On the day of the Green Party Convention to consider the proposed revised programme for government we followed the activities as much as we could in this post. One of the commitments contained within the PfG is that a constitutional referendum would be held to amend Article 41.2 of Bunreacht na hÉireann (the Constitution of Ireland) to refer not to women and mothers within the home (as is currently the case) but to the parent within the home. Article 41.2 currently provides:
1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° 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.
This controversial constitutional provision is, perhaps, a product of its time. Adopted following a plebiscite of the people in 1937, the Irish Constitution’s tendency towards Catholic sensibilities has been widely documented notwithstanding the fact that it espouses secular values. Article 41.2 is gender specific and reflects an expectation that women and mothers would be the primary care-givers within the home. It is certainly not the only instance of gender stereotyping in the Constitution and a very good oversight was provided by Prof Yvonne Scannell in her contribution to de Valera’s Constitution and Ours (B. Farrell ed, 1988). Although one might be tempted to read the provision as providing for economic support for women who do work within the home (“shall not be obliged by economic necessity to engage in labour to the neglect of [her] duties in the home”), this has never been the case. In fact, in one notable case where the High Court tried to use Article 41.2 to provide some level of financial security to women and mothers who work in the home the decision was reversed on appeal to the Supreme Court.
That case was L v L [1992] 2 IR 77; a property law/equity case concerning a claim by a wife for equitable ownership over the family home on the basis of, inter alia, the contributions that she had made through her work within the home. In the High Court it was held that as the State acknowledges the important contribution that women make through such work in Article 41.2, and as making that contribution can often result in removal of women from the paid work force thereby reducing the capacity to make financial contributions that would result in a share of ownership in equity through a purchase money resulting trust, work done by women within the home that has a real economic value ought to be capable of giving rise to ownership rights. The Supreme Court, however, held that ensuring economic security for women in this position was a legislative manner, that Article 41.2 does not give rise to any positive entitlements as against the state, and that such domestic work could not be said to give rise to equitable ownership rights.
This causes one to wonder, then, what the point is of amending Article 41.2 to acknowledge the contribution of the ‘parent’ (rather than the ‘woman’ and ‘mother’) who works within the home? If this Article does not give rise to any kind of enforceable rights and is, to all intents and purposes, merely a statement of principle, would it not be more sensible to simply hold a referendum in order to have this principle removed from the Constitution or placed into the unenforceable directives of social policy in Article 45? The change of wording to ‘parent’ could make a meaningful difference if it resulted in the state having a duty to ensure economic stability for parents who remove themselves from the workforce in order to do this work. Given this State’s general reluctance to see economic and social rights as being enforceable and justiciable, however, it seems highly unlikely to me that what is envisioned is anything more than a substitution of the word parent into the text as it exists. This would be a real missed opportunity.
Parents (and, indeed, other carers) who remove themselves from or reduce their capacity for economic gain by means of paid work outside of the home and instead work within the home do us as a society a great deal of good. As Martha Fineman has argued, care-givers carry out privately the work of care-giving that would otherwise fall to the state. This work has a real economic value to the state, even when one takes carers’ allowance into account. If the government were to propose a constitutional amendment that did more than make an optical change to what was a sexist and anachronistic constitutional provision it would certainly find support from me. While the optical change is important, it does not remove or begin to tackle the vulnerabilities that parents who work primarily in the home experience or the fact that they are carrying out an extremely important role from a societal point of view.
It will be interesting to hear the discourse that emerges around this proposed change and to listen to the government’s responses when challenged about why they are not proposing the deletion of the clause rather than its amendment. Could it be that they are not enthusiastic about riling impressively vocal social and interest groups who do not want the clause to be made gender neutral, not to mention abolished?
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Human Rights in Ireland 
Valuing the ‘Parent’ within the Home: Proposals in the Renewed Programme for Government
This controversial constitutional provision is, perhaps, a product of its time. Adopted following a plebiscite of the people in 1937, the Irish Constitution’s tendency towards Catholic sensibilities has been widely documented notwithstanding the fact that it espouses secular values. Article 41.2 is gender specific and reflects an expectation that women and mothers would be the primary care-givers within the home. It is certainly not the only instance of gender stereotyping in the Constitution and a very good oversight was provided by Prof Yvonne Scannell in her contribution to de Valera’s Constitution and Ours (B. Farrell ed, 1988). Although one might be tempted to read the provision as providing for economic support for women who do work within the home (“shall not be obliged by economic necessity to engage in labour to the neglect of [her] duties in the home”), this has never been the case. In fact, in one notable case where the High Court tried to use Article 41.2 to provide some level of financial security to women and mothers who work in the home the decision was reversed on appeal to the Supreme Court.
That case was L v L [1992] 2 IR 77; a property law/equity case concerning a claim by a wife for equitable ownership over the family home on the basis of, inter alia, the contributions that she had made through her work within the home. In the High Court it was held that as the State acknowledges the important contribution that women make through such work in Article 41.2, and as making that contribution can often result in removal of women from the paid work force thereby reducing the capacity to make financial contributions that would result in a share of ownership in equity through a purchase money resulting trust, work done by women within the home that has a real economic value ought to be capable of giving rise to ownership rights. The Supreme Court, however, held that ensuring economic security for women in this position was a legislative manner, that Article 41.2 does not give rise to any positive entitlements as against the state, and that such domestic work could not be said to give rise to equitable ownership rights.
This causes one to wonder, then, what the point is of amending Article 41.2 to acknowledge the contribution of the ‘parent’ (rather than the ‘woman’ and ‘mother’) who works within the home? If this Article does not give rise to any kind of enforceable rights and is, to all intents and purposes, merely a statement of principle, would it not be more sensible to simply hold a referendum in order to have this principle removed from the Constitution or placed into the unenforceable directives of social policy in Article 45? The change of wording to ‘parent’ could make a meaningful difference if it resulted in the state having a duty to ensure economic stability for parents who remove themselves from the workforce in order to do this work. Given this State’s general reluctance to see economic and social rights as being enforceable and justiciable, however, it seems highly unlikely to me that what is envisioned is anything more than a substitution of the word parent into the text as it exists. This would be a real missed opportunity.
Parents (and, indeed, other carers) who remove themselves from or reduce their capacity for economic gain by means of paid work outside of the home and instead work within the home do us as a society a great deal of good. As Martha Fineman has argued, care-givers carry out privately the work of care-giving that would otherwise fall to the state. This work has a real economic value to the state, even when one takes carers’ allowance into account. If the government were to propose a constitutional amendment that did more than make an optical change to what was a sexist and anachronistic constitutional provision it would certainly find support from me. While the optical change is important, it does not remove or begin to tackle the vulnerabilities that parents who work primarily in the home experience or the fact that they are carrying out an extremely important role from a societal point of view.
It will be interesting to hear the discourse that emerges around this proposed change and to listen to the government’s responses when challenged about why they are not proposing the deletion of the clause rather than its amendment. Could it be that they are not enthusiastic about riling impressively vocal social and interest groups who do not want the clause to be made gender neutral, not to mention abolished?
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