Report of the Task Force on Implementation of the Recommendations of the Second Report of the Convention on the Constitution

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1 Contents

Page

Extract from Constitution of Ireland 3

Chapter 1 – Introduction 4

Chapter 2 – Historical background 9

Chapter 3 – Amending Article 41.2 and considering what level of obligation 12 should be placed on the State to support carers

Chapter 4 –Incorporation of the principle of gender equality 18 into the Constitution

Chapter 5 –Include gender-neutral language throughout 21 the Constitution

Chapter 6 – Summary of Conclusions and Recommendations 23

Appendix I: Texts 25

Appendix II: The Second Report of the Convention on the Constitution 27

2 Extract from Constitution of Ireland

The Family

Article 41

1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2. 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.

3 Chapter 1 Introduction

The Convention on the Constitution

1.1 The Programme for Government contains a commitment to establish a Constitutional Convention to consider comprehensive constitutional reform. The question of amending the clause on women in the home was among the specific issues to be addressed.

1.2 The Houses of the Oireachtas, by Resolution dated July 2012, approved the calling of a Convention on the Constitution to consider specified matters including amending the clause on the role of women in the home and encouraging greater participation of women in public life and to make such recommendations as it saw fit, reporting back to the Houses of the Oireachtas. The Government was tasked with providing its response to each recommendation of the Convention in the Oireachtas within four months and, if accepting the recommendation, indicating the timeframe it envisaged for the holding of any related referendum.

1.3 The Convention on the Constitution was constituted as a forum of 100 people representative of Irish society and parliamentarians from the island of Ireland with an independent Chairman.

Recommendations of the Convention on the Constitution

1.4 The Convention on the Constitution considered the role of women, women in public life and in politics at its plenary meeting of 16-17 February 2013, during which the Convention considered submissions made by members of the public and presentations from a wide range of academics, political scientists, legal experts and advocacy groups.

1.5 The outcome of the discussion in the Convention and its recommendations are set out in its Second Report, as presented to the Houses of the Oireachtas and published on 8 May 2013. The Report deals both with the clause in the Constitution on the role of women in the home (Article 41.2) and with steps which might be taken to increase the participation of women in public and political life. The Convention recommended amending Article 41.2 and also made recommendations proposing the incorporation of the principle of gender equality into the Constitution and calling for gender-inclusive language in the Constitution arising from the discussion on increasing the participation of women in politics and encouraging greater participation of women in public life.

4 1.6 The main points discussed were as follows:

 Most members of the Constitutional Convention favoured amending, rather than deleting, Article 41.2. (In this regard, their recommendations are in keeping with those of earlier examinations of the issue by the Constitution Review Group in 1996, the All-Party Oireachtas Committee on the Constitution in its First Progress Report in 1997, and the Tenth Progress Report of the All-Party Oireachtas Committee on the Constitution on the Family in 2006.)  In making a change to Article 41.2, a substantial majority (92%) recommended that it should be made gender-neutral, to include other carers in the home. A narrower majority (62%) also wanted it to include other carers beyond the home. On a five point scale, the Convention also recommended that the State should offer a “reasonable level of support” (35%) to ensure that mothers and other carers ‘shall not be obliged by economic necessity to engage in labour’.  A significant majority (89%) also recommended that the Constitution as a whole should be amended to include gender-inclusive language throughout the text.  A majority of members (62%) also wanted to see the Constitution amended to include an explicit provision on gender equality.

1.7 In effect, the Convention made three recommendations in respect of Article 41.2, and two supplementary recommendations. These recommendations do not consider how amendments might be phrased but instead are focused on the intended outcome, as follows:

 To amend Article 41.2 by making it gender-neutral to include other carers in the home;  To also include other carers beyond the home;  That the State should offer a “reasonable level of support” to ensure that carers “shall not be obliged by economic necessity to engage in labour”;  To amend the Constitution to include an explicit provision on gender equality; and  To amend the Constitution as a whole to include gender-inclusive language throughout the text.

Government Response

1.8 The Government accepted the Convention’s first recommendation in relation to the need to amend the language in Article 41.2 of the Constitution on the role of women in the home. Mindful that a number of wordings have been proposed previously in this regard, (the Constitution Review Group in 1996, the All-Party Oireachtas Committee on the Constitution in its First Progress Report in 1997, and the Tenth Progress Report of the All-Party Oireachtas Committee on the Constitution on the Family in 2006), the Government committed to examining these proposals and other options with a view to

5 finding the most appropriate wording to present in a future referendum, while taking full account of the Convention’s comments in relation to carers.

1.9 Concerning the other Recommendations of the Convention, the Government considered that the incorporation of the principle of gender equality into the Constitution and that the text of the Constitution be amended to include gender-inclusive language throughout had merit but that the proposals required further detailed examination. Accordingly, the Government tasked the Department of Justice and Equality to undertake a study before it considered these recommendations further1.

1.10 The Minister for Justice and Equality delivered the Government’s response to the Convention’s Second Report in the Dáil on 10 October 2013, and gave the following commitment:

“...The Government accepts the first recommendation of the report in relation to the need to amend the language in Article 41.2 of the Constitution on the role of women in the home. Government is mindful that a number of wordings have been proposed previously and commits to examine the proposals and other options to find the most appropriate wording to present in a forthcoming referendum. Full account will be taken of the comments of the convention, including those on carers. The inclusion of a reference by the convention to the issue of carers is the reason why it is not possible to offer a more specific timeframe for a referendum to take on board the overarching recommendation at this time. Extensive consultations will be necessary, including with Government colleagues and their officials, on the new elements and the appropriate choice of language for incorporation into the Constitution. I am establishing a task force in my Department to look at the issues, collaborating with other Departments and the Office of the Attorney General as necessary, with a view to completing the task and reporting back to Government by 31 October 2014...”

Establishment and work programme of Task Force

1.11 The Task Force subsequently established by the Minister for Justice and Equality was charged with collaborating with other Government Departments and the Office of the Attorney General as necessary, with a view to completing its tasks so that the Minister could report back to Government on the issues arising.

1 Statement by the Minister for Justice and Equality, Mr Alan Shatter TD, to the Dáil on 10 October 2013, on the matter of the Second Report of the Convention on the Constitution. Dáil Éireann Official Report Vol.816 No.3.

6 1.12 The terms of reference for the Task Force are:  To examine proposals which have been made for the amendment of Article 41.2 of the Constitution as well as other options with a view to finding the most appropriate wording to present in a forthcoming referendum taking full account of the comments of the Convention including those in relation to carers.  To consider the cost implications of any proposal put forward for a replacement text with a view to ensuring that no unforeseen additional financial cost is placed on the Exchequer on foot of any proposed change.  To assist in the further detailed examination of the recommendations of the Constitutional Convention that the principle of gender equality be incorporated in the Constitution and that the text of the Constitution be amended to include gender inclusive language.

1.13 The membership of the Task Force is as follows:  Paul Hickey, Assistant Secretary, Department of Justice and Equality  Carol Baxter, Principal Officer, Civil Law Division, Department of Justice and Equality  Pauline Moreau, Principal Officer, Gender Equality Division, Department of Justice and Equality (to July 2014)  John Hurley, Principal Officer, Gender Equality Division, Department of Justice and Equality (from July 2014)  Deaglán Ó Briain, Principal Officer, Diversity and Equality Law Division, Department of Justice and Equality

1.14 The Task Force was assisted in its work by the Departments of Health, Social Protection, and Public Expenditure and Reform and the Office of the Attorney General.

Methodology and Structure of this Report

1.15 The approach employed by the Task Force, in line with its terms of reference, is to review the issues raised by the Convention on the Constitution in its Second Report, consider texts proposed in previous reviews, and develop appropriate wording. In examining the issues arising, the Task Force has consulted the Office of the Attorney General and the Departments of Public Expenditure and Reform, Social Protection, and Health, with particular reference to the issues arising in connection with Article 41.2.

1.16 Chapter 2 sets out the background to Article 41.2, including details of previous reviews of this and other relevant provisions of the Constitution.

1.17 The Convention’s recommendations are examined in Chapters 3 to 5. Chapter 3 addresses the proposal to amend Article 41.2.1 to make it gender neutral, to include other carers in the home and to include carers beyond the home. The recommendation on the level of support to be offered by the State to carers under Article 41.2.2 is also examined in this Chapter. Chapter 4 considers whether there should be an explicit provision on gender equality in the Constitution. Finally, Chapter 5 examines the recommendation to include gender-neutral language throughout the Constitution.

1.18 Chapter 6 sets out a summary of the conclusions and recommendations of the Task Force.

1.19 The Second Report of the Convention on the Constitution is attached at Appendix I, while Appendix II lists the documents referred to by the Task Force.

8 Chapter 2 Historical Background

2.1 Article 41.2, which speaks about the position of women in Irish society, has been controversial since its introduction in the 1937 Constitution. The treatment of women in the Constitution, and in this provision in particular, has been described “as the single biggest policy issue which dominated much of the debate at the time both inside and outside the Dáil”2.

2.2 While generally thought to reflect Catholic social teaching of the time, it has been pointed out that the provisions on the family and marriage also have equivalents in the constitutions of other European States not so influenced3. As Kelly (pg 1827-8, footnotes 1 & 2) observes, sources of similar provisions included the 1919 German Constitution and existing Irish common law.

2.3 In 1937, supporters of Article 41.2 justified its inclusion by reference to a presumption of natural sex differences between men and women and complementary rather than equal roles for each sex4. Opposition to Article 41.2 focused on its reflection of a view of the family that was dated, stereotypical and patriarchal, and on the lack of clarity concerning the nature of the obligation it placed on the State.

2.4 Difficulties identified in these early debates on the text included concerns that -

 it could exclude women’s life outside the home from constitutional protection;  it would be relied upon to justify gender discrimination in employment, particularly in circumstances of high male unemployment and mass emigration5; and  while seeming to assign to women a domestic role as wives and mothers, the provision was nevertheless not of any particular practical assistance to them - even to women working exclusively within the home.

2.5 Since 1937, the extent of litigation involving Article 41.2 has been limited. The courts have considered its application to cases involving legislation which discriminated on the grounds of sex and in so doing have confirmed that the guarantee of equality does not require the State to provide social security for deserted husbands, but have overturned legislation exempting women from

2 Presentation by Prof. Gerry Whyte to the Convention on the Constitution, 16-17 February 2013, quoting GW Hogan, “The Origins of the Irish Constitution 1928-1941, p.520. 3 Presentation by the Hon. Mr Justice Ronan Keane, “The Constitution and the Family: The case for a new approach”, to the conference “The Constitution at 70”, 8 June 2007, TCD. 4 Presentation by Prof. Siobhan Mullally, UCC to the Convention on the Constitution, 16-17 February 2013. 5 Oireachtas Second Stage and Committee Stage debates on the draft Constitution, 11-12 May and 4 June 1937.

9 jury service and providing for the ineligibility of widowers to adopt. The courts have also considered Article 41.2 in giving recognition to the work done by women in the home and to the role of home-maker, but confirmed this recognition does not extend to confer jurisdiction on the courts to determine shares in the matrimonial home, or require compensation for care work6. The judiciary has observed that the recognition in Article 41.2 of the significant role played by wives and mothers in the home, because of its immense benefit for society, does not however exclude women from other roles and activities and must be construed harmoniously with other Articles. The courts have also speculated that the Article could potentially apply to unmarried mothers and to fathers7.

Reviews of Article 41.2 (1993-2006)

2.6 The impact and appropriateness of Article 41.2 was examined a number of times from the early 1990s to 2006. These examinations were undertaken by:  the Second Commission on the Status of Women (1993)  the Constitutional Review Group (1996)  the All-Party Oireachtas Committee on the Constitution (1997 and 2006)

2.7 The Report of Second Commission on the Status of Women in 1993 recommended the Constitution be amended to provide for the deletion of Article 41.2.2 and the prohibition of all forms of discrimination, both direct and indirect, based on sex.

2.8 That recommendation was subsequently referred to the Constitution Review Group which reported in 1996. A majority of the Review Group recommended including a guarantee of equality on a range of grounds, including sex. In that context, a majority of the Review Group did not regard it as necessary to have an express guarantee of equality between men and women having regard to the general guarantee of equality before the law in Article 40.1. However, it did recommend that the Constitution should reflect the significant contribution made to society by the many people who care for children, elderly relatives and others in their homes and so came to the view that Article 41.2 should be recast in a revised gender neutral form suggesting the following wording:

The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

6 GW Hogan, GF Whyte, “JM Kelly: The Irish Constitution”, (4th ed), 2003, p.1866-1871. Cases Dennehy v Minister for Social Welfare (26 July 1984) HC; and Lowth v Minister for Social Welfare [1998] 7 GW Hogan, GF Whyte, “JM Kelly: The Irish Constitution”, (4th ed), 2003, p.1866-1871. Sinnott v Ireland [2001] 2 IR 545 at 665; L v L [1989] ILRM 528 (HC) and DT v CT [2003] 1 ILRM 528 (obiter at p.11).

10 2.9 A majority of the All-Party Oireachtas Committee on the Constitution, in its First Progress Report in April 1997 agreed with the position adopted a year earlier by the Constitution Review Group. However it altered the Review Group’s recommended wording slightly so as to refer to “family life” only and not to “home and family life”. The suggested wording reads as follows:

Delete Article 41.2 subsections 1° and 2° and replace it with the following:

“The State recognises that family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.”

2.10 The All-Party Oireachtas Committee on the Constitution reviewed this matter again at length in its “Tenth Progress Report: The Family” published in 2006. This Report concluded, upon weighing the evidence presented and the Articles, that change was “at least desirable”.

2.11 Mindful of the 2005 recommendation of the UN Monitoring Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that the language of the Constitution be rendered more gender neutral, the All Party Committee noted that this was, perhaps, not as simple as it might seem. The All Party Committee then reviewed the draft text suggested by the Constitution Review Group, citing a number of advantages and disadvantages before concluding that:

The Committee is satisfied that its alternative version of Article 41.2.1° and Article 41.2.2° meets the objective of rendering the Articles gender neutral. It therefore recommends the following amendments to Article 41.2:

Amend Article 41.2.1° to read

“The State recognises that by reason of family life within the home, a parent gives to the State a support without which the common good cannot be achieved.”

Amend Article 41.2.2° to read

“The State shall, therefore, endeavour to ensure that both parents shall not be obliged by economic necessity to work outside the home to the neglect of their parental duties.”

2.12 The All Party Committee was of the view that:

“this version re-instates the essence of Article 41.2.1 and Article 41.2.2 (albeit in a gender neutral fashion), resonates with the language in which they [the original texts] are expressed, and does not import new values.”

Chapter 3 Amending Article 41.2 on the role of women in the home and considering what level of obligation should be placed on the State to support carers

Recommendations from the Constitutional Convention

3.1 The Second Report of the Convention on the Constitution states:

“A majority of the Convention members favoured a change to the Constitution to amend the clause [on the role of women in the home] and, if making such a change, a majority recommended that it should be gender- neutral to include other carers in the home and that it should also include carers beyond the home. The Convention also recommended that the State should offer a “reasonable level of support” to ensure that carers ‘shall not be obliged by economic necessity to engage in labour’.”

General considerations

3.2 As already stated, relevant Government Departments and the Attorney General’s Office were consulted in the course of the Task Force’s work. The key issues raised for consideration by the AG’s Office and the Departments of Social Protection, Health and Public Expenditure and Reform can be summarised as follows:

o the need for clarity in regard to the category of persons which will embraced by the concept of “carer” in circumstances where that concept is vague and undefined; o concerns that broadening the scope of Article 41.2 to include a widely defined category of carer could have wide ranging consequences, including establishing rights for certain groups at the expense of others; and o the potential, in particular, for any amendment requiring the State to provide a reasonable level of support to create a constitutionally enforceable right to social welfare payments thus curtailing the autonomy of the Government and Oireachtas to make spending decisions and determine policy in regard to social welfare rates and payments.

12 Options

3.3 On examining the issues arising and having regard to other reviews carried out to date and text suggested for amending Article 41.2, three options were identified with a view to recommending possible wording.

The wording suggested in these options is intended to illustrate the approach being proposed by the Task Force. The eventual wording may differ, depending on legal and drafting advice, as these proposals are further developed in the light of Government consideration of the issue.

Option 1: replace the existing text of Article 41.2.1 and 2 by a provision, in Article 41.2, which would:

 recognise the support that home and family life gives society as well as the contribution made by carers within the home;  provide for a commitment under which the State would endeavour to support persons caring for others within the home; and  make provision for such support to be determined by law with a view to ensuring that the Government and Oireachtas remain responsible for decisions on the allocation of public funds and the determination of public policy regarding carers more generally.

A provision of this kind might be framed along the following lines:

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.

Arguments for This approach follows closely the formula recommended by the Constitution Review Group in its 1996 report (“The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home”) except to the extent that it makes clear that support provided by the State should be as determined by law.

This approach would meet the objective of replacing the existing provision with a formula which is gender neutral. It emphasises the support to society, and hence to the common good, of home and family life.

The use of the concepts of “home and family life” in conjunction with “persons caring for others” is intended to ensure that the provision is inclusive. Linking the concepts of “persons caring for others” and “within the home”, in the context of Article 41, is intended to capture the broad range of caring relationships which are found within the home, where a family relationship of some kind, but not necessarily based on the marital family, exists between the carer and those being cared for.

This option does not propose to make provision for carers outside the home as this was considered inconsistent with a provision dealing with the family and would inevitably give rise to considerable uncertainty as to the category of persons intended to be covered.

This option, by providing that support shall be as determined by law preserves to the Oireachtas and the Government the detailed decisions on what form support should take and who should benefit from it, including prioritising specific groups of carers, or imposing particular conditions for receipt of support. Existing legislation, for example, already provides for benefits and various allowances payable to certain carers, as well as for carer’s leave.

Arguments against This approach does not address some aspects of the recommendations from the Convention concerning the scope of carers to be covered by the provisions, and the level of support to be offered by the State to carers:  It does not deal with the position of carers outside the home.  It does not commit the State to a specific level of support for carers, namely to offer a “reasonable level of support” to ensure that carers “shall not be obliged by economic necessity to engage in labour”.

Option 2: replace the existing text of Article 41.2.1 and 2 by a provision which would:

 in Article 41.2, recognise the support that home and family life gives society as well as the contribution made by carers within the home; and  in Article 45, which contains the Directive Principles on Social Policy, provide for a commitment under which the State would endeavour to ensure support for persons caring for others both in the home and in the wider community.

14 A provision of this kind might be framed along the following lines:

Article 41.2

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.

The State recognises that home and family life gives to society a support without which the common good cannot be achieved.

Article 45.4.3

The State shall endeavour to ensure that persons caring for others in the home and in the wider community receive support in recognition of the contribution they make to society.

Arguments for This approach also follows closely the formula recommended by the Constitution Review Group in its 1996 report for the amendment of Article 41.2.

It meets the test of being gender neutral. It recognises the contribution to society of home and family life.

By having recourse to Article 45 and the Directive Principles on Social Policy in addition to Article 41, it underlines the need for those providing care to be supported and would permit carers in the wider sense envisaged by the Convention to be covered.

However, as the Directive Principles on Social Policy in Article 45 are explicitly stated to be intended for the general guidance of the Oireachtas and not cognisable by any Court, this option would also respect the role of the Government and the Oireachtas to decide on the allocation of public funds.

Arguments against This approach does not address some aspects of the recommendations from the Convention concerning the level of support to be offered by the State to carers:  It does not commit the State to a specific level of support for carers, namely to offer a “reasonable level of support” to ensure that carers “shall not be obliged by economic necessity to engage in labour”.

15 Option 3: delete Article 41.2 in its entirety

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.

Arguments for

Deletion of Article 41.2 resolves the difficulty with the existing gender- specific text.

This is the approach advocated in its report to Government of January 1993 by the Second Commission on the Status of Women, which recommended deletion of Article 41.2.2 on the basis that it reflected a paternalistic view of women, gave a wrong emphasis in referring to "their duties in the home", was now outmoded, and was never of any advantage to women.

Arguments against

The Convention on the Constitution rejected the option of simple deletion by a large majority on the basis that it was important to give recognition to the important role of carers and caring within the home.

Likewise both the Constitutional Review Group and All Party Oireachtas Committees advised that provision be made in the Constitution to recognise the value to society of work done in the home. In particular, the All-Party Oireachtas Committee on the Constitution, in its “Tenth Progress Report: The Family” published in 2006, noted general support existed for the recognition of the value of the work done by those who care for others in the home. The simple deletion of Article 41.2 would depart from the approaches of the Review Group and the All-Party Committee in that it would leave no provision in the Constitution to explicitly acknowledge the value of work in the home.

With these considerations in mind, this option is not put forward for further consideration.

Recommendation

3.4 The Task Force recommends Options 1 and 2 for consideration as possible means of modernising these provisions of the Constitution, broadening their scope and introducing gender-neutral language, while at the same

16 time respecting the role of the Government in deciding how public funds are allocated.

17 Chapter 4 Incorporation of the principle of gender equality into the Constitution

Recommendation from the Constitutional Convention

4.1 The Second Report of the Convention on the Constitution states:

“A majority of the Convention members recommended that the Constitution should be amended to include an explicit provision on gender equality.”

Background

4.2 Adding an explicit gender equality provision has previously been considered by the Second Commission on the Status of Women and by the Constitution Review Group. The arguments considered by each, and their conclusions in this regard are set out below.

4.3 The Second Commission on the Status of Women8 recommended that the Constitution should be amended to prohibit all forms of discrimination either direct or indirect based on sex, but with provision to protect positive measures designed to address imbalances resulting from past discrimination, and for the social function of maternity. The main arguments considered in favour were that the Constitution would cease to reflect a paternalistic view of women and that the amendment would address a situation whereby discrimination based on some perceived ‘social function’ or some perceived ‘physical or moral capacity’ of one’s sex might not necessarily be unconstitutional.

4.4 This recommendation was subsequently referred to the Constitution Review Group9 for consideration. The Review Group noted that explicit provision had been made in the constitutions of several countries for equality between men and women, with such provisions being generally understood not only to afford protection against discrimination on the basis of sex but also to open the way for de facto equality between the sexes and to legitimise positive measures to accelerate the process.

A majority of the Review Group recommended an addition to Article 40 to provide a guarantee of equality on a range of grounds, including sex, in the following terms: “No person shall be unfairly discriminated against, directly or indirectly, on any ground such as sex, race, age, disability, sexual orientation, colour, language, culture, religion, political or other opinion, national, social

8 In its 1993 report, pg 26-27. 9 In its 1996 report, pg 230-232.

18 or ethnic origin, membership of the travelling community10, property, birth or other status”.

The Review Group also considered the further question of whether there should be a separate provision expressly guaranteeing equality between men and women. A majority of the Review Group did not regard it as necessary to have such an express guarantee having regard to the general guarantee of equality before the law and the prohibition on discrimination.

Arguments cited against such a change were that it would be invidious to include a special provision which addresses inequality on the basis of sex but not on other grounds.

Examination of the issues 4.5 The Task Force has undertaken a review of the approach taken in other jurisdictions for this purpose, which has shown that relatively few constitutions appear to have incorporated the principle of gender equality. The majority rely on a general equality clause, along the lines of Article 40.1 of our own Constitution.

The Task Force believes that the incorporation of a provision on the lines proposed by the Convention raises wider questions in terms of the Constitutional approach to the protection of fundamental rights which require further consideration. The Task Force believes that the incorporation of the principle of gender equality on its own would be likely to raise questions as to why gender was being dealt with in isolation from other equality grounds such as race, disability, sexual orientation, membership of the Traveller Community etc.

Article 40.1

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

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

10 Note that the term now used in the Employment Equality Acts and Equal Status Acts is “membership of the Traveller community”.

19 Recommendation

4.6 The Task Force recommends that the issue of the incorporation of the principle of gender equality should be considered further in the wider context of the relevant recommendations of the Constitutional Review Group, including the possibility of making provision for a general non-discrimination clause and/or incorporation of the principle in respect of other relevant grounds.

The Department of Justice and Equality should undertake further examination of this question and make recommendations to the Minister as soon as possible.

20 Chapter 5 Include gender-neutral language throughout the Constitution

Recommendation from the Constitutional Convention

5.1 The Second Report of the Convention on the Constitution states:

“A final question on whether to amend the text of the entire Constitution to include ‘gender-inclusive’ language also received widespread support – 89 percent voting in favour.”

Examination of the issues

5.2 In addition to the Convention on the Constitution, amending gender-specific language in the Constitution to make it gender inclusive has been considered by the Second Commission on the Status of Women, the Constitution Review Group, and the All-Party Oireachtas Committee on the Constitution (in its First and Tenth Progress Reports). The arguments considered by each, and their conclusions in this regard are set out below.

5.3 The question in regard to the use of gender inclusive language was examined in 1997 by the All Party Committee on the Constitution, which made proposals that would require amendment to an extensive number of articles.

5.4 In its First Report of April 1997, the All-Party Committee on the Constitution presented (at Appendix XIV) a gender-inclusive version of the English text of the Constitution.

5.5 A gender-inclusive version of the Irish text was subsequently prepared for the Committee in 1999 and was officially approved by the Translation Section of the Houses of the Oireachtas at the time. In this report, it was advised that a coordinated approach to gender-neutral language needed to be taken in respect of the Irish-language and English-language texts, and possible practical approach was proposed.

5.6 The Task Force has also reviewed the provisions of the Constitution amended since that period, and confirmed that all such amendments enacted have been expressed in gender inclusive terms. The initial advice available to the Task Force is that it would appear possible to make provision for gender inclusive language by way of a single question in a referendum.

Recommendation

5.7 The Task Force recommends that the Department of Justice and Equality pursue this matter further in consultation with the Attorney General’s

21 Office drawing, in particular, on the work already done by the All-Party Committee on the Constitution.

22 Chapter 6 Summary of Conclusions and Recommendations

6.1 The Task Force concurs with the view expressed by the Constitution Review Group in its 1996 report that “the Constitution, as a fundamental legal framework establishing powers, rights and responsibilities, should be as simple and clear as possible, leaving the treatment of particular or changing circumstances to be dealt with by the more flexible democratic process of legislation11”.

6.2 The Task Force recommends two options for consideration as possible means of modernising the provisions of Article 41.2 of the Constitution, broadening their scope and introducing gender-neutral language, while at the same time respecting the role of the Government in deciding how public funds are allocated.

The first of these options would replace the existing text of Article 41.2.1 and 2 by a provision which would

A provision of this kind could be framed along the following lines:

“The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home as may be determined by law.”

The second option would replace the existing text of Article 41.2.1 and 2 by a provision which would :

11 Report of the Constitution Review Group, May 1996, page xi, paragraph 8.

23 ensure support for persons caring for others both in the home and in the wider community.

A provision of this kind might be framed along the following lines:

“The State recognises that home and family life gives to society a support without which the common good cannot be achieved.”

and insert a new provision in Article 45.4.3, along the following lines:

“The State shall endeavour to ensure that persons caring for others in the home and in the wider community receive support in recognition of the contribution they make to society.”

6.3 Regarding the recommendation that the Constitution should be amended to include an explicit provision on gender equality, the Task Force recommends that the issue of the incorporation of the principle of gender equality should be considered further in the wider context of the relevant recommendations of the Constitutional Review Group, including the possibility of making provision for a general non-discrimination clause and/or incorporation of the principle in respect of other relevant grounds. The Department of Justice and Equality should undertake further examination of this question and make recommendations to the Minister as soon as possible.

6.4 Concerning the amendment of the Constitution as a whole to ensure its provisions are expressed in gender-neutral language throughout the text, the Task Force recommends that the Department of Justice and Equality pursue this matter further in consultation with the Attorney General’s Office drawing, in particular, on the work already done by the All-Party Committee on the Constitution.

24 Appendix I

TEXTS

Document/Review Text Bunreacht na hÉireann 1° In particular, the State recognises that Article 41.2 (1937) 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.

Second Report on the Status of Women (a) Delete Article 41.2 subsection 2° and (1993) replace with: (b) An amendment prohibiting all forms of discrimination, either direct or indirect based on sex.

Constitution Review Group (1996) Delete Article 41.2 & replace with:

41.2: The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

All-Party Oireachtas Committee on the Delete Article 41.2 & replace with: Constitution, First Progress Report (1997) 41.2: The State recognises that family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

All-Party Oireachtas Committee on the Amend Article 41.2.1° to read: Constitution, Tenth Progress Report: The Family (2006) The State recognises that by reason of family life within the home, a parent gives to the State a support without

25 which the common good cannot be achieved.

Amend Article 41.2.2° to read:

The State shall, therefore, endeavour to ensure that both parents shall not be obliged by economic necessity to work outside the home to the neglect of their parental duties.

Convention on the Constitution (2013) A majority of the Convention members favoured a change to the Constitution to amend the clause [on the role of women in the home] and, if making such a change, a majority recommended that it should be gender-neutral to include other carers in the home and that it should also include carers beyond the home. The Convention also recommended that the State should offer a “reasonable level of support” to ensure that carers ‘shall not be obliged by economic necessity to engage in labour’.

A majority of the Convention members recommended that the Constitution should be amended to include an explicit provision on gender equality.

A final question on whether to amend the text of the entire Constitution to include ‘gender-inclusive’ language also received widespread support – 89 percent voting in favour.

26 Appendix II

Second Report of the Convention on the Constitution

(i) Amending the clause on the role of women in the home and encouraging greater participation of women in public life; and (ii) Increasing the participation of women in politics.

May, 2013 Table of Contents

1. Chairman’s Introduction 2. Convention recommendations 2.1 Amending the clause on the role of women in the home. 2.2 Increasing the participation of women in politics and encouraging greater participation of women in public life.

3. Convention Programme 4. Amending the clause on the role of women in the home 4.1 Presentation by Prof. Gerry Whyte, TCD 4.2 Presentation by Prof. Siobhan Mullally, UCC 4.3 Convention discussion 5. Increasing the participation of women in politics and encouraging greater participation of women in public life 5.1 Presentation by Prof. Yvonne Galligan, QUB 5.2 Presentation by Prof. Gail McElroy, TCD 5.3 Convention discussion

Appendices: A: Convention on the Constitution Terms of Reference B: Rules and procedures C: Reference material: Role of Women in the Home D: Reference material: Encouraging greater participation of women in public life and increasing the participation of women in politics.

1. Chairman’s Introduction Introduction

On the weekend of 16th and 17th February, 2013, the Convention on the Constitution held its second plenary meeting to discuss issues in the terms of reference set out in the Resolution of the Houses of the Oireachtas (Appendix A).

Background

Membership of the Constitutional Convention comprises 66 citizens, 33 parliamentarians and an independent Chairman. The 66 citizens were selected randomly by a polling company using the electoral register and on the basis of groups representative of Irish society and generally balanced in terms of gender, age, region, social class and occupational status.

Political parties and groups in the Dáil and Seanad nominated representatives on the basis of their relative strengths in the Oireachtas. Political parties represented in the Northern Ireland Assembly were invited to nominate one representative each.

The Convention has been asked to complete its work within 12 months of its first plenary meeting.

The Government has committed to responding to the various recommendations of the Constitutional Convention within four months of the publication of its reports and will arrange a full debate in the Houses of the Oireachtas in each case.

In the event that the Government accepts a recommendation that the Constitution be amended, it will include a timeframe for the holding of a referendum.

Second plenary meeting

The purpose of this meeting was to consider:

(i) Amending the clause on the role of women in the home and encouraging greater participation of women in public life; and (ii) Increasing the participation of women in politics.

Over two days, the Convention considered submissions made by members of the public and heard presentations from a wide range of experienced academics, political scientists, legal experts and advocacy groups. It also held a large interactive panel discussion with a number of interest groups and academics. An important feature of the Convention’s working arrangements is that members also spent considerable time in small roundtable discussions, teasing out the detail of the two issues. The outcome of these discussions was then reported back to the full Convention so that all members got the benefit of group deliberations at individual tables. Recommendations

The results of the ballots on the two main questions were as follows:

(a) Amending the clause on the role of women in the home

A majority of the Convention members favoured a change to the Constitution to amend the clause and, if making such a change, a majority recommended that it should be gender- neutral to include other carers in the home and that it should also include carers beyond the home. The Convention also recommended that the State should offer a “reasonable level of support” to ensure that carers ‘shall not be obliged by economic necessity to engage in labour’.

(b) Encouraging greater participation of women in public life and increasing the participation of women in politics

A majority of the Convention members recommended that the Constitution should be amended to include an explicit provision on gender equality. The question of a constitutional provision to enhance participation in public life and in politics was narrowly defeated but a significant majority recommended more government action in this area.

A number of related issues arose during the course of their deliberations and the Convention also chose to make a number of other recommendations which they would like the government to consider. Details of the ballot results are set out in Chapter 2 of this report.

This report will be laid in the library in the Houses of the Oireachtas and I look forward to the government response within 4 months.

Acknowledgements:

I would firstly like to congratulate all members of the Convention for their hard work and obvious commitment to the task at hand. The quality of the discussions and the spirit in which they engaged with each other was the foundation for the success of the weekend. I am also grateful to those members of the public who sent submissions to the Convention or who watched the proceedings online.

I would like to thank the Academic and Legal Team, led by Prof. David Farrell, for assembling our advisory panel of experts and for their advice and support in advance of, and during, the meeting. Other members of the team include Dr. Jane Suiter, Dr. Clodagh Harris, Lia O’Hegarty SC and Dr. Eoin O’Malley. They were ably assisted in their work by two interns, Colm Byrne and Paul Deane.

The Convention members were deeply impressed by the presentations of Professors Gerry Whyte, Siobhan Mullally, Yvonne Galligan and Gail McElroy who willingly shared an impressive depth of knowledge in clear and concise language. Their wisdom forms an important part of this report. I would also like to thank the National Womens’ Council of Ireland, Women for Election and the 50/50 Group who took the time to make presentations to the Convention and give us the benefit of their views and experience. The members of the panel discussion, National Women’s Council of Ireland, The 50/50 Group, Women for Election, Curam, Union of Students in Ireland and the UCD Women Graduates Association should also be congratulated for capturing the views of a broad spectrum of public opinion on the two matters under consideration.

We should also acknowledge the significant contribution made by the facilitators and notetakers at the meeting, each of whom had a difficult job to do in a demanding environment.

I would like to record my gratitude to Matthew Ryan and his team at the Grand Hotel in Malahide for helping to make the event everything we were hoping it would be.

Members of the Steering Group also deserve great credit for their contribution to the preparation for this meeting. The overwhelmingly positive feedback from members is a testament to their judgment and hard work.

Tom Arnold Chairman

2. Convention recommendations

2.1 Amending the clause on the role of women in the home.

Article 41.2 of the Constitution 41.2.1° 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. 41.2.2° 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.

Yes No No opinion Should the clause (art. 41.2) be left as it is? 11% 88% 1%

Delete Amend/Modify No opinion If the clause (art. 41.2) were to be changed would you delete it or amend/modify it in some 12% 88% 0% way?

In the event that the Convention supports change, what change or changes would you Yes No No opinion support?

Make it gender-neutral to include other carers in the home 98% 2% 0%

Do you want to include carers beyond the home? 62% 31% 7%

Noting that Art.41.2.2 says ‘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’, what level of obligation should be placed on the State (on a scale of 1-5) ?

1 - Endeavour to support 20%

2 4%

3 - Provide a reasonable level of support 35%

4 12%

5 – Shall support 30%

Voting on the first issue – relating to the clause on the role of women in the home (article 41.2) – followed three stages. The first vote was on the question of whether to leave the clause as it is. As Table 1 shows, the greater majority of members (88 percent) voted against leaving the clause as it is.

The second vote, then, was on the question of whether to delete the clause altogether or amend or modify it in some way, with the same proportion (88 percent) voting for modification.

Reflecting the main issues that emerged in the discussions, the final part of the ballot then offered three sets of amendments that the members were invited to vote on. The clearest majority (a virtual majority of 98 percent of the members) supported the motion that the clause should be amended to be gender-neutral to include others carers in the home. There was a narrower majority (62 percent) in favour of the clause being amended to include carers beyond the home.

Finally, the members voted on the issue of what level of obligation should be placed on the state to ensure that mothers (or more widely carers) ‘shall not be obliged by economic necessity to engage in labour’. The five options they were invited to locate themselves on ranged from the position that the State should ‘endeavour to support’ (option 1; which attracted 20 percent support) through to the position that the State ‘shall support’ (option 5, attracting 30 percent support). The average position held on this 5-point scale was 3.22, indicating that the Convention as a whole favoured a reasonable level of State support.

2.2 Increasing the participation of women in politics and encouraging greater participation of women in public life.

Yes No No opinion Noting that Article 40 provides that ‘all citizens shall, as human persons, be held equal before the law’, should the 62% 37% 1% Constitution be amended to include an explicit provision on gender equality?

Yes No No opinion Should the Constitution place a duty on the State to take positive action to enhance women’s participation in politics and public 49% 50% 1% life?

Yes No No opinion Leaving aside the Constitution, would you like to see more government action to encourage greater participation of women in 97% 3% 0% politics and public life?

Yes No No opinion Should the text of the Constitution be amended to include gender-inclusive 89% 9% 1% language?

The second topic for discussion during this weekend was the issue of encouraging greater participation of women in public life and increasing the participation of women in politics. Reflecting the discussions throughout the weekend, four questions were posed on this ballot.

First, the members voted on whether the Constitution should be amended to include an explicit provision on gender equality – with a clear majority (62 percent) voting in favour. The members were next asked if the Constitution should ‘place a duty on the State to take positive action to enhance women’s participation’. Opinion was evenly divided on this, with 50 percent rejecting the proposal, 49 percent supporting it and 1 percent expressing no opinion. On that basis the motion was narrowly defeated. It is clear that Convention members favoured non-constitutional routes to encouraging the greater participation of women, as reflected in the third part of the ballot paper. An overwhelming majority of the members (97 percent) supported the motion that there should be ‘more government action’ in this area.

A final question on whether to amend the text of the entire Constitution to include ‘gender- inclusive’ language also received widespread support – 89 percent voting in favour.

3. Convention Programme

Members of the Convention agreed to consider the matters in accordance with the schedule set out below. The Convention firstly heard from academic and legal experts in the field followed by presentations from advocacy and civil society groups. Roundtable discussions and plenary sessions on the emerging themes completed the programme, to ensure that the members, having received sufficient information, had the opportunity to discuss every aspect of the subject.

Saturday 9.30 a.m. Welcome by Chair

Amending the clause on the Role of Women in the Home 9.45 a.m. Advisory Panel presentations – Prof. Gerry Whyte and Prof. Siobhan Mullally 10.20 a.m. Q&A 10.30 a.m. Presentation by Orla O’Connor and Frances Byrne (National Women’s Council of Ireland) 10.40 a.m. Presentation by Áine Uí Ghiollagáin, (Cúram) 10.50 a.m. Advisory Panel summary 11.10 a.m. Roundtable Discussion 1.30 p.m. Plenary session - participants to hear the emerging themes from the discussion at other tables

Encouraging greater participation of women in public life and increasing the participation of women in politics 2.15 p.m. Introduction of Advisory panel – Prof. Yvonne Galligan and Prof. Gail McElroy 2.20 p.m. Advisory Panel presentations 2.50 p.m. Q&A 3.00 p.m. Presentations by Eoin Murray, (National Women’s Council of Ireland), Fiona Buckley, (The 50/50 Group) and Niamh Gallagher, (Women for Election) 3.35 p.m. Roundtable Discussion 4.50 p.m. Plenary session - participants to hear the emerging themes from the discussion at other tables 5.30 p.m. Chair concludes proceedings for evening.

Sunday 10 a.m. Roundtable preparation for panel discussion and review of draft ballot papers 10.20 a.m. Plenary - sign-off of ballot papers 10.30 a.m. Q&A with a panel of representatives from the National Women’s Council of Ireland, The 50/50 Group, Women for Election, Curam, Union of Students in Ireland, UCD Women Graduates Association and the 4 members of the Advisory Panel. 11.45 a.m. Voting 4. Amending the clause on the role of women in the home 4.1 Presentation by Prof. Gerry Whyte, Trinity College Dublin Introduction

Article 41.2 of the Constitution provides:

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.

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.

While this provision may have reflected majority contemporary opinion in 1937, even then it provoked controversy and according to Hogan, the Constitution’s treatment of women in this and other provisions “was the single biggest policy issue which dominated much of the debate at the time both inside and outside the Dáil.” (The Origins of the Irish Constitution, 1928-1941, p.520).

In particular, concern was expressed that Article 41.2, read together with Article 40.1 and Article 45.2, would be relied on by the State to justify gender discrimination in employment. While Article 41.2 does not appear to have ever been cited explicitly by either the Oireachtas or the courts to justify such gender discrimination, it undoubtedly reflected a system of values that permitted such discrimination until the process of securing gender equality in employment began in the 1970s.

Article 41.2 in litigation

Article 41.2 has featured in litigation in relation to two topics, gender discrimination and recognising work done in the home. a) Gender discrimination

Article 41.2 has been cited by the courts on four occasions, twice successfully, to justify gender discrimination.

In two cases, Dennehy v Minister for Social Welfare (1984) and Lowth v Minister for Social Welfare (1994 and 1998), Article 41.2 was relied on successfully to support the conclusion that the preferential treatment of deserted wives for the purposes of social security was not contrary to the guarantee of equality in Article 40.1. However in de Búrca v. Attorney General (1976) Chief Justice O’Higgins won no support from other members of the Supreme Court for his argument that Article 41.2 justified the exemption of women from jury service while in O’G v. Attorney General (1985), the High Court dismissed the Attorney General’s argument that Article 41.2 permitted the State to discriminate against widowers in relation to eligibility to adopt. b) Recognising work in the home

In L v. L (1989) Judge Barr in the High Court argued that Article 41.2 obliged the courts to have regard to work done as a home maker in calculating a wife’s share in the matrimonial home. However this was rejected on appeal by the Supreme Court who held that it was a matter for the Oireachtas to set out any legal principles for determining shares in the matrimonial home. Chief Justice Finlay did, however, indicate that where a husband was capable of making proper provision for his wife within the home, the amount of maintenance payable by him should be set at a level so as to avoid the wife having to work outside the home because of economic necessity.

In DT v CT, (2002) Article 41.2.1º was cited by two members of the Supreme Court, Judges Denham and Murray, in support of the view that, in deciding whether proper provision had been made for a spouse for the purposes of the divorce jurisdiction in Article 41.3.2º, regard had to be had to the work of a spouse caring for dependants, the family and the home.

In Sinnott v. Ireland (2001), Judge Denham made the following interesting observation about the meaning of Article 41.2 in contemporary Ireland:

‘Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition of the work performed by women in the home. The work is recognised because it has immense benefit for society. This recognition must be construed harmoniously with other Articles of the Constitution when a combination of Articles fall to be analysed.’

One final point worth noting here is that both Judge Walsh and Judge McCarthy speculated that Article 41.2 could apply to unmarried mothers, while in DT v CT (2002), Judge Murray sought to extend Article 41.2 to cover fathers, saying

‘the Constitution … is to be interpreted as a contemporary document. The duties and obligations of spouses are mutual and, without elaborating further since nothing turns on the point in this case, it seems to me that [the Constitution] implicitly recognises similarly the value of a man’s contribution in the home as a parent.’

Potential applications of Article 41.2.2?

Some might consider Article 41.2.2 as a basis for obliging the State to improve financial support for mothers in the home through the tax and social welfare system and in 1987, the late Supreme Court judge Brian Walsh expressed astonishment at the fact that what he called “this protective guarantee” had not, to that date, been invoked in litigation. However the obligation imposed on the State by Article 41.2.2 to endeavour to ensure that mothers are not obliged to work outside the home through economic necessity has been described as a “duty of imperfect obligation” and is certainly not as onerous as other constitutional duties imposed on the State.

Given, moreover, that tax and social welfare matters directly affect public expenditure, and that decisions on public expenditure are regarded as the preserve of the Oireachtas and the executive, it is unlikely that the courts would use Article 41.2.2 to impose additional financial obligations on the State to support mothers in the home.

Recommendations for reform

Three different reports have made recommendations for reform in relation to Article 41.2.

The Report of Second Commission on the Status of Women in 1993 called for the deletion of the provision. Two subsequent reports called for its modification. Thus the Constitution Review Group Report in 1996 considered that the Constitution should recognise the significant contribution made to society by the many people who care for children, elderly relatives and others in their homes and so recommended that Article 41.2 be retained in a revised gender neutral form. The Review Group suggested the following wording:

A year later, a majority of the All-Party Committee on the Constitution, in the First Progress Report, agreed with the position adopted by the Constitution Review Group, though it altered the Review Group’s recommended wording slightly to read:

The State recognises that family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

4.2 Presentation by Prof. Siobhan Mullally, UCC Article 41.2 of the Constitution 41.2.1° 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. 41.2.2° 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.

Historical context A commitment to the ideal of ‘separate spheres’, premised on the complementarity of gender roles and a presumption of natural sex differences between women and men is given legal recognition in the language of Article 41.2. [1]

The inclusion of the reference to women’s role in the home in the Constitution reflects the influence of Catholic social teaching. In his comments on a draft text of the Constitution, Archbishop John Charles McQuaid noted that: [2]

Nothing will change in law and fact of nature that woman’s natural sphere is in the home.* ‘Rights of Women’.

The Women’s Graduates Association led the opposition to the draft Constitution. Hanna Sheehy-Skeffington, a leading feminist activist and a pacificist who had supported DeValera in the civil war, was one of the most vocal opponents. The 1916 Proclamation, she argued, had given Irish women “equal citizenship, equal rights and equal opportunities”.[3] Subsequent constitutions had “filched these” or “smothered them in mere empty formulae.” [4] John A. Costello, a former Attorney General, expressed concern that the language used in Article 41.2 could exclude women’s life outside the home from constitutional protection. [5]

Opposition to the language of Article 41.2, however, was rejected as “anti-Catholic” and as lacking respect for the Church teachings on, “the position, the sphere, the duties of women.”[6]

Against Reform: On Women in the Home Women have traditionally taken primary responsibility for care work in the home and for caring roles, including caring for children, the elderly, persons with disabilities and others. Women continue to take most responsibility for care work. Traditionally, care work in the home has been undervalued. It is largely unpaid and has often remained invisible with little official recognition of its significance to the everyday functioning of society.

Article 41.2 can be read as recognition of the distinct role played by many women in the home and a positive valuation of the care work that women have traditionally undertaken. Although gender roles have changed in contemporary Ireland, women continue to account for the majority of homemakers and carers working full-time in the home. Women continue to take on primary responsibility for care work, both in the home and in the wider community: [7]

 47% of people in employment are women;  55% of women are in employment;  Just over half of women with children are in employment. Three-quarters of men with children are in employment;  61% of Carers are women;  Women provide two-thirds (66%) of all care hours; and  86% of child-care is carried out by women.

These statistics reflect wider trends internationally. According to the International Labour Organisation, at least 52.6 million women and men over the age of 15 are engaged in domestic work as their main occupation. Women comprise 83% of the total domestic workers worldwide. [8] Due to the largely unregulated and hidden nature of domestic work, the total number of domestic workers may be in the region of 100 million, significantly higher than the ILO figures.

On recognising the wider value of care to Irish society As Joan Tronto reminds us, ‘Care is not a parochial concern of women, a type of secondary moral question, or the work of the least well off in society.’ [9] It is a ‘central concern of human life’, one that is founded in the inevitable vulnerability of the human condition. [10]

It is important to safeguard against the isolated individualism of contemporary societies, and to recognise the value of care work and the contribution made by carers to the well being of Irish society. Recognising care as a core constitutional value is an important statement of our commitment to supporting care work and the roles of carers, which are often unpaid.

Dr Olivia Smith in her essay on the ‘Right to Care’ has noted that the human need to receive care is universal. As Smith also notes: [11]

‘The need to be enabled and supported in the performance of care work is important to the carer, but also to the recipient of care’. Care work contributes to developing and supporting the autonomy and dignity of the person receiving care. Supporting the work of the carer requires community support. Care is a public good. It is supports the maintenance of a cohesive society, and the production of ‘healthy, well-functioning citizens and workers.’ [12]

How the household functions, divisions of labour and availability of support to ensure the smooth completion of care-taking tasks, shapes the operation of the public sphere in ways that have often remained invisible or unacknowledged. In most societies, the provision of care labour in the domestic sphere is not yet fully recognised by states as a public good that requires state support and resourcing.

A ‘Protective Guarantee’: Recognising the Value of Women’s Care work? Traditionally, care work has been undervalued and care work within the home remains largely unpaid. Article 41.2 can be read as an attempt to remedy that lack of recognition. This was the argument made by Justice Susan Denham (as she then was) in her judgment in the Sinnott case. She argued: [13]

“Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition of the work performed by women in the home. The work is recognised because it has immense benefit for society. This recognition must be construed harmoniously with other Articles of the Constitution when a combination of Articles fall to be analysed. “

Kathy Sinnott was seeking recognition of her role as a carer within the family, caring for her son who had severe disabilities. She argued that the State’s failure to protect her son’s rights also breached her constitutional rights as the primary carer within the family. Chief Justice Keane, giving judgment on behalf of the majority of the Supreme Court, rejected her arguments, however. He concluded that while her position evoked “respect, admiration and compassion”, these were not grounds in law for any award of damages.

Although it has been suggested by some (including Justice Denham), that Article 41.2 could provide support for a rights claim arising from women’s contribution to care work, to date this interpretation of the Constitution has been rejected by the Irish courts.

In the case of L v. L [14] the Supreme Court rejected a claim by a married woman that was based specifically on Article 41.2. The Supreme Court held that even though she had worked exclusively within the home throughout her marriage she was not entitled to a 50% interest in the family home and Article 41.2 could not support her claim.

THE NEED FOR REFORM: GENDER, WOMEN AND STEREOTYPES Article 41.2’s specific reference to the role of women in the home, and to mothers’ ‘duties in the home’, has given rise to criticism, both during the drafting process of the Constitution itself and more recently in debates on the necessity of constitutional reform. The constitutional text does not assign roles or societal functions in this way to other private individuals. It is specifically women and mothers who are selected to fulfil specific roles and to discharge specific functions in society.

At the time of drafting, and in 2013, concern has been expressed that the specific role assigned exclusively to women by Article 41.2 does not take account of the wide variety of roles and experiences of women – as employees, as carers, as employers, as public, political figures.

Article 41.2 does not refer to or acknowledge the roles played by men and by fathers in the home and in families. The National Women’s Council of Ireland, in its submission to the Constitutional Convention, has pointed out that the current wording of Article 41.2 does not recognise the work that men currently do as carers, and neither does it recognise that men have duties and responsibilities as carers.

In DT v CT, Judge Murray suggested that Article 41.2 could be interpreting as covering fathers’ roles: [15]

The Irish Human Rights Commission has argued that Article 41.2 of the Constitution is based on: [16]

[...] a stereotypical view of the social roles of women as homemakers and mothers. It retain ‘a biological determinism’ that is, in their view, ‘offensive to women and ascribes to them a limited and dependent role.’

On the value of care outside of ‘the home’ Article 41.2, as currently drafted, does not recognise or value caring roles that are undertaken outside of the home - in communities, neighbourhoods and the wider society. As such it fails to fully recognise the value of care to Irish society. The right to ‘private and family life’ protected by Article 8 of the European Convention of Human Rights covers a wider range of activities and of human interaction than found in the wording of Article 41.2. Removing the reference to the home would reflect this wider protection given to ‘private and family life’.

Observations of international human rights bodies Article 41.2 of the Constitution has attracted repeated criticism from international human rights bodies.

The UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) expressed concern at: [17]

[...] the persistence of traditional stereotypical views of the social roles and responsibilities of women and men in the family and in society at large which are reflected in article 41.2 of the Constitution and its male-oriented language, as recognized by the All-Party Oireachtas Committee on the Constitution, in women’s educational choices and employment patterns, and in women’s low participation in political and public life.

The Committee called on the Government to consider replacing the language of Article 41.2 with ‘gender-sensitive’ language to convey the concept of gender equality more clearly. The UN Human Rights Committee concluded that Article 41.2: [18]

[...] perpetuates traditional attitudes toward the restricted role of women in public life, in society and in the family’, in breach of the State’s obligations under Articles 3 (equality between women and men), 25 (equality in public life) and 26 (equality before the law) of the International Covenant on Civil and Political Rights.

The UN Human Rights Committee recommended that Ireland take steps to move to a gender-neutral wording of Article 41.2.

Recommendations for reform In 1993 the report of the Second Commission on the Status of Women recommended that Article 41.2 should be deleted. [19]

The Constitution Review Group has recommended that Article 41 should be replaced with a gender neutral provision that specifically recognises the value of caring work in our society, but removes the stereotyping of such roles that arises from the language currently used. The revised provision proposed by the Review Group is: [20]

The State recognises that home and family life give society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

In their submission to the Constitutional Convention, the National Women’s Council of Ireland have argued that this revised wording does not adequately recognise the role of carers and care work that takes place outside of the home, in community and society more generally. Removing the reference to ‘the home’, they suggest, would address this limitation and give greater recognition to the value of care in Irish society.

The Irish Human Rights Commission has expressed the view that Article 41.2 is in violation of Articles 2 and 5 of the UN Convention on the Elimination of All Forms of Discrimination Against Women, and should be amended.

4.3 Convention discussion Having heard the views of experts and of representatives from advocacy groups, the convention members had detailed small-group discussions about the matters raised. At the end of their discussions, the main points were noted and gathered together on powerpoint slides to inform the open plenary discussions that followed.

A large majority of members were in favour of keeping but amending Article 41. There appeared to be large support for changing the wording of Article 41.2 to render the article gender neutral. Removing the words ‘women’ and ‘mothers’, and replacing them with references to ‘carers’, ‘persons’ or other such descriptions could achieve this. The reasoning given for amending the article was that it gave a sexist or stereotypical view of women, and did not give recognition to modern 21st century families, where caring in the home is increasingly shared by mothers and fathers, grandparents and others. Some suggested changing the phrasing to caring ‘in the community’, but most were in favour of keeping reference to the home. The reasoning given for not abolishing the article totally was that it was felt by members that it was important to give recognition to the important role of caring and carers in the home. Several members said that the article was the only reference in the Constitution to this caring role.

There were mixed opinions regarding the phrase ‘endeavour to ensure’, with some members concerned that changing it to ‘shall ensure’ would impose unreasonable financial burdens on the state. It was put forward by some members that a clearer definition was needed of words and phrases such as ‘marriage’, ‘families’, ‘duties’ and ‘common good’. For example, it was argued, separated, divorced, single-parent, and non-married couples and families are not included in the meaning of marriage in Article 41. One possible suggestion was ‘people living together as the family unit’.

Some expressed dissatisfaction with the negative connotation given in Article 41.2.2 to women working outside the home, suggesting a more positive formulation would be better.

A minority view was that the Article should be abolished, as it has no place in a modern 21st century Ireland. That the Article should be kept unchanged was another minority view. The reasoning for this was that women do in fact have a unique role in terms of childbearing and childrearing that cannot be replaced.

A small number of members raised questions about the implications with regard to the family court. One member, for instance, posed the question as whether the reference to the woman and mothers was the reason for fathers having difficulties in the family court, while another asked whether women who work outside the home have fewer rights in the courts than a woman who does not work outside the home.

5. Increasing the participation of women in politics and encouraging greater participation of women in public life

5.1 Presentation by Prof. Yvonne Galligan (Annex 1 to this presentation is set out in Appendix D)

Background Apart from providing for women’s equal right to citizenship (Article 9), to vote and stand for election (Article 16), the 1937 Constitution is silent on women’s participation in public life. Article 40.1, which provides that “all citizens shall, as human persons, be held equal before the law” has been interpreted by the Supreme Court as including gender equality. In terms of specific reference to women, Article 41.2.1 and 41.2.2 single out women’s family role for mention. The policy and practical effect of this provision was to interpret women’s citizenship as being one of engagement in the private sphere of home and family life. The silence of the rest of the Constitution on civic participation more generally means that the basic context for shaping women’s engagement in public life is absent.

Given this gap, encouraging the greater participation of women in public life is a matter for civil society organisations, political parties, and government.

Since the 1970s, women have sought to be included in public decision-making, and especially in political life. Various women’s organisations have campaigned on this issue, from the Women’s Political Association in the 1970s and 1980s, to the National Women’s Council of Ireland and associated women’s groups today. The State has played a role in encouraging women’s public participation, though its efforts have not resulted in gender equality in decision-making. Parties, too, have sought to address the absence of women from political life, again with only modest results. A sketch of some of these issues can be found in the Annex at the end of this briefing paper.

Much attention by government to women’s participation on state boards has brought women’s membership up to 35%. But that figure has remained static for some years now.

In terms of economic decision-making, for a long time women had no say in key economic decision-making forums – and today there is one woman among the 10 Directors of the Central Bank. While there is a strong pool of women at middle grades in the Civil Service, at present only 18% Secretary Generals are women.

These are examples of high-level decision-making that can seem remote from the lives of ordinary people. So, one would expect that women would be more visible at local level, engaging in issues that affect them and their communities. But, women comprise only 16% of local councillors, 26% County Enterprise Board members; and 34% of VEC board members (CSO 2011). Yet, women’s participation in voluntary associations equals that of men (European Commission 2010).

The background to the introduction of quota legislation, passed in 2012, is likely to be the subject of a number of submissions to the Convention. The 2009 Report of a sub-committee of the Joint Committee on Justice, Equality, Defence, and Women’s Rights (the Bacik Report) laid the basis for subsequent legislative proposals in this area. Its recommendations sparked an extensive and comprehensive public and political debate, eventually culminating in the section 6 provisions of the Electoral Amendment (Political Funding) Act, 2012 legalising and enforcing candidate gender quotas. This brief review of women’s participation in public and political life indicates that there is scope to consider amendments to the Constitution.

The two potential questions to be asked are: Should Article 40.1 of the Constitution be amended to include an additional section naming gender equality as a fundamental right? Should the Constitution be amended to include a provision that allows for special positive action measures to be taken to redress gender imbalances in public and political life?

Each will now be considered in turn.

Should Article 40.1 of the Constitution be amended to include an additional section naming gender equality as a fundamental right?

Advantages: Insertion of a clause of this kind would provide recognition of gender equality as a fundamental principle in the Constitution Gender equality is a fundamental democratic principle, and recognised as such in a range of constitutions, treaties and legal texts. It is embedded in Article 40.1 which states that “all citizens shall, as human persons, be held equal before the law”. By identifying gender equality as a specific right in the Constitution, the document would recognise equality of the sexes as a basic principle of law and policy. It would give a constitutional basis to policies effecting the equal visibility, participation and empowerment of both women and men in all aspects of public and private life.

It would bring the Constitution closer to a founding value of the European Union Gender equality in a European context dates from the 1957 treaty of Rome that provided for equal pay between women and men. Article 23 of the European Charter of Fundamental Rights and Freedoms stipulates that equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

Amending the Constitution to include a positive statement on gender equality would bring the Constitution closer to the EU founding value of equality between women and men more generally. The EU’s gender strategy targets women’s public participation as a key area of action. Article 23 of the Charter of Fundamental Rights and Freedoms is concerned with this issue in the areas of EU competence. Bringing this idea into the Irish Constitution would be in keeping, and indeed extend, the aspiration that women and men have equal opportunities to participate in public life. It would recognise that gender equality is a value that underpins the country’s laws.

It would require all laws and policies to consider the implications for gender equality Gender mainstreaming – ie the incorporation of a gender perspective in all laws and policies and consideration of the differential impact on women and men of the policy in question – is an important tool in supporting women’s equal participation with men in political and public life. Inserting a positive statement on gender equality would ensure that this practice was an integral part of all laws and policies from the outset, thereby making them more effective and responsive to the needs and interests of women and men.

Disadvantages The Constitution gives sufficient recognition to gender equality There is no need for a provision stating that women and men are equal. The Constitution already upholds this principle through Article 40.1.

It would be a policy constraint on the government of the day There is sufficient gender mainstreaming taking place in policy-making, and sufficient evaluations of policy effectiveness. This is an embedded routine part of the policy process and does not require a Constitutional commitment. It would be an unnecessary policy constraint on government. Indeed, each memorandum to Cabinet has a gender-proofing clause, and has had so for some time. So the government, at the apex of public decision- making, already imposes this obligation on itself.

It could give rise to unforeseen costs in interpreting the provision A provision stating a positive commitment to gender equality could make a future demand on public purse that might be considered costly and unaffordable. This could follow on from a judicial interpretation of the provision.

Should the Constitution be amended to include a provision that allows for special positive action measures to be taken to redress gender imbalances in public and political life?

Advantages The law at present confines gender equality as meaning 40%, when equality is 50%. The gender quota law is an effort to take reasonable positive measures to increase women’s political representation. This is currently set at 40% maximum for both genders, while the population consists of equal numbers of women and men. A constitutional provision allowing for special positive measures to be taken to redress under-representation of either gender could provide a framework for laws and policies that seek to go beyond 40% gender balance.

The need for gender equality in decision-making is not confined to politics The current quota law applies only to parties at election time. It does not address the wider issues of gender imbalances in decision-making, such as women’s participation on State boards, at senior levels of the Civil Service, in national delegations abroad, in local elections, and their participation in regional and local public decision-making forums. A provision of this kind would extend the special measures from national politics to the many other decision-making sites in which women’s lives and interests are affected.

Such a provision would make Ireland a global leader on this issue While there is a growing tendency around the world to introduce special measures such as quotas to address the under-representation of women in political life, States seldom extend this principle to other arenas, though the Greek constitution is a case in point. While there are moves to tackle women’s under-representation on corporate boards, and preferential consideration of women in employment interviews is also known, these policies exist as stand-alone provisions. A general Constitutional commitment to actively addressing women’s under-representation in all public and political spheres would bring Ireland to the fore as the ‘gold standard’ example for gender equality.

It is the only way to ensure women’s full public and political participation as equal citizens with men The quota law will not address gender inequalities in representation at sub-national level, in all its aspects. Yet, many decisions that affect the lives of women and men differentially are taken by boards, committees, forums locally. A constitutional requirement to include women with men in equal measure would change the political culture and public discourse to becoming more inclusive of all citizens and their diverse interests, needs and viewpoints.

Disadvantages The incorporation of a ‘special measures’ provision into the Constitution is not necessary On the other hand, one could equally well argue that it is not necessary to provide for this in the Constitution. We have plenty of safeguards in place without recourse to constitutional measures. What is required is more on-the-ground commitment to including women in public affairs.

Inserting a measure of this kind into the Constitution would make decision-making unworkable The demands a special measures provision would place on the functioning of decision- making bodies at all levels in the State would be overwhelming. A board without its complement of equal numbers of women and men would not be able to take decisions, and its functioning would be undermined as a consequence. This measure, from a practical point of view, would bring all decision-making to a grinding halt while women were found to fill vacancies.

Not sufficient women can be found, and those willing to serve would be overworked There is a shortage of women with the required skills and experience available and willing to take on public decision-making positions. Training interested women in to decision-making will take time, and in the meantime, women who already participate in public life will become overburdened. Many women already carry a double burden (at least) – that of work and family responsibilities – and it is unfair to ask them to stretch themselves further in the name of a Constitutional provision.

The real problem preventing women from becoming more active in public affairs is the absence of childcare. For women to take part in public affairs, a good childcare system needs to be put in place. A Constitutional provision for quotas will not change the gender imbalance in decision-making if women still carry out the bulk of childcare (and elder care) work. 5.2 Presentation by Prof. Gail McElroy

I: Introduction In the 2011 Irish general election, 25 female TDs were elected to Dáil Éireann, a slight increase on the 22 elected in 2007. By international standards, the percentage of Irish female representatives (15%) is rather low and only a handful of other EU countries have fewer women elected to their national parliaments (Hungary, Romania, Cyprus and Malta). Furthermore, there has been no breakthrough in representation at the local level, with just 16 per cent of the seats in the city and county council elections of 2009 being won by women.

Interestingly, there has been no major increase in female representation in Ireland in the past two decades, despite very significant social change and increased female labour force participation.1 Other European countries, which in the past have had similarly low levels of female representation, have overtaken Ireland in recent years. For instance, in 1992 there were 60 women (9% of the total) in the UK House of Commons but there are now 143 (22%), while 27 per cent of those elected to the French Parliament in 2012 were women, up from eleven per cent in 1997.

II: Why are the numbers of women TDs so low? There are a whole variety of different reasons put forward as to why there may be so few women elected to public office in Ireland.

1) Women run for the wrong parties: Women generally run for the smaller parties, which by definition are less successful in elections. For example, in 2011 the Labour Party and Sinn Féin had the highest number of female candidates amongst their ranks, at 25 and 20 per cent respectively. Women comprised only 15 per cent of candidates for both Fianna Fáil and Fine Gael.

2) Incumbency Advantage: Most sitting TDs are men and incumbents have rather high re- election rates in the Republic of Ireland. Parties naturally want to nominate incumbents given their good chances of winning. It is not about the sex of the candidate per se, just their incumbency status.

3) Parties don’t nominate women. Related to point 2, but this argument also further suggests that parties systematically discriminate (either consciously or unconsciously) against women when it comes to nominating candidates for election. For instance, recruitment at the local level may happen in rather male environs such as GAA clubs. The argument is that women are not seen as viable candidates by parties and are less visible to party selectors overall. This argument does not fully explain however, why Ireland is so low in international rankings, as this is not an exclusively Irish problem.

4) Women don’t come forward: International research on the decision to run for office does indicate that women rule themselves out of the political game more frequently than men. There is a gender gap in levels of political ambition. Women are much less likely to see themselves as qualified to run (even when by objective standards they are). The reasons for this are complex, in part it may be socialization or it may be that women are more risk adverse than men. Women are more likely than men to perceive the electoral environment as highly competitive and biased against female candidates. Though again, lower levels of political ambition are not peculiar to Irish women and do not in themselves explain our particularly low rates of female participation.

5) The voters are to blame: Conventional wisdom, often repeated in the Irish media, is that Irish voters won’t vote for women or Irish women won’t vote for female candidates. However, there is no systematic evidence to support this popular claim. Research on Ireland can find no evidence that women candidates are disadvantaged by their gender. This conclusion reflects research in other advanced industrialized democracies (e.g. the USA, Canada, the UK) where it has been established that, if anything, women candidates actually have an advantage with voters. There may be a very small number of voters who do prefer candidates of one gender but this is relatively balanced between the sexes. There is very little indication that gender is a deciding factor when Irish people cast their ballots.

6) Irish Culture is paternalistic and traditional. This is an idea put forth largely by outside observers but also highlighted by the “50:50 Group” in their submission to the Convention. It doesn’t take account of the sea change in Irish society in recent decades. It also does not adequately explain the increase in numbers of women members of parliament in countries with very similar cultures and traditions, such as Spain. 2 Women across the world are typically still responsible for the majority of childcare and household tasks and this in itself does act as an obstacle to running for office, but it is not a peculiarly Irish phenomenon.

7) Irish political life is not compatible with family life. Being a TD is more than a full time job, work-life balance is hard to establish, the hours are long and the demands on one’s time are many. Irish voters expect their TDs to be personally available to answer their demands. On the other hand, political life is demanding almost everywhere and the need to cultivate a personal vote and keep constituents onside is not exclusive to the Irish system.

8) Lack of gender quotas. Most of the countries with high numbers of women in their national parliaments have quotas of one form or another (17 of the top 20 ranked countries internationally). Undoubtedly, the introduction of quotas goes some way in explaining the rapid increases in women’s representation in nations such as Rwanda. But the effectiveness of quotas varies quite dramatically. In Scandinavian countries the surge in women elected to public office predated the introduction of quotas (and indeed in Scandinavia, quotas are still largely voluntary, implemented at party level)

9) Nature of the Electoral System? Generally proportional representation (PR) systems are viewed as being kind to women candidates. However, the Single Transferable Vote (STV), with its emphasis on cultivating a personal vote, may be off putting to women. In the Republic of Ireland, elections are much more candidate centred than in other European PR systems and this aspect of campaigns may be particularly unattractive to women (see point 4 above).

International research indicates that women react more negatively to campaigning elements such as having to raise their own money and going door to door to meet constituents. The personal element of the Irish electoral system may be a particular deterrent to women coming forward. The submission to the constitutional convention by Mr. Diarmuid Lynch (Dec 24 2012) makes specific reference to the nature of the STV as an obstacle to greater participation by women in Irish political life.

III Does it Matter? Does it really matter that TDs are not a microcosm of society in terms of things like gender, class or age? Public opinion research has found that Irish voters generally seem to think having more women (and young people) in the Dáil would be a good thing. However, they don’t seem to care too much whether their own constituency TDs are of the same gender as them. Nonetheless, the majority of the submissions to the Constitutional Convention (as of the 11th of February) on the topic of Women in Politics do call for action.

Arguments in favour of the adoption of electoral/constitutional quotas: i) Female TDs may better understand the needs of women constituents. ii) Female TDs may be better able to communicate with women voters. iii) More women in parliament will generate greater trust in the quality of our democracy. Research generally finds that the greater the representation of women in parliament, the lower the level of corruption. iv) More women in positions of political power may inspire other women and influence younger women through a role model effect. v) Actively encouraging women to participate in politics will lead to a bigger pool of potential candidates, this will lead to an overall improvement in the quality of our elected representatives. vi) More women in parliament will lead to a different more consensual (friendly) style of politics and the introduction of new and different types of legislation.

Arguments against gender quotas: i) Most women TDs don’t see themselves as representing women, they are party people, first and foremost. ii) There really is no such thing as women’s interests; women are too diverse to be considered as a group. iii) Why should gender be privileged over other identities such as ethnicity or age? iv) Liberal democracies such as ours are about the rights of citizens as individuals not as members of particular groups. v) The policy is discriminatory and undermines the principle of merit. vi) The proportion of women in the Dáil will increase over time in a natural, incremental fashion. vii) Quotas do not deal with the real causes of women’s underrepresentation (e.g the burden of child care) and these should be addressed more directly.

Constitutions and the Role of Women in Politics Constitutionally defined gender quotas, or constitutional references to the role of women in political life, are unusual in Europe. France and Serbia are among the very few countries that reference women as elected officials in their constitutions.

And no European constitution currently makes a provision for reserving a set number of parliamentary seats for women, a practice that has recently been introduced in some African and Asian countries e.g. Rwanda, Pakistan. Many constitutions do, however, have an explicit clause that prohibits discrimination on the grounds of gender (and race etc.)

Examples of constitutions with clauses on Women in Political Life i) In 2008, a review of the French constitution of 1958 was undertaken, with the goal of modernizing France’s political institutions. Amongst several other changes, Article 1 of the Preamble of the constitution was amended to include the phrase: “Statutes shall promote equal access by women and men to elective offices and posts as well as to positions of professional and social responsibility”. ii) The Serbia constitution of 2006 specifies that: The State shall guarantee the equality of women and men and develop equal opportunities policy. Art 15. In the National Assembly, equality and representation of different genders and members of national minorities shall be provided, in accordance with Law. Art 100. iii) While the Greek Constitution of 1975 explicitly prohibits gender discrimination in article 4(2), Article 116(2) of the constitution specifies that:

‘Positive measures aiming at promoting equality between men and women do not constitute discrimination on grounds of sex. The State shall take measures to eliminate inequalities existing in practice, in particular those detrimental to women.’

This article is generally interpreted as obliging the legislature (and other state bodies) to take positive measures in favour of the promotion of women, where they are underrepresented.

The Irish constitution (Art. 16.1.1) does make a particular reference to the fact that no one should be excluded from running for Dáil Éireann on the basis of gender: “Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann”. iv) An example of a very specific reserved seat provision is provided by the Rwandan constitution of 2003:

..24 seats (of 80) in the Chamber of Deputies [are] reserved for women. Two from each province and the City of Kigali. Art 76:2 As of the 31 December 2012, there were 45 women (and 35 men) in Rwanda’s national assembly.

5.3 Convention discussion For the session on greater participation of women in public life, three main questions were put to members: should gender equality be enshrined in the Constitution? Should the constitution be amended to include a provision that allows for special positive action measures to redress gender imbalances in public life? Should the Constitution be amended by a general statement on positive action or by specifying gender quotas in the Constitution?

Regarding the first question, the main argument in favour was that recognising gender rights in the Constitution would be a positive step, which would show a commitment to diversity. In addition, it would be a useful tool to get women involved in politics. The main arguments against enshrining gender equality in the Constitution were that there was already a general provision for equality in the Constitution; that it would go against the ‘gender neutral’ aims of proposed reforms to Article 41 discussed in the morning session and would be a redundant question in a few years (though it was not clarified why this would be). One member said it was a ‘leading’ question.

The second question saw more voices and arguments against the proposition than in favour. The principal argument against amending the Constitution for the purposes mentioned above was that, while this was a worthy aim, the Constitution was not the vehicle for such a reform: legislation and changing social and cultural attitudes would be more effective means. Education was needed, it was argued, and various social and cultural reasons were put forward for the lack of women participating in public life. Examples given were lack of affordable childcare facilities, biased selection procedures for election candidates, and traditional attitudes regarding the woman’s role as a childminder. Even with a Constitutional amendment, these barriers would still remain. In addition, constitutional action would be too rigid and specific. Some said more investigation needed to be done as to why there are so few women in politics. Another point of view was that most other countries are not at parity in male/female representation in their national parliaments, so it is not solely an Irish problem.

The question of whether to amend the Constitution with a general statement or with quotas elicited a variety of responses. An argument in favour of the former was that it would be more flexible and would allow more room to manoeuvre. Similar opinions as those for question two were expressed – policy and legislative changes were a better way of establishing quotas than Constitutional means. It was felt by some that, even with quotas, the same problems and disincentives would remain. It was argued that selection procedures for candidates for elections need to change, as there are inbuilt advantages for men. There were some voices in favour of quotas, with the reason being that there were so few women in public office that the issue needed to be forced. Others, however, had problems with the ‘compulsion’ feature of quotas.

It was suggested that references to ‘he’ in the Constitution should be made gender neutral or even gender inclusive.

Appendix A: Convention on the Constitution Terms of Reference

“Go gceadaíonn Dáil Éireann: That Dáil Éireann:

Coinbhinsiún ar an mBunreacht a ghairm chun approves the calling of a Convention on the breithniú a dhéanamh ar na nithe seo a leanas Constitution to consider the following matters and agus chun cibé moltaí a dhéanamh is cuí leis agus to make such recommendations as it sees fit and chun tuairisciú do Thithe an Oireachtais: report to the Houses of the Oireachtas:

(i) téarma oifige na hUachtaránachta a laghdú go (i) reducing the Presidential term of office to five cúig bliana agus é a chur ar comhfhad leis na years and aligning it with the local and European toghcháin áitiúla agus leis na toghcháin don elections; Eoraip;

(ii) an aois vótála a laghdú go 17 mbliana; (ii) reducing the voting age to 17;

(iii) an córas toghcháin don Dáil a athbhreithniú; (iii) review of the Dáil electoral system;

(iv) an ceart a thabhairt do shaoránaigh a bhfuil (iv) giving citizens resident outside the State the cónaí orthu lasmuigh den Stát chun vótáil i right to vote in Presidential elections at Irish dtoghcháin Uachtaráin in ambasáidí de chuid na embassies, or hÉireann, nó ar otherwise; shlí eile;

(v) foráil maidir le pósadh comhghnéis; (v) provision for same-sex marriage;

(vi) leasú a dhéanamh ar an gclásal i dtaobh ról (vi) amending the clause on the role of women in na mban sa teaghlach agus rannpháirteachas níos the home and encouraging greater participation of mó ag mná sa saol poiblí a spreagadh; women in public life;

(vii) rannpháirteachas na mban sa pholaitíocht a (vii) increasing the participation of women in mhéadú; politics;

(viii) an cion arb é diamhaslú é a bhaint as an mBunreacht; agus (viii) removal of the offence of blasphemy from the Constitution; and (ix) tar éis na tuarascálacha thuas a chríochnú, cibé leasuithe iomchuí eile ar an mBunreacht a (ix) following completion of the above reports, bheidh molta aige; agus such other relevant constitutional amendments that may be go dtugann sí dá haire: recommended by it; and

— gur 100 duine mar a leanas a bheidh i notes that: gcomhaltas an Choinbhinsiúin: — membership of the Convention will consist of — Cathaoirleach a bheidh le ceapadh ag an 100 persons as follows: Rialtas; — a Chairperson to be appointed by the — 66 shaoránach atá i dteideal vótáil i reifreann, Government; arna roghnú go hamasach sa chaoi go mbeidh siad — 66 citizens entitled to vote at a referendum, ionadaitheach do shochaí na hÉireann i gcoitinne; randomly selected so as to be broadly representative of Irish society; — comhalta de Thionól Thuaisceart Éireann as gach páirtí de na páirtithe polaitíochta sa Tionól a — a member of the Northern Ireland Assembly ghlacfaidh le cuireadh ón Rialtas; agus from each of the political parties in the Assembly which — comhaltaí de thithe an Oireachtais, chun accepts an invitation from the Government; and ionadaíocht neamhchlaonta a dhéanamh ar na Tithe; — members of the Houses of the Oireachtas, so as to be impartially representative of the Houses; — féadfar ionadaithe a cheapadh faoi réir na gcritéar roghnóireachta thuas, agus beidh na — substitutes may be appointed subject to the hionadaithe sin in ann páirt a ghlacadh sna selection criteria above, who will be entitled to himeachtaí agus vótáil faoina n-ainm féin; contribute to the proceedings and vote in their own name; — comhaontóidh an Coinbhinsiún a rialacha nóis imeachta féin d’fhonn a ghnó a sheoladh go héifeachtach ar shlí a bheidh chomh heacnamúil — the Convention will agree its own rules of agus is féidir; procedure for the effective conduct of its business in as economical manner as possible; — beidh aird chuí ag an gCoinbhinsiún ar Chomhaontú Aoine an Chéasta agus ar Chomhaontú Chill Rímhinn; — the Convention will have appropriate regard to the Good Friday Agreement and the St. Andrews Agreement; — tráth nach déanaí ná dhá mhí tar éis dháta na chéad éisteachta poiblí a thionólfaidh an — not later than two months from the date of the Coinbhinsiún first public hearing held by the Convention, the tabharfaidh an Coinbhinsiún tuarascáil do Thithe Convention will make a report and an Oireachtais agus déanfaidh sé moltaí dóibh ar recommendation to the gach ceann de na nithe atá leagtha amach ag (i) Houses of the Oireachtas on each of the matters agus (ii) set out at (i) and (ii) above; thuas;

- tuairisceoidh an Coinbhinsiún do Thithe an — the Convention will report and make Oireachtais agus déanfaidh sé moltaí dóibh ar recommendations to the Houses of the Oireachtas gach ní eile a luaithe a bheidh a phléití on each remaining matter as soon as it has críochnaithe aige agus, in aon chás, tráth nach completed its déanaí ná bliain amháin ó dháta na chéad deliberations, but in any event not later than one éisteachta poiblí; year from the date of the first public hearing;

— féadfaidh an Coinbhinsiún aighneachtaí a — the Convention may invite and accept iarraidh agus glacadh leo ó chomhlachtaí submissions from interested bodies and will seek leasmhara agus lorgóidh sé cibé comhairle such expert advice as it considers desirable; shaineolaíoch is dóigh leis is inmhianaithe;

— déanfar gach ní a bheidh os comhair an — all matters before the Convention will be Choinbhinsiúin a chinneadh trí thromlach de determined by a majority of the votes of members vótaí na gcomhaltaí a bheidh i láthair agus a present and voting, other than the Chairperson vótálfaidh, seachas an Cathaoirleach a mbeidh who will have a casting vote in the case of an vóta cinniúna aige nó aici i gcás comhionannas equality of votes; and vótaí; agus

— tabharfaidh an Rialtas freagra san Oireachtas — the Government will provide in the Oireachtas a laistigh de cheithre mhí ar gach moladh a response to each recommendation of the dhéanfaidh an Coinbhinsiún agus, má tá sé chun Convention glacadh leis an moladh, cuirfidh sé an creat ama within four months and, if accepting the in iúl ar lena linn atá sé ag brath aon reifreann recommendation, will indicate the timeframe it gaolmhar a sheoladh. envisages for the holding of any related referendum.”

Appendix B: Rules and procedures 1. Timing, Frequency and Openness of meetings Meetings of the Convention will generally take place in a hotel at weekends (Saturdays and Sundays) during 2013. At least one meeting will be held outside Dublin. It is proposed to hold one meeting per month, with the exception of July and August. Members of the public will not have access to the meetings but the plenary sessions will be streamed live at www.constitution.ie.

2. Role and duties of the Chairperson The Chairperson shall be the sole judge of order and shall be responsible for the smooth running of the Convention in accordance with these rules and the terms of the Resolution of the Houses of the Oireachtas of 10 July, 2012. He shall engage such support services as are necessary for the effective administration of the forum and, from time to time, make such recommendations to the Convention on the management of business as he sees fit.

3. Work Programme The work programme shall be agreed by the Convention on foot of a proposal by the Chairman. The programme shall be reviewed regularly but any subsequent changes shall only take effect with the agreement of the Convention.

4. Steering Group A Steering Group shall be established to support the Convention in the efficient and effective discharge of its role and functions. In practice, the Group shall assist with planning and operational issues associated with the work programme. The Steering Group shall consist of the Chairperson and representatives from the political parties, the public members and such other representatives as the Convention sees fit.

5. Debates/speaking arrangements The format and structure of speaking arrangements shall be agreed in advance and as a general principle, all contributions by members should be brief, respectful and non- repetitive. Any member wishing to speak should indicate and will be called upon by the Chairperson, who will endeavour to ensure fairness in the allocation of speaking time to all members. In an effort to make most efficient use of time in plenary session, members are encouraged to use the opportunity of roundtable discussions to express their views, ask further question of the experts and deliberate with one another. These discussions can be reflected in a brief report to the plenary session.

6. Tabling and Circulation of Papers All documents received by the Convention secretariat shall be made available to all members of the Convention via the www.constitution.ie website. Alternative arrangements will be made for those members who are not in a position to access the site. Deadlines for receipt of submissions and circulation of documents in advance of plenary meetings should be agreed by the Convention.

7. Presentations to the Convention Following receipt of submissions on any matter, the Convention may choose to hear oral presentations from any representative group or individual to assist in its deliberations. For the efficient administration of the process, the Steering Group may wish to make recommendations in relation to the selection of interested bodies to present to the Convention. Invitations shall be issued by the Chairperson on behalf of the Convention.

8. Voting Votes, if required, shall be by secret ballot of the members present and voting. Votes shall be overseen by the Chair with the support of at least 2 members of the Convention.

9. Advisory Panel The Convention shall establish an advisory panel of academics, constitutional lawyers and others with demonstrated expertise, for access to such expert advice as it considers desirable. The process for selection and appointment of any such advisers shall be agreed by the Convention, on the advice of the Steering Committee.

10. Irish language facilities A simultaneous translation service from Irish into English will be available for all plenary sessions of the forum.

11. Press and Communications Authorised members of the media shall be permitted to attend plenary sessions of the Convention, subject to such terms and conditions as may be laid down by the Convention. As a general principle, the Chairperson shall act as spokesperson in relation to administrative or procedural matters.

12. Reports Reports of the Convention shall be published as soon as practicable after a decision has been reached at each meeting. It shall be possible to finalise the detail of the content of each report other than in plenary session, subject to the agreement of the Convention.

13. Review of Procedures The Chairperson shall consult with members of the Convention and other interested parties and conduct such reviews of the procedures and administration of the Convention as he sees fit.

14. Convention secretariat The Chairperson shall have direction and control over the staff of the secretariat and other supports and resources available, subject to the wishes of the Convention.

Appendix C: Reference material: Role of Women – Prof. Siobhan Mullally 1 See: S. Mullally Gender Culture and Human Rights: Reclaiming Universalism (Hart: Oxford, 2006) ch.7 2 John Charles McQuaid Papers, Section 5, File 48, Dublin Diocesan Archives 3 See: Election manifesto of Hannah Sheehy Skeffington, 1943, cited in M Luddy Hannah Sheehy Skeffington (Dublin, Historical Association of Ireland, 1995), p.50. 4 Ibid. 5 Dáil Debates, vol. 68, col.1856, 4th June 1937 6 Irish Press 17 Dec. 1937. 7 These statistics are cited in National Women’s Council of Ireland Submission to the Constitutional Convention (2013) p. 6 8 International Labour Office, Domestic Work Policy Brief 5: Coverage of domestic workers by key working conditions laws http://www.ilo.org/travail/whatwedo/publications/WCMS_157509/lang--en/index.htm accessed 27 November 2012 (Hereafter ILO Policy Brief 5). 9 J C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (New York: Routledge, 1993), p. 180. 10 See generally, M Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20(1) Yale Journal of Law and Feminism 11 O Smith ‘How Far From a 'Right to Care'? Reconciling Care Work and Labour Market Work in Ireland’ (2012) 47 (1) JUR 143 Irish Jurist, p.174 12 Ibid. p.167 13 [2001] 2 IR 545, at p. 665. 14 [1992] 2 IR 77 15 (2002) 16 Irish Human Rights Commission, Submission to the UN Committee on the Elimination of All Forms of Discrimination Against Women in respect of Ireland’s Combined Fourth and Fifth Periodic Reports under the UN Convention on the Elimination of All Forms of Discrimination Against Women, p.2 17 Committee on the Elimination of All Forms of Discrimination Against Women, Concluding Observations on Ireland’s Combined Fourth and Fifth Reports, 22 July 2005, UN Doc. CEDAW/C/IRL/CO/4-5, para.24 18 Human Rights Committee Concluding Observations on Ireland’s Third Periodic Report 30 July 2008, UN Doc. CCPR/C/IRL/CO/3, para.10 19 Report of the Second Commission on the Status of Women (Government Publications 1993), p. 27. The Second Commission on the Status of Women was established in 1990 to consider and make recommendations on the means, administrative and legislative, by which women will be able to participate on equal terms and conditions with men in economic, social, political and cultural life and, to this end, to consider the efficacy and feasibility of positive action measures. 20 Report of the Constitution Review Group (Dublin: Government Publications, 1996), at pp.333-334. 21 Irish Human Rights Commission, Submission to the UN Committee on the Elimination of All Forms of Discrimination Against Women in respect of Ireland’s Combined Fourth and Fifth Periodic Reports under the UN Convention on the Elimination of All Forms of Discrimination Against Women, p.2

Appendix D: Reference material: Role of Women in Public Life and in Politics - Further information and resources Electoral Amendment (Political Funding) Act 2012, at http://www.irishstatutebook.ie/2012/en/act/pub/0036/index.html

Charter of Fundamental Rights of the European Union, at http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF

Women and Men in Ireland 2011, at http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF

International Covenant on Civil and Political Rights: Third Report by Ireland, at http://www.dfa.ie/uploads/documents/Political%20Division/iccprfinalpdf.pdf

The Development of Mechanisms to Monitor Progress in Achieving Gender Equality in Ireland, at http://www.ria.irlgov.ie/en/JELR/Achieving%20gender%20equality.pdf/Files/Achieving%20g ender%20equality.pdf

Second Commission on the Status of Women (Politics and Public life section), at http://books.google.co.uk/books?id=qZ6W1LiIyYYC&pg=PA254&lpg=PA254&dq=Second+co mmission+on+the+status+of+women+report%2Bireland+1993&source=bl&ots=Fy0ioGyp2D &sig=xhaq_Xd_33D5VzfWca46PrT7EP8&hl=en&sa=X&ei=FWcWUbSaAsWHhQegtYC4DA&ve d=0CDsQ6AEwAg#v=onepage&q=Second%20commission%20on%20the%20status%20of%2 0women%20report%2Bireland%201993&f=false

The women’s liberation movement, at http://www.scoilnet.ie/womeninhistory/content/unit6/lberation.html

European Commission: Representation in Ireland, at http://ec.europa.eu/ireland/ireland_in_the_eu/impact_of_eu_on_irish_women/index_en.h tm

Report of the Joint Committee on Justice, Equality, Defence and Women’s Rights, Women’s Participation in Politics (the Bacik Report), at http://www.oireachtas.ie/documents/committees30thdail/j- justiceedwr/reports_2008/20091105.pdf

McNamara, Maedhbh and Mooney, Paschal (2000) Women in Parliament: Ireland 1918- 2000, Dublin: Wolfhound Press.

Annex 1 – Prof. Yvonne Galligan’s presentation Women’s participation in public life: A brief summary of developments since 1970 In past decades, women’s public and political participation and representation was given varied attention. Legislative reform began to flow from the late 1960s onwards, prompted in part by Supreme Court interpretation of the Constitution as containing ‘unenumerated’ individual rights. This Annex provides a very brief summary of some of the main milestones along the way. It concentrates in particular on government, party and official efforts to engage women more fully in public life.

The women’s liberation movement manifesto in 1971 identified the main discriminations against women in Ireland and brought five demands to the public arena: equal pay, equality before the law, equal education, legalising contraception, and justice for deserted wives, unmarried mothers and widows. This was to set a legislative reform agenda for the following decades.

In parallel, the Commission on the Status of Women chaired by Dr. Thekla Beere (former Secretary of the Department of Transport and Power female) was established in 1970 and asked to examine and report on the status of women in Irish Society, to make recommendations on the steps necessary to ensure the participation of women on equal terms and conditions with men in the political, social, cultural and economic life of the country and to indicate the implications generally – including the estimated cost of such recommendations.

The Commission first issued an interim report on equal pay, with particular reference to the public sector (1971). Its final report identified 49 specific policy reforms and a further 17 suggestions on the removal of discrimination against women.

Women’s participation in politics and public life was addressed in the Commission report. It was concerned with the small number of women on the boards of state companies and public bodies. Women’s absence from the judiciary, the Seanad, the Cabinet and the low representation of women in the Dail were other areas identified in the report as requiring attention. The Report also recommended that the government recognise and finance a body representative of women’s interests. This body became today’s National Women’s Council of Ireland.

The Commission on the Status of Women Report was the first official recognition of the importance of women’s participation in public and political life. The matter has been subject to successive reports, efforts and initiatives since that time.

In 1973, the Women’s Political Association (previously the Women’s Representative Association) sought to raise awareness of the importance of having more women in political and public life. Through the 1970s and early 1980s it supported women running for election with some success.

A wide range of women-centred organisations focused on securing women’s rights and services for women from this time. These included the National Association of Irish Widows (founded in 1967), Action Information Motivation (AIM), Cherish and Women’s Aid. The new wave of women’s campaigning organisations came into existence alongside the well-established Irish Countrywomen’s Association and Irish Housewives Association. In political life, women’s organisations developed in political parties. The Labour Party’s National Women’s Committee (today Labour Women) was created in 1971. It gave evidence to the Commission on the Status of Women, and began to campaign within the party for the selection of more women candidates. Led by the efforts of Eileen Desmond, Evelyn Owens, Niamh Bhreathnach and others by 1985, the party had agreed a 25% candidate gender quota for the local elections, and in 1991 it adopted more formally a 20% gender quota for all party officer positions and candidates. It raised the quota to 25% shortly thereafter. The quota was not binding, and operated as a target than as an enforceable provision.

Fine Gael was the beneficiary of women’s political mobilisation in the 1970s, drawing many prominent women of the time – Gemma Hussey, Nuala Fennell and Monica Barnes among them – into the party as TDs and Senators. The party established a women’s group in 1985 to encourage women to stand for election, and held a range of events to that end.

Within Fianna Fail , a Women’s Consultative Committee was established in 1981, comprising the party’s female parliamentarians and executive members led by Mary O’Rourke and Eileen Lemass. In 1985 it became the National Women’s Forum. It carried out a range of activities that sought to encourage and prepare more women for public office, and bring women’s perspectives to bear on policy issues.

Thus, during the 1970s and 1980s, the main political parties at the time were responding to women’s demands for greater political representation. Their responses were shaped by each party’s internal culture and political ideology. However, women’s participation in political and public life was not greatly enhanced by their efforts.

Pressure on government from the Council for the Status of Women to review progress on women’s economic, social and political standing led to the Second Commission on the Status of Women being established in 1990. Its remit included to consider and make recommendations on the means, administrative and legislative, by which women will be able to participate on equal terms and conditions with men in economic, social, political and cultural life, and, to this end, to consider the efficacy and feasibility of positive action measures.

Reporting in 1993, this Commission made over 200 recommendations for policy reform. Concluding an analysis of the constitutional and legal status of women, the Report recommended the deletion of Article 41.2.2 and the insertion of a new equal rights article prohibiting all forms of sex-based discrimination, direct and indirect.

The Report of the Second Commission was highly critical of the lack of progress on women’s participation in political and public life. It recommended the adoption of a 40% candidate gender quota by parties, the application of a 40% gender quota to State Board appointments, and a proposal that the Seanad electoral system be modified to ensure the election of equal numbers of women and men to that body. It also suggested that if women’s representation in political life had not improved in ten years, that legislative proposals for gender quotas ought to be tabled by the relevant minister. A review of the implementation of the Second Commission’s recommendations, taken in 2000, reiterated the call for a constitutional amendment inserting a new equal rights article into the Constitution. It noted that the 1996 Constitution Review Group report had made a similar recommendation, suggesting that an addition to Article 40.1 be included as follows: No person shall be unfairly discriminated against, directly or indirectly, on any ground such as sex, race, age, disability, sexual orientation, colour, language, culture, religion, political or other opinion, national, social or ethnic origin, membership of the Travelling community, property, birth or other status.

This was put forward as a general anti-discrimination article to recognise the equal citizenship of all individuals living in the State.

Subsequent developments in practice and law gave effect to measures addressing women’s relative exclusion from public and political life. From having no women in the judiciary in 1971, 27% of judges today are women. In the civil service, 39% of Assistant Principal posts and 31% of Principal Officer positions are held by women, indicating a strong pool of women available for recruitment to more senior positions. In 2011, women’s employment rate was 56%, compared to 34% in 1973. These figures indicate more generally that today women are being integrated into the economic, political, and decision-making life of Ireland.

Attention to the gender balance on State boards and committees was intensified from 2002, with an instruction for Ministers to take action where the 40% gender balance was not being achieved. In 2005, women constituted 35% of the total membership of State boards. That indicator has not improved: in 2011, women still constituted 35% of total board membership.

The National Development Plan Equality for Women measure provided funding to political parties to adopt and implement action plans supporting women’s participation in political life. Four parties designed projects that were funded under this measure – Fianna Fail, Fine Gael , Labour and Sinn Fein. Fianna Fail set a target of having women comprise one third of party general and local election candidates by 2014, and committed to a review of candidate selection procedures to facilitate this ambition. Fianna Fail also changed its internal rules on elections to the party executive body to secure equality between women and men in the 20 ordinary member seats. These changes were highly contested at successive party Ard Fheiseanna.

Labour, too, had a lively quota debate stemming from 2005 when an internal Commission chaired by Ivana Bacik recommended that a 30% candidate gender quota be adopted for local, national and European elections.

Fine Gael sought to increase women’s participation in the party and provided training for women seeking to run for election. Selection conventions for the 2004 town councils were instructed to selection at least one women candidate, and this directive was carried into the 2009 local elections. The party leadership efforts in 2010 to extend the quota to apply to general elections met with vocal resistance from members of the parliamentary party, among others, and was dropped.

The 2011 general election had political reform as one of its core themes. A core part of that debate was women’s public and political engagement, and ways in which this could be supported. The culmination of this extensive public debate was the passing of the Electoral (Amendment) (Political Funding) Act 2012, which also provided for candidate gender quotas.