Before the commencement of Committee Stage I would like to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment which is contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice, the sections are postponed until consideration of the Schedule has been completed. In accordance with precedent and Standing Order 184, consideration of sections 1 and 2 of the Bill will be postponed until the Schedule has been disposed of. Is that agreed? Agreed.
Fortieth Amendment of the Constitution (Care) Bill 2023: Committee and Remaining Stages
AN SCEIDEAL
SCHEDULE
Tairgeadh an cheist: "Gurb é an Sceideal an Sceideal a ghabann leis an mBille."
Question proposed: "That the Schedule be the Schedule to the Bill."
Amendments Nos. a1a, 1a, 1 to 3, inclusive, 3a,and 4 to 6, inclusive, are related and will be discussed together. Whoever wants to speak can indicate.
Tairgim leasú a1a:
I gCuid 1, leathanach 6, línte 4 go 8 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
“Airteagal 41.2
1° Admhaíonn an Stát go dtugtar taca don Stát, ar taca é nach bhféadfaí leas an phobail a ghnóthú dá éagmais, de bhíthin cúram a thabhairt laistigh den bhaile agus lasmuigh de agus laistigh den teaghlach agus lasmuigh de.
2° Uime sin, tabharfaidh an Stát na gustail is gá chun tacú le cúram laistigh den bhaile agus lasmuigh de agus laistigh den teaghlach agus lasmuigh de.”.
agus
I gCuid 2, leathanach 6, línte 11 go 14 a scriosadh agus an méid seo a leanas a chur ina n-ionad: “Article 41.2
1° The State recognises that the provision of care within and outside the home and family gives to the State a support without which the common good cannot be achieved. 2° The State shall, therefore, provide the necessary resources to support care within and outside the home and family.”.
I move amendment a1a:
In Part 1, page 6, to delete lines 4 to 8 and substitute the following:
“Airteagal 41.2
1° Admhaíonn an Stát go dtugtar taca don Stát, ar taca é nach bhféadfaí leas an phobail a ghnóthú dá éagmais, de bhíthin cúram a thabhairt laistigh den bhaile agus lasmuigh de agus laistigh den teaghlach agus lasmuigh de.
2° Uime sin, tabharfaidh an Stát na gustail is gá chun tacú le cúram laistigh den bhaile agus lasmuigh de agus laistigh den teaghlach agus lasmuigh de.”.
and
In Part 2, page 6, to delete lines 11 to 14 and substitute the following:
“Article 41.2
1° The State recognises that the provision of care within and outside the home and family gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, provide the necessary resources to support care within and outside the home and family.”.
I will speak to our amendment, which is amendment No. 2. I very much welcome the debate and the introduction of a Bill to amend Article 41 in respect of two things - the current sexist language within it, which refers to a woman as having a life within the home and mothers as having duties within the home. The language in Article 41.2° of the Constitution has long been regarded as outdated, anachronistic and sexist. It is based upon gender stereotypes which should have no place in a contemporary constitutional text, confining women and mothers to lives and duties within the home and not referring at all to fathers as having any role or responsibilities in the home. This 40th amendment Bill seeks to change that to delete and replace that language with a different text. That is very welcome. Again, as with the 39th amendment Bill, I want to stress that we are extremely supportive of the aim behind the Government’s proposal here, but again our amendment seeks to explore in a constructive manner how best to achieve that end: to delete the sexist language but also to ensure that there is a meaningful recognition of care, both care within and outside the home. I speak not only for my Labour Party colleagues but I also refer back to my role as Chair of the Joint Committee on Gender Equality, which was established by the Oireachtas on a cross-party basis. Members of the committee are here in this House. Our committee was charged with exploring the recommendations of the Citizens’ Assembly on Gender Equality. We took the view right at the start on a cross-party basis that our role was to see how best to implement those recommendations. I commend the members of the citizens’ assembly because they took their work so seriously. They took a very strong view, first, that the sexist language about women and mothers should indeed be deleted, but that it should be replaced, crucially, with a recognition of the role of care. That care should be recognised and valued both within the home and in the wider community. That was very clear in their recommendations and we took that up, explored it, had extensive engagement with different groupings – carers, women’s groups, groups representing disabled persons. We had extensive engagement and with cross-party support we devised a wording which we regarded as effective in expressing the wishes of the citizens’ assembly and in ensuring that we would have a meaningful recognition of care in the Constitution for the first time on a gender-neutral basis, but one that would recognise care both in and outside of the home. Our proposal is what is reflected in the Labour Party’s amendment No. 2, which simply restates the recommendation from our Oireachtas joint committee.
We recommended that the current language, which is that the State recognises that by her life within the home, a woman gives to the State a support without which the common good cannot be achieved, would be changed and replaced with: "The State recognises that care within and outside the home and family gives to the State a support without which the common good cannot be achieved." That gives a recognition of care and a recognition of care outside of the home and family. The second clause we wanted to replace is the clause that currently states the State shall therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. Again, we all recognise that as deeply outdated and paternalistic language, speaking about mothers having duties in the home and if they engage in labour, it is to neglect their duties in the home. That has no relevance now to the real lives of women and of men who share duties in the home and who are equally engaged in labour outside the home. The clause we propose to replace that states: "The State shall therefore take reasonable measures to support care within and outside the home and family." In our report, Unfinished Democracy: Achieving Gender Equality, launched in December 2022, we put forward clear reasoning behind that text. Indeed, we had explored different formulations of the text in an interim report we prepared earlier in 2022. In the interim report, we used language that the citizens' assembly had used calling on recognition of care within the home and the wider community. After consultation with constitutional experts, stakeholder groups and persons with lived experience of both receiving and providing care, we took the view that the phrase "wider community" lacked precise or established legal definition and that it would be preferable to implement the spirit of the recommendation by reference to care both within and outside the home and family, using language that is already in the Constitution but expanding our recognition of care. We were also mindful of the need to ensure that we did not set up any inadvertent hierarchy of rights. Recognising the rights of the carer, as we know from constitutional experience, could have set up a hierarchy and could have meant for example that those receiving care would have their rights in some way diminished or made inferior. We were careful, therefore, not to use "care" as a verb, rather, to use "care" as a noun and as a concept. We took submissions on this from many of those with lived experience of receiving and providing care.
The text we proposed, which we are using again in this amendment, also provides for the State to take reasonable measures to support care. We were mindful here of ensuring respect for the separation of powers to ensure we were not tying the hands of the Executive or placing any undue burden or any undue restriction on decision-making about allocation of resources by the Government or indeed by legislators. The phrase, "take reasonable measures to support care", was, we believed, an appropriate phrase to use that would have a meaningful recognition of care but would leave to the Executive the ultimate decision of the measures to take and would leave the courts of course with an overarching role. That was the most effective wording we could have used. We were mindful of considering Article 42 on education where there is reference to "reasonable aid". We know that language like "endeavour to give aid" is used in other constitutional articles.
As I expressed on Second Stage, we in the Labour Party and many of us on the committee were disappointed that the Government's proposed amendment falls short of the care proposal we made in two particular ways. The first is that the definition of "care" is less expansive and more restrictive. The Government's definition would confine constitutionally recognised care to that provided by members of a family to one another by reason of the bonds that exist among them. The Minister and I have spoken about this previously. This refers to family with a small "f" and, therefore, would have a different and, presumably, more expansive definition than the definition of "family" which is capitalised earlier, in Article 41.1. The Minister is nodding. He might want to refer to that in his response.
That is the first way in which the proposed text on care is more restrictive. It is the first way in which our amendment would differ from the Government's proposal, albeit, as I stress, we are all looking to do the same thing which is to ensure a meaningful recognition of care. We proposed that care within and outside the home and family would be recognised.
The second way in which the Government's definition has fallen short of the citizens' assembly and the Oireachtas committee's definition is that the Government is proposing language that refers to the State as "striving to support such provision", whereas we had said, "the State shall therefore take reasonable measures to support care." Stronger language is again used in our text. I take the point made by the Minister on Second Stage where he said there is a strong obligation in his proposed Article 42B where the State is obliged to strive to support such provision. However, it is still not as strong as "shall take reasonable measures to support care".
We have two questions. Why is the wording so different? Why is care so confined to "care provided by members of the family to one another by reason of the bonds that exist among them"? Why is that language of "strive" less strong than the language of "taking reasonable measures to support"? The first question relates to why the language is different.
Second, the Government amendment is being put and framed as enabling a progressive realisation of stronger support for care both within and outside the home, I presume. If that is the case, how is the Government proposing to provide for that progressive realisation? What are the measures the Government will propose outside of the Constitution to support care? What are the reasonable measures that the Government is proposing through legislation or through policy that will provide better valuing of, and better recognition for, care than is currently in place in Ireland? I am mindful that the citizens' assembly report placed immense value on care. It made important recommendations on how State supports for carers and for those receiving care can be strengthened. In the joint committee's report, we proposed an action plan for the Government with a timeframe as to how the citizens' assembly recommendations could be implemented to provide, for example, for much stronger provision of childcare; for much stronger provision of care for disabled persons; care that would also recognise agency and enable independent living; care for older persons; and better provision, pay and conditions for carers. The Government is falling short in so many ways. This is not Second Stage but we all are aware that carers are really the unsung heroes. They worked through Covid-19 and it became particularly evident then. We know that carers are unsung heroes and that those receiving care also require stronger support and stronger rights than is currently the case. We might think of the enormously long waiting lists that so many children are still experiencing in waiting for diagnoses, treatments and assessments. I visited a school in Sandymount before Christmas and saw the poor conditions that children there who have significant needs are enduring. These are the ways in which we are failing in care provision currently. It is in that context that we are going to have this debate in the run-up to the referendum.
It is important that we explore the wording the Government is proposing. Why is the Government proposing this particular wording? Why is it departing from the stronger wording from the citizens' assembly and from our committee? Crucially, what are the additional supports that the Government is proposing to give for care that we can hear a commitment on and that will enable us to campaign for the referendum as an incremental step towards a strong vision of care? In the Labour Party we have a strong vision about care, State support and State provision of care, and a Niamh Bhreathnach moment on childcare to guarantee every child in Ireland a preschool place in the same way we guarantee every child a primary and secondary school place. That is the sort of strong message and strong vision that could really underpin a referendum debate on amending Article 41.2.
I want to finish by acknowledging again the National Women's Council, Family Carers Ireland, One Family, Treoir, and other organisations that have already come out and said they will be supporting this referendum. However, some have expressed concerns about weakness of language. I am thinking of, the free legal advice centres, FLAC, for example, that have expressed concern about disabled persons under the Government's provision being confined to having constitutionally recognised care just within a family that could weaken their independence and agency. That is an issue that will be raised.
I am raising these questions constructively. We are putting forward this amendment to reflect the wording our committee recommended. I am conscious that there is also a process difference. We recommended a replacement of Article 4.2 and I am interested as to why Government has proposed instead of deletion Article 41.2, the creation or insertion of a new Article 42(b) but that is much more of a technical point around the process. Our key questions are why the wording is so different and the care definition so much less expansive, and what the Government's proposals on care are that will enable us to see this as an incremental step towards a much stronger protection for care across Ireland.
This is the piece of work with which I have the biggest problem. The Government has done us all a disservice by coupling the deletion of - as I paraphrase it - the woman's place is in the home with the care question. It has done the whole project a big disservice. I say this because I know for a fact that there are already others campaigning to confuse this issue, but also genuinely because the question of a woman's place being in the home, however it is phrased in the Constitution, is one that has both embittered and emboldened many feminists and people fighting to make this country a better and more equal place for women given it is so insulting and so sexist. The history of the Constitution, how it was put together and what happened around it, is quite interesting. There is also a lot of radical history there as well. When it was being written up, as we know, Archbishop McQuaid, as the head of the Catholic church here in Ireland, had a huge input into the construction and the make-up of the Constitution but on this, he demanded that the role of women as annunciated in the papal encyclical, Rerum Novarum, be given constitutional status. This encyclical, not the Constitution, states: "A woman is by nature fitted for home-work, and it is that which is best adapted at once to preserve her modesty." Therefore, what we get in the Constitution is:
2.1o In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2.2o The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
My first job as a young worker in the 70s was in the library service of the city council. At that stage, every professional librarian or assistant librarian I worked with, worked under, and met, was unmarried and would have been described insultingly at the time as spinsters, but when you got to know them, they were great women and professionals. The reason they were not married or in a relationship was that had they got married they would lost their profession. They would have been forced by rules of the public and Civil Service to give up their jobs. Therefore, the marriage bar was highly destructive in respect of the lives of women and in respect of State services because it meant that really good people either left or were forced to live life in a different way than they would have wanted to in order to stay in their professions. It is fantastic we are finally getting rid of that. However, having coupled it with the question of care and not given the citizens of the country a chance to vote for these two matters separately, and I asked the Minister about this on previous occasions both at the briefing and here in the House, it is a big mistake not to decouple them because it would then be so easy for everybody to say "Great, vote "Yes" for that" but consider their options on the amendment on care because it is really important.
Deputy Bacik has gone through the various organisations that worked hard on this, swallowed a hard pill,and accepted in good faith that it is a step in the right direction. However, there is a "but", and it is a big one because family carers and carers outside of the home are treated so badly by the State. The State says it. We recognise that this care "gives to the State a support without which the common good cannot be achieved". It is good that the Constitution states that but the State does not give that support. I was a member of the former Carers Association at one stage and I cared for my Ma for about six years and I know so many carers who do not even get respite. They get the money for respite but they cannot get away to get out of the situation they are in. Some of them are minding two or three members of a family, sometimes in very difficult circumstances. The State is not providing for them. The Minister's amendment states the State "shall strive" to support the provision of care but what does that mean? He and his colleagues are in government at the moment. I have a low opinion of them on many issues, which I raised this morning. However, this is a Constitution that has to be both a document and a weapon for the citizens to ensure the Government lives up to the mark on a very minimum of actions for them. The Minister could say to me, or the next - God knows what Government we get - could say it strove but failed. "Strive to" holds the Government to nothing, neither legally nor constitutionally. I remember having this discussion with the Minister before and he said we could not be doing that and holding Governments to that sort of commitment in the future. You absolutely can and should. Here is another reason we should. The Minister is a member of the Green Party. If we are looking to try to amend the future as best we can to save the planet and the environment, we are going to by necessity of pulling back on the fast, over-consumptive way we live, design a future economy and a different type of way of living. It is written all over the new European Green Deal, throughout Naomi Klein's books and in all our aspirations that our societies need to become more focused on care and that means that our economy is structured to train and employ more people who engage in care to look after those who engage in care and give them the best possible life. There is absolutely nothing in an economy more important than care, unless the Minister wants to tell me that there is. I do not believe he thinks going to the moon, for example, is more important than care. Care is fundamental to any decent civilised society and, therefore, we have a real problem with that clause and have striven to amend it here. We will continue to strive to amend it and will continue to work with the NWCIl, One Family, the Access for All group and everybody who advocates for a real recognition of care by the Irish State.
This is a missed opportunity and it will probably be another generation before there will be another opportunity to change it. The language is too vague. It is insulting to carers. Many of them are looking at this and saying they cannot vote for it as it is insulting when they spend every day of their lives getting up and doing all the things they have to do. I am not going to go into the details of how people live but they live hard lives and they do not get remunerated properly or the space or supports to take sufficient breaks away from that sort of life. This is even within the family, never mind outside the family where amazing care work is done by NGOs and non-official bodies within communities. That is not properly recognised either. Interestingly though, when it comes to the right to private property, the Constitution is very explicit about holding the Government to a particular position. Article 43 guarantees that the Government will pass no law "attempting to abolish the right of private ownership" or property. If that clause is there for private property and this vague insulting wishy-washy clause is there for care, that shows the priorities of the Constitution are, and will continue to be, skewed.
In fact, one could argue that that provision on private property in the Constitution has been a barrier to proper rent controls, banning no-fault evictions and many things that should be done by this Government and this House to make life better for people. The decoupling of these things is a missed opportunity. I have moved an amendment to change the words "strive to" to "shall". That is definite language providing that this must be done. Others may say it is too strong and strident but we want to be as strong and strident as possible to say to the Minister and anybody who is listening that the most important thing in our society is how we care for each other physically, mentally and emotionally. That needs to be delivered and supported in full by this and any future governments.
I move amendment No. 3.
The Deputy does not need to move the amendment.
I will speak to it.
Only one amendment can be moved at a time. The amendment before us is from Deputy Bríd Smith.
The amendment that I and the Social Democrats have tabled proposes to insert the words: "The State recognises that the provision of care by members of a family, and within the wider community, gives Society a support without which the common good cannot be achieved, and shall take reasonable measures to support such care both within families and the wider community." Similar wording has been put forward by a number of Opposition parties, including the Social Democrats, the Labour Party and the Rural Independent Group. The fact that three groupings that would not normally put forward similar amendments are doing so speaks to the fact that the current wording from the Government does not seem to satisfy many.
(Interruptions).
That is a conversation we might have outside perhaps.
My proposed amendment is to recognise the provision of care that we see in families, with the family still being the primary caring unit for many. It also seeks to recognise the care provided in the wider community. The Government's wording makes provision for the gender-neutral element, which is obviously welcome and something we will support. However, it still restricts the value of care to the family, making it far too narrow in my opinion. Care is not just something that we do or see in our immediate families. Friends and neighbours with long-standing and well established relationships with us and the people who make up our communities also provide care.
From living in other countries, it is clear to me that we in Ireland have a very different relationship to care. We take it seriously as a people compared with some other countries where I have lived. That can be seen in the fact that we have 299,000 unpaid carers in Ireland. That number has been growing for the last number of years. The wording of the amendment from the Social Democrats is such that it recognises the contribution of these carers. They cannot be ignored in the Constitution and they should not be ignored in this constitutional amendment. The State has too long a history of not recognising or rewarding that care, even though it arguably keeps our national health service operating. It really is the silent partner of the health service in Ireland.
As mentioned previously, the language the Minister used, of "striving to" support that provision, is very weak. Striving to do something is much different from prioritising it and taking action. On Second Stage, the Minister spoke about the value of the word "strive" and the intention behind using it, emphasising that it includes a connotation to this effect that will take place over time. That time has come and gone, however. The language we use in this Bill and in the Constitution should reflect the urgency with which the State will always and should always respond to the needs of those receiving care.
With regard to the section, the Minister said in the previous debate that the wording put forward by the Government allowed for the Oireachtas to "retain the power to define both the types and levels of supports, and the criteria in respect of eligibility for those supports." That translates as the Government choosing the language that most closely resembles the status quo.
Nobody, least of all caregivers, is under any illusion that the Oireachtas is the body with the power to determine the levels of support. If the Government were to allow for it, we could pass legislation in this House that would make the lives of carers and their charges much easier and much more dignified. This constitutional amendment will not do that. It is like running to stand still, unfortunately. Perhaps the Minister will consider what he can do with the wording here. He should take the suggestions from the Opposition as they are intended, which is to strengthen the Bill's overall effect.
We constantly hear Members on the Government benches laud carers. Carers need to see themselves reflected in full in the Constitution. They also need to see the steps from this Constitution to a point where tangible benefits will be visible and actionable to them. That is very important because it is worthwhile to make these amendments and use the Constitution to reflect the Ireland we are in and the progressive country we want. It does not stop there, however. This is a continuum. What we also need to see is a pathway from the Constitution to the point at which it will provide tangible measures that will make carers' lives better. I am interested in hear from the Minister on that.
The language in the constitutional amendment is far removed from what the citizens' assembly and Oireachtas committee recommended. The citizens' assembly and committees are a valuable tool that we use in our democracy. The people who are involved in them put in enormous work and when they do so they want to be certain the Government will take on board what they say and give it the weight it deserves. There is a risk in this instance that this expectation could be undermined. It would be useful if the Minister explained why the wording of the citizens' assembly and Oireachtas committee was not taken on board.
I know that is not usual practice but given that it is not often that we debate constitutional amendments, it would be worthwhile if the Minister provided any legal advice that directed him away from the language used by the citizens' assembly or Oireachtas committee and towards the language he has put forward in the Bill. People could then understand why those changes were made and why that direction was taken. I ask the Minister to respond. I know that is not usual practice but in this instance it would certainly be worthwhile.
We are discussing this legislation in the context-----
We are discussing a series of amendments.
We are discussing this legislation and, therefore, the amendments, without being too pedantic about it and without being Michael McNamara on it.
I am just giving the Deputy the framework.
Without what?
I mean that in the most complimentary way with regard to the incisive nature of the arguments the Deputy puts forward.
In the context in which we are discussing this legislation, if we take the census of 2022, there were 299,128 people providing regular unpaid care. That figure had increased by more than 50% since 2016. We cannot ignore the fact that there is a whole series of categories of people who are providing care for those who we all represent. Much of the everyday work we do as TDs involves advocating for them or the people for whom they care.
The Government's position on this change to the Constitution is characterised by what I would call a very slow, incremental, conservative approach. The hallmark of constitutional reform in this country, sadly, has been slow, conservative incrementalism, save for maybe in latter years.
There was a giant leap forward in relation to the equality agenda but this constitutional reform could go much further. It could be much more radical to reflect where we are as a society. That opportunity has been missed. The Labour Party amendment and similar amendments before us seek to push out the envelope to reflect the fact that there are now more than 299,000 carers in this country who could benefit from the wording proposed in those amendments.
Just as we had much discussion on the definition of "durable relationships", I suspect we will come back to the word "strive". It is nebulous and does not place on the State any obligation whatsoever to provide supports. I strive to get out of bed every morning. "Strive" is an anodyne word. In terms of legislation, constitutional reform and constitutional wording, it is meaningless as regards placing any enforceable obligation on the State to provide supports. That is why we are seeking to amend the legislation in a reasonable way to ask that we take reasonable measures to support care within and outside the home and family. I do not see why the Government cannot accept the amendment given that, de facto, embedded within our polity and across Departments is the ethos of providing payments or supports for a range of carers in any event. The Government should put it in as a right, including outside the family home, and be a bit more adventurous, progressive and radical. That would chime well with the people and send a signal that this is a progressive Government which wants to effect meaningful change.
I was struck by something Deputy Bríd Smith said about the wording of a women's place in the home in the Constitution. I was reminded of somebody who, in my formative years, said that never was a single sentence more responsible for the paving of ways and opening of doors of feminist centres across the country. If she were here to see this, she would agree.
It is important to note, as we speak about care and the role of care, that there are many who would like to be here but who, due to circumstances in their personal lives which leave them to be either the recipient of care or provider or care, cannot be here. They are tuned in online and on television. My party sees them, has their back, stands with them and wants to ensure their voices are heard.
Every day, carers the length and breadth of Ireland perform an invaluable role that far too often goes unrecognised by Government. They are tired and exhausted and they feel strung along by platitudes and nice words from politicians that do not amount to a single genuine change in their life. They desperately need to see change. Carers should feel respected and supported. Instead, they feel let down and abandoned by a Government that fails to stand up for them when it matters.
These referendums should be a positive moment in Irish society, one where we can reflect on the progressive social change and long overdue rights of those who provide care. Instead, there is a concern among the parties on this side of the Chamber and the groups that work with those who provide and receive care that the Government has dragged its heels on this for so long that rejecting the words of the citizens' assembly by providing for this alternative wording that is almost a watering down of the recommendations will cause real damage. It runs the risk of creating a referendum that will be a missed opportunity to deliver the genuine change they need and want to see.
We have seen time and again a Government that is big on promises and slow on delivery. This appears to many to be the case again. This referendum should not be allowed to become yet another example of this. The Government must support sensible amendments and listen to carers and families to ensure it gets this right. I go back to what I said on the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023. It is very much about laying out where this will go from here by providing that the legislation that needs to be changed will be changed and asking what new legislation we need to have in place. Carers do not want to be merely recognised; they want the rights that will make a genuine difference to their daily lives.
The citizens' assembly and Joint Committee on Gender Equality made clear that an obligation should be placed on the State to take reasonable measures to support care within the home and the wider community. That is more than simply a recognition. The assembly and joint committee, of which I was a member, went about their work in a democratic manner. We took into account a wide range of views from stakeholders, civil society groups, experts and constitutional campaigners. All of that was reflected in the final report from the joint committee.
An obligation to "strive" to support care is far too weak and will not deliver the change that carers have asked for a long time. I share their concerns that this term is unlikely to be interpreted as imposing any enforceable obligation on the State to support care that is provided in the home or otherwise.
The wording proposed recognises care obligations within families but places no equivalent obligation on the State to support that work. The Government can argue that the provision that exists in social welfare supports represents a reasonable level of support, yet any carer will tell us about the distress and daily struggle they face trying to keep on top of their basic bills, and that is before the increased cost of living landed on top of them. This should be a matter of shame for a wealthy country such as ours and it should not be considered progress.
There needs to be a more robust text put in place. If the Minister is not willing to do that, he must be willing to come forward and outline in detail what the next steps are. If the Minister truly sees the wording of this referendum as being the catalyst for other things to take place, he should outline what they are and provide a roadmap for them for those who provide and receive care. This is not an issue that we have been speaking about for only the past five, ten or 15 years. If the Minister reads the Official Report of the debate on the night the Constitution was passed by this House, he will see the divisions about the support or lack thereof for this area started then. We know the impact that this has had. It is now the responsibility of Members of this House to ensure that stops and never happens again, and that there is never again an environment in which it could happen again. We must ensure the referendums bring about enforceable rights, stronger constitutional protection and practical improvements in the lives of diverse families, carers and those with disabilities, not only symbolic recognition that results in no real change.
The addition of the new Article 42B would mean the only mention of people with disabilities in the Constitution is the implicit reference to them as being the subject of family care. As FLAC has outlined, this creates a tension between the Constitution and the provisions of the UNCRPD. To my mind, it is also deeply disrespectful to those who receive care and have disabilities.
Many individuals and organisations have been reaching out not only to me and my party but to the other members of the Joint Committee on Gender Equality since its report was published over a year ago. Their concerns are not based on some flight of fancy but on the lived experiences of those they represent, who tell them that things will not change if the Minister is not willing to take the next step and outline what will come after the referendum. If he is genuinely committed to this being the first step, he should outline what the next steps will be.
This referendum should be about placing Ireland on a road to a statutory framework that provides rights to care receivers and care supporters. It is, in effect, in many ways, a once in a generation opportunity to move from care as charity to care as a matter of rights. It is no surprise that we are an outlier among our European neighbours in our statutory entitlements to care services or support for carers. The Irish Human Rights and Equality Commission's July 2023 policy statement on care states: " Every stakeholder we engaged with in the writing of this policy statement advised that accessing care services in Ireland is a ‘postcode lottery’." The Government must listen to the people and clarify what it is seeking to achieve in this proposed wording and what it will mean in practical terms for both law and policy. Without the Government doing that, this, to my mind, will struggle to pass. If this does not pass, those who provide and receive care will in no way be better off than they were beforehand. They need action, not symbolism; they need rights and not gimmicks.
We need to be aware, as we stand here, that those groups that engaged with the Committee on Gender Equality and in so many other forums over the years, around the rights of those who receive and give care, may go out and call for a "Yes" vote, but they are doing it based on this fraction of an improvement. It is not the monumental step it could and should have been. They are looking and seeing that the improvement is almost negligible but they are not going to go out and ask for a "No" vote for the risk of removing that tiny improvement to the lives of those they represent. I ask the Minister to lay out what are the next steps for them. Let that tiny bit of a vote be a stronger voice. Let us make sure this is supported and that the campaign is run properly with proper information and a shutdown of disinformation. Let us do those who need this to pass the justice they deserve.
I support our amendments and the others that go in the same direction. I am disappointed, if not surprised, by the extremely limp wording proposed by the Government to replace this section. Having such poor wording, which is correctly open to strong criticism, as we will make, not only misses an opportunity to make a meaningful difference for carers in this country, but also endangers this referendum and the prospect of removing the odious women in the home clause from the Constitution. I appeal, even at this late stage, to the Government to listen to the Opposition and to all of the progressive campaigning organisations that are urging it to take this opportunity to insert something meaningful on carers into the Constitution. The wording the Government has proposed is, and is being perceived as, an insult to carers, whether they work inside the home as family carers or outside it providing care to children, older people and people with disabilities. Earlier on, Deputy Bríd Smith outlined, extremely eloquently, precisely how important care is and she outlined the need for a society that is based around care and which elevates care, as opposed to taking care as free or significantly underpaid labour, overwhelmingly done by women.
In People Before Profit we are in favour of the removal of the backward women in the home clause. It is a disgrace that it has stayed there for so long and it is a testament to how cowardly and conservative all of our Fianna Fáil and Fine Gael-led Governments have been. This is a country that voted for marriage equality and repeal and we still have this ridiculously misogynist clause in our Constitution. What is a disgrace is that the Government has bundled up getting rid of that clause with approval for its proposed new wording on family care. As has been pointed out, it could easily have proposed two separate referendum questions to give the decision to the people: one to delete the women in the home clause; and another to insert new language obliging the State to provide the necessary resources to support care. Instead of that we have a dangerous sleight of hand by the Government trying to force people to accept its wording on family care by tangling it up with removing the awful language on women in the home from the Constitution.
The Government has not been behind the door about why its language is so weak. The Taoiseach and other Members of the Government have been quite up front in the House and in the media in saying they do not want to put new rights for people into the Constitution that would be meaningful because that would give people new rights and would cost this Government and future Governments money. They say it would tie the hands of future Governments by way of a change to the Constitution. They seem to think that would be a bad thing to do. Recognising the work of carers, whether inside the family or outside the family, putting it in the Constitution and obliging future Governments to recognise that, respect them and ensure they are paid properly, would be a good and meaningful thing to do. It points in the direction of the sort of Constitution we should have, one which contains meaningful rights for people, including the right to a home, for example. Instead it appears the Government has told its lawyers and the drafters of this proposal to make sure they come up with wording that will not place any new obligations on the State to support care. They do not want to be obliged to: employ care workers directly; fully fund childcare; provide a decent standard of living for family carers; or legislate for paid leave for workers with caring responsibilities. That is why we have ended up with this extremely mealy-mouthed waffle that the State will "strive to support" care provided by family members only.
There is a scene in "The Simpsons" where Bart Simpson is asked to do something and he says "I can't promise I'll try, but I'll try to try." That is effectively what the Government's wording of "strive to support" is. It is a meaningless phrase and it is designed to be as meaningless, in practical terms, as the women in the home clause has always been, in the reference to not having to engage in work outside the home and so on. That clause never meant that women would be paid wages for housework. There was language in the Constitution about women not being forced outside of the home by economic necessity but it never resulted in any financial benefit to women who were in the home and it was part of a reactionary, right wing, Catholic and authoritarian vision of women's role in society. The new clause will not be of any financial benefit to family carers either, most of whom are women, as well as excluding carers outside the home entirely.
All the women of Ireland are getting from this referendum is as follows. We will get rid of the women in the home clause; that is correct, we support that and that is what we want to see done. However, then we get a more modern, more up to date and paternalistic pat on the head delivered right on time for International Women's Day. Where did International Women's Day come from? It was established by socialist women, women like Clara Zetkin, who dedicated their lives to fight for meaningful new worker's rights and political rights for women, like the right to vote, to hold public office, to an eight-hour day, and to a five-day week with paid holidays and maternity leave. In stark contrast, we have this Government and its lawyers staying up late nights, drafting this wording, to ensure it is as meaningless as possible in granting new rights to people.
We in People Before Profit, with our amendment, are doing the opposite. We are putting forward wording that would oblige the State to provide the necessary resources to support care, regardless of whether it is provided inside the home by family members, or outside by paid care workers. That is the least that carers deserve. It is also what the citizen's assembly thought when it voted, overwhelmingly, for the women in the home clause to be, "deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community." There was nothing in that about striving to support family care only. It wanted all care to be properly supported and so do we.
There is a proposal to delete from the Constitution the infamous woman-in-the-home clause, a backward, reactionary, sexist, archaic piece of nonsense. Everyone who wants progress in this country will support the deletion of that clause without question. It has been in the Constitution for 87 years. It has taken Fianna Fáil and Fine Gael 87 years to catch up and delete that backward clause, which was dictated by a Catholic archbishop, if not actually written by one. In any case, it is good enough that it is going.
As in the previous debate, we are debating a proposal for a bit of progress that is extraordinarily timid. What does the Government mix it up with? This is its proposed new wording:
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
I saw the Minister shaking his head when Deputy Murphy made the point that the word "strive" was very carefully and deliberately chosen, because it all adds up to no real commitment whatsoever. The Minister is shaking his head again. He should look the word up in the dictionary. It does not impose a legal commitment on him to deliver. There are plenty of people who on flicking the page on the calendar – maybe that is old-fashioned – from 31 December to 1 January, New Year's Day, or on doing so on their phones, made a new year's resolution to strive to lose a bit of weight or go off the alcohol, at least for the month of January. Some will succeed but many will not. Probably a majority will not. The wording does not give a commitment to reach the end goal, yet the Government decided on it deliberately and in a calculated way.
The wording "gives to Society a support", rather than "gives to the State a support", is deliberate. If it stated "gives to the State a support", it would, at the very least, strongly imply a legal obligation on the State with relation to improving the carer's allowance, childcare provision and rights thereto and improving care services for the elderly, people with disabilities and others. Therefore, the Government has quite deliberately not put itself or future Governments in a position in which they have a legal obligation. They should have a legal obligation regarding all I have mentioned.
When the Taoiseach was asked before Christmas, on 5 December, whether he would consider a wider definition of care that might benefit carers, he said the following:
It is something we gave careful consideration to. The first thing we are proposing is to delete the archaic sexist language in the Constitution with regard to a woman's duties in the home and to replace it with a new article which gives constitutional protection and recognition to care within the family. It does not necessarily have to be within the home but it does have to be family care. We took the view that family care is different. It is different to care provided in nursing homes or by commercial home care providers, for example. We took the view in the round that while it made sense to give constitutional protection and status within the family, extending that protection to commercial operations in the main, such as nursing homes and home care providers, would not have been the right thing to do.
When I read that, I noted the irony of it – the irony of those words ringing out today when the Government has just announced that home care assistants from outside the EEA will be excluded for a period we do not yet know from the new minimum rate of €30,000 a year for people with work permits. People who work in horticulture, meat processing and butchery and those who work as language skills specialists will get €30,000 per year but the home care assistants, who are professionals and who are mainly nurses, many from India, will be excluded for now. Why? It is because the Government has been asked to exclude them for now by the bosses in the nursing home industry. Nursing Homes Ireland, representing the for-profit nursing homes, asked the Government to leave these women out of the picture until such time as they are ready. It is interesting that representatives of Nursing Homes Ireland had a meeting with the Minister about this. The Minister granted them a meeting and asked them to come in on the basis of there being no issue.
Not the Minister, Deputy O'Gorman, but the Minister of State, Deputy Richmond. Migrant Nurses Ireland asked the Minister for a meeting. Did it get a meeting with the Minister? It asked for a meeting with the Minister of State, Deputy Richmond, on the work permit issue but it has not had a meeting with him to date.
I have met them.
However, the Minister of State had a meeting with the bosses, the representatives of the for-profit nursing homes. Therefore, the attitude towards the businesses is quite clear. The attitude to the women workers who do crucial, stressful work in our society is also clear. They cannot bring their spouses to this country because they are not on €30,000 per year. They were promised they would get it but now the Government is saying they will not, not for now in any case. That is an absolutely disgraceful position. It is part of this debate because it shows the Government's attitude towards carers and the failure in the proposed amendment to deliver a legal obligation to provide a better life for people who care, who are overwhelmingly women.
Getting rid of the women-in-the-home clause is positive but what we need is not a timid, minor change but a bold measure. The Government should accept the amendments put before it here tonight.
In the debate on the last amendment, we talked about red herrings representing a real challenge to the making of amendments. One of the other challenges will be getting people excited about this referendum. Many people, when discussing it with them, will ask what difference it will really make. They often say that what the existing language implies is not what happens in Ireland now and that it is just old language in the Constitution. Irish people are incredibly proud of their written Constitution. Looking at other countries that do not have one, we value ours, mostly because it is the people's document. It is a living document that has changed over the decades. The Irish people, when they have been allowed to have a say, have made progressive, forward-looking decisions.
I think about this clause and the archaic language.
People will say to us "sure none of that really impacts women today anyway, does it?". The reason it does not is because of women in this House and outside it who campaigned in many previous decades to make that clause, which was always wrong, look obsolete on the basis of extending rights elsewhere, such as employment rights and rights in social circumstances.
The Minister is right. Our Constitution is also about the values we have and, therefore, of course it is correct. On any initial reading of the Constitution by anybody, that clause always jumps out as something that is fundamentally out of step with our society and has been out of step for many years, so it is entirely appropriate to remove it from the Constitution. On that test, what we have put forward achieves that. Many people fighting for additional rights relating to gender equality for all those years would have seen that clause as a symbolic interference in the extension of rights to women and its removal is also symbolic.
Something else happened in the introduction of the citizens' assembly to the process. The citizens' assembly took that nugget of the provision where there should be no economic necessity relating to providing care. The nugget that was discussed by the citizens' assembly and expanded on by the joint committee discovered a desire to constitutionally protect care. We used a different process and by using a different process, we also discovered a desire by the broader public as reflected in the citizens' assembly to constitutionally protect care. It also said that we would constitutionally protect care inside the family and care in the wider community.
In the discussion on the previous constitutional amendment, the Government made a very positive and affirming decision to redefine the family; being perhaps more positive and affirming than even the joint committee. Regarding this constitutional amendment, we have gone for the most minimal intervention, which will be disappointing for many people who wanted to see care enshrined in the Constitution. We saw it when we went into consultation. When our wording was put out for consultation, they came back and asked us to extend it and for it to be expanded.
The Minister will say that he had a job, which was to implement the recommendations of the citizens' assembly, and the genesis of this debate was about removing this offensive clause. Mission completed; that has been done. If this passes, nothing we have said here today should be used in any way as an excuse not to vote for this constitutional amendment. We should repeal and remove the current wording. It is out of step, so nothing in this debate should be used as a reason to vote "No" and I would encourage people to vote "Yes" on the wording put forward by the Government.
However, we have not necessarily grasped the opportunity to define care more broadly in the Constitution. Perhaps this was not possible within this current process and perhaps it is not possible within the current mandate of the Government but there is unfinished work there in terms of a broader expansion of care. What it does do is provide recognition of the unique care given within a family. We still have unfinished business in that area that can be dealt with outside of constitutional circumstances. We treat care very differently. If an aunt fosters a nephew or niece, a level of financial contribution is made by the State but if a child cares for his or her parents, there is a very different form of financial support. In fact, it is means tested and depends perhaps on the employment of his or her partner and so on.
Removing this reference is a very positive step. It satisfies the mission that was given and is important. The proposal also recognises care within the family and the Government could still put forward a number of legislative amendments that would more fully reflect that. In particular, the Minister for Social Protection could look at how she could do that. There is unfinished work here for this Government or future Governments in terms of seeing how care can be better reflected in the Constitution.
I have two technical questions to finish with. We were concerned about introducing the term "care" into the Constitution. Was there any discussion between the Government and the Attorney General or within Government about defining care and what might mean? It is a new term in terms of the Constitution. What was the reason for inserting it as Article 42B, rather than leaving it where it was?
At this stage, maybe it is important to remember what is being proposed to be removed from the Constitution. It is that the State shall endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. A friend of mine with whom I went to primary school and I were sitting back over Christmas discussing life generally and musing on the fact that when we went to national school in Scarriff, the vast majority of children in that school had one working parent and one parent in the home. In the vast majority of cases, it was a father who was working - many fathers worked in the chipboard factory in Scarriff - while the mother was in the home. My friend made the point that this is not possible now because in the vast majority of cases, it would not be possible for one parent to support a family, put a roof over its head and meet the costs required to support a family now.
One might ask how this came about if this was in the Constitution. Time has moved on and not just in that regard, which many might regard as a negative. In many families, including my own, a career is very important to a mother and it does not have to be a choice between neglecting one's so-called duties - because they are duties that are shared - and going out to earn money. Sometimes people go out to work because a career is hugely important to them. A career is obviously as important to many women as it is to men. There are many women who want to pursue a career. Likewise there are many men who are leaving their home out of economic necessity, whose wives have careers and who would rather be in the home but have to go out because of the sheer cost of maintaining a family.
Instead of looking at that, we are going to change it. It is all well and good deciding what wording we are to propose but how will it be interpreted? Deputy Bríd Smith, who would probably be delighted to hear that I do not agree very often with her, asked how "strive" will be interpreted by the courts. This is what it comes down to because when we make changes, we do not know how they will be interpreted. This was de Valera's Constitution and many like to deride it as being old-fashioned and insulting to women. It was a very forward-looking Constitution at the time it was introduced
That is why all the progressive women opposed it.
By reference to the constitutions that existed in Europe at the time, it was a very forward-looking Constitution. Many, not all, aspects of it are still forward-looking and can be interpreted in a manner that is relevant to modern life. This is one of the aspects of it that is not but equally, it is one of the aspects of it that has been interpreted to be virtually meaningless because I suspect that most families now require two incomes to support them, notwithstanding this provision. I do not know if there have been that many cases where it has been cited.
I think there may have been one case in which it was relevant to the determination of the case. I would just like to know what the Minister means by "strive". I brought up what the Minister meant before and he said it will mean this, because the courts have interpreted it up to now as this. If, however, we change something, we expect, surely, that the courts will interpret what we change differently from that which was there before because we have made a change. I was reminded in the time between then and now that Adrian Hardiman predicted during the debates on the eighth amendment that it would lead to travel injunctions. He was derided by some for making that prediction, but the history is as the history is. I just do not accept that anybody in this House can predict how the courts will interpret something. A very senior politician and statesman from my constituency at the time the eighth amendment was being introduced was asked about it by those who were seeking to have it introduced. He said it would be a huge mistake to do so from their perspective. We know that the Oireachtas, and TDs generally, are a conservative body of people, predominantly men, so we move very slowly. We know equally that the courts are less conservative, and it will fall to the courts to interpret what an amendment means. That is, ultimately, exactly what happened. I think that for many who wanted the eighth amendment introduced, it did not exactly ensure what it was they sought to bring about and, in fact, arguably, led to an opposite effect than had they just sought to change things by way of legislation.
I therefore simply do not accept that it is possible to predict what certain words will mean, like when we talk about a "durable" relationship. Which relationships will be covered? When we say the State will "strive" to do something, what will the courts interpret that to mean? What I would like to know is what the Minister envisages because that, at least, is something, even though it is ultimately, I would have thought, irrelevant what anybody in this House thinks it means because it will fall to be determined by the courts, as with every other amendment. It is for that reason that, in general, I do not believe in holding referendums unless they are absolutely necessary. First, they cost a lot of money, second, they cause a lot of confusion and, third, they lead to a lot of litigation. We know what every provision in the Constitution means. Every single provision up to now has been heavily litigated, and we know that when changes are made, they will be heavily litigated. We know what each of us would like and we might not all agree on how we would like the courts to interpret something. Ultimately, however, it is for the superior courts to interpret what a provision will mean. When we say "strive", then, what does the Minister want that to mean, and what legislative changes will he make? It is all well and good to throw out a constitutional amendment, but what legislative changes does he envisage introducing in order that the State or the Government strive to bring this about? If he does not propose any legislative change, if he does not think any is necessary or appropriate, then he is saying, "Vote for this, but it is meaningless because we do not need to make any changes as part of our striving."
I will support both the Government's amendments to the Constitution. I will do so with reservations but sometimes you have to look at the bigger picture and the greater good. All my political life, I have campaigned for adequate support for family carers and all that entails. Family carers, I have always said, along with volunteers, are the glue that holds our society together. They allow our societies, as we have constructed them, to function. That should never, ever be taken for granted.
I want to recognise the contribution of many organisations to this debate. From my perspective, I especially want to mention Family Carers Ireland, which is represented in the Gallery today, and to recognise its huge contribution to the debate and its support for family carers.
The Government's amendment is not as strong as I would have hoped - indeed, it is weakish - but it is still a recognition within the Constitution that the Government "shall strive" to support the provision of care. I believe it is not strong enough, but it is not nothing, and that is important. We need to be very careful in the arguments we make in this House today because we could well put many people off from voting yes on these amendments. People need a reason to vote. They are busy, they are getting on with their lives and they have lots of things to do. They need to feel that their vote will matter and will accomplish something. We need to be very careful. We have used this phrase before but we need to use it here: we cannot make the perfect the enemy of the good. What the Government has here is far from perfect but I would consider it good in that context. If we say in this House that this amendment carries no weight for care or carers or that it means nothing, many people watching and listening today will say to themselves, "If it means that little, if it means nothing, why should I vote for it?" They will ask, if there is nothing positive in it, what is the point in voting for it or, even, what is the point in voting? We therefore need to be careful as to what we want to achieve here. If other people were in government, we would have different amendments. They are not in government. The Government Members are in government and they have come forward with this wording and it is either a yes or a no at the end of the day. Those of us who see this as a small first step cannot say it is worthless because it is not.
It is important to state again what this amendment states:
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
I agree that the words "shall strive" are debatable. "Shall" is strong. I know that because in European legislation it was seen as a strong word to use as it indicates an intent to do something. "I shall" means "I intend to". "Strive", again, involves not just making an effort but making considerable effort, perhaps even big efforts, to do or to achieve something, so "shall strive", in my view, carries weight. Perhaps the issue here, however, is that it does not imply an obligation or a definitive legal commitment. I agree that it does not, and I think that is what family carers would like to have seen: a constitutional commitment to support and protect care and, by extension, family carers who provide vast amounts of care.
What I think would help is that the Minister or the Taoiseach - his Government - would give a commitment to use this proposed clause in the Constitution, if the people decide to pass it, as a basis for delivering a meaningful package of support to carers in the next budget.
I agree with what Deputy McAuliffe said earlier. He said there is unfinished work here. Citizens are very suspicious of unfinished work, and rightly so, because they recognise that unfinished work is very often left unfinished. They do not want to see that and they do not want to be part of it. There is a real burden on the Minister and the Government. If they really want to show that this change means something, the Government will need to show that it is meaningful. It will need to commit to doing that in the next budget. It will need to make that commitment before we vote in the upcoming referendums.
One simple example might be the need to abolish the means test for carer's allowance. One family carer I know very well describes that as the "mean test". It is important to read what is in front of us because that is what we vote on. We do not vote on any other ideas or thoughts. We only vote on what is in front of us. The Minister says in this proposed amendment that carer's contribution gives to a society a support without which the common good cannot be achieved. That is a strong statement, but if the income of a carer's partner is what determines the allocation of carer's allowance, which it does, this does not mean what is written here. I will read it one more time because I think it is really important. If saying that provision of care by members of a family to one another by reason of the bonds that exist between them gives to society a support without which the common good cannot be achieved is to mean something, the Minister needs to give a signal to people that it will.
I believe this new amendment can be used as a basis to argue for proper supports for family carers. I want to see people coming out and voting "Yes" but in my experience of referendums, having been involved in a number, people need a reason to vote. While the words here are not strong enough, they still imply a moral obligation on Government to deliver, but like unfinished business, moral obligations often carry little weight. That is why I am saying that the Government needs to show that the words it proposes to be inserted in our Constitution will mean something and that the Minister and the Government will be the people who will deliver on it.
I welcome the opportunity to speak on this Bill. I did not speak on the earlier constitutional Bill. I spoke on it on Second Stage. I indicated that I was fully behind that. I will be voting for that amendment. I have serious concerns about this one. I will start with FLAC's concerns, which have not been dealt with. I know we are speaking to a combination of amendments here, all of which seek to make the amendment to the Constitution stronger and to put an obligation on the Government to give meaning to its words.
Of all the submissions I have read, all of which have been extremely helpful, I have found that FLAC put the spotlight on its concerns and none of them has been addressed. The first is the lack of clarity about the amendments, what they are seeking to achieve and what they will mean in practical terms for law and policy. That has not been answered. The second is that, "The amendments (as currently worded) will not deliver meaningful enforceable rights and stronger constitutional protection for women, families and carers - as well as other groups who experience discrimination and disadvantage, such as people with disabilities. Instead, they are focussed on symbolic recognition alone." The Minister is shaking his head. I will not waste my time trying to stop him shaking his head but I fully agree that this is a symbolic change that is absolutely empty.
I will go out on a limb and say that I would prefer the existing wording, which is not gender neutral and is of its time. I will give some reasons why I would prefer that. I would have more hope of action under the existing wording in the Constitution than I have with this. The third concern of FLAC is, "The wordings diverge significantly from the recommendations made by the Citizens’ Assembly on Gender Equality and the Joint Oireachtas Committee". I thank the citizens' assembly and the joint committee for all of their work. By and large, it has been absolutely ignored with this symbolic changing of wording in the Constitution that is unhelpful. It has been pointed out that two have been conflated or put together, which should not have happened. Those are the removing of language and the putting in of caring, with no choice for anybody. I have serious difficulty with promoting this referendum. I have repeatedly classified myself as a very strong feminist. I would use many other adjectives but this is an insult. It is a double insult to hold it on International Women's Day.
I thank the Library and Research Service, LRS, as usual, for producing its Bill digest. I will give the context and the history, thanks to the LRS and my own knowledge and work in the office. It has succinctly set out the background to the changes. I am backing the amendments that have been tabled and striving to make this better. It is unforgivable that we are here today when we are really talking about decisions to change this that go back to 1993. The LRS has carefully set out for us that, in 1993, the Second Commission on the Status of Women recommended the deletion of Article 41.2.2°. It did not happen, of course. We then move forward to 1996, when the Constitution Review Group recommended deleting the article and replacing it. I will not go into all the wording because of time constraints, but it actually gives wording. The theme through all of this is that they all use "shall endeavour", so I am not sure where "strive" came from.
In 1997, the year my second son was born, the First Progress Report of the All-Party Oireachtas Committee on the Constitution recommended deleting the article and replacing it. Fast forward to 2006, which is a big gap. The Tenth Progress Report of the All-Party Oireachtas Committee on the Constitution recommended amending Articles 41.2.1° and 41.2.2° and set out why. It gave alternative wording. In 2016, a Government task force was set up. It set out a number of options. It gave out what should go in. Putting an obligation on the Government did not happen, of course. In 2018, we got a ministerial announcement, just like that. There was really no back-up to it. It was to delete the article but nothing was put forward to replace it.
That is the background to how we are here today. I understand pre-legislative scrutiny was waived but I am open to correction on this. It should not have been waived. I understand the committee agreed to that. That was a bad decision. I am going out on a limb here. That is the place to tease out all of this, to look at the background and at all of the issues that were put forward since 1993, and to come up with some wording.
In the context of carers, we are ostensibly taking out wording that is unacceptable, which places the woman in the home and gives her a particular role. We have spoken many times about all the other parallel developments that happened in the 20th century, when we had the whole architecture of containment, which we have spoken about that many times. That did not have to happen, of course. A different interpretation could have been taken of that very narrow wording in the Constitution. I might get a chance to come back to that.
Family Carers Ireland has been mentioned many times today.
I thank its members for their work. They have a progress report on what has happened regarding Government action from the programme for Government. They identified 18 commitments. I am sure the Minister is very familiar with this. They are very good. They are very positive. They give the Government a good progress report for three. Let me absolutely back that up, particularly in respect of the Minister, Deputy Humphrey's, announcement about pensions for carers and other matters. They clearly highlight that. That is three of 18. Of the other 15, four received a regressive mark, as they are going backwards; six received no score; and five received a score of limited progress. That is outlined by Family Carers Ireland, as well as giving us all the details about the facts and figures. Those facts have been quoted here today. We have almost 300,000 family carers. It is a conservative figure in relation to carers on unpaid leave. I understand other figures put it much higher at almost 500,000 unpaid carers.
What does the OECD tell us? Let us look at what care does for society, states and all of us. Even if carers were given the basic hourly minimum wage, the OECD tells us it would amount to 9% of global gross domestic product. That 9% is a very low valuation put on caring. One would think at this point, after the Covid-19 pandemic and given the transformative change we need in this society, that we would be recognise the invaluable work done by carers in our society, putting a value on it and putting an obligation on the State to deliver on that obligation. Where is that transformative change? An empty symbolic gesture will go into the Constitution without any obligation whatsoever on the Government.
Women's organisations are trying their best to be positive because we have so little expectation, due to different Governments. The women's organisations that have fought gallantly to bring equality are saying, "This is good, but...". We have TDs - I understand where they are coming from - saying "Yes" and let us lay out the stall. This is the time to lay out the stall or not change the Constitution. That is not what is happening. We are going backwards.
The Irish Human Rights and Equality Commission, IHREC, gave its report in July 2023, which is well worth reading because it puts context and value on care, stating "Despite the immense value of care, it has been conceptualised by the Irish State as a commercial ‘product’ and been undervalued, unrecognised, and often low paid or unpaid." That is a direct quote from Kathleen Lynch, emeritus professor, who has done marvellous work on the commercialisation and privatisation of care. She and other writers have highlighted the difficulties and consequences of that. We have seen it lately in relation to nursing homes and the report by the ESRI that now tells us more than 80% of long-term residential care is provided by the private sector. We needed the ESRI to tell us what we have been saying here for years. Please stop privatising the care profession. Now nursing homes are almost 40% or 50% reliant on money coming from equity funds. When we have the next recession, bang go our nursing homes.
It is the same with care. We see the privatisation of care again and again. The IHREC report states that, defined as a product, care is removed from its relational nature and this institutionalises commercial norms. It goes on to state that "seeking to make a profit from care is antithetical to its values".
The impact of the current flawed system is stark, with a growing crisis in the care sector and resulting negative outcomes across society...In order to ensure social and political justice, public policy-making must be grounded in the ethics and value of care and prioritise human rights-based solutions.
We saw during the Covid-19 pandemic, what happened when human rights-based solutions were not prioritised. We saw the direct consequences of the privatisation of the care of the elderly and we see it on a daily basis, with people struggling to care for loved ones who are on the spectrum of disability. They are struggling and being met by the Government response that it provides millions of homecare hours. We know on the ground that they are struggling and up all night. We hear insulting language from the Taoiseach who talks about being there for the people who get up early in the morning when some people do not even get to bed because they are caring for nothing or next to nothing. This was a golden opportunity to change that and to say the privatisation and commercialisation of care is not in the interest of our economy. It was time to value it and bring in the transformative change. That has not happened.
IHREC is taking this from a lot of writers and clearly points out that "market driven solutions can no longer be the answer [yet] the care sector in Ireland has become increasingly privatised and commercialised, with State resources being directed towards for-profit companies" to help them make a profit. It goes on to make many recommendations which are relevant but I will not go into them here.
I will go back to the wording in the Constitution and finish by looking at it for a little while. I agree, which the Ministers might find surprising, with the amendments, or certainly the tenor of them, tabled by the Rural Independent Group, Deputy Mattie McGrath and his colleagues. Why do I say that? The Constitution tells us that the mother should not be obliged to work outside the home because of economic necessity. Certainly, the wording needs to be changed and the consequences of zoning in on a woman and the parallel developments in Irish society, by a male dominated patriarchal society were totally unacceptable. However, the concept behind it is the kernel of what this debate should be about and it has not been mentioned. No carer, whether a mother, father or whatever category they work under as the primary carer in a house, should be forced out through economic necessity to a different or additional job. That was the kernel of the article the Government is now changing in a very pathetic manner, perhaps without recognising that there was huge scope in that article, as judges have pointed out. Mrs. Justice Susan Denham did so more than 23 years ago in a dissenting judgment, pointing out that the article placing the woman in the home and giving that recognition in the Constitution was doing something valuable and could be interpreted in a modern day context, not to only apply to a woman, but put an actual value on the work. She is not the only judge who has referred to this. Hers was a dissenting judgment. Other judges have expressed surprise that the existing article has really never been tested.
Given a choice of what the Government is proposing in this referendum and what is there, I would take my chances with what is there and leave it to the Judiciary in an appropriate case to interpret it in a modern capacity that does not limit the recognition to a mother but recognises the value of care without which society and the economy cannot function. That is what the debate should be about. That is what the debate should have been on pre-legislative scrutiny. I am now left with a decision to make, which I have almost made, unfortunately. I will strive to keep an open mind. The existing article is stronger because of the possible interpretation by the courts if it were tested, than what the Government is proposing which takes away any obligation on the State to do something. It has gone away from the citizens' assembly and the Oireachtas joint committee. They have simply been ignored. The Government has put this in and it is absolutely unacceptable.
The question Deputy Harkin put is a good one. How do we explain to the citizen faced with the ballot? It is the citizens' choice. What is the reason for voting "Yes"? In both cases, in my mind I argue that it is to support and value the family, every family. The broadening of the definition we will introduce in Article 39 is vital because a lot of families are excluded from the current provisions.
I disagree with the Leas-Cheann Comhairle about retaining the existing words. I understand her arguments around economic support for people who are in the home, but the language is clearly sexist in a variety of ways, including not recognising the caring work that many men do in the home.
If you are going to quote me, that is not what I said.
I take that back. I believe it needs to be changed. The Leas-Cheann Comhairle outlined the history. In 2018 I remember the Dáil at the time said at the last minute that we would just delete the article. Several political parties advocated for that. We fundamentally disagreed and said that if we delete and do not replace, then we will not recognise the caring work that goes on in families across the country. That would not be acceptable.
There is diversity in caring work. It is about how we raise our children and families, but it is also about how we care for our elderly in the home. Care happens in a variety of different areas. It is appropriate to give some real recognition of the home and family in the Constitution.
Anyone with experience of how our State works knows we need to provide greater support and value the endless, vital and precious caring work that happens for people with disabilities in our country. We need to change the Constitution to ensure it is not sexist but also leaves the family the choice of the best way to do things. We need to provide for the alternatives that people choose. The State must not be judgmental or centre stage. Families are best placed to decide on the most appropriate caring arrangements. We need a range of different supports. We need to recognise in particular caring work at home because it tends to be forgotten and is not part of the economic paradigm in many cases. That is why the amendment is critical and why we have to get a Yes vote.
Others have said we need to go further. Deputy Harkin said we need to provide for an obligation on the State. It is a very attractive prospect, but our Constitution is not necessarily the best place to cover all the obligations we have to support families in a variety of different ways. Our Constitution cannot go down to that level and take the job of what a democratic constitutional Oireachtas has to do, namely allocate the State's limited resources taking into account the Constitution.
The Constitution cannot write the budget for us. In many ways, if we do that and allow the Constitution to take over the job of the House I do not think the Constitution would have done what Minister O'Gorman has done, such as cut childcare costs in half. Others have said we need to back up this with further actions. We do. We need to recognise pension entitlements for people who have worked in the home. I could go on. We could recognise disability, the ability to get respite and a range of other measures which are part of the family care that is needed. I do not think we can constitutionally deliver the budget in any amendment. Our key job is to set a value and clearly direct and push the Government towards recognising the importance of care. I believe the wording does that.
Deputy McNamara referred to the word "endeavour". In truth, over the history of the State that word has not led to the legal system taking decisions that would interfere in the State because the Judiciary is sensitive about the separation of powers and realises it cannot become the budget operation. We would like to think that at some stage over the history of the State the word would have had legal effect but it has not. The Deputy asked about the Government's choice of wording. It was deliberately picked to send a signal that we need to go further.
A cursory glance of the Internet and listening to the debate brought me to the definition of the word "endeavour". It means, try to do something, make an effort, make an attempt, strive, make great effort, devote serious effort or exert ourselves vigorously. Deputy Harkin said that in the European Union the term "strive" is recognised in stronger language. In proposing the wording, the Government is absolutely sending a signal about the need for a greater imperative for care, in particular in the home, which tends to be forgotten. That is why I will be asking people to vote Yes.
Every single family that has a disabled child, every single lone parent family currently not recognised in our Constitution and every family caring for elderly people or raising children in whatever way they decide need this wording to value and support that work. That is the reason to vote Yes in both cases.
We need time for the Minister. Will you make a brief contribution?
More than brief.
We only have 38 minutes left.
I will not take 38 minutes.
I need the Minister to be able to respond.
On behalf of the Rural Independent Group, I will outline our amendment, which states:
AN SCEIDEÁL
1. I gCuid 1, Leathanach 6, líne 5 go 8 a scrisadh an méid soe a leanas a chur ina n-ionad:
“Admhaíonn an Stát go dtugtar taca don Chomhdhaonnacht, ar taca é nach bhféadfaí leas an phobail a ghnóthú dá éagmais, de bhíthin cúram a bheith á thabhairt ag daoine de theaghlach dá chéile toisc na snaidhmeanna atá eatarthu, agus beidh an Stát ag dréim le tacú leis an gcúram sin a thabhairt. Mar sin de, déanfaidh an Stát iarracht a chinntiú nach mbeidh ar lucht cúram teaghlaigh obair a dhéanamh de dheasca géarghá eacnamaíochta ag neamartú a gcuid oibre sa bhaile,”.
agus
I gCuid 2, Leathanach 6, líne 12 go 14 a scrisadh an méid soe a leanas a chur ina n-ionad:
“The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision. The State shall, therefore, endeavour to ensure that family carers shall not be obliged by economic necessity to engage in labour to the neglect of their work in the home.”.
I move amendment No. 1:
SCHEDULE
1. In Part 1, page 6, to delete lines 5 to 8 and substitute the following:
“Admhaíonn an Stát go dtugtar taca don Chomhdhaonnacht, ar taca é nach bhféadfaí leas an phobail a ghnóthú dá éagmais, de bhíthin cúram a bheith á thabhairt ag daoine de theaghlach dá chéile toisc na snaidhmeanna atá eatarthu, agus beidh an Stát ag dréim le tacú leis an gcúram sin a thabhairt. Mar sin de, déanfaidh an Stát iarracht a chinntiú nach mbeidh ar lucht cúram teaghlaigh obair a dhéanamh de dheasca géarghá eacnamaíochta ag neamartú a gcuid oibre sa bhaile,”.
and
In Part 2, page 6, to delete lines 12 to 14 and substitute the following:
“The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision. The State shall, therefore, endeavour to ensure that family carers shall not be obliged by economic necessity to engage in labour to the neglect of their work in the home.”.
The amendment to the Constitution proposes to delete the current wording of Article 41.2. It states that women's work in the home is important to everyone and that the Government should try to make sure that mothers are not forced to work outside the home because they need money, ignoring their responsibilities at home. The article does not limit mothers' choices but instead puts responsibility on the Government to support their choices, irrespective of whether they choose to work in the home. This means that the Government should help those who want to work at home but feel they have to work outside of the home because they need financial remuneration.
Perhaps the language is old-fashioned and suggests that people believed in the 1930s that men did less housework than women. It might also reflect the views of the time that accepted the rule preventing married women from working in public jobs. We all remember that. We are all dealing with cases where people have lost their stamps and contributions and cannot make them up. It also reminds us of the traditional Christian view of the family where the man is the head of the household.
Even though the Government has not fully met its responsibilities under this article, many mothers still feel they have to work outside the home because, as I have said, they need money rather than because they want to. This is not a reason to get rid of the article. It could be argued that things like doubling the tax allowances for married couples, maternity leave and child benefit payments show that the Government is trying to meet its responsibilities under the article, even if it is not doing enough.
We certainly do not agree with Orla O'Connor from the National Women's Council of Ireland when she said that Article 41.2 shapes our lives, our society and how we value women. It does not. Mothers and other women who work outside the home are not disadvantaged by this article. It does not limit women's choices or how they think.
The only place in the Constitution where mothers are given extra protection is in this article and it places special responsibility on the Government. It did not cause the unfair rule that stopped women from working in public service jobs, laws that promote equality of employment and wider equality for Irish women and families. It supports the idea of making it easier for mothers to work from home.
The suggested changes would replace Article 41.2 with a recognition of reasonable support for care within and outside the home. Describing care in this way could weaken the right of mothers to choose to stay at home and receive financial support from the Government for this choice.
On the surface, this appears to be a noble sentiment which acknowledges the invaluable contribution of family carers to society. However, the content of this section is almost meaningless and will deliver nothing for family carers or women.
The Ceann Comhairle might have noticed that I often wear the carers’ badge. I support the work of Family Carers Ireland. I know what work carers do and the struggles they have. I often talk about the number of children who should be in school, ag dul amach ag súgradh or doing other exploits but are instead at home minding a sick parent or sibling. That is a damning indictment on our society. There are hundreds of those children.
I have spoken to Catherine Cox from Family Carers Ireland. The organisation is supporting the amendment and wants me to support it, which I do not think I can, because it feels that half a loaf is better than none. It recognises that it is not anything like the full commitments it has lobbied for but it feels that if it rejects the amendment, it will be diminished in some way. The Minister is on record for having made a kind of sideswipe at all the NGOs, that they should come out and support this or the gravy train might be turned off. That is not the way he put it. I call it a gravy train but he does not. I hope I am not being unfair to the Minister but I have been told that this is what he was threatening all these people who do the Government’s bidding morning, noon and night, before it, behind it, beside it and among it. It is like a passage from the Gospel. All the NGOs - 36,000 of them which cost almost €6 billion a year - are hijacking democracy in this country.
According to the Census 2022 disability, health and carers report, over 1.1 million people experienced a long-lasting condition or difficulty to varying extents, accounting for 22% of the population. Of these, 407,342, or 8% of the population, experienced a long-lasting condition or difficulty to a great extent. A further 702,215, or 14% of the population, experienced a long-lasting condition or difficulty to some extent. These people suffer. It is hard to get disability payments and they need carers and people to help them. The can get very little care.
The Government pays lip service to carers. Its referendums on the family and care aim to reflect modern life by decoupling women from the burdens of domestic work and caring. In the absence of practical measures to improve the lot of carers, it is no more than lip service. The carers’ associations are asking what will happen if they do not accept this as a first step along the way. They are a long time trying to get this step. While it is a matter for themselves, and I would not try to influence them, they are supporting the amendment because they do not want to go against the Government and believe this is a bit of an effort and tosach maith leath na hoibre. I am afraid we are so long waiting for this tosach maith that beidh muid ag fanacht ar an tosach a lán ama. This is the problem.
Family Carers Ireland, the organisation that represents those who do the heavy lifting, looking after special needs children, the long-term sick and the elderly, claims that the Government has "failed to fully deliver on any of its commitments". I salute Family Carers Ireland and Councillor Richie Molloy from Cluain Meala, a colleague of mine with whom I work closely who is the manager of carers in south Tipperary. I salute all the carers in south Tipperary and all the hard work done by the staff who are limited in numbers.
Family Carers Ireland produced a family carer scorecard for 2023, which rates the progress of the 18 commitments made in the programme for Government. It is depressing evidence that the State's abysmal record of treating carers as skivvies rather than valued workers continues. The Minister must listen to that. He has the scorecard and the programme for Government. He is off in a mad rush pursuing other items on the green agenda. These are very good, active and caring people who need support. Lip service is no good to them.
I could say an awful lot more but I do not have time to do so. Without a marked improvement in support for carers, the new Article 41.2 is shaping up to be just as much a piece of fantasy as the original women in the home clause in Bunreacht na hÉireann. The Government's proposed amendment to the Constitution is a hollow promise, offering no tangible benefits to the carers who are the backbone of our society. That is the kernel of this. The Government will have a hard job convincing people. As Deputy Harkin said, it is what is síos ar an ballot paper and the line that people will read and the aspirations. That is what they see. It is a very limited and hard choice.
I think the Government has got this wrong and is rushing it. We had a meeting of the Business Committee only last Thursday, which leaves limited time to discuss this issue. There was a long lead-in to this. The Government should have looked at it in time and given us more time to flesh it out and debate it on Second Stage, rather than having Second Stage, Report Stage and Final Stage rushed through the House tonight. We should make haste slowly because the outcome has been very dubious, in my opinion.
I thank all the Deputies both for their amendments and their detailed contributions to this important debate. As we know, the current proposal in the Bill would delete the existing wording of Article 41.2 in its entirety and insert a brand-new article into the Constitution, Article 42B, which would recognise the role played by the family in terms of support and care provided on an unpaid, voluntary basis. It would also stipulate that the State shall strive to support such care.
The new provision encompasses all family members, immediate and extended, and recognises the importance of the mutual support and care they provide to one another which is fundamental to our society. The proposed amendment will oblige the State to strive to support the provision of care within the family. It is a significant step in terms of the obligation being placed on the State. Its intention is to reflect the often constant, intensive and durable nature of care provided by families. The obligation is described as “shall strive to support such care”. "Shall" is the strongest legal direction, demonstrating the significance of the State’s commitment. As support for family care will often include paid services, such as respite care, day services and home-care services, the amendment reflects that strong commitment by the State to supporting a robust care infrastructure. These are the vital supports that allow care within the family to actually happen. Through this express obligation on the State to support family care, there is a recognition of the importance of investing in the professional care system which wraps around and supports families.
The Government is committed to ensuring that family care is recognised as an important societal value and to enshrining it in our Constitution as such. This is a significant step and should not be underestimated. The Government recognises that family care often means that a member of the family must step back from full-time work or from the workplace altogether. There are supports in place to help families manage the care needs of their loved ones, including family leave for parents and carer's leave. These have been extended during the period of this Government but, undoubtedly, we need to do more. This Government needs to do more and, importantly, future governments need to do more as well.
A step back from the workplace in order to undertake caring activities has financial implications. There are some existing supports, including the carer's allowance. The Minister for Social Protection, Deputy Humphreys, is following up on a key budget commitment in budget 2024 to increase the income disregard for the carer's allowance. This will allow more individuals and couples to access this particular allowance.
I appreciate Deputies are supporting the Government’s endeavour to recognise the importance of unpaid care in the family and that a number of the amendments put forward seek to achieve that. I understand the amendment put forward by Deputy Mattie McGrath, for example, draws on both the existing wording of Article 41.2. I also welcome the fact that Deputies have included in their amendments the new article and new language proposed by the Government. I argue, however, as I have already set out, that the existing proposal carries a significant express obligation on the Government to support family care.
The new language being put forward by the Government does not limit the obligation to mothers in the home. This is important because it means it can include the immediate family as well as members of the extended family who care for relatives with whom they do not live full time. This is a recognition that the obligation to provide support is greatly expanded in scope.
Amending the Constitution in this way is significant. It places an express obligation on the State to strive to support care within the family. The courts, as the judicial arm of the State, will be required to interpret and apply this article, as appropriate, in cases where the provision of support for family care is an issue. With respect, I disagree in the strongest way possible with the suggestion made by some Deputies that what is proposed here is symbolic. It is not. It is legally meaningful. The intention is to place an onus on the State, and on this Government and all future governments, to see the progressive realisation of support for family care, building on existing supports where it is necessary. It has a legal meaning but because it has a values meaning as well, it will also represent a strong statement by the Irish nation. If it is passed, Ireland will be one of the first countries globally to enshrine the value of care in its constitution.
With regard to the amendments that seek to expand the proposal beyond family care, I acknowledge the role care workers play in providing care. They provide critical support to unpaid carers. While they are not explicitly addressed in the text of the amendment, as support for family care will often include family services, such as respite care, day services and home-care services and supports, the amendment reflects the strong commitment by the State to supporting those mechanisms that help family carers to do their jobs. It is through that express obligation on the State to support family care that there is a recognition of the importance of investing in professional care systems which wrap around and support those families. Family carers are dependent on respite and day-care services. As such, these services are vital in supporting family care and form part of what is supported in the proposed amendment.
Going beyond this, if we were to identify and enshrine the rights of one particular cohort of workers and, in particular, if we were to enshrine rights around private sector employers and private commercial enterprises in the Constitution, that would be problematic. The Government has recently achieved significant advances for one group of care workers, namely, childcare professionals, without a constitutional amendment. It has been achieved through the mechanisms of an employment regulation order and additional Government funding. In doing so, we are meeting one of the points the citizens' assembly rightly argued the Government needed to achieve.
A number of the amendments speak to the use of the words "reasonable measures" or "provide the necessary resources". Neither the wording "reasonable measures" nor the wording "strive" in and of themselves confer an absolute constitutional right. The proposed Article 42B does not, and was never intended to, insert an entitlement to a list of specific supports or measures of care. In this, the amendment does not limit the role of the Oireachtas to pursue what its Members, elected at election time, have decided are the specific forms of care the State needs to support. However, Article 42B will place an onus on the State, the Oireachtas and the Government to ensure that whatever supports for care are implemented comply with the new constitutional standard. Ultimately, that will be determined by the courts.
To respond to Deputy McNamara, who has just left the Chamber, on the wording, in particular the definition of "strive", the phrase "shall strive" was considered to most accurately reflect the objective of supporting family care while also allowing the Oireachtas the scope to make laws to do that. The Government's intention is that the wording of the proposed article reflects a requirement on the State to make serious and sustained efforts to support family care. The use of the word "shall", the strongest legal direction, demonstrates the significance of the State's legal commitment. The word "strive" includes a connotation that this effort will take place over time. There is a progressive element to this, one that will seek to achieve continuous improvement of the level of care provided. It is useful to look at this because, as we know, the Irish language text of the Constitution has primacy. The Irish word for "strive" proposed in the amendment is "dréim". That is associated with the Irish word "dréimire" for "ladder", which again has the meaning of climbing, ascending or improving. The term "dréim" does not currently appear in the Constitution and, as such, what we are introducing is new wording. It represents a signal of the intention of the Government to make serious and sustained efforts to support family care, recognising that this will be achieved in a progressive manner.
With regard to some of the other questions raised, Deputies Bríd Smith and Paul Murphy were extremely critical of the decision to address Article 41.2 and care in the same amendment. I am surprised to hear that. When this issue was debated previously, as it was in 2018, the question was whether to "delete" or "delete and replace". My reading of the reports of the citizens' assembly and joint committee was that these were seen as a package. It was to remove Article 41.2 and replace it with whatever it was being replaced with as a single issue. I expect the Deputies will disagree with that.
If it was being replaced with something more robust, I would have no problem.
As I will continue to argue, it is far more robust than Article 41.2 which has achieved absolutely nothing for mothers or anybody else in our society.
On the use of the words "care" and "carers", this was done very deliberately because there are two or more people in any care-based relationship. Using the word "care" reflects the view of many disability advocates who had expressed concern about any approach that would suggest a hierarchy where the carer is being valued over the person receiving the care and support. The joint committee recognised this, which is why, in the wording of the new Article 42B as proposed in the Bill, the term "care" is used. That recognises the mutual, reciprocal nature of care and support which is so important within the family.
Speaking of family, it is important to note that in the new Article 42B the word "family" is not capitalised because we are making a distinction between it and the constitutional family we discussed during our previous debate on Article 41, as set out in the guard rails in the Constitution. The "family" referred to in Article 42B is a much wider network. It is a network of extended family and we know that in many caring situations it is not members of the immediate family who are providing the care relationships. It might be a son-in-law and it is often a daughter-in-law. We have deliberately chosen the uncapitalised use of the word "family" in Article 42B to ensure it benefits as wide a category as possible.
The work we are doing in making this constitutional change has to be part of an ongoing piece of work. The vast majority of the tangible benefits for carers will be delivered through legislation and policy. The Government has made strides in those areas and will continue to make strides. The next Government will need to continue that work. In terms of supporting the care decisions of parents, this Government has reduced by 25% the cost of childcare and will reduce it by another 25% in September of next year. It has ensured care workers are better paid through the mechanisms I spoke about earlier. It is addressing those children who are most vulnerable in our system because they have a disability or come from areas of high socioeconomic disadvantage.
It is extending the access and inclusion model and it is bringing in the new equal participation model to ensure those who are most vulnerable get the supports they need. This Government has already expanded leave so parents have more time to engage in their caring role. Parent's leave, for example, has gone from two weeks per parent when we came into office up to seven weeks now and it will be nine weeks later on this year. Medical care leave has been introduced. Increases in carer's allowance will apply from this month. As a number of Deputies have outlined, the Minister for Social Protection, Deputy Humphreys, has brought in important changes to the pension system in recognition of the importance of caring periods, with up to 20 years of caring periods recognised.
Within my own Department, on the issue of disability, which moved over to it just short of a year ago, we have set out a clear disability action plan, recognising that as a State we do not do enough in terms of respite, day services or residential services. We also recognise that we have a huge demographic challenge in that area and we set out the steps that we are going to achieve, which we started to achieve in budget 2024. The Minister of State, Deputy Rabbitte, and I are both very cognisant that more needs to be invested into those areas. Supporting respite and day services is an immediate support to carers. Of course there is the ongoing work taking place in my Department to ratify the optional protocol as well.
Deputy McAuliffe asked the reason we picked a new constitutional article and why we did not put what we are doing here within the existing Article 41. That was discussed in significant detail. The Attorney General gave us significant advice on it. Ultimately, the approach adopted supports the broader recognition of the family care as supporting both immediate and extended family members. There is a concern that to have located what we are doing here within Article 41, which deals with the family, it would have been seen as only applying to the constitutional family which as we know is a narrower concept.
Speaking to the language used and the use of the word "strive". Deputy Whitmore said it is the language of the status quo. I strongly disagree. The status quo language that is in Article 42 at the moment is "shall endeavour". That is the language that has delivered nothing for anybody. Even as Deputy Connolly said, if the courts were to miraculously read "mothers" as "mothers and fathers", which is a huge interpretative leap, the wording "shall endeavour" has not actually delivered anything in terms of tangible benefits. The use of the term "shall strive" introduces a clear obligation newly entered into by this Government, which I hope the public will support in this referendum by the State. In using "shall strive", the Government is introducing a brand-new article with a clear mandatory obligation. This is a significant change that has legal value and legal meaning.
A number of Deputies have put forward the idea that the State does not want this amendment to achieve anything. If we did not want to achieve anything we could have just put down a delete, like was done in 2015. We could have just proposed to delete Article 41.2 and do nothing else. If we did not want a legal obligation, we could have put the language in Article 42B into Article 45, the non-justiciable piece of the Constitution, where it would have looked nice but would have had no legal benefit. However, we did not do that. We could have put in the recognition of care but without the onus afterwards but we did not do that. We have put in a recognition of care but we have also put in an onus and mandatory obligation on the State by using the term "shall strive" and that puts a very clear obligation on the State.
I will wrap up by responding to Deputy Connolly and others who have set out the history of this particular article, Article 42, and the efforts to change it, and the history of efforts to bring about an interpretation of care and a recognition of it. On 8 March we have the opportunity to change the outdated language within Article 42, and to show in our values that care is a job for everybody - mams and dads, daughters and sons. Most importantly, as well as that values piece, which as someone who feels passionately about the Constitution is really important to me, it is not just a values issue, it is also a legal issue because we have that clear legal obligation that the State "shall strive" to support that care. That is not in our Constitution right now. This is an important innovation and it is one that I believe is worth supporting.
I have just one final question for the Minister. He articulates his case very well but for me the case still does not stack up that "shall strive" is much more robust than "shall" and is better than "shall endeavour". It is probably better than "shall endeavour" but the word "shall" is the one we want to see included.
I also question the opportunity that we have had to include care outside the family, as well as inside the family. This is really important because on a daily basis this State lets people down in terms of its care, but that is not done within the family, it is done outside the family. We have family carers who have minded their parents all their lives. I use the example of Cherry Orchard Hospital where people are being forcibly moved from the wards and are being put into private nursing homes. The families are very opposed to it. Many of these families would have been family carers all their lives and now they are having to go to the hospital to prevent their loved ones being forcibly moved into private accommodation where they know they are not going to last. They understand how much older people than me, although I am getting there, respond to a change in circumstances and environment. They know they are not going to last long. When change happens abruptly, it can be very damaging to their longevity or their possibility of existing for much longer on this earth.
Families outside of the home when dealing with the State are still left to pick up the mess that is being made. The example of Cherry Orchard Hospital is a case in point in that regard. I just want to ask the Minister if he has considered all of these angles of State care when he thought about whether this should be just about care within the family, and State care being outside the home but being very much linked to how the family has to cope with the lack of proper care by the State itself.
I also wish to refer to the discussion on the use of "endeavour" versus "strive". When we look at the dictionary definition, to endeavour is to try hard to achieve something, while strive is defined as to make great efforts to achieve something. The difference is to try hard or to make great efforts. To be honest, I do not see a huge amount of difference between those two definitions. If the Minister really wants to strengthen the language, rather than say "shall strive to support", he would have said "shall support". It is as simple as that. That is all the Minister needed to do. The Minister argues for one definition over another and I just cannot see the difference.
I thank the Minister for the very full response. I think he has given us some helpful insights, particularly into the rationale for the wording chosen and for moving the clause into a new article 42B. That is certainly very helpful to hear, but just taking up that last point about "strive" or "endeavour", there is not much between those two words. I would say again that the wording that the Oireachtas joint committee unanimously agreed is in fact preferable to either "strive" or "endeavour" because we said the State shall therefore take reasonable measures to support care. We were using the mandatory language of "shall" and placing a much stronger action requirement to take reasonable measures to support care while being mindful, as the citizens' assembly was, of the need to ensure the separation of powers and that this does not in any way tie the hands of the Executive. Catherine Day told us that the citizens' assembly was very clear about that when it came up with the phrase "take reasonable measures". I still think that wording is preferable to either "endeavour" or "strive".
Second, on the point of who is covered, it is helpful to hear the Minister confirm that the family in Article 42B is an expanded understanding of family, beyond that of the family in Article 41.1.
It is, therefore, not confined to a unit founded on marriage or other durable relationships. It could cover the partner of a son or daughter, as the Minister said, but it will not cover somebody who provides care as a friend; that is clear. It will not cover somebody who provides care through charitable or voluntary organisations, through Meals on Wheels or community groupings that are not professional. I take the Minister's point; he does not want to confer constitutional rights on private companies. However, many forms of care are provided that are not provided on a commercial basis but are not provided within a family, however expansively defined, either. That is perhaps the missing piece. Time and again during our extensive committee hearings, we heard from older people, disabled persons and persons who receive support and care from a whole range of different carers in a whole range of different settings and the concern was that an exclusionary definition of care would not provide sufficient valuing of the immense work that carers do, both paid and unpaid, voluntary within the family and within friend groups. That was our concern in coming up with the definition that we came up with, which is reflected in our amendment.
In terms of locating the obligation within the family, the approach was adopted because of the particularly onerous and ongoing nature of the care that is provided by so many family carers and the absolute level of support that gives the State. The role of the Meals on Wheels volunteer is, of course, vital in society but I am not sure we can equate that laudable value of a voluntary role with the absolute dedication of the family carer who, but for their undertaking of that level of care, the person for whom they are caring would not survive.
What about the friendship bond? That came up in our hearings. It is perhaps the most expansive way of defining "family" but it is clearly not covered in Article 42B.
We all know from our work as constituency Deputies that many families are providing this care, that this is a support that the State cannot do without and the depth of their commitment and the depth of the need of their commitment requires that degree of constitutional recognition and also the legal protection that the obligation to strive maintains. To that point, in terms of the use of "shall strive", again, it is a recognition that the achievement of the obligation is progressive. It will not be, nor does anyone believe it will be, solved immediately. The obligation of the State to support family carers, if this amendment is made, will be in our Constitution. It is a progressive obligation recognising the degrees of support need to increase. However, fundamentally, that is a legal obligation. It is a legal valuing of care that is not in our Constitution right now and I believe is very worthy of support.
One minute remains.
Would the Minister be prepared to publish and provide the legal advice? The language has deviated quite far from what was recommended. Given the significance of constitutional amendments, would he be prepared to do that?
My understanding is that we are not able to provide legal advice from the Attorney General. That is my understanding of the position of the Government on this and on all matters.
Some clarity has been offered today, which was helpful. It would be helpful if the Electoral Commission was able to assist in giving some of that, not directly the Attorney General's advice but certainly a legal basis for the Government's decision to move away from the wording of the Oireachtas joint committee. That would be really helpful in the course of the debate on the referendum.
Sin deireadh leis on díospóireacht. Ó tharla an t-am a ceadaítear le haghaidh na díospóireachta seo a bheith caite, ní foláir dom an cheist seo a leanas a chur de réir Ordú an Dáil ar an lá seo.
The time permitted for this debate having expired, I am required to put the following question in accordance with an Order of the Dáil on this day: "Go n-aontaítear leis seo i gCoiste ailt 1 agus 2, an Sceideal, an Réamhrá agus an Teideal agus go dtuairiscítear an Bille gan leasú don Teach dá réir sin; go gcríochnaítear le seo an Ceathrú Céim; agus go ndéantar leis seo an Bille a rith."
The question is: "That sections 1 and 2, the Schedule, the Preamble and the Title are hereby agreed to in Committee and the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed; and the Bill is hereby passed." Is that agreed?
Not agreed.
I would like clarification on procedure. We did not get a chance to vote on the last group of amendments, because the time ran out.
That is right. I am in the middle of putting a question now. The time is up. At this point, we have moved on and I am in the middle of a formal vote on this matter. I have read out exactly what is the guillotine formula when the time is up. I am in the process of doing that.
Cuireadh an cheist.
Question put.
Deputies
Vótáil.
Will the Deputies claiming a division please rise in their places?
Sheas na Teachtaí Dála Michael Collins, Michael Fitzmaurice, Michael Healy-Rae, Mattie McGrath, Michael McNamara agus Richard O'Donoghue.
Deputies Michael Collins, Michael Fitzmaurice, Michael Healy-Rae, Mattie McGrath, Michael McNamara and Richard O'Donoghue rose.
As fewer than ten Members have risen I declare the question carried. In accordance with Standing Order 82, the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.