Fortieth Amendment of the Constitution (Care) Bill 2023: Second Stage

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

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

I am delighted to be able to introduce the second element of the Government’s proposal for these referendums - the Fortieth Amendment of the Constitution (Care) Bill 2023. In the years following independence in Ireland, women steadily found their right to equal citizenship and equal opportunities eroded. The right to employment in education on the same terms as men was taken from them. They lost the right to information on access to contraceptives which is key to bodily autonomy. They even lost the right to trial by jury of their peers.

Women who fought bravely for independence and the right to vote now found that they were treated differently from others in society, a position underlined with the introduction of Article 41.2 of the 1937 Constitution, which effectively relegated them to a life of domesticity regardless of the needs of their families. This is not misty-eyed revisionism, looking back at the past with the benefit of hindsight.

Within days of the publication of the new Constitution on 1 May 1937, women’s groups across the country began to rally and organise a campaign against the provisions which, in the words of the veteran republican and women’s rights campaigner Hanna Sheehy Skeffington, cut “away their rights as human beings.” At a meeting in the Mansion House one month later, close to 1,500 people attended from all walks of life to voice their opposition to it. They were, in the words of a report in The Irish Times at that time:

...old women, middle-aged women, working women, professional women, girls from the Sweep and the Civil Service. Girls out of shops and offices...They filled every seat in the Round Room, they thronged the balconies, they sat on the steps of the stage...

Today, I think of these women. I think of people like Dr. Kathleen Lynn, Maud Gonne and Mary Hayden who addressed those who attended and condemned the provision. I think of Kathleen Clarke, a former Member of this house, who said it “robs us of our status enshrined in [the 1916] Proclamation.” It is worth restating the language we are talking about. Deputy Cairns in her contribution earlier spoke about people being shocked to hear what is in our Constitution. I studied law and I remember when we discussed the article on the family and our lecturer read out this language there were gasps around the room because people perhaps do not recognise what is in our Constitution.

Just to say, Article 41.2:

1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

The introduction of today’s Bill is an opportunity, at last, for this House to put a proposal to the people to remove the archaic and sexist reference to a woman’s place in the home in Article 41.2. This is a provision which, irrespective of the reasoning behind it, has in no way improved the lives of women in this country since it was introduced. For three decades, this question has been given detailed consideration beginning with the Constitution Review Group in 1996, which called for the removal of the outdated, stereotypical language of Article 41.2 of the Constitution and to provide recognition for care provided within families. The Constitutional Review Group's recommendations were referred to the All-Party Oireachtas Committee on the Constitution, which considered Article 41.2 in its first progress report in 1997 and the tenth progress report in 2006 and agreed broadly with the recommendations of the 1996 review group.

The second report of the Convention on the Constitution, which carried out its work between 2012 and 2014, also recommended to amend Article 41.2 to be gender-neutral and to include carers. The Task Force on the Implementation of the Recommendations of the Second Report of the Convention on the Constitution was established to consider all previous proposals in order to devise the most appropriate wording. In 2016, it put forward its own options which were followed by publication and consideration by Dáil Éireann of a General Scheme of the Thirty-eighth Amendment of the Constitution (Role of Women) Bill. This Bill proposed deletion, without replacement, of Article 41.2 and as we know that Bill did not ultimately progress. The Citizens’ Assembly on Gender Equality then included this issue as part of its wide-ranging considerations and recommended that Article 41.2 be removed and replaced with an obligation by the State to support care. The Joint Committee on Gender Equality also supported this proposal and sought to devise particular wording.

Consideration of this issue has not been limited to the domestic sphere and a number of international bodies have called on Ireland to address the stereotypical language in Article 41.2.

The overarching aim of the referendum is to update our Constitution so that it reflects our values in terms of equality and recognition of the valuable role that both women and men play in all spheres of public and private life. While Article 41.2 has been subject to so much consideration over the years, it is only one part of this proposal. The Government amendment comprises 3 parts: it will remove the reference to the woman’s life and woman's duties within the home; it will recognise the immense value of the care and support which family members give to one another and which is a foundation for solidarity and cohesion within our society; and, it will create an obligation, an onus, on the State to support those care relationships.

The proposed amendment would achieve this by deleting Article 41.2 in its entirety and inserting a new Article 42B into the Constitution. The new Article 42B, if passed, will read:

The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.

The proposed amendment seeks to recognise that the mutual care and support which family members provide to one another is a public good and a foundation for social solidarity and social cohesion. We all know someone who is caring for a family member, be it their child, their parent, their aunt, or their brother. That care can be for an infant or an older person. Many people care for more than one person. Some people are giving care and support to those with very significant needs and they do this out of love, out of compassion and because that is just what family members do for each other. It is the very essence of our humanity.

These carers, whom we all know, are women and they are men. They are young and they are old. Who does the caring and who receives the care in a relationship can change over the years, as life moves on and people provide mutual support to one another. As with the proposed amendment on the family, this is not an empty symbolic gesture. Every amendment to our Constitution is meaningful and important. For family carers who have given so much of themselves, it has a meaning if we choose to go further than simply deleting Article 41.2 and ensure that there is a part of our nation's Constitution that speaks of them and what they do. Recognising the care we give to each other in families is hugely important. It is the right thing to do. The intention of the proposed Article 42B is to recognise unpaid care provided by immediate and extended family.

It reflects the often constant, intensive and durable nature of care provided by families. In contrast to the current Article 41.2, it involves recognition of a much broader form of "care" beyond the care of mothers for their children in the home.

Furthermore, this amendment does not merely recognise care. Amending the Constitution, as proposed, will also place an express obligation on the State to "strive to support" care within the family. It will place an onus on the State and all future governments to a progressive realisation of support for care within a family, building out on existing supports where necessary.

It must be noted that the proposed amendment does not create an express constitutional entitlement to specific measures of support such as grants or allowances. The Government and the Oireachtas retain the power to define both the types and levels of supports, and the criteria in respect of eligibility for those supports. This is important in the context of the separation of powers which is so fundamental to the functioning of the State. It is the people who elect us to the Oireachtas and, in doing that, they choose where State resources should go. The wording of this amendment has been developed carefully, with the assistance of the Attorney General, to ensure it supports that balance while also meeting the overall aim of the proposal to recognise the role played by the family in terms of support and care which is provided on an unpaid and voluntary basis, and to "strive to support" it.

The word "strive" is relatively novel in the Constitution but it was carefully chosen to reflect the intention of the Government in this proposed constitutional amendment. 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 word "strive" includes a connotation that this effort will take place over time; that the achievement is for progressive realisation and continuous improvement into the future. Ultimately, as with the Bill we discussed earlier, it will be for the courts to interpret this provision if passed by the people.

I will now outline the key parts of the Bill as initiated. The Bill consists of two sections and a Schedule. Section 1 provides that section 2 of Article 41 of the Constitution will be repealed and sections 3 and 4 of Article 41 shall be numbered as sections 2 and 3 of the Irish and English texts, respectively. This section also provides for the insertion of the new Article 42B after Article 41A.

Section 2 is the citation provision and provides that the constitutional amendment shall be called the fortieth amendment of the Constitution. This section also provides for the Act to be cited as the Fortieth Amendment of the Constitution (Care) Act 2023.

The Schedule contains the wording of Article 42B in Irish and English. The wording is that: "The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision."

The proposed amendment will represent a strong statement by the Irish nation. If passed, Ireland would be among the first countries globally in placing this explicit recognition of the value of family care at the heart of our nation's founding document.

This amendment does not confer a constitutional right to care, nor does the amendment seek to insert an entitlement to a list of specific supports. In this, the amendment does not limit the role of the Oireachtas, as chosen by the people, to pursue democratically chosen policies or create specific forms of State support for care. However, it will place an onus on the State, the Oireachtas and the Government to ensure that whatever supports for care are implemented comply with the new constitutional standard, as determined by the courts.

Importantly, the new constitutional provision will reflect the often constant, intensive and durable nature of care provided by families, and recognise the fact that this care is provided by both women and men.

This change has been spoken about for decades. It is a change that takes from no one, and embraces constitutional values regarding care. Now is our opportunity to put this timely, beneficial amendment to the Irish people. I commend the Bill to the House.

An Ceann Comhairle

We now go to Deputy Clarke, who is sharing with her colleague. Is that agreed? Agreed.

Deputy Sorca Clarke

I very much welcome the debate here this afternoon and the opportunity to contribute to it. Carers, be they women or men, play an absolutely crucial role in Irish society, yet too often their work goes unrecognised. Whether it is a lone parent, someone caring for an elderly relative or a relative with a disability, or someone raising young children, people from all kinds of families and all walks of life the length and breadth of Ireland do invaluable work to support loved ones. Too often, carers feel abandoned and ignored by the State. They feel that instead of receiving the support they need, they are met with a cold shoulder from a state that fails to recognise and appreciate the long hours and the work that they do. It is not before time that the role of carers is recognised, respected and championed.

I commend the many groups who have advocated for carers' rights to be strengthened, constitutionally recognised and enhanced. I refer to Family Carers Ireland, the young carers group within Family Carers Ireland, Disabled Women Ireland, the Disability Federation of Ireland, Independent Living Movement, Early Childhood Ireland, SIPTU's Big Start campaign, Treoir, Care Alliance Ireland, the We Care Collective and many more who not only engaged with the citizens' assembly and the Oireachtas committee but who have continued to be so active for decades on this important issue in communities across the country.

I want carers watching this debate to know that we see them, we hear them and we have their back. Sinn Féin will stand up for carers to ensure their voices are heard. Crucially, these voices must be listened to and acted on to ensure genuine and meaningful change is delivered to improve carers' lives in tangible ways.

I welcome that a referendum will be held on reforming the Constitution to reflect the modern society we live in. I was a member of the special purpose Oireachtas Joint Committee on Gender Equality. What struck me from the initial meeting of the committee was the depth of groups and organisations that actively sought out the committee to engage with it and to discuss the ideas of the many experts, stakeholders and groups. I thank them for their time in joining our sessions and for sharing their experiences and expertise.

I believe that any steps to improve carers' rights are to be welcomed, and it is equally crucial to recognise the role of care in the community. I am concerned, however, by the length of time it has taken for successive governments to stop dragging their feet on this and to finally act on their long-overdue promises.

I am also concerned that the proposals we are considering risk falling short of delivering meaningful change. Carers do not need flowery language and nice words from the Government if it does not amount to one single, solid change in their lives. Carers need action, not symbolism. They need rights, not gimmicks.

One only needs to look at the recent family carers report from last week to see the Government's abysmal record on delivering on its own promises for family carers, as per the programme for Government.

I believe we need to deliver on the issues carers have demanded action on, such as the financial and psychological supports to ensure no one in a caring role continues to feel isolated or on their own. We must see action that truly values the work they do. What has been proposed does not seem on the face of it to cause harm to carers, but one could rightly ask what added value does the amendment bring to the lives of carers.

I commend the diligent and thoughtful work of the citizens' assembly. What recommendations did it make for the wording, and why are they not reflected here? Likewise, why was the Oireachtas Joint Committee on Gender Equality's proposed wording not included? Given that other opportunities were presented to the Government, why has it chosen such a narrow definition that excludes so many of the people on behalf of whom the groups I mentioned previously work tirelessly?

Sinn Féin is committed to standing up for carers and ensuring their voices are heard. All families should be treated with dignity and respect. Our Constitution must be modernised to reflect the diversity of modern Irish life. We will work constructively with the Government and stakeholders to ensure that the changes needed are delivered upon because ultimately what is important here are the carers. For far too long, carers have been ignored by society and it is high time that this finally changes.

Deputy Réada Cronin

I am glad to speak on Second Stage of the Fortieth Amendment of the Constitution (Care) Bill 2023, which relates to women in the home and the operation of care. I thank the citizens' assembly for its great work and commitment.

I thank again all the NGOs that came to the committee to discuss this. It was an interesting committee. I enjoyed contributing to it. I also thank the chair of the committee, an Teachta Bacik.

When I first spoke about this Bill in the Dáil after the report from Catherine Day I said we all know that a woman's place is in the revolution. I was struck by the section of the Minister's opening speech about the 1,500 women who gathered at the Mansion House on 1 May 1937. I think of my paternal grandmother who was a woman of that revolution. I think of how, after the Civil War and the coming together after the parting of the ways, those women were effectively told "We will look after things from now on and you go on home and make the dinner". My paternal grandmother did not go home and make the dinner. She kept her job teaching in the school in County Kerry.

I welcome the removal of the outdated and sexist language about women in the home. I deeply regret we have not yet had that much-needed revolution in the provision of services in health, education, childcare, mental health, dental health and transport that would make care so much better and so much easier for the giver and the receiver alike. The idea of care in the home, in the family and in society could be revolutionised by easy access to a creche, a dentist, a psychotherapist, a psychiatrists, an assessment for a child with special needs and public transport that shows up on time to get people to work, school or college on time. I have concerns, as do many, about what is being proposed in addressing the constitutional treatment of care. The NGOs we engaged with highlight the difference between what is proposed by the Government and what was presented to them by the citizens' assembly in their engagement with us on the gender equality committee. We agreed that the insertion of Article 42B is largely symbolic. As on the amendment on the family, there is the issue of weakness of language. It is in this language that the Government is happy to "strive" to support care within the home and the wider community. This striving is what concerns me.

"Strive" does not reflect the 81% of the citizens' assembly members who preferred the word "oblige". I also favour the word "oblige" because "strive" is weak and contains room for excuses. It seems like a get-out clause for Ministers, as though to say we did not manage it but we really strived for it. We need to be clear here that what is required is provision of support to individuals, family and community by obligation. Obligation and being obliged puts the needs of the public first. Mere striving puts the political needs of the Government first. The results of obligation can be measured by whether the supports are there or not. The public would have recourse to the courts to decide whether or not those obligations were being met according to threshold norms. Striving feels like excusing. It is the language of how long is a piece of string or rain is wet. I am worried it is a deliberate move by the Government that is shallow and driven by popularity, optics, headlines and soundbites. It allows the Government to look like it is making real commitments without obliging it to do anything at all. The fact that it has opted to omit the requirement to take reasonable measures and other forms of care in the wider community shows its lack of seriousness. It seems the Minister went for political ease and absolution over civic and constitutional care and obligation. It is cosmetic. Apart from failing to provide services to make care really work there was no recognition of the pressure on women in their careers given that they perform an additional 38 hours of unpaid work per week.

I refer to three different groups of women I deal with at the moment in north Kildare who do the work of caring in the home and also paid work outside the home. One is a group of highly-qualified women who have arrived at board level but due to the lack of busanna scoileanna to get their children to school they are now looking at working part time. The second group is a group of highly qualified women who work in teaching and healthcare but who, through lack of available and affordable childcare, are looking at having to quit work after their maternity leave ends. They simply cannot get a creche. The third group comprises the mothers of those women, women who themselves work in the home by tradition or by choice because at one time they could afford to pay a mortgage on one salary. We all know that those days are gone due to the price of housing. They got in touch with me in sheer disbelief and horror that going into 2024 their daughters are going to have to diminish their careers because their children cannot get a bus to school. It is as crazy and simple as that. They think they have to quit their work. The Government seems like angels dancing on the head of a pin around wording that neither obliges it nor delivers for people, wording that puts women in a poor second place while the Government merely strives, doing its best.

We will be putting forward amendments and we hope they will be taken seriously because we were not in favour of this going ahead without proper engagement and pre-legislative scrutiny at committee. I hope we can work together on this and make sure that it passes. Definitely it is time this was removed from our Constitution.

Deputy Sean Sherlock

Deputy Bacik has spoken extensively on the two amendments before us. I do not wish to repeat many of those points. However, there are some points regarding process that I would like to place on the record. There was a citizens' assembly and the convening of a special committee which did Trojan work here in the Dáil and came up with a set of recommendations and we now fastforward to the legislation before us. There was a request last week by the Minister to waive pre-legislative scrutiny on this. The committee divided on that very issue because some of us felt there was a point of principle at play here and that, notwithstanding the timelines that the Minister said he was up against in regard to having this legislation promulgated, we felt strongly that a small amount of time could have been given to highlight some of the issues that are now arising in respect of the wording before us. This wording is now being questioned by the very stakeholders that the Minister is going to give time to in the coming days and weeks. The irony is that we set up structures here to examine legislation that is waived away in one fell swoop with a Government majority view, but the Minister can find plenty of time outside of these walls to engage with the very stakeholders we could have brought in, including the Minister, back to the committee to go through these issues. I strike a blow here for parliamentary procedure and good practice. Mr. Owen Reidy of the Irish Congress of Trade Unions issued a statement today to the effect that:

The failure to follow the advice of both the Citizens' Assembly on Gender Equality and the Joint Oireachtas Committee on Gender Equality to include both care within the home and wider community is a lost opportunity for the value of care in all its forms, the vast majority of which is provided by women, to be reflected in our Constitution.

That is one significant stakeholder representing the workers of this country that has reservations about this. A little bit more time and consideration might have avoided the Minister giving hostages to fortune on this. I suspect the Minister is giving hostages to fortune. The stakeholders are not bought in. Every successful referendum we have ever had in this country needed civil society behind it. They are not bought in. Another example is a document from Free Legal Aid Centres, FLAC, specifically in relation to care:

It is unlikely that the new Article 42B proposed will be interpreted as providing any new rights to parents of children with disabilities seeking supports for their child in terms of their care at home or in school, or for people with disabilities or older people seeking to live independent lives. The recognition of family care alone is not sufficient to strengthen the rights of carers and to ensure substantive improvements in law and policy i.e. measures which would improve the lives of carers. In fact, it could be seen as a constitutional endorsement of the status quo where women predominantly bear the brunt of providing unpaid care and let the State ‘off the hook’. The experience of legal instruments which recognise care in other countries - without creating positive obligations on the State - supports this view. Those laws have been criticised for shifting the responsibility for long-term care onto unpaid carers.

That is the view of FLAC. Those are two stakeholders. In the case of the NWCI, the jury is still out. The Minister stated that he met one stakeholder. It may have been the NWCI. For the purposes of transparency in the context of promulgating this legislation, it would be good if the Minister told us who he has met.

I was struck by the words of the Minister of State, Deputy Carroll MacNeill. It was a wonderful intervention. I was grappling with the idea of durability. We now have eminent barristers who have expressed doubt here in respect of that wording. They must be taken seriously if the Legislature is to be taken seriously in terms of the interventions it makes in the context of this referendum. I am conscious not to misinterpret her remarks. She will be back in the Chamber later on. She stated there is more work to be done regarding what constitutes an enduring or durable relationship. Her status as a barrister is well known and her words matter. She is a Minister of State. We must seriously consider her view that there needs to be further discussion on this. I will put a health warning on what I am saying. My interpretation of what she said is that there needs to be further consideration of what that concept entails. I do not wish to put a wedge between the senior Minister and the Minister of State-----

An Ceann Comhairle

Far be it from the Deputy to do something like that.

Deputy Sean Sherlock

-----but her words have serious meaning. The kernel of what I am saying is that we want more time. We, as a Parliament, deserve the respect of being given more time on this issue. We set up the pre-legislative scrutiny structure. It is the appropriate mechanism, through the committee, to examine these issues further. We have been disrespected in that regard as a result of the desire to meet the deadline, which has been - I will again choose my words carefully - ridiculed by people in this House, of International Women's Day. It has been referred to as a paternalistic move, with the State being paternalistic as usual.

I wish to refer to the Irish text. I have little proficiency in the Irish language but my understanding is that the Irish-language text has precedence over the English-language text, in terms of how the courts might interpret the legislation.

An Ceann Comhairle

It depends on what language it is enacted in.

Deputy Sean Sherlock

I thank the Ceann Comhairle. I shall make the point nonetheless and hope the Minister will reply. The word "teaghlach", which is incorporated within the amendment to which we are speaking, means "household" as well as "family". If it is interpreted as "household", these terms may be read quite differently by the courts compared with the English terms that are before us. That point is worth making, and I invite the Minister to respond to it. Unfortunately, there will be little time for him to reply to all the points that have been made by members of the Opposition. We will not have limited further opportunity, other than Committee Stage, to discuss the Bill. That is why again I refer to the fact that the Government using its majority to abandon the well-established parliamentary procedure of pre-legislative scrutiny is very regrettable in this instance.

The Minister has left hostages to fortune in the context of this referendum. If a referendum is to succeed, it is important that those among all the stakeholders, including the Opposition, who wish it to succeed must have a belief in the words that are being promulgated by way of the amendment to the Constitution. Right now, the jury is out on that issue. We will reserve our position until Committee Stage, subject to amendments that we will propose.

Deputy Holly Cairns

It is difficult to feel enthusiastic about this referendum. There is no denying that the wording in the Constitution in respect of women in the home is outdated and sexist but, other than being generally insulting, it has no impact on the lives of women or careers. The paternalistic celebration of women's work in the home has never resulted in women having a legal right to State support in order to carry out that work. Unfortunately, as the replacement wording makes the provision gender-neutral but still restricts the value of care only to the family, it is just symbolic. What tangible change will this referendum make to the rights of women and carers? Will there be such a change? If so, I am genuinely interested in hearing it.

There are more than 299,000 unpaid carers in Ireland. That figure has grown by 53% in just six years. Every one of those carers provides an invaluable service to the State but the State does not and has never rewarded them for it. It has never even really supported them to carry out that care. The need for care is universal. It is essential for the well-being of children, older people, disabled people or those experiencing illness. It is a key component of the functioning of any state. Although care has always been needed, the societal demands for it shift and change. We have an ageing population, with life expectancy getting higher, and the demand for care of older people, for example, is growing.

Despite the significant societal changes in recent decades which have seen more women come into the workforce, the burden of care still rests overwhelmingly with women. Of full-time carers, a significant majority - 98% - are women. This is an imbalance across the board. There are twice as many unpaid female carers as male. Of childcare workers, 98% are women. Women in Ireland do far more unpaid work -15 hours more a week, on average - than their male counterparts. We stand alongside women in Malta and Romania as those with the highest unpaid workload in Europe.

The referendums we are debating today are set to be held on International Women's Day next year. What justification is there for holding them on International Women's Day, other than it being an obvious PR move for the Government? In that week every year, the House has statements on gender equality and we discuss the steps we need to take to achieve true gender equality. Unfortunately, all Members know we can recycle and reuse our speaking notes year on year because the same problems always remain. We will never achieve gender equality while the responsibility of care remains solidly with women.

Carers are not just largely unpaid for their work; they are actively penalised. Unpaid care prevents an estimated 7.7 million women in Europe, compared with only 450,000 men, from accessing the labour market and the independence and financial freedom that comes with it.

Caring responsibilities make it incredibly difficult for women to progress in their careers. The need for flexibility, part-time hours and the implications of taking long career breaks to care for loved ones mean that women are over-represented in precarious and low-paid employment. The wording in the Constitution is patriarchal and insulting, does not represent modern Ireland and does not represent women. Despite how the current wording pretends to value a particularly sexist view of care in stating that "by her life within the home, woman gives to the State a support without which the common good cannot be achieved", it has never actually required the State to give anything more than lip service.

The State does incredibly little to support carers from a lack of or complete absence of respite services to a lack of public and affordable childcare. The State often does the exact opposite and makes life actively difficult and expensive for carers. The wording needs to change. Most of us can be in agreement on that, but there needs to be serious consideration of what wording we change it to.

I made this point on the previous Bill and I will make it again here. Bypassing the pre-legislative scrutiny process is a mistake. As this is our Constitution, every single word and every punctuation mark potentially has an impact. Our role as TDs is to ensure the best possible wording is put forward to voters at a referendum to ensure that if we are asking voters to take time out of their day to vote on a proposed change to the Constitution, they are doing that for an actual reason; that they are voting to deliver actual rights and constitutional protections for all women, families and carers rather than a meaningless change in language. If a "Yes" vote on this referendum does not deliver actual change to people's rights, I have serious worries about voter turnout and then, ultimately, the outcome.

I do not think I need to point out to the Minister what an absolute disaster it would be for this referendum to fail on International Women's Day because of that. Because this Bill was rushed past the pre-legislative scrutiny process, we have no idea going into this debate why the Government has chosen the wording it has presented to us. I have no idea why the Government has chosen to reject the recommendations of the citizens' assembly and the Joint Committee on Gender Equality. I have no idea why the Government has chosen not to recognise the value of care outside of the family home. That simply is not good enough.

I ask the Minister again to commit to ensuring that Committee Stage of this Bill will be taken by the sectoral committee with as much time given as needed, and that Report Stage will not be guillotined. Of the two Bills today, this really is the one that needs serious examination. Changing the wording from "women" to "members of a family" does nothing to change reality. The responsibility of care will remain with women. The citizens' assembly and joint committee suggested an amendment that obliges the State to take reasonable measures to support care within the home and the wider community. The citizens' assembly voted for it by 81% and the joint committee passed it unanimously. Can the Minister tell me what is the point of a citizens' assembly or of the joint committee if he does not accept the recommendations? If the Government had its mind made up and was unwilling to budge, why did it waste the time of the members of that assembly?

Recommendations have been ignored that represent the views of the Irish people - that is the purpose of the assembly - who the wording of this Constitution is meant to represent. Governments have definitely used citizens' assemblies to pass on the responsibility of making decisions to somebody else. Each citizens' assembly and constitutional convention has accurately represented the views of people in Ireland. They voted overwhelmingly in favour of marriage equality, as did voters. They voted overwhelmingly in favour of abortion rights, as did voters. They voted overwhelmingly in favour of a State obligation to support carers. The Minister will not put that one to the voters, perhaps because he knows they will support it. Instead, Government has rejected their recommendations of an obligation to support the provision of care and is replacing it with "striving to support", which is an absolutely meaningless term. "Striving" means there is no explicit requirement on the Government to provide practical or financial support to carers. It is completely against the spirit of the recommendations of the citizens' assembly, which wanted to provide a legal basis for carers to be able to take action in the courts. Those words were chosen carefully after a lot of legal advice and much consideration.

The Government also rejected the idea of recognising care outside the family home. That is not progressive change. It is not a step forward. Women are carers. It is more of a missed opportunity all because, I suspect, the Government is terrified of the idea of having to actually have obligations to support carers who it claims to value so highly. In light of that, the decision to hold the vote on International Women's Day is honestly insulting. The State has no intention of tackling one of the major root causes of gender inequality and is actively denying voters the chance to make a real change in the lives of women and carers. I have no doubt, however, that on 8 March, if this referendum passes, the Government will be celebrating its achievements on women's rights while doing nothing tangible for women or carers and their rights.

An Cathaoirleach Gníomhach (Deputy Sean Sherlock)

I thank the Deputy. I will now go to the Government side. I understand the Minister of State, Deputy Browne, is sharing the slot.

Minister of State at the Department of Justice (Deputy James Browne)

The proposed fortieth amendment of the Constitution or care referendum will delete Article 41.2, removing outdated language on the role of women. It would also insert a new Article 42B to recognise the value of family care.

The Irish Constitution is our foundational document. It holds a special place in the hearts and minds of Irish people. When the Constitution was adopted by the Irish people in 1937, it enshrined key principles and protections that continue to serve us very well to this day. Language and ideas evolve, however, and it is important to make sure our Constitution continues to reflect the core values and ambitions of successive generations of Irish people. Many people in our country will be of the view that this referendum is long overdue in respect of the language regarding the role of women in the home. The referendum, if supported by the Irish people, would enshrine a new provision in our Constitution in the form of Article 42B. This will recognise the value of the care and support that family members give to one another, and which is a foundation for solidarity and cohesion in our society.

The amendment would delete the current wording of Article 41.2 that refers to supporting mothers in the home. The new Article 42B broadens the scope to include all family members, men and women, and immediate extended family members. It would recognise the role played by family members in terms of support and care, which is provided on an unpaid and voluntary basis, and which is often daily demanding and for some, unending in its need.

Article 42B would also affirm that the State shall strive to support family carers. While there are those who might argue that this is merely tokenistic and will have no hold over Government policy, that is not the case. Ireland would, perhaps, be the first country in the world to explicitly elevate care to a constitutional value.

The amendment, if agreed, will oblige the State to make constant efforts to support the provision of care within the family. It will be for this House and all elected representatives to hold governments to account on this. I would encourage everyone to register to vote and visit checktheregister.ie to familiarise themselves with the official documentation as the campaign gets under way in the new year. I look forward to discussing the proposed amendments with my constituents and voters around the country.

An Cathaoirleach Gníomhach (Deputy Sean Sherlock)

I thank the Minister of State. I will now move to People Before Profit-Solidarity and call Deputy Bríd Smith.

Deputy Bríd Smith

I will share time with Deputy Barry.

The Minister made it nearly impossible for us to be enthusiastic about this referendum. Many parties on this side of the House have played a key role in helping progressive referendums pass. I, like Deputy Cairns, worry that the Minister is not going to get this one passed for the reasons I stated earlier in that those in the far right have latched on to it to say it is undermining woman and women and promoting an agenda they says does not exist when they highlight their transphobia.

That is not my main point, however. My main point really goes back to how the Minister opened up his speech this afternoon. He said that when the Constitution was passed or when it was first produced, 1,500 women gathered in the Mansion House - working women, older women, younger women, cleaners, factory workers, civil servants - to oppose it. They have spent all those decades since living under this very vile constitutional clause, and we are finally getting rid of it. In fact, I was reminded by a friend today that back in 2011, during the austerity years, the then Government of Fine Gael and Labour brought in measures to force lone parents into the workplace and to cut their allowances.

Some of us argued at the time that there should be a constitutional challenge to that because the Constitution states that women should not be forced away from their domestic duties in order to work. It never happened. It would have been a negative and unprogressive constitutional challenge. Nevertheless, the Constitution was not adhered to by previous Governments when they wanted to cut back on the provisions they gave to women. Lone parents are mainly women. Some of the previous speakers cited statistics on this and I will not go over them.

What the Government has given us now, in 2023, after all those years opposing Article 41.2, is difficult to be enthusiastic about, mainly because of what is woven around care. It is great that care is recognised in the Constitution. Care should come before most other things in society. I am a big fan of the green new deal, as outlined by Naomi Klein, in which care and repair would get us out of climate catastrophe and create a different sort of society, one in which the emphasis would be on nursing, teaching and looking after each other, rather than on the production, buying, selling and advertising of goods that people do not need to live. Ms Klein puts that across well. I would place a similar emphasis on care but this proposal does not do so, in particular, when we consider the language in the context of the legacy of what went before - what the citizens' assembly and joint Oireachtas committee wanted.

To have the provision of care in the Constitution does not oblige the Government or the State in any meaningful way to support those who deliver the care. It only recognises care within the family whereas we tried to recognise care more widely than in the family, as did the citizens' assembly. This proposal is not sufficient to strengthen the rights of carers.

The Minister's use of language such as "strive to" jumped out at me. Everybody is asking where that term come from. I asked the Minister when he gave us a presentation on the Bill recently why he was using this word "strive" and why the Bill does not commit that the Government "shall provide" rather than "strive to". He told me we cannot force future Governments to do something they may not be able to deliver on. That is interesting because during Leaders' Questions yesterday, I heard the same mantra from the Taoiseach when Deputy Fitzmaurice raised with him the right of children with disabilities to access services. Here is what good old Leo said:

it is a mistake to think that the legal rights or UN conventions build houses or provide therapies. ... Creating legal and constitutional rights does not train nurses or build houses. ... it can actually backfire sometimes. That is because time and resources then get diverted into managing litigation, in paying lawyers and damages, rather than being spent on services.

That was the Taoiseach's answer on why the Government has not ratified the optional protocol to the CRPD.

I spoke to Bernard Mulvany today His daughter, a leading advocate for disabilities who is in a wheelchair, told me that the Minister launched a disability plan for the next three years today but, as far as those who are involved in it and are looking on are concerned, it was about reports, not delivering real changes for people with disabilities. As each of the reports that have been done shows, people with disabilities are increasingly impoverished, marginalised and left out of what goes on in this society.

According to Leo, the Government does not ratify protocols because it might not be able to deliver and the money would be spent on litigation instead of nurses and building houses. We do not have the nurses or the houses. We are not exactly up in the High Court or the Supreme Court every day in litigation over the Constitution. That is not the problem. To say that giving constitutional rights runs the risk of litigation and we do not have the resources to do the things society needs is a shocking way of dealing with this. The Tánaiste put across a similar argument - I could not find the transcript - on Leaders' Questions this morning when he stated we need to be careful about giving too many rights in the Constitution because it could have legal implications. That is more or less what the Minister told me last week - that we cannot put into the Constitution things we cannot deliver. Why do we have a Constitution and why are we bothering to have this referendum? We will probably spend a fortune on it anyway. Why are we bothering to sit here tonight, on the last Dáil sitting day before Christmas, talking about this if the Constitution does not put a framework on the legal rights of people? The wording used, "strive to", absolutely does not do so?

Let me contrast this with the rights provided for in the Constitution on private property. It is interesting. For care, the wording is "strive to". As for private property, the Constitution declares that the State will vindicate the property rights of every citizen. That means the right to own, transfer and inherit property, and the right to bequeath property upon one's death. The State guarantees to pass no law to abolish these rights. Therefore, private property has a superior place in our world to care, even though we are all today eulogising care and carers and saying we could not manage without them.

I do not accept the Minister's logic about why "strive to" will be used in the Constitution rather than a firm commitment that the State will take care of carers. We need that change in language and we will propose amendments to that end.

The Minister has disappointed women, particularly women of my generation and older, knowing that we have lived for years under this abhorrent constitutional clause. He is removing that clause and then giving us this. It is difficult to be enthusiastic about this debate and these changes and it will be impossible to be enthusiastic about a referendum.

Deputy Mick Barry

The "State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved." "The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home." It is widely believed by historians that Article 41 of the Constitution was written by the Catholic archbishop, John McQuaid. The deletion of the woman-in-the-home clause has long been a demand of progressives in Irish society, starting with the Irish Women Workers' Union which demanded its deletion from the get-go in 1937. It is incredible that it has taken Fianna Fáil and Fine Gael nearly nine decades to catch up with progressive opinion and act. I welcome the proposal to delete the clause.

The defeat of the Irish revolution gave way to a counter-revolution which made this State a cold place for women, girls and the oppressed in our society. De Valera's State and McQuaid's church copper-fastened that and wrote blatant sexism into the Constitution, but what the Government is proposing to replace that with is disgraceful. It is the following:

The State recognises that the provision of care, by members of a family ... by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.

As for the word "strive", that is not a commitment. It is nowhere near to a commitment. As for the phrase "gives to Society", what about "gives to the State"? That is the term the citizens' assembly wanted in the Constitution, with 81% of members in favour and 19% against. That is what the Oireachtas committee wanted to have in it but the Government has rowed back on that. What a major row-back it is. It is a major row-back because a commitment, and referencing a debt owed by the State, would mean a legal obligation.

That legal obligation would open the door to improved carer's allowance, improved foster care allowance, provision of better childcare and provision of better services for the elderly, people with disabilities and many others. The Minister of State and the Government do not want to go there. They want to keep that door well and truly locked and want to keep arrangements neoliberal rather than having rights for people.

This State's failure to provide care hits women very hard. Women in Ireland perform on average 38.2 hours unpaid care per week. That is 16 hours a week more than the average for a woman, for example, in Denmark. While childcare in Germany averages 1% of a woman's median income, here it is 35.7%. The median annual income of a woman worker is nearly €7,000 a year less than the median income of a man.

The Nevin Economic Research Institute says that women clearly are more likely to work part time because that is the only way that they can make all commitments fit. There are only so many hours in the day. The amendment falls well short of what is needed. Shame on Fianna Fáil and Fine Gael and great shame on the Green Party. I would like to see a bill of rights and if we had a bill of rights in the society, there would be a special place for care. One cannot have a genuine society without care. It should not be treated in the fashion that it is but should be given a special place within a bill of rights providing rights for parents, free childcare, improved maternity and paternity leave and improved rights for carers, people with disabilities and others. I want to see and we need - where the talk is of amending the Constitution - a new constitution. We need a secular, socialist constitution with a full separation of church and State. I want to see a greatly improved amendment for this referendum. That change will need to happen at the committee in the new year.

Deputy Emer Higgins

In less than three months from now, the people of Ireland will go to vote in polls on the 40th amendment to our Constitution. This is a very significant moment because it reflects another crucial step towards advancing women's rights across Ireland. The proposed amendment seeks to eliminate archaic and stereotypical language referring to women in the home. It proposes a modern alternative that acknowledges the significance of the care and support provided among family members mirroring the progression of our societal values. It has been said many times before, but we must always be reminded, that amending the Constitution is, without a shadow of a doubt, a hugely significant undertaking. It is one that symbolises the fundamental rights and principles of Irish citizens and one that we can never take for granted.

As an advocate for women's rights and equality, the timing of the referendum on International Women's Day is both really fitting and profoundly symbolic. Standing here today as a woman, I am fully aware of the significance of the upcoming referendum and also of the significance of the role that so many women who stood in this Chamber before have played. These are visionary women who have shaped the course of women's rights throughout Irish history and created a series of firsts. These are inspiring figures such as Mary Robinson, our first female president, Mary Harney, our first female Tánaiste, and Frances Fitzgerald, the first woman to represent two Dublin constituencies and then Dublin in Europe. Women like this helped to lay the foundations of our journey towards gender equality. They are just a few of the countless remarkable women who have forged paths for future generations, not just in this House but through NGOs, in the legal sphere and right across Ireland. They dedicated themselves to securing improved rights for women right across the nation. They spoke out against injustices and advocated for the needs of Irish women both inside and outside of the home.

Their efforts led to positive changes in the lives of women across Ireland, including significant reforms. By that I am talking about changes such as the lifting of the marriage bar, which happened 50 years ago in 1973. Now we need to do something we should have been talking about 50 years ago too, which is to take this significant and symbolic step forward by removing language which perpetuates outdated gender stereotypes. If the referendum is successful, and I hope it is, these proposed amendments will help to further distance us from a values system which allows gender discrimination and, instead, move us closer to greater equality for all women.

While this upcoming referendum represents significant progress towards achieving gender equality, it is crucial also to recognise how long it has taken to get here. That begs the question how much longer we have to wait for more reforms. Delays like this, in fact, are reflective of a broader issue that is observed throughout history, which is the time it takes to bring about gender equality and to create long lasting cultural change.

When we talk about milestones like the marriage bar and the legislation for contraception in the seventies, it took almost two generations from these crucial moments to achieve significant milestones like the repeal of the eighth amendment and the establishment of abortion rights for women in Ireland. That kind of drawn-out chronology reinforces the very crucial need to improve our ability to bring about transformative change quickly and at the pace that society actually demands. While we have witnessed substantial progress in gender equality, and today Irish women enjoy far more rights than their mothers, grandmothers or their great-grandmothers ever did, but disparities persist.

Across Europe, women are still overrepresented in lower paying jobs, are underrepresented in decision-making positions and are disproportionately affected by gender-based violence. In 2021, I introduced the Irish Corporate Governance (Gender Balance) Bill. This proposed legislation is designed to promote gender equality and parity in corporate leadership by ensuring that women are adequately represented on company boards, and to advance their presence at the highest levels of business. I very much hope that the Minister present and the Minister For Enterprise,Trade and Employment will work together on this legislation because it can be transformative for women in Ireland and in business.

As we approach this particular referendum, we need to remember that this amendment is not just a response to societal change, but is a logical step towards aligning our Constitution with the lived realities of our people. It acknowledges the diversity of modern Irish families and ensures that our laws reflect that reality. I thank the Minister and all of his team in the Department for taking this important and symbolic step towards achieving greater gender equality for Irish citizens. It is very much time to turn the page on outdated stereotypes and to embrace a future where every Irish citizen is seen, heard and valued, and that this actually happens in our Constitution. It is an opportunity to help shape an Ireland that is actually and truly reflective of us all for today and for generations to come. We have talked about this referendum for many years, if not decades, and it is time now to just get it done.

Deputy Verona Murphy

I have seen in some quarters this referendum being referred to as a referendum on the woman's place in the home and the fact that having such a provision in the Constitution is a backward notion. Of course, that is not what the Constitution states. It states:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

As a society, we have moved from protecting a woman's ability to rear children and to have a life in the home because it is now economically a necessity for many women to go to work. Many of those women would otherwise prefer to be at home spending more time with their children as they grow up and develop. We have a situation in modern Ireland where many parents, both mothers and fathers, have to leave their children off with childminders, childcare facilities and possibly strangers who often get to see their children more than their own parents during the day.

The reason for this is that it is economically necessary for both parents to work. The child may be in a crèche from 8 o’clock in the morning until perhaps after 6 o’clock in the evening. I am sure many women across Ireland would love to be able to have more time in the home and more time with their children in their key formative years but who just cannot afford to do so at the moment. Rather than campaigning to remove the provision from the Constitution, should we not be examining why our society has moved so far from this ideal?

The mother in the home is a value that is appropriately recognised in the Constitution. It is very disappointing that the proposal seeks to remove that very recognition. Many groups are trying to frame the part of the Constitution in question as some kind of old-fashioned measure or chain around the ankles of Irish women. I look upon it as something very different. I see it more as a protection for Irish women than a burden. Call me old-fashioned – I do not know.

In previous referendums, it was easy to identify what would change in practical terms. I have mentioned this already to the Minister today. After we debated the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023, the Minister said there was room for interpretation within constitutional legislation and always would be. However, language should not be so subjective that, when interpreted, it is completely different to what someone’s expectation might be. When we hold referendums and look for a Yes, we need to be able to discern what the language means to bring the people with us. In 2015, a Yes vote meant same-sex marriages would be legalised. Everybody knew then what voting Yes meant. In 2018, we knew by voting Yes that abortion would be legalised, and in 1996 we knew that a Yes vote would see divorce legalised, but the same cannot be said for this proposal. We really do not know what difference the change will make. At least, I do not. I do not know anybody who can tell me for definite what will happen if there is a Yes vote. I do not understand how the proposal would change the Constitution or make any difference.

The referendum wording proposes to insert a reference to family care in the Constitution. When the Government was formed in 2020, it produced the programme for Government and therein included a reference to a pension solution for carers. I have raised the pension rights of carers on this floor many times. We are three and half years into the lifetime of the Government. Although a limited pension solution for carers will be introduced in January, it falls a long way short of what I believe the Government had hoped for. It will allow people who have been caring for 20 years or more to have some contributions towards their State pensions. However, what about the solution for someone who has been a carer for only 19 years and who may have gaps in caring? Surely, we need to develop a system to allow those with any amount of caring to have the corresponding contributions allocated to them. Full-time carers of loved ones will not be able to rack up as many PRSI credits as people working full-time.

We need to see an option to reduce the number of credits from 1,040. In every other area, it is 520, but we have required 1,040 credits for carers to access the contributory pension. The Government will, or at least should, have records of who has been receiving the carer’s allowance over the years. I hope this presents a possible solution to how we can deal with credits. I ask the Minister to consider this because it will probably be far more beneficial to people who have been carers than changing the Constitution. I do not see how what the Minister is proposing will make any practical difference daily to the lives of carers. They do play a very important role in society. I am not referring solely to the fact that caring keeps carers’ loved ones in the home environment where they want to be but also to the financial benefit of carers. The Minister knows I have spoken many times about what it means to keep someone with a profound disability in the home and be paid as a carer over what it costs the State. There is a disparity of hundreds of thousands of euro. Keeping someone at home could mean a saving to the State of €300,000. Being able to access credits for a pension entitlement is very limited payback for that type of care. We would be better focusing on that.

I am not sure about the language or why we are now in such a hurry to get this referendum across the line and vote on it on International Women’s Day, 8 March 2024. I fail to see why. The wording is not constructed in a way that will be successful, as far as I can see. I am sure we will have the amendment Stages but I ask the Minister to consider a better option regarding the pension.

Minister of State at the Department of Finance (Deputy Jennifer Carroll MacNeill)

I wish to address some of the points made today on the two amendments. On the Article 41 change, on the broadest equality guarantee, I always believed it was wrong to narrow down equalities. You cannot pick and choose your equalities. The broadest possible equality guarantee seemed to me to be the most obvious and important thing to have and retain exactly as it is.

I was glad to hear speakers such as Deputy Bríd Smith refer to the questions of doubling down and not removing women. It is very important to state the provision to remove the reference to women’s duties in the home, as read out by the Minister, is not removing from women from the Constitution – far from it. In fact, Article 45 still refers to men and women equally, but it does so in the context of equality. It refers to them as together and equal and not in the very outdated way the State currently refers to women. The current provision refers to "her life within the home … without which the common good cannot be achieved" and to the State ensuring women "shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home". I assure the Chair that I have neglected my duties in the home today and probably every other day that I have been in the Dáil, and I am not really that bothered about that. It absolutely needs to come out of the Constitution.

We talked earlier about the question of durability and the evolution of the family forum. It is worth thinking about this and how we thought about families and related evolving concepts. In 2009, Dermot Ahern brought through the legislation on civil partnership and cohabitation. It was extraordinary in that brought together in one Act every family law Act, employment rights Act and succession Act, or any Act you could possibly have that related to an other or spouse, and included the phrase "married or a civil partner". Most extraordinarily, it excluded children entirely as though neither partner might have a child. This position was taken because of the need to protect the balance in respect of the marriage in the Constitution as it then was. It was an active piece of work to ignore the existence of children in families with couples who were not married. The referendum under discussion would change that very considerably.

There was a big change in this context in 2015 with the Children and Family Relationships Act. It did the exact opposite of the 2009 legislation. It took the 2009 legislation and inserted "children" all the way through, fixing the 2009 problem. It was asked at the time what changed, because the underlying provision on the family in the Constitution did not change. The 2012 amendment to insert rights of children into the Constitution was what changed. It made children express constitutional rights-holders of their own, and consequently their rights to family life had to be conceived very differently. It was the argument on this, with which I agreed and which fortunately won, that enabled us to get the Children and Family Relationships Bill through the Attorney General’s office in time to enact it before the marriage equality referendum. It took the question of children out of that referendum and enabled us to pass it without distraction.

The 2023 iteration of thinking about families is a further extension.

If you look back 20 years ago, we were not having any of these conversations. We are now having a conversation where we have not just recognised civil partnership, we recognise cohabitation and the rights of children as individual rights holders. We recognise them now as part of married same-sex couples and civil partnerships. We recognise that as a family form. We are now taking this extension further and actively placing on an equal basis children of parents who are not married and treating those families in the same way. We do not need to account for it slightly differently in terms of durability. It is worth thinking about that in a slightly different way as a further extension and perhaps not the end point.

I will speak directly to the care piece. The interim report described care within the home, family and the wider community. As I said earlier, I always had a difficulty with the concept of the wider community because I could not place it constitutionally, namely, how it existed at all constitutionally and how it could be placed specifically with that reference and not a lot of other references that were not care-based references - that it was not something else. My recollection is that the committee pulled back from that position and that it was not something we pushed for in the end because it was incapable of being defined.

Family care and supporting care in general is a very strong political philosophy for me. I have been a family carer caring for a very sick child for a number of years. I remain alive to the changing circumstances that could require me to go back to that full-time caring role. I was co-chair of the family carers group before I became Minister of State along with Deputies Pauline Tully, Marian Harkin and Niamh Smyth so my entire focus has been around care. I advocated for a massive extension in eligibility for carer's allowance with the Minister for Social Protection, which was delivered over two budgets. Again, I do not think this is where that stops. That is a progressive realisation of the value of care. The extension of the allowance and pensions is part of the progressive realisation of a concept we value, that shows our compassion and that is valued more broadly.

However, there is something different about the professionalisation of care. Deputy Bacik spoke to this earlier and mentioned that the unions were not happy that the profession of caring was not recognised. I am paraphrasing slightly. However, I do not think this works. When we look at the carer's allowance, we are talking about care within a family and relationships. We are not talking about the professionalisation of that and we cannot have a read across to other professions be they under the brief of the Minister of State, Deputy Rabbitte, or that of the Minister for Education such as teachers or other therapists providing different types of care. It is different and it is important that we have the family piece.

When I read the amendment itself, I take a much more expansive view. It states that 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 a society a support without which the common good cannot be achieved and shall strive to support that provision. The phrase "shall strive to" is found elsewhere in the Constitution. It is in the directors of social principles policy but it is not justiciable. This is a justiciable provision, which is so different and enables that progressive realisation.

Deputy Jim O'Callaghan

It is true to say that if this amendment is passed by the Irish people, it will have more historic and symbolic significance than legal significance. This is not a reason to say we should not have the amendment and it is not a reason to categorise it as meaningless as some individuals in the House have done. It is, however, a recognition that there are certain parts of our Constitution that are outdated and anachronistic and need to be updated.

I am one of the strongest defenders of the Irish Constitution. It is a document that has served the people of Ireland extremely well since it was introduced at the beginning of 1938. What is surprising is that there are not more provisions in it that are outdated or anachronistic. The reason why there are not is because of the foresight and diligence of the drafters of the Constitution, who recognised that they wanted a constitution that was dynamic and could respond to different periods of our history and the future and would establish institutions that would withstand the passage of time. To a large extent, they achieved that aim.

However, it is obviously the case that certain language within the Constitution is outdated and Article 41.2 is one of those provisions. This is why I predominantly support its amendment and removal from the Constitution. A distinguished legal academic has referred to that provision in the Constitution as being objectionably paternalistic, which is a very good description of it. The reason I and many people think it is so is because it refers to a woman by her life within the home. It suggests that a woman's life begins and ends within the home. Nobody is suggesting that people in this House or the country do not respect and recognise the extraordinary hard work that women and men do in the home and the value this provides to the State but the language that is used is outdated. When you look at the section on it, it suggests that by neglecting her duties in the home, a woman may in some respects be doing the State a disservice. Again, it is suggestive that fathers do not have any duties in the home so both provisions we are seeking to remove from the Constitution are outdated, sexist and anachronistic and notwithstanding the foresight and competence of the people who drafted the Constitution, they are provisions we should now remove.

I welcome the fact that when the Minister commenced his speech today, he referred to the fact that back in 1937 and 1938, there was significant objection to this provision by women's groups in Ireland. It is not as though at the time, everyone was happy to go along with this provision. We need to go back and look further, and it probably requires an even more detailed debate, to consider what happened to the great dream women in Ireland had during the revolutionary era and how that fell apart when the Free State was established from 1922 and 1923 onwards. When you look at the Proclamation of Independence, it starts with what was a revolutionary exhortation in 1916 that referred to Irish men and Irish women. It also repeatedly referred to the fact that the people should be able to elect their representatives and expressly refers to suffrage of all Irish men and all Irish women.

Many people elected to the first Dáil and the second Dáil went on to achieve great political careers. Others went on to achieve legendary status because they died subsequently. However, it is important to remember that there were groups within the first Dáil and the second Dáil that to a large extent have been forgotten about and airbrushed from history. I regret to say that a significant group that has been forgotten about consists of the women who were elected to the first Dáil and the second Dáil. I know there is a lot of recognition of - and we all remember - Constance Markievicz but how many of us remember the extraordinary role played by people like Kathleen Clarke, Kathleen O'Callaghan, Margaret Pearse, Ada English or Mary MacSwiney to name a few? They were all remarkable women. Many of them were elected because they had associations with male figures from their family but they also had a very strong revolutionary view at the time about how Irish women wanted this revolution not simply to shake off the yoke of British imperialism but also to establish equality and freedom for women. That is what they aspired to see. Unfortunately, the Civil War had a very negative impact on their reputations. All of them were very close to Éamon de Valera, all of them opposed the Treaty and all of them were virulently attacked after the Civil War as being women who sought to inspire men to get involved in violence. A shocking calumny was cast on the character of these very fine women.

Once the Free State was set up, we had the laws such as the Civil Service Regulation Act, which prevented women from working in the Civil Service after they got married, and the Censorship of Publications Act 1929, which prevented women from getting information about contraception so women's rights regressed before the Constitution was introduced. What was surprising and disappointing to all those women was that they were extremely close to Éamon de Valera and Fianna Fáil.

Other women, such as Dorothy Macardle, canvassed Éamon de Valera as well to say he should not include this provision within the Constitution but, notwithstanding that, the provision was included. Let us remember what happened historically, not just the women who were elected here but the reason for the inclusion of this provision within our Constitution.

I know many people are concerned about the fact we are not putting into the Constitution a provision that gives a legal right. All I can say in response to that, and maybe it is not an adequate response, is that the provision we are removing did not create a legal right. In many respects, Article 45, the directive principles of social policy, may be the appropriate place within the Constitution for aspirational provisions. There are many passages throughout the Constitution where the word "endeavour" is used as opposed to the word "strive". On balance, I am very pleased that this historic amendment has been put forward.

Deputy Joan Collins

I am not a barrister or a solicitor in any shape or form; I am a lay person. I thank the members of the Citizens' Assembly on Gender Equality for the time and effort they took to produce such a comprehensive and progressive report. The report is certainly a lot more progressive than the Government's proposed amendments. I welcome most of the measures in both the 39th and 40th amendments. I have lived with my partner for 35 years. It came to my attention only during the Covid pandemic that my name was on the house and that I had to make a will to the effect that, if I died before my partner, my spouse would not have first call on the home and that person would be able to stay in the home. I was very startled by the fact that I had to do something like that in respect of our home. I therefore welcome the 39th and 40th amendments. This is an obvious letdown for carers in Ireland, but these measures with regard to the family and a woman's place in the home should be welcomed.

We should not be too self-congratulatory. Parts of our Constitution are not just archaic but wrong. The vast majority of people have recognised that they are archaic and wrong for a long time. I saw two quotes from Mr. Éamon de Valera, one about "the laughter of happy maidens" and the other about "the life that God desires that men should live". They were the two quotes that struck me in the context of the Constitution of 1937. These referendums will be far past due.

We must also keep in mind that simply removing or amending parts of our Constitution is not good enough on its own in the context of the deep and horrific miseries the State, hand in hand with the church and other sections of society, has inflicted on women in this country. These are not just outdated parts of our Constitution; they are legal justifications that saw generations of women and men terrorised and oppressed. It is not good enough just to remove them and forget. The State owes a great historical debt to the women and men in this country, and there is no use simply playing around with words if that debt is never repaid. Thousands of women and men still feel the effects of the State's treatment of women not just in terms of history but in the massive role the State still insists on playing in women's lives through controlling the provision of women's healthcare. Any constitutional change must be accompanied by both removing the final controls from women's lives and bodies and addressing and repaying the State's historical abuses. This Government has consistently refused to do that. The sealing of the mother and baby home records and the redress scheme, which is a disaster for survivors, show just how serious this Government takes its responsibility to address the State's historic and current role in controlling women's bodies and lives.

This includes, by the way, the rest of this Bill. Some 98% of full-time carers are women. Some 98% of childcare staff are female. The hourly wage of childcare sector staff is 43.5% below the average national wage. Almost 80% of childcare workers do not have sick pay. Some 90% of childcare workers do not have a private pension. Some 65% of childcare workers do not have paid maternity leave. If the huge role women play in providing care, both paid and unpaid, in Ireland is not recognised, valued and supported, we are ignoring the reality of women's lives in our society. This is the most obvious problem in this Bill: the failure to recognise the reality of care work in Ireland. There has been a significant pushback in the restriction of the wording to only "recognise" care that takes place in the family. That does not reflect the reality. It does not follow the recommendations of the citizens' assembly or the joint committee on gender.

I listened to Deputy Verona Murphy's points about women in the home. I believe it is a right for a man or a woman to stay at home, to have the economic liberty or freedom to do so and to mind children if they want to do so. However, because of the pressures in society - the cost of housing, the cost of living and everything else - many couples are forced to go out and both work and then pay huge childcare costs, up to €1,000, as it would have been, to put their children through crèches. I knew many couples where one parent decided to withdraw from work and stay at home because it cost less than actually paying out childcare fees. I have serious concerns that this is an attempt to limit the Government's duty to carers in this country. The citizens' assembly explicitly recommends that carers should be recognised in both the family and the wider community. This is a direct recognition of the care work that takes place outside of the family through community groups, volunteer work and a massively undervalued and underpaid care industry. The joint committee shared this view, even if it refined the wording. Why does the Government not do so, and what is the point of having these citizens' assemblies if the Government can simply pick and choose what it wants from their recommendations?

The other obvious problem in this Bill is the use of the word "strive". I have a serious problem with it in the context of the amendment on care. The citizens' assembly used the word "oblige". The joint committee used the words "take reasonable measures". The Government took one step away from its responsibility by using the word "strive". Does the Government strive to protect private property? Does it strive to collect taxes or enforce criminal law? No. It is legally mandated to do it. The word "strive" is a clear attempt to limit the Government's exposure to the real cost of supporting carers. There are 1 billion hours of unpaid care carried out in Ireland every year. The State saves €20 billion a year from that unpaid work. It is clear this amendment is designed to keep the Government off the hook for as much of that €20 billion as it can. That is what the word "strive" represents. Why do carers deserve only a State that strives to support them and not a State that does its job and actually supports the thousands of people doing important paid and unpaid care work in this country? What really matters is the practical implications of these referendums. Are they an attempt to remove outdated wording from our Constitution and simply carry on business as usual, or is this an attempt to actually build a fairer, more equitable society? The majority of the changes these amendments will make to the Constitution will not matter if they do not result in building a better, more equitable system for those who give and receive care and if we do not take a serious look at how we are repaying the terrible debt owed to women in this country.

I share the concern about the word "durability" in the Thirty-ninth Amendment of the Constitution (The Family) Bill. I also have strong views on having the referendum on International Women's Day and I share the concern Deputy Connolly raised earlier.

I was born in 1961 and I have vivid memories of my mother over a sink washing clothes. Then we got the tumble dryer and the wringer and it was a brilliant. It was a step forward. I still see those big duvet covers going through the wringer. I always remember vividly my mother being very annoyed that she never had her own financial independence. That is why I want to see a change in the Constitution. We need our financial independence. Every man and woman needs that to be able to have that equity. That said, that financial independence has to be protected and should be protected by law such that people in this country are paid well and are not on low pay.

Deputy Catherine Connolly

Deputy Jim O'Callaghan is gone. I would have liked more time to respond to what he said about women being so closely associated with de Valera that they were punished. There are many versions of history, but those revolutionary women were certainly written out of it. Maybe another day we will return to Deputy Rabbitte's ancestry-----

Deputy Sean Sherlock

Hear, hear.

Deputy Catherine Connolly

-----but not a rewriting.

When I was speaking earlier, I forgot to thank the citizens' assembly and the joint Oireachtas committee for their work. The citizens' assembly worked right through the Covid pandemic. It is important to acknowledge it. I acknowledge it here now. It has done us a great service, as has the cross-party committee, and produced a report. Unfortunately, the Minister ignored them on this matter. While I was very supportive of the Minister on the previous Bill, I am not a bit supportive of him in respect of this one.

I will start by saying that much of what Deputy Murphy, who is the neutral Chair at the moment, said resonated with me about what the real debate should be about. I am taking an unusual view in that the special place of the woman in the home has never really been tested. It has been interpreted generally as a very restrictive approach to women. I already mentioned the architecture of institutions of the 20th century across more than 100 years. In parallel with that was the ban on married women working. Women could not sit on juries. Women could not inherit in their own right until 1965, and then only got some measure of protection, etc. All of that was captured by the Kerry babies tribunal. That shocking, disgraceful tribunal was there to investigate the gardaí but really put the woman on trial. That captures some of the 20th century. That went parallel with the forces that got stronger and stronger, which interpreted that clause as being very Catholic, which it was, about the special place of the woman in the home. The idea behind it was to protect, while it happened to be the woman who was mentioned, a person to be at home to mind children. It valued the caring role and stated that people should not suffer as a result of that. It really never has been tested in the courts.

I thank the people who produced the digest and the legal people who contributed to the debate, including Professor O'Mahony, the former rapporteur for children, and the Limerick professor. They have been good in outlining matters. What struck me was the quote of Susan Denham. In a dissenting judgment, she said that particular article of the Constitution does not consign women to the home. It set out to protect the role. What she said was interesting in the context of the case of the Senator and the Minister for Education. She wrote: "The Constitution is a living document. It must be construed as a document of its time." She also stated: "This special recognition is of the 21st century and belongs to the whole of society." She continued: "Article 41.2 does not assign women to a domestic role." She refers to recognition, which is important, stating: "Article 41.2 recognises the significant role played by wives and mothers in the home." She further stated that this recognition and acknowledgement does not exclude women and mothers from working in other activities outside. Unfortunately, we know that it did because of a very conservative Government with a particular view of women and where they should be. Those things happened in parallel.

What is extraordinary about Susan Denham and also Mr. Justice Barr in a family law case in the High Court, which was unfortunately overturned in the Supreme Court as going a step too far, was that he put an economic value on the mother at home in a family law separation case. He put an economic value on the woman. The Supreme Court, of course, slapped his hand and said he could not do that. The point I am making is that the recognition of what the woman was doing at home and the value put on it was extremely important.

I can see the fact that it is gender-specific is a problem. However, the courts, leaving out the courts I just mentioned, have been open to interpreting the Constitution as a living document and a woman in the home would have to be a man or a woman in the home, whoever is the primary carer. Unfortunately, it has never been tested. Judges themselves have expressed surprise. Mr. Justice Hogan has expressed great surprise that this particular article was never tested because the carer is being given special protection in the home. I understand there is one case pending in the Supreme Court relating to social welfare. The Minister probably has more details on it than I. It is testing some part of this in relation to the obligation on the State to not only protect the carer but to back that up with economic action. That is what is missing.

We are now rushing this Bill through. Once again, I have the same criticism, namely, that the Minister is rushing it through for International Women's Day, which has really taken the joy out of International Women's Day for me, because I do not agree with this language he is using, which is extremely weak. The history of this goes back to 1993, some 30 years ago. We are now rushing it through for 8 March. The Commission on the Status of Women said to delete this article. In 1996, the Constitution review group recommended deleting it and replacing it. In 1997, the first progress report of the all-party Oireachtas committee said to replace it. I will not go through all those other reports. I will pick out the bigger ones. The Government task force in 2016 gave options in for the replacement of it. In 2018, there was a ministerial announcement by Deputy Charles Flanagan at the time, and, of course, nothing happened.

We then move forward to the citizens' assembly, which I have praised and which came up with strong but practical recommendations, given that the role of carers was brought into acute focus during the Covid crisis. It put a lens on the importance of caring, which is undervalued in our economy. Having that experience and having listened to the 99 citizens, it came up with specific recommendations that the Minister has ignored. That was followed by the Joint Committee on Gender Equality, the recommendations of which have been ignored. The Library and Research Service helpfully points out that on 25 April, the interdepartmental committee invited submissions. Those submissions closed on 19 May this year. There is a very helpful note stating that, at the time of writing, a report of the consultation was not published. Perhaps the Minister can tell us why that was not published because that would help us to understand his logic and reasoning for why he went for this very vague language.

There is lots of other language that I would use if I was replacing this, although I reserve my position in respect of bringing a court case in relation to the protection given in the article the Minister is replacing. Having said that, on the other hand, there is any number of suggestions from feminist organisations. I would happily class myself as a pragmatic, practical mother and feminist. They talk about the ethics of care and the caring economy, as Kathleen Lynch, emeritus professor in UCD, has done for years about care being undervalued, commodified and privatised. That is the second part of the debate that we should be having. How do we create the conditions in which a parent of either sex can be at home and not be forced out into a market by the demands of a neoliberal approach to society that has led us to the precipice with climate change and wars? That is a debate worth having.

The next debate worth having is how we constantly have economists constantly telling us about the economy without looking at what unpaid carers are doing. Almost 300,000 unpaid carers work day and night in order that our economy can thrive. A value is never put on it. A language is never put on it.

Let me tell the Minister what I would agree with. Feminists say to recognise the contribution of care work to economic development, social cohesion, human capabilities and so on. The second matter is for society to collectively assume the cost of care through the funding of public service, timesaving infrastructure, care workers, and good conditions. The third is for policymakers to engage with those most impacted by care gaps, including care providers and so on. Some 299,000 people provide care, unpaid, day and night. We have a Taoiseach in this country who continuously lauds those people who get up early in the morning. Some people do not get up early in the morning because they are up all night. That type of language of rewarding the workers and those who get up early in the morning is a self-serving, selfish, horrible narrative that hides the real value of carers to society.

The language the Minister is using here is wishy-washy and unacceptable.

I would almost take my chances on taking the special protection of the mother in the home all the way to the Supreme Court, arguing that in the modern interpretation "mother" includes whichever parent is at home, rather than what the Government is proposing:

I do not have much difficulty with the word "strive" because it is similar to endeavour. My big difficulty is the wishy-washy nature of it, the Government's failure to follow the recommendations of the citizens' assembly and the cross-party committee and the failure to create an obligation. The proposed amendment does not even spell out the serious gift given to us by carers which allows the economy to thrive. It is a wishy-washy recognition without any obligation. If we have learned anything from Covid-19 and climate change, it is that we need transformative change and we get that by recognising it is impossible to put a value on carers. Let us recognise it clearly.

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

I thank the Chair and all the Deputies for the detailed consideration they have given to the two amendments before us.

It is important at the start to restate the overarching aim of the proposed constitutional amendment, which is to update the Constitution so that it reflects our values as regards equality and the recognition of the valuable role both women and men play in all spheres of public and private life. That is done through removing the references to the woman's life and duties in the home and recognising the immense value of care and the support family members give to one another, which is a foundation for solidarity and cohesion in our society and creating an express obligation on the State to support these care relationships. It is an express obligation, and I will come back to that.

A number of Deputies raised the issue of the breadth of the proposed new Article 42B and particularly the location of care in the family. The family is the cornerstone of society because of the mutual care, strength and support family members give to one another, a care and support which is often constant and often intensive. That care is absolutely fundamental to our society. It is the Government's position that it is right to recognise it as a public good and that we commit to the State supporting it. This is care which families give to one another. It is unique. It has an essential characteristic and is the core to nurturing our children and allowing each of us to reach our full potential.

The work of people who provide care in the wider community is also hugely important to Irish society. Paid care workers and care enterprises provide important supports to unpaid carers. However, it would present a significant anomaly to identify and enshrine the rights of one cohort of workers and potentially their private sector employers and private commercial enterprises in the Constitution. That said, while paid care workers do not fall directly within the scope of the amendment, support for family care currently often includes paid services, such as through respite, personal assistant, PA, hours and home help. This amendment expresses a strong commitment by the State to support a robust care infrastructure because the care that takes place in the home cannot take place without the supports the State provides, such as respite and PA hours. Through the express obligation on the State to support family care, there is a recognition of investing in the professional care system, which wraps around and supports families.

A number of Deputies spoke about the language and the use of the term "strive". The terminology used was given extensive consideration by the Government and the phrase "shall strive" was considered to most accurately reflect the policy objective of supporting family care while also giving room to the Oireachtas to make the laws allowing for that. Even Deputy Bacik recognised that when the special Oireachtas committee sat, it was never its intention to enshrine an explicit right to care. It was a recognition of care and what level of obligation is placed on the State. In using the term "strive", the Government's intention is that the wording reflects a requirement on the State to make a serious, sustained effort to support family care. The use of the word "strive" includes a recognition that the achievement of that takes place over time. It is done progressively and through continual improvements. The courts will have a role to play in interpreting this, as they will in any changes that are made. However, it is important to say that the language used in the use of the mandatory term "shall" indicates that the Government clearly accepts that an obligation would be placed on the Government and on future Governments to strive to support care in the family.

If the Government did not want to create an obligation, there were options. The new article, could have been put in Article 45, the directive principles, which the courts are not allowed to touch. The Government could have just brought forward a proposal to remove Article 42 and put nothing in, and that was on the table a number of years ago. The Government could have suggested the recognition of care and left it at that. It is important, as we are amending the Constitution, to remember the language.

Those last words were added consciously because we want to place an obligation on the State. I am sorry that Deputy Connolly is no longer here. After speaking in great detail and with great passion on the role of care and what it does in society, she suggested our language is wishy-washy. She is entitled to her position on that, but I see something else in the language "gives to Society a support without which the common good cannot be achieved". I do not accept her description of that language. It is a clear statement of intention as we have in our Constitution, followed by the placing of an obligation on the State that it must strive to support such care. This is not a symbolic amendment. Every amendment to our Constitution is meaningful and the Government is clear that it is intended that the amendment recognise the unpaid care that is provided by immediate and extended families. The care and mutual support family members provide to one another is fundamental to society. The use of the term “shall” places an onus on the State and it was consciously chosen.

Deputy Sherlock brought us to a discussion of the Irish language text. He is probably far more proficient in Irish than I am, so I have taken some advice on that. The term “teaghlach” is the current term used in the Constitution to refer to the family and it is correct that it can mean family or household. However, the wording for the Irish text was carefully developed by the Attorney General’s office and by Rannóg an Aistriúcháin, which is the Irish language service. It is clear that the policy intention here is to refer to family. As we know, "teaghlach" is the word currently used in Article 41, the proposed new text of Article 41 and in the new Article 42. I recognise there are other Irish language words but to use them would probably have created a greater degree of ambiguity.

The aim of the proposed amendment as set out in this Bill is to remove the archaic and sexist reference to a woman’s place in the home. To come back to Deputy Connolly’s point, I say again with the greatest respect as I always value her contributions, she suggested a world where potentially Article 42 could have provided benefit. She suggested that world could now be brought forward and it could provide benefit to women and men, even though the language clearly states women. It could potentially exist. Everything is possible, but that is not the experience of 80 years of living under Bunreacht na hÉireann and 80 years of the current Article 41.2.

It has never provided benefits to women in this country up to this point. We are proposing to amend it to provide language that is gender-neutral. In bringing forward this amendment the Government and the State are recognising that a clear obligation is being inserted into the provision of the new Article 42B. Personally, I think it is better to take that than the potential of possible future Supreme Courts giving the current Article 41.2 a life it has never had before and giving an interpretation of men and women to a provision that right now very clearly says women. I think what the Government is proposing is preferable.

In this debate we have discussed the original resistance that was expressed in the 1930s to the language of Article 41.2. We have discussed the efforts that have been made over decades to change it. We have a proposal before us now - recognising that the Bill has to go through both Houses – that deletes the wording that is of concern but also replaces it with something meaningful. It is a meaningful recognition of care within the family and a new obligation on the State to support that care. I think this is a positive change. I think it is one that will bring benefits to families going forward. I commend the Bill to the House.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.

Dáil Éireann díospóireacht - Thursday, 14 Dec 2023

Fortieth Amendment of the Constitution (Care) Bill 2023: Second Stage

Dáil Éireann díospóireacht -
Thursday, 14 Dec 2023