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Does the constitution need to be changed to allow TDs to take maternity leave?

The Taoiseach has said that constitutional change could be needed to provide for TD maternity leave, but constitutional experts say otherwise.

Image: Shutterstock/Robert Keane

THE QUESTION OF maternity leave for TDs and Senators has resurfaced as one that needs to be answered, but how it can – or should – be addressed remains a contentious issue. 

After Minister for Justice Helen McEntee announced her pregnancy last weekend, concerns were raised about the lack of leave for new parents in the Houses of the Oireachtas. 

Currently, Ireland does not have legal provisions for TDs to take maternity leave. 

Reports this week indicated the government believes a constitutional change – only possible after a referendum – is required to allow deputies take time away from their duties. But many legal experts believe there is no constitutional impediment and more practical solutions can be found. 

The debate this week unfolded after Taoiseach Michéal Martin reportedly told a parliamentary party meeting that constitutional change would need to be considered to allow members of the Houses of the Oireachtas take maternity or paternity leave. 

The government’s position is not a new one. Similar arguments were made in 2018 and 2013 when a bill – actually introduced by Fianna Fáil in opposition – was debated in the Oireachtas.

At that time, government members were told that any law introducing maternity leave for TDs might be unconstitutional because it would operate in opposition to the requirement for deputies to be available to attend the Dáil at all times.

However, a number of constitutional lawyers and experts have indicated that they do not believe a change to the constitution is necessary. 

Cabinet

The current conversation differs to previous iterations as McEntee is the first minister in Ireland to announce a pregnancy while serving in Cabinet.

Fianna Fáil TD Máire Geoghegan-Quinn, who was the second female minister after Constance Markievicz, gave birth while serving in government as a junior minister in the late 1970s. (As a junior minister, she didn’t have a seat at Cabinet.)

In 2018, the Maternity Protection (Members of the Houses of the Oireachtas) Bill raised the issue of maternity leave for TDs and Senators.

However, the bill lapsed with the dissolution of the last government in January. 

Speaking to TheJournal.ie, a spokesperson for the Office of An Taoiseach said that the government “takes very seriously the question of gender balance in politics and examining the barriers to participation by women, including family and caring responsibilities”.

“Concerns around work-life balance can act as a barrier to women and men with young children participating in politics, and the availability of family leave to Members of the Oireachtas could play an important role in addressing this,” the spokesperson said.

“The specific question of maternity leave for members of the Oireachtas is for the Oireachtas itself,” they said.

Speaking to TheJournal.ie, Ph.D researcher at the European University Institute and LL.M. graduate from Yale Law School Hilary Hogan argued that arrangements could be made to allow for TDs to take maternity leave without the need for a constitutional referendum.

Hogan said that the issue as it has been presented “doesn’t appear to be about remuneration; rather the real problem seems to be around the formal leave of absence by a deputy, and the knock-on impact on the practices and procedures of the Oireachtas”. 

Currently, members of the Oireachtas, which includes TDs in the Dáil and Senators in the Seanad, are constitutional officers and paid from a central fund whether or not they are present in person for formal votes.

Physical presence

Dr Jennifer Kavanagh, an expert in constitutional law and a lecturer in Waterford Institute of Technology, told TheJournal.ie that a key way the constitution has been raised in the question of maternity leave is through Article 15.11.

The article says that “all questions in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present and voting other than the Chairman or presiding member”.

“That refers to members present and voting, and that’s the section that caused all the problems at the start of the pandemic when we faced the question of could we do the Dáil over Zoom,” Kavanagh said, adding that the article was interpreted too narrowly earlier this year.

She said that issue is “also filtering in to leave provisions for TDs for maternity or paternal leave”. 

Rights under the constitution

Both Kavanagh and Hogan have cited articles of the constitution that would support the implementation of maternity leave for TDs or Senators.

“If you look at Article 16.3, there shouldn’t be any disability placed on members on the grounds of sex,” Kavanagh said.

“If you don’t have maternity provisions, that’s indirectly telling women ‘you can work here, but there’s no facilitation for that’,” she said.

“If you look at Article 40, there is a right to equality, but with due regard to differences, be it social, moral, physical, and that is the reason why maternity leave is constitutional.”

Similarly, Hogan agreed that the “suggestion that a Member of the Oireachtas taking maternity leave is per se unconstitutional is utterly at odds with the guarantee of equality in Art. 40.1 and the powerful protections for the family in Art. 41″.

Alternative solutions

Alternative means of procuring maternity leave for Oireachtas members have been suggested, particularly pairing.

Pairing is a practice used in the Dáil where two TDs from two opposing parties agree not to vote in a particular division.

It is generally used to facilitate one or more TDs needing to be elsewhere at the time of a vote.

Social Democrats TD Holly Cairns has offered to be a pair for McEntee, which would mean that Cairns would sit out of votes that the minister would miss while on leave.

Kavanagh believes that pairing is the best way for maternity leave to be handled.

Calling for a referendum would be the “constitutional version of getting a sledgehammer to crack a nut that is so small you need a Large Hadron Collider to see the thing”, se said.

“It’s putting it at such a level that isn’t really necessary.”

However, Kavanagh said that formal pairing “needs to be written in on the standing orders that for leave like this there is that ability for long-term pair to be done and be respected, because in the House of Commons, they had an issue where pairing wasn’t respected and caused far more problems at the end of the day”.

Hogan also said that there are “practical solutions to this issue that do not require major constitutional reform”.

“One proposal is that of remote sittings of the Oireachtas. This is what Deputy Jennifer Carroll McNeill proposes in her new Bill, although she seems to believe such an arrangement would require a referendum,” Hogan said.

The bill presented by Carroll McNeill to the Dáil on 8 December calls for a constitutional amendment that would provide for remote voting, which the TD said would be useful in situations such as during the pandemic or other emergencies; as a provision for members who become ill or immunocompromised; and for members who have a child through birth or adoption.

Hogan, who has previously argued that there is no constitutional impediment to remote voting, said that it would have the benefit of “facilitating members on parental leave who are required to cast votes, without the need to be physically present (and it is worth remembering that the vast majority of votes in the Oireachtas take place without a full complement of Members)”.

“This would be in addition to the regular practice of pairing, whereby Members agree to abstain from voting to cancel out the vote of an absent Member,” Hogan said.

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“The Oireachtas is empowered, under Article 15 of the Constitution, to set its own rules on parliamentary standing orders and procedures, which the Courts have largely agreed are non-justiciable – meaning the Court cannot review them (except in the rare circumstances where they would affect the personal rights of citizens).”

This is the article that would allow a standing order to be introduced to formalise pairings for maternity leave, as Kavanagh suggested. 

“In 2018, then-Minister for State, David Stanton queried whether a Member on leave could table parliamentary questions, for example. But that is precisely the kind of issue which is within the power of the Oireachtas to establish,” Hogan said.

“Finally, if the Government remains in doubt, Article 26 allows a Bill to be referred to the Supreme Court for an assessment of its constitutionality,” she said. 

Hold the horses

Kavanagh and Hogan have both said that changing the constitution – and calling the referendum that would need to happen to achieve that – would be a disproportionate response to solving the issue.

“With some imagination, it is possible to make arrangements for Members of the Oireachtas who wish to take parental leave without reaching for the nuclear option of a referendum,” Hogan said. 

Kavanagh said that there is a “tendency going on at the moment to look for the most dramatic way to solve a problem when small incremental changes will actually get you to the end result where you need to be, as opposed to changing everything”.

She said that it is important to look at all the articles in the constitution as a whole to understand their relevance to a particular issue.

“You have to take them all into together as a spectrum, and if you look at the membership of the Dáil and the right to equality, there shouldn’t be a reason why the constitution has to get dragged into this when they can make provision for this through standing orders and still allow to be in line with that members present and voting aspect,” Kavanagh said. 

Hogan also made the point that, currently, it is unclear why the government believes constitutional change would be necessary.

“The Government has regularly claimed that it cannot publish the legal advice it receives from its legal advisor, the Attorney General, although several commentators have pointed out that it has done so in the past, and there is nothing to stop it doing so on a regular basis. Without seeing the advice, we can only surmise why there seems to be a problem.”

Kavanagh and Hogan’s legal opinions are echoed by a number of other legal professionals who have voiced that constitutional change would not be needed to provide for maternity leave for TDs.

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