Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

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

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

I am delighted to be able to introduce the second element of the Government’s proposal for these referendums - the Fortieth Amendment of the Constitution (Care) Bill 2023. In the years following independence in Ireland, women steadily found their right to equal citizenship and equal opportunities eroded. The right to employment in education on the same terms as men was taken from them. They lost the right to information on access to contraceptives which is key to bodily autonomy. They even lost the right to trial by jury of their peers.

Women who fought bravely for independence and the right to vote now found that they were treated differently from others in society, a position underlined with the introduction of Article 41.2 of the 1937 Constitution, which effectively relegated them to a life of domesticity regardless of the needs of their families. This is not misty-eyed revisionism, looking back at the past with the benefit of hindsight.

Within days of the publication of the new Constitution on 1 May 1937, women’s groups across the country began to rally and organise a campaign against the provisions which, in the words of the veteran republican and women’s rights campaigner Hanna Sheehy Skeffington, cut “away their rights as human beings.” At a meeting in the Mansion House one month later, close to 1,500 people attended from all walks of life to voice their opposition to it. They were, in the words of a report in The Irish Times at that time:

...old women, middle-aged women, working women, professional women, girls from the Sweep and the Civil Service. Girls out of shops and offices...They filled every seat in the Round Room, they thronged the balconies, they sat on the steps of the stage...

Today, I think of these women. I think of people like Dr. Kathleen Lynn, Maud Gonne and Mary Hayden who addressed those who attended and condemned the provision. I think of Kathleen Clarke, a former Member of this house, who said it “robs us of our status enshrined in [the 1916] Proclamation.” It is worth restating the language we are talking about. Deputy Cairns in her contribution earlier spoke about people being shocked to hear what is in our Constitution. I studied law and I remember when we discussed the article on the family and our lecturer read out this language there were gasps around the room because people perhaps do not recognise what is in our Constitution.

Just to say, Article 41.2:

1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

The introduction of today’s Bill is an opportunity, at last, for this House to put a proposal to the people to remove the archaic and sexist reference to a woman’s place in the home in Article 41.2. This is a provision which, irrespective of the reasoning behind it, has in no way improved the lives of women in this country since it was introduced. For three decades, this question has been given detailed consideration beginning with the Constitution Review Group in 1996, which called for the removal of the outdated, stereotypical language of Article 41.2 of the Constitution and to provide recognition for care provided within families. The Constitutional Review Group's recommendations were referred to the All-Party Oireachtas Committee on the Constitution, which considered Article 41.2 in its first progress report in 1997 and the tenth progress report in 2006 and agreed broadly with the recommendations of the 1996 review group.

The second report of the Convention on the Constitution, which carried out its work between 2012 and 2014, also recommended to amend Article 41.2 to be gender-neutral and to include carers. The Task Force on the Implementation of the Recommendations of the Second Report of the Convention on the Constitution was established to consider all previous proposals in order to devise the most appropriate wording. In 2016, it put forward its own options which were followed by publication and consideration by Dáil Éireann of a General Scheme of the Thirty-eighth Amendment of the Constitution (Role of Women) Bill. This Bill proposed deletion, without replacement, of Article 41.2 and as we know that Bill did not ultimately progress. The Citizens’ Assembly on Gender Equality then included this issue as part of its wide-ranging considerations and recommended that Article 41.2 be removed and replaced with an obligation by the State to support care. The Joint Committee on Gender Equality also supported this proposal and sought to devise particular wording.

Consideration of this issue has not been limited to the domestic sphere and a number of international bodies have called on Ireland to address the stereotypical language in Article 41.2.

The overarching aim of the referendum is to update our Constitution so that it reflects our values in terms of equality and recognition of the valuable role that both women and men play in all spheres of public and private life. While Article 41.2 has been subject to so much consideration over the years, it is only one part of this proposal. The Government amendment comprises 3 parts: it will remove the reference to the woman’s life and woman's duties within the home; it will recognise the immense value of the care and support which family members give to one another and which is a foundation for solidarity and cohesion within our society; and, it will create an obligation, an onus, on the State to support those care relationships.

The proposed amendment would achieve this by deleting Article 41.2 in its entirety and inserting a new Article 42B into the Constitution. The new Article 42B, if passed, will read:

The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.

The proposed amendment seeks to recognise that the mutual care and support which family members provide to one another is a public good and a foundation for social solidarity and social cohesion. We all know someone who is caring for a family member, be it their child, their parent, their aunt, or their brother. That care can be for an infant or an older person. Many people care for more than one person. Some people are giving care and support to those with very significant needs and they do this out of love, out of compassion and because that is just what family members do for each other. It is the very essence of our humanity.

These carers, whom we all know, are women and they are men. They are young and they are old. Who does the caring and who receives the care in a relationship can change over the years, as life moves on and people provide mutual support to one another. As with the proposed amendment on the family, this is not an empty symbolic gesture. Every amendment to our Constitution is meaningful and important. For family carers who have given so much of themselves, it has a meaning if we choose to go further than simply deleting Article 41.2 and ensure that there is a part of our nation's Constitution that speaks of them and what they do. Recognising the care we give to each other in families is hugely important. It is the right thing to do. The intention of the proposed Article 42B is to recognise unpaid care provided by immediate and extended family.

It reflects the often constant, intensive and durable nature of care provided by families. In contrast to the current Article 41.2, it involves recognition of a much broader form of "care" beyond the care of mothers for their children in the home.

Furthermore, this amendment does not merely recognise care. Amending the Constitution, as proposed, will also place an express obligation on the State to "strive to support" care within the family. It will place an onus on the State and all future governments to a progressive realisation of support for care within a family, building out on existing supports where necessary.

It must be noted that the proposed amendment does not create an express constitutional entitlement to specific measures of support such as grants or allowances. The Government and the Oireachtas retain the power to define both the types and levels of supports, and the criteria in respect of eligibility for those supports. This is important in the context of the separation of powers which is so fundamental to the functioning of the State. It is the people who elect us to the Oireachtas and, in doing that, they choose where State resources should go. The wording of this amendment has been developed carefully, with the assistance of the Attorney General, to ensure it supports that balance while also meeting the overall aim of the proposal to recognise the role played by the family in terms of support and care which is provided on an unpaid and voluntary basis, and to "strive to support" it.

The word "strive" is relatively novel in the Constitution but it was carefully chosen to reflect the intention of the Government in this proposed constitutional amendment. The Government's intention is that the wording of the proposed article reflects a requirement on the State to make serious and sustained efforts to support family care. The word "strive" includes a connotation that this effort will take place over time; that the achievement is for progressive realisation and continuous improvement into the future. Ultimately, as with the Bill we discussed earlier, it will be for the courts to interpret this provision if passed by the people.

I will now outline the key parts of the Bill as initiated. The Bill consists of two sections and a Schedule. Section 1 provides that section 2 of Article 41 of the Constitution will be repealed and sections 3 and 4 of Article 41 shall be numbered as sections 2 and 3 of the Irish and English texts, respectively. This section also provides for the insertion of the new Article 42B after Article 41A.

Section 2 is the citation provision and provides that the constitutional amendment shall be called the fortieth amendment of the Constitution. This section also provides for the Act to be cited as the Fortieth Amendment of the Constitution (Care) Act 2023.

The Schedule contains the wording of Article 42B in Irish and English. The wording is that: "The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision."

The proposed amendment will represent a strong statement by the Irish nation. If passed, Ireland would be among the first countries globally in placing this explicit recognition of the value of family care at the heart of our nation's founding document.

This amendment does not confer a constitutional right to care, nor does the amendment seek to insert an entitlement to a list of specific supports. In this, the amendment does not limit the role of the Oireachtas, as chosen by the people, to pursue democratically chosen policies or create specific forms of State support for care. However, it will place an onus on the State, the Oireachtas and the Government to ensure that whatever supports for care are implemented comply with the new constitutional standard, as determined by the courts.

Importantly, the new constitutional provision will reflect the often constant, intensive and durable nature of care provided by families, and recognise the fact that this care is provided by both women and men.

This change has been spoken about for decades. It is a change that takes from no one, and embraces constitutional values regarding care. Now is our opportunity to put this timely, beneficial amendment to the Irish people. I commend the Bill to the House.

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