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

I thank the Senators for their amendments and for their detailed consideration of the Bill before them today. Before I start, I would like to follow on from comments made by Senator Seery Kearney in terms of recognising Selina Bonnie. She was a colleague of mine and I regularly received a little text every now and then, usually prodding me on where the assisted human reproduction Bill was but also on a range of other issues. As it is an extremely difficult time for Robert, her daughter and all of her family, I am glad the Senator recognised her and would like to take the opportunity to do so also.

I will speak to the amendments first. All of the amendments relate to the section of the Bill concerned with the wording of the new Article 42B. In essence, these amendments can be divided into two parts, the first of which being that the Constitution should recognise care provided not only by families but by the wider community. As there were nine months of discussion at the interdepartmental group, at the Cabinet subcommittee about these proposals, the concept of unpaid care beyond the family was given significant consideration by the Government. The Government does recognise those who volunteer their time to help others in their community. They undertake an important social good. However, it is important that we recognise that if we extend the constitutional recognition of care to community volunteers as well, that can have very significant consequences. There was a concern about the unintended consequences, particularly when we are dealing with the Constitution, dealing with a document that paints in those very broad brushstrokes.

Yesterday, I spoke to the issue of carers and a concern raised by some that we were not explicitly recognising carers within the context. I will come back to that later when I speak about why we chose the word "care". As I said yesterday, carers are not named explicitly within the scope of Article 42B but supports for family care often include paid services, such as personal assistance hours, and as such in recognising and placing that onus on the State to support family care, the State will also have to support that robust care infrastructure around that. Through that express obligation on the State to support family care, there is a recognition of the importance of investing in those services, services that we all recognise are not getting the level of support right now.

With regard to the second part of the proposed new article and the amendments concerning that, which relate to the scale of the obligation placed on the State and the words that explain the extent of that particular obligation, we all know that any amendment to the Constitution is significant and what we propose here places an express obligation on the State to support care within the family. Of course, the courts - as the judicial arm of the State - will have the role of interpreting that obligation and applying it in cases. Cases will follow from this where family care is an issue.

There is an issue about the use of the term "shall strive" and what it means. That phrase was picked deliberately because it most accurately reflects the clear policy objective of the Government, that is, an objective to support family care but also give the Oireachtas some latitude in how it chooses to do so. 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 "strive" is done so deliberately because it recognises this will be achieved on a progressive basis. It will not be achieved in one budget or in one electoral cycle. It will take time to fully achieve these objectives. That overarching aim of serious and sustained support for care, in all its myriad circumstances, must be put into the Constitution and it allows for a building and improvement of the services and supports. It is important to say the phrase is "shall strive" so "shall" is a mandatory word. It is a clear direction in terms of the level of obligation. We should contrast that to the term "endeavour to ensure" that is currently used in Article 41.2 and I argue that "shall strive" is significantly more ambitious. Article 41.2, "shall ...endeavour", has not delivered anything, ever, to any woman or mother. It has delivered nothing. Senator McDowell asked about the new article, Article 42B, "Where is the State's obligation?". It is clearly expressed there. There is a clear obligation on the State. It is a justiciable obligation on the State and it will be tried and tested in the courts.

I am sorry that Senator Craughwell is not here right now but he listed many appalling circumstances where the State had forced individuals to litigation to vindicate their rights but had there been an obligation on the State to strive to better support care, we could have had different outcomes in many of those cases because of placing a constitutional obligation on the State in there. It is particularly important we recognise that when the discussions took place on what we would do, were we to remove the existing text of Article 41.2, there were options. One option considered in 2018 was straight deletion. Senator Higgins spoke about that earlier on. There was the idea of placing the recognition of care and the onus on the State in Article 45, the directive principles mentioned by Senator McDowell. This is non-justiciable. If we had not wanted to place an obligation on the State, we could have put it there. We could have recognised care but not put the onus in as well. The Government did not do any of those things. It clearly put in the recognition of care and it placed a clear obligation on the State with regard to "striving".

Senator Seery Kearney is right and the difficulty-----