Contextualised Equality and the Politics of Legal Mobilisation: Affirmative Action in Northern Ireland
| Date | 01 March 2012 |
| Author | Colin Harvey |
| DOI | 10.1177/0964663911428484 |
| Published date | 01 March 2012 |
| Subject Matter | Articles |
Article
Contextualised
Equality and the
Politics of Legal
Mobilisation:
Affirmative Action in
Northern Ireland
Colin Harvey
Queen’s University Belfast, UK
Abstract
This article examines the development of affirmative action and equality policies targeted
at the two main ethno-national communities in Northern Ireland, as an example of ‘con-
textualised equality’. The argument places particular weight on a politics of legal mobili-
sation. The article suggests that the ability to connect post-1998 reforms, in practical and
symbolic ways, to overriding inter-communal narratives was often a determining factor
in identifying those elements of the Good Friday Agreement which advanced, or were
constructed as achievable. The argument has implications for understanding how
equality debates will progress, and explaining why certain agendas appear to ‘succeed’
and others ‘fail’.
Keywords
affirmative action, equality, human rights
Introduction
If a substantive notion of equality is going to break fully into the practical worlds of
politics and law then a frame of reference that grasps the pragmatics of effective
Corresponding author:
Colin Harvey, Queen’s University Belfast, 30 University Square, Belfast BT7 1NN, UK
Email: c.harvey@qub.ac.uk
Social & Legal Studies
21(1) 23–50
ªThe Author(s) 2012
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DOI: 10.1177/0964663911428484
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engagement is essential. The premise of this article is that there is something of sig-
nificance in the particularised experience of Northern Ireland that may prove instructive
in understanding how ‘equality’ is constructed. For reasons that are not hard to grasp,
analysis of the conflict ‘in (and about) Northern Ireland’ tends to obsess around the
complex and difficult relationships between Irish republicans/nationalists and British
unionists/loyalists, the various ways in which perceptions of religious identity map onto
these categories, and interactions with both the Irish and British states (Healing Through
Remembering, 2006). Such a frame of reference is of necessity reductionist, when read
in the context of contemporary debates on the complex nature of inequality, and the
existence of multiple and fluid identities. However, for the purposes of this article, the
bi-national paradigm is of value in understanding how the notion of ‘equality’ is con-
structed. The aim here is to use the example of Northern Ireland as a case study of the
practical application of affirmative action
1
policies in a specific site of ethno-national
division, and a society which has experienced – and is now emerging steadily from
– the legacy of violent conflict. As the striving for international and comparative lesson
learning continues, this article probes how the development of affirmative action in fair
employment law in Northern Ireland (‘contextualised equality’)
2
might be best under-
stood, and sounds a note of caution about attempts to extrapolate more generally from
this experience.
The conflict in Northern Ireland cost over 3600 lives (in a region of approximately 1.6
million people), and it has left a severe inter-communal legacy (McGarry and O’Leary,
1996; Shirlow and Coulter, 2007). The problems of Northern Ireland are not unique, and
it does help to frame them in international and comparative terms, but one of the
arguments advanced here is that this example of affirmative action must be viewed in
its localised setting. The region provides a societal context where religious division
(between Catholics and Protestants) maps onto broader conflicts over national and polit-
ical identity (Irish and British). These are disputes between two national communities
(British and Irish) that co-exist on the same territory and hold divergent national aspira-
tions. This is a conflict where religious identification is a factor, but the principal sources
of antagonism and contestation remain questions of national division, between two com-
peting communities. Without being excessively narrow, there is a communal conflict
sparked by contested sovereignty, societal domination and control, and rival conceptions
and desires around national belonging. Nationalism, in multiple and diverse British and
Irish guises, continues to provide a secure basis for successful political mobilisation and
formal alignment in Northern Ireland, and there remains little sign that other formations
are likely to emerge imminently (even if the debate shifts significantly towards socio-
economic and other more ‘normalised’ political agendas in the wake of devolved
government).
3
This article will therefore sketch the context and history of Northern Ireland, with a
view to offering background on the nature of the conflict, and then examine the directed
and positive legal and policy measures which have been employed to address the legacy
of inequality between the two main communities in substantive and institutional terms.
The overall objective is to argue that Northern Ireland is an example of a particularised
type of affirmative action, and, on the basis that there may be some ‘lessons’ to be
gleaned, probe what these might be. The tone and approach, however, remain
24 Social & Legal Studies 21(1)
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