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The Irish Community Development Law JournalVolume 5 (2)

The Irish Community Development Law Journal Vol.5 (2) [2016] 2

Address

Northside Civic Centre, Coolock, Dublin 17, Republic of Ireland

Publisher

Community Law & Mediation www.communitylawandmediation.ie

Design

Matt Whitby Designwww.mattwhitbydesign.ie

ISSN (online): 2009-4302

The views expressed in this publication are strictly those of the authors and they do not reflect the views of the Editors, Editorial Board, International Advisory Board or Community Law & Mediation. Submissions in the ‘Articles’ section of this journal are subject to double-blind peer review, while submissions to the ‘Case Studies’ and ‘Book Reviews’ sections are subject to editorial review only.

© CLM 2016.

The Irish Community Development Law Journal is an online journal, published twice a year by Community Law & Mediation (CLM) in Coolock, Dublin. The journal seeks to offer a platform for interaction that encourages greater scholarly and academic collaboration in the areas of social policy, law and community development, promoting the practice of Community Economic Development (CED) law and policy in Ireland and learn about these initiatives in other countries.

The Irish Community Development Law Journal

Editorial Board

Editors

Review Panel

International Advisory Board

Judge Colin Daly The District CourtAndrea Mulligan, BL Trinity College DublinDr. Deiric O Broin Nordubco/Dublin City UniversityBrian Harvey Independent Social Researcher

Prof. Liam Thornton University College DublinProf. Gerry Whyte Trinity College DublinRose Wall Community Law & Mediation

Roslyn Palmer Community Law & Mediation Amy Deane Community Law & MediationRichella O’Regan Community Law & Mediation

Dr. Elaine Dewhurst University of ManchesterAlan Brady Trinity College DublinDr. Brenda Daly Dublin City UniversityDr. Padraic Kenna National University of Ireland, GalwayStuart Stamp National University of Ireland, Maynooth

Damien Peelo Executive Director COPD Support IrelandGrainne O’Toole Migrant Rights Centre IrelandJohn Cotter University WolverhamptonProf. Liam Thornton University College DublinMaria Antonieta Nestor Cambridge, UK

Susan. D. Bennett Washington College of Law, American UniversityScott L. Cummings UCLA School of LawProf. Shashikala Gurpur Simbiosis International University Pune, India

Fred P. Rooney International Center for Post-Graduate Development & Justice, Touro College & University, New York Maria Antonieta Nestor Cambridge, UK

Gender Equality

http://www.mattwhitbydesign.ie

http://www.communitylawandmediation.ie





Volume 5 Issue 2 Index

The Irish Community Development Law Journal

Introduction

Editorial 4 >View

Amy Deane and Richella O’Regan

Articles: Gender Equality

A Soft Law Approach to Tackle Gender Disparity on Ireland’s State Boards: A Potential Solution? 7 >View

Obianuju Chike-Anamdi

I am #Not a Vessel: The Impact of Grassroots Pro-choice Activism on Ireland’s UN Treaty Monitoring Body Examinations 25 >View

Grace Wilentz, Sinead Corcoran and Naomi Elster

Case Studies

A Review of the Sheehy Skeffington v National University of Ireland, Galway Decision and its impact on potential discrimination on the grounds of gender in respect of hiring and promotional opportunities in the workplace in Ireland 34 >View

Ciara O’ Grady

Mohan v Ireland (2016) IEHC 35 40 >View

Darragh Hayes-Moriarty

Instructions for Authors

Submission Guidelines 47 >View

Gender Equality


Editorial

Welcome to Volume 5 Issue 2 of the Irish Community Development Law Journal. The theme of this issue is gender equality. Equality is a fundamental right provided for in Article 40 of the Constitution of Ireland which states that all “citizens shall, as human persons, be held equal before the law”. Despite the prominence of various legal instruments aiming to protect equality on various grounds including gender, as well as much discourse on the concept of gender equality, there remains a distinction between what the law prescribes and what actually happens in society. It appears that in some instances the problem of gender equality remains exactly that. In fact, at the time of writing the United Nations (UN) has recently launched its 16 Days of Activism against Gender based Violence Campaign culminating on Human Rights Day on 10 December 2016.

This issue of the journal aims not only to add more discourse to the ongoing and ever burgeoning discussion around gender equality but to outline and emphasise the practical ways in which the law affecting gender can be challenged and influenced and improved. The resultant focus on case studies throughout the issue reinforces this message and all of the texts contained in this issue crucially address the practical and viable steps that can be taken to improve gender equality in Ireland and put forward various suggestions as to how this type of equality can be achieved.

The issue is opened by Obianuju Chike-Anamdi, Trinity College Dublin, who discusses the options for tackling the under-representation of women on State Boards in Ireland. The author examines in particular the efficacy of a soft-law approach as a way of tackling gender disparity on State Boards in Ireland and analyses the newly amended Code of Practice for the Governance of State Bodies which recommends a gender based consideration in the appointment of the members of State Boards. The potential for this Code of Practice to influence the actions in relation to private sector boards is also considered.

Ms Chike-Anamdi examines the various methods by which other jurisdictions have attempted to address gender imbalance on Boards and provides a detailed critique of the soft-law approach as a way of successfully addressing the gender imbalance in the composition of those Boards. She concludes by suggesting that the new Code of Practice might act as a catalyst for change but that it will require complementary measures in order to be fully effective.

The second article in this issue is co-authored by Grace Wilentz, Sinead Corcoran and Naomi Elster of the Abortion Rights Campaign (ARC). This piece argues the need for the repeal of the 8th Amendment of the Constitution and recounts the experience of the Abortion Rights Campaign in engaging in the law reform process in various international legal fora. The authors make use of case studies to show how their organisation participated in two reviews of Ireland’s human rights record by the UN bodies which monitor compliance with UN instruments.

Amy Deane & Richella O’ReganEditors at Community Law & MediationEmail: [email protected]

Editorial by Roslyn Palmer & Amy Deane, Community Law & Mediation


The article also demonstrates the influence this participation had in raising awareness around the subject.The text further highlights the ARC’s utilisation of first person testimonies in its submissions to UN committees thereby attempting to connect the concerns of women in the community in respect of their human rights to the institutions tasked with monitoring those rights. The article therefore represents a useful portrayal of the ultimate link between the needs of people in the community and the need for law reform in order to achieve gender equality.

Our case notes skilfully explain two recent decisions in the context of gender equality. The first note by Ciara O’ Grady, Attorney at Law (New York - Pending Admission), outlines the decision of the Equality Tribunal in Sheehy Skeffington v National University of Ireland, Galway in November 2014 which found NUIG to have discriminated against the complainant on the grounds of gender in its promotion processes. The note concludes by asserting that the impact of this decision is that it encourages and incentivises organisations to review their practices, policies and procedures at hiring and particularly promotional stages to ensure a level playing field for all.

Finally, our second case study by Darragh Hayes-Moriarty, University College Dublin, highlights the controversial issue of gender quotas within political parties and looks at the recent High Court decision of Mohan v Ireland (2016) IEHC 35 which looked at whether section 17 (4B) of the Electoral Act 1997 breached the plaintiff’s constitutional rights and whether the plaintiff had the standing to bring such an action. This case note succinctly highlights the issue of gender equality in political participation which has long been an area of concern to those seeking to achieve a gender balance in the sphere of public representation.

Editorial by Roslyn Palmer & Amy Deane, Community Law & Mediation

Articles:Gender Equality

The Irish Community Development Law Journal Vol.5 (2) [2016] 7Obianuju Chike-Anamdi - A Soft Law Approach to Tackle Gender Disparity on Ireland’s State Boards: A Potential Solution?

A Soft Law Approach to Tackle Gender Disparity on Ireland’s State Boards: A Potential Solution?

Abstract:The Government has responded to the issue of gender disparity on Ireland’s State boards by recommending a gender-based consideration in appointment on State boards. This development is significant as it is the first time the element of ‘gender’ is included in the Code of Practice for the Governance of State Bodies since the first edition in 1992. It therefore appears to be a positive step towards addressing a systemic issue that has existed for so long in the Irish society. The question however is how effective this soft law approach will be. On a global level, the experience of other countries relying on soft law to achieve the same objective does not portray an inspiring pathway for Ireland to follow. This article therefore seeks to analyse this inclusion in the Code of Practice and suggest how it may impact on gender representation on Ireland’s State Boards.

Keywords:State boards, soft law, gender quotas, gender diversity.

Obianuju Chike-AnamdiSchool of Law, Trinity College DublinEmail: [email protected]

Total word count: With endnotes: 9,277

Without endnotes: 7,218


1. IntroductionGender disparity in decision-making is not a recent phenomenon in Ireland.1 It has however received increased attention among policy makers within the last decade as a result of global developments and the economic crisis Ireland experienced during 2008/2009.2 The identification of a low representation of women on boards of State-sponsored bodies (State Boards) by the 1975 Progress report of the First Commission on the Status of Women in Ireland3 preceded and likely influenced a Government policy aimed at increasing the number of women on these boards. The Government policy of 1993 required a 40% minimum representation of women on Ireland’s State Boards.4 Over two decades later, in 2016, the proportion of women directors on Ireland’s State boards is yet to achieve the 40% target. In fact, the target has never been attained since the Government policy was introduced. The last comprehensive data on the composition of State boards in 2013 showed that women occupied about 36% of State board positions.5 The under-representation of women on State boards may be considered a systemic issue that needs to be urgently addressed in the interest of the Irish economy and society (see discussion below). It is possible that if the present practice under the Government policy is continued, the 40% minimum female representation will continue to be an elusive feature of Ireland’s State boards for many years to come.

Perhaps in response to the increased attention the issue of women on boards was receiving both locally through groups such as the National Women’s Council of Ireland (NWCI) and internationally, such as the European Commission, in 2016, the Code of Practice for the Governance of State Bodies which governs the corporate governance of State bodies was updated to now include a requirement that the level of diversity on boards including in terms of ‘gender’, be taken into consideration in the appointment of board members. The updated Code of Practice took effect from September 2016. This is the first time the issue of gender diversity is being recognised in the Irish Code of Practice since the first edition was introduced in 1992.6 It is expected that all State bodies comply with the requirements of the Code although some level of flexibility in applying the Code is permitted. A requirement of the Code may be adjusted to fit7 where the requirement cannot be adapted suitably by the State body as a result of a peculiar structure or purpose of the State body.8 The deviation from the Code should however be done following an agreement with the Minister/Parent Department and should be appropriately

1 Galligan Y. The Report of the Second Commission on the Status of Women’ (1993) 8(1) Irish Political Studies 125; Smyth A, ‘Women and Power in Ireland: Problems, Progress, Practice’ (1985) 8(4) Women’s Studies International Forum 255.

2 An investigative study into the Crisis identified a lack of gender diversity on Ireland’s company boards (including State-owned Enterprises) as a factor that suggested low corporate governance standards leading up to the Crisis. See Clancy P, O’Connor N and Dillon K, Mapping the Golden Circle (New Island: TASC, 2010) p. 24 (3.16).

3 Beere T, ‘Commission on the Status of Women: Progress Report’ (2003) 51 (1-2) Administration 253. The Report was originally published in 1975.

4 Department of Justice and Equality, Equality in Ireland: Women on State Boards (2014). Available at: http://www.genderequality.ie/en/GE/Pages/State_Boards Accessed 20/09/16.

5 ibid.

6 It was then referred to as “State Bodies Guidelines”.

7 This is only permissible where the adjustment includes another governance procedure that will achieve the requirement. See Department of Public Expenditure and Reform, Code of Practice for the Governance of State Bodies 2016 (Code of Practice 2016) ‘Compliance Requirements’ p.7.

8 Code of Practice 2016 (note 8 above), p.7.


documented with necessary explanations of deviation.9 The recognition of gender diversity in the Code of Practice 2016 does appear to be a step in the right direction given that gender-based appointments will now be considered a requirement of formal regulation and thus may attract greater commitment and compliance than was the case under the 1993 Government policy. It is however argued in this article that the optimism with the Code of Practice may not be fulfilled as the requirement lacks the necessary character needed to attract or compel compliance.

This article therefore analyses the inclusion of the ‘gender diversity’ requirement in the 2016 Code of Practice so as to identify if it could be the catalyst to change in female representation on Ireland’s State boards. While gender disparity is evident on boards across Ireland’s private and public sector,10 addressing the disparity on State agencies and State-owned Enterprises (SOEs) (which make up majority of the State bodies) is likely to be instrumental and influential in spurring private sector companies to also address the disparity on their boards.11 In addition, it could be suggested that the ownership/ control relationship between the State and State bodies will make change in this sector quicker. The important role of these State bodies in meeting both social and economic objectives through the efficient provision of public goods and services to the wider Irish society and therefore a need for high standards of corporate governance cannot also be ignored. In spite of a focus on Ireland’s State boards in this article, it is in no way the intention of the author to suggest that gender disparity on Ireland’s private sector company boards is of a lower significance. This article is inspired by the provisions of the Code of Practice in relation to gender diversity on State boards which became active in September 2016.

2. BackgroundWhile the last comprehensive data showing female representation on State boards as 36.2% it can be garnered from subsequent developments that the proportion of women on these boards is still within the same range as at the time of this article.12 Examples of State bodies include Bord Bia, Tourism Ireland, IDA Ireland (State Agencies); and Bord Gais (Ervia), ESB, Irish Water, Bord na Mona and Córas Iompair Éireann (CIÉ) (SOEs). A closer analysis of State board membership in 2016 however shows that this seemingly high figure of female representation does not reflect the entire boards as many State bodies still either have all-male boards or still have women in token representation.13 For example in 2016 while Dun Laoghaire Harbour Company and Shannon Foynes Port Company had no women on their boards, the Irish Aviation Authority and the National Asset Management Agency (NAMA) had two directors and one female director respectively. The Irish Aviation Authority was an eight member board while NAMA consisted of six directors. In addition, if the fact that the Government target of 40% minimum gender representation was introduced 25 years ago is taken into consideration, it becomes more apparent that this initiative has not been effective.

9 ibid, p.8.

10 See the Department of Justice and Equality, Towards Gender Parity in Decision-Making in Ireland (2013) p.61. Available at: http://www.justice.ie/en/JELR/FINALTowards%20Gender%20Parity.pdf/Files/FINALTowards%20Gender%20Parity.pdf Accessed 23/10/16.

11 This could be indicative of the State’s commitment towards gender equality which could be a strong influence in changing the existing culture of gender disparity in decision-making. Also, available data indicates that board memberships transcends across public and private sectors so we can expect board members on State boards where change has occurred to influence same on private sector boards where he or she is a member.

12 Pressure groups such as NCWI and IOD are still applying efforts towards achieving change.

13 Author’s Analysis.


Over the years following the introduction of the Government policy, subsequent Governments have reaffirmed the policy and target by expressing a commitment to achieve the 40% minimum representation. In 2002, all Ministers serving at the time committed to take necessary steps in addressing gender imbalances on boards where the target had not been achieved.14 The Department of Justice, Equality and Law Reform was given the responsibility of monitoring progress and reporting annually to Government.15 In 2005, an innovative approach was introduced with the Government now deciding that bodies tasked with the responsibility of nominating members for appointment to State boards be required to nominate both male and female candidates. In 2007, Ministers also committed to the requirement to nominate male and female candidates where it was their responsibility to nominate. In 2011, in its ‘Programme for the Government of National Recovery’ the then incoming Government promised to take steps to ensure that the 40% target was achieved on all State boards.16 In furthering this promise, the Government introduced the practice requiring all vacancies arising on State boards to be published publicly and to invite applications.17 This was aimed at making the appointment process more transparent and open so as to attract more female applicants who prior to now did not have knowledge of when vacancies arose or how appointments were made. Ministers were not however obliged to make a selection from those candidates that applied.18 In 2014 the Government further indicated a commitment to attaining the 40% minimum representation on all State boards when it announced plans to create a Talent Bank of available women for appointments.19 In 2016, as at the time of writing this article, the Talent Bank is yet to become operational. The 2014 Government Decision to ensure the target is achieved on all boards is also included in the 2014 Guidelines on Appointment to State boards. According to the Guideline, appointments to State boards should be made in line with the Government Decision.20

3. Why We Need More Women on Boards of Ireland’s State BodiesIn response to Ireland’s Economic Crisis of 2008/2009, an investigative report identified a relationship between the low level of gender diversity across company boards in Ireland including on boards of SOEs (State-owned Enterprises) and the economic downturn.21 The report suggested that corporate governance standards had broken down as a result of the dominance of one gender on these boards. All-male boards and boards dominated largely by men suggest that decision-making may have occurred in a substandard manner i.e. ‘Groupthink’, and thus detracted from a high standard of corporate governance.22

14 Department of Justice and Equality, Gender Equality in Ireland: Women on State Boards (2014). (Note 3 above).

15 ibid.

16 ibid.

17 ibid.

18 ibid.

19 Department of Justice and Equality, ‘Government Approves New Measures to Promote Gender Balance on State Boards’ (2014). Available at: http://www.justice.ie/en/JELR/Pages/PR14000203 Accessed 20/09/16.

20 Department of Public Expenditure and Reform, Guidelines on Appointments to State Boards (2014) Guideline 16.1.

21 Clancy et al (note 2 above) p. 24 (3.16).

22 ibid, Report Summary p.iv. See also Janis I., Groupthink: Psychological Studies and Policy Decisions and Fiascoes (Boston: Houghton Mifflin, 1982) for further reading on ‘Groupthink’ in group decision-making.


Irish society is made up of an almost equal share of male and female members. In 2016, the female population made up 50.04% of the Irish population.23 Women in Ireland are also more educationally advanced than their male counterparts with a 2014 report revealing that 53.6% of women in the age group of 25-34 have a third level education compared to 41.2% of men.24 Evidently, the talent resource that the women population could offer is being under-utilized and could be detrimental to the economy. The under-representation of women in decision-making positions also suggests a lack of democratic representation when more than half of the population is not adequately represented. It also indicates that decisions taken on these boards are likely not to have been made based on a robust consideration of issues from the perspective of all areas of the Irish society. Consequently, decisions and policies could be inappropriate.

The attention on the issue of gender parity on company boards at a global level is also persuasive and suggests that in order for the Irish economy to remain competitive, it is necessary to keep abreast with the changing dynamics of women’s presence on boards across countries.25 More particularly, the attention the issue is receiving within the European Union could be viewed as a source of pressure on the Irish State to seek change. The European Commission showed commitment in increasing the number of women directors on boards of large companies across the EU by proposing regulation to impose a 40% minimum representation of the under-represented gender on these boards.26 In 2016 however, the proposal is yet to receive the requisite approval. The European Parliament approved the proposal in 2015 but the approval from the European Union Council of Ministers is still required. The commitment of the European Commission has however served to awaken consciousness and elicit commitment through action across EU countries resulting in increased levels of women on boards in these countries.

4. The Code of Practice on the Governance of State Bodies 2016 and State Board Appointments in Terms of Gender

As stated earlier, a requirement for gender-based appointments was first included in the 2016 edition of the Code of Practice. The Code now contained the following requirements with regard to gender:

“The board should undertake a self-assessment annual evaluation of its own performance and that of the Board committees. Evaluation of the Board should consider the balance of skills, experience, independence, and knowledge of the State body on the Board, its diversity, including gender, how the Board works together as a unit, and other factors relevant to its effectiveness”.27

23 IndexMundi, Ireland Demographics Profile 2016. Available at: http://www.indexmundi.com/ireland/demographics_profile.html.Accessed 25/10/16.

24 Central Statistics Office, Measuring Ireland’s Progress 2014 (Education). Available at: http://www.cso.ie/en/releasesandpublications/ep/p-mip/mip2014/education/ed/#d.en.101127 Accessed 18/09/16.

25 Lee L, Marshall R, Rallis D and Moscardi M. Women on Boards: Global Trends in Gender Diversity on Corporate Boards (MSCI, 2015).

26 European Commission, Women on Boards: Commission Proposes 40% Objective (2012). Available at: http://ec.europa.eu/justice/newsroom/gender-equality/news/121114_en.htm Accessed 15/09/16.

27 Code of Practice 2016 (note 8 above) Chapter 4 (Principles).


“Appointments to State Boards should be made against objective criteria with due regard for the benefits of diversity on the Board. The Chairperson of the Board, in assisting the Department in drawing up the specification for the Board appointment should have due regard for the benefits of diversity on the Board including gender”.28

“Chairpersons... should actively seek to appoint candidates of the under-represented gender from the Public Appointment System short list where possible”.29

a. No Accompanying Sanctions

The Code of Practice stops short of providing for any consequences that may be incurred where the requirement of gender is not complied with. For instance, there is no provision for how a situation where a board is dominated by one gender or has all its members of one gender, will be addressed. The experience of other countries such as Spain and Norway in regulating to increase gender parity on corporate boards has shown that where the regulation is not backed up by severe sanctions, the level of compliance with the regulation is low.30 In fact, in several other countries including France and Norway, a similar soft law such as the Code of Practice was relied on initially but eventually these countries resorted to the use of hard law i.e. gender quotas that were accompanied with compelling sanctions.31 Another likely outcome of the lack of sanctions in the Code of Practice is a slow process of change. In this case, compliance with the requirement could occur but there will be no urgent obligation. This type of response is observable in countries like Finland and Australia where gender diversity on company boards is being regulated through Corporate Governance Codes.32

b. Lack of Specificity

This slow process to change will also be heightened by the fact that there are no accompanying specifics such as a target date or numerical target to the gender requirement in the Code of Practice 2016.33 This form in which the gender requirement is included illustrates significant characteristics of soft law that are considered major drawbacks to the effectiveness of a soft law approach,34 including as an instrument to increase the level of gender balance on company boards.

28 Code of Practice 2016, (note 8 above) Code Provision 4:4 (Diversity).

29 ibid.

30 See further details on the experience of Norway and Spain below.

31 See further discussion below. The issue of gender composition on boards had previously been regulated under Codes of Corporate Governance in both countries but the slow response to the Codes necessitated the need to address the issue through other result-oriented means. See Norwegian Shareholders Association, The Norwegian Code of Practice for Corporate Governance 2004, Provision 8, p.24; AFEP, Corporate Governance Code of Listed Corporations 2010, Provision 6.3.

32 See further discussion below.

33 While the 40% minimum gender representation is still active as included in the Guidelines on Appointment to State Boards 2014, the numerical target should have been included in the 2016 Code of Practice which is the formal regulatory instrument so as to indicate more emphasis. See Guidelines on Appointment to State Boards 2014 (note 16 above), Guideline 16.1 (a-f).

34 Aguilera R and Cuervo-Cazzurra A. ‘Codes of Good Governance’ (2009) 17(3) Corporate Governance: An International Review 7.


A lack of specificity is common with codes of corporate governance and aligns with the persuasive character of Codes.35

c. Director Tenure

The effectiveness of the 2016 Code of Practice in respect of gender-based appointments can only be assessed in subsequent appointment of directors to State boards. This can only occur where vacancies on these boards arise. Considering that the Code of Practice recommends and thus permits the appointment of directors for a maximum of 10 years or more in exceptional cases, it could be of detrimental impact on the frequency and number of vacancies arising;

“... it is recommended that no member of a State Board should serve more than two full terms of appointment on that Board... In this context, a full term is regarded as five years. It is recommended that the first appointment be for a period of five years which can be renewed for up to five years, to a maximum of ten years in total. If exceptionally it is decided that a Board member should serve a further additional Board term, this requires Ministerial approval”.36

Consequently, this would mean that it would take a longer time to actually achieve the aim of the requirement on gender based appointment which is to increase the number of women on boards. A lesser time frame will be more appropriate particularly for the purpose of refreshing the board and getting more women on the board. In Norway, company directors can be appointed for a maximum of four years to serve on boards.37 This provision obviously complemented the gender quota law and contributed to its impact on board composition within a short time frame.

5. An International Perspective on Hard Law and Soft Law Approach in Regulating Gender Diversity on Boards

The impact of regulation on the level of gender diversity on company boards in several countries has so far, to a great extent been determined by the type of regulation implemented. While company boards governed under a hard law approach i.e. legislative gender quotas as in Norway and France have shown unprecedented growth in gender balance within short periods of time, countries such as Australia and Finland are recording change at a slower pace. More distinctively, Ireland’s corporate boards which are governed by the UK Corporate Governance Code including its provisions on gender diversity on boards, are yet to show any significant female representation. Despite the requirement being included in the UK Code since 2010, in 2016, women occupied only 16% of board positions on Ireland’s large

35 Haskovec N. ‘Codes of Corporate Governance: A Review’ (2012) Working Paper, Millstein Center for Corporate Governance and Performance, p.12.

36 Code of Practice 2016 (note 8 above), Code Provision 4.5.

37 Norwegian Public Limited Liability Companies Act 1997 (including amendments as at June 2014) s. 6-6.


listed companies.38 As stated earlier, prior to introducing gender quotas, France and Norway sought unsuccessfully to increase gender balance on corporate boards through Corporate Governance Codes.

a. Hard law- Legislative Gender Quota

i. France

In France, quota legislation was introduced in 2011 through the Cope-Zimmerman Law and later reinforced in 2014 by the Gender Equality Law.39 The 2011 law which targeted listed companies and large companies,40 required a 20% representation of the under-represented gender on these boards by 2014 and an increased target of 40% to be achieved by 2017.41 According to the law, any director appointment made in non-compliance with the law will be considered invalid.42 Also, non-compliance with the law could be penalised with the withholding of directors’ fees while the contravention subsists.43 By 2012, the first target had been surpassed by the French boards with women directors occupying 22.3% of positions on the boards of large listed companies.44 It had recorded a significant 10% increase from its 12.3% in 2010.45 In 2016, female directors occupied 37% of board positions in France’s large listed companies.46

ii. Norway

Norway was the first country to record unprecedented success in increasing gender diversity on boards through quota legislation. In 2003, the Norwegian Public Limited Liability Law was amended to require a 40% representation of both genders on boards.47 The law targeted a wide range of companies including public limited companies and State-owned Enterprises (SOEs).48 The Norwegian law also included that failure of a company to achieve the target by the set date could ultimately attract the penalty of dissolution.49 Public limited liability companies were required to meet the target by 2008 while SOEs had an earlier target date of 2004.50 By 2009, all affected companies had achieved the set target for gender representation. In 2006 women occupied 21.8% of positions on boards of public limited liability

38 European Commission, Justice- Board Members. http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/business-finance/supervisory-board-board-directors/index_en.htm Accessed 23/10/16.

39 Miclet S., Molenda-Pruvost M. and Rodriguez L. Gender Balance Power Map: National Study France (Saint Denis, FACE, 2015) p.16. Available at: http://genderpowermap.eu/ressources_details/french-national-study Accessed 23/10/16.

40 ibid, p.17. Large companies referring to companies with 500 or more employees or have a turnover asset of €50m and above.

41 Miclet et al. (note 40 above) p.17.

42 ibid, p.18.

43 ibid.

44 European Commission, Women in Economic Decision-Making in the EU: Progress Report, p.9.

45 ibid, p.11.

46 European Commission, Justice- Board Members (note 39 above).

47 Norwegian Public Limited Liability Companies Act 1997 (note 38 above) s.6-11a.

48 ibid.

49 This sanction was not peculiar to the gender quota law but was applicable to contravention of the Companies Act. See Norwegian Public Limited Liability Companies Act 1997, s. 16-15 (1).

50 European Commission, Exchange of Good Practices on Gender Equality: Women in Economic Decision-Making (2012) p.4.


companies51 and by 2011 their representation had increased to 40.1%.52 In 2016, women hold 41.6% of these positions.53 Notably, the effect of the gender quota has been sustained over the years. It has been said that the harsh sanction of dissolution which non-compliant companies potentially faced may have elicited the high response to the law.54

b. Soft law- Codes of Corporate Governance

i. Australia

Australia’s Corporate Governance Code was amended in 2010 to include board gender diversity requirements for companies listed on Australia’s Stock Exchange (ASX).55 As is characteristic of soft law instruments, the requirement on gender diversity included no specific target to be achieved, no set date for achievement and no sanctions in the event of non-compliance. Consequently, response to the regulation has been uneven and slower in comparison to countries where gender quotas are being implemented. While Australia has also recorded significant improvement with regard to women on boards by increasing female representation on ASX 200 boards from 10.7% in 2010,56 to 23.4% as at June 2016,57 a number of boards still have a single female director or no female director. In 2016, 63 companies on the ASX 200 had a single female director on their board and 20 companies had no women on their boards.58 In response to the slow change that was occurring, the Australian Institute of Company Directors (AICD) introduced a 30% target in 2015 to be achieved by 2018.59 AICD’s response is an indication of the impact a numerical target and set date could have on achieving greater diversity within a short time. The impact is beginning to reflect across ASX 200 boards as the rate of female appointments to these boards rose above 40% in 2016, the highest recorded since 2010.60

ii. Finland

Finland also experiences a similar slow and uneven change in gender diversity across boards on the Helsinki Stock Exchange. Gender representation on listed company boards are governed by the Finnish Corporate Governance Code.61 As in Australia, the change seen so far with regard to female representation

51 Statistics Norway, Board and Management in Limited Companies, 1 January 2006. Available at: https://www.ssb.no/en/virksomheter-foretak-og-regnskap/statistikker/styre/aar/2006-01-31 Accessed 24/10/16.

52 Statistics Norway, Key Figures on Gender Equality (August 2016). Available at: http://ssb.no/en/befolkning/nokkeltall/key-figures-on-gender-equality. Accessed 25/10/16.

53 ibid.

54 Teigen M. Gender Quotas on Corporate Boards: On the Diffusion of a Distinct National Policy Reform’ in Engelstad F. and Teigen M. (eds) Firms, Boards and Gender Quotas: Comparative Perspectives (Emerald Group Publishing Limited, 2012) p.125.

55 ASX, Corporate Governance Principles and Recommendations with 2010 Amendments (2nd Edition) Recommendation 3.2-3.4.

56 Australian Institute of Company Directors (AICD), Statistics: Appointments to ASX 200 Boards (2016).

57 ibid.

58 Australian Institute of Company Directors, 30% by 2018: Gender Diversity Progress Report, March-May 2016 Quarterly Report, Volume 4, p. 3.

59 Australian Institute of Company Directors (AICD), 30% by 2018.

60 See AICD (note 57 above).

61 Securities Market Association, Finnish Corporate Governance Code 2015, Recommendation 8 & 9.


on these boards has taken a longer time to achieve when compared to that of companies under a quota regime in countries such as Norway and France. The element of gender in director appointments was first introduced in the Finnish Code in 2003. In 2003, women occupied only 7% of director seats on boards of listed companies and more than a decade later in 2016, women occupied 25% of these seats.62 Also, in 2015, 15 listed Finnish companies still had an all-male board.63

It would be erroneous to attribute the change in Australia and Finland to the impact of their Corporate Governance Codes because other factors that existed may have also influenced the change that occurred. In Australia for example, the Workplace Gender Equality Act was passed in 2012.64 The Act included a requirement for employers to report on the gender composition of their boards.65 Non-compliance with the Act could result in the company being non-eligible to receive contracts or other financial assistance from the State.66 A list of non-compliant companies is also published publicly.67 The obligation to report is expected to encourage companies to appoint more women so as not to be seen as not being committed to diversity/gender diversity. While the Act and the applicable sanctions do not appear severe and compelling enough (in comparison to Norway’s severe sanctions), it can be argued that the reputational damage non-compliance could cause to their companies is something they are not willing to incur. Several companies on ASX 200 reported on their compliance with the requirements of the Act.68 The level of female directors on boards of Finland’s listed companies is also significantly impacted by the high level of female directors on boards of State-owned companies. Boards of Finland’s State-owned companies are required by law to have ‘an equitable proportion of Women and men’.69 In 2004, the Finnish Government set a target of 40% women for the State’s board appointments.70 This includes wholly-owned State-owned companies and companies where the State has shareholding. In 2015 women accounted for 44% of all State-appointed board members. The State has shareholdings in the largest listed companies such as Finnair Plc, Fortum Corporation and Neste Corporation all of which have women occupying over 40% of positions on their boards. The proportion of female directors on boards of large listed companies accounts for a significant portion of the total women on boards of listed companies.71 It is therefore possible to argue that the State’s appointees on these boards influenced the general outcome of women on boards of listed companies. The presence of independent influential

62 See Finland Chamber of Commerce (FINNCHAM), Younger Women Advancing to C-Suite, The Fifth Women Directors and Executives Report 2015 p.9. See also, Linnainmaa Leena, A Record Number of Women Directors in Finnish Listed Companies (2016). Available at: http://kauppakamari.fi/en/2016/06/10/a-record-number-of-women-directors-in-finnish-listed-companies/ Accessed 24/10/16.

63 See FINNCHAM (note 63 above) p. 15.

64 The Workplace Gender Equality Act 2012 replaced the Equal Opportunity for Women in the Workplace Act 1999.

65 See Workplace Gender Equality Act 2012, Part IV, 13. See also Workplace Gender Equality Agency, Reporting Requirements (2016). Available at: https://www.wgea.gov.au/preparing-reporting/reporting-2016 Accessed 24/10/16.

66 Workplace Gender Equality Agency, Complying with the Act (2016). Available at: https://www.wgea.gov.au/about-legislation/complying-act Accessed 24/10/16.

67 Workplace Gender Equality Act 2012, Part IV, 19(D)(3).

68 Workplace Gender Equality Agency, Gender Equality in ASX 200 Organisations (2016) p.26. Available at: https://www.wgea.gov.au/sites/default/files/gender-equality-asx-200.pdf Accessed 24/10/16.

69 Ministry of Social Affairs and Health, The Act on Equality between Women and Men 2005 (Helsinki: Gender Equality Publication, 2005) p.11.

70 Prime Minister’s Office, Government Ownership Steering: Financial Annual Report 2015 (Helsinki: Finland, 2016) p.19.

71 See FINNCHAM (note 63 above) p.10.


factors could act as further proof of the drawbacks associated with the soft law approach through Codes of Corporate Governance. The experience of the UK also offers a relevant illustration with regard to the effectiveness of Codes with regard to improving gender diversity on boards.

iii. United Kingdom

In the UK, several initiatives occurred during the period when the number of women on FTSE 100 boards began to increase. It can be argued that a constellation of these different factors influenced the change on these company boards rather than the soft law approach through the Code of Corporate Governance. The proportion of women on FTSE 100 boards increased from 15.6% in 201072 to 31.4% in 2016.73 Female appointment to FTSE 100 boards began to increase significantly from 2012 and this increase can be argued to have occurred following the introduction of Lord Davies Review in 2011 and the Recommendations therefrom. In fact, Provisions in the 2012 UK Corporate Governance Code relating to appointments based on gender74 were strengthened following the recommendations of Lord Davies Review.75 Lord Davies was commissioned by the then UK Government to conduct a review of the situation on women on boards and make recommendations on how to address the low rate of women representation on FTSE boards and the slow pace of change.76 The review made ten recommendations that were mainly geared towards the participation of several relevant actors such as board chairmen and Executive search firms.77 It can be suggested that the review acted as a wake-up call as significant participation towards appointing more women on boards became noticeable after the review. For example, as a result of the Code’s ‘Recommendation 8’,78 a Voluntary Code of Conduct for Executive Search firms which included a means of addressing gender disparity on UK boards through the candidate search process was launched in 2011.79 In 2015, 86 firms were signed up to the Code.80 In addition, as stated earlier, a significant increase in female director appointments, from 13.3% in 2010 to 24.7% in 2012 occurred following Lord Davies Review.

While a definite correlation between the Review and the increase in appointment cannot be proven, the Review introduced an innovative approach which is likely to have influenced greater commitment on boards to increase the number of women on those boards. Lord Davies Review recommended a

72 Refers to non-executive directors. See Vinnicombe S, Sealy R, Graham J and Doldor E. The Female FTSE Board Report 2010: Opening Up the Appointment Process (Cranfield University School of Management, 2010) p. 8.

73 Figure as at June 2016 and refers to non-executive directors on boards. See Sealy R, Doldor E and Vinnicombe S. The Female FTSE Board Report 2016: Women on Boards, Taking Stock of Where We Are (Cranfield University School Of Management, 2016) p.19.

74 Financial Reporting Council, UK Corporate Governance Code 2012, B.2.4; B.6 (Supporting Principle).

75 See Lord Davies, Women on Boards 2011 (Department for Business, Innovation and Skills, 2011) Recommendations 3, 4, 5.

76 ibid p.6.

77 ibid p.4.

78 Lord Davies (note 76 above).

79 Department for Business, Innovation and Skills, Standard Voluntary Code of Conduct: Executive Search Firms. Available at: https://www.gov.uk/government/publications/standard-voluntary-code-of-conduct-executive-search-firms Accessed 25/10/16.

80 Department of Business, Innovation and Skill, Women on Boards: Executive Search Firms Signed up to the Code of Conduct (2015). Available at: https://www.gov.uk/government/publications/women-on-boards-executive-search-firms-signed-up-to-the-code-of-conduct Accessed 25/10/16.


minimum of 25% female representation on FTSE 100 boards by 2015.81 By the end of 2015, FTSE 100 boards had achieved the 25% minimum target set.82 The inclusion of a numerical target and target date is likely to have had the impact of eliciting greater compliance from boards in a conscious effort to achieve the target by the date so as to create the right reputation and garner legitimacy from shareholders and the public. This is a further illustration to the usefulness of a numerical target and a target date. Lord Davies Review also re-emphasised the Government’s threat to impose a legislative quota where a voluntary approach failed to bring about the necessary change.83 An imposition of a legislative quota implies that the autonomy of businesses would be undermined and thus could also have served to elicit higher commitment from them in appointing more women. The impact of the UK Corporate Governance Code evidently pales in the light of the activities of the Review and therefore attributing the change in the UK to the Code could be erroneous. Efforts in the UK to increase the level of women on boards also include a legislative element which imposes reporting obligations on companies. In 2013 a requirement for a Strategic Report was introduced into the UK Companies Act 2006. The Report, which replaced the Business Review requirement was to include a report on “the number of persons of each sex who were directors of the company” in their organisation.84

iv. Spain

The experience of Spain under a legislative quota regime offers a strong illustration on the significant impact the weight of accompanying sanctions could have on regulatory outcome. Despite the passing of a gender quota law in 2007 by the Spanish Parliament, in 2016 women occupied only 20% of director positions on boards of Spain’s listed companies.85 Prior to the passing of the law, in 2006 women directors occupied only 4% of board positions.86 The law recommends that public limited companies with 250 or more employees have a minimum of 40% representation of both genders on their boards by 2015.87 The law has no accompanying sanctions in the event of non-compliance. Rather, it includes an incentive for those who comply with the law. The Spanish law provides that companies that apply gender equality policies may receive favourable treatment in terms of award of State contracts and grants.88 While women’s participation has increased following the law, the numerical target was not achieved by the set date. The time frame within which change is occurring is also significantly dissimilar to what has occurred in Norway and France where targets were achieved within short periods. The likely reason for this dissimilarity can be as a result of the design of the Spanish gender quota law which significantly differs from the Norwegian and French laws as it lacks the element of a compelling sanction in the

81 ibid, Recommendation 1.

82 Lord Davies, Women on Boards Davies Review: Five Year Summary October 2015, p.6. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/482059/BIS-15-585-women-on-boards-davies-review-5-year-summary-october-2015.pdf Accessed 20/10/16.

83 Lord Davies (note 76 above) p.2.

84 The Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013, Chapter 4A, 414C (8)(c)(i).

85 Position as at April 2016. See European Commission, Justice: Board Members (2016). (note 39 above).

86 European Women’s Lobby, Women on Boards in Europe from a Snail’s Pace to a Giant Leap? EWL Report on Progress, Gaps and Good Practice’ (2012) p.13. Available at: http://www.womenlobby.org/Women-on-Boards-in-Europe-From-a-Snail-s-Pace-to-a-Giant-Leap-2012 Accessed 20/10/16. See also Conde-Ruiz J and Hoya C. ‘Gender (in) Equality Act and Large Spanish Corporations’ (2015). Available at: http://documentos.fedea.net/pubs/fpp/2015/02/FPP2015-03.pdf Accessed 24/10/16.

87 Act 3/2007 of 22 March for Effective Equality between Women and Men.

88 Act 3/2007 of 22 March for Effective Equality between Women and Men Art. 34 & 35. See also Art. 50(2)-(5).


event that the target is not achieved. Evidently, the incentive for the award of State contracts was not influential enough to attract higher level of compliance as a harsh sanction would.

6. Lessons to be learned from International PracticeThe discussion above highlights certain drawbacks to a soft law approach such as the Code of Practice. It is pertinent that the experience of other countries is taken into consideration in applying the most appropriate regulatory regime to successfully address gender disparity on Ireland’s State boards.

It is evident from the discussion above on international perspectives that effective monitoring could be a useful resource in avoiding some of the drawbacks of the soft law approach. The flexibility in the soft law application makes monitoring a necessary element in order to ensure that the recommendations of codes are adhered to as practicably as is possible and flexibility of Codes not abused. A ‘Comply or Explain’ element that is a common characteristic of Codes of Corporate Governance affords companies an exercise of their discretion in complying with recommendations or choosing to explain any non-compliance.89 However, the ‘Comply or explain’ principle poses the greatest threat to the effectiveness of Codes of Corporate Governance and in fact undermines their objective.90 It affords an avenue through which the Code’s provisions can be avoided.

While monitoring is also a necessity to ensure the effectiveness of Ireland’s Code of Practice, a higher standard of monitoring will be a more useful resource given the unique corporate governance structure in SOEs. Also, the ‘comply or explain’ approach used in the Code of practice which is slightly different from the regular approach, indicates that even where a particular provision is not complied with, the objective of the provision should still be achieved through other suitable governance measures.91 It doesn’t therefore exclude them completely from attaining the objective. This suggests that there may be a variety of measures put forward by State bodies in complying with the gender-based objective for which monitoring of all those measures will be pertinent. The variety in measures is however also likely to pose significant challenges for effective monitoring in terms of having a uniform standard against which compliance can be measured.

A higher standard of monitoring is also useful because of the vesting of ownership and control rights in a single group/entity i.e. the State, which suggests that there might be a conflict of interest in the monitoring of the board.92 In a traditional company arrangement, a separation of ownership and control is recommended and in fact imperative given that both groups seek different forms of benefit from the company. While owners i.e. shareholders are mostly interested in long term returns and sustenance of the company, the controllers i.e. CEO and executives allegedly focus on immediate returns such as

89 RiskMetrics Group, Study on Monitoring and Enforcement Practices in Corporate Governance in Member States (2009) p.11. Available at: http://ec.europa.eu/internal_market/company/docs/ecgforum/studies/comply-or-explain-090923_en.pdf

Accessed 25/10/16.

90 ibid, p.79.

91 Code of Practice 2016 (note 8 above), p.8.

92 See Jensen M and Meckling W ‘Theory of the Firm: Managerial Behaviour, Agency Costs and Ownership Structure’ (1976) 3(4) Journal of Financial Economics 305; Fama E and Jensen M ‘Separation of Ownership and Control’ (1983) 26 (2) Journal of Law and Economics 301, for further reading.


salaries and performance bonuses.93 Evidently, both groups are likely to steer the company’s strategies through different paths. In the case of SOEs, this implies that the State being the owner and controller will battle with both interests of receiving immediate returns for their investment in SOEs and the need to preserve the SOE as an economic asset of the State and society in the long term. The challenge of balancing both interests is likely to lead to a compromise of the required monitoring standards as the State may feel that a high standard of monitoring could jeopardise the focus of the SOE in meeting the State’s objective.

While SOEs/agencies are instruments of social and economic objectives of the State, it is observable that the 2016 Code of Practice does not place enough emphasis on the social and economic values that could be had from more gender diverse boards such as improved corporate performance and democratic governance. Even though research has repeatedly shown that gender diverse boards could positively impact on the bottom line of companies,94 the limited way in which the requirement of gender based appointments is included in the 2016 Code of Practice suggests that the State may not view gender diversity as instrumental to improved economic performance. This further goes to suggest that the standard of monitoring required in order that the requirement for gender based appointments is complied with may be overlooked in favour of monitoring other requirements that directly enhance economic performance. A perceived absence of effective monitoring is likely to discourage those participating agents such as PAS, Ministers and Chairmen from responding to the regulation. The passive nature of the law could also discourage women from applying for board vacancies as they will believe that the regulation brings no change to old practice were women were not prioritized for board positions where they were underrepresented.

It is however doubtful if monitoring of compliance with the gender based appointment requirement can be carried out effectively and adequately given that the requirement does not include any numerical target or date against which compliance can be measured.

7. A Legislative Gender Quota Then?Given that effective monitoring may be a challenge in the State-State board arrangement, will greater success be more likely under a hard law regime through a legislative gender quota? Evidently countries like Norway, France and Italy have been successful and so it could be a useful and potential consideration for Ireland. However, the success that is more likely to be achieved notwithstanding, a legally based regime could bring about significant adverse effects that could undermine whatever success is achieved.

Despite their effectiveness in increasing female board representation, legislative gender quotas have attracted several criticisms thus making quotas consistent with the description of a double-edged sword. While they are useful for ensuring parity on boards, gender quotas may also be viewed as undercutting

93 This may not always be the case as some shareholders could also be short term investors seeking to make a quick profit on the value of their stock and also some CEOs and executives could be more invested in a company than for just salaries and bonuses.

94 See for example Campbell K and Minguez-Vera A. ‘Gender Diversity in the Boardroom and Firm Financial Performance’ (2008) 83 Journal of Business Ethics 435; Francoeur C, Labelle R and Sinclair-Desgagné B. ‘Gender Diversity in Corporate Governance and Top Management’ (2008) 81 Journal of Business Ethics 83; Bear S, Rahman N and Post C ‘The Impact of Board Diversity and Gender Composition on Corporate Social Responsibility and Firm Reputation’ (2010) 97 Journal of Business Ethics 207.


the democratic/autonomous process by which board members are elected/appointed.95 This argument is however inconsistent with the corporate governance arrangement on State boards whereby directors are ultimately appointed by the State/Minister. Other criticisms consistent with State bodies include that gender quota laws could elicit a hostile reaction from other board members not appointed through a quota towards those so appointed. Such hostility is likely to influence board practice and may lead to women so appointed being marginalized from board discussions and thus not being able to add value to board discussions.96 In the same vein, a lack of self-confidence could also emanate from the women so appointed as it could suggest that they lack merit and necessary capabilities to be on the board. A similar perception was echoed regarding Ireland’s political gender quota. In opposition to the law, Mary O’Rourke, a former Minister, was of the view that “a person should be picked to go forward as a candidate based on their merit and their potential, not on their gender”.97 It could also be the case that women will resist the stereotype that comes with being appointed under a quota system and make themselves unavailable for appointments in which case there would be fewer women available to meet up with the quota target. A situation of fewer available women is likely to result in the phenomena of ‘Golden Skirts’ which occurred in Norway after the quota law was implemented where a limited number of women were appointed to several board positions.98 Both outcomes i.e. ‘Golden Skirts’ and hostility on boards are illustrative of a negation of the objective/spirit of the gender quota law which is primarily aimed at achieving greater numerical and substantive gender representation on boards.99 The ‘Golden Skirt’ syndrome undercuts the objective of greater numerical representation while a hostile board environment prevents appointed women from substantive participation on boards.

The experience of Norway under a gender quota law regime does however disprove some of the criticisms particularly in respect of the impact on the quality of board practices.100 Taking the theory of ‘critical mass’ into consideration, it can be contended that women who are appointed based on quotas could draw strength from their numbers on the board and may not be prone to feeling marginalized or less confident. In fact, evidence from Norway relays that those boards with sub-optimal corporate governance arrangements prior to the law, benefited from the increased monitoring that occurred

95 Teigen M, ‘Gender Quotas on Corporate Boards’ in Niskanen K (ed) Gender and Power in the Nordic Countries (Oslo: Nikk Publications, 2011) p.107.

96 Quotas generally tend to reinforce negative stereotypes about women’s capacities in decision-making and could elicit negative feeling in women. See Von Bergen, C., Soper, B. and Foster, T. ‘Unintended Negative Effects of Diversity Management’ (2002) 31(2) Public Personnel Management 242. See also Huse M and Solberg M ‘Gender Related Boardroom Dynamics: How Women Make and Can Make Contributions on Corporate Boards’ (2006) 21(2) Women in Management Review 113; Nielsen, S. and Huse, M. ‘Women Directors’ Contribution to Board Decision-Making and Strategic Involvement: The Role of Equality Perception’ (2010) 7 European Management Review 16.

97 Suzanne Collins & Mary O’Rourke ‘Debate: Should There be Gender Quotas in Politics’? (2015) Available at: http://www.independent.ie/irish-news/politics/debate-should-there-be-gender-quotas-in-politics-34201698.html Accessed 24/10/16.

98 Seierstad, C. and Opsahl, T. ‘For the Few not the Many? The Effect of Affirmative Action on Presence, Prominence and Social Capital of Women Directors in Norway’ (2011) 27(1) Scandinavian Journal of Management 44; Huse, M. ‘The Golden Skirts’: Lessons from Norway about Women on Corporate Boards of Directors’ in Groschl, S. and Takagi, J. (Eds) Diversity Quotas, Diverse Perspectives: The Case of Gender (Surrey, England: Gower Publishing Limited, 2012) p.19.

99 Seierstad and Opsahl (note 99 above) p.44.

100 Matsa, D. and Miller, A. ‘A Female Style in Corporate Leadership? Evidence from Quotas (2012) 5(3) American Economic Journal: Applied Economics 136; Seierstad, C. ‘Gender Quotas on Corporate Boards in Norway, Necessary But Not Ideal’ in Machold, S., Huse, M., Hansen, K. and Brogi, M. Getting Women on to Corporate Boards: A Snowball Starting in Norway (Cheltenham, UK: Edward Elgar, 2013) p. 142-144.


as a result of more female directors being included on boards.101 Such lack of confidence is likely to occur more when women are present in token numbers, a situation more likely where no specific target numbers are applicable by law.

Interestingly, the ‘Golden Skirts’ criticisms in Norway were not that widely spread nor did they go on for long after the quota took effect. What this indicates is that such an outcome could have been a short term effect given the short time frame within which the target was to be met. Given the short period of implementation of the law (2003-2008), the emergence of ‘Golden Skirts’ could have been as a result of limited time to carry out more extensive search for available women. Significantly, the emergence of ‘Golden Skirts’ in Norway did not lead to less qualified boards. While it has been argued that the monitoring role of directors holding multiple- directorships could be compromised given their busy schedule,102 and a conflict of interest could arise,103 multi-directorships are not always a negative outcome and can also be beneficial to the board in performing its tasks. Fama and Jensen suggest that multiple-directorships can be useful in developing the director’s reputation and knowledge that would enhance the director’s monitoring capabilities.104 Although it may not necessarily augur well in the interest of corporate governance for Ireland’s State boards if ‘Golden Skirts’ emerge as a consequence of a quota law, it can be argued that female directors could use such opportunities to expand their knowledge and experience in board role functions. Multiple-directorships could also benefit the boards in terms of creating linkages with other companies and thus increasing information availability to the company.105 Nevertheless, the ‘Golden Skirt’ syndrome needs to be consciously avoided under a similar gender quota law so as to avoid creating the same phenomenon the law would seek to avoid. Ireland’s Code of Practice recognises that multi-directorship could compromise corporate governance standards and thus recommends that “no member of a State board…should hold appointments to more than two State Boards at the same time…”106 A similar provision may also be expressly included in a quota law as it would serve to prevent ‘Golden Skirts’ even in the short term.

101 Nyagaard, K. ‘Forced Board Changes: Evidence from Norway’ 24th Australasian Finance and Banking Conference 2011 Paper. p.19.

102 Fitch, E. and Shivdasani, A. ‘Are Busy Boards Effective Monitors?’ (2006) 61 (2) Journal of Finance 689.

103 It is a company law practice to demand that directors declare/disclose certain interests that may influence the director in the discharge of his/her role. There is a similar requirement for Ireland’s SOEs. See Department of Finance, Code of Practice for the Governance of State Bodies 2016, provision 5.6; Ethics in Public Office Act 1995, s.17(1) and Standards in Public Service Act 2001, s.6.

104 Fama, E. and Jensen, M. ‘The Separation of Ownership and Control’ (1983) 26(2) Journal of Law and Economics 301.

105 Hillman, A., Cannella, A. and Paetzold, R. ‘The Resource Dependence Role of Corporate Directors: Strategic Adaptation of Board Composition in Response to Environmental Change’ (2002) 37(2) Journal of Management Studies 235.

106 Department of Finance, Code of Practice for the Governance of State Bodies 2016, provision 4.5.


Conclusive RemarksA gender-based factor in appointments to State boards has now gained regulatory recognition in Ireland. While this is a significant and potentially positive step towards achieving gender parity on these boards, the regulatory approach is lacking in the necessary form that will ensure its instrumentality in achieving its purpose. It appears that the makers of the regulation i.e. the State, did not consider its fitness for purpose before it was introduced. However there is still a lot to be done. The State has adopted (verbatim) the same provision from the UK Corporate Governance Code to apply to State bodies in Ireland but has failed to adapt it to fit purpose. An important consideration is that the UK Code provision applies to companies listed on the Stock Exchange, i.e. FTSE 350 while the Irish Code of Practice is applicable to State bodies that are not publicly listed. The perception and accountability of both types of companies in terms of reputational risk is different and thus their response to regulation will vary. Another consideration that the State may have failed to take into consideration is the fact that other robust measures such as Lord Davies Review were also instrumental to the UK’s success and thus an adoption of the UK Code provision is not likely to influence change in Ireland.

Globally, the soft law approach has also not been successful in achieving change in the short term. The experience of other countries as discussed above also reveals that other significant measures that import elements of a legislative quota such as numerical targets in to a soft law regime have strongly influenced companies in complying with regulation. The inclusion of a gender-based consideration for appointments on State boards is not likely to cause any significant change to the existing practice because it lacks the necessary force to compel any greater level of compliance. The experience of Norway and France show that strong sanctions are needed if Ireland is to experience faster growth. The argument that greater compliance may be expected from State boards given the position of influence the State has over them may not hold much validity because a perception of a lack of commitment or political will can act to deter those who may have complied.

While it can be concluded that a hard law approach produces more positive outcome at least in terms of a shorter time frame, it cannot be overlooked that both approaches present positives and negatives. Producing results in a short time frame could be indicative that the spirit of the law is undermined suggesting that women are included on boards just to fulfil targets. On the other hand, achieving same result in a longer time frame may be indicative of a culture change where women are now being recognized on merit and appointed on boards in recognition of their value. The decision on the regulatory approach will ultimately be determined based on these.

It will also be useful for the State to consider a solution that is a fusion of both regulatory approaches in regulating gender diversity on State boards. Such a model will infuse certain useful characteristics of both approaches that will produce the desired result. This may include importing an element of strong sanctions and including numerical targets and target date. The target date could however be staggered so as to allow for more time and also strong sanctions become applicable as a final and unavoidable resort. The benefit of such an approach will be an avoidance of certain drawbacks associated with both approaches and also avoidance of attracting hostility and unpopularity of the law. The introduction of a totally new form of regulating State boards could be resisted through ‘creative compliance’ whereby only the wordings of the law are complied with rather than the spirit.


In conclusion, a reliance on the Code of Practice 2016 will require other complementary measures in order to make it effective. It is therefore in line to proffer that the Code of Practice 2016 is not ‘fit for purpose’ as it is, to address the issue of gender disparity on Ireland’s State boards. A total shift to a hard law approach through a gender quota law will depend on the State’s vision for change in this regard. From a global perspective however, an abridged form of regulation or a hard law approach will more likely provide the solution of increased gender diversity on Ireland’s State boards.

As a complement to this article, further research should identify which of the above regulatory proposals can be adopted to suit Ireland’s private sector. It should be borne in mind that a uniform regulatory approach for both sectors will require consistency and commitment. It should also suggest a sustainable system through which change can be brought about in Ireland.

The Irish Community Development Law Journal Vol.5 (2) [2016] 25Grace Wilentz, Sinead Corcoran and Naomi Elster - I am #Not a Vessel

I am #Not a Vessel: The Impact of Grassroots Pro-choice Activism on Ireland’s UN Treaty Monitoring Body Examinations.

Abstract:Repeal of the 8th Amendment, and establishment of a framework for accessing abortion services that meets human rights standards and norms, are necessary steps towards achieving full gender equality in Ireland. Expert UN committees, charged with interpreting international human rights instruments, are clear on this point. In recent years, these UN Treaty Monitoring Bodies have issued concluding observations and recommendations to Ireland, condemning its restrictive abortion laws and calling for change. This is in part the result of a groundswell of support among both established and new civil society and community groups in calling for repeal of the 8th Amendment and expanded access to abortion.

With regional groups across the country, the Abortion Rights Campaign (ARC) plays a key role in this movement. ARC has not only been a part of advocacy efforts to bring the issue of restricted abortion access to the attention of UN Committees, it has also sought to shape the way this advocacy is done by bringing community activists and the voices of rights holders into dialogue with high-level UN treaty monitoring processes. This paper will explore some of the ways ARC has worked to bridge the advocacy at the community and international levels, while also analysing the outcomes of these international reviews, particularly in terms of their significance for community activists and advocates. The article concludes with recommendations for law reform, acknowledging that along with medical best practice and addressing the reduction of social stigma, legal reform is one part of the integrated approach needed to ensure access to abortion services that can effectively realise the rights of all women and girls.

Keywords:Repeal of the 8th amendment, community advocacy, UN committees, international reviews.

Grace Wilentz, Sinead Corcoran & Naomi ElsterThe Abortion Rights CampaignEmail: [email protected]

Total word count: With endnotes: 4,235

Without endnotes: 3,845


About the Abortion Rights CampaignThe Abortion Rights Campaign (ARC) is a movement for choice and change in Ireland. The Campaign calls for access to ‘free, safe and legal’ abortion on the island of Ireland. In order to realise this vision, ARC asserts that the state must provide abortion services that are free of all social, legal or policy barriers that might unfairly hinder access; that prioritise physical and mental health, safety and full and informed consent of the pregnant person; and finally that are a legally enforceable entitlement protected by law.

ARC trusts women and girls1 to make their own reproductive decisions, and more than a decade of opinion polls suggest that the majority of people in Ireland agree.2 Opinion polls over the last twelve years consistently show the majority of people in Ireland want to repeal the 8th Amendment and expand access to abortion, with between 63 % and 87 % of people in support.3 4Successive opinion polls have demonstrated that on the issue of abortion, people in Ireland are ready to repeal and legislate while their political leaders postpone meaningfully addressing the issue. It is time for the prevailing media discourse to move beyond the myth that Irish society is divided on this issue.

Since its start in 2012, the campaign has sought to give voice and visibility to those who feel expanded abortion access is urgently needed. ARC’s annual flagship event is the March for Choice, which brings tens of thousands of people onto the streets to urge the government to take action towards expanding access to abortion. ARC also engages in a range of other activities and projects that aim to proactively shape a society that respects the bodies and choices of all people. This includes organising speak outs where women can talk about their experiences of accessing abortion in a safe and supportive environment, providing capacity-building trainings to regional groups, busting myths about abortion and raising public awareness of evidence and lived experiences, and by bringing the perspectives of women and girls in Ireland who have needed abortions to the attention of Dáil Eireann, the European Parliament and international UN bodies.

Abortion as prerequisite for gender equalityARC understands the importance of ensuring abortion access as essential to achieving gender equality. When abortion access is restricted, women and girls cannot decide freely about whether or when to become pregnant or give birth. When abortion is made inaccessible, this can negatively impact mental

1 ARC works for rights for anyone who may become pregnant and need access to abortion services no matter their gender.

2 Amnesty International Ireland, ‘Amnesty International/Red C Poll Reveals Irish Public Want Expanded Access To Abortion To Be A Political Priority For Incoming Government - Amnesty International Ireland’ (Amnesty International Ireland, 2016)

https://www.amnesty.ie/latest/news/2016/03/04/amnesty-internationalred-c-poll-reveals-irish-public-want-expanded-access-abortion-political-priority-incoming-government/ accessed 11 October 2016

3 Irish Family Planning Association, ‘Abortion in Ireland, Public Opinion’ https://www.ifpa.ie/Hot-Topics/Abortion/Public-Opinion (accessed 14 November 2016); H. O’Connell, ‘Poll finds 64 per cent support at least legislating for X Case’, The Journal, 10 January, 2013, http://www.thejournal.ie/abortion-support-poll-red-c-paddy-power-748560-Jan2013/ (accessed 14 November 2016); Amnesty International Ireland, ‘Amnesty International/Red C Poll Reveals Irish Public Want Expanded Access To Abortion To Be A Political Priority For Incoming Government - Amnesty International Ireland’ (Amnesty International Ireland, 2016)

https://www.amnesty.ie/latest/news/2016/03/04/amnesty-internationalred-c-poll-reveals-irish-public-want-expanded-access-abortion-political-priority-incoming-government/ accessed 11 October 2016

4 S. Collins, ‘‘Irish Times’ poll: Majority want repeal of Eighth Amendment’, The Irish Times Online, 7 October 2016, http://www.irishtimes.com/news/social-affairs/irish-times-poll-majority-want-repeal-of-eighth-amendment-1.2819814

(accessed 14 November 2016).


and physical health and create barriers to accessing education, employment, and to the pursuit of goals and the determination of one’s own course in life, among other rights fundamental to enjoying equal citizenship in society. ARC believes that women and girls in Ireland are denied full bodily autonomy, that is, to have control over their bodies and health without undue and unfair interference by the state.

Abortion is a reality in Ireland. According to the UK Department of Health and the HSE’s Crisis Pregnancy Programme, over 160,000 abortions that took place in England and the Netherlands since 1980 were performed on women who gave Irish addresses. 5 This figure averages to nearly 12 women a day who leave Ireland to access safe and legal abortion services in other countries. Additionally, in 2014, 1,017 abortion pills were seized and it is unknown how many have been successfully imported by people forced to self-administer in isolation and secrecy because of the criminal penalties facing any woman or girl who accesses an illegal abortion. This exodus abroad to access healthcare puts the full financial and emotional burden on the people who need access to services. It also sets up a two-tiered system whereby those who are privileged can circumvent the law by travelling, while those who cannot travel because they lack the funds or face visa restrictions are denied choices over their bodies and lives.

During periodic reviews of Ireland’s human rights record, multiple UN Treaty Monitoring Bodies have condemned Ireland’s restrictive abortion regime, calling on the State to take all steps necessary to review and revise its laws and Constitution.6 ARC, by participating in these reviews, has contributed to processes which have focused international attention on the ways Ireland’s abortion laws violate human rights, while also helping to shape how the right of women and girls to access abortion services is understood in the context of international human rights law itself.

Ireland’s review under the International Covenant on Civil and Political RightsARC’s engagement with human rights treaty monitoring body reporting and advocacy began in 2014 when ARC’s Policy and Advocacy Team drafted a submission to the UN Human Rights Committee during the Irish State’s examination by the Committee under the International Covenant on Civil and Political Rights (ICCPR). Responding to the List of Issues presented to the Irish State by the UN Human Rights Committee, ARC argued that Irish law was in violation of Articles 6 (right to life), 7 (right to be free from cruel, inhuman and degrading treatment) and 26 (right to be free of discrimination) of the International Covenant on Civil and Political Rights.

The re-criminalisation of abortion in almost all circumstances and potential-14 year prison sentence under the Protection of Life During Pregnancy Act 2013 reinstated dangerous, archaic, and unnecessary legal provisions criminalising abortion, directly contravening human rights norms. The fact that the State allows women to travel to access abortion services while maintaining criminalisation in Ireland surmounts to discrimination against women who are unable to travel due to their migration or health status, their disability, socio economic circumstances or other factors. Finally and perhaps most importantly, ARC

5 ‘Abortion In Ireland: Statistics | Irish Family Planning Association’ (Ifpa.ie, 2016) https://www.ifpa.ie/Hot-Topics/Abortion/Statistics accessed 11 October 2016.

6 UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Ireland, 19 August 2014, CCPR/C/IRL/CO/4; UN Committee on Economic, Social and Cultural Rights, Concluding Observations on the Third Periodic Report of Ireland, 8 July 2015, E/C.12/IRL/CO/3; UN Committee on the Rights of the Child, Concluding Observations of the combined third and fourth reports of Ireland, 1 March 2016, CRC/C/IRL/CO/3-4.


highlighted that the State repeatedly referenced the 8th Amendment as the reason it could not expand abortion access; while simultaneously neglecting to mention that the State itself may call a referendum to remove the Amendment. This revealed that the State had no intention of acting in good faith and responding to the content of the recommendations of the Human Rights Committee to “bring its abortion laws into line with the Covenant .”7

ARC joined a number of other civil society groups engaging in the reporting process, which was supported by the Irish Council for Civil Liberties who coordinated the engagement of non-governmental organisations. Two ARC representatives travelled to Geneva to attend the Irish State examination, to engage in in-person advocacy and to address the UN Human Rights Committee. Due to the number of civil society organisations advocating for reproductive rights, a joint statement was drafted and an ARC delegate was selected to deliver the statement to the Committee.

The Committee’s response on the issue of abortion was unequivocal. The State faced questioning and criticism from several Committee members on the lack of action to broaden abortion access. Most notably, the Committee Chair Sir Nigel Rodley stated in his closing remarks that Irish law treated women who were raped as “a vessel and nothing more”.8 ARC’s media team immediately coined the #notavessel hashtag that went viral on Twitter within hours. The hashtag quickly became a unifying rallying call as women all over the world tweeted photos of themselves with a caption of #notavassel. In the days and weeks following the hearings, media at home and abroad reported on the Irish State’s unquestionable violation of the ICCPR, furthering national and international pressure for action.

The following August, the UN Human Rights Committee issued its concluding remarks and recommendations. They made several recommendations on abortion policy including most notably that the State should “[r]evise its legislation on abortion, including its Constitution, to provide for additional exceptions in cases of rape, incest, serious risks to the health of the mother, or fatal foetal abnormality.”9

Although the concluding observations of treaty monitoring bodies lack ‘teeth’ to be able to enforce recommendations, the resulting media coverage, societal pressure and international condemnation greatly advanced the public and political debate. ARC’s first engagement in the reporting process of treaty monitoring bodies also proved to be invaluable for the campaign. We found that with the support of partner NGOs and our members’ knowledge of international human rights law, that these processes are navigable. We were able to secure a seat at a well-respected international legal forum to represent the voices of rights holders in Ireland. The State was forced to answer questions that it had spent decades avoiding.

Finally, ARC’s ability to mobilise via social media on the back of Committee comments allowed us to spread the message far and wide, informing and engaging audiences that may not have otherwise heard about the results of a human rights examination. Committee Chairperson Nigel Rodley’s comments made their way across social media and also into the context of demonstrations where women held placards

7 UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Ireland, 30 July 2008, CCPR/C/IRL/CO/3.

8 RTÉ News ‘UN Human Rights Committee Chairman says Irish law treats raped women as a ‘vessel’, 15 July 2014, http://www.rte.ie/news/2014/0715/630888-un-human-rights/ (accessed 14 November 2016).

9 UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Ireland, 19 August 2014, CCPR/C/IRL/CO/4.


declaring, “I am not a vessel.” The experience also gave ARC a template, strengthened our networks and relationships with other NGOs, and built our in-house capacity to engage in international human rights reporting processes going forward.

Ireland’s review under the International Covenant on Economic Social and Cultural Rights

The following year, ARC participated in Ireland’s review under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Ireland had not been reviewed under this treaty since 2002. ARC’s submission to the committee centred on Article 12 of the Convention, which defines the right to health as, “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”10 This definition has been further elaborated on through the Committee’s General Comments. General Comment 14 on the right to health is particularly relevant, as it sets out a framework for assessing whether the right to health is being adequately realised through the provision of services that embody the “interrelated and essential elements” of being available, accessible, acceptable, and of good quality.11

Requiring women to travel to another country for health services is by definition inaccessible and entirely impossible for some women. Furthermore, a core element of how accessibility is defined in the context of the convention requires the provision of services without discrimination. As Ireland’s abortion laws create a two-tiered system where women and girls with the means and the ability to do so can make reproductive choices while others are forced to continue their pregnancies against their will, ARC made a decision to highlight the discriminatory and unfair nature of Ireland’s abortion laws in the context of Ireland’s review by the Committee on Economic, Social and Cultural Rights.

In ARC’s submission highlighting the dire need for greater access and accessibility, we described how the constitutional provision of the “freedom to travel”12 places the full emotional, psychological, social and financial costs on the woman, and how many of Ireland’s most vulnerable women lack the finances, support structures and even the migration status (in the case of asylum seekers and undocumented women) to exercise this ‘freedom’ to travel abroad to realise their full reproductive rights. We spoke to women about their experiences in order to highlight the full range of economic costs involved, which included travel, accommodation, childcare, the cost of the procedure itself, loss of income arising from time off work, and for some, counselling to cope with the isolation and stigma faced upon returning home.

We underlined how the 8th Amendment discriminates on the basis of gender, prohibiting and criminalising a health service that only women need. We highlighted the fact that the current constitutional and legislative framework discriminates against those for whom travelling to access healthcare may not be an option, such as young women and girls, women with certain disabilities, women living in poverty or on low incomes, asylum seekers and undocumented women and girls, among others.

10 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 2 (ICESCR).

11 UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4.

12 Bunreacht na HIéreann [Irish Constitution]. Article 40.3.3.


Over the course of the two-day examination, the UN Committee on Economic, Social and Cultural Rights heard from a wide range of civil society organisations before engaging in an interactive dialogue with the State. During questioning on the theme of gender equality, the Committee asked the State how it planned to reconcile the contradiction between the Constitution and women’s right to health as provided under the ICSECR, particularly where a woman faces a risk to her health and requires access to abortion. The State’s response failed to answer the question directly and merely stated that the constitution prevents any increased access to abortion in Ireland. This reply did not satisfy the Committee.

On day two of the hearing, two additional Committee members noted that Ireland’s restrictive abortion laws were in violation of its obligations under the Covenant. One Committee member observed that Ireland has some of the most punitive and restrictive laws in the world, and asked the State why it did not simply hold a referendum to amend its Constitution to allow for expanded access to abortion? This simple, pointed question revealed the evasiveness of the State’s response to questions on abortion; what we saw playing out on the international level was a familiar experience for us as advocates. However, the Committee did not allow the issue to drop.

After the conclusion of the review, the Committee on Economic Social and Cultural Rights issued its Concluding Observations, making concrete recommendations to the State on changes required to bring Ireland into compliance with its obligations under the treaty. The CESCR Committee restated the calls of the Human Rights Committee in criticising “the discriminatory impact on women who cannot afford to get and abortion abroad or access to the necessary information.”13 The Committee further recommended that the State party take all necessary steps, including a referendum on abortion, to revise its legislation on abortion, including the Constitution and the Protection of Life During Pregnancy Act 2013, in line with international human rights standards.”14

With the release of the Concluding Observation, the two authoritative human rights bodies of the two primary pieces of International Human Rights legislation have stated clearly and plainly that Ireland’s legal and constitutional framework restricting access to abortion is in violation of International Human Rights Law. Fighting for reproductive rights in Ireland can be an incredibly challenging undertaking, particularly when some participants in the discourse in Ireland deliberately try to obscure and deny the fact that the human rights framework is immensely clear on this issue of abortion. Factually inaccurate arguments claiming that Ireland’s laws are not in violation of human rights law continue to be entertained by mainstream media. As activists in Ireland you can begin to feel isolated and stigmatised, so it was revitalising to our movement to know that the issues we work on enjoy the validation of yet another leading Human Rights Committee; our struggle is indeed recognised and supported internationally. To be assured, yet again, that this is a major human rights issue, that of course women’s lives and health matter, was a vital reality check. Of course we should be fighting to change this. Of course the 8th Amendment is completely inhuman.

13 UN Committee on Economic, Social and Cultural Rights, Concluding Observations on the Third Periodic Report of Ireland, 8 July 2015, E/C.12/IRL/CO/3.

14 Ibid.


Ireland’s review under the Convention on the Rights of the ChildThe following year, in the first quarter of 2016, Ireland was reviewed under the UN Convention on the Rights of the Child (UNCRC). Having enhanced our knowledge and the capacity to engage with these UN Treaty Body processes, we found ourselves in a position to be able to offer support and guidance to other NGOs and community groups. Some of our members reached out to Akidwa: Ireland’s National Network of Migrant Women, to share information on the process and to support their young migrant women’s group to develop a submission on a range of issues including Ireland’s direct provision system, educational equality, and sexual and reproductive health and rights.

During the NGO consultation the process, we discovered that ARC was the only NGO that would be travelling to the hearing in Geneva to advocate on the issue of abortion access. This was a departure from previous reviews of Ireland’s human rights record where the NGOs advocating for a human rights compliant framework for abortion access were numerous and well-represented. We knew we could put our skills from previous human rights reviews to good use, but we also wanted to build on our work in new ways. In developing our submission, we reached out to our members to ask for their abortion stories so that we could include the voices of women who had travelled for abortion services when they were adolescents. These first person case studies broke through the policy and legal analysis and the facts of historic cases to reveal the real voices of the young women and girls who are most impacted by the 8th Amendment. Through these stories, women described their experiences in their own words. UN processes are often characterised as being only accessible for established NGOs. However, our involvement in this process showed that the UN can be for everyone and grassroots voices can be communicated and listened to at a high level.

Within ARC, we agreed that although the sexual and reproductive health and rights of adolescents girls and young women can be a sensitive subject, our participation in this particular review was vital; many of the landmark cases that spurred legislative or social change in Ireland involved adolescent girls and young women: Miss X, Miss C, Miss D and Miss Y. The girls and young women at the centre of these cases were among some of the most marginalised in our society; Miss C was a member of the Travelling community, Miss D was in the care of the state, Miss Y was an asylum-seeker looking for the state’s protection. Almost all were survivors of sexual violence. But as young women and girls, the right to refuse to continue the pregnancy resulting from sexual violence was denied them.

Their cases serve to highlight just how discriminatory Ireland’s abortion laws are – the most marginalised women and girls bear the full burden of the abortion ban while the more privileged can get around it by travelling abroad for a termination. It is not surprising, then, that the UN Committee on the Rights of the Child questioned the State on how it could reconcile the ban on abortion with its obligation to provide adolescents with appropriate medical services in line with the Convention. When the Committee asked about the situation of girls who are victims of rape and incest, they were told by the State that there is no provision for these girls unless they are suicidal. This is in direct contravention of human rights standards. Lastly, the question was raised as to whether the government intends to consult the people of Ireland to hear their opinion with regard to the 8th Amendment of the Irish Constitution.

Following on from the persistent questioning during the review, the UN Committee on the Rights of the Child issued its concluding observations, which reinforced the calls of the Human Rights Committee and the Committee on Economic Social and Cultural Rights and highlighted Ireland’s obligation to decriminalise


abortion in all circumstances.15 It further criticised the “inability of doctors to provide [abortion] services in accordance with objective medical practice” and highlighted the state’s obligation to “ensure that the views of the pregnant girl are always heard and respected in abortion decisions.”16

Conclusion By participating in periodic reviews of Ireland’s human rights record by UN Treaty Monitoring Bodies, ARC has contributed to focusing increased international attention on the ways Ireland’s abortion laws violate human rights while also helping to shape how the right of women and girls to access abortion services is understood in the context of international human rights law itself. The Concluding Observations and recommendations issued to Ireland contain some of the clearest, most unequivocal language on right of women and girls to access abortion services. These outcomes are not only of significance for our movement for reproductive rights, they have a global impact.

As a grassroots movement with activists across the country, we continue to support our activists who participate in these processes, and amplifying their voices and experiences through rethinking the development of submissions. To our knowledge, ARC is the first Irish pro-choice organisation to involve rights holders directly in reviews and to feature their first person testimonies in submissions. In this way, ARC has done some trailblazing work in changing how local-level actors can shape the outcomes of high-level advocacy processes and how high-level committees can lend support and legitimacy to grassroots struggles, as evidenced by demonstrators and activists embracing and drawing strength from the #notavessel hashtag.

We continue to share our knowledge and experience with partners, having recently developed a training distilling our experiences from these processes, delivered to Alliance for Choice in Northern Ireland and soon to be shared with our other regional groups and partners. Our capacity grows with each review, and is fed back to the local level where outcomes are shared with community members towards thinking through how we can further strengthen our advocacy, particularly calls for the implementation of UN recommendations. The next review of Ireland’s human rights record is approaching in 2017 and it will be examined on whether it is fully meeting its obligations under the UN Convention on the Elimination of All forms of Discrimination Against Women. We at ARC look forward to participating in and to further connecting our national and local-level grassroots activism with high-level human rights processes towards advocating for meaningful change in the lives of women and girls in Ireland.

15 UN Committee on the Rights of the Child, Concluding Observations of the combined third and fourth reports of Ireland, 1 March 2016, CRC/C/IRL/CO/3-4.

16 Ibid.

Case Study:A Review of the Sheehy Skeffington v National University of Ireland, Galway Decision

The Irish Community Development Law Journal Vol.5 (2) [2016] 34Ciara O’ Grady - A Review of the Sheehy Skeffington v National University of Ireland, Galway Decision

Case Study: A Review of the Sheehy Skeffington v National University of Ireland, Galway Decisionand its impact on potential discrimination on the grounds of gender in respect of hiring and promotional opportunities in the workplace in Ireland.

BackgroundThis case study is a review of the Sheehy Skeffington v National University of Ireland, Galway decision on 13th November 2014 from the Equality Tribunal and its effects on equality in the workplace in Ireland and the interpretation of discrimination on the grounds of gender under the Employment Equality Acts 1998 – 2011.

The Employment Equality Acts 1998 – 2011 govern the prohibition of direct and indirect discrimination in Ireland on an array of grounds, including gender-based discrimination. Section 6(1) describes discrimination as a situation where on any of the grounds listed in 6(2), one person is treated less favourably than another is, has been or would be treated. Section 6(2) names one of those grounds as (2) where one is a woman and the other is a man (“the gender ground”). Section 8(8) provides that an employer shall be taken to discriminate against an employee in relation to promotion, if on any of the discriminatory grounds –

a. The employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access; or

b. The employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

The Sheehy Skeffington v National University of Ireland, Galway case presented a complainant, Dr. Sheehy Skeffington (“the complainant”), who complained to the Equality Tribunal that as part of a series of promotional competitions between 2007-2009, she was denied access to promotion from College Lecturer to Senior Lecturer by National University of Ireland, Galway (“NUIG”), on grounds of gender discrimination contrary to the Employment Equality Acts 1998-2011.

Ciara O’ GradyAttorney at Law (New York - pending admission)Email: [email protected]


The FactsThe complainant applied for the position of Senior Lecturer in NUIG (“the respondent”) four times between 1998-2009. On her third attempt in 2006-07 she was short listed but unsuccessful in being empanelled. On her fourth attempt she was again short listed but unsuccessful in being empanelled and referred the case to the Equality Tribunal claiming that she was denied access to promotion on the ground of gender discrimination.

On the complainant’s fourth application in 2009, which for time barring reasons was the only instance subject to review, the interview consisted of 7 interviewers, one of whom was a woman. The Tribunal accepted the following evidence put forward in favour of the complainant’s case:

1. The interviewing panel failed to take account of requests for a pre-interview process by the external interviewer and failed to take account of his grading and his views on the applicant, which demonstrated a lack of transparency and structure in the interview process

2. One of the criteria for success on being promoted was 150 hours of teaching and two of the successful candidates (both of whom were male) had significantly lower than the minimum requirement

3. The results of the interviews was 1 of 7 females were empanelled and 16 out of 23 males were successful

The complainant also claimed that the weighting criteria of the interview was indirectly in favour of men being successful on the basis that research, rather than teaching, was held more important, stating that in NUIG women carried more of the teaching hours, freeing the men for research tasks, which indirectly gave them a better opportunity of being empanelled.

The respondent refuted the allegations of discrimination and submitted that its processes are fair and transparent. It further submitted that it always aims for gender balance on its boards. The Respondent denied that extra weight was given to the research criterion. The respondent also contended that the complainant had not published in highest impact journals in her area.

Legal Analysis and Tribunal Conclusion

Direct discrimination –

In considering whether there was evidence of direct discrimination the Equality Officer quoted a Determination of the Labour Court, O’Higgins v UCD1 which ruled that the complainant must prove that the facts raise an inference of discrimination and if they do so, the court must decide whether they are of sufficient significance to raise the inference contended for. In addition, the Labour Court held that it is not necessary for the complainant to establish a conclusion of discrimination, just that it is the only or most likely explanation which can be drawn from the facts. When dealing with filling a position, the Court’s role is not to assess the merits of the candidate for the post, but to ensure that the process is not tainted by unlawful discrimination and the Court will only look behind a decision on appointment, if

1 EDA 131. This Determination by the Labour Court was upheld by Cooke J. in the High Court [2013] IEHC 508.


there is clear evidence of unfairness in the selection process. Furthermore, a lack of transparency in the selection process combined with a lack of a connection between the assessment or the qualifications and the result of the process can give rise to an inference of discrimination. Where a prima facie case of discrimination is made out and where the respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision, the complaint will be made out. The Labour Court also cautioned that the court should be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration must be approached with caution.

In considering whether a prima facie case for direct discrimination was made out the Equality Officer noted the following:

• While on paper their promotion process appeared fair, the university’s implementation of a fair interview process fell short of best practice (lack of training, lack of pre-meeting, external interviewer’s views were ignored)

• The fact that one candidate (male) succeeded to the interview stage when he did not meet the shortlist criteria was worrying

• The gender composition of the board was raised and a distinction was noted by the Equality Officer between interview board gender representation and gender balance – noting that an appropriate gender balance within selection boards is an essential prerequisite to the effective attainment of full equality of opportunities between men and women in employment

On the basis of the combination of the above and other factors, it was found that the complainant had established a prima facie case of direct discrimination.

When assessing the adequacy of the respondent’s rebuttal, the Equality Officer found that

• While the guidelines that existed were not strict criteria, the only woman that was empanelled actually met the criteria, whereas three men that were empanelled didn’t meet the criteria

• It was noted that the weakest aspect of the rebuttal was the statistical evidence against the respondent in terms of gender representation at different grade rankings. Men were in the minority at College Lecturer grade (40%), however the next promotional grade – Senior Lecturer – inverts the statistic where 61% are male. Similarly, over an 8 year period, out of 132 applications (97 male and 35 women), 11 women were successful whereas 50 men were. This meant that men had a 1 in 2 chance of success, whereas women had a 1 in 3 three chance of success.

On the basis of the above, the Equality Officer found that the complainant had established a prima facie case and the respondent had failed to rebut it.


Indirect discrimination -

The weighting of criteria in relation to research undertaken by candidates and teaching hours was questioned by the complainant. She asserted that women undertook the majority of the teaching work thus allowing male colleagues to concentrate on research. This weighting of these criteria amounted to indirect discrimination according to the complainant. The complainant further contended that her male colleagues at the university spent more time on research than women; that women care more about student welfare than men; that women are given the biggest teaching burden and that men get management roles on a “nod and wink” basis. The Equality Officer found that she failed to present sufficient evidence to support these complaints and that deeper research would have been required to provide statistics to support this.

However, on the matter of indirect discrimination, the Equality Officer did note that the Senior Lecturer position application form did ask candidates to nominate when they were on maternity leave or other unpaid leave so that it can be discounted. The male applicants left this question blank. Most of the women referred to maternity leave, previous job sharing and caring responsibilities. Three women did not refer to any circumstances of such leave and these were the highest ranking women, one of whom was the only successful woman. On the basis of the effect of answering this question (as opposed to the intended purpose behind the question being asked), the Equality Officer found that the university indirectly discriminated on the ground of gender in relation to that issue.

The DecisionIn accordance with Section 79(6) of the Employment Equality Acts 1998 – 2011 (“the Acts”), the Equality Officer found in favour of the complainant, that the University discriminated against her on the grounds of gender regarding access to promotion. The Equality Officer ordered the university to promote the complainant to Senior Lecturer with the adjustment in salary backdated, to pay the complainant €70,000 for the infringement of her statutory rights and to review its policies and procedures in relation to Promotion to Senior Lecturer to ensure that they are in compliance with the Acts with particular reference to gender and to report on progress to the Irish Human Rights and Equality Commission within 1 year.

Impact of the DecisionPromotions in the workplace are a breeding ground for potential discrimination in various ways provided for under the Acts, including gender. While a lot of scrutiny is placed on putting in place non-discriminatory hiring practices, internal organisational structures, including promotion arrangements present intended and/or unintended opportunities to discriminate, both directly and indirectly, on one or more grounds. The impact of the decision in Sheehy Skeffington v NUIG highlights the need for places of employment, particular in areas where there are traditional gender imbalances, to review their hiring and promotional practices to ensure that they are not undertaking any direct or indirect gender discriminatory practices.


Some indicators of poor practices which can collectively contribute to giving rise to discrimination on the grounds of gender include:

• Insufficiently balanced interview boards • A lack of transparency and structure in the interview process • Failure to apply criteria in a balanced way in respect of both gender or applying more weight to

one criteria which has the effect of disadvantaging one gender against the other (the effect of the decision in this case is that an individual seeking to present on such grounds would need to present a high level of research and statistical back up to prove such assertions, which was held not to have been met in this case).

Significantly, in this case, a large contributing factor to the respondent’s failure to rebut the applicant’s claim was a review of their statistical evidence in terms of gender balance across different promotional levels which indicated discriminatory practices were evident. As part of their hiring and promotional practices, policies and procedure reviews, workplaces should review their gender balances at each promotional stage to ascertain if this might indicate any (un)intended discriminatory practices.

From an employment equality perspective, the impact of this decision is that it encourages and incentivises organisations to review their practices, policies and procedures at hiring and particularly promotional stages to ensure a level playing field for all, irrespective of their gender, and to review selection criteria to ensure that it would not give rise to any indirect discriminatory practices.

Case Study:Mohan v Ireland (2016) IEHC 35

The Irish Community Development Law Journal Vol.5 (2) [2016] 40Darragh Hayes-Moriarty - Mohan v Ireland (2016) IEHC 35

Case Study: Mohan v Ireland (2016) IEHC 35.

Facts of the case:The plaintiff, Brian Mohan, a member of Fianna Fáil, was nominated in 2015 to contest the party’s convention to select candidates to contest the upcoming General Election in the Dublin Central constituency. In September of that year, a direction was sent out from the party National Constituencies Committee, stating that “one candidate only be selected at the convention and that the candidate selected must be a woman.”1 As a result, Mr Mohan was unable to contest the convention. The plaintiff did not challenge the direction. Rather, he believed the reason for this direction was to meet the candidate gender quota laid out in s. 17 (4B) of the Electoral Act 1997 and avoid the penalty of a 50% cut in Party Payments from the State. Due to this, Mr Mohan sought to establish that the relevant legislation breached his constitutional rights.

Issue:

The first issue Keane J looked to address was whether s. 17 (4B) of the Electoral Act 1997 breached Mr Mohan’s constitutional rights, as it prevented him from being freely considered as the party’s candidate in Dublin Central.

Law:

s.17 (4B) of the Electoral Act 1997 as inserted by s.42 (c) Electoral (Amendment) (Political Funding) Act 2012, provides as follows:

• “(a) Payments calculated in accordance with this Part shall be reduced by 50 per cent, unless at least 30 per cent of the candidates whose candidatures were authenticated by the qualified party at the preceding general election were women and at least 30 per cent were men.

• (b) Paragraph (a) – (i) comes into operation on the polling day at the general election held next after section 42 of the Electoral (Amendment) (Political Funding) Act 2012 comes into operation and (ii) ceases to have effect on the polling day at the general election held next after the expiration of 7 years from the polling day specified in subparagraph (i).

1 Mohan v Ireland (2016) IEHC 35 [8].

Darragh Hayes-MoriartyUniversity College DublinEmail: [email protected]


• (c) Payments calculated in accordance with this Part shall be reduced by 50 per cent, unless at least 40 per cent of the candidates whose candidatures were authenticated by the qualified party at the preceding general election were women and at least 40 per cent were men.

• (d) Paragraph (c) comes into operation on the day after the day on which paragraph (a) ceases to have effect.”

Meanwhile Article -16.1.1°- of the Constitution, states:• “Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not

placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.”

Article 6.1 states:• All powers of government, legislative, executive and judicial, derive, under God, from the people, whose

right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

Article 40.1 of the Constitution further states:• All citizens shall, as human persons, be held equal before the law.• This shall not be held to mean that the State shall not in its enactments have due regard to differences of

capacity, physical and moral, and of social function.

Articles 40.6. 1° of the Constitution provides: ͵ The State guarantees liberty for the exercise of the following rights, subject to public order and morality: – ͵ (i) The right of the citizens to express freely their convictions and opinions.

• The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

• The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

͵ (ii) The right of the citizens to assemble peaceably and without arms.• Provision may be made by law to prevent or control meetings which are determined in accordance with

law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

͵ (iii) The right of the citizens to form associations and unions.• Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the

foregoing right.

Article 40.6.2° of the Constitution states:• Laws regulating the manner in which the right of forming associations and unions and the right of free

assembly may be exercised shall contain no political, religious or class discrimination.


Application:

Keane J assessed the three main propositions put forward in the plaintiff’s case. First, whether the candidate gender quota as laid out in s. 17 (4B) was truly coercive. The plaintiff spoke of the party’s Markievicz Commission’s statement “a loss of 50% of state funding, is not an option for any successful political party representing Irish society in the 21st century,” adding “it is impossible to function with 50% of their funding gone.”2 Keane J rejected the notion that it would impossible, or even significantly difficult, for the party to continue to function with a 50% loss. He pointed to the other forms of State funding available (expenses reimbursements and ‘parliamentary activities allowance’) as well as the opportunity to fundraise. While he acknowledged that the penalty under s. 17 (4B) was intended to have “some unwelcome effect on the finances of the party”3 as it would otherwise be ineffective, the plaintiff was in no position to act as an ‘expert’ on the impact of such a loss of funding.

The second proposition put forward by the plaintiff was that his exclusion from contesting the Dublin Central convention was a ‘requirement’ of s. 17 (4B) of the 1997 Act, and that it was the “only effective means available to the party to meet the candidate gender quota.”4 Again, Mr Mohan could not satisfy the court that this was the case. This proposition was considerably undermined by evidence given by Dr. Fiona Buckley. Dr. Buckley presented a number of strategies Fianna Fáil could have taken to meet the gender quota requirement. Among the options available, Dr. Buckley mentioned:

• “gender directives (where the party identifies certain constituencies in which the candidate selected must be a woman);

• all-women shortlists (such as those which, according to Dr Buckley, the British Labour Party has voluntarily applied for almost two decades to half of the House of Commons seats it deems winnable);

• minimum candidate lists (whereby a political party implements a rule that at least one candidate must be female in any constituency where the party proposes to run more than one candidate);

• open constituencies (where women candidates are run in some or all of the constituencies where the party has no incumbent TD or its incumbent TD is retiring);

• or add-on candidates (where a party centrally decides to add a woman candidate to the candidate(s) already selected locally).”5

From these points, it was clear that the party had discretion in the strategy or strategies they chose. In addition, Keane J noted that, whatever strategy was chosen by the party, that they chose to implement it in the plaintiff’s constituency of Dublin Central was also at the discretion of the party. As a result the plaintiff’s exclusion from contesting his constituency convention was not a ‘requirement’ of s.17 (4B), but rather a decision by his party in their attempts to meet the gender quota.

The third proposition put forward by the plaintiff was that without a ‘coercive’ statutory gender quota, there would have been no gender quota at all.6 However, Keane J pointed to a number of instances

2 ibid [64].

3 ibid [70].

4 ibid [71].

5 ibid [45].

6 ibid [75].


where the party appeared to welcome the relevant provision. Speaking at the Seanad Éireann Debates in 2012, Senator Averil Power, then a member of Fianna Fáil, spoke of gender quotas as a “necessary evil”, stating “the number of women elected points to the fact that the system is undemocratic…If the system was perfect, we would not need to tinker with it, but it is fundamentally flawed.”7

This followed Fianna Fáil issuing a press statement in 2011 welcoming “the publication of gender quota legislation by Environment Minister Phil Hogan”, legislation which would ensure that 30% of candidates in the next general election be women.8

The plaintiff’s main argument in this matter was that two separate motions endorsing candidate gender quotas were voted down by Fianna Fáil delegates at the 2012 Ard Fheis. Keane J found that these votes could not be given more weight than public statements or positions of the party.9 In truth, the plaintiff’s argument in this matter appeared to be confused. On the one hand, the argument was made that only a coercive gender quota lead to any quota at all. However, Counsel for the plaintiff had also suggested to Dr. Buckley that a legislative quota was unnecessary due to the possible effect of a voluntary quota.10

Conclusion:Due to the plaintiff’s inability to establish that s. 17 (4B) forced the party’s hand, he was not able to show that s. 17 (4B) directly prevented him from contesting the Dublin Central candidate convention.Keane J noted that each of the three propositions put forward by the plaintiff were all issues that Fianna Fáil, rather than Mr Mohan himself, were best placed to address. This was of particular relevance to a second issue.

7 ibid [76].

8 ibid [79].

9 ibid [80].

10 ibid [35].


Issue:

Keane J then looked at whether the plaintiff had standing to mount a constitutional challenge to s. 17 (4B).

Law:

The primary rule in this matter was laid illustrated by the Supreme Court in Cahill v Sutton11 where Henchy J stated that “the person challenging the constitutionality of the statute…must be able to assert that, because of the alleged unconstitutionality, his interests have been adversely affected, or stand in real or imminent danger”.12

There are two situations given in Cahill v Sutton that warrant the relaxation of this primary rule; where those who are affected may not properly assert their own constitutional rights, or where the provision in question is directed at against a group including the plaintiff with whom a common interest is shared.13 In seeking to justify a move from the primary rule, the plaintiff relied on three cases: McGimpsey v Ireland14, Crotty v An Taoiseach15and McKEnna v An Taoiseach (No. 2)16

Application:

Keane J found that the plaintiff had not established a causal link between the party decision excluding his nomination, and s. 17 (4B).17 This primary rule, it was stated, was a necessary threshold, without which political opposition to a particular Bill would simply shift to the Courts to continue obstruction there.18 Regarding the possible relaxation of the primary rule, Keane J found that it did not apply to the present case. The party itself was more directly affected by the operation of the provision. Second, while the party may be viewed as a group including the plaintiff, the provision did not affect a shared or common interest between the plaintiff and party.19

Keane J then distinguished the instant case from the three put forward by the plaintiff: McGimpsey’s basis for recognising standing due to “the importance of the constitutional issues” was based on a number of factors, and an important constitutional issue was not of itself enough to establish standing for each and every plaintiff.20 In Crotty, the Single European Act was deemed capable of affecting every citizen, and in that regard was exceptional.21 Finally, standing was confirmed in McKenna as it was deemed that otherwise, a challenge to the legislation’s constitutionality could not arise.22

11 [1980] IR 269.

12 Mohan (no 1) [84].

13 ibid [95].

14 [1988] IR 56.

15 [1987] IR 713.

16 [1995] 2 IR 10.

17 Mohan (no 1) [85].

18 ibid [91].

19 ibid [96].

20 ibid [98].

21 ibid [100].

22 Ibid [102].


Conclusion:Keane J therefore established that the plaintiff had failed to establish standing under the primary rule, and had also failed to establish that any of the potential relaxations of this rule applied to the present case. Keane J refused the temptation to offer a preliminary opinion on the constitutional issue, in accordance with the rule of avoidance.23

23 Ibid [108].

Instructions for Authors:Submission Guidelines


General: Submissions should be made via email and include a cover sheet. Submissions will be peer-reviewed anonymously. Please ensure you DO NOT include your details on the main body of your submission.

Cover Sheet: Please include with your submission a cover sheet indicating your:• Name.• Institutional Affiliation (if applicable).• Email Address.• Total word count (with and without endnotes/references).• Abstract (no more than 300 words).• Key words (no more than seven).

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Submission GuidelinesInstructions for Authors

Instructions for Authors - Submission Guidelines


Citation Format / References: Given the different citation styles used by the different academic disciplines (law, social policy and community development) around the world as well as the need to be consistent, the Citation Styles accepted by the Review are:

• Harvard Style • OSCOLA (Oxford Style)• Authors can chose the citation style best suited to their needs.• We suggest that for authors with a policy, community development or other background, to use

the Harvard style. Please ensure the reference list is included at the END of the main body of the text. Details can be found at National College of Ireland Library and Information Services: http://www.ncirl.ie/downloads/library/How%20to%20reference%20Harvard%20style.pdf

• We suggest that for authors with a legal background, to use OSCOLA (The Oxford University Standard for Citation Of Legal Authorities). Details can be found at: http://www.law.ox.ac.uk/publications/oscola.php

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Queries: Should any questions or queries arise at any point, please email the editor at: [email protected]

Instructions for Authors - Submission Guidelines

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