Oireachtas Joint and Select Committees
Wednesday, 19 September 2018
Joint Oireachtas Committee on Justice, Defence and Equality
General Scheme of the Thirty-eighth Amendment of the Constitution (Role of Women) Bill: Discussion
I request our guests, both on the panel and in the Gallery, to switch off their mobile phones as they interfere with the recording equipment in the committee rooms. The purpose of today's meeting is to conduct pre-legislative scrutiny of the general scheme of the Thirty-eighth amendment of the Constitution (Role of Women) Bill. For the first session, I welcome the Minister for Justice and Equality, Deputy Charles Flanagan, and his officials. Before beginning, members should be aware that under the salient rulings of the Chair, members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. Without any further ado, I invite the Minister to make his opening statement.
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.
I thank the Minister. The committee is approaching this issue with an open mind. There is no predetermination of its position on the matter. The consideration we gave it a fortnight ago was such that we would be informed from all of the witnesses who will come before us and again next week. Furthermore, we did not have sight of the Minister's opening statement prior to the commencement of today's meeting. I understand that his address to us was not received by the secretariat until 8.45 a.m. I thank the witnesses with whom we will engage in session two for their submissions, which we have had an opportunity to peruse.
I thank the Minister for his opening statement. I echo the Chairman's remarks. I have an open mind in respect of this issue, although I have an inclination towards deletion. Everyone agrees that the provision is inappropriate, outdated and sexist and that it needs to change. There is no dispute about that in this room. The issue is whether the provision should be changed through amendment or deleted. I note the Minister's point about gender equality. It is extremely important but I would not like the message to go out, or people to think that, the Constitution does not value, protect and apply gender equality. The provision in Article 40.1, which has been interpreted many times by the courts, is meaningful and guarantees equality based on gender. It is important that people do not get the impression that the Constitution does not protect gender equality; it does. Many cases have been heard by the courts in which they have recognised that Article 40.1 is a guarantee of gender equality. However, I note the point the Minister makes in respect of this anachronistic provision.
The task force, in option 1, put forward a wording which would not create a new right that could be interpreted by the courts but which would still give symbolic non-gender based recognition to the work that is done within the home with the State recognising that home and family life gives to society a support without which the common good cannot be achieved. What was the Minister's reason for rejecting this proposal and deciding to go along with the deletion proposal? He mentioned that he believes it is a safer option. The wording set out in option 1 does not open up the possibility that the courts could determine that the people have created a new constitutional right giving rise to financial support to be paid by the State.
I acknowledge the work of the task force. Numerous bodies, statutory and otherwise, have examined this issue over many years, dating back to the early 1990s. The reason the Government formed the view that the recommendation of the task force was challenging was informed by the eighth amendment, and the advice sought on the eighth amendment from the Attorney General, which concluded that a constitutional provision was not preferable to leaving these matters entirely in the hands of the elected representatives in the Oireachtas.
The eighth amendment, when introduced in 1983, did create chaos in many respects in terms of its uncertainty and how it was interpreted by the courts but that should not make us nervous about amending any provision within our Constitution.
It is clearly the case that the current article, Article 41.2, is legally meaningless. It has been referred to in cases but it does not constitute an enforceable constitutional right for women or men who believe they are being discriminated against because their work in the home is not being recognised.
With regard to the wording in the taskforce's first option, I do not see any basis upon which a court would turn around and say that the people have voted to give a new constitutional right and it simply converts Article 41.2 wording from a gender-specific terminology to a gender-neutral terminology. My own view is towards deletion but I can understand why people may think we should give and maintain some symbolic recognition for work done within the home and for family life. Aside from the concern about the eighth amendment and the potential impact a new clause may have, is there any other reason for rejecting the first option?
Rather than having merely symbolic insertions in our Constitution, it is preferable to firmly state these are matters dealt with by the Oireachtas. I remind members again of numerous instances over the years where the Supreme Court has interpreted aspects of our Constitution in a way that was really unintended by those bringing the case. I am keen to proceed with certainty on an issue of gender equality solely, and that we do so in a way fraught with least difficulty. That is a simple deletion and this will be the starting point. We are merely presenting a question to the people and requesting them to answer it.
I will conclude and I share the Minister's concern. I would not like to see the creation of a new constitutional right forcing an obligation on the State to make payments. That is a matter for the Oireachtas to determine and I would not like to see the courts dictating to the State that sums of money should be paid. It should be viewed in the overall context of a social welfare budget. I agree with the Minister that I would not like to see any new constitutional right created. The matter should be dealt with in the Oireachtas. However, we should not be too negative about symbolism in the Constitution. Sometimes symbolism is important in politics. As of yet I have not heard a very strong reason as to why an amended symbolic clause could not be inserted into the Constitution. Fearfulness of doing it because the courts may interpret it in a different way is an overblown reason, particularly if we are just going to amend the Constitution in accordance with the first option outlined by the task force.
These are my general views and I have an open mind on it. With all due respect, we sort of know the view of the Minister and it will be interesting to hear what other people have to say on whether symbolism is important.
I should explain to all our guests that a number of us must come in and out of the meeting for various reasons and no disrespect is meant. I apologise as I will have to do that in a moment.
I feel at a disadvantage in this session as I have not read the Minister's script. I read everybody else's but we did not get the Minister's speech before the meeting started at 9 a.m. I have had to make notes, which puts us at a bit of a disadvantage. It struck me while listening to the Minister that there seemed to be a contradiction in some of the comments. On the one hand he made the point strongly that this should be excluded entirely and it was an issue of gender equality, so we should not conflate it with caring as that in itself was patronising to women. He argued that this implies that women are just carers and that although they are not the sole carers, women do the bulk of the work. He argued that we would be defining it in that sense so it should not be in the Constitution. However, he then said he would look at a body that could discuss the matter later if we took out the article now. Perhaps I did not hear that correctly.
The Minister seemed to be saying on the one hand, repeal simpliciternow but on the other, that he would set up something else to look at caring. His justification for the repeal simpliciternow argument was that he did not think caring should be in the Constitution. That is what I heard although I may be wrong and would like to hear more on that.
I am struck by how every organisation and body that examined this issue prior to now recommended replacement. I do not think we should be wasting time here. Everybody knows it is sexist and outdated and that it is going to go. The question is whether it just goes or whether we put something else in. I am not sure what the problem is because the point the Minister makes about the courts having to interpret the matter applies to everything. We might as well not have a Constitution then or else we should abolish the courts and the Oireachtas can just legislate for everything. We have a separation of powers here and it generally works. The courts generally get it right. I do not see how that argument really stacks up. I have an open mind and while symbolism is important, I would like to see something that is more than just symbolic. Unlike Deputy O'Callaghan, I do not have a problem with that. The right to free education, for example, is the same type of thing, as far as I am concerned. Does it mean that everybody gets free education?No, not as such. Does it mean that everybody gets their education of choice? No, but the provision does enable some people to access educational supports that they would not get otherwise. The volume of unpaid labour and the economic value of that labour to the State by those who work in the home and as carers should be recognised. If there is an economic cost, I do not have a problem with that in the Constitution. I invite the Minister to comment on that. I have an open mind although I am erring on the side of replacement because I would like to see something in the Constitution.
I acknowledge what Deputy Clare Daly has said. The difficulty is the next question. The Deputy takes the view that there should be something in the Constitution and makes a very fair point in that regard but the difficulty arises when we ask what that might be.
On the matter of the Citizens' Assembly, it was felt that we should have an assembly on the issue of caring but that assembly may not come back with a constitutional provision. It may make recommendations to the Government or the Oireachtas of a totally different nature. I certainly would not like to pre-empt what it might do but I expect that its deliberations will be much broader and will not be merely framed in the context of the Constitution. I do not see the perceived contradiction in what I said in terms of simple deletion and the work of the Citizens' Assembly.
Caring is very complex and if clauses on caring are to be entered in our Constitution, that will require really careful consideration. Indeed, that informed the thinking of the Government on going through the various options in considerable detail. On the matter of the family, references to the family in the current Constitution are really limited and relate only to the marital family. They do not relate to wider family configurations. Many caring relationships between siblings, for example, would not be covered in any event. I want to impress on the committee that these issues were given the most detailed consideration. These are issues that go back to the early 1990s in terms of an approach that Government might take on what might be put to the people. After the legal advice, alongside the challenging deliberation on a form of substitute words, it was felt that we should proceed with simple deletion.
I know where the Minister is coming from and that he wants to do something in the context of the anniversary that is coming up. In terms of the Minister's point about the Citizens' Assembly looking at these things in more depth, they are not mutually exclusive. The Minister will have heard the call from the National Women's Council of Ireland for a public consultation process. We have not heard from the council yet but as I understand it, the council's proposal is for a much shorter-term consultation process on these issues. What is the Minister's attitude to that? We can have both.
We can move to have a constitutional referendum next year, perhaps in tandem with the local and European elections but also put some forum in place, in advance of that, to have a public conversation. We are starting that here, teasing out some of the issues but perhaps we could bring that to another forum in order that organisations which have made submissions and considered these matters already could feed into that conversation in order to arrive at a wording. There are some wording proposals available that might be appropriate and which should be weighed up. Could we not do that, in recognition of the active process that took place around the eighth amendment and so on?
Very briefly, I see this as a gender equality issue. I see it as being distinct from the issue of caring but that is not to diminish in any way the importance of caring. I felt that the focus should be on asking the people to delete wording in the Constitution that is sexist and outdated.
I feel like laughing at some stuff to the effect that the Minister is now a champion of gender equality, given some Government decisions. We all agree it should be taken out of the Constitution. That is not really the debate. Anyway, I know others want to make their point so I will leave it there.
I thank the Minister. On a similar note, I must say that some of the media commentary a few weeks ago and the contents of the Minister's statement today are based on a straw man argument. An argument has been built up in order to be dismissed but it is not an argument that anyone is, in fact, making. The Minister said that the issue of gender equality appeared to be pushed aside almost immediately by an alternative consideration and concentration on the matter of care, caring and carers. He argued that while the issue of caring is really important, the fact that many commentators did not consider women's equality sufficiently important to debate is telling. He said this suggests that women's issues remain of secondary importance and that there is still some reluctance to accord gender equality the importance it deserves in our public discourse. Does the Minister honestly believe that is the view of the National Women's Council, the Irish Human Rights and Equality Commission or even of this committee? I do not believe the Minister believes that. The Minister tried to construct this argument for public consumption, even though he knows it is absolute nonsense.
The article is dated and there is an overwhelming consensus that it does not belong in the Constitution. There is a live, open and reasoned debate on whether it is better to delete the article or to replace it with another provision. I would say that a lot of people are in the same position as Deputy O'Callaghan. They are trying to weigh up both propositions. I would like to see the article replaced by a provision that values care but which is gender neutral. I will listen to the arguments in favour of a simple deletion and the legal implications of same but it is perfectly reasonable for this committee to engage with this properly and to listen to all of the arguments being made on the issue. I take on board the point made with regard to the eighth amendment but a lot of it comes down to the wording that is selected. Indeed, at the time many in the legal profession argued that the provision that was put forward was, in itself, something of a contradiction and was deeply flawed from a legal point of view. It is a question of how right or wrong we get it, technically and with a good wording that has been given proper consideration and is legally tight, there is no reason to be fearful of unintended consequences. It is just a matter of doing the job correctly and scrutinising any proposal that is made.
I would like to see a new provision inserted that recognises the value of care and is gender neutral. There is a role for some element of symbolism in the Constitution but having said that, while there are many positive elements in the Constitution, we have been too reluctant to consider positive social and economic rights. In fact, the one strong positive social and economic right in the Constitution has served us well. The right to primary education has been applied judiciously and with care by the courts.
There has been a reasonable and sensible application of that provision. It has meant that parents and families have been able to assert their children's rights to education. I am thinking particularly of cases that were taken in respect of special education in the 1990s and 2000s. I think there is a role for that. I am open to considering whether there is value in a new constitutional provision. We will consider the various proposals that are advanced. I think I understand the arguments that are being made in favour of a simple deletion. I think this issue is worthy of our full consideration. I look forward to hearing some of the more specific proposals that might be made by certain organisations.
Of course I welcome the views of Deputies and Senators. I am pleased to have had an opportunity to engage directly with Deputy Ó Laoghaire and other Members of the Oireachtas. I believe such engagement is very important and I welcome it. I have to say, however, that the series of options which were put were rigorously tested. After legal advice was received, it was clear that each alternative wording carried difficulties of unintended consequences and different interpretations. It seemed quite clear to me that deletion represented the pathway forward with the fewest risks. That is why the Government introduced a proposal to that effect. I have seen other purported reasons being advanced in the media. I have to say that the Government's decision to propose the deletion of the constitutional provision in question was based firmly on the legal advice and the challenges imposed by the insertion of alternative wording.
I find it interesting to listen to the various legal arguments that have been advanced by Deputies O'Callaghan and Clare Daly. I do not have a position on this question. That is why we are here. We want to listen to what everyone has to say. I hope that we will learn more about this matter and that we will be more informed when the time comes to make a call. I find it amusing that the Minister waxed lyrical in his opening remarks about women's rights and equality in the workplace, given that his Government has done bugger all about the cost of childcare, which is probably the biggest barrier of all. Ireland currently has the second highest childcare costs in the OECD. According to an ESRI report that was published earlier this month, "childcare costs act as more of a barrier to employment for households with lower income" and "exclusion from the labour market due to childcare costs will increase poverty risks and household joblessness". Recent Governments have actively eroded the rights of mothers who do not work full-time by taking away the child tax credit through tax individualisation and by cutting their pension rights.
If the Government were interested in making actual strides in the direction of gender equality, it would introduce legislation on maternity, paternity and family leave, it would invest in publicly subsidised childcare that is affordable and of an appropriate quality, it would provide recognition for care through a universal pension scheme system and it would reform the childcare sector in order that childcare workers are paid more fairly. Ireland currently spends less on pre-primary education - 0.1% of GDP - than any other EU country. If we simply delete Article 41.2 from the Constitution, there will be no provision in the Constitution for the role played by carers in the home. According to Family Carers Ireland, it is estimated that family carers save the State €10 billion a year. According to Ms Orla O'Connor of the National Women's Council of Ireland, the simple deletion of this wording would carry with it a danger that many people would feel that recognition of their value was also being deleted. If the Minister and his Government colleagues are so concerned about gender equality and equality for women in the workplace, why have they pursued policies since 2011 that have done the opposite, as far as I can see?
I do not accept that. As Minister for Justice and Equality, I have to say that the whole issue of care, caring and carers is a matter for the Minister, Deputy Regina Doherty. I acknowledge her record in this area. I put it to the Deputy that we have a strong record in responding to the childcare needs of parents. The Minister, Deputy Zappone, received substantial increases in funding in budgets 2017 and 2018. When I served as Minister for Children and Youth Affairs, I worked on the development of initiatives like the early years strategy and the single affordable childcare scheme. The overarching and fundamental point I would like to make about the referendum in my capacity as Minister for Justice and Equality is that this is a gender equality issue rather than a money issue, a finance issue, an education issue or a childcare issue. I would like to reinforce one particular point by impressing again on the members of the committee that an amendment would have application to a marital family only, due to the article in the Constitution that refers to such a family only. That presents difficulties from an equality perspective.
The Minister's opening remarks seemed to suggest that by not allowing the referendum to go ahead on 26 October next, we are dismissing the significance and importance of gender equality. Does the Minister not think that is a little disingenuous? We want to consider and tease out the best thing to do. The Minister was very dismissive of this approach in his opening remarks. Does he think that was fair?
As I made clear in the letter I sent in the early summer, I am very keen to hear from the committee. My intention is to maintain my relationship with this committee into the future. The Government, the Oireachtas and expert parties and advisers have grappled with this issue for more than 25 years. Everyone agrees it is timely and appropriate to make the change. That was said 25 years ago, but we have not done it. I think the reason for not doing it is a sound one. We have not done it because the matter of replacement presents a great legal challenge. Having considered all the options before us, having examined the findings of the Constitution Review Group, the Constitutional Convention and all-party Oireachtas committees of the past and having regard to the legal advice that has been received, and bearing in mind that this is a gender equality issue only, we believe the most appropriate and safest way forward is to ask the people to delete the relevant section of the Constitution. That is not in any way to downplay the importance of the other very valid points that have been raised by Deputies.
I think we all agree that changes to the Constitution are required. Section 43 has been used to prevent the taxing of landbanking, which is one of the problems directly associated with the dysfunctional nature of the delivery of housing in Ireland. Has this Government considered coming up with a new Constitution? I know it would be a massive body of work, but somebody has to start it sometime. We probably need a new Constitution. Has the Government ever considered that?
There are no immediate plans for such a body of work. The programme for Government contains an agreed pathway on this and a number of other constitutional amendments.
In fact, the timetable was that once the people made the decision on the eighth amendment, which they did earlier this year, we would move on to further referendums this autumn, one of which was on Article 41.2 and the other being the one that we discussed in the Dáil last night, which I intend on proceeding with in October. I would hope that we would have an opportunity of asking the people this question at some stage in the future but I am keen to await the outcome of the Chairman's deliberation.
I suggest to the Minister that the reason it has not been dealt with in 25 years is that it was not really on the political agenda. The Government saw the strength of the "Yes" vote last May and that is what got it onto the political agenda after 25 years, rather than the fear of constitutional challenges in the court.
If this article is deleted, how does the Government propose to recognise caring or to ensure women's time is not consumed by caring? This, of course, leads to the detriment of their economic independence. Deputy Wallace referred to the OECD report on childcare and it is clear that childcare is not accessible for a large number of women in Ireland at present. Many of them rely on their elderly mothers to take care of their children, further consuming women of a certain age in care in the home when their duty is far gone. I would like the Minister to propose how the Government will realistically help women and recognise caring.
I would propose that we proceed with the Citizens' Assembly, which would deal specifically with the issue of care and other matters that might be included in its terms of reference. It was the intention of Government that the Citizens' Assembly would proceed and deal with the very valid issues raised by Senator Clifford-Lee. I am sure that there would be opportunity for engagement in that assembly, both internally and externally, in terms of making expert views available.
The issue of childcare is very real. We do not need a Citizens' Assembly to dissect it. We know it is a problem and we can see the solutions but will this Government realistically provide for gender equality by addressing the childcare issue? It locks a huge number of women out of the economic workforce and the women I talk to who are caring for their children in the home are there reluctantly and it is because they have been locked out of the workforce by the high cost of childcare. Will this Government continue to just pay lip-service to the gender equality issue or will it realistically tackle childcare?
Very much so. I refer the Senator to the programme for Government and improvements that have been made following a direct focus on the part of Government to increase investment in childcare. Also, parental leave has been increased. These are issues that are the subject of pre-budget discussions and will undoubtedly be included in the Budget Statement of the Minister, Deputy Donohoe, later in the year.
As others have stated, before this debate I would have favoured deletion in the same way as the Minister. It is important that we have this deliberative process and that the Minister and other speakers appear before us so that we can balance our decision on whether we replace this Article or not. The timeline the Minister had envisaged has obviously changed. What is his indicative timeline for this? If the committee had an agreed outcome on this, when would he see a potential referendum occurring or if deletion were to be recommended, when would the Minister hope to establish the Citizens' Assembly or when would he have the referendum if it was to replace the Article? Can the Minister give an indicative timeline on that?
As I said earlier and as I am on the public record of saying throughout the summer, it was the intention that the referendum would take place and that the question would be asked of the people on 26 October, with the other referendum and the presidential election.
However, we are now in a situation where the referendum will not take place this year. Next May we have the European Parliament and local elections. That might well present an occasion on which the referendum might be held. In the programme for Government we put forward an indicative timeline for referenda. The likelihood is that the referendum on the divorce provision in the Constitution will be held next year. In response to Deputy Chambers, I would say that I have been informed by this committee of the timeframe it envisages for its deliberations. As soon as the committee reports to me, I will take matters further. Having regard to the fact that this issue has been the subject matter of speculation, I hope we will be in a position to put this question to the people in a referendum at some stage next year.
The Minister mentioned that many eminent lawyers point out that constitutional interpretation changes over time and he mentioned that the options in the task force report are rigorously tested. Would it be possible for the Minister to publish the advice he has received to help the committee in its deliberations?
I am happy to engage with the committee. On the publication of the Attorney General's advice, there is a long-standing precedent and protocol that I do not intend on departing from. However, I, along with my officials, am very keen to offer assistance to the committee with a view to helping it inform its decision.
I do not have much to say. Like Deputies Clare Daly and Ó Laoghaire I do not have a big problem with including reasonable economic rights in the Constitution because those protections are there for a reason. The courts have always been wary of overstepping the line and acting very strongly on them. I would like to hear a little bit more on what the fears or concerns might be if we introduced one of the suggested clauses covering care work. What does the Government realistically expect it to do, especially if it is the more symbolic option one mentioned by Deputy O'Callaghan?
I thank the Senator. I would point to the difficulties and challenges of finding an appropriate wording that would meet the needs of people like Senator Black who propose that the article be amended rather than replaced. I point to the fact that over the years the Supreme Court, when requested to adjudicate on aspects of our Constitution, has interpreted matters in a way that was perhaps unintended and that is a real challenge. As far as caring is concerned, my view is that it is better dealt with by the elected representatives, through policy, through the political process in campaigning and Governments being formed after elections and through reports of committees such as this. That is the best way to influence and formulate policy rather than inserting a rigid wording in the Constitution that may have unintended consequences. I go back to the experience of the eighth amendment and the difficulties that posed for society over a long number of years.
I am also firmly of the view that policy issues should be decided here rather than in the courts.
For the information of the Minister, the committee considered the referral of the Thirty-eighth Amendment to the Constitution Bill by the Business Committee on 5 September, two weeks before the resumption of Oireachtas business. We had a full attendance of Deputies and Senators who recognised the absolute inappropriateness of the reference in Article 41.2 of the Constitution to women in the home. There was unanimity as to its sexist and discriminatory construct and that it has no place in our Constitution, not only now but arguably at any time. This is very important.
I was a little alarmed by the Minister's opening remarks and his reference to commentators, which we all are individually and collectively. However, he clarified that he was not reflecting any such view of the committee's decision, which was taken with a mind only to properly inform ourselves to make a constructive contribution to the consideration of the final preparation of the required legislation. I welcome the Minister's response in that regard and that is certainly that is the way I am interpreting it.
Regarding timeframe, we will address this matter again this day week, when a further five presenters will come before the committee. There are three to follow the Minister today. The report that we will present will take up to three weeks, in terms of its preparation in draft form. It will then be considered by the members. In the event of any amendments or whatever, we will to have to give a week or two for final consideration before adoption. That is the most likely timeframe, and I can assure the Minister that the committee will continue to expedite the process, mindful of the recognition of the importance of the issue and moving the process forward.
I wish to make three brief points. First, in terms of clarification, I would never regard the Chairman or any member of this committee as commentators. The committee are very much legislators and players rather than commentators, and I am glad that the Chairman accepts that point, lest there be any doubt. Second, Deputy Chambers mentioned the issue of the availability or otherwise of the legal advice. It is always open to the committee at any time to seek its own legal advices, which I am sure will be under consideration by the committee. Finally, I thank the committee for the opportunity to set out the Government's position.
I thank the Minister. We will suspend the committee to allow the Minister and his team to withdraw and then we will commence the second session of our meeting with our other guests. Go raibh maith agat.
We are joined by Ms Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, IHREC for our second session. She is accompanied by commission members, Professor Siobhán Mullally and Mr. Frank Conaty. They are all welcome. We are also joined by Ms Orla O'Connor, director of the National Women's Council of Ireland, NWCI, and she is accompanied by Ms Ellen O'Malley Dunlop, who is the chairperson. They are both welcome. Our third presenter is Dr. Laura Cahillane of the school of law at the University of Limerick and she is also welcome.
No doubt the witnesses found our first engagement of great interest and so did we. I will invite them to make their opening statements in the order in which they were introduced. Before opening it up to members to put questions, I have to read the privilege reminder.
Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
I invite Ms Emily Logan to make her opening statement.
Ms Emily Logan:
I find myself in a slightly unusual position so I would like to clarify the process. The commission usually comes in as an organisation that accounts to the Oireachtas. I respectfully suggest that we make our contribution, take any questions and leave the committee room to allow our colleagues to proceed.
Members will proffer their questions. My intention was to introduce each of the groups with their opening statements and then open it up to members. Questions can be directed at specific witnesses. It would be unfair and a little disrespectful if I were to have the NWCI and Dr. Cahillane held back while there was an engagement ongoing with the committee. I do not think there is anything implied in the non-recognition of IHREC's role and function. I would be grateful if we were in a position to proceed as we are.
Ms Emily Logan:
I thank the Chairman and the committee for its invitation to appear. I am accompanied by my fellow commissioners, Professor Siobhán Mullally and Mr. Frank Conaty. We welcome the opportunity to share the views of the Irish Human Rights and Equality Commission on this important matter.
The commission is Ireland’s national human rights institution and equality body. It was established in 2014 with full institutional independence and a range of statutory powers for which we account directly to the Oireachtas. A further aspect of the commission’s statutory duty is to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality and to make recommendations on measures to strengthen, protect and uphold human rights and equality in the State.
It is in this context that the commission prepared its paper on Article 41.2 of Bunreacht na hÉireann in June this year, which has been circulated to committee members. We had a formal meeting with both the Ministers for Justice and Equality and Employment Affairs and Social Protection on 2 July. The Ministers were presented with this paper in advance of that meeting.
The question of advancing gender equality in the State has been a particular focus of the commission since our establishment in 2014. The commission has repeatedly raised concerns that in its current format, Article 41.2 perpetuates stereotypical attitudes towards women and their role in society and embeds a value system in our constitutional framework that serves to undermine gender equality. This is no surprise to this committee. In the context of the meeting with the Ministers for Justice and Equality and Employment Affairs and Social Protection, it was made clear by the commission that it did not support the Government's current approach to the constitutional change.
The commission is also of the view that Article 41.2 is not compatible with Ireland’s international human rights obligations. There have been repeated calls by United Nations, UN, treaty monitoring bodies for Ireland to remove or amend the provision, most recently by the UN committee on the elimination of all forms of discrimination against women, which last year urged Ireland to remove the stereotypical language on the role of women in the home from the Constitution.
In approaching how we may address the gender stereotyping currently enshrined in the Constitution, it is important to bear in mind that this debate is not taking place in isolation. It is part of a critical consideration of how the State defines, recognises and supports the term used in Article 41.2, which is "the public good". This includes the debate about the protection of economic, social and cultural rights, including in the Constitution.
In the context of the meeting with the Ministers for Justice and Equality and Employment Affairs and Social Protection, the issue of a deliberative process was discussed, with the commission open to the idea of a deliberative process to consider more broadly the debate that needs to be had.
Article 41.2 is at the heart of this discussion of public good. It has at its core, a recognition of what former Chief Justice, Ms Justice Denham, called an immense benefit for society, that is work in the home, or what we may wish today to more widely understand as care work both in the home and beyond. The article’s assumptions of who carries out this work and where, and what this work entails, may be outmoded but at its heart is a clear recognition of that public good. The commission, therefore, believes that amending Article 41.2 to render it gender neutral and wider in scope rather than deleting it is a means towards preserving and expanding that important recognition of an important public good in our fundamental law. That is the first recommendation.
A crucial feature of Article 41.2 is its placement within the rubric of the constitutional protection of the family. In line with aiming for gender neutrality, the commission broadly supports recommendations to replace references to women and mothers with references to "family life".
However, the commission is of the view that in choosing such wording, regard must be had to the wide range of family relationships that are recognised in the State’s developing law and social policy, as well as in the context of international human rights law.
A wider conception of family life encompasses a wider range of caring relationships than parenting alone, including beyond the family home. The commission believes it is possible, and desirable, to amend Article 41.2 to recognise and support care work within this wider understanding of family life. Ireland is in the process of transformation. Our population is ageing, our families are smaller and they often come in diverse forms. In many ways, our current national conversation is seeking to understand how we can ensure our fundamental law catches up, in order to be more reflective of our society. The commission believes that an opportunity exists to approach reform of Article 41.2 both as an exercise in removing an archaic reference and as a means of introducing a compassionate, generous recognition of the public good realised within Ireland’s diverse families and in caring roles.
I thank the committee again for the invitation to appear today.
Ms Ellen O'Malley-Dunlop:
I will introduce Ms Orla O'Connor and I thank the committee for inviting the National Women's Council of Ireland to speak about the referendum on Article 41.2, commonly referred to as the article on women in the home.
The NWCI is the national women’s representative organisation, representing more than 190 member organisations across Ireland. We sincerely thank the committee for deciding to provide the time for pre-legislative scrutiny and to discuss the issues surrounding the proposed referendum. We firmly believe this is necessary and will stand to us all in deciding how to approach changes to Article 41.2 in the best interests of women and society.
Over the years we have consulted with our members on constitutional matters including Article 41.2. More generally, the NWCI has advocated for a new constitution for a modern Ireland, which is centred on equality and rights of people in Ireland.
Ms Orla O'Connor:
We are learning as a society, time and time again, how critical it is to listen to the voices and experiences of women. When we ignore their experiences we do so at an enormous cost, to both women and our society. A successful referendum on Article 41.2 must first be based on a participative and deliberative process for women and men. If we do not allow enough time for a transparent, participative and respectful process that recognises people’s complex identities and feelings, there is a danger of it becoming divisive - divisive between people dedicated to working in the home and those who work inside and outside the home; divisive between those who do unpaid work that contributes to society and those who do paid work; and divisive between families and between women and men who work in the home.
A public conversation is necessary in order that the referendum debate can be informed, the issues surrounding the article can be explored and concrete proposals developed which the Government can act on and in regard to which it can be held to account. We need a clear pathway with real outcomes for women, informed by public discussion. Recent referendums have offered us a shared path, as citizens, through participation in the debate and through casting our vote. Through the Constitutional Convention and Citizens' Assembly, we have developed in Ireland sophisticated models of consultation and deliberation where both expert and personal testimony can be heard. It will be absolutely critical in this public discussion that the experiences of women in all our diversity are heard.
Article 41.2, which refers to a woman’s life in the home and duties in the home, is undoubtedly sexist and discriminatory. In practice, the article has been little more than symbolic. Its placement in the Constitution should have led to a recognition of the value of the contribution women make through unpaid care work in our society. However, it has faced minimal judicial scrutiny. It has had little or no impact on the positive formulation of social policy or improving the position of women. For example, it provided the constitutional and cultural background for the marriage bar and its detrimental impact on women’s choices, employment and economic independence, the legacy of which we are still dealing with today.
In practice, Article 41.2 has not supported the home or family; it has merely diminished the position of women.
There have been many deliberations on Article 41.2. The UN body tasked with examining and upholding women’s rights globally, the Committee on the Elimination of Discrimination Against Women, CEDAW, has repeatedly criticised Ireland’s retention of Article 41.2 in its current form. It expressed concern at the persistence of traditional stereotypical views of the social roles and responsibilities of women and men in the family and in society at large. CEDAW suggests that the male-oriented language be replaced with gender-sensitive language to convey the concept of gender equality more clearly.
The article has been reviewed extensively in the past, going back to 1996. All except the Second Commission on the Status of Women in 1993 recommended that the article be amended or replaced to recognise some form of care. When the members of the 2013 Constitutional Convention, which the National Women's Council of Ireland addressed, voted to express their view 88% said it should not be left as it is and 88% chose to amend or modify it, with only 12% favouring a straight deletion. The most recent Government task force recommended options for the insertion of language regarding care and recommended an option to place new text in Article 45.
Over the years, the NWCI has consulted widely with our members. It is clear from all our conversations with our members that everyone is agreed that there is no place for discrimination in our Constitution. It was opposed in 1937 by women activists and feminists and it has no place in today’s Ireland. In our consultations there was no disagreement regarding the need for the sexist language in Article 41.2 to go. On this matter, everyone agrees. However, once we move on from the sexist language and the positioning of women in the home, our discussions around Article 41.2 move quickly to the complex choices and challenges that many of us face every day. These issues relate to our understanding of family and home, the roles of women and men, economic supports for parents and work-life balance and the contribution of care and carers.
Views expressed by our members on the article also quickly move to the need for adequate provision of supports and time to care and to be cared for, both inside and outside the home. There is also a very strong argument that those receiving care need to be recognised within that relationship, and valued to the same extent as those providing care. The discussion on this article is complex and connects to a broad range of issues that need to be considered when proposing a referendum.
The issue of care is central to women’s equality and the NWCI recognises the complexity of issues when we discuss the area of care. In all the discussions on Article 41.2, the NWCI has advocated for the need to recognise and to value care in our society. Care work is essential to the common good; it performs vital social and economic functions. Recognition and valuing of affective care is fundamental to full equality for women. Affective care refers to human dependence and interdependence and the right to give and receive love and care.
One of the key challenges is that while there has been a significant increase in women’s participation in the labour market, this has not been balanced by any increase in the contribution of men to domestic or care work. Nor has there been an adequate State response through recognition of, or investment in, care work. We are concerned that the current discussion on care and Article 41.2 is being narrowed to a consideration of carers, which is only one aspect of care and affective equality and could lead to what the Taoiseach has referred to as a hierarchy of rights, which is not the intention of NWCI.
The NWCI members are also very conscious of the context of Article 41.2. Article 41 includes a definition of the family which does not reflect the reality of families in Ireland nor the diversity of family life. It presumes a male breadwinner and a two-parent household where a woman stays at home and it does not take into account the reality of the many LGBT families and one-parent families.
The NWCI considers that the role of affective care in the achievement of equality should be recognised and supported through a combination of constitutional, legislative and policy change.
We know social change can have complex personal impacts that deserve consideration and respect. We need time for a public conversation that considers any proposed new wording and any accompanying legislation. We believe this process needs to begin immediately so we can proceed with holding the referendum in 2019. We ask the committee to recommend to the Government that a public consultation or conversation is established to consider a combination of constitutional and legislative change options that recognise the importance of care in its full form and that enough time and resources are provided to help the public understand and discuss the proposed changes and their implications. We ask for this to happen before a referendum is held. We have not suggested in our submission a particular form for the public consultation but it could be along the lines of how the Citizens' Assembly dealt with the eighth amendment.
Dr. Laura Cahillane:
Ba mhaith liom buíochas a ghabháil as an gcuireadh a bheith anseo. It was a very sensible decision to undertake scrutiny and have a considered discussion on this issue before presenting afait accomplito the people. I have made a longer written submission, which considers the history of the provision, that members may find of use.
I will concentrate on the main question for committee members to consider which is, as far as I see it, what the purpose of the provision should be. The major downfall of the existing provision is that it was never clear whether it was intended to be purely symbolic or whether concrete rights should flow from it. Because this was never challenged in the courts it has effectively been useless in law. We are all agreed there is no reasonable argument for keeping the provision. The gendered and paternalistic language is an obvious problem. Because of the history of the provision, at this stage it is not very likely it will ever have any effect in law. It is also an embarrassment in this day and age to have such insulting language in the Constitution. When international lawyers read our basic law they are always taken aback by this provision.
The question is not whether the provision should be repealed, it is whether repeal simpliciter or a replacement is more appropriate. This is where the issue of purpose comes in and I will elaborate on this. If it is decided to replace the provision rather than simply repeal it, essentially two options are available. The first option is to insert a replacement provision along the lines suggested by the Department of Justice and Equality's taskforce. This would include gender neutral language acknowledging the important role played by carers in the home and a sentence to the effect that the State would endeavour to support such persons. This type of language would not automatically create any socioeconomic rights for carers and would avoid financial consequences for the State. However, in terms of the purpose of the provision, we would have to decide what the aim of such a replacement would be. Would it be to include a symbolic reference to carers to acknowledge the role they play in the home, and possibly use the provision as a motivation to encourage the Oireachtas to pass new legislation to create stronger statutory rights? This would be the effect of such a provision. A symbolic provision in the Constitution is of limited value since it would not create any concrete constitutional right. However, some civil society groups have argued that it could be useful, when trying to encourage the Government to pass legislation on certain issues, to be able to point to a constitutional provision as encouragement for the reform, even if is a symbolic provision and the Constitution does not actively demand it. It may be worth pointing out the existing provision has not been of much use in this regard.
If the aim of the provision were to be to have a constitutional symbol that would encourage the creation of legislative rights, perhaps a better location for the provision would be in Article 45, which contains the directive principles of social policy. These are non-justiciable, which means they cannot be made the subject of a court action and thus rights do not automatically arise from them. This would make it clear that the aim was symbolic and it would also avoid any question around restrictions regarding the marital family in Article 41. If the provision is left in Article 41, which is the section on the family, there will always be a question mark over whether a judicial interpretation would be given that would impose an economic obligation on the State.
This is the fear of the Minister. This is not very likely, given the words "endeavour to support" and the fact that carer supports are already provided for, to a certain extent, in legislation but the possibility always remains.
The second option would be to aim to create a constitutional right by replacing the existing provision with a stronger version, which would be gender neutral but which would commit the State to supporting the work of carers in the home in economic terms, thus creating a concrete constitutional right in Article 41. This could be achieved by wording such as "the State shall ensure that persons caring for others in the home will be supported". It would be unusual to tie the hands of the Government in this way. According to the normal separation of powers theory, it is the Executive that determines matters of budgetary policy. As has already been mentioned, we already have one existing socioeconomic right clearly set out in the Constitution, which is the right to free primary education. This obviously imposes a financial burden on the State. We have heard many arguments about other socioeconomic rights that could be incorporated into the Constitution.
We must bear in mind that ultimately the people are the true masters of the Constitution and if they were to vote such a provision into the Constitution there could be no issue about its constitutionality despite the fact it would be unusual under the normal separation of powers theory. Certainly there would be no constitutional bar to creating such an economic right. It comes down to the issue of purpose. Do we wish to replace the provision with one that would be more cosmetically attractive and could be used to influence legislation or do we want to go further and replace it with a strong provision to ensure carers are sufficiently supported but would involve a restriction in the budgetary power of the Executive and could have significant financial consequences?
There is always the third option, which has already been proposed by the Government, to remove the provision and not replace it. This is certainly the easier option as far as the Government is concerned, because while something is in the Constitution there is always the possibility of an unexpected or unintended interpretation by the courts. The Attorney General and constitutional experts can give opinions but, ultimately, the Constitution means whatever the courts say it means. Until we have a conclusive opinion from the courts we can never be absolutely certain of the effect that any particular provision will have. Removing the provision and not replacing it removes the risk that any replacement provision will ever have any unintended legal consequence. It comes down to whether Members of the Oireachtas want to create a new provision that would have legal consequences.
I thank the witnesses for coming before the committee and taking the time to make their presentations to us. To be very clear on where I am coming from, not just because it is the Government's position but because it is my view, I prefer straightforward simple deletion. It has been very interesting to listen to the positions and views outlined by the witnesses. Much of what I have heard has confirmed my reason for supporting the view that the committee and Oireachtas should recommend simple straightforward deletion, which is the complexity of the issue and the fact there are multiple ways in which we could approach this if we do not go for straight deletion.
As has been very clearly outlined by Dr. Cahillane in her contribution, we could go with various options but these would create problems. I am interested to hear from people advocating for something different from my view. If we opt to replace it with a provision that has no effective obligation but is just a statement we run the risk of alienating a number of people who would like to see something stronger. If we replace it with something that confers obligations, I will refer to this as the "shall" option, we run the same risk in the opposite way.
It is an absolute nightmare to hold a referendum, about which everybody agrees, to remove something which should not be there. In such cases the referendum gets caught up in the politics of the issue, although we cannot envisage what that will involve at this point, and this can result in the referendum being lost. That would be regrettable. We would be going beyond a question of straight deletion and getting involved in myriad other views and opinions. My view is that it is the role of the Oireachtas to provide the necessary guidance, and to bring forward legislation according to policies decided by a majority of Members. If they are changed by the public at an election, so be it. In light of the experience this country has had, I am very cautious about this. No matter how well thought out it is and no matter how well legally advised we are that it can create a solution to something, it is a very precarious road to go down. In the case of the eighth amendment, we effectively handed over power to the Judiciary and to its interpretation of the situation.
What do the witnesses think of the argument for replacing the article? I believe there should be two referendums, one on straight deletion and another, to which Ms O'Connor referred, involving an enhanced process of consultation and coming back to the issue. I believe this is a much more viable way of proceeding.
It is a misinterpretation. I said that, even if there is a straightforward referendum campaign about deletion, arguments would be put forward by people who want to see either more or less. That creates the complexity around the issue. I am not saying, either, that the issue is complex or that there are not economic issues but that, by going beyond a straight deletion, we run the risk of engaging in a campaign on a proposal which people cannot support because it is either not strong enough or too strong, meaning the proposal could fall. I suggest we separate the issues and deal with them accordingly.
Mr. Frank Conaty:
I appreciate the Deputy's point. I do not feel that complexity should stop us from doing something now as opposed to down the road. It will take consideration and consultation but, from the perspective of caring, there is no doubt about the stereotypical language in terms of gender and role. I believe a lot of people are aware of what caring means and where carers are coming from in this context, but I will dig into it a little bit further. Caring does not just involve an individual providing care and a person receiving care. It typically involves a family and encompasses everything to do with the family.
It impacts the entire fabric of family emotionally, physically and economically. We can put metrics on the contribution carers make, and it is important to do so, but sometimes the contributions onto which we cannot put metrics are even more important. We need to address two aspects of the role of carers: recognition and support. Recognition is important because, even if it is symbolic, symbols can be important. Symbols can also, however, be empty if they are not accompanied by support. The role of carers in society and their contribution to us as a nation is immense and deserves recognition. We have an opportunity to do that and even if, being complex, it requires consultation or if there are issues requiring definitions as to boundaries as a result of an economic impact, we nevertheless need to take it seriously. We need to have the courage to deal with it in that context.
There is no impediment to engaging with this aspect in isolation from the amendment or Article 41.2. We need to be brave and to amend the article. We need to look at what family life is within the article as well as the role of carers, parents and other family members and how we support them as they contribute to society. This also includes siblings, sons, daughters and a wide variety of people who care within a family context. We should take this opportunity to recognise carers while dealing with the stereotypical language around gender and role.
Dr. Laura Cahillane:
I will try to give an explanation in response to the points made by Deputy Brophy on the deletion-versus-replacement conundrum. Deputy O'Callaghan asked the Minister why we could not just replace it with a symbolic provision. He also asked what the risk would be in doing this. The Minister referred to legal advice but has refused to publish it. It is most likely that the Attorney General would have said that one cannot write off a constitutional provision. It has been useless in law because no rights have ever flowed from it, nor any legislation passed as a result of it. In the Sinnott case, Mr. Justice Geoghegan said that, in an appropriate situation, a woman could claim a breach of her rights under Article 41.2, which indicates that it is not closed off forever. A replacement provision could have the same effect, which could be good or bad depending on one's point of view, but we should not be afraid of amending the Constitution simply because we are not quite sure what a court will say in 20, 30 or 50 years' time.
I do not favour amending the Constitution at all. I have supported changing the Constitution on a number of occasions but my point, and that of the Minister, is that we have an opportunity to do a straight deletion. We could hold a referendum on it and there is overwhelming support for it. I do not necessarily oppose anything else I have heard but I believe the other proposals have not been worked through. Any subsequent insertion into the Constitution should involve a process of discussion, as the NWCI said.
On Mr. Conaty's point, my worry is that if in the course of a campaign a proposal does not go far enough or does not address the issues he so clearly stated should be addressed in terms of recognition, one could get caught up. In light of the fact that we have reached a point in this country where we are pretty much holding a referendum every year, if not more often, there would not be a problem carrying out a stand-alone, straightforward deletion and then re-examining how the issue of carers might be addressed within the Constitution. It is the linkage I have the problem with, not either topic.
If I come back, I will elaborate. This is interesting but I am not being facetious in saying that, having listened to the debate, I am now more convinced of the need for a replacement. The options presented by Dr. Laura Cahillane are very clear. We either take out the provision and include one that is symbolic or we put something in that gives more economic and social rights. I am cognisant that the commission is a statutory body and separate from the others but the support for the starting point of the Constitution being a document for the public good is such that the huge area of work involved deserves a mention. I will not waffle on about my opinion on the matter because we will definitely not resolve the issue here. I would like the opinion of the panel on pointing a way forward, which is something we could do. Do the delegates believe that, in our report, we could recommend, for example, the establishment of a citizens’ assembly, the sanctioning of finances for it and the setting of a timescale sufficient to enable the process to tie in with the local and European elections? The decisions on funding would be left to the Oireachtas. I am curious about this. Could the witnesses add anything on this?
I am interested in Dr. Laura Cahillane's point of view. She referred, on the one hand, to how it might be better to put the wording into Article 45 and referred, on the other, to how it might not. Have the witnesses a view regarding the family? The Minister suggested an argument I had not heard, namely, that if we included "family life" it would only cover married family life, be it the married family life of same-sex couples or otherwise. One would have to be married, however, to enjoy the benefits. There could be a problem with the idea of "family life" in that context. How would the witnesses get around that? This matter seems to be key. Those were my two questions. I hope I will be able to come back to them.
Ms Orla O'Connor:
On Deputy Clare Daly's questions, we agree with what she has suggested in terms of process. One would have a process like that of the Citizens Assembly. It is important that people note that the Constitutional Convention examined this in 2013 over a weekend. It was also in connection with considering women's participation in life. Therefore, it was very tight and there was not a lot of room for discussion. We would like to see a process similar to that on the eighth amendment. On the question of whether what is desired could be done by May, the timeframe would be tight. We are conscious of that. The Minister mentioned the other referendum on divorce. Maybe it fits with that. It can be done in 2019; however; we would be clear about that. We would want it done in that way.
We also raised the definition of the "family" in the Constitution. That is why we are open to examining Article 45. A point that has been made and that is important to us in the NWCI is that we believe symbols are important. Symbols are particularly important in regard to gender equality because we are coming from a place where there has not been gender equality in society. Having those symbols and recognising care are core to women's equality.
Ms Emily Logan:
I would like to make a comment on the process. We talked about the deliberative process with the Minister on 2 July. We have ratified the UN Convention on the Rights of Persons with Disabilities.
The commission is about to set an accelerated programme to engage with people with disabilities. We are setting up an advisory committee for people with disabilities to advise us as a commission. If the committee is suggesting any deliberative process, it should remain cognisant that we should not talk about care without talking to people who are in receipt of care or people who feel strongly about independent living, which is where the convention is taking us.
I would like Professor Mullally to talk about Article 45 because it has been spoken about at the commission.
Professor Siobhán Mullally:
I thank the Chair. On the point about directive principles the commission is concerned that this would not allow for a strict enough or positive enough obligation on the State to support carers' roles and their work because of the way the directive principles have been interpreted, which is in our view too limiting.
With regard to Article 41 and the definition and construction of the family, and the specific role given to the marital family, our longer policy document which was published in June 2018 and which I hope is available to everyone cites Mr. Justice Hogan in the RX case in 2010 in the High Court, who was of the view that the Constitution, and specifically Article 41, was not closed off from providing protection under certain circumstances to other close relatives outside of the specific scope of marriage. In our policy document and elsewhere we have cited Article 8 of the European Convention on Human Rights and the interpretation given there to family life. We presume that in the Constitution there is compliance with international law unless a clear indication is given otherwise.
There is the further question of the whole allocation of resources, socioeconomic rights and separation of powers, which has come up a number of times. We note that the vindication and protection of civil and political rights is a highly complex matter. Some examples include the right to a fair trial, access to the courts and administration of justice. There are differing views on the scope and limits of those rights, and it requires huge allocation of resources on the part of the State to vindicate the right to a fair trial, for example. The allocation of resources and decisions around that is essentially connected to the protection of any right, whether it is categorised in a traditional way as civil and political or as economic and social.
As already mentioned the right to an education is explicitly recognised in the Constitution but our courts have also recognised other socio-economic rights. The right to seek employment, for example, was recently recognised for asylum seekers by the Supreme Court in the NHV case, in which the commission was an amicus curiae, and in which the Supreme Court cited a general comment of the UN Committee on Economic, Social and Cultural Rights, which was a first in the Irish courts. Economic, social and cultural rights were recognised there as being of progressive implementation but nonetheless positive obligations are imposed on the State. That is the context in which our policy document was published.
Dr. Laura Cahillane:
The point I was making about Article 45 is that if the committee decided the best way forward was to incorporate a symbolic recognition for carers in the Constitution but was fearful of going further and creating concrete constitutional rights, Article 45 is the place where that symbolic recognition could be inserted while being reasonably sure it would not lead to any concrete obligations. As Professor Mullally has said, the human rights commission's fear is that it would not provide strong obligations for the State. The point is that Article 45 is a symbolic provision. There have been times the courts have used Article 45 to refer to unenumerated rights but generally Article 45 is not something which leads to concrete constitutional rights. That would be a solution if the committee felt that a symbolic provision was more appropriate and did not want to go forward with a concrete provision which would grant economic rights to carers.
On the marital family issue, it is difficult in that Article 41 has been interpreted by the courts to refer to the marital family. Where the family is given protection in the Constitution it is only the marital family which is given protection. The Constitution does not say that but because it gives special protection to marriage it has been interpreted by the courts as meaning that the family has to be a family based on marriage. There is always room for interpretation there. One hopes the courts would give an updated meaning to a provision in Article 41 to include families other than marital families, but that definition has been ingrained in the Constitution until now. It is slightly off point but a much more meaningful amendment to the Constitution would be to amend Article 41 to change that definition in order that a de facto family would be recognised, rather than a marital family.
I thank the witnesses for their attendance. It is an interesting topic. I will start with the representatives from the Irish Human Rights and Equality Commission. They are definitive and believe it should not be deleted but rather amended. The National Women's Council has a slightly different view as of yet. On what the commission has suggested should be put into the Constitution, does the commission argue that it should be amended to include a socioeconomic right that would give an individual an entitlement to take the State to court if it did not provide financial support for that person?
Ms Emily Logan:
Our job as a commission is to seek the highest level of protection. In effect, yes, we are seeking justiciable socioeconomic rights. Picking up on Mr. Frank Conaty's point, however, there are two layers there. One is the conversation about recognition, which is a valid issue and which can be seen as distinct from a explicit socioeconomic provision.
I do not criticise the commission for that. It would be unusual if a human rights body was not looking to advance socioeconomic rights. If that happens and it goes into the Constitution, we are then at large as to what can happen. The commission will want wording that is meaningful and that will give effect to rights it states people should have. Let us take the example of an 18 year old who collects his or her sister after national school every day, takes her home and looks after her from, say, 2.30 p.m. until 7 p.m. or 7.30 p.m. when the parents come home. Would that 18 year old be entitled to seek financial support from the State under that constitutional right?
Ms Emily Logan:
We are talking about the broad interpretation of family life that we have expressed. I would not like to denigrate the conversation but we are talking about our experience. We have people around the commission table who have lived experience beyond the care work that we are talking about, from gender equality to substantial contribution to the public good. That is what we are talking about recognising. There are ways, of course, of creating a boundary on that. That is done already in the democratic process. As the Legislature does that already in respect of child benefit, maternity leave and social welfare, there is a precedent for creating a boundary or putting limits on something. Of course we accept limits would be put on it but our aspiration is to get that in.
The point about statutes is that a statute cannot limit a constitutional right. They can try to give effect to a constitutional right. I used the example of the 18 year old who looks after his or her sister from 2.30 p.m. to 7 p.m. every day because people can go to court when this right is put in there. While no statute would provide for it, the Constitution would say there is a recognition and respect for carers. My concern is that examples like that will happen because people will go to court to see whether this constitutional right exists. Maybe he or she is entitled to the money. Maybe we will see the Minister for Transport, Tourism and Sport, Deputy Ross, up there. Maybe a grandparent could make a claim to an entitlement to be paid by the State. My concern is not about pushing out constitutional rights but it will affect the social welfare budget in another way. We do not have anything in the Constitution that says the State recognises that people who are unemployed are entitled to receive support from the State.
We do not have that. Other people are in receipt of social welfare payments. Do the witnesses not see a potential problem there? We may be undermining the social welfare budget by creating a constitutional right that looks great but is then left to the courts to interpret. Have the witnesses any concern over the issue I raise or am I perhaps completely uninformed?
Ms Emily Logan:
I understand the issue the Deputy is raising. I would not agree with the Minister's earlier comment that one box such matters off, that this a matter of social welfare and social care and thus a problem for the Minister for Social Protection, Deputy Doherty. As the committee has heard from Mr. Conaty, one of the problems facing thousands of people in this country has been the potential for erasing the contribution of women and ignoring the growing contribution of men to the common good in this country.
I fundamentally agree with Ms Logan on that but the problem with creating a constitutional right, as we have seen before, is that extends beyond what was sometimes intended. It is not as though this will always have positive consequences; it can also have negative consequences because the social welfare budget for other areas is then attacked and the State has limited money. I am sure many of the witnesses are aware of the fact that when it comes to rights such as this it is the well-resourced, the well-informed and the well-financed who gain access to the courts to have their rights vindicated. If such individuals succeed with a case this does not necessarily mean that less resourced people may also succeed. This is a concern.
I appreciate that the witnesses have clarified that they believe that there should be a socioeconomic right in place.
Professor Siobhán Mullally:
I might just take the right to education as in the example of the Sinnott case, where Article 41.2 was also in play. The then Justice Susan Denham gave a very strong dissenting judgment in this case. There will always be dispute around the interpretation of a constitutional provision, its scope and limits, and also with regard to fair trial. We cannot have certainty on that point.
With regard to the allocation of resources, the role of the Constitution is to provide a framework within which rights can be adjudicated and the obligations of the State set out in broad terms. The details will be dealt with in social welfare legislation, as they are currently. There is, for example, an obligation to avoid destitution. As the Chief Commissioner said, we already have extensive legislation around social welfare, childcare payments etc. and these will continue. The point of this, however, is to ensure that there is a constitutional framework that sets a positive obligation on the State to support the role of carers and to support that function as a public good in the context of family relationships. There will always be disputes around the limits of that-----
Professor Siobhán Mullally:
-----as there are with regard to fair trial, for example. The Constitution is not going to resolve all disputes around this but it sets a framework. It also sets out what is the core obligation upon the State. In the course of interpretation, legislation, and possibly in the course of adjudication, limits will obviously be imposed on this. It is likely that the courts will say that it be to the maximum of the State's available resources and that it has to be reasonable only. Cases will dealt with on that basis. This sets a core obligation on the State, however.
The alternative view is that this is really a matter for elected representatives rather than have a High Court judge determine whether the extent of this constitutional right exists. I thank the witnesses. Have they read option 1 as put forward by the taskforce? I will read it out. It is purely symbolic. The proposal from the taskforce is that "the State recognises that home and family life gives the Society the support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home as may be determined by law." This is not what the witnesses want. Do they have any views on this? It is a symbolic reference to the important role played in the home.
I would also like to ask Ms O'Connor and Ms O'Malley-Dunlop some questions. I thank them for coming in. I thought Ms O'Connor's point a very practical and important one. We can talk about a referendum but there will be a campaign and we as politicians have a responsibility to ensure that what we put forward is likely to win.
I listened very carefully to what Ms O'Connor was saying about a divisive campaign and this is something that the Minister will have to take into account. Deleting the article might indeed give rise to a divisive campaign because people might say that the Government is taking away any recognition and this could be seen as grounds to oppose the deletion. If it were to come down to a matter of deletion or amendment, which would the National Women's Council favour?
Ms Orla O'Connor:
We would favour an amendment. At the Constitutional Convention the National Women's Council put forward that the Constitution should be amended and that there should be a recognition of care. We are conscious of some of the issues around this, particularly around the definition of the family. There is a question of where. We are very conscious of what IHREC has said, namely what it would mean if we were to put this into Article 45. That is part of the reason we want to opportunity to thrash this matter out in more detail and we are very conscious that that opportunity was not there at the Constitutional Convention. The rights of the carer and the rights of the person receiving the care need to be further deliberated upon.
In her earlier statement Ms O'Connor said that "from our consultations there is no disagreement regarding the sexist language in Article 41.2. On this matter, everyone agrees. However once we move on from the sexist language and the positioning of women in the home, our discussions around Article 41.2 move quickly to complex choices and challenges." Does the National Women's Council favour amendment rather than deletion then?
Ms Orla O'Connor:
We favour amendment, which is why we are particularly looking to examine legislative options in the assembly. This referendum should be used as an opportunity to advance women's equality. There are examples out there - in the United Kingdom, for example, there is a Care Act that looks more explicitly at the rights of carers. We would like to be able to consider that more. With regard to how the assembly is done, and similar to the work done on the eighth amendment, it is important that constitutional and legislative options come forward at the Oireachtas committee. It is a matter of going back to the legislators.
I cannot say what it is that we will do, but what if this committee were not to recommend that this go back out to public consultation? What if we were to say that the work had all been done at the Constitutional Convention and that we wanted to come to a definitive position? What if we were to recommend amendment? Does the National Women's Council think it should be amended to include an actionable socioeconomic right?
Ms Orla O'Connor:
The language that the National Women's Council put forward at the time to the Constitutional Convention was "that the State recognises that home, family and community life gives society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others." That was the wording that we put forward. We wanted to bring the matter beyond family and into community life so as to recognise different care relations. That is why that was there. There is a caveat on the second part of that wording - "shall endeavour to support persons caring for others" - as we know that our members, particularly those representing women with disabilities, have a concern around its legal implications. This is something that needs further deliberation.
I have some questions for Dr. Cahillane. The history of this is very interesting and what it really reveals is that the 1930s were, in many respects, a different time. I would like to ask about the definition of the family and how it is defined by the courts. Since then we have had jurisprudence on the definition of the family, obviously, and we have had the constitutional amendment. Does Dr. Cahillane not think that there is a strong possibility that the courts, in interpreting this, would regard family as extending beyond the standard marital concept?
Dr. Laura Cahillane:
It is a difficult one. As Professor Mullally has already stated, one would hope that, given that the courts have an obligation to interpret Irish law in harmony with the European Convention on Human Rights, the courts would give an up to date reading of article 41. This would require them, however, to in many ways reverse what has gone before. It would be quite a big decision for the courts to decide to change the definition of marriage: it would have to be a Supreme Court decision. It is possible, of course, but it might be more effectively undertaken by a referendum.
Yes. My own view is that the option put forward by the Department in its taskforce, the purely symbolic one which replicates the language that is there at present except in a gender neutral way, would not really give rise to the court stating this gives an actionable right to individuals. Does Dr. Cahillane agree?
Dr. Cahillane talked about an order preventing that from happening, and that people could be asked to move the right into Article 45. Does she agree the public might not necessarily understand the distinction between Article 45 rights and what is contained in Article 41 at present?
Dr. Laura Cahillane:
A clear public information campaign would assure people that an amendment gave symbolic recognition, which would perhaps improve the legislative position of these people. I mean on foot of such symbolic recognition. That aspect would have to be carefully explained to the public.
I thank the witnesses from the various organisations for their attendance. Many of my questions already have been asked. I believe that there is a value in having positive social economic rights enshrined in the Constitution. One of these rights should relate to housing but, realistically speaking, there is not a legislative entitlement to housing at present.
A constitutional right is not an absolute right. I am trying to understand the implications if, rather than just a symbolic revision, we were to insert a provision in the Constitution that gives rights. Is it possible to get a sense of how the provision might be limited, qualified or applied? What wording should be used? Let us say in two years' time there has been a constitutional amendment whereby the provision is not in Article 45 but it is strong enough to give rise to rights. In what circumstances would the organisations like to see that the provision could be used in a court case in furtherance of their rights?
Ms Emily Logan:
From the point of view of the Irish Human Rights and Equality Commission, it is not necessarily about going to court. As Mr. Conaty has said, the starting position is recognising the contribution of citizens of this State to the common good.
In terms of articulation, we have all said it is patriarchal or stereotypical in nature and there seems to be a consensus on gender neutrality. We are not necessarily making a push for justiciable rights but in terms of an aspiration, that is what we would like. We are looking for a broader discussion on the contribution made by men and women in the Constitution and that includes care.
Ms Orla O'Connor:
For the National Women's Council, in some ways our views are similar. The piece in the Constitution is about recognising the value of care and how critical that is for society and the common good. That is why the council recommends a Citizens' Assembly-type process that also considers legislative options. That would show we value the importance the care. We must analyse what needs to be done in legislation. One can see from our presentation that a number of different issues arise.
While this matter concerns carers, there also are wider issues such as family friendly policies, paid parental leave and childcare, as mentioned by Deputy Wallace. We view this matter as a legislative issue. The piece for the Constitution is about recognition. We are not saying one must insert something in the Constitution in order that one can then go to court to pursue same. That is why I think it is important that the assembly considers constitutional and legislative options because there needs to be further legislation in terms of care. We can either see this referendum as something where we can say, "Grand, we did that for gender equality" or we can view this as a way to improve women's equality in Ireland. That is part of why we are suggesting we should have this process and come forward with both constitutional and legislative recommendations.
Dr. Laura Cahillane:
The last point made by Ms O'Connor is key. If one puts a provision into the Constitution to say the State should support such persons, then the means by which one supports them is by creating new legislation. There must be a conversation on legislative supports and it must be built into the constitutional discussion as well.
The witnesses have made strong points. Let me explain my thinking. Obviously this is after a process or at least a process that has been advocated in terms of some form of constitutional convention. Let us say there is a referendum where I ask people to vote in favour, then one must consider what implication it will have for the Constitution. Symbolism is important but there seems to be an argument for it not to be simply symbolic. If it is not going to be simply symbolic then aside from a right, it is important that we have a sense of it. I agree it should be accompanied by legislative provision but in so much as this applies to the Constitution, it is important to consider, if we are going to embark on a constitutional amendment that is justiciable, the circumstances in which we think that should be the case.
Dr. Laura Cahillane:
Again, if one puts something into the Constitution with the intention of creating concrete rights then the Oireachtas could act on same to provide support for carers in the home. The Oireachtas would undertake the duty specified by the Constitution to make supports available to carers. The Oireachtas would also set the boundaries on the type of supports and who could avail of same. Beyond that point it would be open to somebody who felt that support was insufficient, or somebody who was not currently covered by that support, to then take a case to the courts arguing that either the support was insufficient or that he or she should be included. All of the detail would have to be considered in legislation.
Mr. Frank Conaty:
Again, returning to recognition versus support, this is a significant challenge. If we agree in principle that recognition is important, symbolic or otherwise, in the Constitution because of the contribution that carers make to society, then without support that symbolic recognition becomes meaningless. I know from speaking to carers that for too long they have been in a position where they feel they have been dealt with in an almost charitable fashion or have been given a pat on the back for doing the work. Some supports do exist but they are largely and often insufficient. Without having some means by which the State is compelled to provide adequate support, then the symbolism, while extremely important, becomes somewhat meaningless for the practical day-to-day lives of carers. That is the challenge. I do not suggest I have the answers or know how to delimit that situation.
If we accept those principles, it is for us, as a society, and our legislators, to take that conversation to the next level in terms of how we actualise them and make them operable within our Constitution and legislative framework.
I will respond to that and ask one final question. I am sympathetic to what Mr. Conaty is saying, and I am in agreement with it. It is right that in addition to the framework and the legislation that should accompany it there should be some ability for compellability. It sounds to me as if we want to set some kind of minimum standard or floor for the supports that people who have a caring role should be entitled to. Perhaps I am wrong about that. If there is a floor, we need to have a sense of the circumstances in which it would come into play, although perhaps not today. That can be teased out during a constitutional convention process.
I will put my final question to all the witnesses. There has been discussion, particularly in the North following on from the Good Friday Agreement, of a bill or charter of rights or something to that effect. Would there be value in a bill or charter of rights in the State to complement the constitutional provisions of the kind anticipated here or any other constitutional provisions, including with regard to socio-economic rights?
Ms Emily Logan:
The Deputy is probably aware that as a commission, IHREC works closely with its colleagues in Northern Ireland through the mechanism provided for under the Good Friday Agreement, which is called the joint committee of both commissions. Brexit has given a renewed focus to what we have been doing. We have published a paper on it and we have been looking at trying to ensure that the equality case law being transferred from Europe and the human rights provisions will be as strong as they currently are after 29 March 2019. Both commissions have been working together. The bill of rights is in there but it is very much a provision for Northern Ireland. Ireland has multiple international treaties to which it is a signatory so it is not a conversation that has happened in Dublin. It has happened more in the context of the Good Friday Agreement.
Dr. Laura Cahillane:
The difference is that Northern Ireland does not have a written constitution. We have a bill of rights, which is Articles 40 to 45. As Ms Logan mentioned, we are also signed up to a number of international treaties that create obligations on the State in terms of further rights. That is the reason it would not be necessary to consider a further bill of rights in Ireland.
Ms Orla O'Connor:
We were concerned with how we bring forward many changes to the Constitution and within that was socio-economic rights. We have not considered it in terms of a bill of rights. We were concerned with how we use the international agreements and their commitments in terms of women and with holding the Government to account on them. Our work on this has very much been through the frame of what needs to be done to advance socio-economic rights within our Constitution.
I have three further speakers indicating. They are Senators Niall Ó Donnghaile and Frances Black, and Deputy Mick Wallace, who has had to go to the Dáil to engage with the Minister for Transport, Tourism and Sport.
I thank all our witnesses. It has been a useful exchange. It showed why it was important to have this pre-legislative scrutiny. What Dr. Conaty said earlier struck me in terms of the roles of carers and how we identify carers and what care is. It takes many different forms and comes in many different guises. I am similarly of a view that the sexist nature of what has prevailed needs to change. I am thinking about the symbolic recognition of care and carers and how important that is.
It is complex if we want to do it justice because not only do we have the competing views of women and men and gender neutrality but we also have an increasing number of children and elderly people caring for disabled children or people with specific needs and requirements. Many carers face feelings of isolation and marginalisation. Symbolism can address that to some extent but in terms of their daily bread and butter it can be down to the legislative flow that might be required. What are the arguments relating to access and benefits and how we tangibly support carers? Children cannot open bank accounts, for example, so it is a complex issue. I appreciate that I have not formulated all of this in my head. It is something separate that struck me from the conversation and questions thus far.
I will try to put it into the form of a question. Are the witnesses aware of any other examples of good practice internationally where states have included the symbolic nature of care and a constitutional recognition of care? Care does not always prevail within the family. We probably all know of instances of community care where neighbours look after more vulnerable people within their community. That constitutional recognition of solidarity and support and care is important. Are there international examples of that symbolic nature or examples of where states have gone beyond that?
Professor Siobhán Mullally:
There are a number of examples of constitutional texts and case law from constitutional courts where there is much more extensive recognition given to socio-economic rights more broadly than has been given in Ireland either by the courts or in the constitutional text at the moment. I am not aware of any specific example of a reference to the role of carers but Article 41.2 has that in our constitutional text and, therefore, we have a precedent, albeit in a stereotypical and discriminatory way. It provides a starting point to expand it and remove the discriminatory element. It would allow us to ground what is behind that, which is to recognise the value of care and caring work in the context of family life. That is what we are trying to build on and, in doing that, we would draw on the International Covenant on Economic, Social and Cultural Rights. Our recent ratification of the CRPD gives another context to that as well. They are the kinds of international human rights obligations and obligations with regard to social security and caring more broadly that can ground it. The specific details are a matter for the Legislature, as is currently the case regarding payments around disability support, support for childcare and the work of carers. Those details will continue to be the responsibility of the Legislature. The idea is to provide a constitutional framework within which those decisions can be taken.
Ms Orla O'Connor:
We are not aware of any other constitutions that do it. That is not to say they do not. I am just not aware of it. I mentioned the UK Care Act which is more comprehensive. One of the issues is that so much legislation and policy in Ireland has been piecemeal. In terms of the legislation, we do not have examples like that where things are done in such a comprehensive way. That would need to be considered. During the Citizens' Assembly on the eighth amendment, international experts were brought in to discuss what good models of practice there were. It would be useful.
I have a brief supplementary question. I am not a lawyer. That is an important health warning in this regard. Deputy O'Callaghan was alluding to the fact that if a replacement was inserted into the Constitution, the law would be open to legal tests of the role of carers. We probably must try to land on a definition of care. The nature of caring and carers is very different from the position when this article first appeared in the Constitution. It is not a question of guarding against legal tests. Why not put that to the test? That would be my view. However, if we are going to define care constitutionally, we need to have a clear definition and understanding of what care is and who carers actually are politically, societally and culturally. This is a fundamental starting point as we move forward.
I thank the witnesses for fantastic presentations this morning. It goes without saying that this is a very complex situation. It definitely needs to be investigated a lot more. I particularly commend Dr. Cahillane on her clear and useful presentation. I have a couple of short questions. First, the Minister said that a replacement clause could have unpredictable legal consequences. Is that not always the case with anything in the Constitution? We can never say for certain how the courts might interpret something. By having a Constitution in the first place we accept that the courts might limit the capacity of the Oireachtas.
I have a second related question. The Constitution can be useful in setting a floor of basic rights below which government and policy cannot go. I refer to the decision on asylum seekers' right to work, which also was raised by the commission. In that case, the Supreme Court did not impose a huge positive obligation on the State but held that asylum seekers should have a bare minimum of access to work. Could we see this in the same way, that is, as requiring a basic level of support for care work on the part of the State rather than a huge list of cases against the State that would vastly change the social welfare budget? Perhaps other people can respond to that point also. I have a further question but I will return to it in a second.
Dr. Laura Cahillane:
Of course the Senator is right. We can never predict with absolute certainty how the courts will interpret anything in the Constitution. That goes for any provision and that is why the Minister is making the argument that we cannot tell how the courts would interpret this provision in years to come. As I have said, that is not necessarily a reason to try to avoid amending the Constitution in any way. Could the Senator remind me of her second question?
I said the Constitution can be useful in setting a floor of basic rights below which government and policy cannot go. Most recently, the decision on asylum seekers was raised by the commission. In that case, the Supreme Court did not impose a huge positive obligation on the State but instead ruled that asylum seekers should have a bare minimum access to work. Could we see this in the same way, that is, as requiring a basic level of support for care work on the part of the State?
Dr. Laura Cahillane:
Yes. The point of putting a provision into the Constitution would be to ensure a basic level of support. As we have been saying, it would then be up to the Oireachtas to define the boundaries of what would be encompassed by any idea of support. Of course, it would then always be open to citizens to challenge that and to argue that this support had not been not strong enough. It would then become a matter for the courts to decide whether the legislative support which had been given was sufficient under the Constitution and whether the limitations were constitutional. There can be limitations to rights. The courts would conduct a proportionality test to decide if the limitations were proportionate. That is something which would be worked out afterwards in the courts. Ultimately it would be down to the Oireachtas to decide on the limits and the supports which should be available.
Professor Siobhán Mullally:
I thank the Senator for her questions but we have commented on them. To reiterate, our position is that the Constitution should be amended to recognise and support care work. This would provide a constitutional framework within which decisions around resource allocation could be made to ensure care work is supported in the context of family relationships. The decision in N.H.V. v. Minister for Justice was given as an example of how courts engage with questions on socio-economic rights, as our Constitution does in other contexts. Any rights vindication issue, such as the right to a fair trial, requires the State and the Legislature to engage in difficult decisions on resource allocations. Any question on rights, whether we categorise them in a rather traditional way as civil and political or socio-economic, requires an allocation on the part of the State and decisions about resources. The adjudication by courts will also inevitably lead to those consequences. We need a framework within which those decisions are made to effectively vindicate that right.
I have one question. Witnesses will forgive me if I missed the answer to this. I wish to ask IHEC and Dr. Cahillane their thoughts on a citizens' assembly. Would it be a good idea to go ahead with a citizens' assembly and follow the model of the repeal of the eighth amendment?
Ms Ellen O'Malley-Dunlop:
We support that, and call for holding the deliberative process before a referendum. That is important. Many of the questions we have been dealing with this morning would be teased out. It is a fantastic process. We have seen how it delivers. We would definitely support a citizens' assembly or constitutional assembly before a referendum.
Dr. Laura Cahillane:
We have seen that the Citizens' Assembly process can be useful. As Ms O'Connor mentioned, when this was considered in 2013, it was only considered in a limited way, so there is certainly scope to look at it in more detail. We have to be careful that decisions to refer issues to citizens' assemblies are not used as a delaying tactic by the Government, because, ultimately, the Oireachtas is a citizens' assembly as well.
I would like to direct this question specifically to the NWCI, but if anyone else has any views, I would like to hear them also. Given that the vast majority of care in the home is performed by women, will shifting everything to gender-neutral language do anything to shift the cultural default setting whereby care in the home falls to women to the detriment of their own economic independence?
Ms Orla O'Connor:
There are two issues. That is why we think that the recognition of care is important. We also know that the care issue is at the centre of women's' inequality. One of the key areas that the NWCI has been working on for many years is the distribution of care. There needs to be greater distribution of care work between women and men. We think it is important that this be included in the provision. That is why our own wording in the Constitutional Convention referred to persons caring. That is important. We are proposing recognition of care in a gender-neutral frame, which recognises that it is important for men and women, for all people in society. Women are saying to us that they want the recognition, but they also want to see this issue advanced. That is why we think it is important that this be accompanied by a legislative programme.
I am sorry I had to go into the Chamber for a question and I probably missed bits of it now. I did not have many questions anyway. I came here to listen rather than to talk. We do enough talking in here.
I seek clarity from Dr. Laura Cahillane on an answer she gave to Deputy O'Callaghan. Am I correct that when the Deputy asked if it is a choice between putting something symbolic in or total deletion, Dr. Cahillane replied that one should probably go for total deletion and put something else in later?
Dr. Laura Cahillane:
First, I am lawyer and I am looking at this from a legal perspective. Those who have worked with carers and those in civil society organisations may well present a different view but, as a lawyer, I do not see the impact of a symbolic provision. One can easily achieve the same legislatively. One can insert much more detail and there can be much more discussion on a legislative provision. If the Government decided to go for straightforward deletion, it should do so in the context of a promise that this would also be dealt with on a legislative basis. That is where the citizens' assembly idea, or at least a public consultation on this, is important so that we look at what is necessary in terms of statutory rights for carers.
What is Dr. Cahillane's view of idea of using the word "shall" instead of "endeavour" so that there is a socio-economic obligation on the State to do certain things in this area and that it would be obliged to do so? Does she see a problem with putting something as concrete as this in the Constitution or would she be okay with that?
Dr. Laura Cahillane:
In an ideal world, that is what we should do. I am not a politician and I am not aware of the financial implications that would have for budgetary policy, social policy, etc. That is an issue for politicians to consider. If a suitable case had come up before the courts, probably in the 1970s, it is quite likely that the courts would have decided that there was a socio-economic right in this provision. I suppose it is pointless talking in this way because that never happened and we do not know, but it is something to consider.
Dr. Laura Cahillane:
Legally, one cannot have an opinion on whether it is good; one looks at the legal consequences of something. Personally, to have that concrete right for carers in the Constitution would provide the utmost protection for carers but one also must balance that with the economic considerations which is a question for politicians.
I thank committee members for their participation and I particularly thanks all our panellists. I must put on my glasses to spot all their names, which are in front of them. I will only take their Christian names. I thank Frank, Emily, Siobhán, Ellen, who only has an "E" because her surname is longer but I remember, Orla and Laura. They having been here for the earlier engagement, on behalf of the Oireachtas Committee on Justice and Equality, I sincerely thank them all for their patience as well.
I also apologise that this was not something that we ourselves had determined or structured prior to the summer recess. We had adjourned for the summer recess when this landed on our plate and our programme of work has been pushed back significantly as a consequence. We have these two sessions. I also record our thanks to those who have been discommoded somewhat by their coming before us in relation to community policing and rural crime, which is the critical body of work that we were to undertake today. The consequence of all of that is that things are a little cluttered. I apologise to the commission and to the witnesses that they are all a wee bit pressed in together. We would not normally structure our work in this way. We only have next week and we have five separate individuals and entities coming before us. There was no other way that we could cope. We are sorry if we have discommoded the witnesses in any way. We are most grateful to them for their written contributions, which will be most informative, and for their participation today.
At 9 a.m. on Wednesday next, 26 September 2018, we will resume our deliberations on this matter.