Private Members' Business. - An Bille um an Aonú Leasú Déag ar an mBunreacht (Uimh. 3), 1991: An Dara Ceim (atogail). Eleventh Amendment of the Constitution (No.3) Bill, 1991: Second State (Resumed).
Wednesday, 24 April 1991
Dáil Éireann Debate
Mr. J. Browne: (Wexford): I was welcoming some of the initiatives introduced by this Government since 1987 in relation to inequality. The recent enactment of the Worker Protection (Regular Part-Time Employees) Act, 1990, is an example of the Government's sustained attempts to promote the principle of equality.
Women account for more than two thirds of all part-time workers here and more than three quarters of part time workers in the 25 to 44 age group are associated with rearing children. The new protections offered by that Act will be of particular benefit to women, and that is welcome. Women were blatantly exploited in supermarkets, retail outlets and other services under the previous part-time workers legislation. Now part-time workers who work for at least eight hours a week and who have completed 13 weeks' service will enjoy the protection that full-time workers enjoy. I am glad that the Minister for Social Welfare in the Social Welfare Act has introduced the necessary changes to qualify part-time workers for the benefits to which they are entitled.
The Bill before the House would give the impression that new legislation could not be introduced in relation to equality without this Bill being passed. Over the past 20 years enlightened legislation was introduced to benefit women. This Government have introduced a number of initiatives which will be of major benefit to them.
This year there is a 19 per cent increase in the annual grant for the Council for the Status of Women over the 1990 allocation. The Taoiseach is placing more and more women on boards. Up to now members of State or semi-State boards were predominantly male. Since 1987, 297 women were appointed to State boards. This is a move in the right direction but more could be done, as there are many other women who have a right and the ability to be appointed to State boards. A new carer's allowance was  introduced and in the 1991 budget the carer's allowance now includes disabled person's maintenance allowance. A sum of £0.5 million was allocated in the budget for programmes for women. One hundred and fifty thousand pounds was assigned to the Rape Crisis Centre, and Deputy Monica Barnes was very much to the forefront in ensuring that that money was made available to the centre. I hope in future the amount allocated will be substantially increased. Money was allocated to Women's Aid to help victims of domestic violence. Domestic violence seems to be on the increase. The Minister for Justice must become involved in this area. The court buildings in rural Ireland especially are not suitable for family law cases which are supposed to be heard in camera. We should provide proper facilities for families, particularly for women who may not have people to take care of their children while they attend court and so must bring them along with them.
The Minister for Finance introduced a special tax allowance for widowed parents with dependent children, to apply for three years following the death of a spouse. This is a worthwhile project and will go some way towards helping a bereaved person who has suffered the trauma of the death of a spouse and has to live on a substantially reduced income.
There was an extension of the dental and optical benefit to the dependent spouses of insured workers in 1987. This benefited mainly women working full time in the home. Unfortunately some dentists refused to operate the scheme. There have been 85,000 claims for dental benefit, so obviously the scheme is successful. In Wexford no dentist to date has decided to operate the scheme. It is a disgrace that the spouses of insured workers in County Wexford are denied the right to dental treatment because the dentists are well off and do not need this type of business. The Minister should encourage the dentists to take it on. I appeal to young dentists to set up in County Wexford and use that scheme  to provide a service for a worthy and important section of the community.
It is important to acknowledge that women should have the option to remain at home and look after their families or to go out to work as well as rear their families. Life should be made easier for working mothers whether they are married or single parents. There should be supports for women in the workplace from the State and from employers. There should be proper child care facilities and full social welfare entitlements where needed. The role of the employer is important here. In many cases women can work for only certain hours. Employers should be flexible and should allow time off or flexi hours to facilitate working wives who in many instances have to work to supplement the income of their husbands.
Women working in the home and rearing families are often taken for granted. It is difficult to quantify in monetary terms the work of the housewife or mother. If the State were to pay mothers for the work they do at home rearing their families, for the stress, the work, the hours—seven days a week around the clock, the social welfare budget would be immediately doubled. I suppose that is not practical given the present financial circumstances. Women working in the home deserve some kind of recognition whether it be money or special pension-type concessions or social welfare credits for the period spent at home looking after children. Many suggestions could be put forward tonight. Some housewives or “stay at home” women are very aggrieved that no Government have recognised the important role they play. Indeed, I read recently that an economist in 1828 tried to estimate the value of a housewife in the home but we are still trying to do that 100 years on. The Joint Committee on Women's Right should consider this matter and make recommendations which could possibly be incorporated in legislation in the future.
It is good that we are having this debate but there is no need for this Bill. The Government, like previous  Governments, have been able to introduce enlightened legislation without there being any need to make changes to the Constitution. I believe that will continue to be the case in the future.
Mrs. Fennell: I thank Deputy Browne for his contribution and I am happy that he has been converted on the road to Damascus or some such place. I welcome this Bill and commend Deputy Mitchell for carrying out such detailed research and for his commitment in bringing the Bill forward. I regret the absence of the Minister of State with responsibility in this area, Deputy Geoghegan-Quinn. We were informed last night that she is out of the country and I accept that that can happen. I have the greatest respect and admiration for her but, given that we seldom have debates or discussions on political issues related to women, it is a matter of regret that she cannot be here to listen to the contributions and make her own.
I regret that we heard a sad and spiritless speech from the Minister of State at the Department of the Taoiseach last night. He trotted out a catalogue of facts and a tirade of criticisms. In my opinion he had some nerve to come into the House to list Government reforms which included the abolition of the concept of illegitimacy and the Judicial Separation Act. That takes brass neck given that both these Acts were initiated, drafted and processed by Fine Gael. it is clearly a case of Fianna Fáil thinking that if they say something often enough and with enough conviction they will convince not only themselves but others that they are their achievements. I ask the Minister of State to instruct his speech writers to end the myth and not dishonestly claim that Fianna Fáil were responsible for the abolition of the concept of illegitimacy. Everyone knows that it was I, as Minister of State, during the term of office of the Coalition Government in the eighties who introduced this reform. The Judicial Separation Act, which was also listed by the Minister of State, was introduced, again, as everyone knows, by Fine Gael. It was initiated by my constituency  colleague, Deputy Shatter, and vehemently opposed initially by Fianna Fáil.
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 our Constitution.
The Minister of State is wrong and I challenge him or whoever is going to speak on his behalf later to come back to the House to state the Government's view on this matter. The Government are certainly inhibiting legislation.
The Bill is significant and deserves support. Indeed, when it was launched recently at a press conference it was welcomed and was the subject of very favourable media comment but it is doubly significant as we witnessed last night. It is taking a census of party as commitment to women's issues, real commitment which will result in action and change. Fianna Fáil have nothing to offer women though they try desperately to cover their nakedness claiming other people's achievements.
What about the Labour Party? Last night we heard a most petulant speech from Deputy Ferris. He said that yes, they will support the Bill but in an ungenerous and critical way. It seems to be a case of “because we did not get there first with our Bill we will give you little or no credit for yours”. Their contribution betrays the typical Labour Party lip-service to the cause of women. They have a Bill that would extend rights to women, among other groups, and I have to say that it is not a bad one but they did not give it priority in their Private Members' time. It has been on their shelves for months and I have to ask why. It is obvious that everything else is more important whan that Bill.
The Labour Party would do well to take the lead from Fine Gael on this matter. They should look at their benches and their parliamentary party; they have  no women Deputies, Senators or MEPs. It seems that in the rush for safe constituency seats women in the Labour Party get knocked down by the men. Debates like this hold up a mirror for women to see which party genuinely have their interests at heart. There is no doubt that the highest scorer are the Fine Gael Party. It was Deputy John Bruton as Minister in 1983 who set up the first all-party committee on women's rights who have proved to be an effective parliamentary vehicle for highlighting issues and at which groups in society are given the opportunity to put their points to parliamentarians.
It was Deputy Garret FitzGerald who as Taoiseach appointed the first and only Minister of State for Women's Affairs. That was an important move and, if not perfect in its form and objectives it was an innovation which should have been built on. It was the Fine Gael Party who set up the very successful women in business programme which produced so many women entrepreneurs in a short space of time. However, the Minister for Finance abolished this programme as soon as he took office. Fine Gael also set up the mediation scheme which is vital in that it helps avoid conflict in marriage breakdown cases. This scheme is lucky not to have been abolished but it is only limping along at present.
Deputy Garret FitzGerald is a man deply committed to the cause of women to the extent that he was prepared to step out of line and put his head above the parapet in support of this cause. I do not think many political leaders show the same commitment but the torch he carried was carried on by Deputy Alan Dukes, by our present Leader, Deputy John Bruton, and by people such as Deputy Gay Mitchell in our party.
All the initiatives I mentioned arose from the experiences of Fine Gael women who had an insight and understanding of what women need and expect. Ours is an open-minded party where women's thinking and tuition is respected at parliamentary party level and throughout the organisation. Their  involvement has not only influenced policy and legislation but has contributed greatly to raising the consciousness of their male colleagues.
Last night Deputy Coughlan made a fine contribution for which I thank her. During the course of her contribution she quoted one of my historical heroes, the classical feminist of the last century, John Stuart Mills. The quotation she gave was taken from a debate on women's rights in Westminister. Mills was a man who had a great insight, incredible sensitivity and was extraordinary for his time. I would like to quote him further. In a famous essay, The Subjection of Women, he made the following claim:
I deny that anyone knows or can know the nature of the two sexes as long as they have only been seen in their present relation to one another. If men had ever been found in society without women or women without men or if there had been a society of men and women in which the women were not under the control of the men, something might have been positively known about the mental and moral differences which may be inherent in the nature of each. What is now called the nature of woman is an eminently artificial thing — a result of forced repression in some directions, unnatural stimulation in others. It may be asserted without scruple, that no other class of dependants have had their character so entirely distorted from its natural proportions by their relations to their masters. In the case of women a hothouse and stove cultivation has always been carried on of some of the capabilities of their nature, for the benefit and pleasure of their masters.
The male control that John Stuart Mills spoke of in the 1870s of course was very extreme and was a different control from what would be experienced today but in my opinion is a control based on thousands of years of male legal privilege, custom, practice and tradition that favours a male position and male power. It survives in today's Irish society.
In last night's debate there was a  degree of scorn about this amendment The Minister of State said we were introducing it for publicity, which in the way he said it, is utter nonsense. Deputy Ferris said it was not necessary as their law, the Labour law yet to be introduced, was what we really wanted. To the Minister of State I say, “yes, we were doing it for publicity in the context of letting people realise the inadequate response of the Government to women's issues and the need to amend our Constitution.” I suggest to Deputy Ferris that we need an equal rights amendment to the Constitution as well as an equal status Act.
I challenge male speakers who come in here with a condescending air. As someone who has worked for 20 years for women's rights, from the days of Irish-women's liberation when we were ridiculed and jeered for seeking a right to contraception in 1972, as one who rolled up her sleeves and created the first hostel for battered wives in Dublin when priests and politicians turned their backs on those women and children and as one who stood as a feminist in 1977 and broke the mould of the all-male candidate ticket, I know what women expect and want in 1991. This amendment has been welcomed by the Council for the Status for Women and by the women's committee of the Irish Council for Civil Liberties. I strongly suspect that when the Second Commission on the Status of Women report in time one of their recommendations will be a constitutional amendment to realign women rightfully in our Constitution.
The 1937 Constitution is steeped in the values of a thirties Ireland, the Ireland of the invisible woman, the wife as possession and woman as submissive and passive creature. That shadow is still hanging over us in Article 41 and it contributes to negative and narrow attitudes in our policy-making and our legislation. More important, it is right now a barrier to legislation being introduced on the family home. There are at least three cases with regard to matrimonial property which have been referred to the Supreme Court from the High Court. I know that, because of decisions of the High Court  and judgments of Mr. Justice Barr and Mr. Justice Barron, this matter is unsure as it refers to Article 41. Indeed, I suggest that the Minister of State or his advisers in drafting his speech did not read the judgments in those cases which are outlined in chapter 10 of Marriage Breakdown in Ireland by Duncan and Scully which deals with a number of unreported cases of legal disagreement based on different interpretations of Article 41 and woman's role portrayed therein.
I recommend that before the end of the debate the Minister study that and I suggest that if he does he and the Government will change their mind about the need for a constitutional amendment. Those judgments relate to disputes over a wife's right to a share in the family home. It appears that, far from giving straightforward protection to the wife and mother in the home, she is instead set apart and, apparently, not worthy of jointly sharing the home she lives in. It is not clear. I wish to quote what Mr. Justice Barrington said in AH versus PH in July 1989, page 287 of the Duncan and Scully book:
It appears that the Court should recognise the contribution the wife makes by her work as a carer and rearer of the family within the home, because it appears to be quite inconsistent with the values of Article 41 of the Constitution that the wife who leaves the home and has an independent income and is therefore able to make a financial contribution towards the repayments of the family mortgage, might at the end of the day be in a very much better position than the wife who fulfils the constitutionally referred role and remains at home to rear the children. That seems to be an inconsistent conclusion and inconsistent with the principle of Article41.
While I see the equity in recognising the contribution made by the plaintiff towards the welfare of her family,  there does not seem to me to be anything in Article 41 of othe Constitution to support her contention that she should become entitled thereby to a share in the family home or any other property of any member of the family. The Article seeks to protect the family. The right granted is one whereby the State shall “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”. In so far as this provision may be construed as a guarantee of financial reward, and I express no view on this aspect of the matter, it seems to me that it must be a guarantee of reward from outside the family rather than a distribution within the family.
In other words, when it comes to property and possessions this woman, this mother in the home, enshrined in Article 41 of our Constitution, has no right to a redistribution or share of resources from within that family.
The amendment proposed by Deputy Gay Mitchell is certainly worthy of support and important in its own right. It is not too far removed from the equal rights amendment that was the focus of a magnificent effort by American women in the early eighties. They too saw the need to ensure protection for women citizens in their Constitution. By a very extraordinary technical method this amendment had to be introduced in each individual state and debated, voted on and passed by each state. However, despite massive sums spent on that campaign in an effort to have each state ratify that amendment before a pre-ordained date, all their efforts were in vain. Their amendment did not go through and did not become part of the American Constitution. I recall from reading, listening to and speaking to women at the time the great bitterness that campaign and appeal met with from right wing politicians, institutions and religious interests.
My opinion is that we should go further even than this simple amendment. I would say, “Scrap Article 41.2º”. It is  meaningless. It has Irishwomen caught in a time warp, trapped firmly in a de Valera vision that is not relevant today nor for the future and I suspect never was relevant for real women. Irishwomen need clear legal rights established by the Oireachtas. We do not need judicial, intellectual argument at High Court or Supreme Court level by judges many of whom are totally out of touch with the thinking of real women of the nineties as distinct from the constitutional woman framed in time, a remote idealist unrelated to real life today.
The real commitment by parties in this House will be judged by their actions on this legislation and by their agreement to remove the anomalies and all the inequalities to the advancement and full participation in Irish society of women here. This means dealing with our Constitution. It means an equal rights amendment. Inevitably it means thinking about removing the yoke of Article 41 of the Constitution which, in my opinion, has more place in comic opera than in our Constitution. I know it influences the thinking within the Executive. From my experience as Minister dealing with memoranda for Government, recommendations, amendments and so on to proposed policy and proposed legislation I know the thinking of the Executive.
The constitutional requirement that women should be encapsulated in the home status or role stands as a shining beacon to civil servants and policy makers. Perhaps any initiatives or requests for funding would be more favourably considered if they related to women in that role rather than as workers who are having great difficulty holding on to their jobs and looking after their children. It is clear that this Article influences very strongly the political decisions taken. There are many examples. Many people would, perhaps, argue that this is a good thing and that mothers in the home should be protected. I do not deny that mothers in the home are playing a very important role. The attitude I have described is, however, hampering the broad development of women because it is rather too cosy to believe  that the traditional de Valera woman will go on forever in Ireland. This is not the case. Like every other developed country, in time this country will leave behind the woman who sees housewifery and house minding as a career. Women will develop their full potential, go out into society and become equal in every way with men.
This Article in the Constitution is extremely inhibiting. I hope we will see a very real change when the second Commission on the Status of Women reports. This Constitution has long outlived its usefulness. I commend my colleague, Deputy Mitchell, on the introduction of this Bill. I am happy to listen to the debate which provides a level of enlightenment and awareness. I commend the Bill and seek support for it.
Mr. Andrews: I wish to deal with a number of points made by the previous speaker in her rather chippy and divisive contribution. I do not, however, intend to spend too much time on her contribution. Deputy Fennell's criticism of the absence of the Minister of State at the Department of the Taoiseach, Deputy Geoghegan-Quinn, was unfair and unnecessary, although, of course, the Deputy paid tribute to the excellence of the work of the Minister concerned. She knows, since it was explained clearly in the House yesterday, that the Minister of State is absent on official business. The Minister will return in the next day or two and enter this debate in due course. It has never been a convention of this House that an absent Minister be criticised, especially when abroad on official State business. That narrow view taken by the previous speaker is unacceptable.
There was in Deputy Fennell's contribution the proprietorial attitude that a woman — she being the woman — is the only person entitled to address this issue. That is unacceptable. She has a good record on women's issues which cannot be denied, but that does not entitle her to be abusive and to dismiss worthless people like myself who stand up to make a contribution on this or any other issue. It is an attitude of illiberality which I find  unacceptable. Does it really matter who introduced what as long as it was introduced? If a cure is achieved, does it matter which Government were responsible? That has been my attitude. As long as the cause of women is advanced, does it matter whether a Fine Gael Government introduced a measure or a Labour Government or a Fianna Fáil Government? If the problem is solved, that is all that matters. This is an issue where I thought consensus would be looked for and obtained. We have to deal with the attitude the former Minister adopts.
I am glad she made her contribution, which I respect, but I do not accept her criticism of various other contributions. Apparently the Labour Party have no role on women's issues, Fianna Fáil are dismissed out of hand, as well as The Workers' Party and the Progressive Democrats. The only party who have addressed women's issues, according to Deputy Fennell, is the Fine Gael Party. So be it. The only women in this country are Fine Gael women. That is the catechism according to Deputy Fennell and anybody who goes outside those narrow confines is in grievous error. Mea culpa.
I now launch my unworthy contribution on this issue by congratulating the Minister of State at the Department of the Taoiseach, the Chief Whip of the Fianna Fáil Party, for standing in during the absence of the Minister on official business abroad. His contribution recalls to mind the issues which have been addressed over the years. The touchstone date is 1957 with the introduction of legislation on the status of women. The full title of the Bill escapes me.
Mr. Andrews: I am pleased and thrilled that the Deputy is here. I do not deny her right to be here, as the Deputy would  not deny my right to address the issue of women. The Minister of State read out a litany of legislation in his contribution yesterday. The touchstone legislation was the Married Women's Status Act, 1957. From that Act flowed much legislation relating to the equality of women. There was recognition of the genuine need to update the status of women in our society. There is no doubt that women were second class citizens. This was brought about by biblical and various religious attitudes to women which I have always found unacceptable.
We are here to discuss the amendment proposed by Deputy Mitchell. He seeks to interpose in Article 40 of the 1937 Constitution that all citizens shall, as human persons, be held equal before the law and to include the following:
I presume — and the courts would be of the same view — that “all citizens” means all men and women shall, as human persons — which again applies to men and women — be held equal before the law. Deputy Gay Mitchell, decent man that he is, wishes to introduce constitutional sunburstry that rights under the law shall not be limited or denied by the State by virtue of the distinction of sex. I respectfully suggest that that is tautology, it is repetition. I would have thought that on close scrutiny it would be found by the courts to be unconstitutional in its present format. We have a perfectly  straightforward definition of all citizens' rights and their equality before the law. In those circumstances I would have thought that this proposed amendment was irrelevant. For that reason I strongly urge the House to reject it.
I do not accept the views expressed by the previous speaker that the Constitution is bad. The Constitution has served this country extremely well since 1937 and will not be found wanting in the future. Of course, there are defects in it but that is not a good enough reason to wipe it out in its totality. As far as women are concerned, I think the Constitution has served them well and the courts have interpreted it in successive cases accordingly. There is no good reason to accept this amendment and if there was a good reason to accept it, it is my view that issues of this nature should be resolved by consensus and by a non-divisive approach to the debate. We are all in the business of trying to improve the lot of citizens, and in this instance the lot of women. I am a member of the Joint Committee on Women's Rights, which is the third such committee. The first Joint Committee on Women's Rights was set up in 1983, as Deputy Fennell has said, by the then Coalition Government. We will given them their deserved pat on the back. This present committee was set up in December 1987, some considerable time before the most recent general election. It is important to place the terms of reference of that committee on the record:
I am privileged to be a member of this committee which is presided over by a  woman, Deputy Barnes from my constituency, and a more excellent chairwoman of a committee one could not find. She rules with a sense of fair play and much of what will emerge from the committee will be due to her chairwomanship. The work priorities of this committee are again very clear. I wish to disabuse the idea that this House is in some way not concerned with women's issues — nothing could be further from the truth. On average, the committee meet on a bi-monthly basis and since December 1987 we have had 20 meetings, which is not a bad record. The priorities of the committee are as follows:
It was also agreed that the joint committee should work closely with the EC on matters affecting women. It was also agreed that as a priority the Joint Committee on Women's Rights should establish the position regarding the equal status legislation. The House has charged a committee to examine the role of women in our society. This is not to suggest that there are not areas where women are discriminated against. Recently our most able chairwoman wrote letters to various organisations including golf clubs and other organisations asking them about their attitudes on the equal status of women. She received some replies but other organisations did not reply. But in the main, I think golf clubs have faced up to their responsibilities to their women members. However they are still to be  found wanting in that regard. Personally I find that unacceptable. The sooner they get their houses in order the better. Other organisations may discriminate against women but a message should go out loud and clear from this House that this is not acceptable. This is one of the reasons that we should be grateful to Deputy Gay Mitchell for raising this issue. I do not think you can threaten people in our society but organisations should be told that they should make an effort to bring about equality of the sexes in the context of their rules and regulations. They must be told that the Oireachtas finds discrimination against women within their organisations unacceptable in 1991 and that we, as a legislative assembly, will continue to ensure that women are not discriminated against. That is one of our fundamental duties.
The last Fianna Fáil speaker, Deputy John Browne, made a very good speech on the role of women in the home. He spoke of society's attitude to women in the home which I would have thought applied years ago. From my own experience I know that women have a huge role in the home. They are mothers, chancellors of the exchequer, advisers, they preside over children's examination efforts in our absence. From A to Z they are absolutely irreplaceable. I do not for a moment deny women at the end of their mothering period the opportunity to work outside the home. If they can work both inside and outside the home at the same time, so be it. I feel as strongly as Deputy Browne that there should be some form of financial compensation to women for their work in the home. I do not know how it can be structured but there are enough civil servants out there to present proposals to the various Ministers concerned. It should be proposed in this House that women be compensated for the magnificent role they continue to play in the home. If it is easier to give them the advantage, as it were, of a role  in the home rather than outside, so be it. That is not meant in any way to enter a constraint in that regard; if women are capable and able to work outside the home in addition to undertaking their mothering tasks, so be it.
That takes me to the subject of women working outside the home. It is not so much a case of equality of rights as one of equality of opportunity. I know for a fact that if there is a man and woman applying for the same job with an all male interview board, invariably the man will get the job. That is unfortunate. If you like, that is another type of repressed discrimination from which a woman suffers but which may not be so evident. Throughout our society, wherever women have made it to the so-called top, they have been found to be exceptional. That is why I contend that the problem is not one of equality of rights but rather one of equality of opportunity. I am not certain that we should be writing that type of thing into law. Rather it is an attitude of mind that we in this House should endeavour to change. Women should be given such opportunity, be treated as citizens and not discriminated against on the grounds' of sex.
I might refer now to the work done in this regard by successive Governments. For example, there was the Succession Act, one of the most far reaching Acts introduced in the history of any nation which was probably a precursor of similar legislation introduced in other countries. That Bill was introduced when I was a neophyte in this House in 1966 or thereabouts. It was a tribute to the then Fianna Fáil Government that they introduced that Bill. I am giving credit where it is due. I know that the Fine Gael Party contend that they are more concerned about women than all of the remainder of Members in this House. Obviously it was some form of accident that the Fianna Fáil Government introduced the Succession Bill.
I have just addressed the issue of equality in the work place. Then there is the matter of equality within the tax code. I might refer to one area in which there is  not equality, that is, in respect of free legal aid services. Three-quarters of the representations to the free legal aid services are made by women which is a very sad commentary on the men to whom they are married. The Minister knows this. He very kindly presented himself to the Oireachtas Joint Committee on Women's Rights on 20 February last when he gave a first class account of his concern for and knowledge of the various issues raised by us in that Committee at that time. He is aware of the absence of adequate funding for those services.
Mr. Andrews: At the meeting of the Oireachtas Joint Committee on Women's Rights we also addressed the issue of the detention of women in prison, the segregation of young and old women and the non-custodial attitude to women. I mention these matters to lay the bogey that in some way we, as a Parliament, are not concerned about the equality or the role of women in our society. For example, there is also the protection of the status of women rearing children, working full-time in the home, so ably addressed by Deputy Browne of Wexford.
There was the helpful intervention of the Married Women's Status Act of 1957, the first Commission on the Status of Women to be followed by the second Commission on the Status of Women. There have been also the abolition of the bar on married women from working in the Civil Service, paid maternity leave and, since 1957, the abolition of illegitimacy. Then there has been the reform of the adoption laws. I remember raising the matter of illegitimacy in this House  20 years ago. If Deputy Fennell was responsible for the legislation which abolished illegitimacy, I congratulate her because it had long been overdue. We must give credit where it is due. Then there was the reform of the adoption law, the Judicial Separation Act, reform of the law on rape and the children's abduction legislation. Recently there has been appointed another woman High Court judge to complement the already well established and respected High Court judge, Miss Justice Carroll.
There is also the question of the appointment of women to State boards and a substantial section of the new Programme for Economic and Social Progress devoted to the equality of women. As I have already said, many Articles of the Constitution have been used to vindicate women's rights and to challenge laws discriminating against them. But the issue of equal opportunity is the real challenge rather than that of equality of rights. I believe I have adequately demonstrated the case for equality of opportunity.
The Minister has already outlined with admirable clarity the reasons this Bill must be viewed as another episode in the Fine Gael Party's desperate effort to convince the people that they, and they alone, have cornered the market on women's rights. I should have thought that Private Members' Time was a device intended to afford Deputies in Opposition an opportunity to initiate legislation. Unfortunately, the Bill before the House proposes a totally unnecessary constitutional amendment which would necessitate a full scale referendum. For example, the Bill makes no reference whatsoever to any specific proposal that might improve the lot of women. From time to time a Deputy comes to the House with a Bill designed to positively improve our laws. This Government have taken account of Bills proposed by Deputy Shatter, the first of which was the Judicial Separation Bill, subsequently amended and enacted. The second was the Foreign Adoptions Bill now being dealt with by a Special Committee of this House. These are two examples of the  type of opportunity that can be availed of by Opposition Deputies in the context of the time now being used for what I might describe as an irrelevance.
As we know, the United Nations has a very clear Charter in the context of women and their equality. As a nation we subscribe to that United Nations Charter unreservedly and without equivocation. Of course, we subscribe also to the European Commission Charter in the context of women and the requisite changes which national governments are called on to implement. I happened to pick it up as I was coming in to make my contribution to this worthwhile debate on the general condition of women. It relates to the equal treatment of women in the context of the social welfare code and states:
Following on the implementation in 1986 of changes necessary to introduce equality of treatment in accordance with the EC Directive on Equal Treatment, married women are now treated in exactly the same way as all other claimants in so far as rates of payment, increases for dependants and entitlements to unemployment assistance is concerned. In fact, the only remaining areas of inequality within the social welfare code relate to the more favourable treatment of married women as compared with married men in so far as entitlement to certain survivor's benefits and family benefits are concerned. Considerable progress has been made by the Minister in these areas during the past two years, however, through the introduction of assistance schemes for widower's and deserted husbands with children and more recently, through the introduction of the lone parent's allowance scheme which provides for full equality between men and women in so far as assistance payments are concerned.
The dental benefit scheme was extended to dependent spouses of insured workers in 1987, mainly women working full-time in the home. To date there have been 85,904 claims for dental benefit from  dependent spouses since the extension of the scheme to this category.
We do not raise that issue as any form of self inflicted kudos. This is what should be done, this is what has been done and will continue to be done. Discrimination against women of any description must cease once and for all. To suggest that one party are better than another or that one Government are better than another is not the issue; the issue is that regardless of whatever party or Government are in power they must ensure that the issue is addressed and the problem is solved.
Proinsias De Rossa: First I welcome the Bill and I hope Deputy Fennell will not regard me as being petulant or scornful if I criticise it. The Bill is important from the point of view of providing this House with a rare opportunity to debate the issue of discrimination against women and while there are serious defects with what is proposed nevertheless it is important that we have the opportunity to debate the issues.
I will begin my contribution by referring to the Second Commission on the Status of Women. My party made a recent submission to that commission entitled “Equal to the best”. It is important to bear in mind that what we are talking about is equalising the rights of women and the opportunities of women upwards and not levelling them downwards. For too long various Governments — no Government are exempt in this respect — implemented legislation and regulations which tended to level downwards, particularly in the social welfare area. That is true with regard to directives coming from the European Community. By and large, Irish Governments have been dragged virtually screaming to the point where they implemented in law what was already required of them by European directives. When they implement them they tend to do so on a most begrudging basis. It is important to bear in mind that what we are trying to do is to equalise people upwards. That is why we indicated  in our submission to the commission that we wanted equality with the best.
Our commitment to women's equality specifically is part of a broader commitment to social progress and the betterment of all citizens who are disadvantaged and discriminated against. We reject completely the idea of equalising downwards, of reducing anyone's status to that of someone who is even more disadvantaged in the name of so-called equality. We want women to be equal to the best in Irish society not the worst. More specifically, we also want women to be more equally and activily involved in defining what is the best. It is not for us, particularly this House which is dominated to a huge extent by men, to define what is best for women. It is important that women have a role in defining that also.
It may seem unnecessary to specifically reject the lowest common denominator brand of women's equality but, unfortunately, there have been several attempts by Irish Governments to introduce equality on the cheap by levelling downwards rather than levelling upwards. There have been numerous attempts by employers to circumvent both the spirit and the letter of equality laws through various technical and legal loopholes.
The submission I referred to from the The Workers' Party, which was a fairly substantial one, had more than 40 specific recommendations in it, some of which relate to a constitutional amendment, some relate to legal amendments and some do not require any legal base. It is important that the Bill before us addresses the question of the Constitution.
In relation to the specific proposals — I do not propose to go through them all — we made to the Second Commission on the Status of Women we addressed the question of the Constitution and the ambiguities in it at present. I propose to deal with that later. We draw attention to the fact that employment equality laws need to be reformed and ensure that women are not discriminated against and we give a specific example. At present for a woman to prove she should get  equal pay with men doing the same type of work a man has to be employed in the job where that woman is working. If the employees are exclusively women in a particular employment then she has no case despite the fact that in some other employments men may do exactly the same type of work and get even double the rate of pay that she receives. Our proposal to the commission suggested — and this may tickle the fancy of some women — that a notional man be introduced in relation to employment where it will be assumed that a man who might be employed in a particular job would receive a particular rate and, therefore, women claiming such a rate would have a case and not be dismissed automatically simply because a man was not employed in the specific area where she was working. That needs to be addressed.
Social welfare laws need to be reformed. We still have this ridiculous situation where adult dependants do not have an independent existence of their own. By and large adult dependants are women. We argue that social welfare payments should be individualised and each person in their own right should have an entitlement and not one based on their husbands' or their sons' or some other form of dependency. We also propose very strongly a minimum income system which would be backed up by minimum wage legislation to avoid abuse of it. We are not at all happy with the idea of proposing a wage for women in the home. Obviously, we are not opposed to the idea of women being paid for the work they do in the home; that goes without saying, but we have grave reservations about the idea that there should be an employer wage relationship between spouses in the home. The idea of a wage for house work would lead in that direction.
What we are proposing is a totally new concept of a minimum income system which would derive from a harmonisation of the tax and social welfare system which would provide a minimum income for all adults in our society, immediately abandon the idea of dependency by women and obviate the wage relationship that a wife would then have with her husband  if we were to go down the road of having a wage paid to women in the home. Equal status legislation is required. I have no doubt that there is a need for a ministry for women's affairs. We have a very good and capable woman in the Government, although she has only yet reached the point of Minister of State at the Department of the Taoiseach, Deputy Maire Geoghan-Quinn. She has responsibility for overseeing what other Departments do in relation to the status of women but she has no obligation to report to this House or to let us know what Departments are doing specifically to improve the status of women, and that is not good enough. There has to be Cabinet responsibility for dealing with this issue.
Maternity and paternity leave are important, as is community based child care. Parental and family leave should be introduced along the lines proposed in the draft European Community Directive. Major efforts need to be made to upgrade the status of unpaid work both by highlighting its social importance and its intrinsic value and by ensuring that those who engage in such work are not impoverished, as happens in 90 per cent of cases at the moment. By and large, it is women who are the carers in our society; it is women who care for elderly parents and end up with virtually no rights of their own and no entitlements. A carer's allowance was introduced in the last couple of years but it is totally inadequate and needs to be drastically overhauled.
The whole question of occupational pensions for women needs to be addressed. A woman who works in the home has no automatic rights, in her own right, to a pension. That matter also needs to be addressed. Companies and other organisations who employ ten or more people should be requird to include equality information in their annual reports: that would be a breakdown of the workforce by sex, age, grade and earnings, and a comment on whether this is seen as balanced in terms of sex and a commitment to specific remedial action if women are not adequately represented at all levels. That would be an important reform and one which would not require  a major amendment of our companies legislation. It is important that we introduce some form of contract compliance which would be used by Government in promoting equality by ensuring that no State contracts are signed unless and until certain equality tests are passed by the contractors seeking the work. Consumers also have a responsibility in this area, and this does not require legislation. They should apply equality tests to companies and other organisations in which they place funds, and campaigns to this end should be directed at institutional investors, individual investors and pension fund trustees.
The trade unions, of course, have a responsibility in this area. I think it can be truthfully said that the trade union movement mirrors the patriarchal society in which we live. Decision-making bodies ri = "5"in industry, trade unions and other organisations must include an appropriate proportion of women — at least 50 per cent. At least 50 per cent of future ministerial appointments to boards should be women if this is required to redress imbalances left by other nominating bodies. The latter should be required to nominate equal numbers of men and women where possible. The Worker Participation Act, 1977, and the Pensions Act, 1990, should be amended to provide adequate representation of women as worker directors and worker trustees, respectively. Again I stress that equality information in annual reports is a vital prerequisite to effective monitoring in this area.
There is need for change in the tax code and the social welfare code as well as in the means test area. Elderly women require particular attention as most are in grave risk of poverty due to poor financial provision and a lack of independent income. A minimum social welfare pension of £68.20 per week — about 10 per cent above the minimum income proposed — is required to give all pensioners a modicum of independence and financial security. Special attention must also be given to ensuring the physical security of elderly women, particularly those living alone.
Our health services need to be looked at. We need a charter of patients' rights.  We must ensure that high-handed or patronising treatment of women in hospitals is ended and that all patients have equal rights to access, privacy, confidentiality, information and an independent complaints procedure. Family planning legislation must be reformed and a draft Bill to this end should be before the House in the not too distant future, although if we are to go by recent press reports I fear it will be a very inadequate approach to the whole area of family planning.
Education plays a crucial role in forming attitudes and shaping the economic lives of all our citizens. Many reforms are needed in this area. There is need for new life skills programmes in schools, civics programmes, greater emphasis on resources for adult education and distance learning, teacher retraining and better public library facilities. The area of education is a vast one and needs specific attention and a special committee to look at the reforms that are required.
The last speaker, Deputy Andrews, referred to the United Nations and the Irish commitment to the United Nations and the United Nations Charter. He said that that commitment is totally unequivocal. We have not yet acceded to the article in the United Nations Convention on eliminating sex discrimination which concerns equal access to financial credit and other services and to recreational facilities. The continuing discrimination by financial institutions and other companies providing consumer credit should be investigated by the Ombudsman appointed by the Council of Credit Institutions who should report publicly on the extent of such discrimination as soon as possible.
As I said, there are a whole range of areas that need to be addressed, areas which require legal and constitutional change and which also require a change in attitude. I would address some of my remarks to political parties specifically. The fact that about 80 per cent of the Members of this House are male is a reflection of the fact that political parties do not assist the movement of women through their ranks. It is essential if our commitment to equality is to be genuine that we look at our own organisations to  see how we can facilitate the participation of women in politics.
The Women's Political Association have done very good work over the years in specific areas, but their work is among a particular stratum of women and does not reach the grassroots. I am not denigrating the work they have done but there needs to be a far more specific commitment by political parties as to how they do their business. I am including myself and my own party in the criticism I am making here. Traditionally party political meetings take place in the evening at a time which suits men and in places which suit men. Very few parties I know of provide the services of child minders to enable women to go to meetings. It is obvious that most male TDs would not be here were it not for the fact that they have wives who take on the bulk of the burden of family rearing and commitments in the home. That is an area which political parties specifically need to address. It does not require legislation, but simply a change in attitude and an understanding of the needs of 50 per cent of our population who have a right to participate in the political process.
These are all areas which need to be addressed. The area the Bill before us attempts to address is the Constitution. I am not belittling the efforts of the Fine Gael Party in bringing forward the Bill. They are doing a useful service in generating this debate, but the Bill contains serious gaps and is not very satisfactory.
Even allowing for the decade, the thirties, in which it was drafted, the de Valera Constitution adopted a narrow and restrictive approach to its treatment of women. It was not perhaps surprising, given the well established constructive credentials of the author of the Constitution and the fact that his principal adviser appears to have been Dr. John Charles McQuaid, who later became the Roman Catholic Archbishop of Dublin. Few objections were raised at the time with the honourable exception of people like Senator Kathleen Clarke but, given the growth in demand for equality of treatment for women over the past few decades and the considerable progress in a number of areas such as jury service,  taxation and employment rights, it is surprising that there has not been a stronger campaign for a constitutional amendment to reflect the changes in public attitudes which have been won since the thirties, very painfully and slowly.
The more one reads our Constitution the more it becomes evident that its treatment of women is grossly unsatisfactory. There are a number of highly significant Articles in the Constitution relating to the status of women in society, particularly Articles 40, 41 and 45, some of which are very ambiguous. Article 40 states that all citizens shall, as human persons, be held equal before the law. However, it goes on to allow the State in its laws to have “due regard to differences of capacity, physical and moral, and of social function” which seem to imply that unequal treatment is acceptable in certain areas, although these are not specified.
Article 41.2.1º states that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. The legal implications of this are far from clear. Article 41.2.2º says that the State shall 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. This very clearly implies that, as far as the Constitution is concerned, a woman's place is in the home. I know very few women — and indeed very few men — who accept that as a justifiable principle in this day and age. Article 45 states that all citizens, men and women equally, have the right to an adequate means of livelihood. It also directs the State to ensure that they may, through their occupations, find the means of making reasonable provision for their domestic needs. Furthermore, it pledges the State to safeguard the economic interests of the weaker sections of the community and, where necessary, contribute to their support. Finally it says that citizens shall not be forced by economic necessity to enter a vocation unsuited to their sex, age or strength.
Articles 9 and 16 forbid any exclusions on grounds of sex from Irish nationality and citizenship, for membership of parliament or from voting for Members of  parliament. Over the years, Articles 40, 41 and 45 have been cited in a number of constitutional cases concerning women's rights in areas such as employment, taxation, social security and family and property law. As a consequence, a number of important principles have been established under the Constitution, for example, that women cannot be deprived of employment purely on grounds of sex, that the exclusion of women from jury service was invalid and that the tax rules which treated married couples less favourably than unmarried couples living together was an attack on the institution of marriage and, hence, unconstitutional. However, although these particular forms of sex discrimination have been found to be unconstitutional, other principles have yet to be tested and, moreover, some of the tests, because of the inherently anti-woman bias in some sectors of the Constitution, could in fact prove to be negative.
I wish to draw attention to one case some years ago concerning Denis Dennehy. Based on the right of a woman to live in the home and rear her children he, as a deserted husband, sought a deserted wife's allowance but was refused it. He took a constitutional case and lost it on the basis that he was a man so there are clearly the possibilities of negative outcomes to constitutional test cases. For example, the Constitution does not clearly rule out discrimination against women who work outside the home, especially if they are married. Indeed Article 40, when read in conjunction with part of Article 41, clearly implies the permissibility of unequal treatment of men and women in certain respects. Nor has the nature or extent of the State's protection to women working in the home been tested or defined, except in relation to property. The important question of whether indirect sex discrimination or discrimination by impact is unconstitutional has not yet been resolved either.
Against this background there is a clear argument for amending the Constitution to remove ambiguities and to provide a clear prohibition on all forms of discrimination. We greatly fear, however, that  if the Fine Gael proposal is passed in its present form it will achieve little. We would like to see the Fine Gael amendment extended to include all forms of discrimination, direct or indirect, which are based on sex, marital status, sexual orientation, family circumstances, race, nationality, ethic origin, colour, age or disability. These are all areas where there are serious discriminations in our society and they should be outlawed by our basic constitutional document.
We are particularly concerned that the Fine Gael proposal provides for the retention of the references to differences of capacity, physical and moral, and of social function in the Constitution which could facilitate continuing discrimination. We believe that it is also necessary to include a provision to allow positive discrimination and we suggest the following additional wording to the Fine Gael proposal:
This amendment shall not preclude any programme, activity or legislation that has as its objective the amelioration of conditions of individuals or groups who are disadvantaged on account of the above mentioned characteristics.
This is based on a similar provision in the Canadian Constitution; it is a positive and inclusive one rather than a negative and exclusive one as in the existing Articles and indeed in the Fine Gael proposal.
As I said at the outset, I welcome the fact that Fine Gael proposed this Bill; I am quite happy and satisfied that they are genuine in bringing forward the Bill and that their intentions are to improve the situation of women in society. However, I have serious reservations about the impact it will have and the gaps it will leave if it is passed in its present form. We will be supporting the Bill when it is voted on at the end of Second Stage next Wednesday night. If it is carried here next Wednesday — although judging by the response of the Fianna Fáil speakers that seems unlikely — then we hope that Fine Gael and the other parties participating on Committee Stage will accept reasonable amendments to the Bill to make it all-embracing and to cover the serious gaps to which I referred.
Mr. Roche: I will be taking up the substantive points later. I agree with the sentiments expressed here last night by Deputy Ferris of the Labour Party who said that the Bill as it stands is almost irrelevant, although not quite. Having researched the subject we are of the opinion that the Bill is badly prepared and thought out. A constitution — any constitution — is an important document, it is far too important to be tinkered with and certainly far too important to be changed in the way proposed by this Bill. This Bill and the wording is fundamentally flawed. Serious problems will arise which I will outline in my contribution next week.
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