Private Members' Business. - An Bille um an Aonú Leasú Déag ar an mBunreacht (Uimh. 3), 1991: An Dara Céim (Atógáil). Eleventh Amendment of the Constitution (No. 3) Bill, 1991: Second Stage (Resumed).

Tuesday, 30 April 1991

Dáil Éireann Debate
Vol. 407 No. 6

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[1553] Atairgeadh an cheist: “Go léifear an Bille an Dara hUair.”

Question again proposed: “That the Bill be now read a Second Time.”

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  I made the point last week that the Constitution is the basic law of the nation, a treaty or a concordat between the people. As the basic law of the nation it should not be tinkered with. There was a time when Fine Gael were regarded as the great constitutional party of this House. They regarded themselves as the self-appointed guardians of the Constitution and of the law but in recent years they have regarded the Constitution as a document which can be used in any way they judge to be expeditious in scoring a political point. There is a great talent in that party and it is a tragedy that that talent is used for negative purposes.

During the past few years Fine Gael have mindlessly proposed a whole series of constitutional amendments as an alternative to promoting real solutions to various problems. Last week the Minister of State cited Arthur Schlesinger. The quotation was very apt and it certainly applies in this case and in the case of the nine or ten other constitutional amendments which Fine Gael have proposed in recent years. He said:

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.

Nobody would deny that the issue of discrimination is a substantive and very serious problem. Discrimination, in all [1554] its odious forms, is something to which people should address their ingenuity with a view to its termination. As the Minister of State, Deputy Brady, said last week, referenda are, by their very nature, clumsy instruments. They are cumbersome and cannot deal with the fine detail which can be dealt with in statute law. Neither can they handle nor should they be used as a means of dealing with issues which should be dealt with in statute law.

The only occasion when we should consider using a constitutional referendum or amendment is when some serious and important consequences would flow from a change in the Constitution. Alternatively, we should use constitutional referenda or amendments where it can be shown that necessary legal change is being hampered by some inflexibility within the Constitution. In all the contributions made here last week nobody suggested that the simple change in wording proposed in the Bill was necessary either because a whole series of progressive measures would flow from it or because some provision in the Constitution was impeding any of the progressive measures that the proposers of the Bill would like to see put in place.

As other speakers have pointed out, the proposal to change the Constitution does not push forward the cause of women's rights by one inch nor does the Bill facilitate any legislative reform which has been blocked by a constitutional stricture. The Bill, if enacted, and the referendum if it were to follow on, would achieve absolutely nothing of any consequence to women. I read the speeches of Deputy Mitchell and Deputy Barnes in great detail. Their contributions were as good as could be expected, given that they were dealing with something which was fundamentally flawed. What was missing was any indication of what positive purpose would flow naturally from the Bill proposed. At best, the Bill does no more than restate what is already in the Constitution.

Throughout the Constitution a variety of rights are conferred on the citizen. Article 9.1.1º is interesting in that regard. [1555] That Article confirms the right of citizenship and states that “any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.” It goes on to state:

The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

No person may be excluded from Irish nationality and citizenship by reason of the sex of such person.

It is clear that Article 9.1.1º, on the issue of citizenship, already deals with the point which the Bill purports to address. That Article specifically indicates that nationality and citizenship cannot be denied to any person by reason of the sex of that person. That is important because a series of other consequences flow from that Article. Given that many other parts of the Constitution have been quoted, it is worth our while dwelling on Article 9.1.1º and 9.1.3º which for some reason was not referred to in any of the contributions made last week. It follows from that Article that if no person can be excluded from nationality and citizenship by reason of gender no person can be denied or delimited in their enjoyment of the rights and the responsibilities of citizenship because of gender.

While Article 9.1.3º has been largely ignored in the debate so far Article 40.1 has been referred to frequently. Article 40.1 is very specific but it was dismissed rather lightly by Deputy Mitchell last week.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  I did refer to Article 9.1.3º.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  I accept that the Deputy referred to it and suggested that there were two cases which specifically prohibited discrimination. It has been referred to in more than two cases but the Deputy is quite correct when he says that there were two fundamental cases. Article 40 states that “all citizens shall, as human persons, be held equal before the law.” That Article is fundamental to [1556] any discussion on personal rights. That Article and the series of Articles which follow deal with the personal rights of the individual. The first clause of this Article is central to all our rights as citizens and proclaims that we all, irrespective of gender, race, creed, denomination or even national origin, have rights. Read in conjunction with Article 9.1.3º it should be clear that rights are enjoyed by all citizens, male and female.

The second clause of Article 40.1 allows discrimination but such discrimination is, of necessity, positive and cannot, I would submit, either consciously or accidentally, be based purely on sex.

In his contribution supporting the Bill last week, Deputy Mitchell, while largely ignoring Article 9, though I accept he made some reference to it, was dismissive of Article 40.1. He told us it has been relied on only twice to outlaw sex discrimination. If it were relevant I might quibble with Deputy Mitchell about the number of occasions on which this Article has been cited in regard to discrimination. However, I would regard the fact that it has been cited or relied on successfully as a basis for outlawing discrimination as being more relevant than the number of occasions on which the issue arose. Once is a precedent, twice is a precedent established, and this Article has been relied on to strike down discrimination on the basis of sex on more than two occasions. Deputy Mitchell made slight reference to the cases in which Article 40.1 has been cited as banning sex discrimination. Whether this is a debating tactic or an oversight I do not know, but I know the findings of the High Court and the Supreme Court in the matter cannot be lightly brushed aside. The High Court in dealing with the Adoption Act, 1974 was very clear on the issue of discrimination. This was a major finding which clearly set out and interpreted the rights of men and women in our Constitution. This Act sought, no doubt with some positive purpose in mind, to distinguish between the rights of men and the rights of women in the issue of adoption. The relevant case of O'Grady versus[1557] the Attorney General made short shrift of discrimination and made it clear that sex discrimination was and remains repugnant to the Constitution.

One section of the judgment is well worth recalling. Dealing with the central provision of the Act, the court found the provision was and I quote: “founded on an idea of difference in capacity between men and women which had no foundation and it was, therefore, an unwarranted denial of human equality and was repugnant to Article 40.1 of the Constitution”. Why then is there a need to reinvent the wheel in this Bill? The purpose suggested by Deputy Mitchell in introducing this Bill is good, but it is clear from that finding in that significant case that sex discrimination is already illegal and repugnant to our Constitution.

In summary, in this case the court found that sex discrimination was a denial of human equality and as such repugnant to the first of the fundamental rights provisions of the basic law of this land.

Does any Member of this House seriously believe that any court could lightly brush aside the crystal clarity of that judgment? I do not think anybody could seriously argue that a judgment which is so clear cut could lightly be put aside. If any law were to be introduced and passed here which clearly, specifically and intentionally — or even unintentionally — discriminated between men and women on the basis of sex alone, and if a counsel were to try to argue around that finding, she or he would come up against a second equally unequivocal judgment which I think was over-looked by Deputy Mitchell last week. That was the judgment in the De Burca case in 1976. The Deputy may have mentioned it.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  I did.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  Then I apologise, but if he mentioned the De Burca judgment he must accept that in the Supreme Court his issue was dealt with with even greater clarity then it was in the O'Grady case. The judgment which was handed down in 1976 is not open to any question at all. [1558] In this case the Supreme Court found, and I quote: “...it is not open to the State to discriminate in its enactments between the persons who are subject to its laws solely upon the grounds of the sex of those persons.” With respect, it could not become clearer. That is precisely what was said in the De Burca case. I will send the Deputy a copy of the judgment and he can read it for himself.

The least of the problems with this Bill is that it is otiose. It reinvents the wheel. It is doing something that is already extant in law. A more serious problem with the proposal is that it could produce a situation whereby it would, in fact, defeat its own stated purpose.

Deputy Ferris made a very interesting contribution on this Bill. He made the point about its dangers. I will deal first with something similar which was dealt with by Deputy Vincent Brady, Minister of State at the Department of the Taoiseach, when he pointed to a number of items of slip-shod drafting in the Bill. This point is sometimes hurled from Government benches at the Opposition. I accept that Opposition Deputies have difficulty in regard to drafting because the whole area of parliamentary draftsmanship is something of a black art and its expertise is denied to mere common mortals. Deputy Brady's contribution on this matter last week brought forward specific problems with the Bill, simple as it is in its presentation, which cannot but be referred to.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  Is that not what Committee Stage is for? This is Second Stage.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  With respect, I tell Deputy Mitchell he will have the opportunity of coming back. If any political party are going to introduce a Bill to affect the fundamental law of this State they should at least get small aspects of drafting correct.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  Is that not what Committee Stage is for?

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  Deputy Brady cautioned about being over anxious to rush into [1559] referenda, a lesson I felt should have been learned at this stage by Fine Gael. Deputy Ferris highlighted a more serious deficiency in the Bill.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  Is the Deputy afraid of referenda?

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  I am not afraid of referenda.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Deputy in possession without interruption, please.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  Sorry, I am probably encouraging it. Deputy Ferris describes the Bill as it stands as “almost irrelevant to the task in hand.” He went on at some length and pointed out that, worse still, the Bill is “badly prepared and ill thought out and its consequences have not been considered.” Amen to that. He continued and again I quote: “As a result the Bill could do some damage to the cause of equality if passed in its present form.” In his conclusions he became even more trenchant. He suggested that: “As drafted this legislation is ill advised, it is badly thought out, incompetent and it may be dangerous.” The judgment may be a little harsh but it is not entirely inaccurate. It has to be said that, having described the Bill as ill advised, badly thought out, incompetent, dangerous and almost irrelevant to the task in hand, Deputy Ferris indicated he would consider supporting the Bill, but then consistency is never something which is required in this House.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  A bob each way.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  All forms of discrimination are odious. Discrimination on the basis of sex not only denies the individual the full dignity of his or her equality but it denies the State which is stupid enough to practise such discrimination access to at least half the human talent with which the State is endowed. This is not a new thought. Plato, not a person you would regard as liberal, argued in his Republic[1560] that the whole pointlessness of sex discrimination was it denied the use to the State of half its talent. Discrimination on the basis of creed is equally obnoxious, nor can discrimination on the grounds of colour, age or class be tolerated in any civilised society. Discrimination on the basis of class, colour, creed, social standing or national origin is not specifically dealt with in the Constitution. Why, therefore, did the proposers of this amendment not consider it worth their while expanding the proposition to deal with other types of discrimination not specifically mentioned in the Constitution? Fine Gael are not proposing amendments to Bunreacht na hÉireann on any of these areas. The Opposition are not silent on these issues, I hope, because they condone such discrimination — I know that not to be the case. They are silent in these areas because they know that such discrimination could not be tolerated by the Constitution as it stands. In the same way Fine Gael know that any legislation deliberately setting out to discriminate on grounds of sex would be struck down, if not in this place then in the courts.

Unlike Deputy Ferris who so brilliantly highlighted the deficiencies and consequences of following blindly along the lines proposed by this Bill, because this Bill is irrelevant to the task at hand, badly thought-out and ill-prepared and because, in Deputy Ferris's words, it is incompetent and might potentially be dangerous, I am opposing its passage. I find nothing in this Bill to commend.

The only way of addressing the vestigial discrimination which undoubtedly exists is by positive legislation. We cannot deal with the type of problems we have, the types of problems women and various minorities have in our State, by way of referendum. One must use one's ingenuity as a legislator to think up positive law to address discrimination. I do not suggest that this set of proposals is a mere shibboleth but it comes close to it.

It is a great pity that a party who have had a great tradition of defending the Constitution and in positive law should be reduced to proposing, on average [1561] every two months, a Bill to amend the Constitution. That is no alternative to positive thinking and to bringing forward proper legislation. This Bill is fundamentally flawed. It will achieve no positive purpose, as the people proposing it know. It does little other than serve some public relations objective and that is a great pity. The Constitution of this State is more important than the short term political considerations of any politician or political party. It is not something to be tinkered with lightly.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  de Valera's image.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  It is not something to be used to score points. It is a great pity that a party who have contributed so much over the years in terms of the production of law and thinking should be reduced to mere PR shots and using the Constitution for that purpose. The Bill is fundamentally flawed and does not deserve support.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  I wish to share my time with my more learned colleage on this subject, Deputy Taylor-Quinn.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that satisfactory? Agreed.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  I have been an ardent admirer of women from the days of my youth and looking across at the Minister I still remain an ardent admirer of ladies in various forms. I have often been accused in recent years by women's organisations of being anti-women. I wish to refute that. I have traditional views for which I make no apology, particularly in regard to married women's duties to their children. Women who embark on marriage as a profession or career have a duty to look after their children and provide a settled home for them until they reach the age when they can stand on their feet. That might be an old fashioned view but it is one which many people, including women, share.

I have no difficulty supporting this Bill. While great strides have been achieved by women in recent years, there is a [1562] long way to go in their fight before real equality is fully achieved. There are many areas of Irish life where women are discriminated against, especially the area of family law. Three years ago the High Court decreed that, in the case of marriage break-up, house ownership was settled on a 50-50 basis. A recent decision in the High Court by Mr. Justice Bannon has thrown a spanner in the works. He decreed that, while women have a percentage interest, they no longer have an equal right. That must be addressed if equality is to be achieved in that sector.

In the recent rape Bill the concept of marital rape was alluded to but not recognised. A decision in the House of Lords two weeks ago recognised that marital rape is a crime. We have to do some homework to equal the score in relation to legislation across the water.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  We do not have that.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  We do not have equality. There is a definite imbalance in the Diplomatic Corps and the Judiciary where there is a bias against women which should be addressed. In the private sector corporate echelons do not reflect the input many capable women have made in business in the years since the fifties.

Another area which can be seen as a male bastion is the education sector where principals of all types of schools, including convent schools, are almost without exception male. Women teachers fill the lower paid posts.

The most glaring example of inequality is to be found in the public sector. Figures given by Deputy Gay Mitchell point to an overwhelming bias against women. Among the 16 Department Secretaries there is not a woman, while there is only one woman among 99 Assistant Secretaries. I accept that part of the bias is historical, dating back to the early seventies when women had no option but to leave employment. It was Fine Gael who addressed that problem and corrected it. Since 1973 there seems to have been a bias by various Governments, and I indict my own. Surely there are many capable [1563] ladies in the public service who deserve a push up the ladder. These unacceptable figures belie any claim by the Fianna Fáil Government that women are to be treated equally. An immediate elimination of this hypocrisy is called for if Fianna Fáil are genuinely to be seen to be interested in the welfare of women. Women should be paid equally. If they are sufficiently competent to undertake any given job then there is no cause for paying their male counterpart more for doing the same simply because he is a man.

I might pay tribute to the women Members of my party, in particular Deputies Barnes and Fennell. I would include also Deputy Taylor-Quinn, — but the first mentioned were in the vanguard of the fight for women's rights over the years. The Minister of State present very often has been in agreement with their demands. Those two women Members of my party have imprinted their names on the minds of the public as being chiefly responsible for the great improvement wrought in women's conditions in recent years.

I do not always applaud my party. Indeed some years ago I was regarded as a malcontent, criticising them on various issues. But Fine Gael can take a bow on having embraced the cause of women, on having involved so many women Members in politics, on having introduced so many women Members to this House. I know the Minister of State has been to the fore also within her party in espousing the cause of women, but somehow, Fianna Fáil have failed to capture the public image of being genuinely interested in equality for women.

I do not often differ from my women colleagues. I am sure eyes were raised in alarm when I came into the House for fear of what I might say. I believe that, when the fight for equality for women has been won, Fine Gael will be seen to have been the party to have been most genuine in advancing the cause of women's rights generally.

[1564]An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Deputy Taylor-Quinn is sharing time with Deputy McGahon.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  I should first compliment my colleague, Deputy Gay Mitchell, on having undertaken the necessary research, drafting and presentation of this Bill. In so doing he has addressed a fundamental problem. Much legislation has been processed through this House over the years to redress various inequalities in different sectors, whether that be in the labour, family home or other areas. The fundamental problem lies within our Constitution.

I was very disappointed at Deputy Roche's contribution here this evening. It became very clear to me that he does not understand its superiority or the way our Constitution supersedes all legislation passed by these Houses or indeed any case law decided by our courts. The Constitution is the final legal document protecting the interests of our people. Finally, everything rests on the Constitution, whether it be legislation going through these Houses or case law determined in our courts.

In introducing this Bill, Deputy Gay Mitchell has addressed the central issue of the real problem that is within the Constitution. Over the years we have reacted, in particular since 1973, to EC Directives. Were it not for some of those directives much legislation would not have been processed in this House. That, coupled with the work undertaken by the Council for the Status of Women and various women's organisations — who over the years exerted pressure on successive Governments — has resulted in much legislation being introduced in this House.

We should be aware of the fact that the United Nations established a committee to examine the whole question of discrimination against and equality for women. In Article 2 of their report they recommended that all member states should ensure, in their Constitutions — be they written or otherwise — that any such discrimination obtaining is redressed or eliminated.

[1565] Deputy Gay Mitchell, on behalf of the Fine Gael Party, has taken a major stride forward, as has been the record of Fine Gael in the past. Over the years Fine Gael have been the one party in this House that adopted a very progressive approach to equality legislation, reform and the overall position of the role of women in Irish society. They have been to the forefront on that issue.

I am delighted that once again we are taking another forward step. Unfortunately, Deputy Roche did not appreciate that fact. He attempted to denigrate the Fine Gael attempt in introducing this Bill to the House as being a cheap publicity stunt. On the part of somebody who appears to be so learned, who reads into the record of this House so many pieces of academic knowledge, it is amazing Deputy Roche is not aware of the basic fact, which is the superiority of the Constitution vis-à-vis all legislation passed in any form.

I am sorry that Deputy Roche is not present in order to give him that basic lesson in legal education, something of which most people are aware. In attempting to denigrate the Bill Deputy Roche has demonstrated a regressive type of attitude. Indeed, some of his colleagues on the far side of the House, in particular the Minister of State present — with whom I worked on the Oireachtas Joint Committee on Women's Rights for five years — must have been somewhat taken aback at some of the regressive ideas he presented to the House this evening. I do not think some views he expounded would have had the full support of some of his colleagues, which is unfortunate. Indeed, he would appear to advocate less progress than, say, the founder of his party, Eamon de Valera, who at various stages attempted to amend the Constitution.

Deputy Roche argued this evening that referenda are clumsy instruments that cannot deal with fundamental issues that properly should be dealt with by way of statutory law. That is an appalling statement on the part of any Member of this House. All public representatives should recognise the value of referenda. The [1566] difficulty here is that we have not had sufficient referenda; they have not been a feature of our political life. One need only examine the position in other countries, in particular Switzerland, where referenda are held on various issues every few months, they being a common feature of political life there.

It is important that we view referenda as being part of the political process, as fundamental to a good political democratic process rather than be fearful of them. In discussing referenda this evening Deputy Roche lectured us on this side of the House on our experience vis-à-vis referenda in the past, advising us that we should be fearful of them. That is most unfortunate. I would appeal to the Government parties to adopt a different attitude. Referenda are good and the people always should have their say.

This Bill, if enacted, would present the people with an opportunity to register their views on Article 41 of the Constitution which clearly discriminates against women. That Article states that women have a particular position within Irish society, that being very much within the home — referring specifically to the home, the family, the woman, the mother. At no time is the man or the father referred to in the Constitution. Rather the Constitution talks about the duties of the woman, of the mother in the home. One could say that the woman in the home who does not happen to be a mother is discriminated against also. There is serious discrimination in this Article.

The political climate is now right for the House to examine this issue and recognise that the women of Ireland and, indeed, many of the men, are anxious that the discrimination should discontinue. We will have a very real political opportunity on local election day on 27 June to present the people with a referendum. It would not cost the State any extra money because an election is being held on that date. It would be an ideal time to put this issue to our people.

I hope the other parties in the House will see the wisdom of the proposal by Deputy Gay Mitchell. It is specific and [1567] positive, one that deserves support. It is supported by the various women's organisations. When the womens group of the Irish Council of Civil Liberties sought to redress this aspect of the Constitution they made a recommendation that an equal rights clause be inserted into Article 40. Their reason for making that submission was that they believed that such a clause would provide a legal definition of equality which at present is not in the Constitution. Article 40 does not state clearly that discrimination on the basis of sex is prohibited. It is important this matter be addressed. Groups such as the Irish Council of Civil Liberties do not make recommendations without having them thoroughly examined and fully analysed and we should recognise that fact. What is being proposed is not dramatic or radical; it is something that is now required in a society progressing into the nineties and moving on to the next century.

As members of the European Community, we have an obligation to eliminate from our Constitution any discriminatory clauses. Only last week the Second Commission on the Status of Women, established by the Taoiseach last November, produced an extensive list of recommendations. It is amazing that, despite all the talk we have had for the past 20 years in relation to equality for women in Irish society, so many inequalities exist. One of the recommendations of the Commission was that legislation should be introduced immediately giving each spouse equal rights of automatic beneficial ownership of the family home and household chattels. That is a very important recommendation because, as the House is aware, the position in law is that the purchase price of the house and the amount contributed by either spouse is taken into consideration and allowance is not made for the work a woman does in the house or the contribution she has made over the years, even the financial contribution. Our thoughts will have to move from financial contributions to real contributions in the type of work done and the effort made to rear a family, [1568] manage a household and an income. Under our family law no consideration is given to that contribution. That recommendation was made no later than last week yet Government speakers strongly oppose the recommendations put forward by Deputy Gay Mitchell.

One of the proposals put forward was that national lottery and other public funds should not be allocated to private clubs that operate discriminatory policies against women. All Members are aware of the clubs throughout the country, private and not too private, that operate definite discriminatory policies against women, yet successive Government Departments allocate public funds to them. It is time the Government, and each Department, laid down conditions that any club which actively discriminates against women or any group should not receive public moneys. That should be a fundamental principle of all Government Departments and every Member should support it.

It is unfortunate that taxpayers are paying money into the Exchequer to have allocated to clubs that operate discriminatory policies. I hope the Minister of State at the Department of the Taoiseach, Deputy Geoghegan-Quinn, who is present will actively pursue that matter with the Taoiseach and the Government because it is despicable. I note that in the past she supported this thinking. I listened to Deputy Roche and was appalled at some of the comments he made but I was consoled to see the Minister of State present knowing that she had different thoughts and was somewhat more progressive than Deputy Roche.

The Second Commission on the Status of Women recommended that the Government should appoint a fifth member to the top level appointments committee. I am sure the Minister will respond to that recommendation because it should be seriously considered.

Deputy Mitchell, in the course of his contribution, outlined much of the case law against women and where the Constitution had not protected the rights of women. Those cases are now on record. Deputy Roche attempted to confuse the [1569] issue and I suggest he misquoted and misrepresented the record of the House in what Deputy Mitchell said last week.

One of the most serious problems in relation to discrimination against women is the attitude that exists. There is an attitude among the public in general that is so basic that it will have to be addressed. The Department of Education can do much to redress that inequality. Attempts have been made over the past five or six years to change the style of text books so that men and women are not put into particular role models. There is still within our society an attitude — and, perhaps, Deputy McGahon reflected it partly in what he said in relation to women — that once women have children they should be there to rear them until they get on their feet. Deputy McGahon forgot to refer to the fact that there is also a father. He did not appear to believe the father had any obligation to be at home until the child got on his or her feet. That view reflects the thinking of many males in Ireland. To get those males to come out of their cosy condition and state of mind will require a dose of shock treatment. It is about time the legislators gave them the shock treatment. Nothing would be better than to present them with a referendum which would challenge their beliefs. People may say they espouse equality but when you scratch the surface you might find they are not very sincere in what they say and that fundamentally they believe equality is grand at a distance but they do not want to bring it too close to home. It might be no harm to give people the opportunity to reflect on their attitudes and perhaps call a halt to hypocrisy on the role of women.

It is commonly said that the woman's place is in the home and I am sure every lady Member of this House, all 13 of us, has been asked at different times if it would not be fitter for us to be at home. That attitude still prevails and there will have to be a great deal of work done to change that attitude. Young children, despite what they are being taught at home, will have very definite attitudes on what A and B should be doing once the [1570] forces of society come into play. This problem will have to be addressed through the educational system first and then through legislation in this House and a referendum.

The 1986 census showed that we had a population of 3.54 million, of which over 50 per cent were women. It is timely that women be given an opportunity of registering their voice on the issue of equality and registering their vote at the most fundamental level, which is the Constitution. It is unfortunate that some Members do not recognise the superior position of our Constitution over all other legislation. This is the real place to address the issue of equality and having addressed the issue in the Constitution, all other legislation would have to abide by the Constitution, as amended. Deputy Mitchell's amendment is highly commendable. He must be commended for the progressive attitude he has taken on this issue and on the research and work he has done. I ask the other Members to fully support this Bill.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  First, let me assure Deputy Taylor-Quinn that I do not subscribe to some of the views she ascribed to Members.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  I know that, Deputy.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I know she knows that. With your permission, Sir I would like to share my time with Deputy Síle de Valera.

Acting Chairman (Mr. Sherlock): Information on Joe Sherlock  Zoom on Joe Sherlock  Is that agreed? Agreed.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I listened to this debate last week and I have been listening to it tonight. The main benefit of this Bill in Private Members' time is that it has led to this Dáil focusing on the question of equality of opportunity for women. We needed that debate in the Dáil and for that reason I welcome the very good debate we have had and are having in this House. I do not agree with Deputy Mitchell's specific proposal to amend [1571] Article 40 of the Constitution; in fact I cannot understand why he has used the Constitution to raise some very valid aspects relating to equal rights for women. Article 40.1 as it stands recognises the rights of women. I know this has been said before but I think it warrants repeating; Article 41.1 states:

All citizens shall, as human persons, be held equal before the law.

You do not have to be a constitutional expert to understand that the term “citizen” includes men and women. This is a basic fact and it has to be repeated.

It is not prudent to tamper with our Constitution in an erratic manner. As one spokesperson for the Labour Party said last week, to do so “could do some damage to the cause of equality”. Nevertheless, very real and pressing issues of equality have been raised during the debate and I would like to deal with some of them. Women's rights should be the concern of both men and women. This is the case for most men in this country. It is true in the case of the male Members, including myself, who are on the Oireachtas Joint Committee on Women's Rights. This committee are currently dealing with issues referred to by Deputy Taylor-Quinn, and with discrimination against women in clubs, including golf clubs. I certainly agree with her sentiments on that issue and I hope that matter will be resolved.

The two most important aspects of this debate are society's attitude to women and equality of opportunity for women and men. As I understand it, women want to see a levelling of the playing field: they want fair play. They do not want favours or positive discrimination. They deserve equal status, an opportunity to work, to get to the top of profession, a company, a trade union or a political party on merit. That is the way it should be.

The role of women in the home and the rearing of children have been referred to during the debate and many speakers have referred to Article 41.2.2º:

[1572] 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.

Nowadays, rearing children is a shared responsibility between mothers and fathers in most families. This Article of our Constitution is, to say the least, a little dated and I am surprised Deputy Mitchell did not focus his attention on it. We have focused more on Article 41 than on Article 40 in this debate. Whereas I recognise the legitimate motives of those who formulated Article 41 to protect the security of the child and the desirability of the mother being with a child in the home, Irish society is now so different from that which existed 54 years ago that this Article has little meaning today. For economic reasons in many cases, both father and mother must now go out to work. Professional child-minders, nannies and crèche facilities are part and parcel of modern Ireland. Both the father and mother have duties in the home.

There are many single parents who deserve and get State support to rear their children and get suitable accommodation. I do not think they would pay much heed to somebody telling them not to neglect their duties in the home. They simply want to get on with providing a warm, comfortable home for themselves and their children and deserve the State support they get to achieve this. I have no doubt that many TDs in the course of constituency work have come across deserted fathers: I have come across quite a few. A Constitution which refers only to the mother; as the one who stays at home to look after the children does not have much relevance for those fathers. Responsibility for the care of children does not fall just on the shoulders of the mother. In the vast majority of cases it is seen as a shared responsibility between the father and the mother, and the State and our Constitution should recognise this.

The State currently recognises the right of the mother to take 14 weeks' maternity leave. This is to be welcomed but I [1573] believed we should endeavour to extend the period of maternity leave. There are very many financial pressures on young married couples and on first time parents to return to the workplace shortly after the birth of a child. I appreciate there will be financial implications but I feel strongly that we should aim in the years ahead to ensure that there is financial compensation for women who want to take a lengthy break from the workplace in such circumstances. We should also endeavour to introduce paternity leave after the birth of a child. For example, if the mother had to return to work shortly after a child's birth, why should the father, if he so wishes, not take parental leave from work to care for the child.

It would be an interesting exercise to look at this issue in other EC countries. In Germany, they allow eight weeks post-natal maternity leave, but 12 weeks are allowed in cases of multiple births and during this time the mother is in receipt of her full earnings and the employer is required to supplement State benefit. Either parent may take 18 months' parental leave, and there is a cash allowance for the unemployed. In addition, each parent is entitled to take five days paid leave to care for a sick child under eight years of age. In France, ten weeks post-natal maternity leave is allowed. Parental leave is available until a child reaches three years of age and may be taken full or part-time. The time can be shared between parents so that both mother and father may work part-time. However, this leave is unpaid unless there are three or more children where a flat rate benefit is paid.

In Italy, three months post-natal maternity leave is available and benefit equivalent to 80 per cent of earnings is paid. A period of six months parental leave may be taken during a child's first year. Leave is granted to the mother but she may cede this right to the father. During the period parents receive State benefit equivalent to 30 per cent of earnings. Some women in the public sector get higher payments due to collective agreements they make. Women workers, but not men, may take [1574] unpaid leave to care for a sick child under three years of age.

In the Netherlands maternity leave has recently been extended to 16 weeks, but there is no parental leave. A scheme has been approved by the Parliament but has not yet been introduced. It would give each parent the right to six months reduced hours — 20 hours a week — which could be claimed at any time until the child is four years old. This individual right to part-time leave could not be transferred from one parent to another, and the leave would be unpaid. In Belgium maternity leave lasts for 14 weeks and there is no statutory parental leave. However, workers can take six to 12 months leave from employment — called interruption de la carrière professionelle— for family or personal reasons. A low flat rate benefit is paid. In Luxembourg eight weeks post-natal maternity leave is available and women receive benefit equivalent to 100 per cent of earnings. Fathers are entitled to two days paid leave.

In the United Kingdom 29 weeks post-natal maternity leave is available. There is a length of service condition and to qualify women must have worked with the same employer for at least two years full-time or five years part-time. This excludes a large number of women. There is no paternity leave and no leave to care for sick children. In Denmark 14 weeks post-natal maternity leave and two weeks paternity leave is available. In addition parents may take up to ten weeks parental leave. During this period parents receive benefit equivalent to 90 per cent of earnings. In Greece maternity leave lasts for 14 weeks. There is statutory parental leave of three months for each parent and six months for a lone parent. This leave is unpaid. Parents are entitled to unpaid leave to care for a sick child under 16 years of age.

In Portugal maternity leave lasts for 90 days, and benefit is equivalent to 100 per cent of earnings. In addition, parents may take up to 24 months unpaid parental leave but the take-up is reported to be low. Paid leave to care for sick children is available to government employees and [1575] lone parents earning below a certain limit. In Spain maternity leave lasts for 16 weeks. There is a period of 12 months unpaid parental leave. Parents are entitled to take unpaid leave for the first two days of a child's illness.

As I said earlier, in Ireland women receive 14 weeks maternity leave. Women in the public service receive full pay. There is no maternity leave, parental leave or leave to care for sick children. Many employers, however, grant two days discretionary leave to fathers on the birth of a child.

I recognise that the Programme for Economic and Social Progress underpins the Government's commitment to bring about equality and equal opportunity. I await with interest the recommendations of the Second Commission on the Status of Women. I hope they will examine closely the questions of maternity leave, paternity leave and parental leave and come up with practical recommendations. There are some enlightened, progressive and imaginative measures in place in other EC countries, as I have just pointed out, and we should take the better elements from these proposals. Of course there is a cost factor, and the question must be asked as to who will pay for this and what proportion will be paid by the State, the parents and the employer.

Let us look at this area in the interest of equality for women and good child care services. Recent figures showing a substantial fall in the Irish fertility rate suggest that the cost may not be as high as might appear. Even though we had the second highest fertility rate in Europe in 1985, second to Turkey, the figure dropped from 3.23 in 1980 to 2.49 in 1985. This compares with 3.97 in 1985 for Turkey. At the lower end of the table the figure for the Federal Republic of Germany in 1985 was 1.28. That shows quite a discrepancy. A further fall in the fertility rate will have major implications for our ability to pay for legislation in this area, but I expect harmonisation within the EC. I know that the Minister of State, Deputy Máire Geoghegan-Quinn, will be [1576] very aware of what is happening at that level. It will also have implications for our ability to provide crèche and child-minding services as referred to in the new programme. The potential for support from the European Community is being examined by the Minister for Labour. I hope that Community assistance will be available for the provision of crèche facilities, in particular in disadvantaged areas.

I referred earlier to attitudes to equal rights. Many of our attitudes are formed and developed during the early years in schools. I welcome the advances made in our educational system in promoting equality for boys and girls, men and women. The current Minister for Education has shown a specific interest in promoting this matter. However there is still much to be done with the school curriculum to ensure that the boy and girl sitting in the classroom feel that they are equals. That does mean that Mammy has to be shown going out the door to work being kissed goodbye by Daddy who is wearing his apron, and handing Mammy her sandwiches.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  It would be a nice changes.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  It would be a nice change but I do not think we need to make those desperate changes.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  Or Daddy waiting with the rolling pin.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  In the old days Daddy went out to work and Mammy was at home wearing her apron and waving goodbye. I do not suggest that we reverse the roles. What is required is equal treatment. For example, I understand there is a departmental recommendation in relation to the teaching of singing in primary schools, that girls should be taught to sing soft, gentle songs and boys should be taught to sing lively, upbeat songs. I do not believe that teachers take much notice of such advice. In fact in a mixed classroom it would be virtually impossible to implement such a measure. These [1577] aspects of our curriculum must be taken out once and for all. I would have to put on record my strong belief that the vast majority of teachers, male and female, with mixed classes are promoting very actively the concept of equality in the classroom, but the system under which they operate must also recognise this concept.

Reference has been made during the debate to the FÁS schemes and I would encourage those operating the schemes to ensure that women get their fair share of the opportunities. I would have had much more respect for Deputy Mitchell if he came in here with a motion in relation to the kind of issues I have raised. As I said at the outset, they are very legitimate issues. Politics is about getting things done, finding solutions and taking action. Successive Governments in the last 25 years have taken action. The Fianna Fáil Party have contributed substantially in introducing the Succession Act, legislation on equality in the workplace and in the tax system, free legal aid and so on. Since 1987 we have had the introduction of the Judicial Separation Act which was initiated by Deputy Shatter, my constituency colleague, reform of the rape laws and legislation to protect part-time workers, the majority of whom are women.

Deputy Fennell in her contribution last week gave the impression, in a very strong attack on Fianna Fáil, that all these measures were due to the efforts of the Fianna Gael Party. I appreciate that there was quite a contribution from that party but I had thought that in the last few years we had all reached a new level of political maturity in this House that rejects old-style partisan attacks of that nature. The reality is that legislation is not introduced unless the Government party decide at Cabinet level to do so and the necessary numbers are there to walk through the lobby.

Let us collectively take the best proposals from the many positive issues that have been referred to during this debate. In co-operation with the Second Commission on the Status of Women and the Office of the Minister of State at the [1578] Department of the Taoiseach, Deputy Máire Geoghegan-Quinn, who since her election to the Dáil has been constantly to the forefront in promoting equality for women and currently co-ordinates Government legislation in this area, we should get down to building on the progressive steps that have been undertaken by this Government and bring about real equality for women.

Miss de Valera: Information on Síle de Valera  Zoom on Síle de Valera  All of us in this House would agree, perhaps some more begrudgingly than others, that over the past 25 years the changes in attitudes towards equality for women have indeed been encouraging. The Council for the Status of Women in the seventies set out the agenda for the change which took place during that period. Two milestones were reached during that time, the end of the ban on married women in the Civil Service and the payment of maternity leave, two issues which we now take for granted but which were innovative in the seventies. Much legislation has been passed in this House to improve the lot of women over the last number of years and I am glad that the most up-to-date change was that in the budget with regard to part-time workers, because 80 per cent of those helped under legislation are women. However, although the changes are laudatory, much work remains to be done and this House needs to bring about practical change that will help women.

When I talk about practical change, the one thing that immediately comes to mind is the question of child care facilities. I know this was mentioned many times during this debate but, with your indulgence, I will mention it again because not only career women who actively choose to work but also women who work out of economic necessity — who have to work to supplement their husbands' wages — find it very hard to get facilities for child care or indeed to pay for them. Perhaps women who are in a position to earn a good wage could be given tax concessions to help them to pay for child facilities; for those not in a position to pay — and the option must be available to career women as well —[1579] the answer to the problem is to initiate State-run crèches. The importance of this is that it gives an option to all women to have standardisation of facilities and care for their children. They can go to work knowing that their children are well looked after and cared for in the way they would like. This, of course, would facilitate many more women going to work or at least give them the option of doing so. It is a proposal put forward by many organisations on behalf of women, not least by the Oireachtas Joint Committee on Women's Rights and the Employment Equality Agency. It is interesting to quote Sylvia Meehan on the submission from the Employment Equality Agency to the Second Commission on the Status of Women. She said:

The principal barrier to equality in paid employment is the failure by Government and employers to acknowledge workers as parents. The absence of initiatives in the paid labour markets to facilitate the combination of family and paid worker responsibility means that parents are impeded in their careers and, because women have traditionally discharged the bulk of family responsibility, it is their paid working lives that are most affected.

The Employment Equality Agency called in their submission to the Second Commission on the Status of Women to ensure that they would be supported in calling for crèche facilities.

In referring to the Employment Equality Agency I should like to refer to some other aspects of their submission because they are extremely useful to women and have a very practical application. One is the mandatory requirement that employers should establish codes of practice on sexual harassment in every workplace; another one is the maximum age limits for employment entry to be abolished and, of course, the extension of equality legislation to outlaw sex discrimination in education. I am glad to note that the summary of the recommendations of the Second Commission on the Status of Women, which has just [1580] been published, includes many of the proposals put forward by the Employment Equality Agency. One is the whole question of crèches and the commission call for the Government, through the Minister for Education, to direct the National Council for Curriculum Assessment to review preliminary curriculum handbooks as a priority with a view to eliminating all sexism and sex stereotyping.

As Deputy Tom Kitt said, we all know the importance of education, particularly in regard to younger members in our schools as it affects their outlook for their whole life. Indeed, as a psychologist, I know the difficulty which arises from the whole question of sex stereotyping but I am sure the Government will do all they possibly can to try to eradicate that type of sex stereotyping from our midst. I know the Minister for Education has already been working on this; her work has been effective and acknowledged.

The age barrier to recruitment in the public service was also mentioned in the commission's submissions and recommendations. There is no need for such barriers and I support this commission in looking for that to be deleted. One of the very interesting recommendations from the Council for the Status of Women was that legislation should be introduced immediately, giving each spouse equal rights of automatic beneficial ownership in the family home and household chattels. Lawyers in this House will understand that the situation at present is not cut and dried in favour of women as perhaps some people would like to think. The position should be closely looked at and monitored and we hope there will be progress in legislation in this respect to look after women.

The second recommendation of the commission is that every memorandum for Government should set out the probable impact on women of proposed policy change. This, of course, would be very useful because it would act as a watchdog for women. Indeed, I honestly believe this work is done by the Oireachtas Joint Committee on Women's Rights; they certainly act as a watchdog when they see certain legislation going through and act [1581] upon it in this House through their spokespersons for the different parties.

I must admit I have some difficulty with the third recommendation of the commission which says that in the current lifetime of the board women should be appointed to all casual vacancies in State-sponsored bodies to be filled by direct Government appointment unless there are objective criteria for appointing a man. I quite understand that positive discrimination is seen to redress the balance as it were, to try to give opportunity and that little bit of extra help to women who have not got it up to now. However, we cannot on the one hand talk about equal treatment and, on the other, about preferential treatment. I accept that the motive behind this is laudable in that they want to put women forward but I am not quite so sure of the methods they propose.

I support other Deputies in saying that national lottery and public funds should not be allocated to clubs which operate discriminatory policies, that is something with which most, if not all, Members of this House would agree.

I wish to refer to some of the comments made by Deputy Taylor-Quinn. I found it difficult to follow her argument because, in many respects, it was contradictory. This debate is to review the recommendations which the Opposition put forward in regard to Article 40. That Article, repeated ad nauseam through this debate, says that all citizens shall, as human persons, be held equal before the law. I do not think any extra amendments or additions can be put to that; it clearly states what it means, that there is equality for all citizens, male and female. That certainly is my reading of it. I am not a constitutional lawyer but any advances made based on our Constitution have been made through the courts. Certainly it seems that the courts have supported the Constitution time and time again in expressing the rights of women, indeed putting much pressure on the legislative bodies, through this House and the Upper House, to bring about changes in that regard.

[1582] There has been much reference to Article 41. That is irrelevant to this debate because what we are interested in relative to this proposal is Article 40.

I am always a little disconcerted when people refer to Article 41.2.1º which deals with women's place in the home. There are, perhaps, different ways of looking at that. Some might say that that actually states that the woman's place is in the home. I take a broader interpretation of that — and this has been done by our courts — by saying that we are trying to give recognition to the very valuable work done by women in the home. If a woman chooses to stay at home to be with her family she should not be seen as secondary to the woman who chooses a career outside the home. The Constitution seeks to protect the woman who freely chooses to stay at home to look after the children.

I found Deputy Taylor-Quinn's statement that there was no protection in law for women who stay at home to be contradictory. The protection is, obviously, there in the most supreme law we have in this land, namely, the Constitution. If any changes need to be made — and certainly many changes are needed to help the position of women, those who stay at home and those who work outside the home — they are the responsibility of this House, the Upper House, and the frame work for that is set down in our Constitution.

Rather than looking for changes in our Constitution and trying to pass the buck, it would be more useful for Members here and in the Seanad to take the initiative and put forward practical proposals for consideration. I am sure such proposals would be given a very sympathetic hearing by the Government.

Deputy Tom Kitt referred to the importance of parental leave and paternal leave. These issues are accepted within European law. As a Member of the European Parliament from 1979 to 1984 I took part in many discussions at committee level and within the European Parliament on these issues. That could be pursued by our Minister of State. I would [1583] be interested to hear her comments on that issue.

Supporting this proposal put forward by Fine Gael would not achieve anything positive for women. I would prefer to see how we could have some practical influence. Very often EC institutions and our courts have put pressure on the Legislature to bring about change. It is time to initiate that change ourselves. We should do that not by trying to rewrite the Constitution that lays out the framework but by putting our own house in order.

Mr. Boylan: Information on Andrew Boylan  Zoom on Andrew Boylan  I am delighted to have the opportunity to contribute to this very important Bill introduced by my colleague Deputy Gay Mitchell. I compliment Deputy Mitchell on bringing forward this well thought out Bill to amend the Constitution to include equality clauses for men and women.

The source of women's rights in Ireland is the Constitution and it should make it clear that men and women have equal rights. By that we mean political, social and economic rights. Our attitude to women was instilled in us as children when, coming home from school or play, we expected our mothers to be in the house. It was not that we felt she should be there as a right but we were happy to see her there. That was the attitude from the foundation of the State right up to the last decade when women felt they should be more outgoing and play what they felt was a more important part in the activities of the country. However, I believe they played a very important part and, if nothing else, I would like in my contribution to pay tribute to the women of Ireland, to the mothers who reared families, who stayed at home and reared the people who made Ireland the great country it is.

I do not deny that in this country in the thirties, forties and into the late fifties women had a hard life. In rural Ireland they were the hewers of wood, the drawers of water and the providers of meals. They lived through hard times rearing large families in houses with very basic facilities, little equipment to cook with or [1584] do the washing. However, the families they turned out were a credit to them. Meals were provided at little cost. In rural Ireland when a farmer and his neighbours helping him returned from the fields his wife would have a substantial meal on the table provided out of ingredients grown in the garden. They were happy times although they were very hard times.

Farmers would not have managed if the woman of the house had not helped them in rearing the calves, the chickens and the turkeys, what are now called alternative enterprises. The woman of the house earned money by supplying turkeys at Christmas, chickens during the summer and eggs to be sold at the local market. Vegetables were grown by the wife. The farm scene has changed dramatically and there is still a role for the wife or, in many cases, a brother and sister who for one reason or another work on a farm. However, there has been no recognition of the work of the woman on the farm from the foundation of the State to 1991, and I have not heard any contributor mention that fact. She is not entitled to social welfare allowances; she is a non-entity as far as the State is concerned and that is something that should be looked at. As farms get bigger the wife plays an even more important role learning to work modern machinery and, in many cases, driving a tractor and combine harvester. Some city women might think this is terrible but modern equipment is as easy to drive as a modern car and women are quite happy to do so. In many cases women own their own farms and are doing an excellent job.

For that reason alone I welcome Deputy Mitchell's Bill but it has broader implications. Young couples trying to provide themselves with a home feel that there must be two wage earners. I can appreciate that but it is a whole different scene now. There are implications for the role of the mother and her influence on the family. If a wife is working outside the home certainly she cannot be as relaxed when she comes home as the mother who works in the house although she might be doing as much and often heavier work. [1585] However, the woman in the home is not under the same pressure as the mother driving a distance to work, organising her home before she leaves in the morning and trying to make arrangements to come home in the afternoon. Recognition must be given to the role played by such women in maintaining homes with their husbands in these circumstances.

Debate adjourned.


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