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Referendum may be needed to allow maternity leave for politicians, Taoiseach says

Many legal experts, however, believe that more practical solutions can be found.

Helen McEntee
Helen McEntee
Image: Julien Behal via RollingNews.ie

A REFERENDUM MAY be required to allow female politicians to take maternity leave, the Taoiseach has said.

Justice Minister Helen McEntee has recently announced she is expecting her first child, but there is currently no legal provision to allow her to take maternity leave.

Currently, politicians must provide a sick note if they wish to take time off to spend time with their newborn children.

Micheal Martin said it did not reflect well on a modern democracy that maternity leave could not be provided for female politicians.

Speaking to reporters before Christmas, he said: “It may very well require a referendum and perhaps should.

“There are issues there of a constitutional nature in terms of a member of the house. For example, as a TD or senator and as a minister.

“And I think it doesn’t reflect well on a modern democracy that we cannot facilitate a woman going on maternity leave in ministerial office.

“I think that’s something we should rectify. The precise mechanisms to rectify that we are still examining.”

Many legal experts, however, believe there is no constitutional impediment regarding the issue and that more practical solutions can be found. 

Speaking to TheJournal.ie earlier this month, 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”. 

Hogan and Dr Jennifer Kavanagh, an expert in constitutional law and a lecturer in Waterford Institute of Technology, have both 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″.

Interim minister

Martin said the government has not yet decided if an interim minister will be appointed to the justice portfolio while McEntee is on leave.

He said: “We will have to do some interim measures, I’m not talking just in the context of Helen McEntee, because Helen herself would want us to do it generally as a basic, necessary modern reform of our parliamentary democracy and also to make life, the quality of life, better for all concerned, including paternity leaves as well.

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“So it’s not good enough and we need to change it. My view is that having examined all the details, we should change it at different levels or stages.

“I mean we have to do whatever is required in Helen’s context within the framework of the constitution and so on.”

The Taoiseach said discussions with the Attorney General are ongoing as to whether a referendum will be required.

Includes reporting by Press Association and Lauren Boland 

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