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Opinion: If there’s a will, there’s a way: provision of maternity leave for TDs is not insurmountable

Professor Sarah Childs from the University of London and Dr Fiona Buckley of UCC say we should look to the UK changes for MPs and maternity leave and get on with necessary reform here.

Prof Sarah Childs & Dr Fiona Buckley

FEW PARLIAMENTS IN the world are gender-balanced; women’s under-representation relative to their proportion in the population remains the norm. Globally, the average figure for women’s political representation is 25.2%.

Reviewing the gender profile of all TDs elected to Dáil Éireann between 1918 and 2020 reminds us of the sheer gender imbalance of the chamber. Of 1341 people elected, just 130 (9.7%) have been women.

Currently, 22.5% of Dáil seats are held by women. Although nowhere near gender parity, this proportion is increasing. Since the first rollout of legislative gender quotas in 2016, there has been a 44% increase in the number of women TDs elected.

What does data tell us?

Statistics for the political representation of mothers are not – as far as we know – systematically collated around the world. In the current Dáil, 20% of women TDs in comparison to 16% of men TDs have no children.

Data from the UK Parliament in 2017 also showed a parenthood gender gap whereby 39% of women MPs compared to 30% of men MPs had no children. In both parliaments, women parliamentarians are less likely to be parents than men.

The ongoing failure of the Oireachtas to recognise members’ parenting responsibilities, was brought into stark focus recently when Minister for Justice Helen McEntee announced that she and her husband Paul Hickey are expecting their first child next May.

The news was greeted with well-wishes from across the political spectrum, but the announcement highlighted, yet again, the lack of maternity leave provisions for women TDs.

Ireland is not alone in this regard but is increasingly becoming an anomaly. In 2011, a worldwide survey of parliaments by the Inter-parliamentary Union (IPU) found that in 62% of cases, maternity leave provisions for women parliamentarians were the same as those prescribed by national law, 12% adopted their own formal policies and 26% had no special provisions. Ireland falls into the latter category.

Europe’s democratic political institutions were originally designed by and for (elite) men and were belatedly, reluctantly, and in many cases, in the face of women’s mass mobilisation and law-breaking, opened-up to women.

The centenaries of women’s suffrage in recent years has reminded us just how hard-fought these rights were. Yet, the masculinised assumptions that underpin so much of how a parliament works, remains unrecognised.

Women parliamentarians still find themselves working within parliamentary rules, practices, processes and norms that became institutionalised at a time when politicians were not meant to get pregnant and reflected a political lifestyle, free of care responsibilities.

This is why the provision of maternity leave for public representatives appears and is problematic, although why it continues to be, 102 years after women first gained the right to stand in general elections in 1918, is an ignominy.

The Irish debate about maternity leave is just the latest example of a parliament realising that women’s equal presence in politics requires the political system to change and in a healthy democracy, we shouldn’t simply rely on women having to make themselves ‘fit’ the political institution.

The current picture

Across nation-states, there are different ways in how parliaments regulate maternity and parental leave for their members. In some parliaments, maternity leave entitlement, varying from weeks to months in duration, may be offered. During this period of leave, some parliaments facilitate a formal substitute or replacement to temporarily take over the mandate of the parliamentarian on maternity leave.

Proxy voting and remote voting are growing in popularity. Indeed, during the pandemic, many parliaments embraced remote sittings to facilitate the continuation of their legislative and representative duties. However, in Ireland, there are no formal or special arrangements in place for maternity leave.

While informal pairing arrangements maybe put in place, whereby a TD in one party agrees not to participate in a Dáil vote to facilitate the absence of a TD from another party, pairing arrangements may also be withdrawn, in particular, where it is predicted a vote will be tight.

An Taoiseach Micheál Martin TD has indicated that constitutional change may be required to facilitate formal maternity leave arrangements for TDs, such as remote voting and proxy voting.

In April, when Ireland experienced its first period of pandemic lockdown, legal advice conveyed by the Clerk of the Dáil advised that remote sitting of the Houses of the Oireachtas was not constitutionally permissible due to Article 15.11.1°’s requirement 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”.

To address the “present and voting” requirement, Jennifer Carroll-MacNeill TD introduced a Bill in the Dáil on 8 December which seeks to amend the Constitution to accommodate a new proposed Article 15.11.4 which would state: “Each House may make its own rules and standing orders providing for special and limited circumstances by which members not present in that House may vote when any matter, or any class of matter as so provided for, is to be determined by a vote of that House”.

Ireland’s Constitution

Constitutional experts such as Dr David Kenny (TCD), Conor Casey (TCD), Hillary Hogan (EUI), Dr Jennifer Kavanagh (WIT), Dr Seán O’Conaill (UCC) and Ciarán Toland (Senior Counsel*) advise the Constitution is more “permissive rather than restrictive” (David Kenny); the Irish text of the Constitution, the authoritative version, is more permissive in its language than the English text (Seán O’Conaill); and “it is important to look at all the articles in the constitution as a whole to understand their relevance to a particular issue” (Jennifer Kavanagh paraphrased in TheJournal.ie).

With this latter point in mind, Hogan and Kavanagh in TheJournal.ie highlight the range of constitutional articles that may accommodate the formalising of maternity leave arrangements for politicians, without the need for a referendum; enabling the the Oireachtas to reform its procedures to establish formalised maternity leave arrangements.

  • Article 16.3 states: “No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex…”; 

  • Article 40.1 states: “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”; 

  • Article 15.10 states: “Each House shall make its own rules and standing orders….”. 

As former cabinet minister Niamh Bhreathnach stated in the Letters section of the Irish Times on 9 December: “with the goodwill of the Dáil’s procedures committee, the involvement of its women’s caucus and the support of the party leaders, Ireland could lead the way in establishing a proxy voting system within its maternity leave provisions for a generation of women politicians whose voices and experiences we need to hear”.

The UK lessons

Ireland could look to its nearest neighbour in this regard. The Good Parliament Report, a blueprint for making the House of Commons more representative, advises that to enable more mothers to participate in politics – and to retain women politicians who are or want to be mothers – political institutions need to be redesigned. In September 2020 the UK parliament succeeded in changing its Standing Orders:

  1. A Member eligible under paragraph (2) may arrange for their vote to be cast by one other Member acting as a proxy (a proxy vote) under a scheme drawn up by the Speaker in accordance with this order and published by him.

  2. A Member is eligible for a proxy vote by reason of absence from the precincts of the House for childbirth or care of an infant or newly adopted child, subject to the conditions set out in the scheme published under paragraph (1) of this order.

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The rule change followed a second Procedure Committee inquiry and report; a pilot #babyleave scheme that began in January 2019, and which was extended for the pandemic hybrid parliament; a series of non-voteable motions, urgent and business questions during 2018; a Procedure Committee inquiry and Report in spring 2018; the passing of a backbench motion in January 2018; and 2016 The Good Parliament Report’s recommendation.

Some readers might also recall the broken ‘pair’ of Jo Swinson in summer 2018; stories naming the Conservative Chief whip as the block; and Tulip Siddiq delaying her caesarean so that should could vote in January 2019. Lessons can be learned from the UK experience.

Firstly, the principled case needs to be made, and a wide consensus built: existing informal arrangements – fudges convenient to the establishment – will not suffice. The effective exclusion and second-class status afforded to women parliamentarians in the absence of maternity leave is simply unacceptable in a modern democracy; women TDs should have the ‘right’ to maternity leave and not be dependent on the goodwill of their colleagues to ‘cover’ for them.

Second, a technically appropriate solution that works in the Irish case has to be devised. A process should be immediately set-up to that end, and with a clear and not extended timetable.

The process should be in the hands of parliament as an institution and not the government. Its working group should include the Oireachtas Women’s Caucus, and TDs and Senators known to be champions of gender equality, all advised by specialist gender experts working with the parliament’s clerks and officials. The solution need not replicate precisely those of employees, but it must follow the spirit of the statute.

Thirdly, coalitions of support need to be built:

  • Women TDs, councillors, and party members should work together ‘as’ and ‘for’ women, setting out their needs and interests, and holding powerful men to account for their (in)action. At Westminster, the #babyleave campaign was cross-party, led by the Mother of the House, Harriet Harman, the Chair of the Women and Equalities Committee, Maria Miller, and the women (and men) of the Commons Reference Group on Representation and Inclusion, chaired by the then-Speaker John Bercow.

  • Women TDs and their male allies should work together to overcome resistance from ‘parliamentary dinosaurs’. There likely will be resistance, overt and covert. Critics will likely: decry the inviolable electoral mandate (linking the voter and their TD); claim the importance of being present (to hear a debate and only then to vote, as if Members always behave in such a way); or speak of the risk of proxies empowering party managers, or of technical or administrative errors. None of these arguments are insurmountable; many are disingenuous. 

  • If there has to be a referendum, politicians must work with supporters in civil society and the media to mobilise voters in its favour. We might not see a repetition of the 8th Amendment mobilisation, but the vote will have to be got out. 

Thirty Members of the UK House of Commons used the #babyleave proxy vote scheme in the 18 months or so since the UK first made its temporary changes to standing orders: 12 expectant mothers and 18 new fathers. 

In its 2020 inquiry, the UK’s Procedure Committee ‘heard no arguments against the principles of proxy voting for parental absence and encountered no fatal flaws in the scheme’. For those who’d worked long and hard for its introduction, this was no surprise. 

So, the Dáil should be confident that it will re-design its workings to accommodate the mother politician. And if it is the case that a constitutional referendum is required to enable mothers to take their rightful place in politics, then so be it… but let’s get on with it before the next parliamentary baby arrives. 

Sarah Childs is Professor of Politics & Gender at Royal Holloway, University of London. Her research centres on the theory and practice of women’s representation, gender and political parties, parliaments and institutional change. Her latest book Feminist Democratic Representation has just been published by Oxford University Press (with Karen Celis). Following a secondment to the UK House of Commons, Childs authored The Good Parliament Report (2016), a blueprint for a diversity sensitive parliament.

Dr Fiona Buckley is a lecturer in the Department of Government and Politics, University College Cork (UCC), specialising in gender politics, particularly the study of women, gender and cabinet government, and gender quotas.  

* For more on the viewpoints of these constitutional experts, please see the following: here, here, here and here.

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Prof Sarah Childs & Dr Fiona Buckley

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