IT WAS REPORTED this morning that the long-awaited referendum to amend the outdated ‘women in the home’ provision of the Constitution will finally be held in March next year.
On seeing the headline, many took to social media to express relief and satisfaction that what has been so long in coming will finally be achieved. However, the devil is in the detail and in this case, the announcement is not quite the victory it seems.
The current Article 41.2 of the Constitution says that ‘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.’
It goes on to provide that ‘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 purpose of the provision was to acknowledge the importance of care in the home – then provided by mothers – and also to try to achieve a position whereby mothers could remain in the home and would not be forced to work due to financial reasons.
However, the problem with this is that the policy underlying the provision was never pursued – women were never supported to provide care in the home. Worse again, the provision was often used to bolster arguments that a woman’s place was in the home and so policies which excluded women from work were seen as acceptable.
No one ever took a case on the exact issue in the provision – being forced to work rather than provide care at home – but the only time an attempt was made to derive an economic benefit from the provision, this was unanimously and comprehensively rebuffed by the Supreme Court.
The possibly well-meaning though paternalistic provision has now become outdated and does not reflect the Ireland of today. So many ask; why haven’t we just removed it?
Unfortunately, while there seems to be general agreement that it should be removed, there has never been a consensus on whether to replace it or on what to replace it with. In 2018, a referendum was proposed to simply remove the Article and not replace it. However, care organisations objected to the removal of the acknowledgement of the value of care – which they argued is still of benefit, even if only symbolically.
This issue has now been considered by many different bodies and resulted in many reform recommendations. The most recent consideration was by the Citizens’ Assembly in 2021. Having carefully deliberated and heard lots of evidence from various organisations, they decided that they wanted to replace the Article with a gender-neutral alternative but not one that would be symbolic only – they wanted it to have meaning.
The wording that was proposed was that the State would be obliged to take reasonable measures to support care. This draws on similar wording from the South African Constitution and the beauty of this wording is that it walks a fine line between providing something meaningful in law while not going so far as to impinge on the executive power of the purse.
This wording would mean that the State could argue that it is already taking reasonable measures to support care, with the various legislative supports that are provided. But it would also allow for a carer to take a case to court arguing that what is provided is not reasonable – then it becomes a question for the courts to decide.
The court would not tell the State what to do or how much to spend – just whether it is reasonable and if not, the State would be required to address the deficiency.
The Joint Oireachtas Committee, set up to consider the recommendations of the Assembly, also endorsed this wording. However, the reports of the wording that has apparently been agreed by the Cabinet appear to indicate that rather than a substantive reform, the Government has opted for a cosmetic change – removing the paternalistic language, widening the reference to care but not providing any legal obligation on the State to support care. Instead, the wording which is being reported is that the State will ‘strive to support care’, which is essentially exactly the same as the current ‘endeavour to support’ wording which presently exists in the provision.
Of course, we will have to wait until the official wording is published but if these reports are accurate, then this is a huge disappointment and it raises questions about the time, effort and expense of the Citizen Assembly process, as well as the inevitable Oireachtas Committee process that follows if the recommendations are simply going to be ignored.
Undoubtedly, it will still be presented as a proposal which follows the recommendations in that it will remove the outdated references from the Constitution and bring the language up-to-date – and there is still a value in that – but considering the potential for actual reform which could provide meaningful change and send a strong message about the value of care in society, this reported wording falls far short.
Dr Laura Cahillane is a lecturer in Constitutional law at the University of Limerick.
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