Ivana Bacik (Dublin Bay South, Labour) | Oireachtas source

I am glad to speak for the Labour Party on this important Bill, the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023. My colleague Deputy Sherlock will speak for the Labour Party later on the second of the two referendum Bills, the Fortieth Amendment of the Constitution (Care) Bill 2023. I will make some reference to that Bill in my own contribution since the two referendums are to be held on the same date, arise from a common process and each would seek to amend the same article of the Constitution, that is, the family article. Indeed, the text in the thirty-ninth amendment Bill refers and is in some ways contingent upon the text in the fortieth amendment Bill.

I am glad we have finally got to this point. It has been a long journey to get here. I, personally, have been very closely involved with this process for a long time. As Chairperson of the Oireachtas Special Committee on Gender Equality and previously as a practising and academic lawyer, I have researched and engaged extensively with the text that is now under scrutiny and which the Government is proposing to amend. I thank the Minister for his acknowledgment of the work we did in the committee. Indeed, Deputies Clarke and Cronin, who are in the Chamber, were also members of that committee along with others on a cross-party basis across the House. It is because of my long involvement with the process that I am so deeply concerned about the text we have been provided with in these Bills today. It is a real disappointment that the wording now proposed does not follow the recommendations of the citizens’ assembly or the Oireachtas committee. It will beg the question, particularly from the citizens and those many stakeholders who engaged with us, as to what all the engagement was for, if indeed the text was to depart so significantly from that which we and the citizens' assembly before us recommended. We heard from so many witnesses, including stakeholders, experts and persons with lived experience of inequality. The citizens' assembly before us had also done so. The citizens delivered clear recommendations and we delivered a clear action plan building on those recommendations. It is exactly one year ago this month that the committee produced a draft wording of the proposed constitutional amendment text, which had cross-party support and civil society buy-in. It is, therefore, deeply disappointing that the wording proposed today has departed so significantly from those recommendations. It could be described as a missed opportunity. Indeed, this is not just my view. I refer to the views expressed by so many more. Dr. Laura Cahillane pointed out, when the wording was announced, that the Government had "fudged an opportunity to do something [more] positive". Other commentators have been critical of some of the language used, particularly on the care referendum but also some of the language in this thirty-ninth amendment Bill.

I will speak briefly about the process that has led us to this point by way of setting a context before turning to the wording in the Bill. As I said, we published our report one year ago. Our committee had been tasked with examining the report of the citizens' assembly. That assembly, chaired by Dr. Catherine Day, met during Covid pandemic times between January 2020 and April 2021. In 2021, it produced a final report setting out a total of 45 recommendations for wide-ranging change and a really clear pathway to achieving gender equality.

The largest group of recommendations, numbered 4 to 19, related to care and social protection, which is a measure of how significantly the assembly viewed these issues and of how gendered both care and social protection are.

Members of the assembly told me and others that because their deliberations had taken place during Covid, this had particularly emphasised the central role that care plays in all our communities. Like others, I want to pay tribute to the citizens who took such time and gave such commitment to their deliberations in producing their recommendations.

Their first three recommendations provide a clear framework for amending the text of the Constitution. It should be said that they proposed an amendment to Article 40.1 – the equality guarantee. They asked us to change that to refer explicitly to gender equality and non-discrimination. Just to note, it is a matter of some regret that the Government has simply ruled out acting upon that recommendation. Both the assembly and our committee considered that Article 40.1 should be amended, but that, I accept, is for another day. We are faced now with the two recommendations of the assembly related to Article 41.

They asked us to amend Article 41 to protect private and family life, with the protection afforded to the family not to be limited to the marital family. The text in the Bill is within that context. They also asked us to delete the gender-specific language in Article 41.2 of the Constitution and replace it with an obligation on the State to take reasonable measures to support care within the home and wider community.

Our committee took the view, when we were set up following the assembly report, that our mandate was to provide proposals on the most effective way to implement the assembly’s recommendations. We produced what we called a "blueprint" or "action plan" for implementation. We called our report "Unfinished Democracy", because we believed that until we achieved a truly gender equal society, our democracy in Ireland would remain unfinished.

We endorsed the need for the constitutional changes proposed by the assembly, and even went so far as to draft and provide the Government with precise wording for replacement text to give effect to the changes proposed to Article 41. We called on the Minister and on the Government to move swiftly to hold the necessary referendum before the end of 2023. As the Minister has acknowledged, there has been, it must be said, a somewhat unexplained delay over the months since then. It is regrettable that it was only, in fact, last week, in early December, that we finally had sight of the wording, having initially been promised the referendum would take place in November of this year.

The wording is disappointing. The timeframe is of concern. We have only 85 days between now and 8 March.

There can, however, be no doubt that we need to amend Article 41. I absolutely agree with the Minister's words. The Minister spoke powerfully about the shameful legacy within this State, our treatment of women, our treatment of single-parent families and our treatment of all those families who did not conform to that constitutional model of family based upon marriage.

It is widely agreed that the restrictive nature of the language used to define "Family" in Article 41 does not reflect the real diversity of modern family life and wonderful diversity of family forms in Ireland. It is also widely agreed that the language used in Article 41.2 referring to women and mothers is sexist, outdated and anachronistic.

Article 41.3.1, on the family, currently provides that "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." Thus, only those families based on marriage are offered constitutional protection. As we know, this restrictive definition has had a really severe impact upon families and has reinforced discrimination. I refer to the particular tragic case of Johnny O’Meara, with which the Minister will be familiar. Mr. O'Meara is a father of three from Nenagh, County Tipperary, whose partner, Michelle Batey, sadly died from cancer in 2021. They had been together for 20 years. Like over 150,000 other couples across Ireland, they were cohabiting and had not married. Both were working, paying PRSI and contributing to the system, but Johnny was not legally entitled to the support of the widower's pension upon Michelle's death, because they were not married. This legal position, this lack of entitlement, was reinforced by the constitutionally restrictive definition of family. It is particularly unfair, of course, because the State recognises cohabitation in other realms within the social welfare support. Johnny O’Meara courageously took his case to the High Court. He lost there in October 2022. Looking at the judgment, in the words of Mr. Justice Heslin, the State had made a "legitimate decision ... to support, not families, but those who made the choice to enter ... the marriage contract". Johnny appealed that decision to the Supreme Court where legal argument was heard there, most recently, as we know, in October. The judgment is awaited in that case, but it illustrates the practical impact of laws which discriminate against those who are not married who are cohabiting. I and my Labour colleagues, in particular, Deputy Alan Kelly, have long championed Johnny O'Meara's case and called out the lack of welfare supports for unmarried couples as a stain on Irish society. We need to address the situation to provide equality for all families. One important way to do this is through amending the "Family" definition in Article 41, but how this is done is important. We are all agreed on the need for change.

I will return to Chapter 1 of our committee report where we set out the three considerations that guided us in devising this wording that we drafted. Most unusually, and, I think, uniquely in an Oireachtas committee process, we prepared wording. We were mindful of the need to take account of the views of stakeholders, civil society groups, experts and campaigners, and we did so. We also were mindful of the need to ensure that only those changes necessary to give effect to the citizens' assembly recommendations would be proposed. We wanted to be minimalist. We did not want to put in any extraneous language. Of course, we wanted to ensure that, as far as possible, the existing substance, language and text of the relevant constitutional provisions should be retained. We were trying to build on what is in the text. In keeping with these clear guidelines, we prepared what we described as a simple wording to amend Article 41.3.

We did not see a need to amend Article 41.1 and I am interested that the Government has chosen this route. The Minister referred to that in his speech. I might ask for a little more clarity on that. I have concerns about the phrase used to limit the definition of family in the proposed new text for Article 41.1 that the Minister has proposed, namely the family "whether founded on marriage or on other durable relationships." Others have spoken on that phrase, "durable relationships", which does jump out. Unlike the language our committee used, the concept of "durable relationships" is new to the Constitution. I think I am right in saying it is new to constitutional jurisprudence in this country. Therefore, the Government has not followed the criteria we set. We devised those criteria, but I am interested to know why that particular consideration I have referred to was not embraced - the need to ensure that, as far as possible, the existing substance, language and text should be retained.

Nor do I see how it is necessary to insert the phrase into Article 41.1 at all when, instead, the approach we took was to insert the more expansive text in Article 41.3.1°, where we proposed a text saying, "The State pledges itself to guard with special care the Family, including but not limited to the marital family." That Article 41.3.1°, therefore, makes clear that the "Family" protected in Article 41.1 is to be defined in this more expansive way without the need for a separate amending text to Article 41.1.

Some members of the committee thought that introducing the phrase "marital family" might itself be problematic and we thought that was a worthy point. We proffered an alternative, even more straightforward approach - merely to delete the phrase "on which the Family is founded" from the existing text of Article 41.3.1° - to remove that provision related to marriage.

Taking either of those approaches, in our view, would enable recognition of the more expansive definition of family, no longer limited to the family based on marriage. It would also potentially remove a key justification upon which a discriminatory approach by the State against cohabiting couples, such as Johnny O’Meara and Michelle Batey, might be based. We wanted, therefore, to take the minimalist approach to amending the Constitution to ensure that more expansive definition of family would be possible.

My questions are as follows. First, why the need to make changes to both Article 41.1 and 41.3.1°? Second, why use this more complex text, referring to durable relationships? Why introduce that new phrase when a more straightforward approach, in our view, could have been chosen? Crucially, can we be sure that the text offered by the Government would provide protection for those who may find themselves in the awful situation faced by Johnny O’Meara and his three children?

In Labour, we are not convinced that the wording the Minister has proposed is the preferable one, and we are concerned about the text that is being used. We are currently considering the prospect of bringing amendments on Committee Stage to this Bill - I think others are too - to better reflect the wishes of the citizens’ assembly, its recommendations and, indeed, the wording agreed by the gender equality committee. Furthermore, we reserve the right to take a position on the referendum campaign itself once we have concluded that Oireachtas scrutiny of this Bill and, indeed, the care Bill.

Deputy Sherlock will speak in more detail on our view on the Fortieth Amendment of the Constitution (Care) Bill 2023, but the same points can be made. We have real concerns about how the text proposed in that Bill departs from the text that we had proffered at the committee hearings, a text which in our view closely reflected the recommendations of the citizens' assembly.

Our text would have replaced the sexist language in 41.2, which we all know is based on outdated gender stereotypes and should have no place in a contemporary constitutional text. We are all agreed on that, which is very welcome. Our text would have gone further in recognising care than the proposed text in the Government Bill.

The wording which we had proposed would replace the current article 41.2 with two clauses, the first saying that: "The State recognises that care within and outside the home and Family gives to the State a support without which the common good cannot be achieved." and paragraph 2 saying: "The State shall, therefore, take reasonable measures to support care within and outside the home and Family."

As with the 39th amendment and the family provision, we took the view that, as far as possible, we will stick to the text in the Constitution. That is why we used that phrase "within and outside the home and family". We did not use the phrase "wider community". We had originally proposed that in our interim report in July 2022 but we got feedback and spoke with experts and stakeholders. The feedback we received suggested that the phrase "wider community" lacked a precise or established legal definition and that the spirit of the recommendation could be implement more effectively by reference to care both within and outside the home and family. It was expansive but not prescriptive. It is the same principle, I would argue, that arises when we look at the phrase "durable relationship" in the 39th amendment Bill. It is not a phrase which has that precise and established legal meaning which I think we need.

We are also very conscious of the need to ensure that the word "care" would be used to encompass consideration of the rights both of those being cared for and of those providing care so that we do not set up a hierarchy where carers rights are protected above the rights of those seeking care.

We are concerned that the Government's proposed text on care is far more restrictive. It would confine constitutionally recognised care to that provided by members of a family to one another by reason of the bonds that exist among them. Of course this is family with a small "f" and is so different and presumably more expansive than "family" in 40.1.1.

The Government’s proposed text has received at best lukewarm support from civil society groups, which might have been expected to show an enthusiastic welcome for this announcement. The National Women’s Council said it is "consulting its members" which is not exactly a resounding endorsement of a text. The trade unions might have been expected to support a text which creates a more inclusive recognition of care both within and outside the home and family. We do not hear resounding support from the trade union movement. We had achieved a buy-in and support from across civil society and the trade union movement with the text in our report. We are really concerned that many people will be excluded from this constitutional provision as a result of a more restrictive approach.

The definition which the Government has provided will exclude not only those who work for for-profit caring agencies, which it will exclude, but it will also exclude those who work for charities, voluntary organisations and carers like home helps or Meals on Wheels volunteers. I do not see how the bonds definition can include carers who are friends, for example. I know that we have discussed in other settings the sorts of relationships that might be encompassed by the new 42B. Time and again, however, during the course of our committee hearings we heard older people, disabled persons and people who receive support and care from a whole range of different carers, both within and outside of the family, friends and volunteers, those who work for charities, for church groups and for others, and the concern is that an exclusionary definition of care will serve to emphasise and undervalue that care which is provided.

We are very keen to work with the Minister on this. He has said that he would support care outside the home in other ways if this referendum is passed but we need to hear more about how that is going to be done because of we all know the shortfalls and shortcomings in care provision in so many ways, for children with special needs, for older persons and for people with disabilities. We are concerned that having this more restrictive definition of care will simply not meet the needs of those who came before our committee and I just want to be fair to them and to the citizens' assembly.

Finally, I want to deal with the issue of a serious technical flaw in the wording for 42B. When read aloud, in particular, it becomes grammatically problematic. There is a flaw. The wording is cumbersome and there is an issue with that.

Others have spoken in other settings about the separation of powers and, indeed, the Tánaiste referred to that earlier in talking about the referendum. We were very clear that the phrase we used: "The State [will] ... take reasonable measures to support care within and outside the home and Family" is not prescriptive and does not tie the hands of the Executive, or cede decision-making on the resource allocation to the courts. Again that was something the Tánaiste referred to earlier. I want to address that. Neither the wording we proposed on 41.3 or 41.2 would in any way obstruct or undermine the separation of powers. It is clearly leaving to the Executive the crucial decision on resource allocation. "Reasonable measures to support care" is in our view a measured phrase that has a resonance within constitutional jurisprudence but that does not tie the hands of the Executive. For all of these reasons, and wanting to stay true to the process that has led us thus far, through the citizens' assembly and through the Oireachtas committee, we want to indicate that the Labour Party is looking at amendments to put down to both Bills, the 39th and the 40th amendment Bills, and we are looking at how we can better reflect the consensual wording which was achieved, building on the spirit of the citizens' assembly recommendations. We are trying to ensure that we genuinely come to a constitutional change which really reflects the wonderful diversity of family life in Ireland today and the wonderful diversity of care provision in Ireland today also.

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