Gender Quotas The legal and political effectiveness

This current election is fascinating for many reasons and one of those has been the substantial increase in female candidates across all political parties. This year sees double the number of female candidates from a mere 15% in the 2011 election to 30% in 2016.

Gender quotas are the primary reason for this significant increase and their existence have divided much opinion. Some view them as a welcome measure that ensures equality amongst the sexes and leads for better political representation, while others view them as a discriminatory and unconstitutional measure, violating the values of meritocracy and perpetrating inequality.

Gender Quotas in Europe

The question of gender quotas continues to be a turbulent issue, not only in Ireland but throughout Europe and beyond for decades. From a legal perspective, such positive discrimination rules (one that offers preferential treatment to a societal group) are generally acceptable, so long as they are not indefinite and are conditioned on achieving a set objective, which is then carried out in a proportioned and reasonable manner.

The initial rational for such quotas has been historically focused on the desired increase of female representation in public office. In recent times however, such progressive thinking has seen a transition into the corporate arena.

Norway has the esteemed accolade of being the first country to introduce the concept of gender quotas for corporate boards in 2003 following an impressive history of using such policies for public office through legislation in the 1980’s. Norway’s introduction of quotas within the corporate sector caused much challenge at the time but the government remained vigilant and legislated for such change. Norwegian companies were faced with the ultimatum, either ensure they delivered a 40% female board or face closure. This had an immediate effect as expected on numbers and other EU countries followed suit such as Spain, France, Belgium and also Germany. The latter recently introduced new legislation requiring large companies to allocate 30% of seats on non-executive boards to women, which commences from this year.

The European Commission, since 2012, has also been proposing new rules that if envisaged, will oblige EU companies to set targets of a similar 40% for non-executive directors (or a third of directors) by 2021. Such proposals however, are still at the early stages of the European legislative process and it may be still some time, before we see this type of legislation at EU level, or a version thereof.

 Ireland has yet to tackle the topic of corporate gender quotas, despite our European neighbours leading the way.  And dependent on what EU legislation changes emerge in the coming years, the incoming Government will be more than happy to keep such politicised subjects off the political agenda, for now at least.

Corporate regulatory requirements, such as gender quotas, will generally attract strong opposition from the corporate world and related lobbying business groups. It is an opposition predominantly based on the argument that corporate quotas add further compliance burdens in an already excessively saturated regulatory environment.

Ireland’s position

Despite the above inaction from a corporate perspective, the last Government did however demonstrate progressive ideals for the political sphere, with its introduction of the Gender Quota Bill in 2011, which was enacted through the Electoral (Political Funding) Act 2012.

 Section 42 of this legislation, halves the state funding of political parties who fail to ensure at least 30% of their general election candidates are women and 30% are men. Hence the substantial increase in this year’s election, which now sees 163 female candidates in comparison to only 66 in 2011. It also stipulates that this ratio increases to 40% after 7 years.

This statutory instrument was recently challenged by Brian Mohan, a Fianna Fáil member who alleged he was prevented from contesting his constituency’s selection convention (Dublin Central) due to the party’s direction of selecting Mary Fitzpatrick.  In the High Court this month (Feb 2016) Mr Mohan argued that the legislation was unconstitutional and that it was outside the powers of the Oireachtas to attempt to influence through the use of State funds- who presented for elections.

The High Court dismissed the case on a number of grounds, including no legal standing and on the basis that the State has indeed such entitlement to enact such laws regulating elections, which included an entitlement to promote the constitutional guarantee of equality. Mr Mohan has indicated he will appeal the decision to the Supreme Court.

Will gender quotas affect the outcome of this year’s election?

The simple answer is that such current quota requirements, will not substantially alter the overall outcome of the next Dáil Eireann.  Many experts in the area estimate that significant representational change will only occur after at least two subsequent elections following enactment and only then, will greater gender balance occur.

This is understandable, because the electorate will be more than familiar with many seasoned male politicians who are still contesting this year’s election (including a number of established female politicians too), in comparison to the many new female faces introduced for the first time on foot of such policy measures.

However, this election will still provide a significant training ground for new and eager female candidates across all political parties including independents and thus in itself, will increase their odds of gaining a Dáil seat next time round – aided by the recognition factor of candidates who are running within their communities and the heightened awareness of their constituent issues.

Regardless of the perceived time it will take to redress the gender balance, election 2016 signals a seismic shift in both the political landscape, by setting a benchmark for future elections, and in the minds of the electorate, by cementing the understanding that societal change is required for more equal representation.

Although gender quotas may not be to everyone’s liking and are not without their flaws, they are a much needed remedy to an injustice in our modern political landscape and one that is likely to follow into the corporate boardrooms, in the not too distant future.

J.O.S Solicitors provides tailored business and corporate law advice and is also one of the only law firms in Ireland, providing dedicated Public Affairs and Lobbying services for commercial businesses, trade and professional bodies, community groups and charitable organisations.

Jason O’ Sullivan, is a Solicitor and Public Affairs Consultant at J.O.S Solicitors

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