Alice-Mary Higgins (Independent) | Oireachtas source

To follow up on a point made by an earlier speaker, we need to do this but the wording should be better. We have been waiting for it for a long time and it has been coming for a long time. I started campaigning for this change in the Constitution long before I entered the Oireachtas. It has been campaigned for and pushed for a very long time. During that journey, the understanding of what we want to have in the Constitution has been evolving. There was a conversation about straight deletion. I always favoured having a recognition of care. We should bear in mind that it was not just the citizens’ assembly but also the constitutional convention that made very clear that it wanted to see care properly recognised in the Constitution. We have an increased understanding, which has been slow in dawning, of the receipt as well as the provision of care. There is also a recognition that care in itself is an inadequate word in terms of the autonomy, independence and rights of persons with a disability in the State. It is a pity we are only moving a small step forward when we should be taking a leap forward.

The reason I believe we need to change the clauses in the Constitution is that they are doing, and have done, much harm in terms of equality in the State. The context of the 1937 Constitution, as I mentioned previously, was a roll-back of women’s rights. It is not simply that this was how it was at the time. The Constitution was a conscious shift away from the vision of equality we had in the Proclamation. It was no coincidence that many of those who fought and campaigned for independence opposed the 1937 Constitution. Cumann na mBan stated that the Constitution, particularly these clauses, did not satisfy the aspiration of the Irish people set out in the Proclamation. Louie Bennett from the Irish Women Workers Union said: “Abolish poverty ... and the need to protect mothers disappears." This again points to the deep impact of austerity and poverty that has so often been visited upon those who care and those who receive and need care. Kathleen Lynn talked about restoring the Republic in a meaningful way. These are persons who were part of shaping the State but in the Constitution they were being told that the way for them to contribute was by their life in the home. There was a very clear attempt to put women back into the home and to have that as the way they contribute. That was to be women's role and where they belonged. The State relied on them as of course the State has always relied on those who deliver care. It was very much narrowly placing women in that vision at the time and that vision was one of only women in the home and women only in the home. In practice, people have lived lots of different lives - true lives - and women have had all kinds of achievements, have worked and so forth, but flowing from these provisions was a mandate for some of the discriminatory measures.

The Constitution was framed in the same decade as the measures to remove women from juries because they should not be on juries but at home and to remove them from the workplace when they got married because they had to serve their function within the family in the home. These were all decisions the State took and signals it sent. The impact is still felt because they affect women now in their pensions and in the State's failure to recognise them.

On the idea of the State giving support, which it has consistently failed to do, even under these provisions, in the social policy supports that have a connection to this, there was a very clear exclusion of one-parent families who would not get such supports. A question was asked earlier about woman in the home and one-parent families. The women heading up one-parent households got no recognition in the clause we discussed earlier and no protection of any kind. The State spoke of "endeavouring to ensure" but that did not apply to any families that were not married families and the State fell absolutely short when it came to the idea of endeavouring to ensure to protect and give supports.

That is the context of what we need to remove. This was an opportunity to put something brilliant in place. Instead, we are putting something slightly more inclusive and slightly less discriminatory in place. I am hoping the Minister will convince me it is slightly more effective, through the use of the phrase “strive to support” versus “endeavour to ensure” because that is the test. These are both very interpretable phrases. It will be a similar battle, I imagine, for us to ensure that "strive to support" is interpreted in a strong way. It is still a step forward in that, at least now, striving to support will apply to all families and all those who deliver care within families.

I regret that we are rushing this legislation because these amendments would improve it significantly and would be truer to what the citizens' assembly and committee asked for. Our amendments seek to widen the frame by talking about, as the citizens and the committee did, the wider community. Senator Clonan made this point very well. The State is not abdicating its responsibilities and telling families “Here you are; you deliver care”. Families are giving support to the State and society without there being a recognition that society needs to give support back to those who care and directly to those who rely on care or have a disability. I will come to that later. There was scope for that and our amendments refer to the wider community. We have amendments which reflect the language of the committee by adding the words "within the wider community".The amendment refers to care between members of the family and within the wider community. We do something really important in some of our amendments, however. In our amendments Nos. 2, 5 and 10, we recognise the language the State has used. We take that language of the bonds between them. I wondered about that phrase when I first saw it. However, we take that phrase and say that actually the bonds between us are not just bonds within families. There are bonds within and between us as a community. We believe we should be able to expand the language here and say that "The State recognises that care, between members of a family or community by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall take reasonable measures [or strive] to support ...” or endeavour to ensure, according to which phrase it might be. The key point, however, is that the bonds between us as a community do exist and are crucial. Something like that would address the concern that was raised in terms of private actors and companies. We talk about the bond between us as a community, which is that I, as a citizen, care and have concern for my other fellow citizens and because I share the community with them, it is my wish that our common resources and common public services would be directed to give support in terms of care. It would be stronger. Again, I am saying this in the context that this would be truer to where we need to be.

As it is, we are looking at an amendment that does recognise the care within family and that does commit. I acknowledge that it states "shall strive to support" that care, which is something. However, the wraparound bit about the community that we do collectively and as a State through our public services is kind of in that second commitment. The Minister mentioned, and it was important to say, that there are two parts to this. One part is that recognition and the other part is the responsibilities of the State. It is really important to communicate that there are two pieces to this. We have missed the opportunity of recognising the State's role in that first part, which is recognising that the State gives and is responsible for giving support to our society, as well as receiving support.

We have also missed the opportunity, and we will come to this in some of our other amendments, to be really clear when we say "strive to support" and to put some meat on what we mean by that. We talk, for example, about striving to support in taking reasonable measures, and we have tabled a number of amendments in that regard. We use the phrase "take reasonable measures", which was one of the phrases recommended by the committee, including economic measures. We talk about striving to support such provision and about endeavouring to ensure that such care is supported, including through economic supports. We have another amendment where we add to "strive to support" the phrase "through measures including but not limited to economic measures.” This is fundamental. That reference to "economic" is important. It matters to people. Again, it is not that the State has not fallen short on it in the past. It is important, however, that the Minister indicates to us that the understanding of "strive to support" includes concrete economic measures. The Minister mentioned some in the Second Stage debate. That needs to be part of it if the Minister is supporting this.

If our common good depends, as it does, on care, and if care really is the lifeblood of society and gives that essential support, then the State needs to be clear on how it is not just going to recognise it in a loose way here symbolically but that it will recognise and strive to support it through measures that will include economic measures. That means really looking properly at some of the issues in terms of income supports and pensions in order that those who, for example, deliver care do not find themselves in poverty in later life. It is about ensuring that we have concrete, proper reform because now, of course, if the first referendum is successful, we will be looking at a levelling up for all families to ensure that one-parent families will get proper and full supports rather than a second-tier support through our social protection system. It is to reform our social welfare system in a meaningful way. That is in the economic piece. That is why there are a number of amendments in that regard, namely, amendments Nos. 11, 14 and 16.

The other thing we need to look at in terms of "strive to support" is that idea that if we have not included the language about the community and the bonds between it, and the language proposed by others of inside and outside the home, although I know the Minister argues that the phrasing encompasses that, and if we have not included "the wider community" alongside the family because of the bonds between them, then much is work falling on the phrase "strive to support". That wraparound of the community role and the role of the State and society and community all needs to happen around this referendum and around this constitutional provision if it is not built into it. That is why it is reasonable that the public asks that the Minister shows he is sincere about this by bringing forward a real roadmap. That was our first amendment, which was ruled out of order. We tried to set out the roadmap. The Minister will be aware that the Joint Committee on Gender Equality provided an action plan. I say this again. There is scope to convince the public and make it clear that the Minister is going to follow through on "strive to support" and make it meaningful. One of the ways he can start, however, is by really listing, not just about what has been done in terms of parental leave and so forth in the past but what comes next. Is it going to be, for example, with regard to personal needs assistance? Is it going to be finally delivering long overdue statutory entitlement to home care, for which we have been waiting for decades? Is it going to be around, crucially, and this is an issue I raised yesterday, the ratification?

This comes to the other part of the problem with this provision, which is that the language is narrow and lacks generosity. It goes a little bit wider; it is everybody now. It is not just the women or married women. It lacks generosity in going as far as it should, however, in terms of really improving and strengthening the rights of persons with a disability who, again, are one part of care. We must remember that this provision relates to the care of children and older people. There is a wide spectrum. It is important to remember that. However, a really important and crucial cohort of people who have been frustrated by the failure to have an ambitious wording here are persons with a disability. The fact is that the language is still this provision of "care to" rather than "care between". In our amendments, we prefer and think it would be better to have the language of care between family members and a community, much as we have the bonds between family members and a community. That would do better in terms of ensuring that we really are recognising equally the rights of persons who may be in receipt of care as well as those who are providing care, and that we do not have a sense of an imbalance and that we may have one cohort of persons. The Minister mentioned supporting the families who are delivering care, but we need to be looking directly to the person with a disability and his or her direct rights and autonomy.

As I said, I regret the absence of language we have seen in a constitutional change that Spain is making this week, which commits specifically to work for the social inclusion of persons with a disability and to work for their autonomy. That would be more ambitious language. I certainly will be going on after this referendum to join with others who are campaigning for that kind of language to be added in and specific clauses, as we have seen in Spain, around the rights of persons with a disability to be reflected in the Constitution. In the absence of that ambitious language, however, the Minister needs to point to the other parts of the law and other serious instruments that are and should be available to persons with a disability in respect of vindicating their rights. Ireland has ratified the UN Convention on the Rights of Persons with Disabilities and it now needs to go on to ratify the optional protocol that will ensure that every individual can vindicate his or her rights under the UNCRPD. If the State delivers, promises and gives us a date for the ratification of the optional protocol – we have been waiting a long time for this – we will then at least know that the UNCRPD, as a strong legal instrument that is justiciable by the individual, will be sitting alongside this new constitutional provision and persons with a disability will know that they have something they can use and bring to the courts to vindicate their rights, much as persons who are providing care will be able, I hope, to vindicate their rights, although I hope they do not have to go to the courts to vindicate them in respect of this recognition of care.

I apologise that this is so detailed but there are a number of ways it could be better. I will conclude by recapping. It would be better if the article recognised community, the bonds between us as a community and society, and that care is a responsibility, collectively, both inside and outside the home and family. It would be better if we were assured of what “strive to support" will mean and that it would be stronger than “endeavour to ensure”. I hope the Minister can convince me because “endeavour to ensure” is quite weak in itself. Can the wording be made stronger? It would be better if it specifically spoke about care and not just the provision of care. It would be better if it specified that the measures of support the State will take will specifically include economic measures.

These are all genuine, constructive amendments that have been brought forward in a spirit of wanting this to be the leap forward we need as a society rather than a baby step forward. It is indeed a step forward. It is a step away from something that was designed and had the effect of ensuring and supporting discrimination, not just against women but against men. Bear in mind, when we discussed the mother and baby homes, a number of cases were brought to my attention where a woman died and her husband was encouraged to give the children up because a man should not and could not take on those responsibilities in the home. I know of men who had to battle to keep their children because their role in caring was not recognised and they were not recognised as having that particular life in the home and that particular relationship of care. We have heard from extraordinary male carers as well. This is an improvement because it moves towards recognising that other half of the population, namely, men. It moves towards recognising the other 40% of families that are delivering and involved in care with regard to that wider space rather than the narrow frame it is now. However, it does not go as far as we should go.

Sadly, I feel that because we are only taking a baby step, we will have to point strong arrows as to where the next step will be and the step after that. I ask the Minister to show us how we will move forward after this referendum and around this referendum.