Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

Tairgim: “Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

I thank my colleagues across this House for their participation today and for their expressions of support for this Private Member’s Bill. I also thank the Minister of State, Deputy Chambers, for being here this afternoon. I appreciate the encouragement and support of the National Women's Council of Ireland and Women for Election, which are supportive of this legislation.

The current Article 15.11.1 of the Constitution reads: “All questions in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present and voting other then the Chairman or presiding member." In the Bill before us, a new proposed Article 15.11.4 is created in the following way, having deleted that section:

Each House may make its own rules and standing orders providing for special and limited circumstances by which members not present in that House may vote when any matter, or any class of matter as so provided for, is to be determined by a vote of that House.

This constitutional amendment would remove the requirement to be present for every vote and would enable each House of the Oireachtas to include in its Standing Orders a mechanism by means of which Members could vote remotely or by proxy, in limited and specified circumstances to be determined by the Houses. Moving this provision from the Constitution to the rules of these Houses has the advantage of being flexible over time, allowing the Houses to make periodic changes to those rules over the decades to come in order to account for evolving situations that we may not be able to foresee today.

There are situations that we can and do foresee, however, and which we have experienced. There are at least three foreseeable situations in which a Member of the Houses should be permitted to vote remotely or by proxy. First and most obvious is in a public emergency, such as the experience we have just emerged from, one like we had never seen before. It was an emergency in which shared physical presence became the antithesis of public service. The second circumstance is illness or someone being immunocompromised, where a Member must take physical time away from their parliamentary duties for certain and specific reasons. For example, a Member may find themselves immunosuppressed or deeply unwell for a period of time. Either through that long-term illness or the medical treatment for that illness, the Member may lose their ability to participate in parliamentary votes. This would be due to no wish of their own, but only through a historical failure to have made inclusive provision for them. There have been some examples of this happening over time, including among our colleagues in the Thirty-third Dáil.

It is not for me to name them or to name any experience, but I am sure other Members will be aware of the natural life issues that face everyone in the working environment in here just as much as outside Leinster House.

It is also important to say that this provision may enable a broader representation in these Houses from persons with seen and unseen disabilities, who may otherwise be perfectly able to participate in our national Parliament but who may need the additional supports that this provision may provide them from time to time. The ability to participate differently is a proportionate and appropriate measure for us to be able to provide those who need to live life differently or with additional supports, and we have not as a House done enough to be as inclusive as I believe we can be.

The third foreseeable situation is, of course, maternity and paternity leave. People have babies. It should not be a surprise but yet our working structures take no account of it in this House. It automatically shuts off women of this land that we have not even considered them as equal natural participants in these Houses by providing for the most natural of life's events.

This was particularly relevant at the time of the introduction of this Bill in this House on 8 December 2020, when my Fine Gael colleague, the Minister for Justice, Deputy McEntee, had announced her pregnancy only three days before. As the first woman sitting at Cabinet level in Ireland to take maternity leave, although it was facilitated in terms of her ministerial brief, essentially, a sticky plaster was used in terms of the Minister's attendance for voting in the Dáil, in terms of her concurrent parliamentary duties.

I have seen comment from those who may feel that this is a self-serving Bill and that it is politicians looking after themselves in some way. From my own perspective, I know in my own heart at this stage that I will not need to avail of the maternity leave provision at this point in my career. I certainly hope not to need sick leave or to ever see another public emergency in that way but we do not legislate for ourselves. We legislate for those who come next and for the broader societal issues more generally. The lack of an equivalent to maternity or paternity leave for representatives of the people is an impediment to a family-friendly and gender-sensitive working environment for Members and for the community of the Houses of the Oireachtas who see us and, indeed, visit here and participate with us here in committees and civic society participation more broadly.

That issue was considered in great detail by the Forum on a Family Friendly and Inclusive Parliament chaired by former Deputy Mary Upton, the report of which was presented to the Ceann Comhairle in November 2021. I acknowledge the work of my parliamentary colleagues, Deputies Richmond and Cairns, Senator Fiona O’Loughlin, who is Chair of the Women’s Caucus, and Senators Chambers and Warfield who worked on this and, of course, the Ceann Comhairle, who established the forum in the first instance. The forum states that maternity leave is a more obvious issue now that more women are putting themselves forward for election and getting elected - a natural consequence of having introduced gender-incentive legislation. Of course, that proportion will go up even more. We should have done it before now but it is an absolute imperative.

There have been two Private Members' Bills that attempted to introduce leave, by Deputy Ó Fearghaíl, as the Ceann Comhairle then was in 2013, and by Deputies Niamh Smyth and Deputy Rabbitte, as the Minister of State was then, in 2018. From having spoken with some of the sponsors of those Bills, essentially they got stuck on the question of voting and the constitutional requirements in relation to that.

Importantly, the forum also acknowledged that, in 2021, there were two instances of pairing arrangements to cover two six-month periods of maternity leave for Members of these Houses. The forum noted that in both cases it was other female Members who offered to enter into that arrangement, which is great but has the effect of further reducing the number of women voting in Parliament. It was also noted by the forum that Members who had offered this arrangement had then faced criticism for failing to vote on certain occasions. Such dependence on informal or more formal pairing arrangements is an insufficient response at this stage in the evolution of Parliament in our democracy. It creates uncertainty generally. It creates uncertainty for the Member who is on leave. It has created problems for the Member who offered to help and it cannot be depended on in perpetuity in a modern parliament. I believe it is not a sophisticated enough response for a modern parliament and we need to take steps to address it, being, as we are, on notice of the problem and being committed to the expansion of female representation in the Chamber.

However, what heartened me most about the forum's report was its analysis of paternity leave and its acknowledgment that we must normalise such leave for men in this House, as we are trying to do in broader society. Childcare is not only a female issue. Childcare is a parents' issue. There are a number of male Members of these Houses who have had babies in their families in the lifetime of the Thirty-third Dáil and I often wondered throughout that whether it was honestly necessary for them to be in the convention centre or in this Chamber at 9 p.m., 10 p.m., 11 p.m., 12 a.m. and 1 a.m. each week as we voted on the business of that week, or whether, for the first few months of the baby’s life, everyone might have been a little better served, including the Members' constituents, had they had the opportunity and been facilitated to vote remotely and provide more support and company at home for a specified and limited period at such a tender stage of family life.

I want to also address the question of legal necessity in relation to this Bill because I am aware of and, indeed, greatly respect the views of constitutional academics who question whether this is necessary or whether it can be achieved through another route. The reality is we have received legal advice on two separate legal grounds and on three occasions. First, the Houses of the Oireachtas and, indeed, Members were advised that the Article 15 requirement to be present for voting was absolute. That was the experience that we had as Members at the beginning of the pandemic. I received that advice myself in the development of this Bill and I note the forum also comments that it received equivalent advice in relation to the necessity to be present for voting. The forum then went a different way about it and considered the question of employee rights and the intersection of employee rights with maternity and paternity rights. The forum's report, at page 24, states "The Forum sought legal advice ... [and the] legal advice provided confirmed that Oireachtas Members are not considered as employees [as such] and, as a result, may not avail of certain employee [rights and] protections" as would their constituents in other working environments outside these Houses. As a priority recommendation, the forum states there should be a referendum to address remote working and proxy voting in these Houses.

I acknowledge that there is legal debate about this. I share the enthusiasm for constitutional development and interpretation more broadly but the straight facts of working as a Member of this House are that we must act within the legal advice to continue to enjoy the presumption of constitutionality. It is not available to us to act outside of that. It is advice in any event with which I personally agree.

It is, of course, a provision in other parliaments to facilitate remote and proxy voting and it has become more common as a consequence of the pandemic. Remote voting is reasonably common in Spain for the reasons I mentioned earlier. Romania introduced electronic voting, as did the European Parliament and Poland. It has proved more difficult in Westminster-style parliaments but even in the UK it was introduced as a trial run in 2019 and, following two extensions, proxy voting was made permanent in cases of maternity leave. There are now calls to extend that to include sick leave.

Whatever mechanism we ultimately use, be it full leave, remote leave, proxy participation or some combination of those, what we need to ensure as we move into the next stage - if this Bill progresses and if it is successful at a referendum and if we end up in a situation of the Houses of the Oireachtas making arrangements for Members for the future - is we cannot be too prescriptive for Members. We must make sure that the choice is determined by the Member, that the Member is facilitated to make the best choice for the Member and the Member's own circumstances, both in early parenthood and in terms of the Member's own assessment of what the Member wants to do in terms of his or her work. There is no question but that at every turn and in every analysis, the ability to participate in votes remotely or by proxy is the first hurdle to overcome and that hurdle is grounded in the current constitutional provision.

If the constitutional change moves through this House and is supported and if it is put to a referendum, I note at the outset that I have never envisaged that this be a stand-alone event. It was always the case that this referendum would never be appropriate or suitable during a pandemic period. Naturally, to facilitate the best running of parliamentary democracy and democracy more generally, you do not want to have referendums that are sticking out on their own for no good reason for us to ask people to come to vote on that. There is a natural confluence with the work being done with the Committee on Gender Equality, established as a consequence of the recommendations of the Citizens' Assembly, of which I am a member and of which Deputy Bacik, who is here today, is Chair. That committee is working specifically at the direction of the Citizens' Assembly on three referendums related to gender equality and it seems like a natural friend that this referendum might sit alongside three referendums such as those at some point in the future. There is no need to take it out on its own, but perhaps consider it in the round.

What I envisage, if it were passed and got the support of the Irish people to make this change, is that it will be then a matter for the Houses of the Oireachtas to consider the type of votes or the types of class of votes, the types of scenarios that are included and not included, the periods for which that might be appropriate or not appropriate, the mechanism by which a Member might apply formally, what the Member might expect in relation to that and, indeed, provision for making changes to those rules over time.

As we all sit here - many of the Members support this Bill and I thank them for that - I am all too aware how much further we must go to achieve true representation in our representative Chamber - whether it is more women, whether more people with disabilities or younger people who perhaps do not see politics as an option that they can juggle alongside the potential of a young family.

It is our job now to think about those who will come after us and to make every provision possible to allow for a larger number of people to seriously consider this job as one they could do while also having a family and to be available to them at those tender moments. We must show that the practical realities of life outside Leinster House apply in here too. Otherwise, how are we to attract a broader group of representatives to our representative Chamber? I look forward to the debate and commend the Bill to the House.

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