Mr. John Dunne:

I thank the committee for the opportunity to present to it on this important topic. I will provide a brief introduction. Family Carers Ireland is a national charity that, for 26 years, has worked to improve supports, services and recognition for anyone living with the challenges of caring for a family member or friend who is ill, frail or disabled or has mental health difficulties. We have more than 4,000 members and operate 20 carer resource centres throughout the country and almost 100 community groups. We also provide in-home respite and home care throughout the country as an approved HSE provider. Our submission is based on our experience of supporting and advocating for Ireland's 355,000 family carers, which is a figure from the CSO rather than us.

On the issue of Article 41.2, Family Carers Ireland does not support repeal simpliciter. Having listened to Mrs. Justice McGuinness, I am conscious that this puts us in direct opposition to her. We acknowledge the arguments she makes, but we have reached a different conclusion. I will explain why.

We have no issue with the overwhelming consensus that the article should be reworded to make it gender neutral. We also agree with the Irish Human Rights and Equality Commission, IHREC, that the new wording should reference family life and that such reference should be understood as covering a wide range of family relationships, including situations where families do not live in the same home. Most importantly, we believe that the replacement for Article 41.2 should make the recognition and support for unpaid care in the home that is implicit in the current wording explicit in the new wording.

Much of the discussion that I have heard about this issue so far has been in the context of the evolution of the Constitution and Irish society historically. I will put it in a slightly different context, namely, the international context of today. Ireland is typical of every country in the world, in that its health and social care system is predicated on complementary care and support provided through an extended family system. However, Ireland is quite unusual in not specifying a constitutional framework around the respective roles of the State and the community in the provision of this care. Virtually every other country in the EU has some sort of legal basis where this is stated, but it is not stated explicitly anywhere in Irish law or the Constitution.

Family Carers Ireland believes that the overwhelming consensus in Ireland would support a constitutional provision that recognised the family's primary role in the provision of care and the State's self-interested responsibility to support families in performing this role as well as acting as the provider of last resort where a family was unwilling or unable to perform the role properly. There is survey evidence to suggest this is the case.

Our overall preference would be based on the relevant provision in the Portuguese constitution, namely, Article 67. I have supplied a copy in my note. However, we acknowledge that that particular format would not sit comfortably within the current structure of Bunreacht na hÉireann. Therefore, we commend the wording that would probably sit best - that proposed by the Constitution Review Group in 1996 - to the committee and the Government, that being, to delete Article 41.2 and replace it with the following:

The State recognises that family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

We would reject the suggestion that the second sentence be moved to Article 45, as we believe it is appropriate to frame the State's role as a "duty of imperfect obligation". I take the point that it is imperfect. Were we writing the article from our own perspective, we would simply write, "The State shall support", but we recognise that is unrealistic. On the other hand, moving it to Article 45 would downgrade it to a "guiding principle". I do not mean to be smart when I say that we were looking for something stronger than that.

I take Mrs. Justice McGuinness's point that much of what we talk about in terms of supports involves expenditure and that, in a sense, the constitutional provision would be limited in that respect one way or the other. However, it is not anodyne to have an actual recognition of the role in the Constitution. It also happens to be in keeping with the Government's national carer's strategy, which sets out three principles, the first of which is recognition. That is something that carers value very much. They find themselves battling constantly against the system for what they need. I am not trying to make a point today other than to say that, if they at least felt recognition in that ongoing struggle for what they were doing, it would be some consolation to them.

Article 41.2 has included the formula "shall [...] endeavour to support" for 80 years. As Mrs. Justice McGuinness stated, it has not really worked and has hardly acted as a magnet for successful litigation or judicial subversion of the separation of powers. Indeed, in the event of a challenge under the proposed wording, it seems reasonable for the State to point out that it spends approximately €2.5 billion annually on its existing endeavours to support family carers through schemes that are defined in statute. We would be critical of the adequacy and effectiveness of some of this expenditure, particularly the arbitrary pattern of its delivery in terms of a postcode lottery and the fact that care in the home saves the State well in excess of €10 billion per year in return for its investment, but I struggle to see how any court might conclude that it did not represent a material "endeavour" in most circumstances. We do not believe that this would open an enormous hole down which Government finances would disappear.

Others have already pointed out in this committee that judicable rights in the Constitution are not absolute. What I have not heard in the considerations so far is the point that a right does not have to be enumerated in the Constitution to be guaranteed by it. If the Government is worried about unknown risks, I venture to suggest that the risks are more controlled around a wording that includes "duty of imperfect obligation" than around an absence of any wording, which could leave the Supreme Court open to affirming any one or more unspecified and, therefore, potentially unqualified rights.

Deletion simpliciterhas been described as the pathway with the fewest risks and the safest way forward. We would argue that deliberately and publicly repudiating the contribution of family care in the home, which is what it would amount to, constitutes a much greater risk to society and public policy in the medium term. Ireland faces a significant and rapidly growing demographic challenge. There has been a 36% increase in our older population and a 63% increase in people living with a disability over the same period. One in ten people living in Ireland is providing some level of family care. With the demographic changes that we are expecting, this figure will need to increase to one in five by 2030 if our existing policies and systems are to be sustainable. How will this happen without a clear social contract between the State and family carers?

In recent years, it has not been unusual to hear leading Government figures speak of building an Ireland that is the best place in the world in which to live, work and grow old. We would all agree with that. Where is that ambition hiding in talk of running away from the "unintended consequences" of modernising Article 41.2? Do we want to take the pathway of least risk or the right pathway? We should be thinking in terms of intended consequences, those being, to recognise and support care in the home.