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The question is not whether the provision should be repealed, it is whether repeal simpliciter or a replacement is more appropriate.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.