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

I will speak to our amendment, which is amendment No. 2. I very much welcome the debate and the introduction of a Bill to amend Article 41 in respect of two things - the current sexist language within it, which refers to a woman as having a life within the home and mothers as having duties within the home. The language in Article 41.2° of the Constitution has long been regarded as outdated, anachronistic and sexist. It is based upon gender stereotypes which should have no place in a contemporary constitutional text, confining women and mothers to lives and duties within the home and not referring at all to fathers as having any role or responsibilities in the home. This 40th amendment Bill seeks to change that to delete and replace that language with a different text. That is very welcome. Again, as with the 39th amendment Bill, I want to stress that we are extremely supportive of the aim behind the Government’s proposal here, but again our amendment seeks to explore in a constructive manner how best to achieve that end: to delete the sexist language but also to ensure that there is a meaningful recognition of care, both care within and outside the home. I speak not only for my Labour Party colleagues but I also refer back to my role as Chair of the Joint Committee on Gender Equality, which was established by the Oireachtas on a cross-party basis. Members of the committee are here in this House. Our committee was charged with exploring the recommendations of the Citizens’ Assembly on Gender Equality. We took the view right at the start on a cross-party basis that our role was to see how best to implement those recommendations. I commend the members of the citizens’ assembly because they took their work so seriously. They took a very strong view, first, that the sexist language about women and mothers should indeed be deleted, but that it should be replaced, crucially, with a recognition of the role of care. That care should be recognised and valued both within the home and in the wider community. That was very clear in their recommendations and we took that up, explored it, had extensive engagement with different groupings – carers, women’s groups, groups representing disabled persons. We had extensive engagement and with cross-party support we devised a wording which we regarded as effective in expressing the wishes of the citizens’ assembly and in ensuring that we would have a meaningful recognition of care in the Constitution for the first time on a gender-neutral basis, but one that would recognise care both in and outside of the home. Our proposal is what is reflected in the Labour Party’s amendment No. 2, which simply restates the recommendation from our Oireachtas joint committee.

We recommended that the current language, which is that the State recognises that by her life within the home, a woman gives to the State a support without which the common good cannot be achieved, would be changed and replaced with: "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." That gives a recognition of care and a recognition of care outside of the home and family. The second clause we wanted to replace is the clause that currently states 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. Again, we all recognise that as deeply outdated and paternalistic language, speaking about mothers having duties in the home and if they engage in labour, it is to neglect their duties in the home. That has no relevance now to the real lives of women and of men who share duties in the home and who are equally engaged in labour outside the home. The clause we propose to replace that states: "The State shall therefore take reasonable measures to support care within and outside the home and family." In our report, Unfinished Democracy: Achieving Gender Equality, launched in December 2022, we put forward clear reasoning behind that text. Indeed, we had explored different formulations of the text in an interim report we prepared earlier in 2022. In the interim report, we used language that the citizens' assembly had used calling on recognition of care within the home and the wider community. After consultation with constitutional experts, stakeholder groups and persons with lived experience of both receiving and providing care, we took the view that the phrase "wider community" lacked precise or established legal definition and that it would be preferable to implement the spirit of the recommendation by reference to care both within and outside the home and family, using language that is already in the Constitution but expanding our recognition of care. We were also mindful of the need to ensure that we did not set up any inadvertent hierarchy of rights. Recognising the rights of the carer, as we know from constitutional experience, could have set up a hierarchy and could have meant for example that those receiving care would have their rights in some way diminished or made inferior. We were careful, therefore, not to use "care" as a verb, rather, to use "care" as a noun and as a concept. We took submissions on this from many of those with lived experience of receiving and providing care.

The text we proposed, which we are using again in this amendment, also provides for the State to take reasonable measures to support care. We were mindful here of ensuring respect for the separation of powers to ensure we were not tying the hands of the Executive or placing any undue burden or any undue restriction on decision-making about allocation of resources by the Government or indeed by legislators. The phrase, "take reasonable measures to support care", was, we believed, an appropriate phrase to use that would have a meaningful recognition of care but would leave to the Executive the ultimate decision of the measures to take and would leave the courts of course with an overarching role. That was the most effective wording we could have used. We were mindful of considering Article 42 on education where there is reference to "reasonable aid". We know that language like "endeavour to give aid" is used in other constitutional articles.

As I expressed on Second Stage, we in the Labour Party and many of us on the committee were disappointed that the Government's proposed amendment falls short of the care proposal we made in two particular ways. The first is that the definition of "care" is less expansive and more restrictive. The Government's definition 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. The Minister and I have spoken about this previously. This refers to family with a small "f" and, therefore, would have a different and, presumably, more expansive definition than the definition of "family" which is capitalised earlier, in Article 41.1. The Minister is nodding. He might want to refer to that in his response.

That is the first way in which the proposed text on care is more restrictive. It is the first way in which our amendment would differ from the Government's proposal, albeit, as I stress, we are all looking to do the same thing which is to ensure a meaningful recognition of care. We proposed that care within and outside the home and family would be recognised.

The second way in which the Government's definition has fallen short of the citizens' assembly and the Oireachtas committee's definition is that the Government is proposing language that refers to the State as "striving to support such provision", whereas we had said, "the State shall therefore take reasonable measures to support care." Stronger language is again used in our text. I take the point made by the Minister on Second Stage where he said there is a strong obligation in his proposed Article 42B where the State is obliged to strive to support such provision. However, it is still not as strong as "shall take reasonable measures to support care".

We have two questions. Why is the wording so different? Why is care so confined to "care provided by members of the family to one another by reason of the bonds that exist among them"? Why is that language of "strive" less strong than the language of "taking reasonable measures to support"? The first question relates to why the language is different.

Second, the Government amendment is being put and framed as enabling a progressive realisation of stronger support for care both within and outside the home, I presume. If that is the case, how is the Government proposing to provide for that progressive realisation? What are the measures the Government will propose outside of the Constitution to support care? What are the reasonable measures that the Government is proposing through legislation or through policy that will provide better valuing of, and better recognition for, care than is currently in place in Ireland? I am mindful that the citizens' assembly report placed immense value on care. It made important recommendations on how State supports for carers and for those receiving care can be strengthened. In the joint committee's report, we proposed an action plan for the Government with a timeframe as to how the citizens' assembly recommendations could be implemented to provide, for example, for much stronger provision of childcare; for much stronger provision of care for disabled persons; care that would also recognise agency and enable independent living; care for older persons; and better provision, pay and conditions for carers. The Government is falling short in so many ways. This is not Second Stage but we all are aware that carers are really the unsung heroes. They worked through Covid-19 and it became particularly evident then. We know that carers are unsung heroes and that those receiving care also require stronger support and stronger rights than is currently the case. We might think of the enormously long waiting lists that so many children are still experiencing in waiting for diagnoses, treatments and assessments. I visited a school in Sandymount before Christmas and saw the poor conditions that children there who have significant needs are enduring. These are the ways in which we are failing in care provision currently. It is in that context that we are going to have this debate in the run-up to the referendum.

It is important that we explore the wording the Government is proposing. Why is the Government proposing this particular wording? Why is it departing from the stronger wording from the citizens' assembly and from our committee? Crucially, what are the additional supports that the Government is proposing to give for care that we can hear a commitment on and that will enable us to campaign for the referendum as an incremental step towards a strong vision of care? In the Labour Party we have a strong vision about care, State support and State provision of care, and a Niamh Bhreathnach moment on childcare to guarantee every child in Ireland a preschool place in the same way we guarantee every child a primary and secondary school place. That is the sort of strong message and strong vision that could really underpin a referendum debate on amending Article 41.2.

I want to finish by acknowledging again the National Women's Council, Family Carers Ireland, One Family, Treoir, and other organisations that have already come out and said they will be supporting this referendum. However, some have expressed concerns about weakness of language. I am thinking of, the free legal advice centres, FLAC, for example, that have expressed concern about disabled persons under the Government's provision being confined to having constitutionally recognised care just within a family that could weaken their independence and agency. That is an issue that will be raised.

I am raising these questions constructively. We are putting forward this amendment to reflect the wording our committee recommended. I am conscious that there is also a process difference. We recommended a replacement of Article 4.2 and I am interested as to why Government has proposed instead of deletion Article 41.2, the creation or insertion of a new Article 42(b) but that is much more of a technical point around the process. Our key questions are why the wording is so different and the care definition so much less expansive, and what the Government's proposals on care are that will enable us to see this as an incremental step towards a much stronger protection for care across Ireland.

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