Private Members' Business. - An Bille um an Aonú Leasú Déag ar an mBunreacht (Uimh. 3), 1991: An Dara Céim. Eleventh Amendment of the Constitution (No. 3) Bill, 1991: Second Stage.
Tuesday, 23 April 1991
Dáil Éireann Debate
“All citizens shall, as human persons, be held equal before the law” [Article 40, Constitution of Ireland]. One million four hundred and thirty four thousand, nine hundred and seventy Irish citizens are not accorded equal rights. These are the women of Ireland.
The census of 1986 shows that of a total population of 3.54 million, women then represented 1.771 million or 50.02 per cent. Dr. Ailbhe Smyth in her article — Women and Power in Ireland: Problems, Progress, Practice — said, “Despite very real progress since the heady euphoria of the early days of the Women's Movement, far from being a reality, equality is still an aspiration for women in Ireland”. It is a fact that there has been a series of significant legislative reforms in the areas of employment equality, violence towards women and, to some extent, family law.
The source of women's rights in Ireland is the Constitution. The Constitution  should make it very clear that women and men have equal rights, and by this we mean equal political, social and economic rights. The Oireachtas is the main instrument for establishing new and equal rights. The Oireachtas and successive Governments record in this sphere is abysmal. Most rights won by women in the last 30 years have resulted from expensive court cases and the EC, not from the Oireachtas or the Government of the day. Attempts to bring about equality have been resisted — for example, the Government sought a derogation from the equal pay directives, the State had to be brought to the European Court to grant women equal social welfare benefits, and women had to bring constitutional cases for equal taxation, legal aid, contraception and the right to sit on juries.
The United Nations report of the Committee to Eliminate Discrimination against Women, Article 2(a), requires states to condemn discrimination against women in all its forms and to undertake to embody the principle of equality for men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure through law and other appropriate means the practical realisation of this principle. That, in its own right, is a reason we should incorporate such an amendment in the Constitution, but there are others also.
I am proposing to insert the following words in Article 40.1 of the Constitution: “Rights under the law shall not be limited or denied by the State by virtue of distinction of sex”. The 1922 Constitution used the words “without distinction of sex” in two Articles and, in particular, assisted in directing equality towards men and women. Mr. de Valera made it clear that political rights was what was intended by his Constitution. I want to make it very clear at this stage that I do not intend to make a party political issue of this. The Constitution as a political and legal document has many fine contents, but after 54 years, the Constitution is in need of amendment, and Mr. de Valera recognised this. He amended the Constitution  before the time which allowed the Oireachtas to do that expired, and tried to amend it in 1959.
I am further asking this House to adopt this constitutional amendment at this time so that the amendment can be put by way of referendum on the same day as the local elections on 27 June next. It is very clear from a major article in yesterday's The Irish Times that, as Yvonne Scannell notes: “until the `70s, de Valera's Constitution, in particular, Article 40.1, allowed the passage of legislation which was restrictive to women, just as the joint committee had feared”. She was referring to a joint committee of women's societies and social workers of 1937 who had argued strongly that that would be the result. Ms Scannell pointed out that up until the seventies that was the case.
The women's group of the Irish Council for Civil Liberties, in seeking to redress the extent to which socio-economic and legal systems continued to discriminate against women explicitly or implicitly, recommends the insertion of an equal rights clause in Article 40 of the Constitution because, as they put it:
I fully accept these points and the argument that an equal rights clause would have significant symbolic and ideological value in that it would accentuate the need for a real commitment to equality within the State.
Article 41.2 of the Constitution is patronising. It states: “by her life within the home, woman”, it gives the generic  term woman, “gives to the State a support without which the common good cannot be achieved”. To quote Dr. Smyth:
In Ireland, the confinement of women to the private, domestic sphere is especially marked. The Constitution, legislation, social welfare provisions, services and facilities (or the lack of these) reinforce this confinement, and seriously limit the extent to which we (that is, women) can enjoy economic independence and personal autonomy.
A woman's place is a woman's choice. The Constitution says nothing about a man's place. It speaks of mothers' duties in the home, not parents' duties. It reinforces the inequitable division of labour and responsibility in the home. Although in theory it could be used to improve the rights of women in the home, in practice it was relied upon by the State in the Murphy tax case, the Hyland case — a claim for equal social welfare benefits — and the Dennehy case — a claim by a man for deserted husband's benefit — to justify sex discriminations. These are the very sections of the Constitution which one would presume guarantee equality. The State should undertake never to use such a defence again. Research shows that Article 40.1 has been relied upon only twice to outlaw sex discriminations — in the adoption case and in the domicile of married women case.
Many of the patent discriminations are now illegal but there are many latent discriminations which cannot be attacked on constitutional grounds or which would be very difficult to attack. The disbursement of public moneys and the provision of publicly funded or endowed programmes and facilities which confer a disproportionate benefit on men at the expense of women should be unconstitutional. For example, it would be interesting to examine what proportion of the national lottery funds given for community facilities is made available for facilities which women can use. If there was an explicit prohibition against sex discrimination in the Constitution this might be outlawed.  Public money should not be given for services or facilities which discriminate against women — such as in golf clubs. Public programmes, for example, educational policies and training schemes should be framed to respect the equal rights of the sexes. If they do not it should be possible to challenge them and examples of this are the FAS schemes, which disproportionately favour men, and the syllabi for our schools. If over 50 per cent of the population were black or Muslim and held a tiny percentage of State offices, we would condemn it out of hand as apartheid-based discrimination.
Ponder, then, the following statistics: of the total number of judges — 94 — only six are women; until recently only five were women; of the 16 secretaries of Government Departments only one is a woman and research shows that only one woman ever held the position of secretary of a Government Department. Of the 99 assistant secretaries of Government Departments only one is a woman; out of 15 Cabinet Ministers only one is a woman; out of 15 Ministers of State there are two women; of the 166 Members of this House only 13 are women and of the 66 Senators only six are women. Of the people covered by the Top Level Appointments Commission in the Department of the Public Service, of the 465 people I just mentioned, 29 are women. Six per cent of the top jobs in the public sector go to women. The remaining 94 per cent go to men, yet women make up in excess of 50 per cent of the population. Far from being a main protagonist for equality, it is clear that the State is among the leaders in discriminating against women. Out of a Garda force of 10,500 people, 400 are women; only 14 of that 400 have ever been promoted. Women gardaí comprise less than 4 per cent of the force. Ireland has fewer women police officers than any European police force except Iceland. All the political parties share responsibility for this
A related factor, of course, is that at precisely the time when men are building up their career prospects the Constitution expects a woman to spend her life in the  home childbearing and mothering. There is probably no higher vocation than childbearing and mothering. The point is that women should not be compelled to eternally follow this route and in our attitude, our thinking, our laws and primarily in our Constitution, equality of opportunity without distinction of sex should be available.
The Constitution contains about eight Articles which, “if boldly and imaginatively interpreted”, to quote an eminent lawyer, “could be read as vindicating the principle that women and men have equal rights”. However, bold imagination may reign in one Supreme Court, only to be overturned by a future court. The Articles concerned are: 9.1.3º, which deals with citizenship, 16.1.2º, which deals with the right to vote, 40.1, which refers to equality “as human persons”— the Article most readers of the Constitution would presume to confer equality but which has not been relied on in most cases by the court and which has been used by the State to defend discrimination; 40.2.3º, the State guarantees “to respect and, so far as practicable, by its laws to defend and vindicate the personal rights of citizens”, 41.2, which recognises that “by her life within the home, woman gives the State a support without which the common good cannot be achieved” and further provides 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”, 41.3, which provides a State pledge to “guard with special care the institution of marriage on which the family is founded, and to protect it against attack”, 42, which vests the primary right to educate children in the parents, and 45 — though directive principles for guidance of the Oireachtas only and not cognisable by any court — which states “men and women equally have a right to an adequate means of livelihood”. Everything depends on the interpretation of these Articles by the courts and these Articles taken together.
The failure of the courts to apply Article 40.1 or Article 40.3 to all sex discrimination cases, together with the  deterrent of enormously expensive legal costs and the strict requirement on locus standi has meant that constitutional vindication of women's rights has been piecemeal and excessively dependent on the accidents of litigation.
In Murtagh Properties v. Cleary, where the barman's union sought to prevent the employment of a barwoman, the case failed when the High Court held that Article 40.3 — although not stated in the Article — included the right of women to an adequate means of livelihood and that “a policy or general rule under which anyone seeks to prevent an employer from employing men or women on the grounds of sex only is prohibited by the Constitution”. In McGee v. the Attorney General the Supreme Court again relied on Article 40.3 — for married persons. The Juries Act, 1927, which exempted women from service unless they applied was held to be unconstitutional — DeBurca and Anderson v. the Attorney General 1976 — under Article 38.5 on the definition of a jury.
In Murphy v. the Attorney General certain sections of the Income Tax Act, 1967, were held to be unconstitutional as penal rates of income tax were levied on married women. Article 41 deals with the family as a primary unit and the protection of the family.
In 1978 in Sonjee v. the Minister for Justice and the Attorney General the constitutionality of the Irish Nationality and Citizenship Act, 1956, was upheld. The court found that the provision that an alien woman marrying an Irish man is automatically entitled, at her option, to Irish citizenship, whereas an alien man marrying an Irish woman is not, is an acceptable discrimination. The court found that this is not prohibited by Article 40.1 as the Act was no more than a diversity of arrangements.
The courts, with perhaps three exceptions, despite several invitations consistently refused to outlaw sex discrimination per se under Article 40.1. Instead, they have limited Article 40.1 to a mere “acknowledgment of the human equality of all citizens” a phrase which, although it does relate to the “human  attributes, or the ethnic, racial, social or religious background” of citizens, and even their “dignity as human beings” does not include within those human attributes the gender of the citizen.
In De Burca and Anderson v. the Attorney General; Sonjee v. the Minister for Justice and the Attorney General and Murphy v. the Attorney General, one judge in each case held that Article 40.1 prohibited sex discrimination in these cases but these were in a minority and are the only three such judicial views as far as can be ascertained, except O'G v. the Attorney General, which I will refer to later, and the domicile of married women case. None of these statements formed the basis for the decision in which they appear.
In many cases the court has limited the application of rights under Article 40.1. Mr. Justice Kenny in Murtagh Properties v. Cleary said that the guarantee in Article 40.1 had “nothing to do with the trading activities of citizens or the conditions under which they are employed”. He further opined that differences in salary on the grounds of sex would not be unconstitutional; the 1974 Anti-Discrimination Pay Act did establish the right to equal pay for equal work. It is clear that the Constitution did not prevent inequalities.
The fact is that the courts should be able to rely on the Constitution and the law. The Employment Equality Act, 1977 seeks to eliminate discrimination. Yet, such discrimination continues even in the upper echelons of the State apparatus.
The Family Home Protection Act, 1976, prohibits the legal owner of a family home from selling it without the knowledge and consent of the spouse — this falls short of establishing a joint legal right to ownership of the family home.
A woman's contribution to the family by her work at home, should she choose to work at home, and the rearing of children does not entitle her to a share in her  husband's wealth, even when this is partly generated by State support like tax reliefs and grants obtained by virtue of marriage.
The remarriage prospects of a widow claiming damages for the death of her husband are considered relevant when assessing the amount of damages awardable. The social welfare system is founded on the philosophy that women are dependent on men and that the State must only support them when this dependence ceases.
In O'G v. the Attorney General, High Court, March 1984, there was a declaration that sex discrimination “may” be unconstitutional under Article 40.1 — an adoption case where the High Court found that a man could continue with the adoption of a child after the sudden death of his wife even though the final adoption order had not been made. Until this time, only a woman could so do. Ironically, it was a case involving a man which brought this point out.
I am the father of four children, three of whom are female. As a parent I am entitled to expect that, nine years from the turn of the century, my children will grow up with the same opportunities whether they are male or female. Up to now that has not been the case. This House has an opportunity to give the  lead. We have the opportunity on 27 June to propose a simple, non-controversial, all-party agreed amendment to the Constitution at virtually no expense.
After 64 years the Constitution, like all law, needs amending. It probably needs a major overhaul and review. Mr. Lemass said in 1966, when he appointed a Constitutional Review Committee, that a review should take place about every 25 years. Ironically, it is exactly 25 years since the last review. De Valera himself amended the Constitution and sought to amend it yet again in 1959. There is nothing sacrosanct about the Constitution. Like all law it must serve the people, not the other way around. This amendment need not await a major overhaul. The people of Ireland are already ahead of us, having elected the first woman Head of State, one of the few such elected Heads of State in Europe.
In eight years time we will be approaching the 21st Century. This is a golden opportunity. Let us not take defensive positions. We are all culpable in this House. Amending the Constitution on its own will not make women equal overnight but it will set a headline and will remove any doubt from the Constitution. This is an opportunity for us to purge our guilt and to take a signal step towards bringing women into the equal partnership they so richly deserve. It gives me pleasure, Sir, to share my time with my colleague, Deputy Barnes, and to move the Second Stage of this important Bill.
Mrs. Barnes: I want to thank my colleague, Deputy Gay Mitchell, for sharing his time with me on such an important Bill and to commend him on introducing what I consider to be one of the most positive and affirmative acts in regard to equality to be introduced in this legislature.
Deputy Mitchell referred to the 1937 Constitution, and a timely article appeared in The Irish Times yesterday with regard to the lobbying by women against certain sections of the Constitution which was not heard. I agree with him that there is no more appropriate  time than now to reverse what may now be interpreted as a reflection of the time. The 1937 Constitution's treatment of women may be excused but it will not be forgiven if we do not take this opportunity to amend it now in the light of changing circumstances. We will have an appropriate opportunity on 27 June to do this. Doing this now will not be costly to the State but may in the future mean considerable savings when one considers the cost in the past 20 years of court case after court case, of campaign after campaign, of European case after European case as we were dragged slowly and almost screaming to an acceptable position within the European forum.
One of the first tenets of the Treaty of Rome was that equal rights would be extended to women and the necessary legislation would have to be introduced not just at European level but at national level. Our history in that area has been lamentable and I would like to think we could draw a veil over it. There was derogation after derogation. The necessary legislation was brought in in a miserly way, left until the last moment, and, unfortunately, it very often backlashed on the very women to whom it was supposed to grant equality because successive Administrations did not plan for it and did not take it seriously. The legislation that was introduced was too little too late.
Up to now we have not shown any political will to observe the spirit of the law because even when we have introduced legislation to grant equal rights to women the legislation was so contorted that the very law providing for equality has been used against women. I will give one instance because it is important. There was a huge difference between the income of waiters and waitresses in a certain industry, the men earning much more than the women. There was also an unequal division of work in so far as the women had the greatest burden and responsibility. This was deemed to be a case of inequality. It had to go through the slow and tortuous channels such cases have to go through — nobody concedes that there is inequality until the very last  minute. The Labour Court came to the extraordinary conclusion that while there was inequality both in terms of income and division of work in this case it could not be decided as it was not an equal case any longer — the women did much more work than the men. Equal was not equated with equal in this case. These women were denied equal pay on the basis of that contorted and totally negative attitude to equality law.
This Bill would cut across much of the legislation which would have to be brought into this House piece by piece, which, as we all know, can be a long and laborious task. The inclusion of an equality clause in the Constitution would cut across the need for much of this legislation and do away with the necessity of having to bring each case before the Labour Court. It would also indicate the importance we as politicians and legislators attach to equal rights for women. It would show our acceptance of the equality of women not just in the spirit of the law but also in the written law. It is important that such a clause is integrated into the Constitution as it would reverse what the Constitution has done to women down through the decades.
I want to refer to an article in The Irish Times of 22 April 1991 entitled, “When Eamon de Valera tried to ignore the women of Ireland”. It is heart warming to note that at that time 16 women's societies, as they were nicely called then, were lobbying on behalf of women's rights in a democratic way. Those societies were not given time by the President to make their case about their worries in regard to certain sections of the Constitution. They stated, and I quote from the article:
The Constitution is being changed, and amendments may be inserted which might vitally affect the interests of women. It seems to us to be grossly unjust that a committee representing 16 women's societies will not be accorded an hour of the President's time.
 Throughout the 1920s and 30s the equality enjoyed by Irish women in 1922, as guaranteed in Article 3 of the Free State Constitution, was steadily eroded under the impact and consolidation of the patriarchal viewpoint.
Senator Jenny Wyse-Power spoke at length of the bitterness felt by Irish women who had worked alongside their men to establish a new nation, many of whom now found themselves excluded from the basic right of earning a proper living. She remembered how, during the War of Independence, women had successfully worked as messengers and inspectors around the country, positions for which they were now suddenly deemed physically unfit.
As we know, these women worked solidly and courageously beside the men in the GPO and in other danger spots. When they marched out of their factories in support of the strikes and lock-outs of 1913 they were either demoted or sacked. Those women were not afraid to take their place beside men. However, to our eternal sadness and shame the 1937 Constitution not only did not honour the contribution those women had made but it eroded the rights they had enjoyed for a decade and a half previously.
If this House does not accept the clause which Deputy Mitchell has put forward or, if there are any legal difficulties with it, a comparable one, we will be marginalising, ignoring, undervaluing and undermining women all over again. However, the difference this time is that we will be doing this with 54 years of experience and wisdom behind us. We will be flying in the face of Europen Community ideals and directives which have ensured the introduction of most of our equality legislation. We will be ignoring the covenants and conventions of the United Nations who promoted a women's decade, from 1975-86, to ensure that all nations  acknowledged in spirit as well as in word what has been denied to women for so long. The inclusion of this clause in the Constitution would remove the embarrassment and shame Irish women experience — I should like to think Irish men feel the same — at international fora when we are held up as a model where much still needs to be done in this area and where votes of sympathy are passed to the women of Ireland. We should remember that this is happening in the nineties.
Deputy Mitchell referred to the lack of protection for women. One of the reasons I expect all sides of the House to support this Bill is that for many decades women have been under the illusion that the Constitution protected them in some way.
Mrs. Barnes: Women still believe that the Constitution protects them. I put it to the House that it has not protected them and that it must now protect them. It took the Succession Act of the sixties to ensure that women would not be disinherited after 50 or 60 years of marriage. I want to pay tribute to the Taoiseach for introducing that Act. It is appalling to think that women who had been married for so long could have been disinherited. It took until 1976 before women got a guarantee that their houses would not be sold over their heads, without their knowledge. We have yet to bring in a Bill which will give women joint ownership not just of the family home but of the entire property. Even though the Constitution pays some lip service to the work they do in the home women have still not got that protection.
I want to refer to the level of domestic violence against women. This ranges from rape and wife battering to pornography. These issues have to be addressed  seriously. The acceptance of the clause proposed by Deputy Mitchell would be one way of dealing with such problems.
In relation to women at work, we have an equal pay Act, an employment equality Act and an Act dealing with maternity leave yet the majority of women are still in part-time, contract and under-paid work. Their income is not on the level of men's income. Opportunity for women, even in the public service, is lamentable. If we are serious about removing inequalities for women we must ensure that this clause is included in the Constitution. We must ensure that all legislation is screened so that not alone does it not contain inequalities but that it positively supports the removal of them.
Minister of State at the Department of the Taoiseach (Mr. V. Brady): I preface my remarks by saying that the Minister of State at the Taoiseach's Department, Deputy Máire Geoghegan-Quinn, who has been assigned a co-ordinating and monitoring role on all aspects of Government policy as they affect women, would, in the normal course, be the principal Government spokesperson for this debate, but she is abroad on official business. I therefore have the honour to speak on behalf of the Government in this debate.
The Government are totally committed to establishing the equality of women in every area of national life. Very substantial progress has been made and is being made. The social reforms of the last 25 years, beginning with the Succession Act, establishing equality in the workplace, in the tax code, and for the protection and enhancement of the status of women rearing children and working full time in the home have brought about tremendous advances. The first Commission on the Status of Women in the seventies set the agenda for reform in the seventies. The ending of the ban on married women in the Civil Service in 1973, the introduction of free legal aid in 1979, and of paid maternity leave in 1980 as a result of the second national understanding were milestones. In 1983, an  Oireachtas Joint Committee was established on women's rights, which has been re-established in the present Dáil, and which is unique in Europe.
The programme of law reform carried out by the Government since 1987 has been far-reaching, including the abolition of illegitimacy, the reform of the adoption law, the judicial separation Act, the reform of the rape law, and child abduction legislation. The protection of part-time workers, the extension of PRSI to the self-employed, the extension of treatment benefits to the dependent spouses, the introduction of a carer's allowance are some of the advances that have been made in the social area. Many more women have been appointed to State boards and head Government commissions and task forces, and a second woman has recently been appointed to the High Court. A substantial section is devoted to equality in the new Programme for Economic and Social Progress.
In 1989 the UN committee to eliminate discrimination against women considered Ireland's detailed report on our implementation of the UN convention on the same subject. The committee, according to a UN press release praised Ireland for its efforts to promote women. Most experts commended the report, saying it was one of the best the committee had ever received.
More recently, the Government have established the Second Commission on the Status of Women, which will seek to identify remaining impediments to equality, that need to be removed, and some of their interim recommendations will be announced at the end of this week.
No one has seriously suggested to date, or has been able to demonstrate that any of the reforms so far undertaken or indeed any of the reforms that might be contemplated or advocated have been inhibited or prevented as a result of the Constitution.
Mr. V. Brady: The Constitution, as presently worded, assumes the equality  of the sexes throughout, as the words citizens or persons are the words used in connection with rights. Introducing the phrase, “rights under the law shall not be limited or denied by the State by virtue of distinction of sex” would add absolutely nothing to the Constitution. It is merely another way of putting what is already in the Constitution.
The proposed amendment is unnecessary because laws which discriminate solely on the grounds of sex are not permissible under the existing terms of the Constitution. For example, the High Court has declared unconstitutional a provision of the Adoption Act, 1974, which made a distinction between the respective rights of men and women to adopt because, the court said, the provision was
founded on an idea of difference in capacity between men and women which had no foundation in fact and it was, therefore, an unwarranted denial of human equality and was repugnant to Article 40.1 of the Constitution. (T. O'G v. the Attorney General, 1985).
Dr. Yvonne Scannell, quoted in yesterday's edition of The Irish Times, has made the point that many of the Articles of the Constitution can and have been used to vindicate women's rights and to challenge laws that discriminated against women. She states:
Mr. V. Brady: At all events the introduction of the phrase ending `by virtue of distinction of sex' will not add one iota to the effectiveness of the Constitution with regard to the principle of equality.
Constitution-tinkering is a flight from the hard question, which is the search for a remedy. Structure is an alibi for policy failure. Let us not be beguiled by constitutional reform from the real tasks of State craft. In the end, politics is the high and serious art of solving substantive problems.
The Fine Gael Party, in particular, are continually seeking amendments to the Constitution, as a substitute for solving real problems. Constitutional referenda are expensive and cumbersome procedures, and should only be employed sparingly, when important consequences will flow from the proposed amendment, or when necessary legislation is blocked in the absence of the amendment. It cannot be demonstrated that any consequences will flow from this amendment, which simply restates in a slightly different way what is in the Constitution already. Nor is any legislative reform blocked in the absence of such an amendment.
I regret that there has been an increasing resort by Fine Gael to making proposals for constitutional change, as nothing more than a publicity tactic, as a way of striking attitudes, without having to address issues of substance.
I can count nine proposals for constitutional referenda since Fine Gael went into Opposition, three of them in the last six months. There is the proposal we are now discussing, the same week that Fine Gael suggested a referendum to do with bail. Then there was the gimmick of a peace referendum during the Presidential Election.
Constitutional amendments have also been proposed to amend the rights of  property, the powers of the President, the right of the Government to conclude international agreements, the rights of children, the single transferable vote and divorce. Referenda may indeed be required from time to time, but not every few months, and many of the proposals mentioned do not have any very pressing merit in terms of the criteria I mentioned earlier.
This proposal has clearly been put together in some haste. The Irish language version of those parts of the amendment already in the Constitution does not exactly correspond with the wording now in the Constitution, whereas the English language version is the same. It is not to be excluded that some issue might be made of the divergence in the texts, especially as the Irish language version has primacy. What is the significance or purpose of the changes? Secondly, any proposal for a constitutional referendum would need to be accompanied by special legislation to make arrangements for the holding of a ballot.
When Fine Gael propose constitutional change, they do it with a bewildering light-heartedness. We have this instant approach adopted more with an eye to publicity than with any serious intent to change anything.
The real challenge before us as legislators at this stage in the vast majority of instances is not equality of rights, which is already in the Constitution, but equality of opportunity, and this can almost certainly be better effected by legislative change, and by promoting better employment and administrative practices than by any change in the Constitution.
Mr. Ferris: It may be appropriate at times for a Minister or Minister of State  to chide the Opposition for initiating a Bill in Private Members' time but I would like to take this opportunity to defend the Opposition's right to do so, in particular Bills to amend the Constitution. Many Members of this House realise that, although it has served us well, many changes need to be made to it. I want to make it clear at the outset that the Labour Party will support the Bill but it should not be taken that we accept that the method suggested, to achieve what Deputy Mitchell and his colleagues wish to achieve, is the proper one. We will support the Bill on Second Stage for the obvious reason that we have always been committed to the achievement of equality and the elimination of inequality and injustice wherever it occurs.
There is no doubt that there is a history of discrimination against women in Ireland. Even though they are in the majority, as Deputy Mitchell said, they are treated as if they were members of a minority group and exploited. Any legislation which seeks to address and rectify that situation is to be welcomed. The Labour Party welcome the opportunity to address this proposed amendment to the Constitution in a constructive way, but our decision to support the Bill on Second Stage should not be construed as total support.
The Bill, as it stands, is almost irrelevant to the task in hand. Worse still, in our opinion, having researched the subject, it is badly prepared and ill-thought out and its consequences have not been considered. As a result, in all probability, this Bill could do some damage to the cause of equality if passed in its present form. In short, although we support its principle, we will not support the proposal that it be passed into law unless and until a number of crucial changes are made.
Our objections and reservations will become clear, which I hope will be acknowledged by Fine Gael, when we come to consider the purpose of the Bill. It has been proposed that we insert the following three sentences in the Constitution:
Rights under the law shall not be limited or denied by the State by virtue of distinction of sex. 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.
Given that this amendment if accepted by the people in a referendum, would impose an obligation on the State but not on anybody else one would have to question what the Bill would achieve or the rights it would confer on any section of our community.
The proposed amendment would prevent the State from passing any discriminatory legislation and I presume would allow existing discriminatory legislation to be struck out but even that could not be guaranteed for reasons I will give in a few moments. If it could be presumed that the proposed amendment would prevent the State from passing discriminatory legislation, the question I would have to ask is: so what? The State has never knowingly proposed discriminatory legislation, on the grounds of sex, and, as far as I am aware, it has no plans in the future to introduce such legislation. If it were to do so — I sincerely hope it will not — it would find itself in extreme difficulty with the European Commission, apart altogether from any other considerations.
Do the movers of the Bill realise that the only effect the Bill would have is to prevent the State from drafting and enacting discriminatory legislation? It would have no other effect. Furthermore, I cannot think of any legislation which would be struck out by the courts if this proposed amendment was incorporated in the Constitution. Neither could I see the State being compelled to draft legislation in a different way in the future. One would have to ask therefore — I think this is what the Minister of State was getting at — what is the point. It is clear that one would be wasting time in proposing a Bill the purpose of which is to  prevent the State from doing something which it does not do anyway and cannot do as long as we are members of the European Community.
Mr. Ferris: All this Bill would do is prevent the State passing discriminatory laws. It would not prevent the State or anyone else discriminating against anyone in matters such as pay, employment practices, promotion, training and so on or in the services it provides.
We are assuming that the Bill would be effective and achieve its objectives but this may not be possible given the way the Bill is worded. For example, the State would retain the right to have due regard to differences of social function, among other things. What is the social function of a woman? In what way does it differ from the social function of a man?
Mr. Ferris: I take it that Deputy Mitchell is anxious that we support the Bill, that our contributions be constructive and that we propose amendments. I confirmed at the outset that we would support the Bill.
Mr. Ferris: Then I can tell you, Sir, and Deputy Mitchell that the difference between social functions is not easy to define, especially if one is relying on the Constitution for the answer. Nowhere in the Constitution, for example, can one find a definition of the social function of a man, but that of women is more clearly defined in the Constitution and one does not have to look much further than Article 41. Article 41 says clearly — I hope I will be excused for paraphrasing it — that a woman's place is in the home. The Article provides that: “by her life within the home, a woman gives to the State a support without which the common good cannot be achieved”. According to the Constitution there is no other way in which a woman can contribute to the common good to anything like the same extent. If there is any doubt about this the point is reinforced in Article 41.2.2º where the framers of our Constitution decided that women engaged in labour ran the risk of neglecting their duties in the home. That is the reality of these Articles.
Why then are the Fine Gael Party content to move a relatively bland and meaningless amendment while allowing Article 41 to stand unchanged? Surely if their Bill were to pass it would stand alongside another Article in the Constitution which essentially would contradict it in the spirit if not in the letter. The net effect could well be to render the Fine Gael approach even more meaningless than it is already.
The difficulties with this Bill do not stop here. As I said, the Bill confines itself to prohibiting the State from enacting legislation which will discriminate on the grounds of sex, that is, against women because they are women or men because they are men. Suppose this Bill is passed and its provisions enshrined in the Constitution and at some stage in future the Government decided to enact legislation aimed at facilitating positive discrimination in favour of women — for example,  compelling every State agency and large enterprise to reserve three places on their boards of directors for women — under the Fine Gael wording now suggested such legislation could clearly be construed as discriminating against men. If it were so construed, the legislation would then be struck down. In other words, this legislation proposed by Fine Gael is designed, I assume inadvertently, to prevent positive discrimination in favour of women. I assume that is not what the drafters of the Bill intended, and I can only comment that they did not think this matter through fully. What they have prepared is a Bill which could, if passed, defeat its own purpose.
The Bill if passed could then be the subject of a referendum. I have no way of knowing what forces would come into play in the course of such a referendum campaign. We all know what can happen with referenda and experience elsewhere has not been happy. For example, most feminists would agree that the attempt to enshrine equal rights amendments into the US Constitution set back the cause of feminism rather than promoted it and has unleashed all sorts of reactionary forces whose interests are in preserving and promoting a system of inequality.
To sum up, as drafted this legislation is ill-advised. It is badly thought out, incompetent and may be dangerous. Even if it is amended to make sense and then passed, a great deal of further legislation would be needed to give effect to its provisions. To make matters worse, none of what is proposed here is necessary. The only way to deal with the issue of equality is to legislate for it within the existing Constitution.
There is a Bill already before this House which has none of the drawbacks in this proposed legislation and would be more far-reaching in its consequences. I am referring to the Equal Status Bill which has been published by the Labour Party, which we intend to have debated very shortly, and I hope everybody in the House will have an opportunity to comment on and criticise it. We have consulted a wide range of groups and organisations who may have an interest in the subject of equality and anti-discrimination legislation and since our Bill  was published it has been widely recognised by everybody in that area as important and potentially historic.
The issue is generally seen as involving women as an exploited minority, even though they are a majority and not a minority. Our Bill is aimed at ending exploitation of women, but there are other oppressed minorities and our Bill aims to include many of them. Our aim is to end discrimination whether based on sex, marital or parental status, sexual orientation, religion, age, handicap, race, colour, nationality and national or ethnic origin, including members of the travelling community.
The traditional approach to discrimination has been to regard it as a feature of the workplace. Our Bill recognises that much remains to be done to ensure equality at work, but it goes further to aim at discrimination in education, the provision of goods and facilities, services including recreational, banking and other financial services, entertainment, accommodation, transport, the services of any trade or profession and the disposal of premises. These are ambitious, far-reaching objectives but I am convinced they are realistic. The debate about equality has been going on since the early seventies but discrimination against minorities still exists.
There is a fund of goodwill in Ireland towards the principle of equality, yet Governments have been very slow to translate that goodwill into action. Indeed, we have tended to follow rather than lead in this area, often waiting for European directives before we act as legislators at home. The need for change is obvious. This has been highlighted in a number of reports, including the reports of the Council for the Status of Women and the Employment Equality Agency, and it is disappointing that the Government have contented themselves with the appointment of another commission. No matter how well intentioned and busy that new commission will be, it will be possibly another two years before there is a call on the Government to act. We believe action over a wider range than that envisaged by the Government in their terms of reference or by the Fine Gael  Party in the Bill before us tonight is appropriate.
We will deal with our own Bill when it comes before the House. It will deal with three types of discrimination — direct, indirect and victimisation. Direct discrimination is self-explanatory; indirect discrimination can arise where, on the surface the same conditions apply to men and women but are geared to ensure that a higher proportion of one sex can meet them. For example, unless an employer who advertises for machine operators and makes it a condition that all applicants must be over 6 feet in height can prove that was an essential height for dealing with the machines, he could be guilty of indirect discrimination against women. Our Bill will also define as discrimination the victimisation of anyone who asserts his or her rights under the legislation. Within a Bill under the existing Constitution we would attack the problems caused by indiscriminate and discriminate interpretations of existing sections of the Constitution. This Bill does not meet that problem and there are dangers in it. As a matter of principle, however, the Labour Party are committed to supporting this Bill on Second Stage and if it passes that we will be tabling major amendments on Committee Stage to ensure that what the party are trying to achieve will not be lost.
Can it be pretended that women who manage an estate or conduct a business — who pay rates and taxes to a large amount, and frequently from their own earnings — many of whom  are respectable heads of families, and some of whom in the capacity of schoolmistresses, teach much more than a great number of male electors ever learnt — are not capable of a function, of which every male householder is capable? Or is it feared that if they were admitted to the suffrage, they would revolutionise the State, would deprive us of our valued institutions, or we would have worse laws, or be in any way whatever worse governed, through the effects of their suffrage?
These words were spoken by the economist John Stuart Mill in the House of Commons in London on 20 May 1867 on an amendment to remove the word “man” in the Representation of the People Bill and to insert instead the word “person”. They serve to give us a valuable insight into the position of women in the system of evolving parliamentarian democracy and western society towards the end of the last century and give us some notion of the attitude towards women in the matter of politics and of the State at that time. It is significant proof of the subordinate position of women in public affairs, of the absence of any notion of women's franchise and of the subservient position held by women in society 120 years ago. Interestingly, that amendment was lost.
We might be inclined this evening to congratulate ourselves on coming a long way in the past 120 years. In certain ways we have made tremendous progress. Much of what has been achieved by women in society has been through the voluntary endeavours of women's organisations outside the political arena. Only when there was an appreciation of the influence that women could exert in the field of social change did people realise the acuteness of the inequalities to be addressed and the need for positive action within the legislative process. There has been tremendous work since the Government came into office in 1987 to promote and act upon their commitment to the principle of equality between the sexes. I participated with many of my esteemed female colleagues on the Joint Oireachtas Committee on Women's Rights. I congratulate that committee on  their work since 1987 and on their pain-staking commitment to highlighting continuing inequalities in society which need to be addressed.
The Council for the Status of Women was established in 1972 and many of their recommendations have been implemented, especially in the field of employment and family law reform. The most useful and helpful follow-through has been the establishment this year of a new Council for the Status of Women which will give direction to us as legislators as to what our priorities should be in the next decade.
An important matter is the provision of childcare and créche facilities as the norm in society, not just for the privileged few who can afford them. Society is continually evolving and as a young woman I believe one of the greatest needs for women generally is the provision of these facilities, not only in urban areas but throughout rural society as well.
The role of the Employment Equality Agency should be extended to cover many other aspects of life. They have the ability to ensure that equality is achieved in all areas of Irish life. I hope the new council will recommend an extension of the role of the Employment Equality Agency so that they can follow up particular cases. An agency such as the Employment Equality Agency or a committee similar to the Oireachtas Joint Committee on Women's Rights could act as a watchdog to ensure that the recommendations of the new council will be implemented in promoting the equality of the sexes.
Until women achieve an economic and social identity which is perceived by them and by society as separate from but equal to that of men they will not stand on equal terms with men in the professional and political life of society. The Bill before us will not achieve that objective. It will place women in the invidious position of being different. That is not equality and should not be the aim of those who wish to promote the equality of women and men. Greater political participation by women would help to achieve the objective of equality. Coming to Dáil Éireann it was quite daunting to see  so few lady Members. Greater participation by women in all aspects of political life, be it at local level, county council level, as members of health boards or State committees and within the Oireachtas, would lead to more equality legislation.
I would welcome the views of more women on all types of legislation. It would not necessarily have to be employment but agriculture, fisheries, or any other area of legislation. If we had greater participation by women within the political process this would help towards achieving our aims. I believe every Member of this House would like to see this happen. I heard Deputy Gay Mitchell say he has a family and that he would like his children whether male or female to have the same opportunity as anybody else. We all wish to achieve that. Perhaps some of us have obtained the opportunity to enter politics. Perhaps one of the Deputy's daughters will go into politics, we do not know, or perhaps the Deputy will have sense and will tell them not to go into politics.
Miss Coughlan: Our aim is towards equality of opportunity. I do not want to be put on a pedestal. If the opportunity is there and I have the ability to achieve and take advantage of the opportunity, I consider that equality.
There are many ways in which positive discrimination, or affirmative action as the Americans call it, can help towards greater participation among political parties and thus greater participation in the Dáil or greater promotion opportunities in organisations. In the banks for example there are very few women managers or women at the higher ranks in the organisation. Again, there are many women in the teaching profession but few are principal teachers. Perhaps we need to look at that. The problem for many women is that men lack confidence in them and in their ability to do the job that men do themselves. I hope we do not reach the situation where this ongoing saga would  cause women to lose confidence in themselves. Women in Ireland have the ability, the tenacity and the confidence to achieve total equality. I hope that with ongoing debate like we have in this House this evening, despite the fact that the Government parties will be opposing the Bill, ongoing debate within the media, greater awareness, and better education, we will come to the stage where we will reach equality in a number of years from now. Perhaps then the entire phenomenon can be relegated to the history books.
Mr. Browne: (Wexford): I welcome the fact that the Government decided not to oppose the introduction of this Private Members' Bill. Despite the views expressed here tonight that the legislation is flawed and badly thought out, which in many cases it is, nevertheless it gives us an opportunity to discuss the whole area of equality and the role of women generally in society.
I have listened to Deputy Coughlan's contribution. Generally, the contribution of women TDs in this House shows that they have a great role to play in legislation and in the development of this country.
In many ways the role of women has been totally underestimated over many years. In my constituency, particularly in the area I come from, Enniscorthy, women generally are to the forefront in most, if not all, of the voluntary organisations that operate in the area. Indeed, they play a major role in pre-school play-groups which are not part of the State education structure. No Government, for different reasons, have seen any great reason to legislate for pre-schooling. However, the women who run play-schools provide an unique opportunity for young children to develop and prepare for school and they do this every morning without any great support, help or funding. We, the politicians, should seek to make funding available whether through the national lottery or any other agency to help this along.
Since taking office in 1989 this Government have taken significant steps to translate in to practice their commitment to the principles of equality between the sexes. The Minister of State, Deputy  Geoghegan-Quinn, who unfortunately is not here tonight, has the role of co-ordinating all aspects of Government policy as they affect women. There is no doubt she has played a major role in highlighting the inequalities and problems faced by women. She is held in high regard on the European and on the world scene as a Minister and she has made it a major issue to provide the necessary requirements for equality and to give the women of this country and indeed women in the EC a fair deal. We should place on record our appreciation of her great role in that area and I hope she will continue to speak out loud and in an honest way on the role of developing equality between the sexes.
As far back as 1973, the Taoiseach is on record as seeking to establish a committee of this House to examine and develop the status of women in our society. He vowed to re-establish under the current Dáil the Oireachtas Joint Committee on Women's Rights. Women Deputies from all sides of the House are on that committee. I compliment them on the role they have played in making recommendations, carrying out investigations and making worthwhile contributions to the legislation introduced in this House in recent times. I think this committee is unique in the 12 member states of the European Community. I may be incorrect but I have been told on many occasions that this is the only Committee on Women's Rights operating in any of the parliaments of the EC. That in itself shows that this Government and the previous Government were committed to the development of women's rights and the promotion of equality of the sexes. I hope the committee will continue to make recommendations and will examine different aspects of equality. We have gone a long way down the road but obviously we need to go further.
The Government have decided to establish a second Commission on the Status of Women to undertake a stock-taking exercise in an objective way and to make concrete and practical recommendations for progress in the future.  They have to consider and make recommendations on the means, administrative and legislative, by which women will be able to participate on equal terms and conditions with men in the economic, social, political and cultural life and to this end to consider the efficiency and feasibility of positive action measures. We have already seen measures on part-time work undertaken by the Minister for Social Welfare, Deputy Woods, in the Social Welfare Act, as practically 80 per cent of the part-time workers in this country are women. We have had a debate in this House in recent weeks when Members from all sides contributed, outlining the resources they felt——
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