Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I welcome the members back to the Houses after a refreshing summer break. I am very pleased to be here with my team. On my right is Ms Carol Baxter and on my left is Ms Sarah Kavanagh. I am also joined by Mr. John Garry and Ms Caroline Spring. I am pleased to be here to participate in the pre-legislative consideration of the general scheme of the thirty-eighth amendment of the Constitution Bill. As the Chairman is aware, I had hoped that we would have been able to hold a referendum this year on what is a fundamental matter of women's equality, namely women's rights to participate equally with men in the public sphere. I felt all along that this was a really important opportunity and a really good way to commemorate the centenary of women having the right to vote. I hoped we could remove the final obstacle in our Constitution that suggests the place of women is rightly in the private sphere. However, I deferred of course to the committee's decision to have hearings on the Government's proposal and other matters.

I welcome the opportunity therefore to address the committee. I am here as Minister for Justice and Equality but I also have the experience of being a member of the Constitutional Convention that examined Article 41.2 and made proposals in that regard as the process has informed my approach along with much else.

On 5 July the Government decided that its approach to the referendum question would be to ask the people whether Article 41.2 should be deleted from the Constitution. It developed its approach to the referendum on the basis of very careful and detailed consideration of the issue. The referendum in question was discussed twice by the Cabinet and previously by Cabinet committee B. The Government decided on the option to recommend deletion of Article 41.2 for sound reasons. First, the issue at the heart of Article 41.2 is one of gender equality, namely whether or not our Constitution states or implies that women have the same rights and freedoms as men in our society. I regret that the focus on women's equality was lost almost from the start, particularly in an era where there seems to be such public appetite for engagement on issues that affect women. In this regard, from a legal perspective I was heavily influenced by the lessons of the referendum to repeal the eighth amendment. I will come back to that issue shortly. Gender equality is an important issue. That aspect appeared to be pushed aside almost immediately by an alternative consideration and concentration on the matter of care, caring and carers. Of course the issue of caring is really important but the fact that many commentators did not consider it sufficiently important to have a debate on an issue of women's equality is somewhat telling to me. It suggests that women's issues remain of secondary importance. There is still some reluctance to afford gender equality the importance it deserves in our public discourse. That is not the message that we should be conveying to young women and girls in our society. The future of our society rests on their capabilities as much as it does on young men.

Second, to conflate an issue of women's equality with that of caring bears out something of a stereotype that a woman's role is primarily that of carer, so it was precisely to remove this stereotype once and for all that the Government wished to ask the people whether Article 41.2 should be deleted from our Bunreacht. Many carers are women but many carers are men so caring is not primarily a gender equality issue.

Third, our strong legal advice was that deleting Article 41.2 carried the fewest risks. The experience with the eighth amendment is fresh in our minds. The mess, heartache and societal division created by the eighth amendment remind us how difficult it is to draft constitutional amendments that will stand the test of time. The Constitution is not a proxy Government nor indeed is it a piece of legislation - it is our foundational legal framework. It does not work if we insert overly prescriptive provisions in our constitutions. These may either become outdated quickly or fail to address the range of needs they were intended to address. Furthermore, the courts may interpret the provisions differently over time than was anticipated. Again we have experience of that over the years. The High Court's decision in the case taken by my ministerial colleague, Deputy Zappone against the Revenue Commissioners, seeking recognition of her marriage shows that we cannot always predict with certainty how the courts will interpret our Constitution. It was that ruling that ultimately necessitated the marriage equality referendum. I am aware that some people are of the view that the Supreme Court will interpret the Constitution in a way that accords with the aspirations of those people. Many eminent lawyers point out that the Supreme Court's approach is that constitutional interpretation can evolve over time and can never be predicted with certainty. It favours the simple deletion of Article 41.2, believing that complex policy matters should be tackled by Government, the Oireachtas and this committee. Policy is best dealt with by the elected representatives of the people, rather than set in the rigidity of our Constitution.

I am conscious that the Constitutional Convention and the taskforce chaired by the Department of Justice and Equality recommend that Article 41.2 be removed from the Constitution and be replaced with provisions enshrining rights for carers. I myself was a member of that convention and had some reservations about the depth of analysis regarding some of the recommendations. However, the convention made its recommendations and these were the starting point for the work of an interdepartmental committee chaired by the Department of Justice and Equality. That committee examined the convention's recommendations as well as those of the subsequent taskforce. As I have said, the convention did not examine this issue in great detail. It was when we began to test each of the options proposed that the complexities of effective constitutional change really became apparent.

I fully recognise the vital contribution made by parents and carers day after day, hour after hour and I meet, and seek to help, many carers in my capacity as a Deputy, as does everybody around this table in their capacity as public representatives. I recognise that caring work can be arduous and unrelenting and that the negative impact on many carers can be profound. However, it does not necessarily follow that enshrining a provision in the Constitution is necessarily the most effective way to advance and protect the rights of carers. I have discussed this issue at length with my colleague, the Minister for Employment Affairs and Social Protection, Deputy Regina Doherty, who of course, has policy responsibilities in this area.

Carers are highly diverse. They may include parents, children, grandparents, grandchildren, siblings, relatives, friends, neighbours, professional carers, childminders, nurses, social workers and doctors. Some are undertaking caring work on a full-time basis and others are not. Some perform a caring role on a part-time or intermittent basis. Some undertake the caring role themselves. Others pay professional carers to preform specific tasks. Some are paid for their work and others are unpaid. The type of constitutional provision that would capture the diversity of carers and of care situations is a real challenge.

Following prolonged discussions, it became abundantly clear to the Government that the issue of care warrants separate and distinct consideration in its own right. For this reason, the Government decided that this issue should be referred to a citizens' assembly. We first have to understand precisely what carers need before we jump to the conclusion that the Constitution is the best and most appropriate route. My colleague, the Minister for Employment Affairs and Social Protection is best placed to speak to the committee in detail about the State's support for carers. The combined expenditure on carer's allowance, domiciliary care allowance and carer's support grant in 2018 will be €1.15 billion. The Government introduced two weeks of paternity leave in 2016 and is currently considering the option of introducing paid parental leave for parents. Government policy supports care. We have not needed a specific constitutional provision to allocate this level of spending to care-related needs. Equally, in view of the complexity of care needs and situations, it is clear that legislation agreed by these Houses would be, perhaps, the most appropriate route to deal with this matter.

The interdepartmental committee tasked with recommending specific options for this referendum considered the possibility of modifying Article 41.2 to make it gender neutral so that the contribution of fathers as well as mothers would be recognised. However, the difficulty was that non-marital families would have been excluded. The committee will be aware that 38% of children were born into non-marital families in 2017. When the Government examined this issue, we decided against a proposal which would exclude the contribution of unmarried mothers and fathers.

Some people have proposed other options, for example, inserting a new provision on caring into Article 45. We also sought extensive legal advice on this proposal. However, the advice stood that the lessons of the two previous referenda suggested that it was not good practice to insert new language into the Constitution. Moreover, an addition to Article 45 would be of questionable value given the non-justiciable nature of the article. Our experience with the eighth amendment reminds us that constitutional change is highly complex and the implications over time unpredictable. Our approach has been to propose a clear question to the people of Ireland. In this way, the people can be clear as to the likely implications of their decision. The Government believes that we owe it to the women of Ireland to propose that the referendum should focus on the issue of gender equality and on removing a provision that seeks to define women's place as solely being in the home carrying out duties. It was my hope that this referendum would facilitate and encourage real civic engagement with the important issue of gender equality and the work that remains to be done to remove the structural and cultural barriers that continue to discriminate against women in this country. As Minister, this was my starting point. While the Government is working to advance gender equality, I would like greater engagement by all sectors of society on this important issue.

As we move into the second century of female suffrage, our Constitution, which does not seek to define the place of men should not seek to define the place of women on the basis that a woman's place is where she wants it to be.