Fortieth Amendment of the Constitution (Care) Bill 2023: Committee Stage (Resumed) and Remaining Stages

Acting Chairperson (Senator Gerry Horkan)

I welcome the Minister, Deputy O'Gorman, back to the House once again.

Before Committee Stage commences, 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. I ask the Acting Leader, Senator O'Reilly, to formally move, in accordance with precedent and Standing Order 152, that consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.

Senator Pauline O'Reilly

I move:

That, in accordance with precedent and Standing Order 152, consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.

Question put and agreed to.

AN SCEIDEAL

SCHEDULE

Acting Chairperson (Senator Gerry Horkan)

Amendment No. 2 in the name of Senator Clonan. Amendments Nos. 2 to 16, inclusive, are related. Amendments Nos. 3 to 16, inclusive, are physical alternatives to amendment No. 2. Amendments Nos. 2 to 16, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Senator Tom Clonan

Tairgim leasú a 2:

I gCuid 1, I leathanach 7, línte 5 go 8 a scriosadh agus an méid seo a leanas a chur ina n-ionad:

“Admhaíonn an Stát go dtugtar taca don Stát, ar taca é nach bhféadfaí leas an phobail a ghnóthú dá éagmais, de bhíthin cúram laistigh den bhaile agus lasmuigh de agus laistigh

den Teaghlach agus lasmuigh de. Uime sin, déanfaidh an Stát bearta réasúnacha chun tacú le cúram laistigh den bhaile agus lasmuigh de agus laistigh den Teaghlach agus lasmuigh de,”,

agus

I gCuid 2, I leathanach 7, línte 12 go 14 a scriosadh agus an méid seo a leanas a chur ina nionad:

“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. The State shall, therefore, endeavour to ensure that those who provide required care shall not be obliged by economic necessity to engage in labour to the neglect of their essential caring duties.”.

I move amendment No. 2:

In Part 1, page 6, to delete lines 5 to 8 and substitute the following:

“Admhaíonn an Stát go dtugtar taca don Stát, ar taca é nach bhféadfaí leas an phobail a ghnóthú dá éagmais, de bhíthin cúram laistigh den bhaile agus lasmuigh de agus laistigh den Teaghlach agus lasmuigh de. Uime sin, déanfaidh an Stát bearta réasúnacha 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 12 to 14 and substitute the following:

Acting Chairperson (Senator Gerry Horkan)

Will Senator Clonan speak to the grouping of amendments Nos. 2 to 16, inclusive, as much for as little as he wants to? He obviously wants to speak to amendment No. 2. but he can speak to amendments Nos. 2 to 16 inasmuch as he wants.

Senator Tom Clonan

Yes. I thank the Acting Chair. I am conscious of the time pressure for other Senators who wish to speak to other aspects of this care Bill. I reiterate what I said during last night's debate. The wording is, as proposed by the State on Article 42B:

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 [this is the word that has been used] to support such provision.

I know that this is to propose the constitutional expression of a paternalistic and passive view of care as being exclusively the burden - and I use the word "burden" in inverted commas - of the family and for the majority of unpaid carers in this republic, who are women and girls. It is consistent with my direct, lived experience as a parent and a carer that the State and its agencies oftentimes have quite a hostile attitude and orientation towards carers, subjecting us to hostile scrutiny, and are at best indifferent to the care needs.

For example, in the past 20 years with my son I have not had one day's respite. Not one day. Nothing. There are thousands of families across the republic who find themselves in this position. Disabled citizens are a category of Irish citizens who are subjected to cruel, casual and routine discrimination in a way that does not apply to other protected categories of citizens. What are we being asked to do with this wording, which lacks ambition for families, carers and disabled citizens? The recommendations of the Oireachtas Joint Committee on Gender Equality and of the Citizens’ Assembly on Gender Equality was the statement that 42B also include "supports in the community". They stated it as "in the community" or "outside the home". I mentioned inflection points yesterday where there are illustrative experiences of this kind of paternalistic view of care as being the burden of the family. I am particularly struck by that formula of words, "by the bonds that exist among them".

I will refer to a conversation I had with one of the highest officeholders of the State whom I challenged on the imposition of austerity measures on disabled citizens and carers by way of cuts to their therapies, supports and surgeries. This was unlike the financial crash, which out of charity I can only assume was an unanticipated outcome and not an intended outcome of the ethical and intellectual failures of the Celtic tiger. The imposition of austerity cuts from 2010, 2011 and onwards, was a premeditated and calculated process that was and still is presented to us as a series of virtuous acts consciously inflicting harm and pain on the most vulnerable in Irish society. I have had ten years of prim economists, who are the new high priests of Ireland, espousing the virtues of inflicting austerity measures on people. I am confident they will be brought fully and completely into disrepute. That is one of the problems and one of the predictive factors in some of the issues we have around infrastructure, GP care and proper provision for vulnerable members of society. Austerity always breeds conflict. Austerity always provides fuel or oxygen to the far right.

This wording at 42B is a lost opportunity because it is not consistent with the UN Convention on the Rights of Persons with Disabilities and the rights-based aspirations contained within that convention for disabled citizens. By including care in the community and care outside the home it could have vindicated those aspirations. For the want of a few short words we now have a wording that gives constitutional expression to what I believe is a very retrograde, charity-based view of carers and caring as something that happens as it was put to me by an officeholder who was one of the highest in the land in 2011: "What you do for your son, you do it because you love him and you are to be commended." I do not want commendation, admiration or, more likely, pity. I am conscious I want the absolute fundamental human rights of my child - my adult son - and other disabled citizens and adults throughout the State to be fully vindicated and I want that expressed in the Constitution.

I am conscious that it is unlikely that any of my amendments as tabled will be accepted. I understand that is the realpolitik of this House. I share the concerns of other Senators that the manner in which this is being guillotined and the manner in which it was progressed without pre-legislative scrutiny, PLS, on Committee Stage, is not an affront to us personally as Senators but it is an affront to the Houses and to the democratic processes we must cleave to. There is a phrase "interpellation" where one accepts one's place in a discourse. I reject this discourse. I reject the use of the word "strive" and I have no confidence the word "strive" will ever come to mean anything other than it is at any point in the future. To suggest otherwise is Orwellian. It gives the State an out. It is consistent with resistance to the Disability (Miscellaneous Provisions) Bill 2023, and is consistent with resistance to the full ratification - including the optional protocol - of the UN convention. The State is trying to avoid compellability, or to provide any sort of legal framework or underpinning to the inalienable and fundamental human rights of disabled citizens - disabled children and adults.

What I want for my child and for disabled children is what everybody in this Chamber wants for every other child - freedom to live an autonomous and fulfilling self-actualised life and for the Constitution to not contain within it the assumption that disabled citizens will have a life exclusively within the boundaries of the home and with elderly parents going into crisis. It is precisely that philosophy and view - seeing disabled citizens as being somehow of less human value than other categories of citizens - that is the reason we have almost 2,000 young adults inappropriately placed in nursing homes around the greater Dublin area. It is the reason we had a child left in a room off the emergency department, ED, for two months in a completely inappropriate condition. It is also the reason we have children on waiting lists for complex spinal surgery at Children’s Health Ireland, Temple Street and Crumlin hospitals because they are disabled. It is because they are disabled and because, unlike other categories of citizen and in contradiction with the more general social contract, their is no vindication of their rights. We are the only jurisdiction where there is no obligation in law for the State, or its agents, to treat these children. This wording reinforces that, buttresses it and scaffolds it at the very nuts and bolts of our Constitution, Bunreacht na hÉireann. I, as a citizen and as a parent, reject that narrative. I reject that discourse.

I know that in coming in here like yesterday and arguing on this, all I can do is make is a point, but I cannot in conscience propose that anybody would vote "Yes" for this amendment to the Constitution on that basis, because of what it does and the negative impact it has on the fundamental and inalienable rights of disabled citizens. We are being presented with a kind of a binary proposition that we get rid of the concept of the woman in the home, which represents progress, but at the expense of children like my son, like that young person who was forced to exist in a windowless room off an emergency department for two months or like another child trapped upstairs in a care facility for over a year. What other protected category of citizens would be treated in this manner in this Republic? None. We would not accept it, and quite rightly not, but by this wording we are being asked to accept that disabled citizens, their families and carers are somehow of less value than other categories of citizens in the Republic and that their rights can be curbed in the interests of others. That is not democracy. That is tyranny and I reject it.

Coming in here and making this argument, I can imagine the type of language and rhetoric that will be used to justify it. However, I will conclude on this point, just to remind Members. I have four children and when I approached the Health Services Executive to inquire what the plan was for my adult son when he entered the adult services at the age of 18, I was told there was no plan for him. I was told by the disabilities services manager that my son was at home living with me and that was the plan. I asked what would happen when I died and that manager put me on to the social worker, who asked if my son had a sister and when told he did, said she would look after him after I died. That is the thinking, the logic, and the paternalistic mindset, ideology, philosophy that underpins the constitutional expression to be found in Article 42B, as set out by the Government. That is the way it is. I am calling it as it is. I ask the House to take this opportunity to amend that wording because otherwise it is pitiful. Disabled citizens in Ireland appear before committees of these Houses repeatedly. Ireland is one of the worst places in the European Union in which to be disabled on almost every measure. We have the lowest participation rates in paid employment in the OECD; thousands of children on waiting lists for appointments that will never take place within the therapeutic window; children falling behind simply because they are disabled; and a disability Green Paper that is extraordinarily Dickensian and dystopian in its concept and design. At a time when the rights of disabled citizens are in freefall, this is the proposed wording. There is no ambition in it and I have been approached by a number of NGOs to ask if I could put my concerns on the back burner. That is interpolation. It is accepting oneself and one's status and role in a given narrative and I reject it.

I know other people are anxious to speak but I cannot express this strongly enough. This wording is such a lost opportunity and it adds insult to injury. It is a slap in the face for disabled citizens and the huge community and network of carers. I believe these proposed changes are going to fail and what a waste of an opportunity, apart from the waste of millions of taxpayers' euro. To reference the view of a former Taoiseach, after getting a slap from the electorate in a previous referendum to do with this House, why are we repeating this mistake? This is such a poorly-worded proposal. I have been in this House for almost two years and I cannot get my head around this. I do not understand why the Government would persist. Is it because senior civil servants have advised that this is a way of insulating the State against the cost or the burden of providing proper care, such as they do in other jurisdictions? That is the only cynical rationale I can think of. Surely we are better than that. Surely we can do better than that for our disabled citizens and carers.

I will rest it at that but I am very disappointed that this is what is being put forward. It is completely at variance with all of the recommendations that were given. It is at variance with everything we are hearing from the DPOs. It is just sad. This is something over which we have control. We talk about international crises and awful human suffering but this is something over which we have control and could do something about. We could put down something positive in our Constitution for disabled citizens and it does not seem to be on the Government's agency. What a pity that is. It is something we could do and what a legacy it would be to have. It is this idea that we do not have the resources to vindicate the fundamental human rights of disabled citizens. Would you say about any other category of citizens that we did not have the resources for them? No you would not, because that is the usurpation of everything in which we believe.

Senator Pauline O'Reilly

As there are a lot of amendments in this grouping, I will speak to them broadly. It is really significant and important during the lifetime of this Government that we have done what many Governments have failed to do in the past, that is, to take out the sexist language, which is what the proposal is here. We take out the sexist language while still recognising the importance of family care. It is important here to state what is my background. I have heard many people make a lot of assumptions about the kind of conversations that have or have not happened. Before I became a politician, I was a witness at an Oireachtas joint committee examining this issue. At that time, very few politicians wanted to do anything more than remove the wording that was in the section. What Family Carers Ireland, many others including the National Women's Council of Ireland and I, being involved with Stay-At-Home Parents Association Ireland, wanted was to remove the sexist language and to still ensure we inserted something that would continue to support carers in a more meaningful way. That was in 2018 and, as I say, most politicians would have been simply happy with just removing it. We are now talking about care and the working around it which is good and really positive but let us not forget that this is significantly more than almost every political party wanted to do.

We then had a citizens' assembly in the middle of a pandemic and they could have come up with any suggestions during that process. I remember going to the presentation by Dr. Catherine Day on the findings of that citizens' assembly and how excited I was that they had put weight on care. Nobody expected it, and they could have done anything, but they said how important family caring was. Following that, I was the Vice Chair of the Oireachtas Joint Committee on Gender Equality looking at the recommendations and it was made quite clear to us by Dr. Catherine Day that the citizens did not want to present us with legal definitions or drafts for a Constitution. They said that was not their role, so they did not do that. They stated in general terms what they wanted to achieve.

As members of the Oireachtas joint committee, we had many private and public sessions around the citizens' assembly. In total, it took 11 months. At one point, we were discussing whether we would just leave it to the Department because it is so challenging to come up with wording, as everyone can see. When you change a Constitution instead of starting again, as someone said earlier, you are changing what is there. People will say we have left out some bits but we have gone further than the joint committee suggested in other parts. The point can be argued both ways and it is important to put it in context. I am reading contributions from experts who claim to understand the issue but I did not see them getting involved in the debate before the past couple of weeks, which is disappointing.

We are doing something for which women have been calling for a long time. Family Carers Ireland has stated this is its referendum and this is what it wants. It is important to look back at history and be critical of the influences at the time. It is also important to recognise that times were different and times have changed. We must look back at history and ask what are the things we still value. Something we still value and that was also important in 1937 is care. I was a stay-at-home parent for nearly ten years. I have also been a family law solicitor. I know there are many people whose voices are not heard in the corridors of power because everybody here is working outside of the home right now, even though we have different histories. That means debates often take on a particular colour based on the very fact that we are working for a salary when so many people are doing something else. We were careful at the time to talk about the fact that it is not just those who are caring but those who cared for who must be considered. That must be part of the narrative.

This is one piece of the Constitution. It is not about taking away somebody's rights. There is no part of this that is taking away somebody's rights. It is about giving people rights. One could argue that other parts of the Constitution and other things should bring in more people's rights, and I do not disagree, but this referendum has nothing negative in it. This is positive. Many organisations and people who have played these roles are behind it. Listening to those stories is powerful.

I did not get the opportunity to speak at the earlier debate. Senator McGreehan made the point well that to deny other people's experiences because you do not have the same experience is deeply unfair. Some 42% of children are born outside marriage and the Constitution is every bit as much theirs as it is anybody's in this Chamber. People are coming from a couple of different perspectives. Some simply do not believe in the premise of removing the reference to the woman in the home. They do not even believe in the premise of ensuring that family carers are supported or that families other than those based on marriage should be in the Constitution. They should be honest about that. It is not the minutiae of the wording with which they have an issue. Perhaps they can find other ways to argue the point. There are also those who agree with what the Government is trying to do and who know the Government is trying to do the best it can with the Constitution. The Minister has a copy of the Constitution to hand. It is a small book. I love the Constitution, which is an amazing document. However, if we look at the amount of legislation we pass, day in and day out, that is the minutiae of law. The Constitution is not that. It is about setting out values. This legislation sets out our values and states that we are not sexist, that we appreciate that women and men can do roles if they so choose. It states that we appreciate that even where someone does not earn a salary, he or she is doing something for the common good by caring for others, including older people, vulnerable adults, those living with disabilities and children. That is valuable. The reason it must be recognised is because it is unpaid. There is State support to a certain extent. It does not support stay-at-home parents but it does give allowances in some circumstances. Should it do more? My God, yes. It absolutely should. However, that is not what this is about;t is about laying down our values.

It is highly cynical of some people to look at the wording, pull it apart and tell us what they would have done. I did not see people helping to come up with this wording over the past decade and over the past number of years when I have been discussing the issue. That is the group of people who are talking about the law as if the wording is their real issue when the premise is actually their issue. Such people are coming here to say they totally agree that this is what we have to do but who are recommending different wording. That is an essential part of the democratic process and I am in agreement with it. It is for the Minister to come back and explain why certain wording was chosen. I have gone through the process in many situations, including at two Oireachtas committees. I was called as a witness to the citizens' assembly but recused myself because I was running as a Senator. I can tell the Seanad that nobody, including constitutional lawyers, has found this to be an easy process, although if you find two lawyers, you will always get two different opinions. This is not an easy task but I believe this is the correct wording. I believe it will be tested in the courts, as everything in the Constitution is, and we should not shy away from that. It is not a reason to vote "No". We must vote "Yes" to something that will make people's lives better and that will be more representative of all of us. It would be shameful to vote "No" in those circumstances and leave what we have in the Constitution, which is sexist and does not go as far to support stay-at-home parents or as far as the new amendment does to support family carers.

I thank all Senators for thinking about alternative wording because it is important to have those conversations.

Senator Annie Hoey

I will remain seated, if that is all right. I will not go over all of the things that were said yesterday. On behalf of the Labour Party grouping, I am proposing an amendment to Part 2 on page 6 to delete the lines 12 to 14, inclusive, and substitute the following:

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. The State shall, therefore, take reasonable measures to support care within and outside the home and Family.

The amendment is self-explanatory. As was said yesterday and has been said a number of times today, the current wording in the Constitution is based on gender stereotypes that have no place in a contemporary constitutional text. I do not believe we should confine women and mothers to lives of duty within the home and not refer at all, for example, to fathers having a role or responsibility in the home and all sorts of other things. This amendment intends to broaden the Government proposal and to recognise care outside the home and not just within it.

We are supportive of the Government's proposal for a referendum but we would like to see it broadened, particularly because when we reflect on the citizens' assembly and the Oireachtas Joint Committee on Gender Quality, chaired by my colleague, Deputy Bacik, there was a strong view that the sexist language relating to women and mothers should be deleted but it should be replaced with recognition of the role of care. The care role within the home and in the wider community should be recognised and valued. The Oireachtas Joint Committee on Gender Quality had extensive engagement with carers, women's groups and groups representing disabled people. Out of that consultation came cross-party support for wording that was regarded as effective in expressing the wishes of the citizens' assembly and which it was felt would give a meaningful recognition of care in the Constitution on, as I said yesterday, a gender neutral basis. We feel the Government wording falls a little short of what the citizens' assembly and the Oireachtas joint committee recommended. We feel the wording is somewhat more restrictive. The Government's definition would confine constitutionally recognised care to the care given by members of a family to one another by reason of the bonds that exist between them. We would like a more meaningful definition.

I said yesterday that over 200,000 carers were recorded in the 2022 census. The figure was 299,128. I kept saying it was over 200,000 but the figure was actually 72 short of 300,000. That is an enormous number.

Much of this has already been said so I do not need to go around in circles but yesterday, as I was speaking, it occurred to me that it was as if we were discussing the concept of care as part of a family structure. As many of us know, care is much broader than that. I know there is a difference between care provided by a family member and care provided because the carer is paid. We know the difference but we would like all types of care to be recognised in the Constitution. While I appreciate that may come with all sorts of complications, including with regard to workers' rights, we would still like to see it, which is why we provided for it in our amendment. The amendment seeks to reflect the position taken by the citizens’ assembly and the gender equality committee that care should be recognised both within the home and outside the home.

Senator Alice-Mary Higgins

To follow up on a point made by an earlier speaker, we need to do this but the wording should be better. We have been waiting for it for a long time and it has been coming for a long time. I started campaigning for this change in the Constitution long before I entered the Oireachtas. It has been campaigned for and pushed for a very long time. During that journey, the understanding of what we want to have in the Constitution has been evolving. There was a conversation about straight deletion. I always favoured having a recognition of care. We should bear in mind that it was not just the citizens’ assembly but also the constitutional convention that made very clear that it wanted to see care properly recognised in the Constitution. We have an increased understanding, which has been slow in dawning, of the receipt as well as the provision of care. There is also a recognition that care in itself is an inadequate word in terms of the autonomy, independence and rights of persons with a disability in the State. It is a pity we are only moving a small step forward when we should be taking a leap forward.

The reason I believe we need to change the clauses in the Constitution is that they are doing, and have done, much harm in terms of equality in the State. The context of the 1937 Constitution, as I mentioned previously, was a roll-back of women’s rights. It is not simply that this was how it was at the time. The Constitution was a conscious shift away from the vision of equality we had in the Proclamation. It was no coincidence that many of those who fought and campaigned for independence opposed the 1937 Constitution. Cumann na mBan stated that the Constitution, particularly these clauses, did not satisfy the aspiration of the Irish people set out in the Proclamation. Louie Bennett from the Irish Women Workers Union said: “Abolish poverty ... and the need to protect mothers disappears." This again points to the deep impact of austerity and poverty that has so often been visited upon those who care and those who receive and need care. Kathleen Lynn talked about restoring the Republic in a meaningful way. These are persons who were part of shaping the State but in the Constitution they were being told that the way for them to contribute was by their life in the home. There was a very clear attempt to put women back into the home and to have that as the way they contribute. That was to be women's role and where they belonged. The State relied on them as of course the State has always relied on those who deliver care. It was very much narrowly placing women in that vision at the time and that vision was one of only women in the home and women only in the home. In practice, people have lived lots of different lives - true lives - and women have had all kinds of achievements, have worked and so forth, but flowing from these provisions was a mandate for some of the discriminatory measures.

The Constitution was framed in the same decade as the measures to remove women from juries because they should not be on juries but at home and to remove them from the workplace when they got married because they had to serve their function within the family in the home. These were all decisions the State took and signals it sent. The impact is still felt because they affect women now in their pensions and in the State's failure to recognise them.

On the idea of the State giving support, which it has consistently failed to do, even under these provisions, in the social policy supports that have a connection to this, there was a very clear exclusion of one-parent families who would not get such supports. A question was asked earlier about woman in the home and one-parent families. The women heading up one-parent households got no recognition in the clause we discussed earlier and no protection of any kind. The State spoke of "endeavouring to ensure" but that did not apply to any families that were not married families and the State fell absolutely short when it came to the idea of endeavouring to ensure to protect and give supports.

That is the context of what we need to remove. This was an opportunity to put something brilliant in place. Instead, we are putting something slightly more inclusive and slightly less discriminatory in place. I am hoping the Minister will convince me it is slightly more effective, through the use of the phrase “strive to support” versus “endeavour to ensure” because that is the test. These are both very interpretable phrases. It will be a similar battle, I imagine, for us to ensure that "strive to support" is interpreted in a strong way. It is still a step forward in that, at least now, striving to support will apply to all families and all those who deliver care within families.

I regret that we are rushing this legislation because these amendments would improve it significantly and would be truer to what the citizens' assembly and committee asked for. Our amendments seek to widen the frame by talking about, as the citizens and the committee did, the wider community. Senator Clonan made this point very well. The State is not abdicating its responsibilities and telling families “Here you are; you deliver care”. Families are giving support to the State and society without there being a recognition that society needs to give support back to those who care and directly to those who rely on care or have a disability. I will come to that later. There was scope for that and our amendments refer to the wider community. We have amendments which reflect the language of the committee by adding the words "within the wider community".

The amendment refers to care between members of the family and within the wider community. We do something really important in some of our amendments, however. In our amendments Nos. 2, 5 and 10, we recognise the language the State has used. We take that language of the bonds between them. I wondered about that phrase when I first saw it. However, we take that phrase and say that actually the bonds between us are not just bonds within families. There are bonds within and between us as a community. We believe we should be able to expand the language here and say that "The State recognises that care, between members of a family or community by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall take reasonable measures [or strive] to support ...” or endeavour to ensure, according to which phrase it might be. The key point, however, is that the bonds between us as a community do exist and are crucial. Something like that would address the concern that was raised in terms of private actors and companies. We talk about the bond between us as a community, which is that I, as a citizen, care and have concern for my other fellow citizens and because I share the community with them, it is my wish that our common resources and common public services would be directed to give support in terms of care. It would be stronger. Again, I am saying this in the context that this would be truer to where we need to be.

As it is, we are looking at an amendment that does recognise the care within family and that does commit. I acknowledge that it states "shall strive to support" that care, which is something. However, the wraparound bit about the community that we do collectively and as a State through our public services is kind of in that second commitment. The Minister mentioned, and it was important to say, that there are two parts to this. One part is that recognition and the other part is the responsibilities of the State. It is really important to communicate that there are two pieces to this. We have missed the opportunity of recognising the State's role in that first part, which is recognising that the State gives and is responsible for giving support to our society, as well as receiving support.

We have also missed the opportunity, and we will come to this in some of our other amendments, to be really clear when we say "strive to support" and to put some meat on what we mean by that. We talk, for example, about striving to support in taking reasonable measures, and we have tabled a number of amendments in that regard. We use the phrase "take reasonable measures", which was one of the phrases recommended by the committee, including economic measures. We talk about striving to support such provision and about endeavouring to ensure that such care is supported, including through economic supports. We have another amendment where we add to "strive to support" the phrase "through measures including but not limited to economic measures.” This is fundamental. That reference to "economic" is important. It matters to people. Again, it is not that the State has not fallen short on it in the past. It is important, however, that the Minister indicates to us that the understanding of "strive to support" includes concrete economic measures. The Minister mentioned some in the Second Stage debate. That needs to be part of it if the Minister is supporting this.

If our common good depends, as it does, on care, and if care really is the lifeblood of society and gives that essential support, then the State needs to be clear on how it is not just going to recognise it in a loose way here symbolically but that it will recognise and strive to support it through measures that will include economic measures. That means really looking properly at some of the issues in terms of income supports and pensions in order that those who, for example, deliver care do not find themselves in poverty in later life. It is about ensuring that we have concrete, proper reform because now, of course, if the first referendum is successful, we will be looking at a levelling up for all families to ensure that one-parent families will get proper and full supports rather than a second-tier support through our social protection system. It is to reform our social welfare system in a meaningful way. That is in the economic piece. That is why there are a number of amendments in that regard, namely, amendments Nos. 11, 14 and 16.

The other thing we need to look at in terms of "strive to support" is that idea that if we have not included the language about the community and the bonds between it, and the language proposed by others of inside and outside the home, although I know the Minister argues that the phrasing encompasses that, and if we have not included "the wider community" alongside the family because of the bonds between them, then much is work falling on the phrase "strive to support". That wraparound of the community role and the role of the State and society and community all needs to happen around this referendum and around this constitutional provision if it is not built into it. That is why it is reasonable that the public asks that the Minister shows he is sincere about this by bringing forward a real roadmap. That was our first amendment, which was ruled out of order. We tried to set out the roadmap. The Minister will be aware that the Joint Committee on Gender Equality provided an action plan. I say this again. There is scope to convince the public and make it clear that the Minister is going to follow through on "strive to support" and make it meaningful. One of the ways he can start, however, is by really listing, not just about what has been done in terms of parental leave and so forth in the past but what comes next. Is it going to be, for example, with regard to personal needs assistance? Is it going to be finally delivering long overdue statutory entitlement to home care, for which we have been waiting for decades? Is it going to be around, crucially, and this is an issue I raised yesterday, the ratification?

This comes to the other part of the problem with this provision, which is that the language is narrow and lacks generosity. It goes a little bit wider; it is everybody now. It is not just the women or married women. It lacks generosity in going as far as it should, however, in terms of really improving and strengthening the rights of persons with a disability who, again, are one part of care. We must remember that this provision relates to the care of children and older people. There is a wide spectrum. It is important to remember that. However, a really important and crucial cohort of people who have been frustrated by the failure to have an ambitious wording here are persons with a disability. The fact is that the language is still this provision of "care to" rather than "care between". In our amendments, we prefer and think it would be better to have the language of care between family members and a community, much as we have the bonds between family members and a community. That would do better in terms of ensuring that we really are recognising equally the rights of persons who may be in receipt of care as well as those who are providing care, and that we do not have a sense of an imbalance and that we may have one cohort of persons. The Minister mentioned supporting the families who are delivering care, but we need to be looking directly to the person with a disability and his or her direct rights and autonomy.

As I said, I regret the absence of language we have seen in a constitutional change that Spain is making this week, which commits specifically to work for the social inclusion of persons with a disability and to work for their autonomy. That would be more ambitious language. I certainly will be going on after this referendum to join with others who are campaigning for that kind of language to be added in and specific clauses, as we have seen in Spain, around the rights of persons with a disability to be reflected in the Constitution. In the absence of that ambitious language, however, the Minister needs to point to the other parts of the law and other serious instruments that are and should be available to persons with a disability in respect of vindicating their rights.

Ireland has ratified the UN Convention on the Rights of Persons with Disabilities and it now needs to go on to ratify the optional protocol that will ensure that every individual can vindicate his or her rights under the UNCRPD. If the State delivers, promises and gives us a date for the ratification of the optional protocol – we have been waiting a long time for this – we will then at least know that the UNCRPD, as a strong legal instrument that is justiciable by the individual, will be sitting alongside this new constitutional provision and persons with a disability will know that they have something they can use and bring to the courts to vindicate their rights, much as persons who are providing care will be able, I hope, to vindicate their rights, although I hope they do not have to go to the courts to vindicate them in respect of this recognition of care.

I apologise that this is so detailed but there are a number of ways it could be better. I will conclude by recapping. It would be better if the article recognised community, the bonds between us as a community and society, and that care is a responsibility, collectively, both inside and outside the home and family. It would be better if we were assured of what “strive to support" will mean and that it would be stronger than “endeavour to ensure”. I hope the Minister can convince me because “endeavour to ensure” is quite weak in itself. Can the wording be made stronger? It would be better if it specifically spoke about care and not just the provision of care. It would be better if it specified that the measures of support the State will take will specifically include economic measures.

These are all genuine, constructive amendments that have been brought forward in a spirit of wanting this to be the leap forward we need as a society rather than a baby step forward. It is indeed a step forward. It is a step away from something that was designed and had the effect of ensuring and supporting discrimination, not just against women but against men. Bear in mind, when we discussed the mother and baby homes, a number of cases were brought to my attention where a woman died and her husband was encouraged to give the children up because a man should not and could not take on those responsibilities in the home. I know of men who had to battle to keep their children because their role in caring was not recognised and they were not recognised as having that particular life in the home and that particular relationship of care. We have heard from extraordinary male carers as well. This is an improvement because it moves towards recognising that other half of the population, namely, men. It moves towards recognising the other 40% of families that are delivering and involved in care with regard to that wider space rather than the narrow frame it is now. However, it does not go as far as we should go.

Sadly, I feel that because we are only taking a baby step, we will have to point strong arrows as to where the next step will be and the step after that. I ask the Minister to show us how we will move forward after this referendum and around this referendum.

Senator Rónán Mullen

Listening to my friend and colleague, Senator Higgins, asking the Minister to convince her and give her a reason, I wondered what incentive there is for the Minister to give people a reason to believe when they are quite ready to go ahead and vote for a Bill that is being guillotined in the House, as the last one, on the 39th amendment, was. Provided this debate continues to the scheduled time, there will be another guillotine when it will all be wrapped up again and put as one question.

It is scandalous that a Government would do business on that basis, especially in the context of a proposed amendment to the Constitution. It is scandalous that any Senator would go along with that, however he or she feels about the principles of the Bill. No democrat should vote for guillotined legislation except in emergency situations. We have argued that case up and down here over the years. We have had promises that legislation would not be guillotined and then the day comes when legislation is guillotined for no good reason. The people on the Government’s side - the faithful electoral minions - go along with it, allowing the Government to disrespect the Oireachtas of the people in so doing.

I find it sad because the colleagues here, for whom I have great respect, are intellectually stimulating and sparkling, the best of company and full of intellectual curiosity, but generally only outside of this Chamber. Once the Government has expressed its will, they just go along with things. It is a pity that anybody who is not bound by a Government Whip would go along with voting for guillotined legislation. I do not deny that they have an absolute right to be in favour of the legislation overall. That is not the point. The guillotining of legislation corrupts the process. A rejection of legislation that is being pushed through by guillotine would push and force the Government to do things in the proper way; it would not end this referendum journey.

I call on my colleagues to reflect on that point because there will be another time, who knows when, when they will object to legislation and no doubt feel much more strongly about its being guillotined through. Whether a person is for or against it should not matter. No democrat should vote for the guillotining of legislation except in emergency situations.

I have heard the many interesting things said. I always listen to my colleague, Senator Higgins, with great interest. However, I noticed that she, among others, mentioned the views of certain prominent women at the time of the 1937 referendum who did not like the provision that relates not to women’s place within the home but the privileging of mothers and their duties within the home. That was the precise reference.

Senator Lynn Ruane

Life and duties.

Senator Rónán Mullen

Life within the home and their duties, not anybody's “place” in the home. If you go to the leagan Gaeilge, táimid ag caint faoi dhualgais a bhaineann le máithreachas, with motherhood.

Senator Michael McDowell

Sa teaghlach.

Senator Rónán Mullen

Sa teaghlach, in the family; motherhood in the family. Whether people like it or not, there are many mothers who value their duties within the family. I could be wrong, and ultimately it is not the critical point, but if there was an honest analysis of the views of Irish women and their representatives in the Oireachtas back then on that provision, I suspect it was a minority viewpoint that held that it was in some way oppressive and limiting. I am entirely open to being corrected by the historians in this matter but I know that there is often a lot of selective quotation that goes on in these matters.

I do not know whether Senator Keogan wants me to move her amendment, which I am supporting. May I do so if it is called for at this point?

Acting Chairperson (Senator Pat Casey)

It cannot be moved yet. We take one amendment at a time.

Senator Rónán Mullen

I understand. My apologies. I do not want to interfere with anybody’s duties, whether in the home, sa teaghlach, nó in aon áit eile. That is the first point. It would be interesting to hear what the views were.

I am supporting Senator Keogan's amendment because it is a generous amendment and it is one way to address the issue.

I have absolutely no problem saying that the privileging of a mother's duties in the home should be widened to a less gender-specific reference to the duties of parents within the home. I have always said that. I note in passing that the reference to "mháithreacha ... ina ndualgais sa teaghlach" does not appear to my reading of the Constitution to confine itself to a marriage-based family. It refers to "mháithreacha ... sa teaghlach" which is an interesting point in itself.

Senator O'Reilly suggested that people were being perhaps being less than upfront about what they were really opposing. She had no problem at all if people's only problem was with the wording. If deep down people had a problem with the premise, she said they should say so. Some of us have been in the Oireachtas a long time before Senator O'Reilly. I was in the Oireachtas before she was. I am open to correction, but on more than one occasion I stated clearly that what I would favour a change that would recognise the role of parents, be they men or women or fathers or mothers.

What we are seeing here is a very reductionist approach by the Government. There is a failure to distinguish between parenting and care. Parenting is about more than care. The duties of a mother or father in the home are about more than care. They are about education.

Senator Erin McGreehan

We know that.

Senator Rónán Mullen

Senators have told me that they know this, but the fact is that the Government is getting rid of a reference to duties within the home which extend to more than care, although care is a very important aspect. It is replacing it with, as I have said, a rather watery tribute to care being given by family members in a home by reason of the bonds between them. There is the removal of even a nod of constitutional respect to all of those aspects of male and female parenting that cannot be characterised by the term "care". We then have a slap in the face to so many other kinds of carers because the only care to be given even a watery constitutional recognition is that element of care that takes place within the family relationships.

To be clear, there ought to be a reference in the Constitution that does not privilege the duties of mothers in the home. Duties are not something to be stigmatised or disrespected. Every parent recognises that they have duties within the home. The question is whether they are to get any help or particular respect from the State for the value of what they do in the home.

Senator Higgins may be perfectly right in saying that there were many failures to give support to women doing their duty of caring within the home in, for example, non-marital families. I do not think anybody would dispute that. The fault for that cannot be laid at the door of the Constitution or this particular clause. The problem with this clause in the Constitution is not the harm it did; rather, it is the fact that it did not go far enough to include the duty of fathers in the home and was never given sufficient impact in practice in the way in which it was implemented. It was treated as though it was one of the directive principles of social policy, I think it is fair to say, as opposed to an active, vibrant, causative and effective clause in the Constitution. When we attack the clause for being allegedly sexist or out-of-date, we are actually attacking the wrong target. We ought to attack the fact that the clause did not include enough and was not implemented enough.

Regarding the amendment I am supporting, it does not refer to men. In other circumstances, and if Report Stage was taken separately from Committee Stage, I might very well put down an amendment that referenced men, as well as fathers and-or mothers, within the home. As everybody knows, because of this crazy legislative timetable we had to put in our amendments last Friday before we even had a Second Stage debate and the Minister had a chance to consider the wisdom of what we might be saying.

Senator Keogan's amendment is a welcome attempt to undo the damage that will be done by the Government's proposal, should it be accepted. I find that the proposal is not targeted. It does not simply seek to insert gender-neutral language in the way I am saying would be desirable, with references to the duties of fathers and mothers and parenting duties, going beyond care duties per se, as important as they are, whether by fathers, mothers, other families members or outside the home. Instead, as I said in another context, the Government is seeking to remove all language that is offensive to our new elite. In effect, apart from the two references mentioned by Senator Ruane, gone will be the word "woman" from the Constitution, a word which the National Women's Council of Ireland and the Minister's governmental colleagues refused to define.

Gone will be the word "mother" from the Constitution, motherhood being seen by some in the Green and wider movement as setting sister against sister. Gone will be the idea of a privileged home-maker, be it man or woman, because the basis for economic support for family duties will be removed. Gone, even, will be the idea of home, a community within which there are mutual responsibilities arising from natural relationships, especially, but not exclusively, those of adults towards children. Gone will be a reason why the State could have any particular support for marriage. Gone, too, will be the grounds on which one might expect the State to support work in the home, the duty to support home-makers to be replaced by simply striving to support carers. We can contrast the term "striving" with the State's unimplemented endeavouring to ensure wording which did not get any practical teeth. Good luck with getting anywhere with the term "striving".

The amendment, which I wholeheartedly support, seeks to undo most of the damage the Government proposes to do while placing an additional onus on the State to support carers within a caring role in the family. It grieves me that Family Carers Ireland would support a vague promise by the State to strive to support family carers at the expense of undermining the only support and acknowledgement 300,000 stay-at-home parents have in the Constitution. Reducing the role of work in the home to caring will do nothing to provide more support for families. Of course, we have no understanding of how parents who work full time in the home might be affected as we have had no pre-legislative scrutiny of the Bill.

I am with Deputy Catherine Connelly on this one from the perspective of possible supports I would prefer if we stick with what we have. Surely it would have made much more sense for Family Carers Ireland to hold out for a proper, separate constitutional statement in support of all carers, separate from, and in addition to, a recognition of the duties of fathers and mothers in the home and the State's undertaking to support them in those duties for all of the reasons I have discussed regarding why fathers and mothers matter to their children and their children's lives.

So much for an inclusive Constitution. The work of mothers within their families is to be set at nought. All mothers in the home are, in effect, being thrown out of the Constitution. More than 250,000 people are performing unpaid caring duties in Ireland. This provides the hidden underpinning of our health service. We have found ways to develop schemes to reward artists and their contribution to society, but we cannot find wording to constitutionally recognise the importance of non home-based care or to reward it. Senator Keogan's amendment at least proposes that care in the home be recognised and supported without undermining mothers, although we would all have preferred a proper stand-alone provision of care which goes much further than the one being proposed by the Government.

As to the valuable work of carers, their work is often different from that of mothers and fathers in that the father-child or mother-child relationship is different from the carer-cared-for relationship. As we know, much of the caring needs in reality, and on a day-to-day basis, are carried out by mothers and women who give so much of their time to the home. The Minister has chosen to ignore carers outside the home, making a virtue of providing for caring within the home, but only in a very watery way, while at the same time taking away valuable legal recognition from homemakers.

At another committee, we have heard of people with disabilities or suffering impairments seeking more support so they can live their lives more fully. This so-called “care” amendment is a lost opportunity. I cannot understand how carers or their organisations can swallow this sleight of hand, allowing their needs to be manipulated in this way. A stand-alone carers constitutional clause was the way forward, as I have said.

In conclusion, this is the politics of bait and switch, as I have said previously. The Minister has held out to people the apparently inclusive approach to de-linking or decoupling marriage from family and, again, he has held out the apparently enlightened approach to departing from a mothers-only reference to duties within the home. That is the bait. The switch is this: the Minister did not give people what would have been generous and inclusive in response; in other words, a clause that recognised both men and women in the home and their duties - both fathers and mothers. He did not give carers a clause that would recognise all care being done, whether within or out of the home. He has taken advantage of the apparent attractiveness of the initial complaint about the existing constitutional arrangement but he has departed very dramatically from what was discussed or proposed, even by the citizens’ assembly, and he has put something on the table that does not actually extend to include fathers and mothers, does not extend to other carers and simply promotes the narrow ideological agenda of a particular wing within the Government. That is very much to be regretted.

Senator Michael McDowell

I do not want to waste too much time. However, first, I have to totally endorse what Senator Mullen has said about the guillotining of the Bill. It is disgraceful that it is being shoehorned through in the manner that it is. What was the hurry? I will tell the House what the hurry was. Some eejit in Government Buildings said there would be a better chance of getting this through if we say it is going to be held on International Women's Day, 8 March. That is what happened. We got stuck with the ridiculous notion that this will help the Bill to go through and we will be seen to be “pro-woman” and doing something on International Women's Day if we select that day for the vote on a referendum. As I said yesterday, that is a gimmick but it is a crude little gimmick. It is not the way a Constitution should be changed. It is shameful that that stunt was allowed to become a backstop in terms of time for considering change to our Constitution.

Where is the State's obligation in this? Where is the community's obligation in all of this? Where is the social responsibility for people who have disability, to vindicate their rights? Senator Clonan talked about people with disability, and for him, this will be the only constitutional provision for people with disability. It is being sold on that basis. It is a kind of a mishmash that is being sold on the basis that this is where the State provides, in its fundamental law, for the whole issue of care. It restricts care to that kind of care that is given by one member of a family to another by reason of their bonds of loyalty.

The arguments Senator Clonan has advanced are not met in any way by this particular few lines. It does not even commit the State to much. The provision states it will assist members of families who provide care to each other. It does not even say it will assist them; it says it will "strive" to do so. It is, therefore, virtually unenforceable in any shape or form. One cannot go down to court and say, "You are not striving hard enough", or, "You are giving too many funds to the Arts Council; you should be giving it to home care", or, "You are giving too much money to acute hospitals when home care needs more". Nobody can go down to the Four Courts and say to a judge, "Tell the Government to shift that money from A to B". We have €20 million to waste on a referendum, and not even that can be appropriated for care by a High Court judge.

I entirely agree with Senator Clonan. This is the only provision in the Constitution to deal with care. It has no social dimension to it other than the family dimension. It has no wider application other than the kind of care that family members give to each other. Senator Clonan told us of his apprehension about what happens when he and his wife pass on and their son will be dependent on the community for care. He was told by a HSE person that his son has a sister. How bad is that? That is the type of care that we are putting into our Constitution, family to family, and we are saying that is the sum total of the Constitution's provision for care.

That is what we are putting in this new chapter. I make to make a few comments on what we are taking out. I accept that the gender-specific reference to mothers of children, "máithreacha clainne", is probably reflective of other days. If it had simply been "tuismitheoirí" or "tuiste", who could have argued with it? Who would have argued that the life of parents in the home, and - I want to use the language carefully - that the duties of mothers could be argued with if they refer to the duties of parents in the home? However, we have now a sort of rights-based culture where everybody believes in rights and very few people like to even use the term "duty" anymore, except to apply it to the State or to society in general. The Constitution, as Senator Mullen said, provides that the duties of parents under Article 42 are not just simply to care for their children but to develop their children's personalities, to educate them and to develop their social and moral formation. It is not just care. It is not just somebody coming in to care in the house, like a professional childminder or something. This is much more substantial than that.

If we were really worried about removing something demeaning, or allegedly demeaning, to women from the language of Articles 41 and 42, three words were all that was enough to change it. That is "parents", and "parents of children", where they appear in the text. We are dealing with something more than that. We are dealing with virtue signalling and we are saying that we reject the closed Catholic ethos of the 1930s, which had so many negative consequences for many people in terms of social policy. We have to remember that when we are talking about "máithreacha clainne", this was a society in which the Catholic Church had 96% dominance, and it was telling every mother, poor or rich, that it was her duty to have as many children as she could. I am talking about women in the slums of Henrietta Street, Dorset Street and the like. They were lectured from the pulpit to keep producing children. Where their husbands were insufficiently involved in the home, those women had to leave tenements, where the whole family was in one room, and go out and act as charladies and so on or do other work, leaving the eldest children in charge of the younger children. In those days, it was considered that there was a great moral danger to children, especially poor children who were left in those circumstances. This guaranteed that mothers would not be forced out by economic necessity. It had a very different context. It was not aimed at the middle classes or at people who had career choices. It was aimed at people who had no choice.

This document does not say anywhere that a woman's place is in the home. One of the things I find fascinating is that people ignore other bits of it. Article 45.2.(i) obliges the State "to direct its policy towards securing -

That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic means.

Anybody who says that the Constitution states women should not work ignores what is written in it, which is that men and women were equally guaranteed the right to make provision for themselves by way of their work.

Senator Lynn Ruane

That does not relate to mothers.

Acting Chairperson (Senator Pat Casey)

I ask the Senator to speak to the amendment.

Senator Michael McDowell

I am just saying that those who actually did something in the 1930s, 1940s and 1950s to assist women to work outside the home while giving them assistance in the care of their infant children ran into cold winds based on the most ridiculous of grounds that they were not Catholic crèches but non-denominational and interdenominational crèches.

That is all I want to say but I want to say those things. The provision we are supposed to be taking out of Article 41.2 was well-intentioned and pro-woman, and was not intended to force women to remain in the home. It merely obliged the State. It is not a directive principle of social policy to be found in Article 45. It is a direct obligation, just as much as the provision of aid to private education is a direct obligation of the State in Article 42. The provision in this case found expression in measures such as children's allowance, which was payable to the mother. It also found expression in the Murphy decision in 1980. The Supreme Court looked at Article 41.2 and specifically relied on the protection that women should not be obliged by economic necessity to work outside the home to the neglect of their duty in the home as part of its reasoning in forcing the State to introduce a pro-family tax regime. It is not a dead letter and was not one in 1980 when Francis and Mary Murphy successfully relied on it in the Supreme Court to stop themselves being taxed unfairly. We had a discussion about taxation this morning. The Murphys relied on the provisions of the Constitution to do that.

If we get to the point where there is a legislative basis for working from home, the present wording of Article 41.2 would give a strong argument to anybody who says they were being forced by their employer, and particularly by the State, to work in an office unreasonably when economic difficulty is imposed on them in looking after the children of the family. That is all I have to say.

Senator Sharon Keogan

I feel at times that I am alone in this Chamber as a female. I take solace from some of the emails I receive from the women and mothers of Ireland. Hundreds of women have written to the national newspapers and their voices never get heard in this Chamber. I am going to read a couple of those letters to the Minister so he can hear their voices. The first letter is from-----

Acting Chairperson (Senator Pat Casey)

The Senator can do so as long as they are relevant to the amendment.

Senator Sharon Keogan

They are relevant to my two amendments. The first letter is from Catherine Monaghan from Ashford, County Wicklow who states:

Sir, – I will be voting No in the upcoming referendum.

I do not want the very small acknowledgement of my role and my work in the home to be removed from our Constitution.

The article in question is symbolic, a token, at best; we all know that the State does not actually do much to enable women who would like to give up work outside the home in order to raise their children. In the current economic climate, most parents cannot afford to sacrifice an income if they want to own, or even rent, a house.

Neither do I want the article to be replaced with gender-neutral waffle so that we can all pretend to be living in a perfect world where domestic work, the bearing, feeding and care of children, and the care when it’s needed of family elders and other dependents is shared equally between men and women. It isn’t! We all know it isn’t; the 2022 census showed that 90 per cent of people filling this role were women.

Let’s be open and honest about the differences between the sexes. Men are not women. Fathers are not mothers (ask the vast majority of parents who their child wants when they are feeling sick? Mum, of course!).

Women are in no way constrained by our Constitution (I was raised by a mother who worked full time in a fulfilling career). It simply states that we have a right, not an obligation, to stay home with our children if we wish.

Instead of abolishing or amending this article, why don’t we hold the State to it?

Think of the benefit to the children of Ireland, and thus to Ireland itself, if family and home were prioritised. A stable foundation at home leads to happy, healthy, and well-adjusted adults.

The next letter from Anne Harbison, Aughrim, County Wicklow states:

Sir, – Justine McCarthy needs to get out more (“Vote Yes to lose the patronising pat on the head to women”, Opinion & Analysis, January 19th). Contrary to her assertions, it is not “mansplainers” who are leading the charge for a No vote in the upcoming referendum on amending Article 41.2 of the Constitution. Leaving aside the opinions of representatives of NGO groups, whose impartiality cannot be depended upon as they are the recipients of Government funding, several prominent women have spoken up against the proposed amendment, including the Leas-Cheann Comhairle, Catherine Connolly TD.

Last year, the Government set up a scheme – the “Basic Income for the Arts” scheme – whereby workers in that sector receive a basic income paid from the public purse. Micheál Martin said at its launch that “We need to invest in that which sustains us”. I am baffled as to why women’s groups – and women journalists – are not calling on the Government to make good the Constitution’s declaration that women who choose to work in the home give to the State “a support without which the common good cannot be achieved” and demand that the Government pay women in the home a similar basic income.

I could read out more. I have loads of them here but I will move on to my amendment.

My amendment is a simple one. It addresses the two main flaws in the Government's proposed wording in Article 42B. First, it rectifies the removal of the word "woman" from the article and, second, it strengthens the onus on the State to support home care. While I often criticise the Government, I must congratulate it on its unparalleled ability to engage in that most essential act of modern politics - the spinning of a narrative. That it has apparently managed to convince women up and down the country that erasing them from the Constitution is a win for women's rights is an act of propaganda that would make even the most scheming dictator blush. The State-sponsored gaslighting of the women of Ireland has told the usual worn-thin tale of escaping from the sceptre of the Catholic Church and moving on from the dark ages, labelling Article 41.2 backward and archaic and painting the Government of the day as warriors of social justice marching ever onwards to a brave new world. Yesterday's debate saw many Members doing their best impression of a calendar, loudly reminding us that it is 2024, as if it being the current year lent weight to their arguments and perversely weakened those of the Opposition.

Women who chose to work in their own homes, raising their children and looking after their families were worthy and deserving of protection in 1937, and they are worthy and deserving of protection and mention in 2024. The notion that the merit of an idea can be wholly eroded merely by the passage of time is so absurd that only a politician could espouse it. Yes, it may be the case that the Catholic Church no longer holds the sway over the social and political realms it once did. However, its receding has merely made way for a new church - that of progressivism, which has it own dogma, creed and sins. Chief among them is recognising the innate differences between men and women. The church of progressivism teaches it is not enough to simply value and treat men and women equally. Their equality must be universal and absolute, such that there are no differences between them. To this end, differences must be eliminated, where possible, and, where impossible, they must be dogmatically ignored. To recognise them is to sin and to speak about them is to risk excommunication, being cancelled, and being labelled a heretic and far-right. The fact that women voluntarily take on more care roles as mothers or otherwise becomes a problem to solve, rather than a reality to accept. Rather than being celebrated and praised, their kind, compassionate, nurturing and caring natures become unmentionable aspects of their characters. After all, women are just like men. All language must be gender neutral for fear of giving offence to any hypothetical third party. The recognition of any one is taken away to be the exclusion of every other. This is what has led us here where the recognition of the uniqueness of motherhood is deemed politically inconvenient. The word "woman" must be struck out from the Constitution by the people who cannot even define what a woman is. It is a perfect encapsulation of the absurdity of this Government. I hope the people of Ireland see it for what it is.

Of course, this amendment will not be accepted. No amendment will be. As we have been told, this is because the Government wanted to play political astrology and put the referendums on a special date and because the separation of powers is dead and gone in Ireland, given the Executive absolute control of the Legislature. I commend my amendment to the House and I recommend the public gets out and votes on 8 March against both these amendments. Vote "No" and "No".

Senator Lynn Ruane

It is hard to know where to begin but I would like to make a comment. It is regrettable that Senator McDowell turned around and told me to "Calm down" for making a comment on a section of the Constitution. I watched his engagement back and forth with other male Senators. I watched him interrupt the Minister. It was extremely gendered to turn around and say that, whether he wants to admit it or not. I have never once seen it. The fact that nobody intervened, and the Chair continued to allow him to turn around to say, "Calm down", was demeaning and disrespectful. I put on the record that it is wrong for him to turn around to say that to me. He could tell me not to interrupt him as he would with anybody else, but he did not. He chose very specific wording. I was not shouting. I was saying that the provision he was referencing in the Constitution does not reference mothers. That is all I said and he told me to calm down. He should reflect on that, because it was quite misogynistic.

I turn to our amendment and removal of the reference to a woman's duties in the home. This is setting out that women and men have different roles to play in their children's lives that are somehow completely distinct from one another and that there is some sort of functionality to a mother being at home that a father cannot provide whether that is when the children are sick or need help or maybe there is a parent-teacher meeting they need to attend. When I went to college and when I started out working in the drugs sector, it was not me the school rang; it was my daughter's father or my dad. My dad was at the school gates every day. He was the one who got the phone calls when my daughter was sick, and he was the one she looked for. Why? Because he was providing the care in the mornings and in the afternoons. She had that bond with him. That bond was special and they cared for each other. She cared for him later on as he got older.

That is the wider situation we are trying to capture here, that is, that the duties we have to one another are not only the duties of a mother to a child. I would like the Minister to be really clear that when we talk about capturing care - I will turn to the term "provision of care" in a few minutes - it does not remove the role of a mother and a child in terms of the care they have between each other but expands it to dads and maybe granddads, nannies - whoever it may be. As regards the idea that somehow that is not pro-woman and that somehow what is there is pro-woman, what is pro-woman to me, as a single mother who is not recognised within the Constitution, is for the men in my children's lives to be recognised for the care they give in order that they can support me and are valued in the same way in which I am in their relationship to one another, to their children and to their siblings.

As regards the idea that we throw all mothers out with this, we are, in fact, trying to bring in more mothers. As regards the amendments we spoke to in the previous session, where we redefine what a family is, the Government does not want to redefine what a family is in the Constitution and then wants to say that this throws women or mothers out of the Constitution, but it has already decided that "the Family", with a capital F, remains the same. It is family that is based on marriage. Then that spills over into this article, which means that the women who are supposedly supported to stay at home are those on whom the previous section is based, which is the capital F Family, that is, the nuclear family. Single mothers are therefore not captured in this whatsoever in terms of the current Constitution. In the current Constitution, we see only a narrow definition of what type of mother is supported. We want to move to changing that definition of family and allowing that impact, the new definition here, as to who is considered in this.

Care incorporates many things. It incorporates, hopefully, not only siblings but also child-to-parent care. It ties in with disability as well in some sense because there are children who before they have even become adults are providing in many cases lots of caring roles for their parents, even though their parents are the ones who, legally, are responsible for them. Where there is a deaf parent, there will be a child having to communicate on behalf of the parent sometimes. There are so many different situations in which children end up providing not full-time care but various caring roles. With these amendments, I want to remove that from the Constitution. I want one-parent families to be recognised in the same way in terms of the care they provide such that this new care amendment would include them, but I do not want it to exclude those who need additional care. My concern is that something I want to be inclusive of a wider situation does not go far enough to be inclusive in terms of the rights of the person who requires care. As regards the provision of care in this situation, provision then allows the person providing the care to be the rights holder. A person who may need care, especially additional care, such as a young person with a disability or likewise, does not gain that same provision here. Provision is not about the giving and taking of care; it is only about the providing of care.

If, however, you have a disability and are the one who requires that care, even if it is narrow in being within the household or the wider family, you do not have any rights under this wording because it is provision. What if that is changed and "provision of" is removed and it is just left as "care"? The one I prefer involves community. Senator Clonan hit on this. It is maybe the apprehension around putting in the Constitution something that results in a rights-based approach for persons with a disability, creating an obligation on the State to be able to provide particular care. Right now, this provision looks after only the person who is providing care, not the person receiving it, which means we are not looking at the care someone requires in a sense. Our amendment seeks to insert "community" into that to take it wider than the family, while taking into account the potential concerns that to include the wider community may result in commercial or private actors saying, "There is an obligation for us in that because we are part of the wider community or are placed within the community." As regards the wording I would prefer to be put in, when the word "community" is added, the rest of it should be left in terms of the bonds between us.

As regards the bonds between us, if it is any sort of private obligation or involves commercial people, such as asserting any sorts of rights in this Constitution, this wording creates a much more personal aspect to the bonds between us, which means someone does not have a bond with the respite care centre or the nursing home. When the wider community is included, it potentially allows for the involvement of neighbours, local community services, State-led services, family resource centres, community development centres or the person who has no family. All the neighbours chip in and help the person. In ageing communities such as mine, that happens a lot. There have often been families where there have been no children or where the children have moved on. Maybe one partner has died and the other lives in the house alone. When this is kept within the home or within the family, that does not take into account the fact that some people do not have that. If the community is not included, its role either in giving care to someone else or receiving care is not captured in that. If the community piece is added but the bonds piece is kept, it is kept on that much smaller, localised scale rather than this commercial idea of a commercial entity saying it fits into this or is covered by this in terms of the provision of care.

I mentioned kinship care in the previous session, and it is something to maybe look at. This involves State care, so familial arrangements are made. In most cases, the State is aware of them, but there are lots of things that do not flow from that in terms of the supports to which a person who is in a kinship care arrangement has access such as extra educational stuff. Kinship Care Ireland said that it is estimated that between 10,000 and 12,000 children are living in informal kinship care in Ireland and that the guardian's payment is the only social welfare payment for which kinship carers can apply. I refer to their having to apply adequate care to situations in which kids may have been in situations involving turmoil. Maybe there is grief, loss or trauma, or maybe there are extra layers of need that require support. We may not recognise the care they provide in keeping children within that familial situation and the importance of that care. We may not match that then with an obligation in terms of policy and legislation as to how we value their care situations. Many kinship carers are grandparents taking on the full-time care of grandchildren on small fixed pensions. Many are aunts or uncles who have reduced or stepped away from their work to provide full-time care. Other kinship carers are adult siblings deferring their education and their life plans because their life trajectories have changed overnight as a result of the needs of, say, their younger siblings. Some kinship carers are family friends or neighbours who, despite not being related, step forward to ensure that the child they know and love does not have to enter formal foster or State care. I wonder where they fit in within the proposals as to how we define care with the suggested wording in the referendum.

We know that rights do not naturally flow from the change. I want to vote to remove the article regarding a woman's place but I then have to think about that in conjunction with not being too happy about the care piece, how the provision of care is defined, the lack of community reference and as Senator Clonan said, the fact that it is still very focused on the paternalistic style of care. We have to be able to discuss the Government plan to be able to meet the needs of those people who will be captured within that and what that looks like. A really easy measure for me is a Government commitment to ratifying the UNCPRD optional protocol. If the person receiving care or the person with a disability who maybe will need care at various stages of his or her life does not have a legal basis within this because it is about the provision of care, where else are this person's legal rights exercised? If his or her legal rights were exercised in terms of the optional protocol, we could see that there is a clear commitment to people with disabilities being able to exercise their rights under that treaty.

I will not go into the individual amendments. I think I said that the one I preferred was the one that adds in community but keeps the bonds between us or else the one that removes "the provision of" so then it includes carers' care in the widest possible sense. Senator McDowell referenced the fact that care is in the new Title of the Bill but then the actual amendment says "provision of care" so the provision of care and care in the Title do not seem to be lined up. The Minister would definitely get far more people on board because as I said, I want to go out and advocate that all mothers and all families are captured under this referendum and that their duties and functions as mothers are recognised beyond the home but I also want to make sure that those who need or provide care have wider access to State supports in making sure this care is provided. The stuff about "shall strive" can be argued out. I am more worried about the provision of care piece because I feel the provision of care is a one-way thing rather than a between thing. We could go a long way in fixing that.

Senator Gerard P. Craughwell

I wish to put on the record that I have been a carer for both of my children. I have been a carer for my grandchildren. In fact they play hell with me when I am on my own with them. They stay up late and convince me that I do not have put them to bed early. They do all sorts of things. My two children ring me constantly when they have problems. They do not seem to feel that they have to talk only to their mother when there is a crisis. They talk to me. I collected my children from school and dropped them to school. I was not a great dad when it came to changing nappies and things like that but I learned as time went on so I favour the term "parent" rather than "mother" or "father" when we are talking about things.

I am also mindful of people like Senator Clonan, who is a carer. Many fathers like him with disabled children have to play a full part in caring for their children. I hope Senator Clonan does not mind me saying this but only yesterday, he told me that he did not think he or his wife had ever had a night alone. One of them always had to be there caring all the time. That is what care is about. When you look at what Senator Ruane was talking about, in some communities around the country, Senator Clonan and his wife would be able to get a weekend away because the community would take over. That happens in parts of rural Ireland. It happens all over the place so I favour the amendment that includes community. It is a brilliant amendment and it is sad that we find ourselves up against the clock here and it cannot be taken.

I wish to talk about the word "strive". I accept the Minister's bona fides that when he put in this wording, he meant that the State would do everything in its power to support care. However, let us talk about the other side of striving within the State. Let us talk about Brigid McCole, Vicky Phelan, mother and baby homes and all of the cruel things the heartless State has done and how hard it has striven to drive people who take on the State into the ground. If some poor unfortunate family finds itself in a situation in five or ten years time because of this amendment to the Constitution where it feels it has not been taken care of and the State has not striven to give it the support it needs, it will be driven to hell and back to try to find and prove its case in court. I am shocked that Family Carers Ireland has come out in full support of this - the very people who depend on the State. How many people come in here day in and day out to tell us about their struggles to get supports for their children? Senator Clonan has spoken several times about the children with disabilities who are being refused basic services. Right now this State does not strive and I am not so sure that putting this amendment into the Constitution will change the welfare of those who depend on the State. This is why when I think about the amendment to bring the community in on the care side of things, if a family has an entire community behind it, it is much easier to convince those who hold the purse strings to make sure that family gets the supports it needs.

I am really sorry. I said it to the Minister yesterday and I meant it. Today I am confirming it. While the word "strive" remains in this amendment to the Constitution, I cannot support it and I would ask people not to support it. I have nothing against the Minister and his efforts. I commend him on what he is trying to do. However, the wording is wrong. Regarding those who were supportive of the two changes to the amendment, we just heard Senator Ruane say that she had difficulty with the word "strive" and is struggling to find a way to sell this to her community. The Minister has not met the needs of those who are involved in care all day every day. He has not met the needs of the countless mothers and fathers who are there looking after a disabled child and whose lives have been controlled by virtue of the fact that they have a child they need to care for. I cannot go into details but I have seen cases where an entire family was tied down with the care of children. One family had to have nurses 24 hours per day, seven days per week and 365 days per year in its home. Its sitting room was turned into a hospital ward. Regarding the term "strive", I have seen how this State can strive and how cruel it can be to those who were most in need so I am afraid that with the word "strive", the Minister is not convincing me that we would truly go the extra mile when we need to.

Senator Mary Seery Kearney

I will be voting a very strong "Yes" to this amendment to the Constitution and will do so with a very glad heart. I believe that the description of women as set out is dated and is not reflective of an inclusive modern Ireland and of how care and duties in families are reflected in a modern Ireland.

Let us look at what a "No" vote would do. A "No" vote would leave it in there - a piece of the Constitution that has no material effect on people's lives.

We will have a redundant article in the Constitution that is not fit for purpose. I have read constitutions from different countries to adjudicate how their supreme courts and governments administer them. We can contrast between countries. A person looking in on Ireland would think that for all its pronouncements, it is not a particularly modern state in that it believes that women have duties that are particular and need to be preserved and red circled for being in the home, and that women will not fulfil those duties were they, God forbid, actually to come out and work for a living or contribute other than in the home.

The second issue is that care as a concept will not go into the Constitution. It will be left out of it. A "No" vote does not do anything for the delivery of services for disabilities. It does nothing to enhance anything that is espoused by the opposition to this Bill. It will not advance a single thing. A "No" vote therefore is merely a protest; it is opposition politics for it's own sake. It does not constructively add to this in any way. The problem is that the chances of it coming round to another referendum are fairly slim as we move on. All of the work of the citizens' assembly, the gender equality committee will be for nothing. It is not an option to have a "No" vote. We need a "Yes" vote. We need to figure out what that "Yes" vote actually means.

The Constitution is not the place for particularising what exactly that should look at. The Constitution is the place for concepts and aspirations that we subscribe to as a people from which rights can be promoted, drawn and naturally flow. The proposed wording is that the State recognises the provision of care. Care is an action word. Care is an interaction that happens. We are saying that this happens as a provision. We have a comma there deliberately. Commas are there to separate different distinguished groups within a sentence. They are there for that purpose, so it is the provision of care. I have listened to the concerns of disability representatives and advocates, as I know the Minister has. Yesterday, on Second Stage, I addressed, in particular, groups such as the Independent Living Movement who say that people with disabilities are not merely passive recipients of care. I did it wholeheartedly. Then the Minister spoke and I went home and absorbed and processed all of Second Stage and thought, "Hold on a minute, what we are talking about here is not merely care for people with disabilities." If we confine it to such, we are reducing what this provision in our Constitution is actually all about. I stand by the view that people with disabilities are not mere passive recipients of care; they are people who also give care. This morning I think of Selina Bonnie to whom I paid tribute on the Order of Business for her extraordinary work and I outlined my regret at her passing. She was a giver of care. She was a standard setter and a changemaker. She was all of those things and she was a disabled person. She was not a passive recipient of anything. In fact, she was a person who put it up to everybody else to make changes. One of the biggest tributes I will give to her is, in the passage of the assisted human reproduction, AHR, legislation, that she made sure that people with disabilities had a right and access to fertility treatment in this country. I will insist on that in her name as we clarify that Bill coming through the House. People who have disabilities also care and love. They also can be parents and people who give care. Let us not be reductivist in our assumptions in this debate.

We qualify the aspiration within the Constitution by saying a family to one another and there is a mutuality of care within that concept. Within the wording that we put here it is a mutuality, a giving of care as equals to one another. I have a eight-year-old child. She can be sassy. I like to think she takes after me. She gives care and love. Every day I am challenged by her unfiltered comments on things and the fact that I have to be so filtered about my life. Even in parent-to-child relationships there is the mutual respect and care of each other. Yes I do things, I obviously am providing and doing a whole heap of things with regard to her, as my husband does also. That said, there is a mutual exchange. The recognition of that care and love from a toddler of two, if I climbed up on a stool to get something she would say, "Be careful". It is all of those things. Care is an instinct and we are recognising that mutuality in the wording of this. We are saying that "without which the common good cannot be achieved". That is very powerful statement. We cannot achieve what we need in our State without the provision of care to each other, particularly within the family, and that we will strive to support such a position. "Strive" is an important word there because we are saying there is no limit to the aspiration of what the State envisages but there may be a limit to what we can actually finance. We will strive to support it. It may be that we support it in mechanisms other than direct funding. It may be in ensuring hearings in courts or child maintenance. It may be in a number of different ways that are not necessarily on the purse of the State. The fact is this is such a strong statement for our people. We need to have "strive" there as a little qualifier to say we will strive but some of the aspirations that will flow from this may be too big for us. We will try, we will wrestle with it and we will actively engage with what we can do to make sure that we are respecting care.

Senator Mullen referred to the duties of care and caring and said that we are reducing what caring is. I remind him that Article 42 begins: "The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children." I wonder what duties actually stands for in the previous article because that is a really comprehensive provision. The description of the relationship is found within the new article and that provision in Article 42. It is important to remember that. We are not being reductive in any way.

While I disagree with the interpretation, with due respect to Senator Clonan, and how far he is taking it but I completely agree with the plight of parents and family carers. I was on Newstalk's "Lunchtime Live With Andrea Gilligan". She has been very good in highlighting, promoting and campaigning for family carers. I listened to the story today of Gayle and her son Luca and the fact that she is a prisoner in her own home. She has no respite and none of the things she should have. The family changed its CHO area last year by moving house and his care package did not transfer across, despite the HSE being advocated to repeatedly. Until Andrea Gilligan sent it an email today, the HSE failed to engage. It said that after today it would. There is a truth that there is an appalling failing in the culture of the HSE with regard to the manner and approach to families who have members with disabilities.

That it had the gall to go into court and defend that child spending 60 days off an emergency department room and say it did not cause her any harm is shocking. Whoever gave that instruction should be sacked. It is a shocking position for the HSE to take.

However, voting "No" will not advance that situation. Reviewing the disability Act to make sure it includes access to services and not merely assess to assessment will. Presumably, the Minister is the one who had to go in and do the arm-wrestling with the Minister for Finance to allow the Minister of State, Deputy Rabbitte, to deliver €15 million for respite care and her three-pronged plan, which will also change that situation. It requires political pressure. The aspiration in the Constitution will not change that. The steps the Government is taking will and are already bringing about change and doing what needs to be done. Concerning the stories like those of Gail, Luca and others, unfortunately, it is the way of things that we must share some of our most difficult moments to stimulate change. Those situations are the ones for which we need campaigns and to keep pressure going. The change in the Constitution, the recognition of care and the State striving to support such provision is what we need to support and drive home. Voting "No" is not an option. It does not get us any further and does nothing productive. It sets us back and sets back the work of NGOs in advocating and sets back women's rights over the past number of years. It is a slap in the face to the women of Ireland who have said we do not want this in our Constitution and we do not want to be defined. The Constitution is not a place to label individuals, it is about setting out a provision for all our people equally.

I support this. A lot has been said. I am just checking my notes to make sure I covered everything I wanted to. It is a good provision. Some are being disingenuous. Some of the debate has been to approach it in a mean-spirited way rather than seeing the provision as opening up a vista of care, putting it on a standing in the Constitution, ensuring it has that place and is at the centre of the Constitution. It is part of the rights between Articles 1 and 44. We are putting it at the heart of that. We recognise the fundamental position of care, not in a reductive way but in a way that aspires to much more than we can imagine. The wording of this provision does that. It even provides for concepts we have not even thought about yet and may arise. I congratulate the Minister. A lot of hard work went into this. I say, "Well done". I urge people to vote "Yes". We need this. We need to get rid of the old wording.

Senator Erin McGreehan

As I said yesterday, I welcome this opportunity to change our Constitution. We have listened patiently - perhaps a little impatiently at some stages - to today's debate. I was glad there was at least an acknowledgement that the Article is not reflective of reality and not to include more - the parents - was unfair and unrealistic. However, going back to the previous debate, we have to acknowledge what the family is, what it has become and what it actually always was and have that acknowledged in our Constitution. We must also acknowledge that the mother - the woman - is not the only person involved or the only one with the responsibility or duty. We need that change. I also find bizarre the argument that this was some sort of social good that the Constitution gave to lower class people - as Senator McDowell said, it was there to protect poor people. It did not. What good did that Article about life within the home and "not to neglect their duties in the home" do? It did not help anybody. It did not help me nor did it hinder me but it did not help my granny, mother or aunt. No positive actions were taken from that Article to support women. It is no good to them. It is perverse how some have twisted it. Earlier in this debate and in the previous debate, it was said it was a disgrace that some were taking men out of the argument and that they were deleting men. We have moved on to this debate and we hear the rambling that it is a disgrace that we are deleting women from the Constitution. It is ludicrous. You cannot say one and the other and mean both. It is singing to the choir. There was a lovely clip for a Twitter post that will get loads of likes and follows, which is empty of any substance or progressive move for this country. It is infuriating.

I hope this referendum is passed because, as Senator Seery-Kearney said, it is a progressive move that sees care in itself as an action and a positive that will be acknowledged in the Constitution. There are many types of care which this can encompass. We have discussed this at length in many different types of debates. There is a huge failure of the State in supporting community care and care outside the come but this is a positive Article. It acknowledges the family and care. It includes the fathers, aunts, grannies, grandads and uncles who provide care because of their bonds and acknowledges that care is so important that the common good cannot be achieved without it. It is symbolic and important that our Constitution acknowledges care and deletes "duty". I am not sure which Senator said it was not fashionable to have "duty" included but duty is there. We all have a duty but to put a perceived legal obligation in the Constitution that a woman must fulfil or not neglect her duty is not appropriate. "Duty" is a very strong word. I will not miss my Constitution telling me, because of economic necessity, that I am neglecting my duties in the home. This country will not miss it. We do not need it. It did not help us. It did not hinder some. The Constitution might not have been the origin of discrimination against women but it was the origin of its support. When policies were enacted, there was a societal drive but also a constitutional stamp.

Like Senator Seery Kearney, I congratulate the Minister and his officials on their work because this is a progressive, positive move that encompasses all people who do care because "of the bonds that exist among them", which is a lovely phrase.

Acting Chairperson (Senator Maria Byrne)

I thank the Senator and invite the Minister to speak.

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

I thank the Senators for their amendments and for their detailed consideration of the Bill before them today. Before I start, I would like to follow on from comments made by Senator Seery Kearney in terms of recognising Selina Bonnie. She was a colleague of mine and I regularly received a little text every now and then, usually prodding me on where the assisted human reproduction Bill was but also on a range of other issues. As it is an extremely difficult time for Robert, her daughter and all of her family, I am glad the Senator recognised her and would like to take the opportunity to do so also.

I will speak to the amendments first. All of the amendments relate to the section of the Bill concerned with the wording of the new Article 42B. In essence, these amendments can be divided into two parts, the first of which being that the Constitution should recognise care provided not only by families but by the wider community. As there were nine months of discussion at the interdepartmental group, at the Cabinet subcommittee about these proposals, the concept of unpaid care beyond the family was given significant consideration by the Government. The Government does recognise those who volunteer their time to help others in their community. They undertake an important social good. However, it is important that we recognise that if we extend the constitutional recognition of care to community volunteers as well, that can have very significant consequences. There was a concern about the unintended consequences, particularly when we are dealing with the Constitution, dealing with a document that paints in those very broad brushstrokes.

Yesterday, I spoke to the issue of carers and a concern raised by some that we were not explicitly recognising carers within the context. I will come back to that later when I speak about why we chose the word "care". As I said yesterday, carers are not named explicitly within the scope of Article 42B but supports for family care often include paid services, such as personal assistance hours, and as such in recognising and placing that onus on the State to support family care, the State will also have to support that robust care infrastructure around that. Through that express obligation on the State to support family care, there is a recognition of the importance of investing in those services, services that we all recognise are not getting the level of support right now.

With regard to the second part of the proposed new article and the amendments concerning that, which relate to the scale of the obligation placed on the State and the words that explain the extent of that particular obligation, we all know that any amendment to the Constitution is significant and what we propose here places an express obligation on the State to support care within the family. Of course, the courts - as the judicial arm of the State - will have the role of interpreting that obligation and applying it in cases. Cases will follow from this where family care is an issue.

There is an issue about the use of the term "shall strive" and what it means. That phrase was picked deliberately because it most accurately reflects the clear policy objective of the Government, that is, an objective to support family care but also give the Oireachtas some latitude in how it chooses to do so. 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 "strive" is done so deliberately because it recognises this will be achieved on a progressive basis. It will not be achieved in one budget or in one electoral cycle. It will take time to fully achieve these objectives. That overarching aim of serious and sustained support for care, in all its myriad circumstances, must be put into the Constitution and it allows for a building and improvement of the services and supports. It is important to say the phrase is "shall strive" so "shall" is a mandatory word. It is a clear direction in terms of the level of obligation. We should contrast that to the term "endeavour to ensure" that is currently used in Article 41.2 and I argue that "shall strive" is significantly more ambitious. Article 41.2, "shall ...endeavour", has not delivered anything, ever, to any woman or mother. It has delivered nothing. Senator McDowell asked about the new article, Article 42B, "Where is the State's obligation?". It is clearly expressed there. There is a clear obligation on the State. It is a justiciable obligation on the State and it will be tried and tested in the courts.

I am sorry that Senator Craughwell is not here right now but he listed many appalling circumstances where the State had forced individuals to litigation to vindicate their rights but had there been an obligation on the State to strive to better support care, we could have had different outcomes in many of those cases because of placing a constitutional obligation on the State in there. It is particularly important we recognise that when the discussions took place on what we would do, were we to remove the existing text of Article 41.2, there were options. One option considered in 2018 was straight deletion. Senator Higgins spoke about that earlier on. There was the idea of placing the recognition of care and the onus on the State in Article 45, the directive principles mentioned by Senator McDowell. This is non-justiciable. If we had not wanted to place an obligation on the State, we could have put it there. We could have recognised care but not put the onus in as well. The Government did not do any of those things. It clearly put in the recognition of care and it placed a clear obligation on the State with regard to "striving".

Senator Seery Kearney is right and the difficulty-----

(Interruptions).

Senator Michael McDowell

Sorry about that.

Senator Lynn Ruane

Was that a baby cam?

Senator Mary Seery Kearney

The Minister should go back to the bit where I was right.

Deputy Roderic O'Gorman

Senator Seery Kearney was right about what we are trying to achieve in each budgetary cycle. I think back to when we are looking to achieve improvements for care, and care is so fundamental to so many of the elements of my Department, in budget 2023 I wanted to do something on the foster care allowance but when we looked at it we did not have the money to go round that year. However, in budget 2024, we were able to advance it. That reflects the clear onus of "strive". It will not deliver every single improvement on the first day and everyone recognises that. However it is that clear progressive goal of improving the supports for care and for carers.

It is important to say it is a myriad of care. We focus, rightfully, on the issue of disability but care is care for children, for those with a disability and for the elderly. There are diverse types of care and that care is provided by a diverse type of carer. It is provided by mams and dads, by sons and daughters, by the extended family. The "family" referred to in Article 42B is not the constitutional Family we spoke about earlier. It is not the martial family or the durable relationship. Because it is "family" with a small "f" it is a distinction from the Family referred to in Article 41. Linked to that, because Senator Ruane raised the specific point, on the issue of kinship care, my Department recognises there is a large lacuna right there with regard to the thousands of people who are in kinship care and for whom the current policy and supports do not do enough. The Department is doing a piece of work right now to bring together a policy paper on kinship care and to look to see what the next steps we can bring forward are.

I hope that is one tangible example of a recognition that there are groups of carers who are not being properly supported right now and we know we need to do more. I cannot say what we are going to do yet because we are early in that process but there is recognition that change is needed there and clear policy mechanisms do need to be put in place.

I listened carefully to the points Senator Clonan made yesterday and today. I spoke on them yesterday and will try to do so today as well. We clearly identified the word to use in the new article 42B as “care”. That is because there is the understanding that there are two or more people in a care-based relationship. We did not use “carer” because that very much focuses on one element. We talked about the word “care”. I thought Senator Higgins put it very well when she said care was about receipt as well as provision. That is absolutely what we seek to achieve with this article. Both parties to that caring relationship are recognised. That is why the term "care" was chosen. I spoke earlier how there was some criticism that carer is not specifically called out but we use the term "care" because we did not want to create that asymmetry between the person receiving and the person providing care in the particular situation.

Particularly early in the debates today, many people referred to care in the home. It is really important to state that “care in the home” is not used anywhere in the new Article 42B. We were talking about the previous article and they get linked in but it is quite important and, again, it was a deliberate choice. It is care within the family. It is not linked to a physical or geographical location. Where a person who leaves the family home every single day to go to work and has a personal assistant with them, that is fully covered in the purpose here even though the vast majority of the time the personal assistant is with them they are outside the home. It is still encompassed in what we are addressing here.

It goes back to the point that the infrastructure of care is so important here and that family care cannot, in many circumstances, take place without that infrastructure of care. That is relevant in disability, elder care and child care too. We recognise that more needs to be done in that wider infrastructure. Yesterday, I spoke a little about some of the things the Government has done and that it is committing to in the short term. Senator Higgins spoke about the action plan for the implementation of all elements of the citizens’ assembly and the report of the joint committee. Across the Government, we are monitoring our progress on each of those. We have been able to do quite a lot in my Department on the childcare and leave side of things. There might be an opportunity for the Seanad to have a debate on where we are there. Much of it falls within my Department, although not all of it, obviously. There is progress against much of the non-constitutional recommendations of the Citizens' Assembly on Gender Equality.

Ireland’s ratification on the optional protocol of the UNCRPD is something we have discussed here in the past. Originally, we had a plan that we would do our first reporting cycle, get our first report and then look to ratify the optional protocol at that point. We have submitted that report. There are significant delays with the UN body. Myself and the Minister of State, Deputy Rabbitte, have said we are open to doing it sooner. We have commissioned a piece of work on the remaining blockages to ratification and the remaining areas where Irish law is clearly out of line with the UNCRPD that we need to address. We got rid of an important one with the assisted decision making legislation. We have commissioned the work and it is under way. I hope to receive the outcome of that in the coming weeks and I hope then I will be in a better position to outline the steps towards ratification. I am not able to give the Senator a date today but we are working to identify the final barriers towards that ratification.

On independence and the recognition of independence, particularly talking about persons with disabilities, the passing of the assisted decision making legislation, which had been sitting on the shelf since 2015, and the resourcing of the decision support service is, I hope, one example of the Government wanting to operate in the new regime that our ratification of the UNCRPD must recognise.

I think everybody who spoke on this today recognised that, at a minimum, the language of Article 41.2 is outdated. I think everyone had some qualms about the existing language. I know that some people had a much harsher view of the language but there was some common agreement there on it being outdated. It is language that has not delivered tangibly for women or mothers and we have an opportunity to replace that with a clear constitutional valuing of family care. It is an inclusive valuing of care; it values care, be it the care of parents for their children, of mams and dads for their children, of sons and daughters for their elderly parents, or of family members for a family member with a disability, but most importantly, for the first time, we will have that constitutional onus and obligation on the State to do more. We have heard so clearly from Senators here and from Deputies in the other House how the State does need to do better in terms of the delivery of care. What is being proposed here is a meaningful step. It is a step that is worth supporting and one we need to take. It will not finish these issues but it is a meaningful step forward to a better recognition and better support of care.

Senator Alice-Mary Higgins

I thank the Minister. It is good that hopefully before the referendum we should have the result of the roadmap and dates for the optional protocol. That would be something very substantial that would send a really positive signal. I look forward to the outcome in the next number of weeks. Perhaps this might accelerate it.

The Minister mentioned a number of areas in which the State needs to show its sincerity and show the spirit in which it is carrying this forward with “shall strive to support the provision of care”. The Minister has given a number of examples and that is very useful to have. The roadmap forward is really important.

There are other Departments which are relevant. I am looking particularly at the Department of Social Protection and, indeed, the Department of Health. It would be useful and important if they would come forward and be very clear in what they believe are the additional measures they will have to take to strive to support care if we have this shift in the Constitution. It is striving to support care in all families and not taking a narrow remit - as the Minister noted, it is rectifying families in the first referendum - and the unequal treatment within our social protection system. I am conscious that it is often the Minister out front but we will have to see all of the Government, because this is an all-of-government proposal, coming forward and being clear and strong about what it is offering.

I had a number of points that evolved during the debate. I will park some of them because I am sure that when the debate finishes here we will go out and have the debate in the public realm and we will continue to talk about these issues. It has been a really interesting debate. The language from everyone is around the inadequacy of what is there at the moment. However, it has also been clear that the idea of different functions for men and women and that there should be very distinct bounded roles is not something that solely existed in 1937.

There are those who still believe that we should have a very separate role defined in terms of mothers and women in the Constitution that excludes others and that we would have a different function and shape in society rather than a society that recognises care for both men and women. It should also recognise working life for men and women and there is that equal piece. My colleague was completely correct in her observation earlier when she said that Article 45 in terms of the social policy only related to women, but was superseded by the stronger provision that was there in Article 41.1 around mothers in particular. It was the practice of the State for many years, right up to the 1970s, that a married mother was required to leave her job. That flowed from that same spirit. There are those now - and we see it in Hungary in some of the policies coming through there and elsewhere - who would like to see a reification of roles and a pushing back into separate function rather than something that recognises that care matters. It is not enough to leave it as an invisible support to society. It needs to be a visible, recognised, supported and rewarded contribution to society for everybody. Also, the individual choices of both men and women should be respected and valued in an equal way. This includes those men who choose to care full-time and those women who choose to work full-time and those families who share those responsibilities between them.

I had a number of points along the way. I am going to park them right now because I know there are others who want to come in and we are coming to the end of the debate. I had answers to different questions that came up but they have now really gone from me at this point. It is regrettable that we are probably not going to get a chance to vote on all of the very constructive amendments. The process has not been ideal in that it has been truncated. It was an unfortunate and unnecessary choice for us or for me because I believe this is so significant and because the question that will be put is as to whether the Bill should pass and whether there should be constitutional change. I am going to be put into a position of supporting the Bill, but I want to be very clear that it has been unfortunate that the process was not as it should have been. That is regrettable because I think a longer process would have allowed more opportunity to unpack why we need these changes and why change in our Constitution is a positive thing we need to move towards. I have to note that concern but I would be very clear that I do not think simply being frustrated at the process is enough to vote against something that is so significant. We have heard in the past the idea that if one is unsure, go for the status quo. The status quo is unequal and it is not satisfactory. Even if it is not going far enough, I think we do need to move in the right direction.

Senator Michael McDowell

Senator Clonan can talk about his own amendment. I am making that point.

Senator Tom Clonan

I just want to make a general observation to echo what Senator Higgins said. Notwithstanding the differences of views and notwithstanding the time constraints and the compression of this process. I do appreciate the listening ear. I felt that we at least had the opportunity to raise those concerns here. I appreciate the Minister's bona fides in this regard. I know the debate may have become heated from time to time, but I hope he would not infer from that any personal criticism. I thank the Minister's colleagues as well for spending the time here sitting under the window, which I am sure is not comfortable.

Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú do.

Amendment put and declared lost.

Senator Rónán Mullen

Tairgim leasú a 3:

In Part 1, page 6, to delete lines 5 to 8 and substitute the following:

“Admhaíonn an Stát, go sonrach, go dtugann mná agus cúramóirí teaghlaigh, a thugann cúram sa teaghlach, taca don Stát nach bhféadfaí leas an phobail a ghnóthú dá éagmais.

Déanfaidh an Stát a chur in áirithe nach mbeidh ar mháithreacha ná ar chúramóirí teaghlaigh, de dheasca uireasa, dul le saothar lasmuigh den teaghlach agus beidh ar an Stát tacú lena ndualgais chúraim.”,

I move amendment No. 3:

In Part 2, page 6, to delete lines 12 to 14 and substitute the following:

“In particular, the State recognises that women and family carers who provide care in the home give to the State a support without which the common good cannot be achieved.

The State shall ensure that mothers and family carers will not be obliged by economic necessity to engage in labour outside the home and the state shall be obliged to support

their caring duties.”.

Cuireadh an leasú.

Amendment put.

An Cathaoirleach

Will the Senators who are claiming a division please rise?

Sheas na Seanadóirí Clonan, Keogan and McDowell.

Senators Clonan, Keogan and McDowell rose.

An Cathaoirleach

As fewer than five Members have risen, I declare the amendment lost. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

An Cathaoirleach

Ó tharla an t-am a cheadaítear le haghaidh na díospóireachta seo a bheith caite, ní foláir dom an cheist seo a leanas a chur de réir ordú an lae seo ón Seanad: "Go n-aontaítear leis seo leis an Sceideal i gcoiste; go n-aontaítear leis seo le hailt 1 agus 2 i gcoiste; go n-aontaítear leis an Réamhrá agus leis an Teideal leis seo i gcoiste; go dtuairiscítear an Bille gan leasú dá réir sin don Teach; go ndéantar leis seo an Ceathrú Céim a chríochnú; go ndéantar leis seo an Bille a ghlacadh chun an breithniú deiridh a dhéanamh air; agus go ndéantar leis seo an Bille a rith".

The time permitted for this debate having expired, I am required to put the following question in accordance with the order of the Seanad of this day: "That the Schedule is hereby agreed to in committee; that sections 1 and 2 are hereby agreed to in committee; that the Preamble and the Title are hereby agreed to in committee; that the Bill is accordingly reported to the House without amendment; that Fourth Stage is hereby completed; that the Bill is hereby received for final consideration; and that the Bill is hereby passed".

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question put and declared carried.

Seanad Éireann debate - Tuesday, 23 Jan 2024

Fortieth Amendment of the Constitution (Care) Bill 2023: Committee Stage (Resumed) and Remaining Stages

Seanad Éireann debate -
Tuesday, 23 Jan 2024