Colm O'Cinneide

Positive Duties and Gender Equality

The imposition since 1998 of a variety of positive equality duties upon public authorities has attracted comparatively little academic attention. However, these duties are a central part of current government equality initiatives, increasingly constitute a major part of the work of the UKs equality commissions, and have been described as an essential part of a new ‘fourth generation’ of equality legislation. It now appears likely that a positive duty to promote gender equality will soon be imposed upon public authorities, which will complement similar race and disability duties. Will the introduction of this positive gender equality duty add to, detract or complement existing statutory provisions? Given the danger that ‘soft law’ initiatives may undermine existing anti-discrimination controls, will the duty provide a clear steer to public authorities, or will it lack teeth, substance and direction, and possibly even prove counter-productive? Such positive duties are designed to compensate for the limitations of existing anti-discrimination law, by requiring the taking of positive steps to promote equality and eliminate discrimination, rather than just compelling a reactive compliance with the letter of the (equality) law. The justifications in principle for the introduction of such duties are strong: for the first time, the introduction of a positive gender duty will impose a clear legislative obligation upon public authorities to adopt a substantive equality approach and to take proactive action to redress patterns of disadvantage linked to gender discrimination. Serious concerns do however exist as to the extent to which such duties can be enforced, and the danger that they will simply encourage greater bureaucratic activity at the expense of real change. The proposed gender duty, as with the other duties that have been introduced, is no panacea. Nevertheless, it does constitute a good start, can serve a useful function by empowering public authorities to take positive action, and if effectively used will be a very valuable point of pressure to push for better things.

Austerity and the Faded Dream of a Social Europe

Most constitutional systems in Europe are based upon the assumption that the state should play an active role in securing the economic and social well-being of its people, almost all European states have ratified the European Social Charter and the key UN and ILO instruments relating to social rights, while the European Union (EU) is committed to the establishment of a ‘social Europe.’ However, the fallout from the economic crisis of 2008 has accelerated the disintegration of the much-vaunted Europe social model. A considerable gulf currently exists between the rhetoric and the reality of ‘social Europe.’ These developments have begun to generate tension across and between the multiple layers of European governance: the human rights provisions of national and European law are increasingly being used to challenge austerity measures, even as social security and employment law across Europe is being re-shaped to conform with the requirement of ordo-liberal and neo-liberal policy prescriptions. This paper explores these tensions, and critically examines the extent to which respect for social rights can be said to be constitutionally embedded within European society. It also calls into question whether European states are seriously committed to translating the idea of a ‘social Europe’ into reality.

Bringing Socio-Economic Rights Back into the Mainstream

Human rights values have an ever-growing impact on contemporary societies. However, socio-economic rights remain the poor cousins of their civil and political counterparts. Recent “revitalization” of the key international socio-economic rights instruments, along with the emergence of new models of constitutional protection of these rights in Latin America, India and South Africa, has generated considerable interest. However, socio-economic rights remain by and large marginal, because of often outdated philosophical assumptions as to their lack of substantive content. This often means that our sophisticated vocabulary of rights is of little use to the homeless or the destitute or other disadvantaged groups. As a first step to combating the marginalisation of socio-economic rights, it is necessary that bodies charged with interpreting and applying socio-economic rights develop a rigorous, rational and coherent jurisprudence, to show that socio-economic rights can be given a substantive and meaningful content.

European Social Constitutionalism

Within mainstream Anglo-American constitutionalist thought, social rights are generally assumed to fall outside of the appropriate scope of constitutional regulation: their content and status are viewed as matters best left to be determined by the free flow of political contestation, rather than being governed by the written provisions of the constitutional text and/or judicial interpretation of fundamental rights guarantees. The development of socioeconomic rights review in states such as South Africa, Colombia, India and Brazil has challenged this assumption. As a result, the apparent dichotomy between the ‘old’ Anglo-American orthodoxy and the ‘new’ social constitutionalism emerging in the Global South has come to dominate much of the comparative constitutional literature on social rights. However, as Ran Hirschl has argued, comparative scholarship needs to be careful about restricting its focus to a few favoured national case studies. There exists an alternative strand of social constitutionalism in continental Europe, which is barely mentioned in much of the academic literature on this topic. This ‘European’ strand of social constitutionalism differs in significant ways from the approaches to social rights protection being developed in the Global South. In some ways, it is weaker and more diffuse - at least when it comes to judicial enforcement of social rights. However, it has the potential to acquire greater legal substance. Furthermore, it possesses a latent political/symbolic dimension which still retains a degree of potency. Part I of this paper outlines the development of social constitutionalism in Europe, at both the level of nation states and at the transnational level of the EU and the Council of Europe. Part II then explores how constitutional protection of social rights in Europe remains limited and uncertain in scope, despite the formal commitment of European states to the ‘social state’ principle. Part III analyses how the post-2008 austerity crisis has sharply exposed the normative inchoateness of European social constitutionalism, notwithstanding the gradual expansion in certain jurisdictions of judicial protection of social rights. Part IV examines how this crisis also opens up opportunities for legal protection of social rights to acquire more ‘bite’, with the concept of the ‘social minimum’ perhaps playing more of a role in this regard than in other legal systems. However, the argument is also made that the ultimate value of European social constitutionalism may be symbolic and political in nature, and lies in how it undercuts attempts to foreclose on the aspiration of creating a genuinely ‘social Europe’.

Three Theorems on Risk Contributions

Given a decomposition P = P_1 P_2 … P_K of a portfolio P as a sum of K components, practitioners commonly decompose the risk of P as a corresponding sum of risk contributions. In this paper we prove three theorems about risk contributions. The first theorem concerns a form of duality identified in Grinold (2011), which may be described as follows. When we view a portfolio decomposition as a coordinate representation of the portfolio with respect to a given vector-space basis, then there is a natural dual basis with respect to which there is an alternative decomposition, here referred to as the dual decomposition. The dual decomposition gives the same contributions to risk as the original decomposition. The first theorem gives necessary and sufficient conditions for a change of basis to preserve risk contributions, and shows that all such changes of basis can be explained in terms of dual decompositions. The second theorem explores sensitivity of portfolio risk to a risk regime change and indicates that large risk contributions and large risks of the components P_i of a decomposition may be harbingers of high sensitivity. This provides a motivation for the practice of reporting both the risk contributions and the risks of the components in a decomposition. The third theorem provides necessary and sufficient conditions for two sets of numbers c_1,c_2,…, c_K and s_1,s_2,…, s_K to be the risk contributions and risks of some portfolio decomposition. Such risk contributions and risks can always be realized in a space of portfolios of dimension no greater than 3, a fact that places limits on what can be gleaned from knowledge of risk contributions and risks only.

New beginnings: constitutionalism and democracy in modern Ireland

New Beginnings covers Irish constitutional development from Home Rule to the Good Friday Agreement, focusing on turning points where radical constitutional change was discussed, attempted, or implemented. Taking the relationship between constitutionalism and democracy as its key issue, it asks why Irish politicians have seen constitutions as ways of making democracy more manageable, rather than of furthering democracy. Christine Bell finds that Bill Kissane’s work also reveals a hidden gender history to the constitutional negotiations.