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

I thank all the Deputies both for their amendments and their detailed contributions to this important debate. As we know, the current proposal in the Bill would delete the existing wording of Article 41.2 in its entirety and insert a brand-new article into the Constitution, Article 42B, which would recognise the role played by the family in terms of support and care provided on an unpaid, voluntary basis. It would also stipulate that the State shall strive to support such care.

The new provision encompasses all family members, immediate and extended, and recognises the importance of the mutual support and care they provide to one another which is fundamental to our society. The proposed amendment will oblige the State to strive to support the provision of care within the family. It is a significant step in terms of the obligation being placed on the State. Its intention is to reflect the often constant, intensive and durable nature of care provided by families. The obligation is described as “shall strive to support such care”. "Shall" is the strongest legal direction, demonstrating the significance of the State’s commitment. As support for family care will often include paid services, such as respite care, day services and home-care services, the amendment reflects that strong commitment by the State to supporting a robust care infrastructure. These are the vital supports that allow care within the family to actually happen. Through this express obligation on the State to support family care, there is a recognition of the importance of investing in the professional care system which wraps around and supports families.

The Government is committed to ensuring that family care is recognised as an important societal value and to enshrining it in our Constitution as such. This is a significant step and should not be underestimated. The Government recognises that family care often means that a member of the family must step back from full-time work or from the workplace altogether. There are supports in place to help families manage the care needs of their loved ones, including family leave for parents and carer's leave. These have been extended during the period of this Government but, undoubtedly, we need to do more. This Government needs to do more and, importantly, future governments need to do more as well.

A step back from the workplace in order to undertake caring activities has financial implications. There are some existing supports, including the carer's allowance. The Minister for Social Protection, Deputy Humphreys, is following up on a key budget commitment in budget 2024 to increase the income disregard for the carer's allowance. This will allow more individuals and couples to access this particular allowance.

I appreciate Deputies are supporting the Government’s endeavour to recognise the importance of unpaid care in the family and that a number of the amendments put forward seek to achieve that. I understand the amendment put forward by Deputy Mattie McGrath, for example, draws on both the existing wording of Article 41.2. I also welcome the fact that Deputies have included in their amendments the new article and new language proposed by the Government. I argue, however, as I have already set out, that the existing proposal carries a significant express obligation on the Government to support family care.

The new language being put forward by the Government does not limit the obligation to mothers in the home. This is important because it means it can include the immediate family as well as members of the extended family who care for relatives with whom they do not live full time. This is a recognition that the obligation to provide support is greatly expanded in scope.

Amending the Constitution in this way is significant. It places an express obligation on the State to strive to support care within the family. The courts, as the judicial arm of the State, will be required to interpret and apply this article, as appropriate, in cases where the provision of support for family care is an issue. With respect, I disagree in the strongest way possible with the suggestion made by some Deputies that what is proposed here is symbolic. It is not. It is legally meaningful. The intention is to place an onus on the State, and on this Government and all future governments, to see the progressive realisation of support for family care, building on existing supports where it is necessary. It has a legal meaning but because it has a values meaning as well, it will also represent a strong statement by the Irish nation. If it is passed, Ireland will be one of the first countries globally to enshrine the value of care in its constitution.

With regard to the amendments that seek to expand the proposal beyond family care, I acknowledge the role care workers play in providing care. They provide critical support to unpaid carers. While they are not explicitly addressed in the text of the amendment, as support for family care will often include family services, such as respite care, day services and home-care services and supports, the amendment reflects the strong commitment by the State to supporting those mechanisms that help family carers to do their jobs. It is through that express obligation on the State to support family care that there is a recognition of the importance of investing in professional care systems which wrap around and support those families. Family carers are dependent on respite and day-care services. As such, these services are vital in supporting family care and form part of what is supported in the proposed amendment.

Going beyond this, if we were to identify and enshrine the rights of one particular cohort of workers and, in particular, if we were to enshrine rights around private sector employers and private commercial enterprises in the Constitution, that would be problematic. The Government has recently achieved significant advances for one group of care workers, namely, childcare professionals, without a constitutional amendment. It has been achieved through the mechanisms of an employment regulation order and additional Government funding. In doing so, we are meeting one of the points the citizens' assembly rightly argued the Government needed to achieve.

A number of the amendments speak to the use of the words "reasonable measures" or "provide the necessary resources". Neither the wording "reasonable measures" nor the wording "strive" in and of themselves confer an absolute constitutional right. The proposed Article 42B does not, and was never intended to, insert an entitlement to a list of specific supports or measures of care. In this, the amendment does not limit the role of the Oireachtas to pursue what its Members, elected at election time, have decided are the specific forms of care the State needs to support. However, Article 42B 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. Ultimately, that will be determined by the courts.

To respond to Deputy McNamara, who has just left the Chamber, on the wording, in particular the definition of "strive", the phrase "shall strive" was considered to most accurately reflect the objective of supporting family care while also allowing the Oireachtas the scope to make laws to do that. 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 use of the word "shall", the strongest legal direction, demonstrates the significance of the State's legal commitment. The word "strive" includes a connotation that this effort will take place over time. There is a progressive element to this, one that will seek to achieve continuous improvement of the level of care provided. It is useful to look at this because, as we know, the Irish language text of the Constitution has primacy. The Irish word for "strive" proposed in the amendment is "dréim". That is associated with the Irish word "dréimire" for "ladder", which again has the meaning of climbing, ascending or improving. The term "dréim" does not currently appear in the Constitution and, as such, what we are introducing is new wording. It represents a signal of the intention of the Government to make serious and sustained efforts to support family care, recognising that this will be achieved in a progressive manner.

With regard to some of the other questions raised, Deputies Bríd Smith and Paul Murphy were extremely critical of the decision to address Article 41.2 and care in the same amendment. I am surprised to hear that. When this issue was debated previously, as it was in 2018, the question was whether to "delete" or "delete and replace". My reading of the reports of the citizens' assembly and joint committee was that these were seen as a package. It was to remove Article 41.2 and replace it with whatever it was being replaced with as a single issue. I expect the Deputies will disagree with that.

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