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Thursday 30 November 2023 Dublin: 3°C
Bunreacht na hÉireann

What to do with Article 41.2? 'It hasn't actually contributed anything. It's never been a help'

It has no legal significance and the idea of changing it has been kicking around for almost 30 years – but it’s still unclear what’s going to happen to the Constitution’s most contentious article.

OVER ARTICLE 41 of the Constitution, labelled simply ‘The Family’, lies the long shadow of John Charles McQuaid.

In 1937, the influential priest – then a school headmaster but soon to be Archbishop of Dublin – was helping Éamon de Valera write parts of what became Bunreacht na hÉireann. Among his most significant contributions was to Article 41.2, which says (in English):

  1. In particular, 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.
  2. 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.

Dr Laura Cahillane of the University of Limerick writes that “while Fr McQuaid’s involvement in the drafting of the Constitution has sometimes been overstated”, the specific language of women’s “life within the home” appears in a draft he wrote in February 1937.

The provision was controversial even in the 1930s and now sits uneasily alongside Article 41’s same-sex marriage guarantee, inserted after the 2015 referendum. The Irish Human Rights and Equality Commission says that the text “continues to perpetuate stereotypical attitudes towards the role of women in Irish society”, while the National Women’s Council calls it “sexist and outdated”.

Several successive governments have suggested a referendum on Article 41.2, reflecting a general consensus that the language doesn’t reflect 21st century values. But it has never come to pass – largely because there’s never been an equivalent consensus on what to put to voters.

Ivana Bacik, who chairs a special committee of TDs and Senators considering Article 41.2 and other gender equality issues, says it’s time to stop kicking McQuaid’s can down the road.

“We’ve had numerous reports on this”, Bacik tells The Journal. “What we want to see in the lifetime of this government is the referendum being held”.

But almost 30 years after the first report calling for reform, what exactly people would be voting on in any referendum is still undecided.

What legal effect does Article 41.2 have?

Unlike other parts of the Constitution, Article 41.2 has essentially no legal significance. It doesn’t provide a legal basis for discrimination against women, and attempts to rely on it in court to help stay-at-home mums have invariably failed.

In 1989, for example, a housewife separating from her husband argued that her work within the family home entitled her to a share of the property, whereas under Irish law at the time she would get nothing. While the High Court’s Mr Justice Robert Barr initially ruled in her favour, a unanimous Supreme Court promptly slapped him down.

In 2001, one Supreme Court judge did say “there is no doubt that in an appropriate case the mother might be able to claim breaches of constitutional duties towards her under Articles 41.2.1° and 41.2.2”. In practice though, no such case has ever come along.

“It’s not doing anything, really,” law lecturer Cahillane says. “Apart from being a bit insulting”.

So if a referendum vote simply deleted Article 41.2 altogether, there would be no difference to the constitutional rights of women as the courts currently interpret them. In 2018, the last government proposed a referendum to do just that.

“Sometimes people are worried that if we delete it, women or carers will lose something; that having it in there has contributed to reforms which have taken place in recent years”, Cahillane says. “But that is actually a completely misguided opinion, because Article 41.2 hasn’t actually contributed to anything. It’s never been a help”.

“Deleting it is not going to be a backward step in any way”.

Why don’t we just vote to remove it, then?

Some people think that simple deletion would be a missed opportunity. Instead of scrubbing it from the Constitution, the wording could be changed to talk about the value of work within the home – unpaid caring for elderly or disabled relatives, for example – in a gender neutral way.

Orla O’Connor of the National Women’s Council says “if a simple deletion of Article 41.2 is put to the people, we are only offering the option of removing an old-fashioned definition of the home and women’s role in society, and we are missing this unique opportunity to express the positive contribution of equality in the home, care and work of all kinds”.

Family Carers Ireland supports “rewording Article 41.2 to make it gender neutral and to ensure that the work of family carers is recognised and valued”.

The question then becomes whether an amended Article 41.2 would be worded so as to remain legally meaningless or to become something that women and carers could rely on in court. As the Oireachtas Justice Committee put it in a December 2018 report, the choice is between “symbolic recognition v concrete socio-economic rights”. The committee couldn’t make up its mind.

Governments are traditionally reluctant to put “concrete socio-economic rights” in the Constitution because it means the courts could order the State to spend money providing services or benefits that it hadn’t budgeted for, potentially at the expense of manifesto commitments. Financial decisions are generally for ministers, not judges.

Where are we at now?

The latest report on Article 41.2 reform was by the Citizens’ Assembly on gender equality in April 2021. The Assembly went for amendment rather than deletion, and for enforceable rights rather than symbolism. Its recommendation was:

“Article 41.2 of the Constitution should be deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.”

Cahillane says a provision along those lines would leave it up to the courts to decide whether the government of the day is doing enough to comply with the new Article 41.2 or would be required to introduce new measures, such as legislation or higher welfare payments to support carers. It would be quite radical in terms of Irish constitutional law, but designed to be ambiguous enough that the government would feel comfortable putting it to a referendum.

The Citizens’ Assembly report is now being considered by (naturally) another committee. That’s the one chaired by Labour’s Ivana Bacik. It’s due to report within nine months of its first public meeting, which Bacik hopes will be in March 2022.

“We want to achieve tangible and effective steps towards greater gender equality in Irish society,” the Dublin Bay South TD tells The Journal. “The Citizens’ Assembly, through its 45 recommendations, has given us a blueprint for change for a more equal society”.

The proposal on Article 41.2 is “part of the package of measures necessary. We cannot stand over retention of this highly gendered, really sexist text in our Constitution while we’re moving towards a more equal society generally”.

The committee doesn’t have to follow the Citizens’ Assembly recommendation on women in the home. Its 13 members – ten women, three men – could yet end up split on which way to go, like the Justice Committee in 2018.

Bacik says “the Assembly has given us a clear indication of how they think it should be changed. We’ll just have to look at it and see if we follow that and make a recommendation to government”.

“There’s a consensus around the need for change. It’s just how the change is framed that we have to finalise”.

That includes examining concerns about tying the hands of the state in terms of spending decisions: “Any change to the text of the Constitution has implications. That’s one of the issues we’re going to have to look at: to what degree is recognition of care enforceable and what are the consequences of that? One of the things we will be looking at is cost and benefits”.

The risk is that there’s no consensus on the right wording, or a recommendation that the government doesn’t go for. There’s no guarantee of action: the issue has been kicking around committees for almost 30 years, from the Commission on the Status of Women in 1993 through the Constitutional Convention of 2013 to the Citizens’ Assembly in 2021.

But it feels right that while the original Article 41.2 was shaped by men like McQuaid, its fate is now in the hands of women like Bacik.

This work is co-funded by Journal Media and a grant programme from the European Parliament. Any opinions or conclusions expressed in this work is the author’s own. The European Parliament has no involvement in nor responsibility for the editorial content published by the project. For more information, see here.

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