Human Rights Commission. However, a case involving appointments to the Parades Commission highlights some of the problems faced by women in Northern Ireland who wish to participate actively in public life. A challenge to the appointments process failed on the basis that the idea of representativeness could not be taken to include gender and thus had a specific meaning in the Northern Ireland context (In re White [2000] NIHEC 11). In appointing the Parades Commission the Secretary of State has not selected any women. The Lord Chief Justice stated that he did not believe that ‘representative of the community’ included gender balance. Northern Ireland is frequently now referred to as a society in transition. The Agreement and the legal changes since have certainly been impressive. However, the law and political reality often stand a considerable distance apart. Talk of a ‘new beginning’ and a ‘fresh start’ confronts a legacy of discrimination and of human rights abuse. The Agreement matters in this context because it continues to provide a political basis on which to anchor challenges to the established order. Once enacted in law, legal force was also given to many of the political

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aspirations. In terms of the role of women in Northern Ireland, there are now standards that are not necessarily all contested. The problem now tends to be one of effective implementation. Whether this is considered in relation to European Community law, the Human Rights Act 1998 or the sex discrimination legislation, a normative basis exists for the promotion of equality. Much of this is not directly linked to the Agreement. Struggles over equality pre-date the Agreement. However, the Agreement and what has followed stand as an example of the fact that political change can come about through engagement with constitutional processes. In this respect, the NIWC played an important part in arguing for gender equality as a central aspect of the ‘new Northern Ireland’. As Kate Fearon argues: What the Good Friday Agreement appears to have done, therefore, is to lift the veil on politics, to make it a less difficult enterprise to engage with. It has been revealed as an accessible, even an attractive entity. And this is how the Agreement will have perhaps the greatest import for women (Fearon, 1999: 163).

9 Women’s Rights after the Human Rights Act 1998 Susan Millns

An important function of any Constitution is to guarantee respect for fundamental rights. It is hardly surprising, therefore, that a key aim of recent constitutional changes in the United Kingdom has been to improve human rights protection, culminating in the passage of the Human Rights Act 1998 (HRA).1 Yet, as has been amply demonstrated by the critique of rights discourse in other liberal constitutional democracies such as the United States and Canada, formal legal rights do not necessarily deliver on their promise to end the oppression of marginalized groups (Tushnet, 1984; Mandel, 1989; Bakan, 1997). This inability has been articulated particularly with respect to women’s inequality (Brown, 1995; Kingdom, 1991; Smart, 1989). As Wendy Brown (2000) has argued in addressing the question of the value of rights language for women, rights are to be suffered as ‘paradoxes’. They are ‘that which we cannot not want’ (Brown, 2000: 231); their inherent desirability as tools of liberation masking their abstraction and universalism which tends inevitably towards a perpetuation of women’s exclusion, a failure to acknowledge difference and a lack of recognition of the diversity of women themselves. Bearing the critique of rights in mind, but acknowledging that it is not wholesale,2 and that the reality of the new rights regime in the United Kingdom is something feminists cannot not address, this chapter investigates the possibilities of the HRA for improving women’s lives. It will be argued that, just as Wendy Brown suggests, the new rights regime presents a paradox, offering both potential and problems and suggesting reasons to be both optimistic and pessimistic over its implementation and interpretation. The argument is made in two stages. First, the chapter outlines the background to the passage of the HRA and some of its key features, adopting a perspective that is primarily strategic in eliciting 142

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the opportunities and difficulties for women of what is a technical legal channel for making rights claims. This is followed by a second section that considers judicial application of the Act so far in two specific areas, assisted suicide and sexual violence, which have impacted upon women’s rights in more or less obvious ways. Developments here show a striking tendency to follow trends in North America, pointing to the likelihood of further mimicry in other controversial, but as yet uncontested, areas such as abortion. This suggests feminist lawyers should be aware of the need to take not only offensive, but also defensive action with regard to rights claims made under the new system.

The HRA 1998: background and scope The United Kingdom, with its unwritten set of constitutional arrangements, has traditionally managed without a Charter or Declaration of Rights, having recourse instead to a variable diet of anti-discrimination legislation, case law and an increasing number of measures from the European Union (see Squires Chapter 13, this volume). Despite this historic absence, the HRA was introduced swiftly and with little controversy following the arrival in office of the Labour government in May 1997. Largely a Labour party initiative, the move was supported by more liberal members of the judiciary together with civil liberties groups such as Liberty and Charter 88 which had long campaigned for the introduction of a Bill of Rights, but none of which pursued a specifically feminist or women’s rights agenda (Klug, F., 2000: 152–63). A main reason for the lack of controversy (and possible explanation for the lack of engagement by women’s campaign groups with the reform project) is the benign nature of the Act itself, which lacks much of the bite of its North American equivalents, in particular having no freestanding equality clause. Rather than seeking to install a newly drafted Bill of Rights, the HRA simply incorporates the existing European Convention on Human Rights (ECHR) into domestic law, which means primarily that for the first time litigants can rely directly on the rights guaranteed in this instrument (e.g. the right to life, the right to respect for private and family life and freedom of expression)3 before the national courts and so avoid the cost and delay involved previously in taking a case to the European Court of Human Rights in Strasbourg. Introduced, therefore, by the government as a project to ‘Bring Rights Home’ (Rights Brought Home: The Human Rights Bill, 1997) the HRA envisages making national human rights protection more routine and more accessible. In short, it aims to mainstream human rights,

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providing a core set of political and legal values for an otherwise ‘Godless age’ (Klug, F., 2000). On the positive side, the HRA is welcome to the extent that it opens up a new window of constitutional opportunity for litigants (including women) to raise previously unheard arguments before the courts based upon alleged violations of their fundamental rights (Palmer, 1996). That said, the extent to which the rights contained in the Act might be instrumentalized to women’s and other minority groups’ advantage, is debatable. This is not only because of the inherent and paradoxical problematic which rights claims carry in and of themselves. The problem relates also to the Act’s scope, both material (the rights it guarantees) and personal (those who are bound by its provisions) which make it largely incapable of addressing the specific nature of genderand race-related harms. With regard to its material scope, the European Convention is typical of many international human rights instruments, being premised upon the need to sanction state actions that violate fundamental rights in the public sphere. As such, it contains a familiar list of first generation civil and political rights and is notably short on the provision of second generation social and economic rights (see Ewing, 1999). This is not to mention the absence of third generation cultural, environmental and developmental rights and an emerging fourth generation of ‘bio-rights’ associated with the regulation of new biotechnologies. Feminists, however, have notoriously challenged the construction of such rights instruments arguing that they do not provide an effective way of tackling harms against women which may represent a more privatized form of injury, comprising in particular harms to the body of a sexual or reproductive nature (Bunch, 1990; Butler, 1993; Brown, 1995; Charlesworth and Chinkin, 2000). This limited coverage has two particular consequences as regards the protection of women’s rights. First, in many respects social rights, for example, rights to adequate health care, housing and social benefits, along with cultural rights and the new bio-rights may be far more pertinent to women’s everyday lives and needs than traditional civil and political rights. For example, a right to respect for private life which guarantees that women may choose even first-trimester abortions is relatively empty if the state fails to provide adequate health care provision and material resources such as information and counselling for women to put that right into practice. Similarly, the right to found a family may be of little service to infertile women if the state does not provide adequate financial means to support assisted conception services.

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Second, the narrow content of Convention rights means that litigants have to hang any claims they seek to make onto those rights that are available. For women, this begs the question as to whether gendered harms are covered by the substance of the Convention rights and whether women can be considered sufficiently ‘human’ to be brought within the limited sphere of their protection (as debated by Catharine MacKinnon (1993) with regard to international human rights instruments generally). Looking by way of analogy at international instruments it might be argued that gender harms can sometimes be reformulated to squeeze into the framework of rights on offer. For example, the sustained critique of the way in which rape and sexual violence have been used in times of armed conflict as an explicit instrument of warfare and yet have not been found to fall within traditional definitions of war crimes (e.g. Buss, 1998; Charlesworth and Chinkin, 2000: chap. 8; MacKinnon, 1993), has prompted the recent reconceptualization of crimes against humanity by the International Criminal Tribunal for the Former Yugoslavia to include rape (Kunarac, Kovac and Vukovic, 22 February 2001, see commentary by Buss, 2002). Despite this development in international law the issue remains problematic for a number of reasons. With regard specifically to the ECHR, this document does not address directly the question of crimes against humanity nor does it contain a right to respect for bodily integrity. It might be argued, nonetheless, that sexual violence could fall within the ambit of Article 3 which prohibits torture and inhuman and degrading treatment (as in Aydin v. Turkey (1997) 25 EHRR 251 where the victim was raped in police custody) or that it might be addressed as an aspect of respect for private life (as in X and Y v. The Netherlands (1986) 8 EHRR 235 where a young woman with learning difficulties was sexually assaulted by the son-in-law of the directress of the institution in which she lived). These constructions depend, however, on the willingness of the judiciary to reorientate Convention rights in specific ways, a dependency that is not certain to materialize and is unsatisfactory in failing to provide legal stability and clarity. Even if the civil and political rights contained within the ECHR are capable of reinterpretation to address specifically gendered harms, it is notable in comparison with most international and national declarations of rights that women may fail to benefit from the Convention because it lacks a specific equality clause or indeed any commitment to ‘equal rights’. While the Convention does contain an anti-discrimination provision in Article 14,4 this is not freestanding and, as such, can only be used in conjunction with the alleged violation of a substantive right

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under the Convention. Thus, any victim unable to frame her claim in terms other than ones of pure discrimination would be unable to take the benefit of the protection offered by Article 14. This issue is lamentable and demonstrates one of the pitfalls of enacting a pre-given catalogue of rights, comparing disfavourably with the efforts of Canadian feminists to secure the presence of an equality guarantee in their Charter of Rights, and also seeming at odds with other aspects of the UK’s constitutional reform programme which notably includes the promotion of a new equalities agenda (see Chaney, Squires Chapters 11, 13, this volume). A further limitation of the Convention rights is that, being addressed only to states, they seem a priori to cover only those violations of fundamental rights that are carried out by public and not private actors. The HRA perpetuates this difficulty as it is concerned primarily with the review of executive action (i.e. that of public authorities and those private bodies exercising a public function) for its Convention compliance (s. 6, HRA). Consequently, feminists’ concern to avoid an oversimplification of the public–private divide (e.g. Boyd, 1997; Pateman, 1988; Thornton, 1995) and the recognition that the abuse of women’s rights may more usually occur at the hands of private individuals is not addressed by the Act’s apparent lack of effect between non-state actors. That said, under the case law of the European Court of Human Rights it has been held that states may be under positive obligations to prevent harm caused by private persons and so have a duty to protect victims of rights abuses. For example, in the case of X and Y v. The Netherlands (1986) 8 EHRR 235, mentioned above, a sexual assault carried out upon a minor in a private institution which had gone unprosecuted led the European Court to find the Netherlands in violation of the right to respect for private life under Article 8. The Court concluded that the state’s positive obligations ‘may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves’ (para. 23). Yet, despite the European Court’s indication here that an individual’s actions may sometimes indirectly fall within the scope of the Convention through a lack of intervention on the part of the State, this is in no sense an absolute rule. The European Court has never stated that there exists any general duty to intervene in the private sphere in order to address human rights violations. Furthermore, even where a positive obligation can be found, states enjoy a considerable ‘margin of appreciation’ in their application of Convention rights. This means that the particularity of local circumstances may be sufficient to justify the state’s

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lack of intervention to prevent abuse in the private realm and that the depth of international review is relatively restrained in terms of permitting national authorities to decide upon the level of rights protection deemed adequate in the national system (Whitty et al., 2001: 21).

Judicial application of the HRA Having sketched out some of the concerns associated with the scope of the HRA, the second section of this chapter considers its application so far. This requires bearing in mind some of the challenges associated with making rights claims in the courts, which, while not specifically only a gender concern, nevertheless resonate strongly in the case of an assertion of women’s rights. Notably such challenges revolve around the individual nature of rights claims that can generate tension when these rights are posited alongside a more collectivist vision of the need to protect vulnerable groups within society.5 Rights claims can also induce a backlash against the (female) claimant and lead to counter claims (for example, by men, fathers, doctors, children, even foetuses), which require the judiciary to engage in a careful balancing exercise. The increased involvement of the judiciary in this process suggests first and foremost the need for some reflection upon the constitutional position of judges in the adjudication of competing rights claims. The new rights culture has seen a shift in the balance of power between the various organs of the state charged with ensuring the protection of fundamental rights. Primarily it is the powers of the legislature and those of the judiciary that have altered in favour of the latter. This shift may not represent a universal good from a feminist perspective when seen as an issue of capacity to represent, understand and reflect women’s experience and interests. At the crude level of numbers, while women may still make up less than one-fifth of the total number of members of parliament, this figure is higher than their number within the senior ranks of the judiciary, there being as yet no women among the twelve judicial members of the House of Lords, and only two out of thirty-five (5.7 per cent) in the Court of Appeal and six out of 107 (5.6 per cent) in the High Court.6 The question of a democratic and gender deficit inherent within the move to an increased involvement by judges in rights issues, especially in areas where parliament has already legislated, does, therefore, need to be posed. On the face of things, however – and unlike in Canada and the US – the HRA maintains the sovereignty of parliament meaning that the judiciary may not disapply Acts of parliament (see Ewing, 1999, 2000;

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Feldman, 1999). This at least ensures that legislative provisions, which have been hard fought over in parliament (e.g. the Abortion Act 1967 and its subsequent amendments), cannot be directly overturned by an unelected judiciary. Nevertheless, the HRA does empower some courts (the High Court and above) to issue a ‘declaration of incompatibility’ which signifies a finding of a legislative breach of the Convention (s. 4, HRA) and which may then be remedied via a ‘fast-track’ procedure allowing the appropriate government minister to issue an Order amending the legislation, which is subject to the approval of both houses of parliament (s. 10, HRA). This compromise position preserves legislative supremacy while still giving a degree of leeway in interpretation to the judges. The fast-track procedure, however, will clearly short cut parliamentary debate. Not surprisingly, commentators are divided as to the prospect for an enhanced protection of women’s rights where the judiciary are empowered to make decisions which are inevitably replete with moral and political overtones. Aileen McColgan (2000) in her prospective analysis of the impact upon women of the HRA evokes what she calls the ‘false promise’ of human rights and expresses concern as to the democratic legitimacy of increased judicial intervention, failing to derive much comfort from the fact that parliamentary sovereignty is (at least theoretically) still preserved. On the other hand, Joanne Conaghan (1996) sees litigation strategies pursued before the courts (in the area of the development of the law of torts to encompass sexual harassment) as an important mechanism for judicial enterprise which can sometimes enhance the rights of minority groups who have otherwise found themselves marginalized, or unsuccessful, before the parliamentary process. On balance so far it seems, unfortunately, that the more sceptical view is valid. In two key decisions in the areas of assisted suicide and sexual violence, the House of Lords has notably failed to support the position of women victims, showing a tendency to follow North American developments, particularly decisions of the Canadian Supreme Court, and giving perhaps a taste of what is to follow on other ‘women’s rights’ issues in the future. First, therefore, with regard to assisted suicide, the tension between the rights of the individual and the protection of those of a wider social group has been brought to the fore recently in the case of Mrs Diane Pretty. Although on the face of it not an overt example of an assertion of women’s rights, the case does raise a number of important questions when viewed from this perspective. Mrs Pretty, severely incapacitated and terminally ill with motor neurone disease, sought to rely on her

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Convention rights (the right to life under Article 2, the prohibition on inhuman and degrading treatment in Article 3, the right to respect for private life in Article 8, freedom of belief and conscience under Article 9 and the prohibition on discrimination under Article 14) to assert that she should be able to seek assistance from her husband to commit suicide. This would enable her to avoid a humiliating and distressing death. In a series of judgements that situate Mrs Pretty’s case within the context of the need to ensure that vulnerable persons should not be coerced into requesting an early termination of their life, and substantially following the Canadian Supreme Court’s decision in Rodriguez v. The Attorney General of Canada [1994] 2 LRC 136, both the House of Lords (Pretty v. Director of Public Prosecutions [2002] 1 All ER 1) and then the European Court of Human Rights (Pretty v. the United Kingdom (Application no. 2346/02) judgement of 29 April 2002) found no violation of Mrs Pretty’s Convention rights. Rather, her individual claim failed in order to protect a class of unspecified vulnerable others. The positioning of this case relative to improving the quality of women’s lives (and deaths) is not easy. While on the one hand the appeal to vulnerable victims may have little in general to recommend it to a feminist strategy of empowerment for women, there is, nevertheless, a sense in which the whole question of assisted suicide and euthanasia harbours a gender dimension which lurks unarticulated beneath the case law, suggesting that the class of vulnerable persons is likely to contain more women than men. Hazel Biggs (1998), for example, argues that while death is obviously a universal experience, women’s relationship to death and dying may be considerably different from that of men. This is for two reasons. First, it is women rather than men who are most often primary carers and this may impact upon their experience of death and dying, culminating in their more vociferous call for the legalization of euthanasia. Second, women generally live longer than men and, having cared for their menfolk, are subsequently left to care for themselves as they grow older and more infirm. The desire to avoid death in a communal home, or to avoid the greater economic contribution that their care may involve over a longer period of time, may mean more women will seek an early end to their life to avoid becoming a burden upon family and friends. The danger is that the endorsement of a right to die could easily slide into a duty to cease being a burden (Biggs, 1998: 295). Thus, the need to provide adequate legal safeguards to protect a vulnerable category of predominantly female victims needs to be viewed seriously alongside Mrs Pretty’s individual rights claims to autonomy and to a dignified death.

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It is, nevertheless, not impossible to see within Mrs Pretty’s call for death with dignity the paradoxical instrumentalization of individual rights in order to end the individual and isolated experience which death of the terminally ill seems to entail. The desire to die in the manner of her choosing, with her family around her, points to a need for a sustained relationship to others in death as in life. Given the argument made by psychologist Carol Gilligan (1982) that women approach moral decision-making from an ethic of care and connection in contrast to a male ethic of justice it would seem that the desire to protect the collectivity of vulnerable victims in this case exposes a tension between this and the desire for connection on the part of Mrs Pretty, a connection which might be felt more generally by female sufferers at the end of their lives than by men. It is not only a balancing of the interests of the individual against those of the community that requires sensitive judicial management in the new HRA era. There is also a requirement that competing individual interests be reconciled or prioritized. The tendency in a rights based culture is therefore that, once asserted by one individual, rights may generate counterclaims not simply in favour of group rights, but also the rights of other specified individuals. In this respect the House of Lords has been required to engage in a balancing exercise in the area of sexual violence and rape trials which has in fact resulted in an assertion of the rights of the (male) defendant over and above those of the (female) complainant, again showing a worrying tendency to replicate the Canadian Supreme Court’s example of striking down statutory ‘rape shield’ law reforms (Busby, 1997; Murphy and Whitty, 2000). In the case of R v. A [2001] 3 All ER 1 it was found by the House of Lords that s. 41 of the Youth Justice and Criminal Evidence Act 1999 which prohibits the giving of evidence and cross-examination about any sexual behaviour of the complainant except with the leave of the court, could amount to a violation of the defendant’s right to a fair trial under Article 6 of the Convention. In a somewhat different mediation of the rights of the individual vis-à-vis the interests of the wider community from that adopted in the Pretty decision, the need to protect a vulnerable class of persons (here rape complainants) was not found to outweigh the individual right of the defendant. The case, in redrawing the balance previously struck by parliament towards the protection of rape complainants from harassment during the rape trial, is concerning in the light of evidence showing the reluctance of women to report rape, the brutal nature of their treatment by defence lawyers aimed at

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undermining their credibility and character, and the disinclination of juries to convict (see Lees, 1997; Smart, 1989). The decision in R v. A is interesting in another respect as it demonstrates a degree of incompatibility in national and European interpretations of the Convention in the area of sexual violence and a partial sightedness on the part of the national judiciary in its unwillingness to look to decisions of the European Court of Human Rights when interpreting Convention rights (despite the instruction to do so in s. 2, HRA). There lies within the jurisprudence of the European Court the possibility of drawing a different conclusion upon the correct balance between the rights of the defendant and those of the complainant in cases of sexual violence. In the case of SW v. United Kingdom and CR v. United Kingdom (1996) 21 EHRR 363, dealing with the end of the marital rape exemption which had existed in the UK until the landmark decision of the House of Lords in R v. R [1991] 4 All ER 481, the European Court found that defendants convicted of the new offence could not rely on Article 7 of the Convention (the principle of non-retroactivity of the criminal law) in order to challenge their conviction. Furthermore, the decision of the European Court importantly recognized that sexual violence is inherently contrary to the spirit of the Convention, ‘the very essence of which is respect for human dignity and human freedom’ (SW v. UK and CR v. UK (1996) 21 EHRR 363, paras 44 and 42 respectively). The decision in R v. A seems, therefore, to represent another loss for women’s rights in the new HRA culture, and this despite the existence of legal precedents to support a more sympathetic interpretation and parliamentary intention to protect claimants from harassment at trial. In this respect it signals a worrying sign for the future and demonstrates in concrete fashion that there is no room for feminists to be complacent about even the current standards of protection of women’s rights. On the contrary, there is every reason to be concerned about their erosion. The same might be said of a final issue – abortion – worth contemplating in conclusion as it is no doubt set to play itself out before the UK courts, having proven to be one of the most contentious rights clashes for women in North America following the decisions of the US and Canadian Supreme Courts in Roe v. Wade (1973) 410 US 113 (finding that the right to choose an abortion fell within the US’s constitutionally protected right to privacy) and R v. Morgentaler [1998] 1 SCR 30 (striking down Canada’s abortion law because it breached the Charter). Given the recent assertion by the Court of Appeal of the emergence since the HRA of an actionable right of privacy in English law (Douglas v. Hello! Ltd

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[2001] WLR 992) the North American precedents suggest a mixed bag of possibilities before the UK courts. On the one hand, for example, women in Northern Ireland might argue that the lack of application of the Abortion Act 1967 to the province, effectively denying them lawful terminations there, amounts to a violation of their right to respect for private life which is no longer justifiable by the particular moral concerns and social circumstances in Northern Ireland. Yet, here too there is a useful warning to be heeded from Canada’s longer experience with its Charter of Rights. Even if there were found to be a Convention violation in the case of Northern Ireland, it is notable that the Canadian decision in Morgentaler, considered by many pro-choice feminists to be a victory, has led to no new legislation replacing the old. In concrete terms this represents more of a loss than a gain in that access to abortion services is very patchy across the country. Thus, any finding of an interference in the right to respect for private life in the context of a lack of abortion services in Northern Ireland might simply reveal a statutory black hole and would not in and of itself provide a guarantee of subsequent state provision of termination facilities there. On the other hand, elsewhere in Great Britain the national judges may be called upon to balance the right to private life of the woman seeking a termination against, for example, the claim of a putative father to prevent a termination (using his right to respect for family life under Article 8 or asserting an indirect protection of the right to life of the foetus under Article 2). While the European Commission of Human Rights has already failed to find either of these rights absolute (Brüggemann and Scheuten v. Federal Republic of Germany (1981) 3 EHRR 244 and Paton v. United Kingdom (1981) 3 EHRR 408) the balance it has drawn up between the competing interests in abortion decisions is by no means set in stone and may now be reconfigured in the national as opposed to European setting.7 This could mean that parliament’s considered view of, for example, time-limits for abortion would be reopened in the courts and may require a certain retrenchment on the part of pro-choice advocates simply in order to preserve the current status quo (see Palmer, 1996: 239). It would seem in conclusion, therefore, that the HRA needs to be approached with a degree of caution, even scepticism, as regards its capacity to improve women’s lives and to contribute to a more equal and just society. It does little on its face to counter the feminist challenge and critique of human rights discourses, mirroring the typical deficiencies of other national and international human rights

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instruments. Its paradox lies in opening up a new constitutional space, promising new litigation strategies for female complainants and the audibility of a previously unheard dialogue on women’s rights before the courts, while in practice foreclosing dialogue by facilitating the continuation of a masculinist regime which is marked by the colonization of this space by masculine voices and interests. Most importantly and disappointingly, judicial developments so far suggest that considerable vigilance is now required to track the ways in which the opportunities presented by the HRA are being exploited by the counter-claimants to women’s rights. As such it may be that valuable resources and energy have to be put into simply securing existing positions against an erosion of existing rights rather than seeking further advancement and equality guarantees. This is a rather pessimistic conclusion for what has been heralded as a revolutionary step in rights protection (Klug, F., 2000: chap. 1). It is to be hoped that it is unmerited given the early stage at which we now stand and that, as the rights culture deepens and broadens, this is not primarily for the benefit of the already strong and powerful in society but may assist instead those who still lack power and voice despite the political commitment to constitutional change.

Notes 1. In its first parliamentary session the government introduced eleven new constitutional Bills: six on devolution, one on the EU, two on electoral reform, one on elected mayors and one on human rights (Hazell, 1999a). 2. Patricia Williams (1991), for example, presents a more empowering assessment of the use of rights by racial minorities. 3. Not all the rights contained in the Convention are incorporated. Article 13, which guarantees the right to an effective remedy before a national authority in the case of violation of the Convention, remains controversially unincorporated, being excluded so as to avoid confusion with the judicial remedies provided by s. 8 of the HRA itself. 4. Article 14 states that ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. 5. See further Bartholomew (Chapter 14, this collection), arguing the case for group-differentiated cultural rights based upon a form of deliberative procedural dialogue. 6. For a breakdown of the number of women in parliament see Equal Opportunities Commission, 2001 and for the same as regards the judiciary see McGlynn, 1998: chap. 7 and http://www.open.gov.uk/lcd/judicial/womjudfr.htm.

154 Women Making Constitutions The situation in the UK may be compared with that in the US and Canada where women have been members of the Supreme Court since 1981 and 1982 and now number two out of nine and three out of nine members respectively. 7. In Brüggemann a restriction on the law on abortion in Germany was found not to violate the right to respect for private life because it was decided that not every aspect of abortion related to privacy and therefore any regulation would not necessarily constitute an interference in a woman’s private life. In the Paton case a husband’s claim that he should be consulted about his wife’s decision to have a termination was unsuccessful under Article 8. His attempt to prevent the termination did not succeed as the Commission found that the right to life and health of the mother limited any right that the foetus might have. The Commission did not, however, articulate specifically what those rights might be or the moment at which they begin to take effect.

10 ‘Heightened Scrutiny’: A Judicial Route to Constitutional Equality for US Women1 Cynthia Harrison

In 1923, three years after the Suffrage Amendment had been ratified, the National Woman’s Party (NWP) decided to seek an amendment to the Constitution guaranteeing full legal equality for women.2 The NWP believed itself impelled toward this strategy by the refusal of the US Supreme Court to find that the Fourteenth Amendment extended its promise of ‘equal protection’ to women. Some five decades later, a revitalized women’s movement won both Congressional support for the Equal Rights Amendment (ERA) and a pronouncement from the Supreme Court that women could indeed rely upon the Fourteenth Amendment. In 1982, the attempt to ratify the amendment failed, but the Court continued to strike sex distinctions in the law, in response to cases brought by the American Civil Liberties Union (ACLU) women’s rights project and other feminist litigants. In addition, relying upon its power to regulate commerce, Congress responded to the new women’s movement by enacting a variety of measures that eliminated much of the bias in law that the NWP had targeted initially when it proposed a new constitutional amendment. State legislatures similarly added new provisions to their state codes, mirroring the new commitment to equal treatment on the federal level. By 1996, Associate Justice Antonin Scalia, in a lone dissent in a sex discrimination case, accused his colleagues on the Supreme Court of making sex distinctions in the law all but impossible to sustain. Perhaps the goal of constitutional equality for women had been reached. This chapter argues that the jurisprudence of sex-based discrimination under the Fourteenth Amendment, along with statutory changes on the federal and state level, has largely fulfilled the expectations of the proponents of the ERA. As of 2000, the Court had provided sufficient legal foundation to satisfy in many respects both its original proponents in 155

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1923 and even those feminists who in 1972 succeeded in winning the support of Congress for the amendment. Moreover, the level of review that the Supreme Court applied would accommodate sex-based differences of which even many feminists approve. It is unlikely that adjudication would have differed materially even with the addition of the ERA to the Constitution. By the end of the century, in fact, even feminists had decided that history had overtaken the old amendment: in 1995, the National Organization for Women (NOW) advanced a much more comprehensive – and politically daring – constitutional equality amendment, claiming rather than disclaiming coverage for gay men and lesbians and a right to abortion (n. 10). Moreover, some feminists had grown disenchanted with the notion of simple legal equality, shifting their focus to the provision of institutional supports, such as childcare funding, as a right of women’s citizenship and as a necessity to enable poor women, many of them women of colour, to raise their families safely while performing wage-earning work. Finally, few still nurtured the illusion that even perfect laws would guarantee equal treatment, adequate means, or respect for individual needs and differences. As in the past, future decisions on the nature of constitutional and social equality will turn more on effective political activism of women than on specific constitutional text.

Early decisions In 1923, the NWP had only a handful of Supreme Court decisions concerning sex to assess in determining the next suitable step toward women’s full constitutional rights, but the few decisions had powerfully confined women’s ambit. During Congressional consideration of the Fourteenth and Fifteenth Amendments to the Constitution, women’s rights activists, who had worked ardently for abolition of slavery and for the enactment of measures guaranteeing equality for the freedmen and women, tried hard to get a guarantee of suffrage for women included within their mandates; short of that objective, they sought at least to prevent the addition of the word ‘male’ to the Constitution in the second section of the Fourteenth Amendment. But their former allies deserted them, and they failed on both scores. Once the amendments were part of the Constitution, women tried to insinuate themselves within the new legal protection, but the Court proved no more sympathetic than Congress had. The rift between advocates of equality was bitter. In 1873 (Bradwell v. Illinois), 1875 (Minor v. Happersett) and 1908 (Muller v. Oregon), the Supreme Court insisted that classification based

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on sex passed constitutional muster. By 1905, however, Progressive reformers welcomed the distinction. After the 1905 decision in Lochner v. New York, wherein the Court struck down a state law limiting hours and cited a due process ‘right to contract’ that states could not restrict, Progressives feared that the Court would invalidate any law regulating working conditions. They were therefore much relieved when the Court, in Muller v. Oregon, let stand an Oregon statute that prohibited employers from requiring women to work in factories or laundries for more than ten hours a day. The protection seemed more important to women’s well-being than a statement of legal equality. The Court echoed the famous brief submitted by Louis Brandeis, then lawyer for the National Consumers’ League, ‘Differentiated ... from the other sex, [woman] is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained’. Although the Court did uphold hours laws for male workers within the decade (Bunting v. Oregon, 1917), it did not renounce its earlier holding that state law could still place woman ‘in a class by herself’. Whether women required special treatment or equal treatment under the law remained a contentious issue among advocates for women for another six decades.

The next amendment Thus, although the Nineteenth Amendment to the Constitution in 1920 explicitly guaranteed women the right to vote, a universe of state legislation remained that delimited women’s world. Confronted by this state of affairs, the NWP, the militant wing of the suffrage movement, decided in 1921 to broach a new amendment that would sweep away legal constraints even without the cooperation of the Supreme Court. Initially, the NWP hoped to accommodate the advocates of protective labour legislation and retain those laws that benefited women workers by preventing the bitterest forms of exploitation; indeed, many NWP members had fought to achieve such statutes. But the argument for both equal rights and special treatment collapsed under the weight of its internal contradiction as a legal principle and the resulting difficulties in wording such an amendment and in implementing such a policy. After almost two years of discussion and a sobering demonstration of a state effort to both guarantee equality and safeguard protections,3 the NWP elected to pursue straight legal equality. It unveiled its proposed amendment at the party’s national conference in July 1923. This read: ‘Men and women shall have equal rights throughout the United States

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and every place subject to its jurisdiction’ (Becker, 1981: 19), and the party adopted it unanimously. It then began a decades-long campaign for support among women’s organizations and elected officials. An extensive list of state and federal laws that discriminated arbitrarily against women served as the foundation of the NWP’s argument in favour of an equal rights amendment to the Constitution. Several of the women’s organizations that opposed the ERA nevertheless supported eliminating many of these laws. They advocated a strategy that called for ‘specific bills for specific ills’, which would target problems in the law but leave untouched legislation they deemed helpful to women, especially to the poorest working women. But, insisted NWP founder Alice Paul, ‘We shall not be safe until the principle of equal rights is written into the framework of our Government’ (quoted in Becker, 1981: 19). Meanwhile, between 1923 and 1971 the Supreme Court wavered in the few cases it decided in this period, sometimes referencing the constitutional amendment adopted in 1920 guaranteeing to women the right to vote and requiring equality, but other times allowing differentiation by sex in the law to stand.4 The Court’s inconsistent rulings served as confirmation of the need for a clear directive. The politics of the Second World War increased the number of ERA supporters, as had the widespread discrimination against married women during the Great Depression. A sympathetic member of Congress introduced the ERA into every Congress, but not until 1942, with the war under way, did a congressional committee report it favourably to the floor. Both the position of the United States as the avatar of democracy and the valour women displayed as workers and military personnel made their exclusion from protection of fundamental law seem both embarrassing and unfair. The amendment’s first floor vote, in the Senate in 1946, drew a majority of the votes, although not the two-thirds needed (for a fuller discussion see Harrison, 1988: chap. 1). Had women’s organizations coalesced around the amendment, its passage at least through Congress would likely have succeeded, but the increased support for the amendment spurred its opponents to new heights in defence of sex-specific labour laws. With the assistance of Senator Carl Hayden (D-Ariz.), the opponents hit upon an effective blockade: at every floor vote, the senator would offer his proviso, that the ERA would not ‘impair any rights, benefits, or exemptions now or hereafter conferred by law, upon persons of the female sex’. In 1950 and 1953, delighted to be able to vote for both equal treatment for women and special protection, the Senate duly added the Hayden rider to the ERA; ERA supporters then killed the bill (Harrison, 1988: chap. 2).

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New support If the fifteen years following the end of the war introduced little in the way of constitutional change for women, their own economic decisions altered the social landscape. The opportunities provided by both the war and the explosion of jobs in the sectors employing women during the 1950s made the waged work of white married mothers commonplace, following their black counterparts into the labour force. Like men, though in smaller numbers, women also took advantage of federally funded educational opportunities so that by the time of the election of John Kennedy, the stresses in the family–work dynamic had become visible enough among middle-class white families to warrant national examination. In response, Kennedy appointed a national commission both to explore the status of women and to deflate support for the ERA, which liberals continued to oppose. That commission, however, helped ignite a new women’s movement, soon to be united in support of constitutional equality. In its final report, the President’s Commission on the Status of Women acknowledged the need for and the justice of a constitutional guarantee of equal protection under law. It favoured a Supreme Court holding to this effect rather than the adoption of the ERA, anticipating that the Court would know when to discard, and when to retain, laws that distinguished men from women. The commissioners hoped by this stratagem to preserve sensible laws that differentiated appropriately by sex (they had in mind certain labour laws) and to jettison the legislation that promoted invidious distinctions (Harrison, 1988: chap. 7). The commission’s work generated a new level of concern and activism focussed on women’s status, modelled on the parallel movement aimed at gaining the protection of the law for black Americans. In gathering information to inform its wide-ranging recommendations, the commission accumulated copious documentation of the many obstacles women confronted on account of their sex. State commissions worked in tandem with the federal commission, and the federal government inspired further momentum by holding annual national meetings in Washington. The creation of a new women’s movement, based on these component parts, occurred after Congress in 1964 unexpectedly yielded to pressure from NWP activists (working through Congressman Howard Smith (D-Va.), an ERA supporter) and the National Federation of Business and Professional Women’s Clubs to include women in civil rights legislation barring discrimination in employment based on race.5

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In lobbying for such legislation, activists used the information the President’s Commission had collected (although the President’s Commission had called a legislative ban premature and many proponents of a law protecting blacks from discrimination objected to adding protection for women). A ban on sex discrimination in employment immediately threw into question the status of state labour laws that applied only to women. The Equal Employment Opportunity Commission (EEOC), the agency created by Congress to enforce Title VII of the 1964 Civil Rights Act, found itself in the middle of the longstanding battle, but within five years feminist litigators had brought about a resolution of the issue. Federal courts held that the federal legislation superseded any state law, and though employers might comply with both, they could not protect themselves against a charge of discrimination by citing a state labour law. Although some of the old guard argued futilely in favour of retaining sex-specific laws, by and large feminists agreed that labour laws should apply to both male and female workers, a contention that few now disputed. The EEOC likewise adopted this position in August 1969 (Code of Federal Regulations 29, sec. 1604.1:1970) and the old bone of contention was finally buried. With its interment came swift unanimity among women’s organizations behind a constitutional amendment. The burgeoning women’s movement also incited change in the lower federal courts, in state and federal legislatures, and in state courts at an amazing pace. In 1966, a three-judge federal district court in Alabama threw out the state’s jury service law that barred women from jury duty, citing the Fourteenth Amendment. In 1968 a federal district court in Connecticut declared unconstitutional longer prison terms for women than for men convicted of the same crimes. In 1970, courts in Illinois and New Jersey eliminated bans against women bartenders and that same year a federal district court in Virginia endorsed the proposal to open Mr Jefferson’s University of Virginia to co-education, also citing the equal protection clause of the Fourteenth Amendment. It was a sign of the times that these decisions were not appealed to the Supreme Court, with the institutions instead capitulating to the changing legal standard. Even where courts upheld discriminatory practices, legislatures acted to remove the barrier (Eastwood, 1971: 290). In 1961, Wisconsin had become the first state to prohibit discrimination in employment within the state (Fuentes, 1971: 395); by 1973, the American Civil Liberties Union (ACLU) found only eleven states (eight of them in the South) without state fair employment practices (FEP) laws that included protection against sex discrimination as

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well as against race discrimination. (By 1983, nine states still had no FEP law, all southern except North Dakota; only Georgia had an FEP law that did not include sex bias.) The changes reflected a new presence on the part of feminists not only as lobbyists, but indeed as jurists and as legislators. Congressional resistance to the ERA dissolved in the face of the new consensus. In March 1972, ERA advocates succeeded in winning the two-thirds vote in both houses of Congress, and without any qualifying provisions for the amendment that now read: ‘Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex’.6 The state of Hawaii ratified the amendment on the first day it went to the states, 22 March, 1972. The alacrity of the response justified Calvin Coolidge’s remark to Alice Paul in 1923 that Congress would approve the ERA if American women really wanted it (Becker, 1981: 93). With newly sympathetic legislatures and courts, what did modern feminists seek in the ERA? Feminist representatives described a wide array of desired legal changes. Aileen Hernandez, NOW’s president, argued that the ERA would create a ‘clear national policy that women should not be discriminated against’ and in doing so would help in the enforcement of sex discrimination statutes in employment and would generally open to women ‘the kind of first class citizenship which will permit them early in life to make career choices that are not now available’ (US Congress, 1970: 43). Noted Martha Griffiths, ‘All this amendment asks could easily be done without the amendment if the Supreme Court were willing to do it, but they are not’ (US Congress, 1970: 19). Perhaps the definitive assessment of the impact and benefits of the ERA appeared in the Yale Law Journal in April 1971, a collaboration between three women law students (Brown, Falk and Freedman) identified as ‘active in the women’s movement’ and Yale law professor Thomas Emerson. The Yale authors argued that under the ERA sex would be a prohibited classification except where unique physical attributes obtained (permitting, for example, laws relating to wet nurses or sperm donors, rape and determination of paternity). Legislation providing, for example, leave for child rearing would have to be written in a sexneutral way; classification based on pregnancy would have to be narrowly drawn. ‘Current mores’ would govern sex separation for privacy purposes: laws could thus require employment of same-sex police officers for strip searches and segregated toilet and sleeping facilities (Brown et al., 1971: 889–902). Single-sex schools could exist, so long as they remained private (Brown et al., 1971: 907). But classification for ‘benign

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quotas’ or ‘compensatory aid’ would not pass muster under the ERA except as remedies for past discrimination (Brown et al., 1971: 903–4). In other ways, the operation of the ERA would be both ‘obvious and direct’ (Brown et al., 1971: 920), eliminating sex differences in jury service, qualifications to conduct business, age requirements, government benefits and Social Security, and enhancing the existing trends toward equality in marriage and divorce law and in employment doctrine as begun under Title VII of the 1964 Civil Rights Law. The ERA would demand changes in criminal law where differences existed, most notably with respect to sexual conduct, although some differences might remain if they survived close judicial scrutiny to ensure their basis in ‘unique physical characteristics’ (Brown et al., 1971: 954). Brown and her coauthors noted that the Model Penal Code already incorporated such a stance (Brown et al., 1971: 966). With respect to the military, however, they warned that the amendment would have ‘a substantial and pervasive impact upon military practices and institutions’, requiring ‘a radical restructuring of the military’s view of women’ (Brown et al., 1971: 969), including draft, enlistment, assignment, training and veterans’ benefits. But, they predicted, ‘[c]hanges in the law, where necessary to bring the military into compliance with the amendment will not be difficult to effect’ (Brown et al., 1971: 978). They concluded that the ERA would ‘establish fully, emphatically, and unambiguously the proposition that before the law women and men are to be treated without difference’ (Brown et al., 1971: 980). In sum, then, it could be argued that feminists were asking for clarity – a clear legal standard of equal treatment without regard to sex, with the burden on the state to demonstrate a compelling reason for making the distinction – and permanence, a standard that would not be subject to the vagaries of changing political winds or even court personnel. But before the decade was out, two things were plain: first, an amendment to the Constitution would not come easily; second, legislative actions and court decisions would make many feminist arguments anachronisms. Phyllis Schlafly, the conservative Republican leader of the Eagle Forum who led the fight against ratification, used as one of her key points the idea that the constitutional amendment was simply unnecessary, a point that became harder to contest as the decade wore on. Despite the inability of feminists to wrest the final three states required for ratification (even with the deadline extended by Congress to June 1982), a dizzying array of new statutes and judicial holdings brought the goal of equality under law closer to reality.

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‘Heightened scrutiny’: a new weapon Among the first changes was alteration in Supreme Court doctrine. Although it did not initially acknowledge a departure, in Reed v. Reed in 1971 the US Supreme Court found that a state law that preferred male executors to female executors had distinguished ‘irrationally’ on the basis of sex and therefore denied to women the equal protection of the law. Reviewing a law under the standard of ‘rationality’ meant that the court presumed a state law to be constitutional; someone who objected had the obligation to show that the classification in the law had no rational relationship to any legitimate state objective. But the Reed decision was only the first of many, and the Court in 1976 (in Craig v. Boren) owned that it had taken to subjecting laws that differentiated on the basis of sex to a higher level of review than mere ‘rationality’. Under the new standard of ‘heightened scrutiny’, the state had to demonstrate not only that the law was ‘rationally related’ to a ‘legitimate’ state objective, but that it was ‘substantially related’ to an ‘important governmental objective’. The new standard did not pose so high a barrier as the ‘rigid scrutiny’ applied to a race-based classification, which the Court declared to be a ‘suspect classification’. The Court presumed race-based classifications unconstitutional unless the state could show that the law was narrowly tailored and closely related to achieving a ‘compelling’ state interest – a very high burden of proof. Still, with Craig, the burden of proof to justify a sex-based classification had shifted to the state, as proponents had hoped. (Although four Justices argued for a ‘strict scrutiny’ standard in a 1973 case, Frontiero v. Richardson, that position never won a majority.7) Using the new intermediate standard, the Court proceeded to strike many more sex-based laws than it permitted to stand; at the same time, Congress enacted federal measures to prohibit forms of discrimination either not open to constitutional challenge or found by the Court to be free of constitutional taint. In 1978, for example, Congress passed the Pregnancy Discrimination Act in response to the Court’s determination that discrimination against pregnant workers violated neither the Constitution’s demand for equal treatment nor the ban against sex discrimination in employment in Title VII of the 1964 Civil Rights Act (Geduldig v. Aiello, 1974; General Electric Co. v. Gilbert, 1976). Simultaneous efforts to seek amendments to state constitutions, sixteen of them successful, and to amend state laws also wiped sex-based laws from the books. The US Supreme Court had imposed equal protection requirements even on members of Congress and state judges not then covered

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by federal discrimination statutes (Davis v. Passman, 1979; Forrester v. White, 1988). Thus, despite the failure of the ERA to win ratification, by June 1982 a substantial body of anti-discrimination law now rested in court reports and codes of both the federal and the state governments. And though a Republican victory in the 1980 election checked the feminist juggernaut, throughout the 1980s the Supreme Court did not reverse its course. By 1997, of the feminist goals that an equal rights amendment would reach, few remained unfulfilled. Women and men had won virtual equality concerning domicile, age at marriage, marital surnames, ownership and control of marital property, child custody, divorce and alimony (Kay, 1988). In short, in the words of the ACLU’s specialists in women’s rights law, ‘Despite the loss of the ERA, the 1970s gave [women] the legal structure for eradicating discrimination’ (Ross and Barcher, 1983: xiv). The Court continued to uphold sex distinctions in the law in only a few instances, usually justifying the action by reference either to privacy or to a need for compensatory treatment (Califano v. Webster, 1977; Heckler v. Mathews, 1984). In a smaller set of cases, the Court provided rationales that recalled the paternalistic tradition one might have presumed abjured: in Dothard v. Rawlinson (1977), the Court splintered but upheld a prohibition on women prison guards in an Alabama maximum security prison based on the savage prison conditions obtaining in Alabama; in 1981, in Michael M. v. Sonoma County Superior Court, by a 5-4 vote, the Court let stand California’s ‘statutory rape’ law on the unsupported basis that only a sex-specific law could effectively protect young women from unintended pregnancy. Another area in which the Court countenanced sex differences concerned unmarried parents, holding in several cases that differential treatment between unmarried fathers and unmarried mothers could be justified, decisions that on the whole favoured mothers.8 The dispute over ‘maternity leave’ (California Federal Savings & Loan Association v. Guerra, 1987) found resolution eventually in the passage of sex-neutral leave legislation: the federal Family and Medical Leave Act was signed by President William Jefferson Clinton on 5 February, 1993, following exactly the legal formula laid out in the Yale Law Journal article. The area in which the Court endorsed the largest number of sex distinctions involved, predictably, the military. Citing Congress’s differential treatment of men and women, it refrained from imposing a single standard. Most notably, in a 1981 case brought by a man protesting an all-male draft, Rostker v. Goldberg, the Court declined to require Congress to equalize its treatment of men and women in the

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military, noting the ‘greater deference’ the Court has always accorded to Congress in matters military.9 The Yale authors had predicted incorrectly that changes in the law would come easily. But even the military could not operate with an entirely free hand: in 1973, the Court had insisted, by a margin of eight to one, that Congress treat married women equally with married men in the armed services with respect to benefits (in this case, a housing allowance) (Frontiero v. Richardson, 1973). Still, in the years after Rostker, the actions of both Congress and the Pentagon continued to demonstrate the unsettled nature of the relationship between women and military service and the movement toward equal treatment. Most exclusions and exemptions obtaining in 1981 had been lifted by 1996 (Public Law 102–190, 5 December, 1991; New York Times, 29 December, 1996, 1 April, 1997; Washington Post, 30 December, 1997). Complete equality remained elusive: the regulation that prohibited women’s participation in ground combat barred them from 32 per cent of military jobs. Jane Mansbridge (1986: 85) has argued that the ERA lost crucial support because feminists insisted that the amendment would require equal treatment of women and men in the military, and the pace of Congressional change suggested that prevailing sentiment had not yet endorsed full equality in this arena. Nevertheless, the exceptions of the Court and Congress in this area represented a departure from a new general rule of equality. In 1996, the US Supreme Court reviewed the status of women under the Fourteenth Amendment in a case many feminists called ‘as important a Constitutional gender-discrimination case as this Court has ever addressed’ (Weiner, 1995: 2). On 26 June, 1996, in U.S. v. Virginia, the US Supreme Court decided that the Virginia Military Institute (VMI), a state-supported all-male college founded in 1839, had to admit women. Associate Justice Ruth Bader Ginsburg wrote for the 7-1 majority. Although twenty-five years earlier, in a brief written on behalf of the ACLU in Reed v. Reed, Ginsburg had urged the Court to apply ‘strict scrutiny’ to sex-based distinctions, in U.S. v. Virginia she based her decision on the ‘intermediate scrutiny’ the Court had applied explicitly to sex-based distinctions since 1976. Presumably against Ginsburg’s preferences, stated repeatedly in briefs written between 1971 and 1980 when she was directing the ACLU Women’s Rights Project, the Court ignored the pleas of the United States and many amici to raise the standard of review to ‘strict scrutiny’ (Markowitz, 1989: 77–80). In her opinion in U.S. v. Virginia, Justice Ginsburg now defended ‘intermediate scrutiny’, although her interpretation of this standard

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was expansive: Without equating gender classifications for all purposes to classifications based on race or national origin, the Court, in postReed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). [Citations omitted.] To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is ‘exceedingly persuasive’. The burden of justification is demanding and it rests entirely on the State ... The State must show at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives’. ... The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed ‘inherent differences’ are no longer accepted as a ground for race or national origin classification ... Physical differences between men and women, however, are enduring ... ‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women ‘for particular economic disabilities [they have] suffered,’ ... to ‘promot[e] equal employment opportunity,’ ... to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, ... to create or perpetuate the legal, social and economic inferiority of women. In a footnote, Justice Ginsburg appeared to reassure those concerned about the endurance of single-sex education, although her meaning is ambiguous: ‘We do not question the State’s prerogative evenhandedly to support diverse educational opportunities. We address specifically and only an educational opportunity recognized ... as “unique”.’ Not at all persuaded by this demurrer, Justice Antonin Scalia in his dissent indignantly accused his colleagues of changing the decision rule: ‘The rationale of today’s decision’, he wrote, ‘is sweeping: for sex-based

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classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny’. Justice Scalia correctly observed that this decision marked an important bellwether. The majority of seven included not only the appointees of President Clinton (Justices Breyer and Ginsburg) but also all the ‘swing’ justices named by Presidents Reagan and Bush (Souter, Kennedy and O’Connor), as well as Justice Stevens, a Nixon appointee (although usually a reliable liberal). Even Chief Justice Rehnquist, a frequent ally of Justices Scalia and Thomas, joined the result (but not the reasoning of the decision). With Justice Thomas not participating, presumably because his son attended VMI, Justice Scalia was alone in his dissent. The coalition of seven justices, important in part for its numerical strength but more so for its alliance across political boundaries, suggested that the decision was a durable one and one that, as Justice Scalia lamented, sustained the contemporary reach of ‘intermediate scrutiny’. If not identical to ‘strict scrutiny’, it nonetheless permitted few distinctions. In fact, the advocates of strict scrutiny in the briefs described a level of review with results very much like that of intermediate scrutiny as the Court was now applying it: it permitted compensatory programmes for women and separate educational facilities for women and men (so long as comparable programmes are available for each), it did not touch military limitations placed on women, and it left in place separate public accommodations in the way of sanitary facilities. But such exceptions plainly distinguished the impact of this level of scrutiny from that of the ‘strict scrutiny’ sought and won by the civil rights movement from the 1940s on, which targeted exactly racial classifications in educational institutions, in public accommodations (including public rest rooms) and in the military.

A new engagement? Justice Ginsburg’s opinion and Scalia’s dissent notwithstanding, numbers of feminists continued to believe that the ERA remained essential to women’s legal protection. Given the history of Supreme Court adjudication, what were amendment advocates seeking in 1997? In her January 1997 letter soliciting co-sponsors, Democratic Congress Member Carolyn Maloney of New York told her colleagues that ‘without the ERA, laws can still perpetuate gender classifications that keep women from achieving their full potential’ (Maloney to ‘Dear Colleague’, 13 January, 1997, in the author’s possession). She offered no specific examples, although in the newsletter of the NWP she explained that the ERA would help ‘women ... engaged in a constant struggle to maintain laws which protect equality in

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education and in the workplace’. In the same issue, the NWP itself contended: ‘Passage of the ERA can help to make equal pay a reality for women’ (Equal Rights, 1997: 1, 7). The article did not explain the nexus between the constitutional amendment and pay raises for women. In any case, at the end of the century, the ERA stood no chance of approval. Conservatives were in the majority in Congress, and the compromise of specific bills for specific ills and a compliant Supreme Court, assessing on an individual basis which laws should fall and which remain, had undercut many of the amendment’s strongest arguments. In fact, by 1995, the ERA as then composed satisfied not even feminists. Many now argued that the simple formal equality of the 1972 amendment asked for too little. In 1995, one of the most stalwart of the amendment’s advocates, the NOW, promulgated a new ‘Constitutional Equality Amendment’ that explicitly prohibited discrimination based on sexual orientation or indigence, guaranteed a woman’s right to terminate a pregnancy, endorsed affirmative action programmes and stipulated ‘strict scrutiny’ as the standard of judicial review. The new proposal implicitly acknowledged that most of the goals attainable under the old rubric of ‘equal rights for women’ had been achieved and that feminists required a different strategy to effect a more comprehensive agenda, including the provision of social goods to enable poor women, many of them women of colour, to live with adequate means and physical safety.10 But the constitutional status of women had changed dramatically in the preceding quarter of a century. Although vestigial forms of discrimination remained in the law, the plethora of state and federal statutes that distinguished arbitrarily on the basis of sex had been nullified. Even the symbolic battle had been won. Feminists claimed in 1923 and again in the 1970s that constitutional equality would generate a commitment to equality also in those areas formally untouched by government power. Such a commitment now existed in almost all quarters of American life, at least on paper. Moreover, the few remaining distinctions permitted, such as single-sex colleges and compensatory programmes, had substantial feminist support as well. What of significance was still missing from the constitutional status of women that the language of the 1972 amendment would provide? We can locate two major lacunae. The first was that women continued to be treated differently from men by Congress with respect to military service. The second was that, at least in theory, both the constitutional standard requiring equal treatment and the legislative foundation for equal opportunity could unravel; that is, the right to equal protection lacked permanence. Would the ERA make a difference?

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The position of women in the military had consistently been a sticking point, and it remained so, with feminist insistence on absolute equality driving away potential supporters of a constitutional amendment (Mansbridge, 1986). Nevertheless, few ERA supporters would countenance an explicit exception for differences in military service. Women had lost their lives in the service of their country and women soldiers argued vehemently that all roles in the military must be open to them (Manning and Griffith, 1998). But one could not realistically predict that the ERA would settle this question before it was concluded in some other way. Historically the Supreme Court has deferred to Congress and to the military on military matters. In the face of congressional and military resistance, the argument that men and women are differently situated with respect to military service might serve to justify any difference the Court chose to permit, even with the ERA. A court that could require the arrest and detention of American citizens based on race and cite wartime necessity (Korematsu v. United States, 1944), explicit constitutional language to the contrary notwithstanding, could well acquiesce to the military with respect to women in combat. If the army lifted the combat exclusion, much opposition to the ERA would disappear, as it did when Title VII eliminated single-sex labour laws. But this issue would need to be resolved in advance of ratification. With the possible exception of the civil war amendments, constitutional amendments are lagging indicators of change, not propellants.11 What about permanence? In 1996, seven justices of the Supreme Court affirmed that the Constitution does not abide invidious distinctions based on sex. Feminists argued nonetheless that the absence of explicit constitutional text rendered all decisions potentially unstable, vulnerable to reversal at the hands of new conservative justices. Perhaps explicit language in the Constitution enshrining sexual equality would prove a sturdier bulwark than a 7-1 decision; permanent language in the Constitution might well work to retard a backlash. On the other hand, as Plessy v. Ferguson (1896) illustrates, the Court will not necessarily be deterred by the explicit language of the Constitution either. Given a profound enough period of conservative reaction, concepts like ‘equality’, ‘rights’ or ‘compelling interests’ do not foreclose reinterpretation. And the history of resistance to the Supreme Court’s 1962 ruling concerning prayer in public schools (Engel v. Vitale, 1962) demonstrates that constitutional imperatives – textual or interpretive – do not perforce change local practice. By the end of the century, ERA advocates had not achieved their goal, but they nonetheless had good reason to declare victory in the war for

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constitutional equality as proposed by the 1972 amendment. Few explicit distinctions remained in the law; those that did had general support, in some cases (such as affirmative action and single-sex education) even from feminists. Permanence, meanwhile, is always illusory. Both opponents and proponents pointed to conflicting judicial rulings under state ERAs. Construction of equality under the law for men and women would likely continue to turn on understandings by judges of appropriate distinctions rather than constitutional text. Their understandings would be shaped by the political, economic and social behaviour of women and the popular responses to those behaviours. In 1971, Margaret Eastwood (1971: 298), an attorney and fervent supporter of the ERA, laid out the changes she and other supporters assumed an ERA would bring about. However, she noted that the words of the Constitution would have no effect if women did not mobilize: ‘[U]nless women play a greater role in all forms of government, there is no assurance that their lack of equal status under the law will not continue indefinitely despite new constitutional mandates’. Regardless of the language in the Constitution, what matters is the political mobilization of women. With it, constitutional equality is safe; without it, the inscribed words of the ERA would be only, in James Madison’s words, ‘parchment barriers’.

Notes 1. A longer version of this chapter, ‘Constitutional Equality for Women: Losing the Battle but Winning the War’, appeared originally in (Van Burkleo, S. et al., (eds), 2002). Full citations to cases can be found in that edition. I would like to thank Susan Deller Ross, Philippa Strum, Sarah Wilson, Elizabeth Symonds, and Vivien Hart for their comments on earlier drafts. All responsibility for errors is, of course, my own. 2. The original wording proposed by the NWP in 1923 read: ‘Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction’. The US Senate Judiciary Committee changed the wording in 1943 to bring the amendment text in line with the suffrage amendment. The language adopted in 1972 read: ‘Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex’. 3. The state of Wisconsin had passed an equal rights law in 1921 to clarify women’s status in the wake of the suffrage amendment. The law promised women equality under law but permitted to stand those laws that offered ‘special protection and privileges’. Under this legal regime, the state’s attorney general had ruled acceptable a law that banned women from working for state legislators on the grounds that the hours were too long. (Lemons, 1990: 187–9).

A Judicial Route to Constitutional Equality 171 4. Adkins v. Children’s Hospital, 1923 and Morehead v. New York ex rel. Tipaldo, 1936, striking down sex-specific minimum wage laws; Radice v. New York, 1924, upholding a night-work limitation for women; Ballard v. United States, 1946, at 193–94, striking down a jury-differentiation practice; Goesaert v. Cleary, Liquor Control Commission of Michigan, 1948, allowing a state to limit the right of women to tend bar; Hoyt v. Florida, 1961, p. 52, allowing differentiation in jury service. 5. Much ink has been spilled over the question of Howard Smith’s motives in introducing an amendment to add ‘sex’ to the employment title of the Civil Rights Act of 1964. He would, no doubt, have happily seen the entire act go down in flames, but if it were to succeed (and surely he knew it would), his own preference was likely to have (white) women included in its purview. He was, in fact, a long-standing supporter of the Equal Rights Amendment, his amendment was urged on him by his pro-ERA Virginia constituents, and he bragged about his role in his next election campaign. Moreover, the survival of the amendment in the Senate, where many opportunities to expunge it existed, gives lie to the propaganda that this dramatic change in the law was inadvertent. (Harrison, 1988: 177–8, 295 n.). 6. The amendment had been rewritten in the 1940s to conform to the language of the suffrage amendment. Alice Paul, the author of the first version, did the redraft. (Harrison, 1988: 16). 7. Perhaps ironically, Justice Lewis F. Powell declined to join his four colleagues in this case because the ERA was pending before the states and he thought it unwise for the Court ‘to pre-empt ... the prescribed constitutional processes’ (at 693). 8. See, for example, Parham v. Hughes, 1979; Caban v. Mohammed, 1979; Lehr v. Robertson, 1983; Clark v. Jeter, 1988; Nguyen v. INS, No. 99-2071 (11 June, 2001). 9. Schlesinger v. Ballard, 1975, upholding different promotion procedures for men and women; Personnel Administrator of Massachusetts v. Feeney, 1979. upholding veterans’ preference laws. 10. The Constitutional Equality Amendment promulgated by the NOW, July 1995:

Section 1. Women and men shall have equal rights throughout the United States and every place and entity subject to its jurisdiction; through this article, the subordination of women to men is abolished; Section 2. All persons shall have equal rights and privileges without discrimination on account of sex, race, sexual orientation, marital status, ethnicity, national origin, colour or indigence (see also Sec. 4); Section 3. This article prohibits pregnancy discrimination and guarantees the absolute right of a woman to make her own reproductive decisions including the termination of pregnancy; Section 4. This article prohibits discrimination based upon characteristics unique to or stereotypes about any class protected under this article. This article also prohibits discrimination through the use of any facially neutral criteria which have a disparate impact based on membership in a class protected under this article.

172 Women Making Constitutions Section 5. This article does not preclude any law, program or activity that would remedy the effects of discrimination and that is closely related to achieving such remedial purposes; Section 6. This article shall be interpreted under the highest standard of judicial review; Section 7. The United States and the several states shall guarantee the implementation and enforcement of this article. [Source: NOW Web site (www.now.org).] 11. Other effects have been claimed for the ERA – for example, that it would affect abortion laws or protect homosexual unions – but they are less plausible.

11 Increased Rights and Representation: Women and the Post-devolution Equality Agenda in Wales Paul Chaney

Women have long been marginalized and under-represented in Welsh politics. Thus, throughout the period from the introduction of the universal male suffrage in the mid-nineteenth century through to 1997, the country returned a total of just four women Members of Parliament to the UK government at Westminster. Using the evidence of a wide range of secondary sources and analysis of over 150 semi-structured interviews with politicians, officials and managers of women’s organizations1 conducted during previous and ongoing research projects,2 this chapter shows how the creation of the National Assembly for Wales, one of the constitutional reforms introduced by the 1997 British Parliament, has been a significant step towards ending women’s marginalization and the prevailing gender deficit in contemporary politics. Whilst it is far from certain that such a situation will continue in the future, women have made significant gains in descriptive representation in the new Assembly. Associated with this are the potential benefits that follow from women’s substantive representation in the new system of governance. These factors, together with a unique and innovative legal duty that requires government to promote equality of opportunity, signal discontinuity with the past and mark a new phase in Welsh politics. The following account sets out the background to these events and explains how key members of the women’s movement seized the prevailing political opportunities presented by constitutional reform and played a significant role in setting the institutional blueprint for the new Welsh legislature. It also outlines how, often under acrimonious circumstances, positive action was taken by political parties to secure the second highest proportion of women representatives elected to a European national government forum (41.7 per cent). Attention is then 173

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focussed on the ways in which opposition parties and the executive are responding to the Welsh government’s statutory equality duty. At what is undoubtedly an early and transitional stage of devolved governance this discussion of the style and substantive issues of the new equality agenda provides an initial insight into the way that constitutional reform and the actions of key individuals have changed the role of women in Welsh politics.

Promoting change Over recent decades women activists have led the equality agenda in Wales. Together with Welsh language campaigners they forced politicians to address pluralist demands through a strong tradition of civic and political activism over issues such as rape, domestic violence, environmentalism, peace campaigning, as well as matters of sexuality, business enterprise and equal opportunities. However, in contrast to the situation in Scotland and Northern Ireland, women’s campaigning for constitutional reform was restricted to a relatively small number of individuals. The majority of this group was active in the political parties and/or employed in state sponsored gender equality agencies. Prominent amongst their number were: Teresa Rees, Equal Opportunities Commissioner for Wales, and the future Assembly Members (AMs) Val Feld, Helen Mary Jones and Jane Hutt (respectively: Director and Deputy Director of the Equal Opportunities Commission in Wales – or ‘EOC’, and the Director of the state-sponsored equality agency, Chwarae Teg). A turning point in efforts to ensure that equality considerations were fully addressed in the plans for constitutional reform was the Parliament for Wales Campaign’s Democracy Conference in March 1994. Equality issues were originally absent from the Campaign’s draft ‘Democracy Declaration’. After this conference, addressed by Val Feld and Jane Hutt, the following clause was added to the Declaration and subsequently approved; ‘a future Welsh Parliament will ensure, from the start, that there is a gender balance in its elected representatives, and will ensure that its procedures will enable women, men and minority groups to participate to the fullest extent’ (PWC, 1994). It was another three years before the multiinterest cross-party Yes for Wales pro-devolution campaign was launched. Within the ‘Yes’ campaign, the grouping Women Say Yes continued to press for equal representation in the Assembly at a time when the campaign’s organizers expressed concern that ‘women voters seemed less supportive of devolution than men’ (Andrews, 1999: 100). The limited nature of women’s mobilization over the issue of constitutional reform can be seen as part of the wider fragility of the devolution project in Wales. This, in

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part, stemmed from the often poorly organized nature of the ‘Yes’ campaign. Not only did it struggle with a lack of resources, but it also suffered from: the half-hearted commitment of many Welsh Labour Party activists, a failure to adequately inform the public and the very late stage at which serious campaigning for reform finally commenced (Morgan and Mungham, 2000: 114). Despite these shortcomings, sustained pressure from reformers in Women Say Yes and elsewhere led to an eventual commitment from the Welsh Labour Party, now the governing party, ‘that the Assembly should have a responsibility to drive forward equality issues’ (Feld, 2000: 75). The idea that the institution of government as a whole would promote equality was set out in a draft statutory clause drafted by key gender equality campaigners in the EOC and Chwarae Teg. This was subsequently debated and endorsed by the multi-interest National Assembly Advisory Group, an official body convened by the Secretary of State for Wales to advise on the future form and functioning of the Welsh Assembly. In 1997, the broad institutional blueprint for the new legislature was set out in the UK government’s Parliamentary White Paper ‘Llais Dros Gymru – A Voice for Wales’. It was a document that emphasized the need for greater promotion of equality of opportunity and it was forthright in its challenge to political parties for it stated that: ‘the government attaches great importance to equal opportunities for all – including women ... The government also urges all political parties offering candidates for election to the Assembly to have this in mind in their internal candidate selection processes’ (Welsh Office, 1997: 24). However, a significant number of male members of the political parties were not convinced about the merits of increased gender balance. Thus in a telling phrase, a contemporary commentator concluded that, ‘the near exclusion of women from representative politics has been recognized by the political parties to some extent’ (Edwards, 1994: 141). After bitter infighting within the governing party that included threats of legal action by dissenters that were keen to halt the reforms, Welsh Labour finally adopted a form of positive action to promote gender equality – ‘twinning’3 – and ultimately secured a majority of women amongst its AMs. Elsewhere, the main opposition party, Plaid CymruThe Party of Wales also took affirmative measures (it ‘zipped’4 the first four places on its list of candidates to contest the Assembly’s regional seats). In order to promote gender balance, the Welsh Liberal Democrats ‘offered training days for women only and emphasized an informal route in order to encourage female applications’ (Squires and WickhamJones, 2001: 64). Ultimately, twenty-five of the National Assembly’s sixty seats came to be held by women.5

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Democratic innovation: the statutory equality imperative The creation of the National Assembly for Wales in 1999 followed on from governance under the Welsh Office; a territorial arm of the British government created in 1964. It marked the latest phase in the changing system of government that incorporates Wales into the British state in an arrangement that dates back to the sixteenth-century Acts of ‘Union’ with England. The new Welsh legislature is now part of a complex, and some assert opaque, system of government whereby primary legislative powers, including those relating to equality of opportunity issues, remain at Westminster. For its part, the new Assembly is able to issue secondary legislation and has devolved responsibility for a wide range of government functions that includes economic development, education, health, local government, social services and industry. It is within this context that the Welsh legislature is bound by ‘fourth generation’ equality duties in its founding statute.6 These mark a shift from the earlier ‘need to prove individual prejudice, or to link disparate impact to an unjustifiable practice or condition. Instead it is sufficient to show a pattern of under-representation or other evidence of structural discrimination’ (Fredman, 2001: 164); in short such a mechanism requires a proactive response by government and the promotion of equality of opportunity. Their application in the UK is pioneering; law academics conclude that these ‘have no parallel in any other devolution legislation’ (Lambert, 1999: 67). The equality duties require that the new allWales tier of government, ‘make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people’. Whereas equality of opportunity clauses were also contained in the 1998 devolution statutes that (re-)established legislatures in Scotland and Northern Ireland, the Welsh equality duty is unique in its nonprescriptive phrasing and consequent all-embracing scope; it applies to all the Assembly’s functions and applies to ‘all people’ (cf. Chaney and Fevre, 2002a). Significantly, it is an absolution duty and it contains no derogation clauses. Effectively its wording removes elected representatives’ scope for downplaying or ignoring equality issues by setting out the actions that are required of politicians and officials in the exercise of government functions. The statute also requires that ‘in the conduct of its business’ – or the politicking and administration that make up the dayto-day work of the Assembly – there should also be conformity to the principle that there should be equality of opportunity for all people. Furthermore, the imperative modifies all Westminster Acts where the

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Assembly has powers and thus it represents a significant divergence in the law applying to Wales when compared to the legal framework elsewhere in the United Kingdom. Underlining the significance of these developments Clements and Thomas (1999: 10) conclude that: ‘the people of Wales are the first in the UK to be given a series of positive rights to exercise, and if necessary, to enforce through the courts in Wales’. Thus far the statutory equality duty has been implemented within the shifting and transitional framework of government as the new legislature develops. It is too early to fully assess the merits of such a legal innovation. Potential problems lie in a number of areas. These mostly relate to its all-embracing nature. In particular, there are likely to be tensions between following such a universalistic approach to equality of opportunity and addressing the particular needs of specific social groups. For example, such a holistic duty may have the retrograde effect of diluting a more specific focus on gender. Moreover, a further area of uncertainty centres on the enforceability of the duty because, thus far, the Welsh legislature has not been subject to judicial review using its provisions. Accordingly, legal challenge will be necessary before exact meanings are established in law that relate to the key terms in the equality clauses such as ‘due regard’ and ‘appropriate arrangements’. Despite these potential problems, and in addition to increasing citizen rights, Fredman (2001) has highlighted the way that the type of legal equality duties, (cf. Hepple et al., 2000) applying to the Assembly is significant because ‘a particularly important dimension of fourth generation equality law is their potential to encourage participation by affected groups in the decision-making process itself’. Reference to the National Assembly’s first term therefore provides a contemporary empirical test case about the merits of placing a positive duty on government to promote equality and the veracity of the assertion that such a legal mechanism promotes participation in government.

Political representation: women assembly members The evidence presented in the remainder of this discussion reveals that constitutional change has been significant in two important respects. It has affected both the style and the substantive issues of contemporary political debate. This is a result not only of the legal innovation of the Assembly’s equality imperative but follows on from the increased numbers of women elected to the new government body. This has led recent research to conclude that, ‘in the devolved institutions of Wales and

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Scotland the proportion of women is substantially greater, and their ability to determine the agenda correspondingly more effective’ (Ward, M., 2000, unpaginated; cf. Chaney and Fevre, 2002b). That this is the case in Wales is, in part, due to women forming a majority in the Assembly Government’s cabinet; something that, according to Feld (2000: 76), is ‘unparalleled in the Western world’. The experience of the new Assembly adds to a growing body of empirical evidence (cf. Childs, 2001) that affirms theoretical claims made about the benefits of descriptive representation7 of women in politics (cf. Phillips, 1995; Mansbridge, 1999). It also supports the arguments of those advocating the merits of a pluralist conception of ‘deliberative democracy’. Two such exponents, Gutmann and Thompson (1996: 55), summarize this idea. They assert that problems arise in democratic systems, such as in the male-dominated politics prior to constitutional change, when participants represent the interests of fundamentally different groups to themselves. In a similar vein, Gargarella (1998: 124) explains that full representation of all groups in civil society, including women, is necessary because otherwise elected representatives will fail to put themselves in the position of those that they are supposed to represent, they will not be sufficiently motivated to advance others’ causes and, moreover, they cannot be trusted to do so. That constitutional reform in Wales has impacted upon the nature, style and conduct of political debate is a function therefore not only of the increased numbers of elected women but also who they are; this is a key link in the relationship between descriptive and substantive representation (for a full discussion see Carroll, S. (2000) and Arscott, J. (1997) ). In shaping the equality agenda many have drawn upon earlier direct personal and professional experience. This has ranged from senior management of gender equality agencies, fighting high profile sex discrimination cases, promoting equality in trade unions as well as personal experiences of discrimination in the workplace, motherhood and issues of work–life balance. In this way the political debate has been informed by AMs’ direct personal experience of, for example, women’s health issues or being a single mother. Prior to the recent constitutional reforms this dimension of the deliberative process seldom occurred or was altogether absent because women were either excluded or marginalized in political decision-making. Reflecting upon this development, managers of women’s groups that are participating in the new post-devolution equality agenda have pointed to the ideological background of a number of women AMs as underpinning the emergence of a new style of politics. In the words of

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one, ‘quite a lot of the women in the Assembly have come up through feminism’. According to another interviewee, this has ‘made a difference because they’re more “people-centred” ... because compared to male AMs – they’re more used to working with consensus’. The newness of the Assembly prevents a fixed assessment in this respect. Thus far, the post-devolution style of politics can be distinguished from the earlier mode of governance by the combined effect of a greater level of understanding of equality issues by some women AMs, and the routinized, or mainstreamed approach that they bring to equality issues compared to the majority of their male colleagues. It is evident that the Assembly is in a transitional phase as the institution develops. When questioned about the style of political debate during the Assembly’s first months women AMs expressed similar views to their colleagues in the other devolved polities (cf. Gill, 2001; Brown et al., 2002; Fearon, 1999) and spoke of their ‘determination to break down tribal, confrontational politics’ (cf. Fawcett Society, 1996). In the opinion of some this had already led to the existence of a cross-party ‘sisterhood’. It is likely that such early expressions of sisterhood were, in part, a result of the fact that women (and men) AMs do not form a diverse group. Only two have disclosed a disability and none are from a minority ethnic background. Rather, they have broadly similar social and professional backgrounds and were members of some of the same social networks prior to devolution. Despite these earlier statements, in followup interviews, conducted three years later, a number of the same AMs spoke of how initial progress in establishing a new, more consensual style of politics has sometimes been held back and undermined by party politics. This repeats a pattern also identified in respect of the Scottish Parliament (see Chapter 5 by Mackay, Myers and Brown). As one interviewee put it, ‘you have got seasoned politicians ... acting in such a traditional male way that it makes change very, very difficult and can sabotage very positive initiatives within the Assembly’. Whilst this latter setback may be the case in respect of some areas of the new legislature’s functioning, the case of the Assembly’s equality agenda provides evidence that women elected representatives are transforming both the style and the substantive issues of government.

The Welsh Assembly Government’s equality agenda Final responsibility for the Assembly’s equality agenda lies with the Welsh executive, however, the legislature’s eleven-member cross-party Standing Committee on Equality of Opportunity has collectively

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overseen a draft of reforms initiated during the legislature’s first term. The initial actions of the Committee have been shaped by the Assembly’s ‘internal law’ or Standing Orders that require it to effectively prioritise – or have ‘particular regard’ – to gender equality (as well as promote equality for groups defined by race or disability).8 Latterly, the Committee has begun to broaden its focus beyond these (non-discrete) groups and it has considered equality of opportunity for groups defined by language, sexuality, age, and faith as well as in relation to gypsytravellers. In its first three years the Committee has been chaired by a succession of two women Government ministers. Women AMs have formed the majority of the Committee’s membership and have set its agenda. Some members of the committee have voiced concerns that male colleagues regard it as ‘a women’s committee’ (see Chapter 13 by Squires for a discussion of this issue), however the Committee’s rotating membership has ensured that over one-third of AMs have taken part in its deliberations. Whilst elsewhere in the Assembly party political differences have undermined attempts by some AMs to move away from a predominantly male model of adversarial politicking, this has not been the case with the Equality Committee. It has generally operated in a consensual way. As one of its members put it, this has led to a ‘spirit of inclusiveness’ (cf. Loraine Barrett AM, Proceedings of the Committee on Equality of Opportunity 31 October 2001, S4C2 TV). This in part can be explained by a collective will to initiate reforms to promote gender equality. Committee members support this conclusion. One Minister reflected that, ‘it is easy, in many ways, to chair the Committee on Equality of Opportunity as we are all committed to the goal of fostering good equal opportunity policies. It is nice to be able to put party differences to one side and get on with the agenda’ (Edwina Hart AM, National Assembly for Wales Official Record 5 July 2001). Whilst another AM stated that, ‘it was a joy to be party to well-meaning and important deliberations. We worked, despite our party loyalties, to ensure that common standards of equality applied throughout the Assembly and Wales’ (Alison Halford AM, National Assembly for Wales Official Record, 13 February 2001). This development may also be a function of the absolute nature of the Assembly’s equality duty in that, to a certain extent, it removes equality issues from the list of competing priorities of party political agendas because AMs effectively have no choice in this matter; they are legally obliged to promote equality. The executive’s initial actions in responding to the Assembly’s statutory equality imperative have mainly concentrated on the public sector

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and government itself, for as the Minister responsible for equality matters observed, ‘only once it gets its own house in order can the Assembly take the lead in addressing th[e] enduring barriers to equality’ (WAG, 2001: 2). One AM expressed a widely held view when she described the Equality Committee’s responsibilities as ‘a huge remit’. This follows because the statutory duty applies to all Assembly government functions. The Committee has been proactive in meeting this challenge and a wide range of reforms are now being implemented across government, and the public and voluntary sectors (for a full discussion see Chaney and Fevre, 2002a). Notable examples of the reforms aimed at promoting equality for women (and other groups) that the Committee has implemented include those that have been applied to the Assembly Civil Service. These have involved: the introduction of a new work scheme to enable those with domestic and family responsibilities greater flexibility; a survey on childcare needs in the Assembly; mandatory equality of opportunity awareness training for all civil servants; measures to ensure that the salaries of women taking maternity leave or staff taking career breaks do not fall behind; and the funding of a 22 per cent increase in the Assembly’s pay bill in order to move towards ending the gender pay gap. These developments have received widespread attention. According to one commentator they placed the Assembly at the ‘centre of the universe’ in developing good equality practice (MacErlean, 2002: unpaginated). Reflecting the earlier concerns of the UK government’s 1997 consultative paper on the nature of a future Welsh legislature, which asserted ‘greater participation by women is essential to the health of our democracy’ (Welsh Office, 1997: 24), the Welsh executive has introduced measures to mainstream equality in the policy process. These include equality impact statements used by civil servants in the preparation of policy, and funding for a women’s consultative network with over 100,000 members. However, analysis of these reforms (cf. Chaney and Fevre, 2002a) shows that there is unevenness in the way that the legislature is responding to the equality imperative and that much further work will be necessary before full gender mainstreaming in government becomes a reality. Other examples of reform include innovative steps by the Equality Committee to develop the use of contract compliance by government in order to promote equality of opportunity in two areas; in respect of the goods and services that the Assembly (and public sector bodies that come under its remit) procure, and in the employment practices of those

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that the legislature does business with. Consistent with the executive’s aim of mainstreaming equality, a range of monitoring tools is now being applied such as ongoing equality audits of the Assembly bureaucracy and public sector in order to secure continued progress in the promotion of equality. The pioneering nature of some of these measures has led some commentators to conclude that they are, ‘a striking example of the penetrating impact the Assembly can have on specific policy and administrative areas, with wider consequences for society more generally’ (Osmond, 2002: xxiv).

Conclusion Research examining the pre-1999 mode of governance in Wales concluded that it was male-dominated, exclusive, ‘centralizing and antidemocratic’ (Hanson, 1995; Bradbury, 1998: 127; Morgan and Mungham, 2000: 65) – or as one study dubbed it, ‘a “Raj” style of government’ (Morgan and Rees, 2001: 161). An official report revealed that during this period, a ‘significant number’ of government employees in the Welsh Office, ‘ha[d] received no training or awareness raising at all on equality matters’ (NAW, 2001: para. 3.1).9 Recent constitutional change has begun a process of rapid change. From the outset, the opportunities afforded by the modernization of government in the later half of the 1990s allowed women equality campaigners to successfully lobby for the new Welsh Assembly to be bound by a unique and innovative statutory equality duty. In addition, the reprioritization of equality matters that accompanied the post-1997 government reforms and associated positive action by some political parties saw significant progress made towards gender balance in national politics for the first time. The combination of these factors has been effective and resulted in a transformation in the role of women in national Welsh politics and the emergence of a new and distinctive equality agenda. The latter has been driven by key women AMs and has resulted in ongoing and wide-ranging reforms to promote gender and other strands of equality of opportunity in government and the public sector. The empirical evidence presented in this discussion supports contemporary theoretical claims about the benefits of proportional descriptive representation of women in politics. It also indicates that there is merit in placing on government a positive duty to promote gender and other forms of equality across the breadth of executive functions. In drawing these conclusions a few cautionary notes are also necessary. The newness of the ‘devolved’ system of governance in Wales

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means that the vast majority of equality reforms comprising the new agenda are either still in the planning stage or in the process of implementation. For this reason it is too early to draw conclusions about the effectiveness of the present reforms based on measurable equality outcomes. Moreover, other factors such as changes in contemporary social attitudes and human rights legislation have also contributed to the advances reported on here. In addition, despite significant progress in promoting equality in government and the public sector, modest progress has thus far been made in developing the participatory response to the equality duty anticipated by some theorists. Accordingly, it will take more time to develop adequate mechanisms whereby a wide range of groups in the voluntary and private sectors representing women (and other marginalized groups) can feed into the policy process. It is also the case that whilst a ‘critical mass’ of twenty-five women AMs has been instrumental in transforming the nature of national politics in Wales many problems remain. For example, there has been: a general reluctance from a number of AMs to undertake equality awareness training (NAW, 2001: unpaginated); there have been (unsuccessful) moves to abandon the Welsh legislature’s familyfriendly working hours (Osmond, 2001: 43) and only a limited number of AMs speak during the Assembly’s Annual Equality debates. The latter points suggest that at present equality of opportunity does not command a high priority for those outside of a limited cadre of equality reforming AMs. Lastly, it is important to note that the enforceability of the allembracing ‘Welsh-model’ equality duty upon government is presently unknown because no legal challenges have been brought using its provisions. In respect of the foregoing, major and daunting challenges remain for the Assembly Government in pursuing its duty to promote equality of opportunity for all people and across all functions of government. Nevertheless, constitutional change has meant that equality of opportunity for women and other groups is beginning to be addressed in a systematic way at an all-Wales level of government for the first time. The level of financial resources, political will and expertise that key politicians and officials have invested in promoting equality in the process of government is unprecedented. De facto and de jure it marks the end of the pre-existing and largely laissez faire approach that has signally failed to address many enduring forms of inequality. Interviews with participants in the current post-devolution equality reforms, together with the evidence of Assembly policy documents, reveal that the statutory duty has initiated equality reforms that would either not have taken place, or would have taken much longer to be implemented.

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The post-1999 system of governance has led to the use of equality in symbolic, rhetorical and strategic ways. Thus the promotion of equality of opportunity is at once symbolic of a determination to break with past practices and, in addition, it has been used as a strategic mechanism to push forward modernizing reforms in the civil service and public sector. It has also, as in the case of another vogue term – ‘inclusiveness’, become a prominent rhetorical device in policy documents and debate. These factors have led participants in the present reforms to speak of the way in which the statutory equality duty has been used to overcome resistance or obstruction by officials and others to the promotion of equality of opportunity in a way that was not generally possible prior to devolution. They have also stated that the Assembly’s clear lead in these matters has lent ‘moral support’ and been a boost to equality reformers in the public sector and elsewhere who, in the past, have often felt isolated and unsupported in their work. The combination of these factors means that constitutional change in Wales has already had a significant and positive impact on the role of women in politics, increased the legal rights afforded to citizens and advanced the promotion of equality of opportunity.

Notes 1. These interviewees were selected using a theoretical sample to reflect party political balance amongst AMs; and geographical location, and size and type of women’s organization. 2. www.esrc.ac.uk Project R000239410. 3. Arrangement whereby constituencies are twinned with the requirement that one puts forwards a male candidate and the other a female candidate. 4. A mechanism applied within a party list system where men and women are placed alternately on the list of candidates. When the parties fill their allocated number of seats from the people on their lists in descending order, an equal number of men and women representatives will result. 5. Following further use of positive action by two political parties a milestone was reached at the Second National Assembly elections in May 2003. The legislature became the first national government forum to achieve gender parity. 6. Sections 48 and 120 of the Government of Wales Act. 7. The situation whereby elected representatives belong to the class that they represent such that blacks represent blacks, disabled people represent disabled people, and so on. 8. Standing Order 14.1. 9. National Assembly for Wales (2001) Equality Training and Awareness Strategy for Assembly Staff (October 2001), paras. 3.1–3.2, emphasis added.

12 Mainstreaming Equality in Northern Ireland Bronagh Hinds

Mainstreaming equality is about integrating equal opportunities principles, strategies and practices into the way we think, plan and do business. Carried out effectively, with leadership and commitment, it is capable of transforming organizational cultures. It can bring about a new set of relationships between those who make policy and deliver services and those who are affected by the policy or are recipients of the service. Women have played the leading role, within Europe and internationally, in defining mainstreaming and pushing it to prominence on the political agenda. It is a constant theme at the United Nations’ world conferences of women. The European Commission has moved beyond simply funding action programmes on women in Member States to insisting on gender mainstreaming in national policies and programmes on which EU money is expended. At the present time, greater attention to mainstreaming is coinciding with efforts to develop an integrated equality agenda and have more groups covered effectively by equality legislation. Mainstreaming is a matter of social justice; it is about fairness. As can be testified to in Northern Ireland, it is also essential to moving permanently beyond what has appeared to be an intractable conflict. Inequality, marginalization and exclusion have no winners, with society the biggest loser because they breed disaffection and discontent. Equality and human rights were and are bound up with the conflict and its resolution to such a degree that any peace accord cannot succeed without continuous attention to improving their provision. Prior to the Multi-Party Talks aimed at securing the peace agreement, a policy entitled Policy Appraisal and Fair Treatment, intended to redress inequalities in government policy-making, existed. Its impact was minimal and dissatisfaction with its adequacy and implementation was widespread, and 185

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pressure mounted to replace it with a legal duty to promote equality. The roots of inequality deep within the conflict had to be tackled comprehensively, compelling the insertion of a commitment to mainstreaming that was inclusive of the diverse equality interests in the Belfast (Good Friday) Agreement and its reinforcement in the Northern Ireland Act 1998. Equality and human rights are important components of the Agreement, which in turn is an important backdrop to the new statutory duty on public authorities to mainstream equality in Northern Ireland. A true democracy cherishes all its citizens equally, creates space for all viewpoints and places the vulnerable and minorities at its centre not at its margins. It is a society in which inclusion is the central principle, backed up by adherence to a high standard of human rights and equality. This is not just a worthy statement. It encapsulates that which is fundamental to those active on equality and human rights in Northern Ireland; that is, the importance of the right to participate, to be heard and to be taken account of. Activists realize the strength of an equality strategy that combines mainstreaming, positive action and anti-discrimination measures. In Northern Ireland there is a detectable shift in focus from anti-discrimination to mainstreaming with the emergence of the statutory duty as a new tool to effect mainstreaming and the desire to ensure it is fully implemented. Essential to comprehensive, meaningful and successful mainstreaming is the involvement of those affected in the design of whatever is expected to deliver the desired equality outcome. It is an approach that places emphasis on shaping policy and practice in advance, with legal remedies playing their part when actions fall short or where there is discrimination. This chapter will show how equality and human rights are fundamentally woven into the Agreement. It will touch briefly on how the equality and human rights agenda in Northern Ireland has impacted on Great Britain and the South of Ireland. It will explore the development of the statutory duty on equality with reference to Northern Ireland public bodies and identify some outstanding issues.

The agreement In 1996 elections were held in Northern Ireland to elect political parties to Multi-Party Talks aimed at securing a permanent end to violence and a peaceful political way forward that would retain allegiance across Northern Ireland’s communities.

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On 10 April 1998 the Belfast (Good Friday) Agreement was signed by the British and Irish Governments and eight of the ten political parties engaged in the negotiations over the previous two years. The Agreement dealt with constitutional, institutional and political arrangements, not only within Northern Ireland, but also between Northern Ireland and the Republic of Ireland and between Britain and Ireland. It also covered human rights and equality, as well as decommissioning, criminal justice, policing, prisoners, victims and economic and community development. It was endorsed by more than 70 per cent of people in Northern Ireland voting in a referendum. Elections to the Multi-Party Talks succeeded in bringing into the negotiations voices that had been excluded from political dialogue in the past. Initially intended to engage those linked with paramilitary groups, the small newly formed Northern Ireland Women’s Coalition seized the opportunity to put women at the negotiating table. Throughout the two years of negotiation the Coalition made a unique contribution to both process and content that is evident in the Agreement. Women’s experience of marginalization and exclusion determined many of the priorities they wished to see reflected, including a Civic Forum to give a voice to civil society and references to women’s rights. The Women’s Coalition was determined that the document setting the parameters of the future Northern Ireland should explicitly refer to women. Thus, all political parties that signed up to the Agreement affirmed their commitment to ‘the right of women to full and equal political participation’ as well as ‘the right to equal opportunity in all social and economic activity regardless of class, creed, disability, gender or ethnicity’ (United Kingdom, 1998a: 16). The Agreement also refers to the responsibility of the British Government, pending devolution, to promote ‘the advancement of women in public life’ (United Kingdom, 1998a: 19). The Agreement, and its implementation through the Northern Ireland Act 1998, sets a constitutional framework for Northern Ireland and the basis for the operation of the Northern Ireland Executive. Equality and human rights are interwoven throughout the Agreement and are central elements of the constitutional settlement. Equal respect for two different allegiances, Irish and British, is reflected in the institutional arrangements designed to ensure fair representation in the Northern Ireland Assembly and Executive, and in North–South institutions on the island of Ireland. The Agreement also sets down that whatever choice [whether to remain part of the United Kingdom or become part of a united Ireland] is freely exercised by a majority of

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the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities (United Kingdom, 1998a: 2). Most political parties affirmed their commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community, in particular: ● ● ● ●

● ●

● ●

the right of free political thought; the right to freedom and expression of religion; the right to pursue democratically national and political aspirations; the right to seek constitutional change by peaceful and legitimate means; the right to freely choose one’s place of residence; the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity; the right to freedom from sectarian harassment; and the right of women to full and equal political participation (United Kingdom, 1998a: 16).

Supplementary rights to the European Convention on Human Rights (ECHR) were promised ‘to reflect the particular circumstances of Northern Ireland’ (United Kingdom, 1998a: 17) and together with the ECHR it is intended that these constitute a Bill of Rights for Northern Ireland. A statutory obligation was placed on public authorities ‘to carry out all their functions with regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race; disability; age; marital status; dependants; and sexual orientation’ (United Kingdom, 1998a: 16). Under the 1998 Act implementing the Agreement public authorities are also charged with ‘promoting good relations between persons of different religious belief, political opinion or racial group’ (United Kingdom, 1998b: 38). The operation of the Northern Ireland Assembly, its Ministers and its Committees are subject to equality and human rights safeguards. The ECHR and any Bill of Rights cannot be infringed and key decisions and legislation must be proofed. Ministers have to pledge ‘to serve all the

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people of Northern Ireland equally, and to act in accordance with the general obligations on government to promote equality of opportunity and prevent discrimination’ (United Kingdom, 1998a: 10). Their Code of Conduct requires that they ‘operate in a way conducive to promoting good community relations and equality of treatment’ (United Kingdom, 1998a: 10).

Equality As part of the ‘new beginning’ (United Kingdom, 1998a: 1) heralded in the Agreement a Northern Ireland Human Rights Commission was established and a single equality commission was formed by the merger of existing bodies dedicated to gender, race, religion/political opinion and disability. The Equality Commission for Northern Ireland, the leading statutory body responsible for equality and anti-discrimination, came into existence in October 1999. It sees its role as working to ensure that the concept of equality, in all its dimensions, is placed firmly at the heart of Northern Ireland society. In a society in which, over decades, human rights and equality have been contested, one of the Commission’s key tasks is to inspire people that it is the duty of all to contribute to building a new, holistic and shared society in Northern Ireland. The Commission faced many debates and challenges in its own transformation. Concerns were expressed about the potential marginalization of parts of the equality agenda and a hierarchy of discrimination emerging as a result of the merger. It was strongly felt that race and disability which had been championed relatively recently, and even gender, would lose out in attention and resources in a society in which the issues of religion and political opinion predominated. The Commission is working and building partnerships across all the equality areas and it remains to be seen whether the fears will be realized in any analysis of the Commission’s work over a reasonable period. To overcome concerns about duplication or gaps in equality and human rights support with the existence of two bodies, the Equality and Human Rights Commissions agreed to a Memorandum of Understanding to lay the foundation for working in solidarity to complement each other’s work. The integration of four separate equality bodies into one Commission is a pioneering initiative within the UK and its composition, reorganization and progress have been of interest to both government and equality bodies. Arising from government consultation on the implementation of the EU Article 13 Employment and Race Directives, the Minister of State at the Cabinet Office with responsibility for equality coordination

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across government announced in May 2002 that she was looking at longer term options in relation to reorganization of equality organizations in Great Britain. Her decision was expected in autumn 2002 (see also Squires, Chapter 13, this volume). While there are differing views on the merit and timing of replicating the Northern Ireland experience, the three equality bodies covering Great Britain – the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission – are working together on a vision for equality in Great Britain for the twenty-first century. There is also debate on the establishment of a human rights commission that will cover Great Britain and its relationship with any equality body or bodies. Options argued include the continuation of separate equality bodies with a separate human rights commission; a single equality body and a separate human rights body – as in Northern Ireland; and a combined single equality and human rights body. The Agreement has had an impact on how equality and human rights bodies have related across the island of Ireland and between the United Kingdom and Ireland. The Equality Commission for Northern Ireland has a strong relationship with its sister organization in the South of Ireland, the Equality Authority, which is also an integrated equality body. The Northern Ireland Human Rights Commission and its equivalent body in the South of Ireland, also set up as a result of the Agreement, are commanded by the Agreement to work together in a Joint Committee. The Agreement refers to East/West relations between the islands of Britain and Ireland and this is mirrored in developments in the equality and human rights field. What was once a Joint Equality Group of equality bodies in Great Britain and Northern Ireland has evolved into a cross-jurisdictional Joint Equality and Human Rights Group involving all the statutory equality and human rights bodies in the United Kingdom and Ireland. This offers opportunity for crossfertilization of ideas, exchange of knowledge and transfer of practice.

The statutory duty The statutory obligation indicated in the Agreement is articulated in Section 75 of the Northern Ireland Act 1998; it places two duties on public authorities. The first is to have ‘due regard to the need to promote equality of opportunity’ for a number of specified groups, and the second to have ‘regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group’ (United Kingdom, 1998b: 38). The relationship between the

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equality and good relations duties was a matter of debate in the House of Commons. There was concern that, in the context of building peace and reconciliation, there might be temptation to trade equality off against the need to promote good community relations, thus slowing down the drive towards attaining greater equality. When the legislation used the words ‘due regard’ in relation to equality and ‘regard’ for good relations it introduced a priority between the equality and good relations duties with equality taking precedence. Both are important, but equality sets the framework for good relations and if there is tension between the two duties the primary responsibility of the public authority is to its equality duty. The Equality Commission has stated that ‘the good relations duty cannot be invoked to justify a failure or refusal to comply with the equality duty’ (ECNI, 2000: 12). In any event good relations cannot be based on an inequality between different groups or communities and this was made clear by the Secretary of State in the House of Commons in July 1998 when she said that, We regard equality of opportunity and good relations as complementary. There should be no conflict between the two objectives. Good relations cannot be based on an inequality between different religious or ethnic groups. Social cohesion requires equality to be reinforced by good community relations ... I repeat that we see no conflict between these two objectives (Parliamentary Debates 27 July 1998: col. 109). The import of the legislation is that public bodies, some already listed for designation, others specifically designated by the Secretary of State for Northern Ireland, are each required to prepare and submit an equality scheme to the Equality Commission for approval. Equality schemes cover not only the anti-discrimination grounds of religious belief, political opinion, gender, race and disability, but also those concerned with sexual orientation, age and people with dependants. The legislation stipulates the key elements that a public body’s scheme must include and the timescale within which it must comply. Most importantly, it requires public authorities to consult, in accordance with directions given by the Equality Commission, ‘representatives of persons likely to be affected by the scheme; and such other persons as may be specified in the directions’ (United Kingdom, 1998b: 75). Consultation and engagement with the widest range of groups affected by the legislation – referred to as ‘affected groups’ – is at the core of the Northern Ireland approach to mainstreaming. This includes consultation on equality

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schemes, on identification of policies to be subjected to impact assessment, and throughout the equality impact assessment process. While the statutory duty has been placed upon public bodies, the responsibility for translating the legislation into workable guidelines with which public authorities must comply lies with the Equality Commission. The guidelines, known as the Guide to the Statutory Duties, cover in great detail what is required in all schemes. The Equality Commission sets the standard to which equality schemes must conform, approves schemes or refers them to the Secretary of State for non-compliance, and has the power to request revised schemes, investigate complaints and generate investigations. The Secretary of State is the ultimate arbiter in relation to equality schemes; s/he has the responsibility of approving any scheme that has been rejected by the Equality Commission, requesting a revised scheme or imposing a scheme on a recalcitrant public authority. The Secretary of State is also responsible for taking action if a public authority fails to comply in a timely manner with recommendations made by the Equality Commission following any investigation by the Commission. Despite the context of devolution and the equality dimension of the Agreement signed by the majority of political parties, Northern Ireland’s Executive and Assembly have no overarching authority over the statutory duty. The framing of the legislation reflects the view that there is no universal political support for equality and human rights that still remain contested political territory, at least in some of their aspects. However, the Executive has an important leadership role to play in the rolling out of the statutory duty.1 Northern Ireland government departments, of which the members of the Executive are Ministers, are the foremost public bodies that must apply the legislation. Departments’ performance of the duty will be analysed in Northern Ireland and beyond as one indicator of where political leadership across all parties stands on equality and whether further political responsibilities for equality and human rights can be devolved. The statutory duty legislation took effect on 1 January 2000 and the first eighteen months from that time were taken up with processing equality schemes. Public bodies prepared schemes, negotiated with the Equality Commission on compliance and submitted their schemes for approval. Non-governmental organizations (NGOs) found themselves in demand from public authorities to respond to consultations, and to the Commission to indicate whether they viewed the consultations as meaningful. The Commission went into overdrive after launching the Guide, establishing criteria for exemptions, setting the conditions for

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approval, pursuing the Secretary of State to maintain momentum on designating additional public bodies and meticulously working through approval of schemes. One year after the statutory duty was triggered, the Equality Commission approved the first equality schemes, those of Northern Ireland government departments. As public authorities worked towards formal approval the Commission reviewed each scheme in draft and advised on changes necessary to meet the conditions for approval. It audited, with public authorities and through random sampling of affected groups, consultation methods used in drawing up schemes with a view to ensuring adherence to the highest standards in the final scheme and future practice. This review indicated that greater attention is needed to building the culture and practice of meaningful consultation. The Commission has approved 154 schemes from the 177 public bodies designated to date in the UK and Northern Ireland. It is anticipated that approval – or non-approval if the Commission determines that a scheme does not comply – of the remaining designated bodies will be completed by the end of March 2003. It remains to be seen whether this detailed and systematic approach underpinned by law will deliver on mainstreaming. What is certain is that it has secured the attention of public policy-makers, even if simply for the reason that they do not want to operate outside the law. A criticism made of Section 75 is that it is time and resource intensive, but it can be argued that these investments are worth making for at least two reasons beyond compliance with equality law. First, the more rigorous approach to preparing policy required by Section 75 repays policymakers with new skills that should ultimately lead to better planning and management of policy development. Second, it engages the public in a way that no previous process has been required to do before and has the potential to lead to better policies.

Equality impact assessment Equality schemes are a means to an end, the end being thorough equality proofing of public policy; and so, as the first equality schemes neared completion attention turned to the business of policy consideration. Public authorities are required to assess and consult on the impact of existing and new policies on equality of opportunity. They have to monitor adverse impact, and consider measures that might mitigate adverse impact or alternative policies that might better achieve equality of opportunity. Faced with these tasks they asked the Commission to

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provide additional guidance. In response, the Commission convened an advisory group comprising representatives from the public, voluntary and trade union sectors to work with a consultant team on the production of supplementary guidance on equality impact assessment. This was not intended to compromise the Commission’s independence or dilute its role in determining requirements for compliance; the ultimate decision in relation to any further guidance remained with the Commission. The purpose of bringing the group together was to foster collaboration, consult, gather expertise and experience and brainstorm ideas and check their workability. The deliberations of the advisory group were supplemented with meetings with other stakeholders. The task that faced the Commission, the consultant team and the group was difficult – how to develop equality impact assessment guidance for application across a broad and inclusive range of categories. A study of practice in other jurisdictions found that experiences were not readily transferable to the multidimensional approach in Northern Ireland as each had, mainly, a single focus such as the environment or gender. In addition any impact assessment guidance had to comply fully with the Guide to the Statutory Duties that had the weight of legislation and the formal approval of the Secretary of State behind it. It was decided the most useful form the guidance could take was repetition of each appropriate section of the Guide followed by further elaboration and questions to assist policy planners to think differently and comprehensively. On its completion, the Commission struggled with the conflict between taking time to consult on the guidance in advance of implementation and sending it immediately to public authorities that by this stage were already assessing policies. The Commission introduced the Practical Guidance on Equality Impact Assessment in the spring of 2001 and urged public bodies to adhere to it on the understanding that it was a universal pilot that would be reviewed in 2002. The Practical Guidance drew attention to the considerable information gaps that exist and indicated that ‘assessing the adverse impact of public policy across all nine categories cannot be effectively undertaken unless all qualitative and quantitative data relevant to the Section 75 categories are available and accessible’ (ECNI, 2001: 4). Public authorities and NGOs have sought guidance on the systematic monitoring that is necessary and the Commission has consulted on a monitoring document that makes a comprehensive review of the process. The document sets out the rationale for monitoring, addresses the need to have an organizational policy on monitoring, looks at qualitative and

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quantitative monitoring and data collection and outlines for consideration a classification system for use in quantitative monitoring.2 Awareness raising and training are essential to effective mainstreaming and equality schemes commit public bodies to train staff. The Equality Commission engaged in information dissemination and training from an early stage. It informed public authorities of the details of the Guide through extensive meetings and assisted in their preparation of equality schemes. It provided information and capacity building for affected groups to empower them to respond to consultations. It offered statutory duty awareness training to elected members of local councils. When the focus moved to equality impact assessment, the Commission commissioned a series of joint training sessions for public authority and NGO representatives. Despite this training there remains an area that requires greater attention by public authorities and NGOs have indicated that more capacity building among affected groups is needed.

Effectiveness and change As each stage of the Section 75 process rolls out, a new priority emerges for attention. As more equality impact assessments are published individuals are beginning to think about how they can use the legislation to lodge a complaint where they believe a policy has an adverse impact on them and they are unhappy with the way a public authority has carried out its responsibilities under the Act. The Commission has an obligation to investigate appropriate complaints for which it has established an investigation procedure; it is also able to generate its own investigations. A criticism made of Section 75 from the outset was the weakness of the legislation in dealing with public authorities that fail to comply; if the Equality Commission cannot secure action in a timely manner by the public authority the sanction is a report to the Secretary of State who may ‘give directions to the public body in respect of any matter referred to him’ (ECNI, 2000: 53). It is too early to determine whether the provision in the legislation in regard to complaints is effective as, three years into the process, the first complaints are only just filtering through.3 The Equality Commission is charged to ‘keep under review the effectiveness of the duties imposed by Section 75’ (United Kingdom, 1998b: 74) and is acutely aware of the fact that the statutory duties legislation is unique and its implementation needs to be monitored and evaluated to establish whether it is effective or needs to be improved. In mid-2002 the Commission began to review the Practical Guidance on Equality

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Impact Assessment as promised and the Guide to the Statutory Duties and it reconvened the advisory group as a point of reference. Extensive consultation beyond the group and focussed discussions were planned and a questionnaire to solicit preliminary views circulated. The Commission also reviewed the first ten equality impact assessments completed and subsequently revised both guides. Has anything changed over the last three years, or have people been busy simply producing and responding to pieces of paper with no tangible results? Section 75 is about learning new things; it is about new skills, new cultures, new mindsets and three years is a short time over which to judge something of the magnitude and depth of the equality duty. Nevertheless, some tentative comments can be made. Initial responses included commitment to a radical new approach to mainstreaming equality, concern at the amount of work entailed, low prioritization and resistance. There have been a number of positive developments since then. Committed public servants have said they now have less difficulty in understanding how impact assessment works. The requirement to comply with the duty has encouraged greater cohesion between public authorities, with health and education bodies working collaboratively within their sector on equality schemes and impact assessment of shared policy; the statutory duty can be said to be contributing to joined up government. A few public authorities have demonstrated commitment by customizing guidance for their staff and developing additional support materials; the Staff Commission for the Education and Library Boards produced their own recommended approaches to equality impact assessment and conducting consultations. The Coalition on Sexual Orientation prepared a well-received guide for public bodies on how to involve and consult the lesbian, gay, bisexual and trans gender community. The Office of the First and Deputy First Ministers coordinated a working group, including NGOs, on the preparation of more detailed guidance on consultation. Affected groups report a marked difference in getting access to policy-makers and an increase in consultation since the advent of Section 75. Help the Aged acknowledged a positive response from the Northern Ireland Housing Executive to adjusting a policy relating to sale of houses that had an adverse impact on older people. While some policy-makers are too keen to declare there is no adverse impact in a policy, others point out that there is virtually no policy that does not have an adverse impact; their experience of implementing the duty properly dictates that a public authority must start from the premise that an adverse or differential impact always exists.

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Not everyone has embraced change fully and creatively. NGOs tell stories of inappropriate consultation methods. While public authorities sometimes comment that they find it hard to get feedback from affected groups, NGOs say that, although they are being consulted, they are not listened to, that policy is still decided in advance with no adjustment to take account of consultees’ views. NGOs make the case that this contributes to lack of response as evidence of being heard is central to maintaining engagement. Both public authorities and NGOs bemoan the lack of resources available for the additional work required of them; and while some public authorities are able to appoint an equality officer, NGOs are struggling financially even to keep their doors open. Anecdotal evidence suggests that newer initiatives and public entities find it easier to apply the statutory duties while, even with devolution, some older bodies have not changed their structures or modus operandi with the result that room for creative thinking within them is minimal. There is evidence to suggest that while Section 75 has touched almost every public body in Northern Ireland it has not reached far enough into each body. A public body’s equality officer may be following the letter of the law and working well with the Equality Commission but s/he is not the person responsible for formulating and managing all policy matters. Tasks in policy management fall to different people, usually according to their area of expertise or responsibility; these people may not have been trained in equality impact assessment, and in some cases may not even be aware of the Practical Guidance. This raises two areas covered by a public authority’s scheme that require greater attention and dedication. The first is training, which should happen at all levels throughout the organization if there is to be consistent and effective implementation of the Section 75 duties. The second is what is referred to in the Guide as ‘top level commitment’ (ECNI, 2000: 31). There is acceptance in different jurisdictions of the importance of political will and leadership as an essential driver of mainstreaming equality. As one means of securing this the Equality Commission refused to approve any equality scheme that had not been approved and signed by the Minister and Permanent Secretary of a government department or the Chairperson and Chief Executive Officer in the case of other public bodies. However, it appears that political and public leaders believe that simply signing off on a document is enough to signal commitment as little else has been done to reinforce the message. What is required has been well stated by Mackay and Bilton; that is ‘political will and leadership that is unambiguous, consistent and regularly restated in public’

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(Mackay and Bilton, 2002: 6). Enhanced public leadership is a matter that will need to be pursued actively by the Equality Commission. The Commission has a number of steps to take in continuing implementation of Section 75. It will have to listen carefully to the views of public authorities and affected groups on experiences to date in relation to equality schemes and impact assessment, and consider these along with evidence collected from completed impact assessments and annual progress reports in order to assess how well the application of the legislation is faring. The Commission must develop its investigation of individual complaints, consider in what circumstances it will generate investigations and monitor the effectiveness of the legislation, especially in relation to enforcement where there is non-compliance. It will have to establish a means of reviewing equality impact assessments regularly as the resulting policies are indicative of whether or not Section 75 is successful in mainstreaming equality. It should ensure that annual reports from public authorities are structured to provide an effective and self-critical evaluation of progress. Public authorities are required under the legislation to review their equality schemes within five years; the Commission must draw on cumulative experience to produce effective guidance on how schemes are to be formally reviewed by public bodies and, if necessary, revised. The Commission must also pursue, through the Secretary of State, designation of further public bodies.

Conclusion The Agreement sets out the new constitutional framework for Northern Ireland and for relationships between the North and South of Ireland and between the United Kingdom and Ireland. Equality and human rights, once central to the conflict, are now central to the success of that Agreement and a variety of mechanisms and commitments have been put in place to deliver results. These are interlocking, but at the same time the Equality Commission, the Human Rights Commission and the Executive each have distinct and independent roles to play. Critical too is a new way of doing business, one that is more participative and democratic. Not only is there an elected Assembly and Civic Forum, and Human Rights and Equality Commissions to review and comment on legislation, there is a statutory requirement to involve those affected on grounds of religion, politics, gender, race, disability, age, marital status, dependants and sexual orientation in public policymaking. The statutory duty on equality is an important tool in influencing decision-making where it matters – when policy is being determined. It is a key route through which the Agreement’s and the

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Executive’s commitment to equality can be realized. It gives greater transparency and accountability in public policy-making, has the potential to develop a new set of relationships between government and civil society and should lead ultimately to more informed and better decision-making. Northern Ireland is a case study in mainstreaming equality and rights. This is in equal measure a considerable responsibility and a welcome opportunity. Government and people must work from an understanding of equality that is inclusive and accepting of diversity. Northern Ireland is challenged to promote coherence among a wide range of equality issues, to integrate equality agendas and to develop an integrated approach to the comprehensive equality agenda. It is charged to deliver results in each and every equality area. While the duties and powers bestowed on the various institutions are crucial tools, the determining factor in success will be the extent of active participation in pushing the boundaries, benchmarking progress and being vigilant in maintaining achievement. In the words of the Executive’s Programme for Government: ‘In tackling these issues we have the advantage of a vibrant and extensive community and voluntary sector which already makes significant and critical contributions to many areas of life. A key challenge will be to build on this community capacity’ (OFDFM, 2001: 15).

Notes 1. The Executive’s role applies when it is not in suspension due to ongoing disagreement over implementation of the Agreement. 2. The Commission undertook the consultation exercise in response to requests from public authorities and NGOs for definitive guidance and advice on monitoring. Consultees expressed their need for monitoring strategies and classification systems to suit the particular policy being monitored while at the same time ensuring some uniformity. Professional training in monitoring practice and awareness raising to inform and secure the support of the public were deemed necessary. Consensus emerged around a role for the Equality Commission in co-ordinating a number of pilot exercises in monitoring with the support of an advisory group of practitioners comprising public authorities, voluntary organisations and trade unions. The Commission intends to progress these suggestions alongside work being undertaken by statisticians and researchers through the Office of the First and Deputy First Ministers on an equality and social needs strategy with the goal of producing additional guidance on monitoring. 3. By mid-2003 the Commission had considered six individual complaints and authorized one of these to be fully investigated. No Commission-generated complaints have been instigated.

13 Reviewing the UK Equality Agenda in the Context of Constitutional Change Judith Squires

The new administrations in Scotland and Wales have, amongst their many other achievements, served to highlight the limitations and weaknesses of the old central administration in London. The law, the legislature and the bureaucracy each need significant reform if they are to respond positively to the challenges posed by the emerging political agenda in post-devolution Britain. This can be seen particularly clearly in relation to the current review of equality laws in the United Kingdom and the proposal under review to introduce a Single Equality Body. Equality laws in the United Kingdom have developed several defining features over the last thirty years: a focus on equal treatment, a dual focus on gender and race, and a piecemeal response to European Directives resulting in an increasingly patchwork array of legislation. In this context the Labour Government has recently announced the most significant review of equalities legislation and bodies in twenty-five years. A formal consultation process to review equalities legislation has been initiated. If it is to have a real impact this process must entail public deliberation as to what is meant by equality, and what institutional arrangements and social practices are required to achieve it. The recent constitutional change within the United Kingdom impacts upon this review of the equalities agenda. Whilst directives from the European Commission place the Government under an obligation to act, the new devolved administrations in Wales and Scotland offer examples of good practice to be emulated and arguments for levelling up equality provisions. The emergence of multi-level governance therefore offers resources, in terms of new perspectives, practices and legal frameworks, to rejuvenate a tired central administration and update its piecemeal and reactive equalities agenda. It also creates new spaces for previously marginalized groups to 200

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engage with the state in the shaping of a new equalities agenda and new practices of representation. The practical lessons to be learnt from the devolved administrations in Edinburgh and Cardiff include the need for a coherent and comprehensive legal equality framework, which responds to and is compatible with both European directives and the frameworks being developed in the devolved administrations. But the lessons are more complex than this: the United Kingdom also needs an increased number of women and other marginalized groups in Westminster, coupled with the modernization of Whitehall such that it is more open to the interests and experiences of these groups. And, if this is not challenging enough, all of these developments will need to work within the context of the creation of new political opportunity structures for non-governmental organizations campaigning around equality issues to engage in deliberation with government to shape the policy agenda. In addition, these changes will need to be framed by a clear conceptual framework, in which we clarify the relation between equal treatment, positive measures and mainstreaming. I intend, in this chapter, to address the conceptual framework first, followed by an account of UK equality laws and bodies as they currently stand. I will then outline the proposal that a Single Equality Body be created and a widespread review of the equality agenda be conducted. I will then turn to the need for change in the legislative framework, the legislature, the bureaucracy and civil society, showing, in relation to each of these, that the creation of the devolved administrations issues challenges and offers opportunities for the older central administration.

Theorizing equality Debates about equality within feminist writings have been shaped by a perception, frequently referred to as ‘Wollstonecraft’s dilemma’ (Pateman, 1989: 196–7), that equality and difference are antagonistic aims. Those committed to liberal principles of equality have argued for the need to transcend sexist presumptions about gender difference and to grant women equal rights with men and enable women to participate equally with men in the public sphere. From this perspective gender difference appears to be inextricable from sexism (Fraser, 1997: 100). By contrast, those who adopt a difference perspective feel that in the context of a patriarchal society the pursuit of equality will inevitably result in requiring everyone to assimilate to the dominant gender norm of masculinity. The central normative issue here is whether gender equality

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requires de-gendering or the equal valuation of different contributions by women and men. Moving beyond this apparent dichotomy, it is now increasingly accepted that equality and difference are only incompatible if equality is understood as sameness (Lister, 1997: 96; Bacchi, 1999: 266; Squires, 1999: 127–32). For as long as equality is understood in this way gender consistently emerges as a problem of difference: ‘Equality as sameness is a gendered formulation of equality, because it secures gender privilege through naming women as difference and men as the neutral standard of the same’ (Brown, 1995: 153). Neither the sameness nor the difference perspectives therefore entail a transformation of the norms of equivalence themselves. For this, we need to render visible the ways in which particular institutions and laws perpetuate inequality by privileging particular norms. This ‘diversity’ perspective is sensitive to difference, yet recognizes the cross-cutting axes of disadvantage in a way that the ‘difference’ approach did not. This is an important normative development. For the diversity among women, which has been debated within feminist circles since the mid1980s (Spelman, 1988), needs to be integrated into our normative understanding of the equality agenda. The challenge for contemporary equality theorists is to engage with the intersecting hierarchies of gender, race, economic class, sexuality, religion, disability and age. As Patricia Hill Collins suggests: ‘viewing gender within a logic of intersectionality redefines it as a constellation of ideas and social practices that are historically situated within and that mutually construct multiple systems of oppression’ (Collins, 1999: 263). One manifestation of this sameness/difference/diversity debate is the fact that three distinct understandings of equality underpin current equality policies: equality as individual justice, equality as group justice and equality as diversity. The central question for policy-makers is which of these models should prevail, or whether indeed any one model alone should dominate. In practice, these three conceptions of equality have each been manifest in recent equality policies. As Teresa Rees suggests, one can identify three phases in the European Commission’s approach to gender equality over the last three decades: equal treatment in the 1970s, positive action in the 1980s and gender mainstreaming in the 1990s (Rees, 2002: 48). These three approaches, which Rees labels ‘tinkering’, ‘tailoring’ and ‘transforming’ respectively, map fairly neatly onto the three perspectives in the sameness/difference/diversity debate outlined earlier. Equal treatment is a ‘legal redress to treat men and women the same’. Positive action recognizes that there are differences

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between men and women and that measures are required to address disadvantages experienced by women as a consequence of those differences. Mainstreaming ‘ideally should involve identifying how existing systems and structures cause indirect discrimination and altering or redesigning them as appropriate’ (Rees, 2002: 46–8). Many equality advocates have recently come to view mainstreaming as the most normatively desirable conception of equality. It provides a new and additional tool for promoting equality by focussing attention on gender influences on the operation of apparently gender-neutral policy. As the frequently cited definition from the Council of Europe makes clear: ‘Gender mainstreaming is the (re)organization, improvement, development and evaluation of policy processes, so that a gender equality perspective is incorporated in all policies at all levels at all stages, by the actors normally involved in policy making’ (Council of Europe, 1998: 15). Mainstreaming also appears to allow for the recognition of crosscutting diversity in a manner that neither the equal treatment nor positive discrimination models do. For, while some have understood mainstreaming as about gender equality only, its real potential resides in the fact that it could be implemented such that it addresses inequalities based on race, religion, disability, sexual orientation and age as well. As Rees argues, limiting mainstreaming to gender equality is conceptually flawed given the diversity among women and men (Rees, 2002: 54). This takes us beyond a formal liberal equal-rights discourse but also demands that we resist essentialist articulations of gender difference. This conception of equality does not demand that women integrate into male norms, nor does it demand that female norms be adopted in addition. Rather it seeks to transform and de-gender the norms of equivalence themselves. There are then at least three conceptions of equality currently in play, which result in three types of equality policies. Yet, whilst the theoretical tensions between the sameness, difference and diversity perspectives appears to demand resolution via the normative endorsement of one of these perspectives and rejection of the other two, a more pragmatic synthesis appears to be needed in terms of policy. Recent empirical research into strategies for enhancing the political inclusion of groups marginalized by race, class and gender reveals that women’s political citizenship is enhanced by state policies that paradoxically affirm both individual equality and group difference (McDonagh, 2002: 535). Eileen McDonagh’s quantitative cross-national analysis finds that sameness and difference need not be mutually exclusive approaches: it is not that

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individual equality ‘fails’ women, but rather that individual equality is not enough. What appears to be needed is a paradoxical combination of both (McDonagh, 2002: 548–9). Meanwhile Rees, one of the key advocates of mainstreaming, clearly states that: ‘mainstreaming is a longterm strategy that needs to be accompanied by the secure underpinning of equal treatment legislation and positive action measures’ (Rees, 1999: 166). The emergence of mainstreaming and the growing of awareness of the importance of intersectionality, indicates that this paradoxical combination of individual equality and group difference needs to be augmented by a third commitment to a mainstreaming approach sensitive to diversity. Equality policies cannot and should not be based on any one of these models of equality alone. A comprehensive equalities policy will need to engage with all three. To be coherent as well as comprehensive such a policy will need to identify where these three models clash, and to work through the problems that emerge when they do.

Britain’s equality laws Turning now to the actual operation of British equality laws, it becomes evident these are far from coherent or comprehensive at present. The Labour governments of the 1970s introduced a range of equality laws designed to remedy group discrimination (in preparation for joining the European Economic Community): The Equal Pay Act 1970, the Sex Discrimination Act 1975 (SDA), the Race Relations Act 1976 and the Fair Employment (Northern Ireland) Act 1976. Article 119 of the Treaty of Rome (signed by the United Kingdom in 1973) also established the principle of equal pay. The Equal Opportunities Commission (EOC) and Commission for Racial Equality (CRE) were established to uphold these laws. The first noteworthy feature of these equality laws is their focus on equal treatment, which some critics (employing a difference perspective) have suggested relies on a ‘spurious gender neutrality’ which ‘endorses a male norm’ and restricts the possibilities of challenging structural disadvantage on the grounds that such actions would discriminate against men (Gregory, 1999). A second feature has been the way in which Britain has operated a system in which gender and race, represented by the EOC and CRE respectively, operated distinct – possibly competing – agendas, fuelling the suggestion that multiculturalism may be ‘bad for women’ (Okin, 1999: 7–26). With the establishment of the Disability Rights Commission in 2000 this fragmentation was further complicated.

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A third feature has been the piecemeal approach of using European litigation to update UK equality laws, which has created a complicated array of equality laws (see Bagilhole, 1997; Rees, 2002). As Paul Chaney notes, equality is presently addressed by a patchwork of at least thirty Acts of Parliament, thirty-eight Statutory Instruments, eleven Codes of Practice, twelve EC Directives and the devolution statutes of 1998–99 (Chaney, 2002: 88). Contemporary UK equality law is itself a source of inequality, he concludes: ‘it applies to legislatures and government departments in different ways (e.g. Northern Ireland Act, 1998); privileges some social groupings (e.g. Race Relations Amendment Act, 2000); and affords varying levels of protection between polities (e.g. Scotland Act, 1998)’ (Chaney, 2002: 88). Rees concurs, arguing that sexual equality legislation in Britain has never worked effectively and is now ‘badly out of date and unmanageable’ (Rees, 2002: 61). So too does Julie Mellor, chair of the EOC, who argues that ‘Britain’s equality laws are in a mess. Inconsistent and incomplete, they offer different levels of protection for different groups and none at all for others’ (The Guardian, 16 May 2002).

A new gender machinery in Whitehall The legal framework for equality then clearly needs reforming such that equal treatment can be realized uniformly across Britain, across institutions and across social groups. Yet it should be noted that the Labour Governments of 1997 and 2001 have made an attempt to address issues of inequality via institutional change. In addition to the equal treatment and positive action programmes that it continues to promote in a piecemeal and reactive way it is now exploring the potential for gender mainstreaming, and creating new equality bodies to implement this process. The Women’s Unit was established in June 1997. It was charged (in what could perhaps been viewed as a paradoxical affirmation of both individual equality and group difference perspectives) with scrutinizing legislation to promote sexual equality and with promoting femalefriendly policies. The central aim of the Unit was to coordinate work across government departments, so supporting ministers across Whitehall in their efforts to promote women’s interests. There was also an educative and monitoring role, raising gender awareness amongst policy-makers and auditing the development and implementation of policies and programmes. At the same time the Government created a position of Minister for Women and junior Minister for Women. Originally based in the Department of Social Security, the Unit was moved in 1998 to the Cabinet Office.

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In November 1998, New Labour’s commitment to mainstreaming was formalized with the publication of ‘Policy Appraisal for Equal Treatment’ guidelines (PAET). The guidelines offered advice to civil servants on how to monitor the impact of policy proposals through the collection of data, consultation, assessment and, if necessary, action. Civil servants should not assume that policy measures were gender neutral: ‘gender impact assessment challenges the assumption that policies and service affect everyone in the same way. It puts people at the heart of policy-making and leads to better government by making gender equality issues visible in the mainstream of society’ (Cabinet Office, PAET Guidelines). The Women’s Unit was to provide advice on the implementation of the guidelines. However, the Unit struggled to establish a clear identity for itself. Political difficulties dogged the unit, which appeared to lack support within the administration and received a hostile response from the press (Squires and Wickham-Jones, 2002). Many commentators confidently predicted the demise of the Women’s Unit before the June 2001 general election (The Guardian, 18 June 2001). In the event the Women’s Unit was not abolished. It was restructured as the Women and Equality Unit (WEU), taking responsibility for policy on gender equality issues, ‘coordinating policy on women and gender equality issues’ (Cabinet Office 12 July 2001), including the sex discrimination act and equal pay. It became sponsor for the EOC and the Women’s National Commission (WNC) and it took on the Kingsmill Review, currently then underway, into women’s employment and pay. The Unit’s remit was to improve the position of women in ‘measurable’ ways and to promote equality generally regardless of gender or sexual orientation. Two new Ministers for Women were appointed, both with a strong track record on promoting women’s issues. Allied to the WEU is a small team of six people called the Equality Coordination Team. They support the Cabinet SubCommittee on equality and the junior minister Barbara Roche in her role coordinating equality across government. As a result of the Machinery of Government changes of 29 May 2002, the WEU transferred to the Department of Trade and Industry, which suggests that the remit of the Unit is to be narrowed to focus on issues of the gender pay gap and women’s productivity in the labour market. In all, the machinery designed by New Labour has undergone two name changes, three changes of institutional bases and a total of seven ministers for women (including four sponsoring ministers) in the space of five years. These institutional shifts reflect an uncertainty on the part of the administration as to what the role of the unit should be, and more

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generally as to how mainstreaming should be implemented. Perhaps as a result, and despite the strengthening of its remit and the increased resources allocated to it, the WEU has continued to struggle with its mainstreaming remit and its future is again in question.

A single equalities body The Government’s equality agenda is being shaped not only by the internal dynamics of debates and developments within Westminster and Whitehall, but also by directives from Europe and developments in the devolved administrations. The European Union Article 13 Employment Directive will, for example, extend the grounds for protection against discrimination in employment and training to include sexual orientation and religion by 2003 and age by 2006. The government is required by this EU directive to outlaw discrimination on the grounds of age or sexual orientation in addition to legislating – as it is currently – against religious discrimination. This new directive gives an added impetus to long-standing calls to review the equality legislation in operation in Britain. In addition the EU has recently issued a directive requiring member states to promote equality in relation to sexual orientation, age and religion in addition to race, gender and disability. Following these directives the UK government announced in May 2002 that it intends to abolish the separate commissions for race equality, disability rights and women’s opportunities and replace them with a single equalities body (SEB). As Barbara Roche stated: ‘We cannot have six separate commissions dealing with six separate strands’ (Roche, 2002). The proposal is that this SEB will eventually be responsible for discrimination on grounds of race, gender and disability and also age, sexual orientation and religion (The Guardian, 13 May 2002). The Government aims to establish this new equality body by 2006, in time for the legal ban on age discrimination, with interim arrangements for sexual orientation and religion, which come into effect in 2004. At the time of writing the Government is engaging in consultation to examine whether the new body will be run as an integrated equality body, or simply an umbrella for a range of bodies. In either event it seems likely that a single Equality Unit will replace the current WEU. The leaders of the two oldest commissions – CRE and EOC – both tentatively support a SEB. Angela Mason, executive director of the gay rights group Stonewall also argues that one equality body would benefit the gay community, which currently does not have its own commission: ‘We will finally have a statutory body that will challenge

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discrimination against sexual orientation’ (Pink Paper, issue 738, 24 May 2002).1 However, concerns have also been expressed. Bert Massie, Chair of the two-year-old Disability Rights Commission fears that unless a single Equality Act is introduced in advance of a SEB, and the policy agenda delivered in advance of the new body, the voice of the disabled will get drowned (Massie, 12 September 2002). Similarly the WNC argues that ‘a single Equality Act must underpin any changes to the equalities commissions’ (WNC, 2002b). They also recommend that any SEB should be set up under statute with guaranteed independence and funding, and a responsibility to report to parliament, not just Ministers. The introduction of a single Equality Act with a SEB to enforce it is also advocated by other groups within the United Kingdom such as the Commission on the Future of Multi-Ethnic Britain (Parekh, 2000: 266–7). The creation of such an Act and Commission would, they feel, give the principle of equality a higher profile, give more consistent advice across a range of specific issues, more readily tackle cases of multiple discrimination, and better mirror the equality units that exist in most public bodies and private sector companies (Parekh, 2000: 267). However, they are also attuned to the fears that would accompany such a move: specialist knowledge may be dissipated, there may be rivalries between groups within the Commission, the differences between the various kinds of discrimination may be neglected, and the turbulence caused by organizational restructuring may be to the detriment of the equalities agenda (Parekh, 2000: 267). Similarly, grass roots women’s groups consulted by the WNC felt that the synergy of a common approach might be very valuable, but all the women consulted – disabled, lesbian, minority ethnic women – felt that gender issues would become marginalized (WNC, 2002b). These fears are legitimate, but do not need to be considered in the abstract. There are recent empirical models to appeal to which might suggest whether or not this is likely to be the case. For the move towards a SEB would echo the new post-devolution equality agenda that has emerged in Scotland and Wales since 1998. The fact that the Government is required, as a result of EU pressure, to review its piecemeal and reactive equality laws, to restructure its equality organizations and rethink its equality agenda, creates an opportunity for the establishment of a more coherent and proactive equalities agenda across Britain. Westminster has much to learn here from the devolved administrations, which may help rejuvenate this ageing central administration by sharing their experiences of best practice.

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Learning from the devolved administrations So, the current debate about how best to establish a new equality framework ought to be informed by the experiences of the devolved administrations. One of the key lessons to be learnt is that the establishment of effective equality policies, that embrace positive action and mainstreaming as well as equal treatment, will require not only a new legal framework but also cultural and institutional change in the legislature, the civil service and civil society. Legislative change A new legislative framework is clearly vital. The Government of Wales Act (1998), which places the National Assembly under a unique statutory duty to promote equality of opportunity, offers an important model for such a framework. This equality duty, which was included in the Act following intense lobbying by key gender equality campaigners, is absolute and applies to all the Assembly’s functions (see Chaney Chapter 11, this volume). There is serious merit in considering the ‘Welsh model’ equality duty as a potential legal framework for all of the United Kingdom. It requires government to be proactive in equality matters and it gives citizens legally enforceable rights in relation to elected representatives’ actions thereby empowering citizens vis-à-vis the state. It also offers a holistic approach to the promotion of equality without privileging specific groups. This holistic approach is badly needed in Britain. For example, the Race Relations Amendments Act 2000 introduced a duty on public sector bodies to promote race equality. The Government is now committed to bringing in new rights to protect people from discrimination at work and in vocational training on the basis of sexual orientation, religion or belief by 2003 and age by 2006. Yet this new legislation does not cover access to goods, facilities and services, unlike the Sex Discrimination Act and the Race Relations Act. As the Chair of the EOC points out: ‘There is no point in creating new institutions if they are forced to treat some groups of people ‘more equally’ than others. All our equality laws need to be brought in line with existing race legislation’ (EOC, 23 October 2002). A new single Equality Act is needed and the Government of Wales offers a good model here. But legislative change alone is not enough: cultural and institutional change is also needed if we are to engage with the positive action and mainstreaming models of equality policy as well

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as the equal treatment model. For these the numerical representation of women and other marginalized group members within elected bodies, the modernization of the civil service and fostering new political opportunity structures for groups within civil society, ought also to be viewed as important elements of a new equalities agenda.

Descriptive representation The 2001 British general election returned 17.9 per cent female MPs. The 1997 election had returned 18.2 per cent, the highest level ever achieved in Westminster (see Russell Chapter 4, this volume). It was widely expected that the new female Labour MPs would ‘make a difference’ by promoting an equality agenda. The MPs themselves do feel that they ‘have articulated women’s concerns in debates, in select committees and in the Parliamentary Labour Party’s women’s group’, and that ‘their presence has engendered both greater access between women constituents, women’s organizations and women representatives and the articulation of a feminist agenda’ (Childs, 2002a: 144). Nonetheless they have been widely perceived as overly loyal to their government and ineffectual in relation to feminist aims (Childs, 2002a). The link between descriptive representation (the number of women in parliament) and substantive representation (parliamentarians acting for women) has been hard to discern. As Alexandra Dobrowolsky observes, ‘the presence of women does not guarantee that they would be able to influence policy changes to benefit women, or guarantee that women’s diverse interests and identities would be represented’ (Dobrowolsky, 2000a: 248). So to focus on descriptive representation alone does little to engage with the project of mainstreaming. However, the link between descriptive and substantive representation has been much clearer in Wales and Scotland, where levels of female representation are much higher. The first elections to the Scottish parliament in May 1999 led to a proportion of 37.2 per cent women members of the Scottish parliament. The electoral contract agreed for the Scottish elections, which led to the Labour Party’s policy of ‘twinning’ and hence the high levels of female representation, came about as a result of pressure from women’s groups (Brown, 1996: 37). The campaign to ensure high levels of female representation in the parliament was not simply about ‘a bigger slice of the cake’, it was about ‘changing the recipe’ (Innes, 2001: 250). Expectations amongst activists that the high number of female MSPs would deepen democracy were great (Brown, 2001: 246). In contrast to the Westminster experience, this optimism is borne out by a recent survey

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in which over half the women surveyed feel that high levels of women in the Scottish Parliament make a difference to policy outcomes (WNC, 2002a). Academic analyses also suggest that the presence of so many MSPs in the Scottish Parliament and Executive enabled the promotion of an equalities agenda, and also ensured that this feminist agenda informed its articulation (see Mackay et al., Chapter 5, this volume; Breitenbach et al., 2002). The Campaign for a Welsh Assembly also ‘aspired at an early stage to equal representation of women and men’ (Feld, 2000: 75). The first elections to the Welsh Assembly in May 1999, in which Labour again adopted ‘twinning’, resulted in a proportion of 40.0 per cent female Assembly Members (AMs). Again, evidence from the Assembly suggests that the increased representation of women has been a significant and instrumental factor in shaping and advancing the legislature’s equality agenda (see Chaney Chapter 11, this volume). Moreover, women active in NGOs in Wales also perceived the increased representation of women in the Assembly to be the crucial factor driving the equality agenda forward (WNC, 2002). It is clear that devolution enabled an increased number of women to gain seats in these newly formed administrations (see Squires and Wickham-Jones, 2001). Newness was an issue here: there were no incumbents to displace. Also, positive measures, made possible by the creation of new institutions with new electoral systems and political opportunity structures, ensured greater equality of (descriptive) representation. Once secured, these high levels of descriptive representation in the two bodies had a direct impact on the equality bodies and frameworks developed and by these administrations. It is perhaps too soon to assess the impact of these on the substantive representation of women and the effective implementation of equality policies. Nonetheless, the low level of female representation in Westminster appears problematic in relation to the active pursuit of an equalities agenda by comparison. The introduction of the Sex Discrimination (Election Candidates) Bill, which allows parties to adopt positive measures to increase the representation of women should they so choose (Childs, 2002b), is a hugely important step forward on this score. It is, however, up to the individual parties whether they choose to introduce positive measures, and they are still working within an unaltered electoral system, which crossnational empirical research shows to be less than conducive to the realization of high levels of female representation (Norris, 2000). In this context the impact that the legislation will have on the number of female candidates for the next General Election is still unclear (see Russell

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Chapter 4, this volume). The potential for female parliamentarians to play an active role in mainstreaming is accordingly limited.

Modernizing government The pursuit of a comprehensive and coherent equality programme also requires institutional arrangements that allow for policy-level integration across all government departments, agencies and authorities – or ‘holistic governance’ (Perri 6, 1997). This is a challenge for a Government in which, since the nineteenth century, functions have largely been established within departments of state headed by a minister accountable to parliament. As a result of this institutional structure the United Kingdom is administratively and culturally ill-equipped to reconcile conflicting departmental objectives or encourage cross-cutting policy formation (Flinders, 2002: 56). The current Government is sensitive to this need: indeed as part of its modernizing agenda, Labour promised in 1997 to reform the machinery of government. A central feature of this modernization, the administration argued, was the introduction of ‘joined-up government’, which it attempted to deliver through the establishment of cross-cutting departmental units, including the Women’s Unit and the Social Exclusion Unit. Yet the modernization of government has not proved easy. Departments continue to resent the presence of these units not least because they have been created to compensate for the failure of departments to tackle particular issues. A senior official in the Home Office (1999) states, ‘The general view towards the small central units is that they are ephemeral and should not be taken too seriously’ (Flinders, 2002: 66). In this context, both the Women’s Unit and the WEU have struggled to pursue their mainstreaming remit (see Squires and Wickham-Jones, 2003) and it is not immediately clear that an Equality Unit would be any more successful. Correlative units in the devolved administrations have not had to battle with these institutional constraints. The National Assembly of Wales has a Committee on Equality of Opportunity, serviced by its Equality Policy Unit, whilst the Scottish Parliament has an Equal Opportunities Committee, serviced by its Equality Unit. The Scottish Executive has made a commitment to mainstreaming equality throughout all policy areas of the Executive’s legislative programme. Its Equality Unit is perceived to be ‘reaching out to women and other members of Scotland’s diverse community’ (McDonald et al., 2001: 239). In Wales, the Standing Committee on Equality of Opportunity audits the obligation to promote

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equality of opportunity. The Equality Policy Unit serves the Committee, which has had top level Civil Service commitment to its work programme from the outset (Chaney, 2002: 229). Its major work to date has focussed on public appointments, equal pay and equality in the functioning of the Assembly and local government. As Chaney notes, ‘the scale and pace of the reforms achieved in these areas marks them out in the context of the British Civil Service’ (Chaney, 2002: 232). The Government’s attempts to modernize Whitehall look very pedestrian in comparison. Moreover, the institutional uncertainty surrounding the WEU contrasts with the experience of the Scottish Parliament and the Welsh Assembly. In both, machineries to mainstream equality were quickly established. One study of mainstreaming concludes, ‘The processes adopted by the new devolved governments are more deeply embedded than anything currently on offer at Westminster’ (Beveridge et al., 2000: 403). This is significant because a fully effective equalities agenda in the UK will require not only legislative change, but also changes in the nature of our parliamentary representation and our administrative institutions (Stetson and Mazur, 1995). In addition, the realization of an equalities agenda that comprises not only equal treatment and positive action, but also mainstreaming, will require changes to the political opportunity structures in our civil society.

New political opportunity structures The successful pursuit of equality conceived as mainstreaming requires that marginalized groups actively participate within deliberative processes that prefigure and inform policy formation. As Dobrowolsky notes: ‘only through the incorporation of alternate forms of representation, particularly via social movement organizations, can the old-style, opaque, elitist, individualistic and adversarial politics of the present be challenged’ (Dobrowolsky, 2000a: 250). Yet previous politics opportunity structures have been limited and there are practical difficulties in establishing mechanisms for the inclusion of marginalized groups in the decision-making process. Many of the groups that an effective SEB would need to engage with are unprepared in their organizational structure, in the skills levels of their leadership, in their communications and research capabilities and in their resources levels to engage in a mainstreamed policy process. In addition, anti-statist views still predominate amongst women’s groups in England making them culturally hostile to the institutional assimilation that

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mainstreaming may entail. As the WNC reports, grassroots women’s groups do not feel the EOC or CRE served their needs. Many are indifferent to the consultation on a new SEB because they do not believe it will address their concerns, even though one of the Government’s stated aims is to tackle discrimination more effectively via a single body (WNC, 2002b). Those who suffer from multiple disadvantages clearly need to be brought into the process of developing proposals for change. In the absence of the active participation of these citizens the equality agenda will lack the necessary engagement with the ‘differences’ that might enrich its formulation. It is worth contrasting the lack of engagement amongst marginalized groups in the consultation about the SEB with the strength of minority claims making in Scotland. In contrast to the rather ambivalent attitude to the prospect of devolution found within Wales, there was an active campaign for constitutional change in Scotland. There was also an active campaign for equal representation in the Scottish Parliament, which created new spaces for the active participation of women in Scottish politics. As Alice Brown notes: ‘Women political activists from the political parties, trade unions, local government, the voluntary sector and a broad range of organizations and women’s groups have seized the political opportunity opened up by the constitutional debate in order to make their own proposals for deepening democracy’ (Brown, 2001: 213–229). Having campaigned long and hard for democratic inclusion in the new Scottish Parliament, these women’s organizations had high expectations of the Scottish equality agenda, confidence in their ability to affect change and organizational structures to enable effective consultation. In this context it has perhaps been easier for the Scottish Equality Unit to work closely with various women’s and equality organizations than it has for its equivalent in Whitehall. As Ronnie McDonald suggests: ‘The women’s groups that have campaigned for equality to be a founding principle of the Scottish Parliament will continue to campaign to ensure that the Equality Unit is well resourced and staffed, so that it can play a real role in assisting the creation of an equal Scotland’ (McDonald et al., 2001: 240). Where women worked proactively to shape the constitution, and have a sense of ownership in it as a result, their civil society involvement is bolstered. Postdevolution Scotland therefore offers an important lesson for the development of an effective equalities agenda in the UK: a vibrant civil society with clear political opportunity structures enables non-governmental organizations to work with Equality Units, thereby strengthening their role and increasing their effectiveness. This contrasts sharply with the current consultation process about the SEB. Here the capacity of grassroots organizations to engage in the consultation has been severely constrained by tight Government timetables and narrow consultation networks,

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which means that well funded organizations and sectors are having a greater say than disadvantaged groups that the SEB is meant to champion. The impact of devolution on the creation of new political opportunity structures is worth commenting upon because feminist organizations elsewhere have been wary of decentralization. In Canada feminist research suggests that federalism fragments women’s interests among levels of government making it difficult to determine long-term strategies for women’s movements (Vickers, 1997: 30). Yet a recent WNC survey (designed to assess the success of devolution in terms of the creation of new political opportunity structures) reveals relatively high levels of support amongst women for devolved government and the opportunities it offers for women to engage more actively with the political process (WNC, 2002). This perceived increase in consultation and the ability to contribute to the political agenda was mainly attributed to the increased presence of women in the representative bodies of the devolved administrations. Moreover, when respondents were asked what might be done to make the process of devolved government work better for women, they emphasized a range of measures: not only laws to promote equality, but also positive action to increase the number of female MPs, more female civil servants, Equalities Units, and formal consultative arrangements with women (WNC, 2002). This adds weight both to the argument that devolution creates new opportunities for pushing the equalities agenda forward, and to the suggestion that the implementation of a new equalities agenda will entail wide-ranging changes to the legislative framework, to parliamentary representation, administrative structures and political opportunity structures in civil society.

Conclusion Constitutional change within the UK has had a significant impact on the equality agenda and its institutional framework. European laws and directives are requiring that the UK revises equality legislation while the devolved administrations in Scotland and Wales offer models for best practice across the UK. In this way devolution may help modernize Whitehall, Westminster and their equalities agenda. Constitutional change does not only generate new legislative frameworks, it also allows for the development of new institutional structures, cultural norms and civil relations.

Note 1. Angela Mason was appointed as the director of the WEU in November 2002.

14 Group-differentiated Cultural Rights, Constitutionalism and Feminism Amy Bartholomew

We are currently witnessing struggles for and against the recognition of collective, group-differentiated, minority or special rights and ‘cultural defences’ for cultural and religious minorities, new immigrants and national minorities in the so-far predominantly liberal democratic societies. These struggles are occurring not only between the movements that have been making demands for such rights and their political opponents but also in intellectual circles. Demands for recognizing collective or group-differentiated cultural rights have now become a matter of heated contention in both liberal and left circles associated with Critical Theory with some of the strongest objections coming from feminist scholars. Following the celebrated defences of group-differentiated cultural rights in the name of virtues like cultural recognition, political equality and the just negotiation of cultural pluralism by authors like Will Kymlicka (1995), Iris Young (1990), James Tully (1995) and Charles Taylor (1994), feminist scholars Seyla Benhabib (1998, 1999) and Susan Moller Okin (1994, 1997, 1998, 1999a,b)1 have expressed serious worries about the dangers, especially for women and children, of extending group-differentiated rights to cultural minorities. The primary worry is that multicultural politics pursued in legal and constitutional terms as collective or group-differentiated rights for cultural minorities threaten individual rights – in particular the autonomy and equality rights of women. At the same time, Okin and Benhabib gesture in the direction of a promising conceptualization of group-differentiated cultural rights, one that I will call procedural, that may be capable of avoiding these dangers. Susan Moller Okin sparked a spirited debate (1997; Cohen et al., 1999) with her argument that multiculturalism’s commitment to groupdifferentiated cultural rights exists in strong tension, one might even 216

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say contradiction, with feminism. Okin describes a particularly corrosive version of multiculturalism focussing on the threats that emanate from demands for guarantees of cultural survival that may protect practices like arranged and child marriages, female circumcision, polygamy, patrilineal succession of property, dowry deaths and the like. On the basis of this depiction Okin reacts strongly against multiculturalism, counselling extreme caution in the defence of group-differentiated and other minority rights. But, even granting Okin’s concerns about the negative implications of some cultural practices for women and the role women have played as reproducers of cultures, and therefore our vulnerability to movements that seek to guarantee the survival, and insulation from critique and dissent, of cultures and cultural practices, I suggest that her critique of cultural rights may be met by developing a procedural conceptualization of rights. She alludes to this sort of possibility when she calls for a version of multiculturalism that is capable of attending to both culture and gender and that ‘treats all persons as each other’s equals’ (1999b: 131) but she fails to develop it. By relying on a procedural conception of rights interpreted through the lens of deliberative democratic theory in the Habermasian tradition (Habermas, 1994, 1996a, 1998a; James, 1999; Benhabib, 1999), I argue that feminists may be able to defend a version of group-differentiated cultural rights and the recognition of cultural pluralism. On this conceptualization of group-differentiated cultural rights, such rights may not only avoid undermining women’s individual rights but may also have the potential to contribute to women’s equality and feminism. From such a perspective, struggles for group recognition are sparked by experiences of, and are oriented at least in part toward rectifying the injustices of, misrecognition (Honneth, 1996; Swan, 1996; Forst, 1999). Viewed in this light, at least some demands for group-differentiated and special cultural rights can be seen as demands for rights aimed at positively supporting the empirical means for mutual and reciprocal recognition and political equality. Group-differentiated rights are not aimed just at protecting or reproducing religious or cultural context or societal culture but are also aimed at expanding the boundaries of differencesensitive political inclusion, which may include the constitutionally recognized right to contest the rules of recognition themselves (Tully, 1995, 2000). From the standpoint of feminism this may be viewed as a gain since, so conceptualized, such rights aim to increase political recognition for marginalized cultural minorities – which, of course, includes minority women – to protect individual autonomy, and to promote public contestation and justification in public spheres capable of articulating the varied

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interests, senses of violated integrity and solidarity, including women’s, that Okin seeks to acknowledge, but is unable to acknowledge fully because of her rejection of, or at least deep ambivalence toward, a deliberatively interpreted procedural view of justice (1994: 18–19; 1989: 107; but see 1998: 683–4; 1999a: 23–4). A feminist version of Habermasian Critical Theory is developed by Seyla Benhabib in much of her work (1992, 1995, 1996). But, when addressing multiculturalism, constitutionalism and group-differentiated rights she evinces a worrisome trace of cultural insensitivity famously present in Okin’s analysis as well (Cohen et al., 1999). Despite this, Benhabib’s recognition of a ‘complex cultural dialogue’ that does and should occur under conditions of cultural plurality (1999: 53) invokes a deliberatively interpreted procedural understanding of groupdifferentiated rights for cultural minorities that aims to protect the rights of women, as well. Such a procedural view of rights may enable us to get beyond the ‘dilemma of difference’ that Martha Minow recognized sometime ago. The dilemma consists in the fact that both the legal recognition of difference, whether gender, cultural or other, and the refusal to legally recognize difference risk perpetuating inequality and domination (1990: 20). Deliberative proceduralism opens up avenues for a positive evaluation of the role of basic rights in multicultural constitutionalism and may support a stronger defence of group-differentiated cultural rights than Benhabib has offered. Despite her adoption of a procedural approach, I suggest that Benhabib’s analysis is somewhat unclear on the relationship between constitutionalism and group-differentiated rights. Furthermore, there are reasons for questioning her conclusion which seems to entail a homogenizing version of universal citizenship. Benhabib’s recommendations may unjustly extend the empire of uniformity, to borrow James Tully’s phrase (1995). In this chapter, then, I will suggest that conceptualizing rights from the standpoint of deliberative proceduralism may allow a more positive evaluation of groupdifferentiated cultural rights,2 one that feminists may embrace. It may allow us to address the ‘dilemma of difference’ by conceptualizing universalism procedurally without interpreting universalism in levelling ways.

Feminists’ assessments of group-differentiated cultural rights: Benhabib and Okin Seyla Benhabib has recently undertaken a consideration of the implications of demands for the recognition of group-based identity claims and collective or group-differentiated cultural rights from the point of view

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of Critical Theory. In doing so she focusses on the tensions that arise between universal or common citizenship principles and particular group identities (1998: 85). She maintains that the key question currently confronting liberal democratic theory is how to combine a commitment to recognizing at least some group identity claims with a universalistic conception of citizenship. Benhabib suggests that, since identities are socially constructed, not essential qualities, ‘sociological scepticism’ and indeed ‘normative caution’ are appropriate responses to the demands for ‘prima facie’ recognition of claims for groupdifferentiated cultural rights (1998: 87). Here we can untangle two different but related concerns. First, Benhabib issues a caution against allowing essentialized conceptions of identity to be the basis of groupdifferentiated cultural rights and shows that group identities are not essential properties, but are rather the shifting results of struggles and contending narrative strategies. Benhabib further suggests that struggles for cultural recognition typically ‘rest on presuppositions which are illusory from a metatheoretical standpoint’ (1998: 90) seeking to ‘preserve the purity of the impure, the immutability of the historical, and the fundamentalness of the contingent’ (1998: 95; cf. Squires, 1996). Second, this ‘sociological scepticism’ demands ‘normative caution’ (1998: 95). Since identities are not essential, fundamental, holistic and unshifting, but are rather fragmented, historically constructed, polyvocal and hybridized, group-differentiated cultural rights cannot justifiably guarantee the survival or ‘purity’ of a cultural minority or its practices. When identities are recognized to be social constructions, guarantees are inappropriate, freezing in time and place that which must remain open to the flux and flow of contending interpretations and articulations of group identity. The guarantee of cultural survival would also impinge on personal autonomy rights of group members (1999: 56). Echoing Jurgen Habermas (1994), Benhabib issues an important warning that rights seeking to guarantee cultural survival are dangerous when she suggests that liberals worry that ‘despite its emancipatory intentions, multicultural group politics, particularly if they lead to group-differentiated rights claims, may carry the seeds of a new form of political authoritarianism’ (1998: 90). And women and children, above all, may bear the brunt of group-differentiated citizenship that does not respect the limits of universal rights (1999: 57). This rejection of essentialist multiculturalism focussed on rights-based guarantees of survival is accompanied by a cautious defence of ‘rights of cultural membership’ conceived as individual rights that respect the basic right to say yes or no to demands made by cultural and religious elites and institutions (1999: 56). Benhabib supports a ‘right to cultural

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self-expression’ (1999: 45) if it is grounded in both personal autonomy and universal citizenship. After worrying about political authoritarianism, Benhabib recognizes that most defenders of group-differentiated cultural rights actually base them, at least in part, on principles of universalistic citizenship. But, from this, Benhabib initially concludes that they therefore need not necessarily be ‘anchored and resolved at the constitutional level. Group-differentiated rights claims may find expression at the level of civil society rather than that of the state’ (1998: 97). She avoids arguing that collective or group-differentiated rights should never be constitutionally confirmed. But, where universalistic civil and political rights are constitutional realities, where civil society is open, then Benhabib says and ‘Only then, and admittedly this “then” is a counterfactual actuality rather than being a historical one, can an egalitarian and fully democratic civil society become a civic polity’ (1998: 97). But what might this mean? It seems clear that group claims should not be recognized ‘prima facie’; that the demand for group recognition says nothing about the normative validity of its legal or constitutional implementation (Patrick, 2000: 37–8; Cooke, 1997). We can also agree that not all minority or cultural rights need to take the form of express constitutional recognition. Many of the forms of group-differentiated rights supported by Kymlicka, for example, polyethnic rights which may provide public funding for minority cultural practices and associations and exemptions from general laws aimed at accommodating cultural practices such as Sikh headdress customs in the uniformed police forces or Muslim headscarves in public schools (1995), are not constitutionally secured, at least not in the constitutional text. But, such groupdifferentiated rights will likely be the subject of constitutional litigation. If this is so, what implications are we to draw from Benhabib’s initial hesitancy toward constitutional recognition? Furthermore, what might it mean for group-differentiated rights claims to ‘find expression at the level of civil society rather than that of the state’? Both of these matters are unclear in Benhabib’s formulation. In a subsequent article, Benhabib reiterates that it is ‘not convincing to anchor the rights of ethnic and cultural groups at the constitutional level’ (1999: 57). But she then attempts to clarify her position indicating that while citizenship should not be constitutionally group-differentiated, cultural minorities may legitimately be accorded ‘special privileges and immunities by the constitution precisely in order to assure the fulfilment of their universal citizenship claims’ (1999: 57). Thus, it now appears that Benhabib’s argument is not against the constitutionalization of cultural rights, but rather is an argument against constitutionalizing a form of

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group-differentiated rights that lie outside of or run parallel to universal or common citizenship. Whether this is either sufficient for cultural recognition or is a necessary position for deliberative proceduralists like Benhabib to take will be considered in the following discussion of Habermas. What is most helpful in Benhabib’s analysis is her conceptualization of legitimate group-differentiated rights as aimed at the political inclusion of cultural minorities in intercultural civil society and public spheres that must now be developed in multicultural democracies. Conceived as inclusion in a ‘complex intercultural dialogue’, Benhabib emphasizes that constitutional democracies may appropriately include special rights and privileges, such as rights of special representation (1999: 57), in order to underwrite the conditions necessary for the political participation of cultural minorities, and the members of which they are composed, to enter into public dialogue offering their own perspectives and needs. Thus, the task of liberal democratic states must be to ensure the protection of each citizen by encouraging the conditions through which cultural groups can become part of a ‘public conversation . . . [with] their own narratives of identity and difference’ (1999: 58). But, is this deliberative proceduralist orientation, which I fully endorse, compromised by Benhabib’s view of identity politics itself – as aimed at preserving the ‘purity of the impure’? At times Benhabib seems to display a disconcerting evaluation of minority cultural traditions and struggles for recognition. For example, strong multiculturalist claims are viewed as seeking to protect ‘aesthetic plurality’ – the protection of cultural difference for its own sake (1999: 56–8). But many such claims are, in fact, about protecting cultural identity from the cultural imperialism sometimes implied by the demands of universal citizenship. We can see this in the case of the Aboriginal peoples and the Roma. Furthermore, her conclusion, quoted above, that cultural identity politics rest on ‘illusory presuppositions’ seems to hint at a disregard for their variability, as it is clearly not the case that all movements struggling for recognition seek essentialist forms of multicultural constitutional recognition. Yet, surely her attempt to provide some justification for a cautiously drawn form of group-differentiated cultural rights depends on a view of culture as providing a context of identity that is important to protect. In a move that we will see also characterizes Susan Moller Okin’s treatment of multiculturalism and feminism, however, Benhabib also worryingly attributes to ‘the traditional life-form’ of Kurds, the Roma and Aboriginal peoples a basis in patriarchy that oppresses women ‘and in some cases, even the sale and physical coercion of women’ (1999: 58). This sometimes historically suspect conclusion

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(Tully, 1995) drawn in the absence of either comparative analysis or listening to the voices of others – an injunction that Benhabib is rightly famous for thematizing (1992) – represents an aspect of what I will call the ‘patriarchal minority’ objection and the ‘monological/dialogical tension’ that also pervades Okin’s work. Finally, it essentializes cultural formations, an ironic move for Benhabib to make given her overarching critique of the essentialism of struggles for recognition. The politics of recognition may be as much about political inclusion, including the conditions necessary for challenging the very rules of recognition themselves, as it is about instantiating essentialist conceptions of identity or the coercion of women. This is a point that Benhabib sometimes neglects, despite her attention to political inclusion. When movements take the former stance, feminists should be much less wary of both those political struggles for recognition and the possibility of legal and constitutional recognition. Furthermore, a proceduralist conception of group-differentiated cultural rights may want to consider whether all claims must be articulated through the lens of universal citizenship, as Benhabib demands, a point that will be returned to below. Susan Moller Okin has elaborated a more pointed feminist critique of even liberal versions of group-differentiated cultural rights in an influential set of essays that also emphasize the dangerous consequences of freezing traditional identities and practices which, as Benhabib shows, essentialist identity politics may seek (1994, 1995, 1997, 1998, 1999a,b). Okin argues that multiculturalism and feminism are at least partly contradictory commitments, often conflicting radically. Her suggestion is that much of what multicultural policy and theory seek to protect involves traditional and patriarchal cultures and religions that support harmful and oppressive practices and discriminatory violations of women’s autonomy and constitutional equality rights. The demands for collective and special rights for cultural minorities are particularly problematic for such demands are attempts to shield these cultures from interference and critical scrutiny in the name of cultural survival thereby threatening to sustain and promote practices that undermine or violate the individual rights of women and girls. Like Benhabib, Okin argues that in seeking to protect the ‘survival and flourishing of ways of life’ (1998: 663) cultural rights may not just rest on an illusory essentialism but may also protect highly patriarchal and oppressive ways of life. Okin argues that contemporary liberal arguments for groupdifferentiated cultural rights typically avoid two crucial issues; they ignore intra-cultural differences and disparities in power and they ignore the impact of private sphere and domestic practices on those – in

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particular women and girls – who occupy the less valued and powerful roles (1998, 1999). Attention to these matters, on the other hand, raises grave concerns about the consequences of group-differentiated cultural rights for women. In fact, Okin argues that much of what is sought to be protected via group-differentiated rights for cultural minorities is gendered. While some practices – like accommodation rights for Sikhs, Muslim religious practices and separate schooling rules for the Roma and Amish children – are not gender specific, Okin contends that the majority of issues are (1998: 669–670; 1999: 14). Consider polygamy/polygyny, the chador, female circumcision, child and arranged marriages, Hmong bride-capture and so on. Okin treats Will Kymlicka’s (1995) defence of group-differentiated rights as the best of the liberal versions (Okin, 1998). If even his version is problematic liberal arguments for such rights will fail the test of persuasiveness. Kymlicka famously argues that universalistic citizenship enshrined in constitutional protections of basic rights cannot do justice under conditions of cultural pluralism and the oppression of ethnic minorities, such as immigrants, and national minorities, like Aboriginal peoples. Universal citizenship must be supplemented, he argues, with group-differentiated citizenship rights that seek, in the case of ethnic minorities, to accommodate their cultural practices, to integrate them within the political culture but not assimilate them into a particular, culturally dominant way of life and to equalize their conditions of existence. Under such conditions special rights of representation and polyethnic rights may be justifiable. In the case of minority nations Kymlicka adds a special right to self-government. The most distinctive feature in Kymlicka’s argument, however, is the distinction he draws between group-differentiated rights that take the form of ‘external protections’ and those that function as ‘internal restrictions’. On Kymlicka’s account, a polity cannot in principle justify ‘internal restrictions’ on members of a group. These are practices that undermine personal autonomy, and civil and political rights (1995: 36). Indeed, the flourishing of cultures is important precisely because they form the context for individual autonomy. For meaningful personal choice, Kymlicka argues, individuals require ‘access to a societal culture’ and groupdifferentiated rights that enhance this may legitimately be defended in the liberal polity (1995: 84). Practices that violate personal autonomy – ‘internal restrictions’ – thus conflict with the basic justification for group-differentiated cultural rights. On the other hand, ‘external protections’ that aim at the support of a cultural identity and set of practices important to a way of life, that aim to overcome its vulnerability to the

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majority culture (1995: 38) and seek its more equal inclusion in the polity, all of which ‘support fairness between groups’ (1995: 37), should be supported insofar as they do not perpetrate internal restrictions. Okin finds four features of such an account of multicultural justice to be most problematic. First, she contends that few cultural minorities would be proper recipients of group-differentiated rights because, she claims, so many minority cultures deploy oppressive practices in the private or domestic sphere. If applied to the private sphere, Okin maintains that virtually no culture could pass Kymlicka’s test of no ‘internal restrictions’ (1998: 678–80). I will call this the private violations objection. Second, where a ‘more patriarchal culture’ exists within the context of a less patriarchal one, Okin suggests that ‘no argument can be made on the basis of the enhancement of self-respect or the greater capacity for choice that the female members of the culture have any clear interest in its preservation’ (1998: 680). In fact, they may be better off if the culture becomes extinct or is altered (1998: 680). And, while Okin maintains that all cultures have ‘patriarchal pasts’ some ‘mostly, though by no means exclusively, Western liberal cultures ... have departed far further from them than others’ (1999: 16). Here, Okin amplifies Benhabib’s objection when she suggests that the ‘traditional life-form’ of Aboriginal peoples, the Roma and the Kurds is patriarchal while neglecting to ask either about the historical constitution of patriarchal oppression in such cultures (cf. Tully, 1995) or about our own. I will call this the patriarchal minority objection. Third, Okin suggests it is clear that private discrimination and oppressive practices ‘on cultural grounds’ are ‘never likely to emerge in public’ (1998: 683). Therefore, neither liberal multicultural theorists nor the courts and legal institutions of the liberal polity can adequately address them. Okin rightly insists that arguments for group-differentiated cultural rights must address ‘very private, culturally reinforced kinds of discrimination’ (1999: 22). I will call this the publicity problem. Finally, while Okin seems to believe that oppressive practices and discrimination can be both empirically confirmed and normatively identified as wrong in the absence of cross-cultural deliberation, she also maintains that any liberal defence of group-differentiated rights must ‘take seriously the need for adequate representation of the less powerful members of such groups’ and young women, in particular, need to be ‘fully represented in negotiations about group rights’ (1998: 684; cf. 1999: 23–4 and 1999b: 131). I will call this the monological/dialogical tension. This is a tension that also marks Benhabib’s analysis for, as we have seen, on the one hand, she emphasizes the legitimate role of cautiously formulated group-differentiated cultural rights in enhancing the conditions for ‘complex cultural dialogue’ but, on the other hand, she

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also judges entire cultural traditions to be patriarchal in the absence of such a dialogue over what those practices mean to, and the consequences they have for, those who are most affected. Okin is clearly correct that private sphere discrimination and domestic control of women are impediments to the protection of women’s autonomy and equality (cf. Millns Chapter 9, this volume), although it must be strenuously emphasized that this is true across cultures, not just in minority cultures in liberal societies. She is also correct that these problems are not as likely to be aired in public as is necessary in order for such practices to be exposed, debated and judged (1998: 683). Finally, she may be correct that the patriarchal and oppressive practices of some cultural traditions should be revised – or at least must be open to revision. But these problems – the private violations, publicity and patriarchal minority problems – need not be treated as knock-down arguments against recognizing group-differentiated cultural rights as Okin’s analysis sometimes seems to suggest. Rather, they provide an argument for a procedural conception of rights, including group-differentiated ones, so that these matters can be aired more effectively and justly in public while treating ‘all persons as each other’s equals’ (1999b: 131). Conceived procedurally such rights may achieve this in a manner that attends both to intracultural as well as to intercultural differences as Okin demands. This much is shown in Benhabib’s version of a proceduralist conception of rights to cultural membership under the rubric of universal citizenship. A consideration of Habermas’s view of a proceduralist conception of basic, individual rights and his defense of ‘equal rights to co-existence’ may further illustrate how group-differentiated cultural rights may, on this formulation, precisely increase the publicity that Okin rightly seeks while respecting autonomy and promoting the terms of mutual recognition of cultural traditions normatively demanded by the conditions of cultural pluralism. Furthermore, a more consistently deliberative proceduralism may also avoid the cultural insensitivity that Okin’s often confidently monological version of truth and normative rightness reveals, and which even haunts Benhabib’s analysis, thus resolving the monological/dialogical tension in their work in favour of the latter.

Toward a deliberative defence of group-differentiated cultural rights Benhabib’s conceptualization and evaluation of forms of groupdifferentiated cultural rights is indebted to Jurgen Habermas’s analysis. Like Benhabib, Habermas rejects group-differentiated rights that aim at

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guarantees of cultural survival, rights that he conceives of as ‘collective rights’. But Habermas makes a strong case for group-differentiated cultural rights understood as a realization of the basic system of (individual) rights and his analysis may pave the way for an analysis that is more sensitive to struggles for recognition and more open to challenges to the possibly stultifying embrace of universal or common citizenship than Benhabib’s. Habermas asks whether struggles for recognition of the sort we see today can be accommodated within the individualistically formulated system of basic rights (1994: 121–2)? Or, do they require the introduction of an ‘alien’ element, the element of collective rights? Habermas understands ‘collective rights’ to amount to something akin to the ‘preservation of a species by administrative means’ (1994: 131) that are ‘alien’, dangerous and unnecessary to meet the challenges of multiculturalism. The argument that collective rights are dangerous (1994: 130) and ‘alien’ (1994: 116, 107) to the system of rights and therefore, as Benhabib emphasizes, require great ‘normative caution’ (Habermas, 1994: 130; Benhabib, 1998: 87) is formulated in a manner similar to that found in Okin’s, Benhabib’s and Kymlicka’s analyses. Habermas argues that collective rights that function as administrative guarantees of survival fail to respect the fact that protection of group-differentiated cultural rights is justified by their contribution to each member’s ability to be socialized within a cultural context in which she can recognize herself (1994: 110; cf. 130; also see Habermas, 1998b; Cronin and De Grieff, 1998: xxix; and Forst, 1999). Survival guarantees of the sort anticipated by a collective rights orientation both threaten the very basis for autonomy that the protection of cultural identity seeks to secure and undermine the individual autonomy that is necessary to preserve and reproduce that cultural context. Therefore, Habermas concludes that the opportunity for the reproduction of cultural heritage can legitimately be secured by group-differentiated rights to cultural membership but survival cannot legitimately be guaranteed by the constitutional state in the form of collective rights (1994: 130–1). On this proceduralist theory of rights it becomes clear that the system of (individual) rights need not be blind to cultural differences and the felt needs of cultural minorities and other groups for recognition of their collective identities, differences and forms of life (1994: 113). Crucially, according to this view of rights, democratic processes must respect private and political autonomy simultaneously.3 The difference dilemma can only be resolved by treating those affected as public participants in

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the discussion of proposed or disputed practices and laws (1998, 1998b, 1996, 1996b, 1994; cf. Baynes, 2000). Thus, those affected by democratic processes must be able to communicate, justify and contest in the public sphere what they view as relevant to their treatment as equal members of society (1994: 116). In this way, what counts as equal treatment may be publically and inclusively judged. This is the element of proceduralism that, in the context of cultural pluralism, emphasizes the necessity for ‘complex cultural dialogue’ in an intercultural public sphere. Public justification both allows differences to become publically relevant and makes room for demands for group-differentiated rights. When understood from a procedural perspective, the system of rights is therefore not blind to cultural differences and does not require ‘making a choice for a less individualistic model of rights’ (1994: 112–13) because ‘equal rights to coexistence’ (1994: 128) can be sufficiently secured by individual rights which may include rights to ‘cultural membership’ (1994: 129–30) including ‘extensive guarantees of status’, ‘rights to self-administration’, ‘reverse discrimination’ (1994: 128–30), government funding of minority cultural activities and so on (Cronin and de Grieff, 1998: xxix). It will not, in contrast with a liberal version of rights which prioritizes personal autonomy at the expense of political autonomy, fall prey to a ‘levelling of both cultural and social differences’ (1994: 116. And see 1998: 145–6, and 1998b: 438). [In fact, Habermas suggests that multicultural societies may be stabilized by political culture only if democratic citizenship includes social and cultural rights alongside ‘liberal individual rights and rights of political participation’. Cultural rights and the concomitant ‘reciprocal recognition of different cultural forms of life’ are necessary, he argues, in order for the ‘fair value’ of all citizens’ civil and political rights to be realized (1998: 118–19).] Thus, Habermas also argues that under conditions of cultural pluralism the system of rights must not be blind to cultural differences (1994: 116, 124). Rather, differences must be seen in ‘increasingly contextsensitive ways if the system of rights is to be actualized democratically’ (1994: 116 and 124). This is so for several reasons. First, legal systems are ethically permeated such that the merely contingent and historical composition of the citizenry is reflected in them. It is this sedimented ethical framework, or majority culture, that gets legitimately challenged as the evaluative and interpretive horizon shifts with immigration (Habermas, 1998: 144–5) and the incorporation of previously excluded subjectivities, including women. Second, greater attention to differencesensitive inclusion via group-differentiated rights is aimed at increasing the respect for cultural minorities necessary not just to elaborate secure

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cultural contexts for socialization and autonomy but also to achieve deliberative political equality of members of all groups, including those who have suffered discrimination (1998: 145) and cultural oppression. Such rights are neither alien to the system of rights nor dangerous for they do not undermine autonomy, seek to instantiate an illusory essentialism or render what is historical and contingent immutable. Habermas shows that the fact that arguments that support struggles for recognition often justify group-differentiated rights on the basis of the norms of inclusionary justice supports their legitimacy. But, a problem may now appear. If a disputed practice must be publically justified and if all those affected must accept a disputed practice in order for it to be legitimate, who is the relevant ‘all’ in ‘all those affected’? Does Habermas’ proceduralist conception instantiate a universalistic or common practice of citizenship that threatens to establish a politics of uniformity by conceiving ‘all’ in every case as ‘all citizens’? Such a prospect would seem to suggest that in the real world of cultural politics majority rule would likely doom the recognition of cultural difference. This returns us to the possible problem left unaddressed in Benhabib’s conception of group-differentiated cultural rights as valid only as articulated under the umbrella of common or universal citizenship. One can see immediately that there is a potential problem in conceiving groupdifferentiated cultural rights either as running parallel to common citizenship – establishing something like group-differentiated citizenship – and in its opposite – treating group-differentiated cultural rights as defensible only within the terms of common citizenship. While the former potentially threatens the autonomy interests of members, a result deliberative proceduralism is committed to avoid, common citizenship may threaten cultural formations that differ significantly from majority culture, with the imposition of an ‘empire of uniformity’ (Tully, 1995; cf. Ashenden, 1999). Classic examples of the latter are to be found in national minorities, such as Aboriginal peoples, who may seek something like dual citizenship, and ‘partial citizens’ (Spinner, 1994) like the Amish who may seek to avoid intercultural engagement and defend traditional ways of life. Liberal interpretations of rights that privilege personal over public autonomy, whether like Kymlicka’s or Okin’s, either impose their view of civil and political rights on such cultural minorities or they must search for a basis for exempting them from the normal operation of universal citizenship. A procedural conception of common citizenship, like Benhabib’s, may avoid this problem but it does seem to run the risk of either imposing majority rule even after cross-cultural deliberation or, on another interpretation, veto by cultural

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minorities interrupting any chance of gaining consensus on disputed cultural matters. Habermas’ position on multiculturalism seems to support Benhabib’s interpretation. He suggests that political communities must constitute a ‘common political culture’ in which the basic rights may not be violated and that coexistence with equal rights is ‘subject to the proviso that the protected faiths and practices must not contradict the reigning constitutional principles (as they are interpreted by the political culture)’ (1998: 118). But, in a consideration of the conflicts that arise between Aboriginal peoples and common citizenship, Michael Rabinder James provides an instructive discussion of how a deliberative procedural theory in the Habermasian tradition may offer an alternative account that aims to accommodate cultural pluralism without violating autonomy or instantiating an empire of uniformity. James argues that a procedural universalism that is premised on conditions of public autonomy and ‘fair and critical communication’ (1999: 58) may avoid the imposition of uniformity by thematizing the importance of subaltern publics within an intercultural public sphere. Subaltern publics are those that are open in principle only to particular subgroups such as a particular cultural minority. For example, a deliberative proceduralism may concentrate on whether disputed cultural practices have gained or could gain assent among the members of the relevant Aboriginal community under conditions of fair deliberation (1999: 77). Importantly, James argues that subaltern publics are not legitimate as isolationist, self-contained enclaves but rather may be expected to contribute to the complex intercultural dialogue in the broader public sphere among all citizens that authors like Benhabib and Habermas emphasize (1999: 80). Thus, as James indicates, a proceduralist universalism need not take the form that predominates in Benhabib’s formulation of universal citizenship, and apparently in Habermas’s conception of ‘common political culture’ as well. Rather, a more dispersed conception of multicultural citizenship may permit the increasingly context-sensitive treatment of cultural minorities that Habermas also calls for while not sacrificing entirely a notion of universal or common citizenship. This still underdeveloped conception of dispersed or group-differentiated citizenship is a position that supporters of multicultural constitutionalism, including feminists, may want to pursue as it represents another alternative, one rooted in mutual cultural accommodation (McCarthy, 1998), while it continues to emphasize the importance of treating all ‘persons as each other’s equals’ (Okin, 1999b: 131).

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Deliberative democracy, a proceduralized conception of rights and feminism By way of conclusion we may now better evaluate the implications of group-differentiated cultural rights conceived from the standpoint of deliberative proceduralism for feminism. I will attempt to do so in five brief steps. First, arguments that are made in favour of protecting groupdifferentiated rights for cultural minorities are arguments that are important to women who are part of those ways of life. Despite her call for a multiculturalism that attends both to culture and to gender by treating ‘all persons as each other’s equals’ (1999b: 131), Okin’s analysis largely overlooks the obvious fact that the interests of cultural minorities and women may overlap as well as conflict. As members of cultural forms of life, women have an interest in protecting those ways of life since their socialization and identity, as well as their children’s, depend as much on secure cultural contexts as do men’s. Here we can see that Okin’s ‘private violations’ and ‘patriarchal minority’ objections to group-differentiated cultural rights, which suggest that patriarchal cultures should not be the recipients of group-differentiated rights (1998: 678), misses the mark. On both Kymlicka’s and Habermas’s interpretations of such rights, it is the particular practices that violate individual rights that should not be protected, not entire cultures. The argument that practices which amount to internal restrictions on autonomy should not be protected by group-differentiated rights leaves cultures open to revision while still potentially respecting cultural context. Furthermore, the argument Okin formulates in favour of the extinction of some cultures as a response to patriarchal context is fallacious for a culture may have some practices that are problematic or unjust, but few would be so pervaded by them that women would have no interest in their preservation. An important point that Okin overlooks in her analyses of the conflicts between multiculturalism and feminism but that Benhabib grasps is that many struggles for recognition are aimed at a difference-sensitive political inclusion and accommodation. Many such struggles for groupdifferentiated cultural rights are aimed at rendering the public sphere more heterogenous (Young, 1990) in order to recognize cultural minorities in politically respectful and more equal ways and to develop ‘thicker’ intercultural public spheres (James, 1999). Group-differentiated cultural rights aimed at difference-sensitive inclusion are charged with the justification of increasing deliberatively interpreted political

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equality (Swan, 1996). Both special rights of representation and polyethnic rights are often aimed at enhancing the political inclusion of, and political respect for, cultural minorities in processes of public deliberation. These are rights which, if the argument for group-differentiated cultural rights in general is persuasive, are also persuasive from a feminist point of view insofar as women’s cultural identity matters. Second, a procedural model of group-differentiated cultural rights evades many of the problems that Okin attributes to such rights, as Benhabib shows. So conceived, they neither undermine the autonomy nor formal equality of individual members of cultural minorities, nor do they protect cultural minorities and practices from critical appraisal and (deliberative) pressures for revision of practices. From a proceduralist perspective, group-differentiated cultural rights may neither legitimately aim at, nor result in, securing the ‘immutability of the historical’, or the ‘fundamentalness of the contingent’ (Benhabib, 1998: 95). They do not insulate cultural traditions from internal or external critique or scrutiny. They do not seek to ensure survival at all costs nor do they aim at closure and the silencing of dissent. They do not, therefore, protect patriarchal practices from the glare of publicity. Rather, procedurally understood such rights may provide both the direct institutional means and informal pressures to deliberate and publically justify policies, practices and institutions in both culturally-inclusive and member-regarding ways thus addressing the private violations and publicity problems which feminist analyses properly highlight. Nor do they just give institutional voice to defenders of cultures, to cultural elites and patriarchs, thereby ignoring intracultural differences and power imbalances. On the contrary, they institute expectations about and imply mechanisms for representativeness, accountability, thick publicity and public reason within cultural minorities as well as within the larger polity. As formulated by deliberative proceduralists like Benhabib, Habermas and James, group-differentiated cultural rights respect the fact that Okin points to: that intracultural power differentials must not be neglected. At the same time, they enhance deliberation, judgement and possibilities for revision by rendering civil society and public spheres more open to the voices of all. Third, minority forms of life and cultural practices must be open to the glare of publicity and the possibility of revision as Okin contends. But so must majority practices, traditions, and ways of life. Groupdifferentiated cultural rights that contribute to thicker forms of publicity in both informal and formal public spheres contribute to the publicity necessary for the critical scrutiny that patriarchal practices deserve whether performed by minority or majority cultural ways of life.

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Two aspects of a procedural approach are particularly relevant here. First, it assumes the constant contestability of rights and constitutionalism since rights are viewed as intersubjective and rights and democracy are treated as conceptually intertwined in a relationship of equality (Habermas, 1996; Baynes 2000; Bartholomew 2001). Second, the possibility of conceptualizing a more dispersed conception of citizenship, as James shows, may contribute critical resources to the development of a vibrant intercultural public sphere where both majority and minority practices may be questioned and contested, where the meaning of equal treatment may be debated by the polyvocal groups and identities that contend in the general public sphere. The underlying idea here is that marginalized cultural minorities may be better able to deliberate fairly in the general intercultural public sphere on the basis of robust subaltern public spheres where their own needs and interests, as well as their critique of majority culture, may initially be formulated. Fourth, of course there are claims for collective rights and cultural defences that do threaten autonomy. Those candidates for groupdifferentiated rights that do not so clearly fall into the category of political inclusion, accommodation and respect are the ones on which Okin focusses and which ignite Benhabib’s call for ‘normative caution’. These are the collective rights, cultural defences and exclusions that most directly implicate gender relations and which tend to be the most controversial centering on issues such as polygamy/polygyny, the chador in public educational institutions, arranged and child marriages, practices of female genital surgery, patrilineal succession and the like. Both a proceduralist conception of rights like Benhabib’s and Habermas’s and a liberal conception like Kymlicka’s suggest that group-differentiated cultural rights that violate individual member’s rights are illegitimate. But there is a significant difference between a liberal and a proceduralist perspective. From a consistently deliberative procedural perspective, the question whether controversial cultural practices and claimed cultural rights can be justified must be answered on the basis of public reasons entered in public dialogue for one of the key insights of deliberative democratic theory is that we must avoid a ‘legislative’ or monological in favour of an ‘interactive’ or deliberative form of reason (Benhabib, 1992). It is here, I believe, on the territory of highly controversial and disputed cultural practices, practices that may be argued to be integral to a way of life, that a deliberatively interpreted procedural approach to questions of justification and group-differentiated rights may really show its worth. It may escape charges of liberal imperialism while it contributes to the possibility for cross-cultural understanding.

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Where such controversial practices are at issue the historically sedimented ethical character of legal rules and even constitutions must be contestable as the interpretive horizon of society shifts with the inclusion of new cultural minorities and previously excluded subjects. To argue otherwise would condemn all newly emergent groups to a second class citizenship. Where political equality is compromised by historical and ongoing oppression, imperialism and discrimination resulting in political poverty (Bohman, 1994) for many cultural minorities and previously excluded groups, as is true of multicultural societies, group-differentiated cultural rights will often be required to address that political poverty and institutionalize the groundwork for the fair contestation of prevailing norms (Tully, 1995; 2000; Parekh, 1995, 1996, 1997). And, where unfamiliar cultural practices are at issue, involving complex matters requiring deep knowledge as well as critical scrutiny of the cultural meanings and the importance of those practices to cultural ways of life, group-differentiated cultural rights may be necessary for inclusive, egalitarian deliberation where reciprocal recognition and cross-cultural understanding are sought. It is only through cross-cultural dialogue based on mutual respect that controversial practices can be justly judged and feminism itself be intercultural. In her critique of Okin’s analysis, Bonnie Honig has put this matter beautifully: the promise of this approach depends in part upon the willingness of Western feminists to hold their own practices up to the same critical scrutiny they apply to Others, to hear the plural voices of women everywhere and to learn from them, while also refusing to prejudge the merits of practices that are unfamiliar or threatening to those of us raised in bourgeois liberal societies. For the sake of a future solidarity of women as feminists, the question of what constitutes gender (in)equality must be kept disturbingly open to perpetual reinterrogation . . . And we must all resist the all-too-familiar and dangerous temptation to mark foreignness itself as fundamentally threatening to women (1999: 40). Fifth, a further, important, contribution of a procedural conception of group-differentiated cultural rights relates to their sensitivity to intracultural differences and differentials in power, an issue that Okin rightly thematizes. A deliberative approach that justifies group-differentiated rights for cultural minorities in part on the basis of political equality must also be open to similar claims by groups like women. A deliberative

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orientation requires openness to women’s needs and voices, their senses of violated integrity, for as Habermas puts it: Those affected must be able to ‘articulate and justify in public discussion what is relevant’ to their treatment as equal members of society (1994: 116). Such a deliberative proceduralism addresses what I earlier called the ‘monological/dialogical tension’ in both Okin’s and Benhabib’s analyses. Okin rightly recognizes that women must be ‘fully represented in negotiations about group rights’ (1998a: 684) but she is also much too willing monologically to declare minority cultural practices violations of liberal autonomy. Surely, if women must be part of the ‘negotiations about group rights’ so must they be recognized as equally legitimate participants in the broader debates that seek to determine what the boundaries of recognition ought to be. Similarly, Benhabib seems to ignore the principles of deliberative proceduralism when she monologically proclaims that cultural traditions like those of Aboriginal peoples and the Roma are patriarchal. On a procedural version of feminism, group-differentiated cultural rights may, therefore, be considered an appropriate element in a nonessentialist multicultural constitutionalism which at the same time respects the equality of women and girls. In fact, I would assertively suggest that it is only such a deliberative, procedural approach that sufficiently respects women’s autonomy – both private and public – by refusing to engage in the monological, ‘matriarchal’, sometimes elitist, and certainly culture-bound pronouncements toward which many authors, even Okin and Benhabib, are sometimes inclined. A procedural conception of rights allows rights to avoid the pitfalls of relying on and reproducing ‘holistic’ views of culture (Benhabib, 1999b: 45; cf. Pensky, 2000: 73 and Brown, 2000) by not guaranteeing a collectivity’s survival, but rather permitting the perpetual engagement over cultural practices, identities and terms of recognition. In short, group-differentiated cultural rights may and should be conceived primarily as protecting the conditions for continual struggle over justice without guarantees. As James Tully elegantly puts it: ‘struggles over recognition, like struggles over distribution, are not amenable to definitive solutions beyond further democratic disagreement, dispute, negotiation, ... and further disagreement. ... Recognition in theory and practice should not be seen as a telos or end state, but as a partial, provisional, mutual, and human-all-too-human part of continuous processes of democratic activity in which citizens struggle to change their rules of mutual recognition as they change themselves’ (2000: 477).4

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Notes 1. Also see Ashenden (1999), Shachar (2001), Squires (1996) and Sypnowich (2000). 2. As the language employed already demonstrates, the categories and concepts that are used in these debates are complex, overlapping and sometimes rather obscure: collective rights, minority rights, cultural rights, group-differentiated rights, special rights and so on. Some clarity is provided by Habermas’ distinction between collective rights, on the one hand, and group-differentiated or special rights, on the other. The latter have the characteristic of being the rights of someone in particular, while the former are associated with the idea of guaranteeing a collectivity’s survival administratively. Kymlicka is also very precise in distinguishing between types of group rights. While rejecting the collective v. individual right distinction he employs an ‘internal restriction’ v. ‘external protection’ criterion (1995). But, the language of rights is not the only complexity. The distinctions between cultural minorities, ethnic minorities, nations, peoples and immigrants are also variously treated in the literature. There may be distinctions to be made between, say, national and ethnic minorities in consideration of the type of group-differentiated right that may be justified, as Kymlicka contends (1995; but see Benhabib, 1999). For the sake of simplicity, in this short chapter I will not consider this matter in any depth. 3. Varied and culturally controversial conceptions of autonomy play a large role in the debate about group-differentiated cultural rights (Baumeister 2000). This important matter is beyond the scope of this chapter. But, for a compelling analysis of ‘moral autonomy’ as a neutral or ‘common normative framework’ by which to judge demands for recognition, see Forst (1997 and 1999). 4. Also see Connolly (1996) and Balibar (2001). To rely on both a Habermasian and an ‘agonal’ account of the political, like Tully’s, requires justification that is beyond the bounds of this chapter. But, see Bartholomew, No Justice without Guarantees (manuscript in progress) for such a justification.

15 Women, Constitutionalism and Contestation: Some Tentative Conclusions Alexandra Dobrowolsky

Women and constitutional change: in review This volume verifies that constitutional change can hold great promise for women, while certainly generating numerous problems for women as well. The objective of this final chapter is two-fold. First, the aim is to highlight how the book’s contributors have challenged, informed and advanced our understandings of women and constitutionalism, rights and equality, as well as representation and political engagement. Second, the intent is to work towards a degree of synthesis by drawing some tentative theoretical and practical conclusions. For a start, the most obvious observation is that women who seek social and political change have made use of constitutional reform processes. What is not so apparent or widely recognized, and what this collection brings to light, is that through their words and deeds women have challenged the nature and forms of constitutionalism. For analysts and activists alike, what is even less clear, is how to translate such challenges to formal legal strictures/structures into concrete actions that open up democratic possibilities, in general, and advance the political struggles of marginalized groups, in particular. This is why detailing, understanding and assessing the nature and complex forms of women’s constitutional political engagement, in theory and in practice, is both revealing and riveting. On one hand, the book features the diverse ways that women’s political mobilization has brought gender equality into mainstream constitutional negotiations. The contributors demonstrate how gender equality can be used as legal, political and moral standards within and outside the state to interrogate, revise and revision norms, laws and policies. They also make clear that these kinds of modifications to discourses and 236

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political processes were not likely to transpire had it not been for women’s initial constitutional interventions and ongoing political engagement. By helping to mould constitutions, for instance, women can provide opportunities for future participation for themselves and for other under-represented groups. For example, as Bronagh Hinds notes, were it not for the formation of the Northern Ireland Women’s Coalition (NIWC) the Good Friday Agreement would not have addressed women’s political participation, nor would it have included more expansive understandings of equality and discrimination, nor democratic experiments like the Civic Forum. In this case and others, the volume illustrates that gender politics is not just something that is subjected to constitutional reform. Gender politics creates change and in so doing changes itself. On the other hand, especially for those who trace how constitutional reform plays out over time, as in Catherine Albertyn and Joyce Green’s chapters, or across space as Anne Marie Goetz’s survey in relation to accountability exercises exemplifies, it becomes apparent that women’s constitutional innovations can also be lost. Equality claims can certainly be ignored, obscured, or circumvented. As Susan Millns indicates, they can even be re-directed to work against women. Despite women’s long and hard struggles to set up state machinery geared towards advancing their equality, these institutions can be restructured as occurred with the Women’s Unit in Britain, or dismantled altogether, as with the Canadian Advisory Council on the Status of Women (CACSW). Therefore, the book’s careful, contextual studies tell us that while constitutionalism (and the political reform dynamics that stem from it) can make a symbolic and/or practical difference to women and other historically excluded groups; nonetheless, its meanings, practices and outcomes are highly contested. Especially when political transitions consolidate, complacency, backsliding and even negative democratic reversals can occur. While some contributors are more hopeful, and others see more of the risks involved, all have attempted to ground their studies by outlining both opportunities and difficulties when detailing women’s constitutional interventions. What then becomes evident is that an appreciation of specific political, historical and discursive openings is critical. That is, the political context, as well as the societal and cultural norms, in which constitutionalism develops, affect the nature of the constitutional product. Therefore, women need to be aware and ready for: (a) opportunities that will be diverse; and (b) for opportunities that change all the time, in part, because of women’s own activism. For example, political discourses

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such as ‘democratic deficits’ and ‘new politics’ and ‘inclusion’ on their own may appear quite innocuous. However, in places like Scotland, Wales and Northern Ireland, where institutions could actually be constructed afresh to try to put these words into action, these discourses had significant strategic potential. Women seized this potential, expanded the scope and resonance of such discourses, and worked to concretize them not only for themselves, but also, for others.

When, where and how? What follows is that a greater awareness and comprehension in terms of when, where and how women insert themselves into constitutional conversations becomes highly instructive. For instance, in periods of rapid change, when new institutions are being constructed and wholesale change is possible, women’s capacity to influence political discourses and institutions becomes more likely. Again, this is not necessarily a given, as women’s recent trials and tribulations at the EU level attest. Nevertheless, in several situations, as in Northern Ireland and South Africa, women have been able to take advantage of political disruptions and instability to push for grander reforms in a relatively short time frame. To be sure, as Vivien Hart suggests, it is also important to realize, when taking the longer view, that more incremental constitutionalizing is also noteworthy. Here, for instance, as European institutions acted as a check and sometimes a spur to British parliamentary sovereignty since the 1970s, the former also served to open up a new political opportunity for British women. Yet, the ability to start from scratch or at least the opportunity for adaptation, as opposed to adoption (as with Britain’s limited reception of the European Convention on Human Rights), is especially interesting. Both Millns and Meg Russell observe that the British Human Rights Act with its mere adoption of the ECHR constituted a less than momentous change, given that the latter did not contain a freestanding equality clause. This adoptive approach did not offer much of an opportunity for women’s input. Now, the British Human Rights Act seems out of step with societal and political advances outside of the United Kingdom and even inside it given developments in relation to rights and equality in Northern Ireland, Scotland and Wales. In these regions, or in states like Canada, women were able to inject or build on equality provisions, providing a stark contrast to the adoption approach. When the Canadian constitution was ‘patriated’ from Britain in 1982, a new Charter with equality rights was devised to go with it. Here women were able to

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tighten up equality loopholes by expanding one and adding another new equality provision. Later, through their litigation struggles, along with judicial and public education, women could work on deepening and widening understandings of equality even further. In sum, times of political upheaval, with the potential to create new institutions and structures, and the capacity to be creative and engage in adaptation appear particularly auspicious for women’s constitutional activism. To continue to answer the ‘when’ question, various analyses in the book also suggest that the sooner women are involved in constitutional reform processes, the better. Early intervention increases their ability to influence political discourses and processes. As Fiona Mackay, Fiona Myers and Alice Brown detail, this was unquestionably the case in Scotland where women were key players in the push for constitutional change in the 1990s. And then, when devolution actually took place in 1998, women had a hand in constructing new political bodies and public expectations around them. Not surprisingly, this, in turn, spawned more and a greater range of opportunities to institutionalize women’s access and voice. Regarding ‘where’ women should focus their efforts, the volume makes manifest the importance of involving both institutional and noninstitutional political dimensions. In this book, political engagement encompasses not only conventional political sites (e.g. the role and kind of legislatures and governing political parties) and the typical features of political/electoral systems (e.g. unitary versus federal systems; single member plurality versus proportional representation and so on), but also less traditional political considerations such as social movement mobilization. Women must engage in various forms of political struggle, which take place inside and outside of conventional political fora. As a result, we see the influence of ‘femocrats’ in Wales and women party players in the Labour Party and the African National Congress (ANC), but also the interventions of women’s movement activists and various civil society organizations and coalitions, from the Women’s National Coalition (WNC) in South Africa to the Scottish Women’s Co-ordination Group (SWCG). Granted, when considering constitutional change, formal political rules and procedures are central features. Appropriately then, the book examines reforms to legislatures, political parties, the use of quotas and the relevance of electoral reform debates. It also indicates that political institutions can be quite determinative. Meg Russell’s account of internal Labour party’s efforts is illustrative here, where political elites’ actions/inactions are both significant and highly directive. Moreover,

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changing a party’s priorities is one thing, but devising a new parliament is a different matter entirely. Obviously, from Mackay et al.’s account we see that building the new Scottish Parliament constituted a massive, highly influential political opportunity. In conjunction with this, however, the volume also shows that when women put all their eggs in one basket, there is a greater chance that their constitutional efforts can become scrambled. Simply targeting a particular state body or a certain political party can bring disappointment. For instance, after years of work inside the Labour party, and impressive firsts such as the 101 Labour women elected to office in 1997, feminists had hoped that the new women legislators would make greater inroads in terms of substantive policy outcomes for women. When the number of Labour MPs decreased after the 2001 election, and when the short-lived Women’s Unit became the Women and Equality Unit, scepticism grew. When it comes to activating constitutional change, then, women should be wary of relying on single routes to representation, and concentrating their efforts solely on traditional political institutions. Rather, various contributors emphasize that broader political engagement is critical. The volume attests to the fact that non-traditional political mobilization can also affect outcomes. Clearly, women’s movement organizing has created opportunities for multiple forms of political activism and mixed solidarities. As Green’s chapter reveals the Canadian women’s movement, Aboriginal women’s and malestream Aboriginal organizations, sometimes in concert, introduced their concerns about representation, citizenship, inclusion, identity, democracy and colonialism into the constitutional debate. This served to add new and exciting chapters to Canada’s constitutional story. The foregoing begs the question of ‘how’ this is to be done. Our collection underscores the fact that multi-pronged strategies are necessary. Lobbying, working with state and party insiders must be combined with broader activism, coalition work and public education. Multi-level political coordination in ways that merge outside and inside strategizing appears to be most propitious. For instance, Albertyn notes that new women parliamentarians in South Africa not only needed backup from within, in terms of technical knowledge and expertise, but they also required the support and input of a broadly based constituency of women from without. As Mackay et al.’s research reveals, while women parliamentarians may feel as if they are making a difference on the inside, it depends on whom you ask. Feminist activists on the outside may be less satisfied with the nature, extent and pace of change. This is precisely why it is important to forge inside/outside networks and

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linkages between women working from within and women working from without. Consequently, conventional political actors should neither ignore nor delegitimize women’s movement efforts. The latter should be fostered, funded and facilitated. At the same time, neither should the women’s movement take its legitimacy and voice for granted. As our contributors have indicated, various manifestations of identity politics have raised questions about the legitimacy of the women’s movement. Therefore, as Ronalda Murphy perceives, even the women’s movement’s conceptualization of discourses as locations of power must be subject to critique. Women’s constitutional strategies must remain heedful of various shifting, changing and intersecting identity politics configurations. Of course, here too context is important. Gender is negotiated vis-àvis different dominant identities such as class in England, or various forms of nationalism in Northern Ireland, Scotland, Wales and Canada or with respect to certain race and gender dynamics in the United States as compared to others in South Africa. The use of gender as an identity to plough past race obstacles would be roundly condemned in the United States, but has completely different ramifications in South Africa where race is the overriding formulation. Furthermore, identity politics orientations not only change over space, but also over time, as the history of feminist activism itself illustrates. Hard lessons have been learned about intersectionality and its various manifestations. Women’s movements, as a result, have had to critically examine, and at times reassess and re-direct their own predilections, priorities and practices. In short, all this points to the fact that advances in democracy and in feminism must go hand in hand. This requires the perpetual engagement of diverse identities, in terms of recognition, as well as the imaginative interaction of multiple political and cultural practices. Rights have provided one such terrain of struggle.

Rights claims The constitutional enumeration of protected rights has created space for the contestation of certain kinds of oppression, to be sure. Rights can have both symbolic and material purchase. Nonetheless, there are huge variations in both the kinds of rights (positive/negative; social/civil; as well as different generational categories, from first to fourth, and so on) involved, and their potential impact. The primary focus of this volume is on women’s pragmatic engagement with rights, and on the tactics and procedures of rights enforcement. Overall, rights are viewed as relational in the sense that they relate to particular contextual settings, and are

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used in specific, strategic ways. Again, as Murphy illustrates, rights are political products that need to be located in particular historical contexts. Thus, while the meanings of rights are contested, this book studies various settings in which such contestation takes place. Given the multiple interpretations and uses of rights considered in this collection, if anything can be concluded convincingly, it is that conflicts, contradictions and even confusions around rights and equality are pervasive. There are ongoing, valid concerns about the predominantly individualistic nature of rights claims and how they play out in relation to the protection of wider social groups, for example. Harvey’s chapter problematizes the state of affairs in which group rights of the two main communities in Northern Ireland can overshadow individual claims. This becomes a serious consideration for women whose struggle for women’s rights is often equated with quintessentially liberal, individualized solutions. And yet, other contributors to this volume also propose that the activism of social movements challenges such conventional interpretations and distinctions. Numerous chapters illustrate that social movements have the potential to revise ideas and practices around rights. Aboriginal women’s constitutional mobilization in Canada, for example, involved a rejection of such traditional rights formulations. As Green recounts, Aboriginal women deployed rights strategies provisionally and in contexts where identities were being constructed and deconstructed in relation to intricate relations between Aboriginal men, Aboriginal organizations (male and female led), and Canadian feminist organizations, as well as different governments and courts. In doing so, Aboriginal women combined their commitment to gender equality as women, with collective demands for Aboriginal nationhood. Such dichotomous individual/collective understandings are interrogated in other chapters as well. Millns’ assessment of the Pretty case throws into question what is an individual right exactly and what is a collective one. Ostensibly, Mrs Pretty is pursuing an individual rights strategy, for example, the right to die in dignity. Yet her right to die may suggest more about her relations with others, that is, how she interprets and contextualizes her growing incapacity and how it will affect those around her, than the pursuit of an instrumental, individual rights claim. In fact, gender may not be an individualistic claim at all but a more collective one. Put differently, rather than reducing women’s rights to matters of individual choice, they can be conceived of as responding to diverse, more collective needs. Relatedly, Bartholomew provides a direct critique of the view that group-differentiated rights are necessarily bad for women. In her

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assessment, such rights are not just meaningful for women who come from cultural minorities, but are important to all women. Beyond the point that feminism must be inter- and intra-culturally sensitive, she suggests that many struggles for recognition are geared towards difference sensitive political inclusion and accommodation. Therefore, struggles for group-differentiated cultural rights are aimed at rendering the public sphere more heterogeneous. Striving for inclusion and challenging the homogeneous nature of political institutions and actors (e.g., white, male, upper/middle class) have also been/are feminist goals. A deliberative orientation that is open to group needs and voices also requires openness to women’s concerns and the two can reinforce one other. Rather than condemning minority practices, traditions and ways of life, Bartholomew reminds us of the transgressions of the majority. Again, her solution is to advance group-differentiated cultural rights that contribute to ‘thicker’ forms of ‘publicity’ in both conventional and unconventional political spheres. This will serve to enhance critical scrutiny of discriminatory practices in both majority and minority ways of life. In her final analysis, Bartholomew calls for the creation of a non-essentialist multicultural constitutionalism, which also respects equality of women and girls. This brings us to a more careful consideration of equality.

Equality Our collection certainly problematizes what is meant by equality, and the institutional arrangements and social practices that are required to achieve it. Beyond the inimitable distinction between formal versus substantive equality, contributors point to equality’s other facets. Because of such complexities, there is a danger that, as Harvey contends, political actors who use the language of equality may not understand the different types of equality involved. However, political actors are not necessarily oblivious to these limitations and contradictions. In Canada, feminist analysts and activists grappled with the meanings and implications of equality strategies before the Charter even existed and continue to do so twenty plus years after its realization. Despite its elusive qualities and multiple and often contradictory dimensions, equality remains a touchstone for women because of its historical resonance for the women’s movement and given its continued pragmatic deployment. That is, women continue to make use of equality in symbolic, rhetorical and strategic ways. To illustrate, Paul Chaney outlines the symbolic promotion of equality of opportunity in Wales, in the sense of it marking a distinct

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change from prior practices. Here it has not only been deployed rhetorically in political debate and policy documents, but it has also been used strategically to reform the new Welsh state machinery as well as overcome resistance or obstruction from political officials. Thus, in Wales there is an attempt to operationalize equality in a proactive manner. Because there are different ways of understanding and experiencing equality, once more, context is important. In Northern Ireland, or in South Africa, gender equality can be subsumed by overriding equality preoccupations. Moreover, understandings and usages can also change, which is something feminists are acutely conscious of. For example, many view with apprehension the growing reliance on equality of opportunity discourses. The downside here is that they may obscure more substantive forms of equality such as equality of condition or equality of end result. To provide one brief illustration, consider the ever more prevalent turn to policies and programmes that promote women’s paid employment. This drive towards women’s employability has been trumpeted as fostering equal opportunity. However, such policies and programmes typically ignore the fact that the labour market is sexually, racially and increasingly generationally divided, and that significant pay differentials in terms of gender, race, class and age, persist. As a result, poor women, women of colour, immigrant women, and especially single mothers, are funnelled into low pay, often part-time, insecure jobs, that are typically non-unionized and have few if any benefits. At the same time, the push for paid work comes with little recognition of the fact that women continue to do the bulk of unpaid, social reproduction labour, for example, the care of children, elderly, the disabled, sick family members and so on. Hence, the discourse of equality of opportunity may reinforce inequality instead of bringing us closer to achieving substantive equality. On the upside, however, consider how equality/difference/diversity debates have played out over time. Harrison’s chapter shows how the American women’s movement not only strategically priorized one (equality) over the other (difference), but also negotiated both at certain historical and political moments (in the early 1920s, as well in their more recent efforts). In the past, however, the negotiation of both equality and difference was very difficult and often collapsed under the weight of its contradictions. At present, there has been more recognition of the fact that these need not be mutually exclusive. Harrison illustrates how the simple formal equality that American feminists demanded with constitutional amendments in the 1970s falls well short of contemporary appeals. Current feminist platforms are no longer just about equal rights for women, but involve implementing strategies that help to bring about

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a more comprehensive agenda that responds to the concerns of poor women, women of colour, among others. Similar conclusions can be drawn from Hart’s study of minimum wage policy, which highlights the work of coalitions containing groups that would have been at odds in the past. Here the historically rocky relationship between women and trade unions was smoothed over. In addition, beyond diverse women’s groups, like the Maternity Alliance, joining forces with unions, women’s rights organizations worked alongside the Equal Opportunities Commission (EOC), as well as the Commission for Racial Equality (CRE). Squires also argues that the pursuit of equality does not need to rule out difference or the recognition of diversity. Akin to Bartholomew, Squires suggests that uncovering institutional and societal inequalities necessitates recognition of equality, difference and diversity. Policymakers can choose various approaches: equality as individual justice; equality as group justice; and equality as diversity. The respective approaches involve tinkering, tailoring and transforming, which conform to sameness, difference and diversity orientations, according to Squires. Alone, each is insufficient and thus the aim is to construct a pragmatic synthesis that would combine individual equality and group difference augmented by a diversity approach. In Squires’ view, this will take us beyond formal liberal equality rights discourse, but does not succumb to essentialist views of gender difference. Women would neither have to aspire to male norms, nor would they demand that female norms be adopted. Rather, for Squires, the goal is to transform and de-gender norms of equivalence in ways that are sensitive to diversity. For Bronagh Hinds, like Squires, one way to put such a transformative equality agenda into practice is to develop mainstreaming initiatives. Hinds outlines the shift from anti-discrimination measures to mainstreaming in Northern Ireland as a way to include more groups under the equality umbrella. In fact, according to her, this process can not only respond to broader equality concerns, but strive for fairness and social justice. And yet, Hinds is realistic. She and others examine both practical efforts and potential limitations, questioning how far such initiatives can go in a single leap. Moreover, as Goetz’s contribution urges us to reflect upon, what will it take to achieve accountability? To illustrate, consider the difficulties that can ensue with mainstreaming efforts via institutions that deal with the concerns of various equality seekers, that is, those mandated to deal with discrimination based on not only gender, but race, disability, sexual orientation, religion, class and so on. Beyond the Northern Ireland experiment with this type of mainstreaming, numerous contributors refer to this as a

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potential development in other parts of the United Kingdom. However, by consolidating various identities and issues in this manner, as Hinds admits, specialist knowledge may be lost. Moreover, there may be competition and rivalries between groups. Further, as Harvey reckons, hierarchies of discrimination may also develop. Recall here how even more narrowly circumscribed equality bodies, let alone ones that contain multiple concerns, have been treated. As Squires noted of the Women’s Unit, such equality machinery was considered ephemeral and was often not taken seriously by state insiders. It was also viewed with scepticism if not suspicion by those on the outside. Once again, such structures raise rather large questions about accountability and enforceability. Equality bodies of all kinds (singularly focussed ones or those that consolidate different concerns) require not only top level commitment, with training for the officers involved, but also wider educative efforts for state and party officials, as well as for the public at large. Concomitantly, the support and involvement of civil society is pivotal. This means that a commitment to extensive consultation and ongoing civil society input is essential. Here, however, concerns raised by Squires are worth repeating. In Westminster especially, tight timetables and narrow consultation networks have meant that well funded organizations and sectors have had a greater say than disadvantaged groups. Also, because many grassroots groups do not feel state bodies serve their needs, the former may be indifferent to consultation. In some cases, groups do not have the skills or the capacity in terms of resources, communications, research and even the organizational forms to engage in such exercises. In Canada, many women’s groups devastated by cuts to core funding have had to redirect their energies towards keeping themselves financially solvent. Moreover, as Hinds admits, even with those groups who are able to take part in consultation processes, there is a sense that they have been consulted but not listened to. And, if individuals and organizations do not feel that they are truly being heard and their concerns are acted upon by the state, why would they continue to engage? Building a culture of, and the practices for, meaningful consultation will take time, resources, imagination and creativity. It also requires constructing structures with both the institutional and non-institutional political in mind. Scotland has made inroads in this respect. As Mackay et al. outline, women’s representational gains in Scotland necessitated a sustained struggle by a pluralist coalition of women. As a consequence, not only are there more women in the Scottish Parliament than Westminster, but there are also more robust organizational forms to facilitate consultation with a variety of groups on the outside. In Scotland,

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concerted political inclusion of civil society is both a political and societal priority. To be sure, beyond gender and nationalist identities, other groups are not so well represented in the Scottish Parliament. Here, however, Bartholomew’s suggestions regarding group-differentiated minorities and a more deliberative, procedural democracy are helpful. This may provide future direction for the mainstreaming of diversity equalities. In sum, just as there are different types of equality, there are also different ways that equality can be pursued. The quest for substantive equality is important not just in terms of constitutions and through the courts, but also in traditional political institutions, in the women’s movement, and in society more generally. This leads us to the final topic of representation and political engagement more broadly.

Representation and political engagement Perhaps one of the most vexing questions that this book raises in relation to representation is: what do we mean by representative? Are traditional conceptualizations, the Burkean trustee-like or J.S. Mills’ delegated representation, adequate in the twenty-first century? When can we say that a body is truly representative? In Northern Ireland, as Harvey points out, the new Assembly may be deemed representative if it reflects ‘community balance’ that is, contains Catholics as well as Protestants, nationalists and unionists, republicans and loyalists. What about those who wish to remain unenumerated? And, of course, what about the representation of other identities, often intersecting ones, such as gender? In what proportion should they be represented? Is the numerical representation of women and other politically marginalized groups enough? In Wales and Scotland, women have made clear numerical headway, but do the newly elected women make a substantive difference? What about the fact that women in the new regional Assemblies and Scottish Parliament appear to be predominately if not exclusively white and able-bodied? These are all difficult questions with no easy answers. However, this collection strives to advance such debates in specific regards. For instance, both Chaney and Mackay et al. empirically examine whether the increased presence of women in the Welsh Assembly and Scottish Parliament has made a substantive difference. Chaney raises the critical query: who are these women, that is, what are their backgrounds? In terms of substantive representation, Chaney notes the significance of women members of the Welsh Assembly having experience in trade unions, equality commissions, or with discrimination in the workplace, or even with motherhood. Mackay et al.’s research suggests that women

248 Women Making Constitutions

do both act for and act like women, in the sense of, for example, displaying more of a politics of ‘connectedness’. Yet this chapter also provides an important conceptual contribution by endeavouring to steer clear of essentialist portrayals. Instead, the authors identify more of a continuum of styles in the way that women and men do politics. Mackay et al. have found that background activists tend to be mostly but not exclusively women, and foreground activists mostly but not exclusively men. Yet Mackay et al. note that this can change in relation to different issues. Such political orientations undoubtedly also change over space and time. It is important to be aware of the strengths and weaknesses in both styles of politics. What is more, while background activists may be more adept at networking and building support across constituencies within and outside Parliament, perhaps it is necessary for such tendencies to become more of a foreground activity. And, in this regard, it is especially important to entertain Squires’ proposition of transforming and de-gendering institutions and behaviours in ways that are receptive to diversity. In terms of activating representational change, Russell underscores the importance of both women’s activism and key electoral factors. While strong persuasion from the top ranks of the Labour party was an absolute necessity, again, it is important not to lose sight of more broadly based constituencies of women and activist coalitions. With representation and political engagement more generally, as with constitutionalism, we must recall the lesson of not putting all the eggs in one basket. For example, Harrison underscores that in America, the courts have been unpredictable in their treatment of rights issues. The explicit language of a constitution has not necessarily deterred them. Thus, a conservative court, just as a conservative party or a party that does not see the electoral payback of promoting substantive equality, can interpret equality, rights and representation in narrow and limited ways. Ultimately, then, the conclusion to be drawn in terms of better representation is that, here too, it should not be a case of either/or numerical versus substantive; nor should it involve exclusive representational sites. As Russell’s work emphasizes, we need to remedy past discrimination in concerted ways. We certainly need to see more and diverse women as legislators, but also as lobbyists, jurists, educators, activists and so on. However, we must also ensure that deeper and broader representational mechanisms are constructed and made more open and accountable, to create a new politics in reality and not just in rhetoric. As Vivien Hart reminds us, nowhere have women entirely ironed out the generic problems of using a constitution as a political tool. And, as our collection epitomizes, everything depends on context. Therefore,

Women, Constitutionalism and Contestation 249

these narratives of women and constitutional change by no means tell a tale of inevitable progress. While Russell may propose that there has been a sea change, Green is more modest in her assessment. She suggests that ripples of institutional and cultural change are the best we can hope for when legal and political systems are designed by and for race, class and male privilege. Furthermore, while the absence of constitutional recognition may leave women even more vulnerable, as Harrison cautions, she and others also acknowledge that attaining constitutional change is not the be all and end all, for constitutional imperatives do not necessarily change local practices and feminists’ constitutional gains can become losses. Thus, we need to work not only on new constitutional frameworks, and incorporating institutional transformation into the range of constitutional change, but also cultural and discursive shifts in both the state and in civil society. In the end, women can ill afford to write off constitutionalism, forgo shaping new equalities agendas, not engage with the state or dispense with different and varied practices of representation. Moreover, the idea that constitutional change can create spaces for previously excluded groups continues to captivate. Equally enticing (or exasperating) in the present context of multi-level governance is that changes in one area can have an impact on another. For example, Westminster has felt and continues to feels pressures externally from Europe, and post-1997, internally, given devolution and constitutional innovations that are taking place in Scotland, Wales and Northern Ireland. There is somewhat of a contagion effect. As Russell suggests, even relatively minor changes that came as part of Labour’s constitutional modernization package, as with democratization efforts around the Greater London Assembly, helped to keep the issues of women’s representation on the front burner. Therefore, despite its contradictions and conundrums, constitutional change must remain one of many political struggles for women. Women cannot be lulled into a false sense of security by the symbolic appeal of enshrining grand constitutional ideals. Our collection makes manifest that vigilance and ongoing political engagement is necessary. Furthermore, women must strive to make constitutions more contestable given that societies’ interpretive understandings shift and change and the recognition of previously excluded subjects becomes ever more apparent and urgent. This means that there are no definitive solutions. Rather women must be prepared for disagreement, dispute and ongoing negotiations. But it is precisely this contestation and struggle that is what building a more expansive democracy is all about.

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Index

Aboriginal peoples 37–50, 221–4, 228–9, 234, 240, 242 Aboriginal Women’s Action Network 49 abortion 151–2 accountability 16–19, 52–67, 114, 231, 246 administrative 62–4 financial 65–6 gendered perspective on 53–5 horizontal 58–9 legal 61–2 political 59–61 vertical 56–8 activism 16, 19, 80–1, 84, 91, 96, 102–8 passim, 156, 159–60, 174–5, 241–2, 248 activists, ‘background’ and ‘foreground’ 94, 248 affirmative action 16, 56, 58 African National Congress (ANC) 28–30, 57–8, 100–4, 107, 110, 239 AIDS see HIV/AIDS policy all-women shortlists 69–72, 80–2 American Civil Liberties Union (ACLU) 155, 160, 164 Amsterdam Treaty (1999) 5 Apartheid 27–30, 33 Argentina 59 Arscott, J. 15 Assembly of First Nations (AFN) 46–7 audits of government spending 65 Australia 60, 65 Bahl, Kamlesh 127 Bangladesh 63 Bashevkin, Sylvia 122 Beijing Conference on Women (1995) 104–5 Declaration of Indigenous Women 40 Bell, Christine 137

Benhabib, Seyla 216–34 passim bias, gendered 55, 61–6 passim Biggs, Hazel 149 Bilton, K. 197 Blair, Tony 71–2, 81 Brandeis, Louis 157 Brazil 1, 61, 65 Brodsky, G. 3 Brown, Wendy 13, 142, 202 Burke, Edmund 247 Cairns, Alan 10 Canada 3–4, 10, 18, 20–6, 34, 36–50, 61, 215, 237–46 passim Aboriginal peoples in 37–50 Advisory Council on the Status of Women (CACSW) 3, 237 Charlottetown Accord 44 Charter of Rights and Freedoms 1, 17, 24, 36–8, 42–9, 121–3, 146, 152, 238–9 Constitution (1982) 42–4, 49, 238 Indian Acts 41–3, 46–7 Meech Lake Accord 43–4 National Action Committee on the Status of Women 24 Supreme Court 36, 47, 148–50 Women’s Legal Education and Action Fund 24 Carens, Joseph 9 Charlottetown Accord 44 Chichowski, R.E. 5 Childs, S. 178, 210 Chile 59 civil society institutions 17, 86, 101, 104–9, 112–14, 178, 214–15, 220–1, 231, 246–7 Clements, L. 177 Clinton, William Jefferson 164 collective rights 226, 242 see also rights in general Collins, Patricia Hill 202 273

274 Index colonialism 39–45, 48–9 Commission for Racial Equality (CRE) 125, 190, 204, 207, 214, 245 Conaghan, Joanne 148 consent of the governed 22 Conservative Party 68–9, 72–82 passim, 85, 91, 122–6 passim constitutions and constitutional rights, importance of 2, 21–3 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 60, 105 Coolidge, Calvin 161 corruption 53–4, 60, 65–6 Cortner, R.C. 126 Council of Europe 203 Critical Theory 218–19 cultural rights 216–34, 243 Daily Mail 70 Day, S. 3 democratic deficits 85–6, 120, 147, 238 devolved government 7, 72–5, 78–9, 84–6, 89, 119, 132–3, 174–6, 200–1, 209, 213–15, 239, 249 Dinsmore, Margaret-Ann 137 Disability Rights Commission 190, 204 Eames, Christine 137 Eastwood, Margaret 170 Edwards, S. 175 elections and electoral systems 54–7 Emerson, Thomas 161 employment of women 244 Equal Opportunities Commission (EOC) 118, 124–30 passim, 190, 204, 207, 214, 245 equal opportunities policies 88, 176, 244 equal pay legislation 120–30 passim, 204 equality, concepts of 11–12, 201–4, 243–7 Eritrea 2 essentialism 23–5, 219, 222 European Commission 128–9, 185, 202

European Commission of Human Rights 152 European Community Treaty: Article 169 126–8 European Convention on Human Rights 7, 73–4, 135–7, 143–51 passim, 188, 238 European Court of Human Rights 143, 146, 149, 151 European Court of Justice 120–30 passim European Parliament 130 European Union 10, 17, 118–20 Charter of Fundamental Rights 5–6, 121 Convention on the Future of Europe 5–6, 130 Employment Directive 207 and women 121–3 European Women’s Lobby 5 Fearon, Kate 141 Feld, Val 174, 178 feminism and feminist influence 11, 13, 20–7, 40, 52, 96–7, 100, 111, 113, 120, 130–1, 144, 152, 155–6, 160–70, 178–9, 210–11, 215, 216–18, 222, 230–4, 240–4 Flinders, M. 212 Fredman, S. 176–7 fundamental rights 119, 121 Fyfe, Maria 74 Gargarella, R. 178 gender politics 237 Gilligan, Carol 150 Ginsburg, Ruth Bader 165–7 Ginwala, Frene 31 Good Friday Agreement (1998) 132–41, 186–92 passim, 198–9, 237 Greater London Assembly 76, 78, 249 Griffiths, Martha 161 group identity 219 The Guardian 74 Gutmann, A. 178 Habermas, Jurgen 219, 221, 225–34 passim Halford, Alison 180

Index 275 Harman, Harriet 72 Hernandez, Aileen 161 Harper, Elijah 37 Hart, Edwina 180 Hassim, S. 30–1, 113 Hayden, Carl 158 HIV/AIDS policy 4, 111–14 Honig, B. 9, 233 House of Lords judicial decisions of 136, 147–51 passim reform of 73, 76, 82 Human Rights Act (1998) 17, 119, 131, 135–7, 142–6, 238 judicial application of 147–53 Hutt, Jane 174 identity politics 241 impact assessments 194–8, 206 India 56, 60, 64–5 International Criminal Tribunal for the Former Yugoslavia 145 international law 48, 145 James, Michael Rabinder 229–32 Jones, Helen Mary 174 Judicial Committee of the Privy Council 36 judicial review 130 judicial systems 61–2, 147 Kelley, Florence 12 Kelly, Patricia 137 Kennedy, John 159 Kymlicka, Will 216, 220–32 passim Labour Party 68–82, 91, 118, 129, 143, 175, 206, 210, 239–40, 248 Laeken Declaration 6 Lambert, D. 176 Lester, Anthony 124–6, 129 Liard Aboriginal Women’s Society 49 Liberal Democratic Party 69, 72–7 passim, 81–2, 91 litigation, use of 47–8, 239 Low Pay Unit (LPU) 124–5, 130 Lugtig, Sarah 48 McColgan, Aileen 148 McCormack, Inez 137

McCrudden, Christopher 139 McDonagh, Eileen 203–4 MacDonald, Kelly 44 McDonald, R. 212, 214 MacErlean, N. 181 MacKinnon, Catharine 145 Madison, James 170 mainstreaming 88, 95, 138–9, 179–82, 185–6, 191–9 passim, 202–14 passim, 245–7 Major, John 72 Malibongwe Conference (1990) 29–30 Maloney, Carolyn 167 Mansbridge, Jane 165 Manzini, M. 29 Mason, Angela 207–8 Massie, Bert 208 Mbeki, Thabo 112 Meech Lake Accord 43–4 Mellor, Julie 205 Members of Parliament (MPs), female in Scotland 86–7 in South Africa 99, 102–3, 110 in the UK 76–8, 210, 240 Menem, Carlos 59 military service 164–9 Mill, J.S. 247 minimum wage policy 118–19, 123–30 passim, 245 Minow, Martha 218 modernization of government 212–15 Morgan, Julie 74 Morgan, K. 182 Mouffe, Chantal 11 Mozambique 56 Mulroney, Brian 43–4 multiculturalism 216–24 passim, 229–30, 233–4, 243 multi-level governance 200, 249 Murray, C. 29 Museveni, Yoweri 59 Native Women’s Association of Canada (NWAC) 44–7 ‘new politics’ 86–7, 90–3, 97–8, 238 Nicaragua 1 Nice Treaty (2001) 5

276 Index non-government organizations (NGOs) 106, 109, 111, 192–7 passim, 201, 211, 214 Northern Ireland 1–2, 10–12, 17–18, 152, 185–99, 238, 242–5 Bill of Rights 138–9, 188 Equality Commission 140, 189–98 gender equality in 132–41 Good Friday Agreement (1998) 132–41, 186–92 passim, 198–9, 237 Section 75 190, 193–8 passim Human Rights Commission 135, 137–9, 189–90, 198 Northern Ireland Act (1998) 135, 140, 186–8 Northern Ireland Assembly 7, 133–4, 139, 187–8, 247 Northern Ireland Executive 198–9 Northern Ireland Women’s Coalition (NIWC) 134–5, 141, 187, 237 Okin, Susan Moller 12, 216–34 passim O’Regan, C. 29 Parkes, Debra 48 parliamentary sovereignty 118–19, 147–8, 238 Patel, L. 29 patriarchy 224–5, 230–4, 243 Paul, Alice 158 Phillips, Anne 14, 89, 114 Pitkin, Hanna 14 Plaid Cymru 75–6, 79, 175 political opportunity structures 213–15 Pond, Chris 126 power-sharing 145 presidential systems 59 Pretty, Diane 148–50, 242 proportional representation 7, 16, 56, 73, 79, 86, 91, 102 public spending 65 Quebec 43–4 quotas to promote women’s participation 57–8, 63, 68–70, 73–82 passim, 102, 111, 161–2 Race Relations Act (1976) 204 Race Relations Amendment Act (2000) 209

rape trials 150–1 Rees, G. 182 Rees, Teresa 174, 202–5 regional assemblies in England 82 representation, forms of 14–15, 85, 89–90, 97, 99–100, 114, 247–8 rights 12–14, 20, 34, 136–9, 241–3 generations of 144 proceduralist theory of 226–34 see also collective rights; cultural rights; fundamental rights; social rights rights-based culture 150–3 Roche, Barbara 206–7 Rome Treaty (1957) 5 Article 119 118–23, 127–30, 204 Rubenstein, Michael 126 Ruddock, Joan 72, 77 Rwanda 2 Sawridge case 47 Sayers, Judith 44 Scalia, Antonin 155, 166–7 Schlafly, Phyllis 162 Schneiderman, D. 123, 129 Scotland 7, 10, 16, 176, 200–1, 208, 238, 241 Scottish Executive 87–91, 94–5, 212 Scottish National Party (SNP) 75–6, 79, 87, 91 Scottish Parliament 7, 16, 73–9 passim, 84–9, 210–14, 239–40, 246–7; difference made by women Members of 89–98, 177–9, 210–11, 247; equality agenda of 214, 239 Scottish Women’s Coordination Group 85, 239 Serote, P. 29 Sex Discrimination Act (1975) 70, 78, 204 sexism 41, 43 Smart, Carol 136 Smith, Howard 159 Smith, John 81 Social Exclusion Unit 212 social rights 128, 144 South Africa 1, 4–5, 10, 16–18, 20–2, 27–34, 56–65 passim, 238–41, 244 Bill of Rights 17

Index 277 South Africa – continued Charter of Women’s Rights 30–2 Constitution 99–102 difference made by women MPs 103–10 gender equality in 100–5, 114 Parliament elected in 1999 110–14 Standing Committee on the Improvement of the Quality of Life and the Status of Women (CQLSW) 105–8, 112–13 Women’s National Coalition 27, 101–2, 239 Women’s National Commission 31–4 Spelman, Elizabeth 23–4 Staudt, K. 64 stereotyping, gendered 97 subaltern publics 229, 232 suicide, assisted 148–50 Sutherland, K. 123, 129 Taylor, Charles 216 Teg, Chwarae 174–5 Thatcher, Margaret 72 Thomas, P. 177 Thompson, D. 178 trade unions 125, 245 Trades Union Congress (TUC) 118, 124–8 Tremblay, M. 14 Trimble, L. 14–15, 48–9 Tully, James 216, 218, 234 twinning of constituencies 74–7, 80–2, 175, 210–11 Uganda 1, 57–60 United Kingdom constitutional agenda 6–8, 16, 72–3, 82, 118–20, 146 equality agenda 201, 204–15 single Equality Commission 18, 207–9, 214–15 women in elected office in 68–83 United Nations Charter 48 Human Rights Commission 42 United States 10, 123–4, 241, 244 constitutional equality in 155–70

Equal Employment Opportunity Commission 160 National Organization for Women 156 National Woman’s Party (NWP) 155–9, 167–8 President’s Commission on the Status of Women 159–60 Supreme Court 155–69 passim United States Constitution 17, 121, 126, 169, 248 Fourteenth Amendment 155–6, 160, 165 Fifteenth Amendment 156 Nineteenth Amendment 157 Equal Rights Amendment (ERA), proposed 155–70 passim universalism 22, 218–29 passim wages councils 118, 124–31 passim Wales 7, 18, 179, 200–1, 208, 238, 241, 247 Plaid Cymru 75–6, 79, 175 Welsh Assembly 7, 73–8 passim, 82, 173–84, 243–4; equality agenda and Equality Committee 179–83, 209, 212–13; women Members of 177–9, 211 Walker, C. 28 Ward, M. 178 Waylen, G. 59 ‘Wollstonecraft’s dilemma’ 201 Women and Equality Unit (formerly Women’s Unit) 205–7, 212, 237, 240, 246 women’s issues 95–7, 108–11, 128 women’s movement 241, 247 see also names of specific women’s groups in Britain 125, 173, 213–14 in Canada 23–6, 34, 37, 41–6, 49, 240, 242, 246 in South Africa 27, 30, 32, 34, 58, 113 in the US 159, 244 Women’s National Commission (WNC) 206, 208, 214–15 Young, Iris

216