Mrs. Justice Catherine McGuinness:

I apologise to the committee for the fact that my written submission arrived rather late. I was staying in Connemara and, unfortunately, electronic communication from Connemara awaits the nationwide spread of broadband, which we all hope will occur shortly.

I am honoured to be asked to make a submission to this committee in connection with the scheme of arrangement for the 38th amendment to the Constitution. I am not representing any particular group. I take it that I have been asked simply because I have some knowledge of the law and the Constitution and have had experience over many years dating, I believe, from the time when there was an effort to remove the proportional representation method of election, of various attempts to amend the Constitution that have occurred during my lifetime. As the committee knows, many official and unofficial groups have criticised Article 41.2 of the Constitution and have sought either its deletion or its amendment to make it gender-equal. Even at the time of the drafting of the Constitution, prior to its enactment by the people, there were widespread protests by individual women such as Hanna Sheehy-Skeffington and leading individual republican women against the idea of including this article, which pictured women's role as chiefly being that of wife and mother.

It is necessary to look at the effect of this article over the years since its enactment. The committee will have seen from my written submission that the understanding was that it was effected discriminatory arrangements such as the marriage bar on employment, which lasted until 1973, and a general discriminatory attitude to women's employment outside the home. We must ask ourselves whether the article provided or provides positive or practical protection for the woman who remained in the home and cared for her children. It seems this was not the case in law or in practice. I had a personal involvement in the leading case I described in my written submission, namely, L v.L in 1989. While the High Court was willing to grant the woman an ownership of the family home because of her role as a wife and mother, this was firmly rejected by every judge on the Supreme Court. There were five judgments pointing out that this was not the kind of role that could be taken by relying on that and that legislation was the way to go. Indeed, legislation was the route that was taken in the subsequent divorce legislation.

Among many groups, it is widely agreed that Article 41.2 is outdated, discriminatory, and undesirable - at least in its current form. The question before the Oireachtas is whether we should try to amend that article, simply delete it or try to include fathers and their place within the home and family. It seems to me that the suggestion of widening the article to include fathers has distinct difficulties. I accept fully that fathers in this generation have a more hands-on and inclusive role in fatherhood and childminding than fathers in my generation or previous generations might have had. It is fair enough to include them in the first part of the article but what does one do with the second part, which basically says that women should be protected from working outside the home? That is the part of the article that has been effective over the years in the form of the marriage bar and so on. Should we say that fathers should be protected from working outside the home as well? I think that is somewhat impractical. On the other part, if we drop part two and the first part is left alone, it is simply a happy-sounding and vague sentiment rather than something will really affect people's lives.

People have asked that the article be amended to include a recognition of the work of carers in general. Again, I certainly appreciate the vital role played by carers and the need for more support for and recognition of carers of all kinds. However, before embarking on such a course of action, one must ask what a proposed inclusion of carers in the Constitution would really achieve or whether we want legislation. Most assistance for carers would involve decisions on public expenditure and one does not readily achieve anything from statements in the Constitution that require public expenditure. It requires legislation as well. Would the proposed inclusion achieve what is really needed or would it be what I have wickedly described as simply a pious aspiration? Given that most assistance for carers would require decisions on public expenditure, the courts rightly regard these as the preserve of the Oireachtas and Government and believe that it is for the Oireachtas to decide these things, not the courts. It is part of the division of powers. There is a problem with regard to the definition of the word "carers". We have seen this in the somewhat strange suggestion by the Minister for Transport, Tourism and Sport, Deputy Ross, that we should give €1,000 to every granny. As a granny, that would be just lovely but such a suggestion falls down on the definition of the word "granny". Equally, when one gets to the definition of the word "carer", which is a wide concept, there might be legal difficulties arising out of that subsequently.

However much we regard carers, before we embark on constitutional change, we must examine what we really want to get, how exactly we want to get it and how we would avoid unforeseen later difficulties and problems. One has only to consider the history of the eighth amendment plus the proposed 12th amendment, which did not pass; the 13th amendment; the 14th amendment; and finally the need for repeal, to understand what happens when one tries to change the Constitution without being extremely careful about what exactly we are saying and what it means. Members are aware that the provision for divorce in the Constitution was excessively detailed. This may have been needed at the time to get the referendum passed. We would now love to be able to simplify and reform the divorce law but we must run a referendum and change the Constitution in order to do so. The difficulty about framing a wording to assist carers is that we can fall between the Scylla of an anodyne aspiration and the Charybdis of an over-complex attempted direction of the Legislature that creates later problems.

In summary, if we have decided that we are moving to take away Article 41.2, we should delete it simplicitor. Let us simply delete the article. If the will of the Oireachtas is to seek a referendum to benefit carers or to have a gender-balanced article, we should frame an article and think carefully with good advice about what wording we could have to avoid difficulties and to try to ensure it would be effective. That is really all I have to say.