NATIONAL UNIVERSITY OF IRELAND GALWAY

FACULTY OF LAW

LL.M. IN PUBLIC LAW

COURSE ON EQUALITY LAW: PRINCIPLES AND THEMATIC APPLICATION

MODULE ON THE PHILOSOPHY AND PRACTICE OF EQUALITY

Lecturer: Dr Richard Humphreys

Course Outline and Reading List

INTRODUCTION

The purpose of the module is to examine fundamental theoretical questions regarding equality law, its meaning, role and purposes, and to consider the sources and content of Irish equality law in particular as well as relevant international and European standards in the light of that examination. Equality is of course a political as well as a purely legal concept and the relationship between equality law and social change will be examined critically.

The legal context of the course will be primarily that of the Irish legal system.

The module will consist of 6 lectures (2 hours each) in seminar format together with course work (see below).

LECTURE OUTLINE

LECTURE 1

KINDS OF EQUALITY

This lecture considers some basic questions about equality such as the assumptions on which the case for equality rests, and whether equality of opportunity is possible.

Consider possible answers to Baker's conundrums in the light of possible alternative ways of viewing the imperative for equality.

Issues which will be taken up in subsequent lectures will include the limits of equality:

• Crtiticisms of the concept of equality.
• Separation of powers issues - judicially imposed equality versus the rights of the Oireachtas.
• Equality in collision with other values and principles.

Key reading for lecture 1: J. Baker, Arguing for Equality (London, 1987) pp. 162-166.

Additional Reading for Lecture 1

• Aristotle, Nicomachean Ethics
• Charvet, John, A Critique of Freedom and Equality (Cambridge, 1981)
• Finnis, Natural Law and Natural Rights (Oxford, 1980)
• Ingram, A Political Theory of Rights (Oxford, 1994)
• MacIntyre, Alasdair, After Virtue (2nd ed) (Notre Dame, 1984)
• Nagel, Thomas, Mortal Questions (Cambridge, 1979), Chapter 8
• Nagel, Thomas, Equality and Partiality (Oxford, 1991)
• Nozick, Anarchy, State and Utopia (NY, 1974)
• Rawls, A Theory of Justice (Oxford, 1972)
• Baker, John, Lynch, Kathleen, Cantillon, Sara and Walsh, Judy, Equality From Theory to Action (Basingstoke, 2004)
• Cohen, GA, Why Not Socialism? (Princeton, 2009)

THE LIBERAL CONCEPTION OF EQUALITY AND THE CASE AGAINST

Nozick / Rawls Contrasted

Rawlsian Equality as a community-negotiated outcome versus inherent indivudual entitlement

Instances for discussion - Methods of allocating examination marks - community-negotiated or individual entitlement?

Course will attempt to address philosophical underpinnings of Equality Law:

• Equality as a political concept - relationship to major political/ religious schools of thought.
• All X are entitled to equality with each other in respect of Y - how to judge the variables. What is equality?
• Economic/ inherent attributes - equality of respect
• Why equality?
• Types of equality - outcome vs. opportunity
• Grounds of equality - discrimination vs. being discriminating
• The special case of non-citizens
• Equality vs. privacy vs. other values
• Equality vs. freedom
• The thesis that "Society benefits from inequality"
• Positive/affirmative action/ reverse discrimination - "invidious" discrimination?
• State action doctrine and state-imposed private non-discrimination

Key reading for lecture 2: R. Nozick, Anarchy, State and Utopia (NY, 1974) Chapter 8, "Equality, Envy, Exploitation, Etc." (pp. 232-275).

Additional Reading for Lecture 2

• Baker, Arguing for Equality (London 1987)
• Humphreys, J, The Story of Virtue (Dublin, 2005)
• Hardiman J. on Rawls - Sinnott v. Minister for Education [2001] 2 IR 545 at 710-711.
• Miller, David and Walzer, Michael, Pluralism, Justice and Equality (Oxford, 1995)

LECTURE 3

EQUALITY AS A CONSTITUTIONAL FUNDAMENTAL

This lecture considers the extent to which fundamental legal instruments accommodate the aspiration to equality and looks at the question of which version of equality can reasonably be accommodated in fundamental legal terms.

It will also look at the extent to which equality conflicts with other key constitutional values.

Additional Reading for Lecture 3

• Constitution Article 40
• Central Broadcasting Services Ltd and another v. Attorney General of Trinidad and Tobago [2006] 1 WLR 2891 (inequality before the law)
• All Party Oireachtas Committee on the Constitution, 3rd Report of APOCC, The President (Dublin 1998) (relevant to Article 40.2)
• Beytagh, Francis X. "Equality under the Irish and American Constitutions: A Comparative Analysis- I" (1983) 18 Ir. Jur. (ns) 56
• Beytagh, Francis X. "Equality under the Irish and American Constitutions: A Comparative Analysis- II" (1983) 18 Ir. Jur. (ns) 219
• Constitution Review Group, Report of Constitution Review Group p 224
• Doyle, Oran "The Human Personality Doctrine in Constitutional Equality Law" (2001) 9 ISLR 101
• Doyle, Constitutional Equality Law (Dublin 2004)
• Forde, M. "Equality and the Constitution" (1982) 17 Ir. Jur. (ns) 295
• Forde, Constitutional Law, 2nd Edition, pp. 371-401
• Hogan, G.W. "Constitutional Law - Remedies for Inequality" (1992) 14 DULJ (ns) 115
• Hogan, Gerard "The Supreme Court and the Equality Clause" (1998) 4 Bar Review 116
• Kelly, The Irish Constitution 4th Ed (Dublin 2003) pp 1323-1386
• Kelly, J.M. "Equality before the Law in Three European Jurisdictions" (1983) 18 Ir. Jur. (ns) 259
• O'Dowd (1999) 11 European Review of Public Law 769
• Peters, Christopher J. "Equality Revisited" 110 Harv. L. Rev. 1210 (1997)
• Smith, Murray "No Honours Please, We're Republicans" (1999) 7 ISLR 112
• Whyte, Gerry, "A Comment on the Constitution Review Group's Proposals on Equality" in Byrne and Duncan, Developments in Discrimination Law in Ireland and Europe (ICEL) (Dublin, 1997) pp 93-104

LECTURE 4

NON-CONSTITUTIONAL SOURCES OF EQUALITY LAW

This lecture explores in more detail the question of sources of equality law in Irish law, and the extent to which equality law has been inspired by domestic political agendas as well as international norms.

• A and others v. Secretary of State for the Home Department [2005] 2 WLR 87 (discrimination against non-nationals and the ECHR)
• International Instruments Protecting Equality include the following. A useful compilation of UN instruments can be found in Centre for Human Rights, A Compilation of International Instruments (New York, 1993) Volume 1 (First Part).
• Universal Declaration of Human Rights, Adopted by the General Assembly on 10th December 1948, Articles 1, 7, 16.1, 21.1, 23.2, 29 and 30.
• International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly on 16th December 1966, Art. 2, 3, 4, 5.
• International Covenant on Civil and Political Rights, adopted by the General Assembly on 16th December 1966, Art. 2, 3, 4, 5, 14.1, 24.1, 26.
• International Convention on the elimination of all forms of Racial Discrimination, adopted by the General Assembly on 21st December 1965.
• Convention on the elimination of all forms of discrimination against women, adopted by the General Assembly on 18th December 1979.
• Convention on the Rights of the Child, adopted by the General Assembly on 20th November 1989, Art.2.
• See also the work of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, established pursuant to General Assembly resolution 56/168 of 19th December 2001, texts at http://www.un.org/esa/socdev/enable/rights/adhoccom.htm
• Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4th November 1950, Art.14.
• Protocol 7 to the Convention, done at Strasbourg on the 22nd day of November 1984, Art.5.
• Protocol 12 to the Convention, done at Rome on the 4th November 2000. (see http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm)
• See also Committee of Ministers of Council of Europe, Explanatory Report to Protocol 12, adopted on 26th June 2000, text available on above link.
• Note some "grounds" are not covered by specific instruments.
• See also EU material listed under furtner reading.
• Overview of Statute law - the ECHR Act, the Equality legislation

Key reading for lecture 4 - M. Cavanagh, Against Equality of Opportunity (Oxford, 2002) pp. 33-54.; C. McCrudden "Theorising European Equality Law" in C. Costello and E. Barry, Equality in Diversity (Dublin, ICEL, 2003) pp 1-38.

Additional Reading for Lecture 4

• EC Treaty Article 141
• Council Directive 75/117/EEC
• Council Directive 76/207/EEC
• Council Directive 97/80/EC
• Council Directive 2000/43/EC - race directive
• Council Directive 2000/78/EC - Framework employment directive
• Council Directive 2002/73/EC
• Council Directive 2004/113/EC - Gender goods and services directive (implementation date: 21 December 2007)
• Regulation (EC) No 1922/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a European Institute for Gender Equality. OJ L 403, 30.12.2006, p. 9–17.
• Byrne and Duncan, Developments in Discrimination Law in Ireland and Europe (ICEL) (Dublin, 1997)
• ECHR Act 2003
• Buruma, Ian, Murder in Amsterdam: The Death of Theo van Gogh and the Limits of Tolerance (London, 2006)
• Raab, Dominic, The Assault on Liberty: What went wrong with Rights (London, 2009).

LECTURE 5

EQUALITY IN THE WORKPLACE

Contemporary Issues and Controversies regarding the implementation of employment equality legislation will be discussed.

• Remedies for inequality
• The Employment Equality Act 1998
• The Equality Act 2004

Key reading for lecture 5 - Levant, Ezra, Shakedown: How our Government is undermining Democracy in the name of Human Rights (Toronto, 2009), ch. 3 pp. 43-73, "How could we let this happen?"; N. Crowley, An Ambition for Equality (Dublin, 2005) Ch 6 "Backlash and a faltering ambition" pp 182-202.

Additional Reading for Lecture 5

• Employment Equality Act 1998, Annotated by Tony Kerr, ICLSA
• In re Employment Equality Bill 1996 [1997] 2 IR 321
• Equality Act 2004, Annotated by Tony Kerr, ICLSA
• Bolger M "Enforcing Claims under the Employment Equality Act 1998" (1999) 5 (3) BR 110
• Dowling, Marcus "Disability Discrimination" (1999) 5 (3) BR 121
• Honan, Mary "Employment Equality Act 1998: Equal Pay Provisions" (1999) 5 (3) BR 117
• O Connell, Donncha, ICCL Conference on Equality (1999) 5 (3) BR 126
• Twomey, Adrian "Sexual Harassment" (1999) 5 (2) BR 64 and 5 (3) BR 11
• Relevant SIs - 1999/321, 2003/319, 2002/78, 2004/880
• Bolger and Kimber, Sex Discrimination Law (Dublin 2000)
• Costello and Barry, Equality in Diversity, ICEL No. 29 (Dublin, 2003)
• Crowley, An Ambition for Equality (Dublin 2006)
• Curtin, Irish Employment Equality Law (Dublin 1989)
• Annual Reports of the Equality Authority available at http://www.equality.ie/index.asp?locID=136&docID=-1
• Decisions of Equality Tribunal available at http://www.equalitytribunal.ie/index.asp?locID=27&docID=-1
• Veatch, Robert M, The Foundations of Justice (NY, 1986)

LECTURE 6

EQUALITY IN ACCESS TO GOODS AND SERVICES

The lecture will discuss the background to legislation on equality of access to goods and services, and key controversies regarding its operation, and will draw together some of the themes of the lecture series as a whole.

• The Equal Status Act 2000
• Equality Act 2004
• Doherty v. South Dublin County Council, Charleton J., 22nd January 2007.
• Particular stress will be laid on the exceptions to the Acts and the justifications for same.

Key reading for lecture 6 - Goldberg, Jonah, Liberal Fascism (London, 2007), chapter 10, pp. 358-391

Additional Reading for Lecture 6

• Regina (Elias) v. Secretary of State for Defence [2006] 1 WLR 3213 (indirect discrimination)
• Equal Status Act 2000, Annotated by T.J. McIntyre, 2000 ICLSA 8
• Kimber C and Bolger M, Sex Equality: The Equal Status Act 2000 (2001) BR 198
• Kimber C Equality Disability (Part I) (2001) 6 (9) BR 494, (Part II) (2001) 7 (2) BR 66
• Power C "The Equal Status Bill 1999 - Equal to the Task?" (2000) 5 (5) BR 267
• Redmond, Mary "A Level Playing Field?" (2002) 96 (7) LSG 18
• Report of 2nd Commission on the Status of Women (Dublin 1993)
• Progress Reports on Implementation of Report
• Reports under CEDAW
• A Strategy for Equality
• Equality Tribunal legal reviews, available at http://www.equalitytribunal.ie/index.asp?locID=77&docID=-1
• Equality Authority, Embedding Equality, Strategic Plan 2006-2008 (Dublin, 2006)
• R (E) v. Governing Body of JFS, Supreme Court (UK) 16 December 2009

COURSE WORK

5000 word essay. on topic to be confirmed. Students may be required to make oral presentation on their essay.

Submission deadline: About mid April - precise date to be confirmed

Minor Thesis Submission

Deadline for submission of 2000 word literature review and agreed arrangements for supervision during the April-August period: approx 31 March.

Deadline for submission of thesis (max 15,000 words): approx 31st August.

Please also read section 4 of the Postgraduate Student Guide LL.M. (Public Law).

Marking Scheme for Theses

The marking scheme for theses is subject to change in any given academic year. For guidance only, the following was the scheme in the first year of the LLM.

As it is a thesis, not just an essay, and is the culmination of the year’s work, it should be marked primarily on the breadth and depth of the research, as well as the quality of the analysis and the precision and clarity of the writing.

General guidelines on marking are set out in a chart contained in the student guide. The following range of marks apply:

• a thesis that is really outstanding/ exceptionally good in terms of all of the criteria in (2) above: 76-80%
• a thesis that is of very high quality in terms of all of the criteria in (2) above but not outstanding/exceptional 70-75%
• a thesis that is very competent in terms of all or most of the criteria in (2) above: 65-69%
• a thesis that is competent in terms of all or most of the criteria in (2) above: 60-64%
• a thesis that is less than competent in terms of some or all of the criteria in (2) above: below 59%, set at a level to reflect the gravity of the incompetence

KEY MODULE OUTCOMES