Earlier this year, the Irish Women Lawyers’ Association commissioned research on article 41.2 of the Constitution, to understand its origins, its importance (if any), and to examine the options currently being considered.

From a lawyer’s point of view, the essential questions that might be asked of any law are whether it is fair and just, and whether women have been able rely on it to establish or protect a right or rights.

The article has been described by historians as one of the more controversial articles in the 1937 Constitution. Hanna Sheehy Skeffington said of the new Constitution that it was based on a “fascist model in which women would be relegated to permanent inferiority”.

Legal perspectives

Article 41.2 has been little used by litigants over the decades, and no substantive rights have been held to exist as a result of it. Dr Liam Thornton of the School of Law at UCD has listed only 25 cases in its 82-year history in which article 41.2 has been mentioned before the courts (as at July 2018).

Further, he notes that, in many of these cases, article 41.2 was somewhat incidental.

The article has been cited in four cases involving discrimination on the grounds of gender. In two cases involving deserted fathers, the article was used to justify gender discrimination in favour of women.

In two other cases, unsuccessful attempts were made to rely on article 41.2 to justify gender discrimination against women.

Juries Act

In one of these cases, De Burca and Anderson v Attorney General (1976), the plaintiffs argued that certain provisions of the Juries Act 1927 were unconstitutional – including the provision that exempted virtually all women from serving on juries. The plaintiffs ultimately prevailed.

However, O’Higgins CJ (dissenting) attempted to use article 41.2 in justifying the near-exclusion of women from juries: “When one considers the special recognition of women and mothers in article 41 of our Constitution, it does not appear inappropriate that the State in its laws should give some preference to woman.”

Ambitious

Undoubtedly, the seminal case was that of BL v ML (1992). Prof Gerry Whyte has described the case as a “somewhat ambitious attempt to use article 41.2 in order to create an entitlement on the part of wives to have a share in the value of the matrimonial home.”

In the case, among the reliefs sought, the plaintiff was seeking a declaration that she had a beneficial interest in the matrimonial property in circumstances where she had not made a contribution in money or money’s worth to the purchase price of the property. The marriage had broken down, and the couple were separating. The plaintiff was a housewife who looked after the home and children and provided occasional assistance to her husband.

Property right

In the High Court, Barr J held that article 41.2 conferred a property right on a woman “through the assessment of her work in the home”, though this right only extended to the family dwelling and its contents – and not to any other property of her husband. The defendant appealed the judgment to the Supreme Court, and a five-judge Supreme Court unanimously overturned the decision of the High Court.

‘Brave client’

Dr Laura Cahillane of the University of Limerick says that BL v ML could “truly have been a legal landmark for women”. Referring to a 2017 interview with former Supreme Court Justice Mrs Catherine McGuinness, who represented the plaintiff, Cahillane relates that “at the time, there had been some talk about the potential use of the provision and whether any use could be made of it. Thus, when she and junior counsel, now High Court Judge Carmel Stewart, encountered their ‘brave’ client they decided to ‘have a go’”.

Given the outcome of the case, there is no reason to believe that a litigant could rely on the article in the future.

Constitutional amendment?

In 2016, in the Programme for a Partnership Government, the Government proposed to hold a referendum on article 41.2.1. This was the culmination of eight separate reports, including two UN reports on the article, between 1993 (Report of the Second Commission on the Status of Women) and 2013 (Report of the Task Force on the Implementation of the Second report of the Convention on the Constitution).

Against this background of reports and case law, the Government arrived at its position that a referendum should be held on the article. Throughout the many reports, there had been discussion of replacing the wording of the article with gender-neutral wording and replacing ‘woman’ with ‘carer’ or ‘carers’. So, we might ask, why has there been no referendum and where are we now regarding amendment to the article?

Submissions

In the latter half of 2018, the Oireachtas Joint Committee on Justice and Equality carried out the Report on Pre-Legislative Scrutiny of the General Scheme of the 38^th Amendment of the Constitution (Role of Women) Bill. The committee invited submissions, and nine organisations or individuals made submissions.

These can be grouped into three main proposals:

• The first, supported by the Minister for Justice, Mrs Justice Catherine McGuinness, and Dr Laura Cahillane, advocated repeal simpliciter. McGuinness submitted that “deleting it simpliciter would be the legally cleanest way of proceeding”.
• The second proposal involved some amendment of the article, such that the importance of gender-neutral language and the work of carers would be recognised. This ranged from symbolic recognition to concrete socio-economic rights. This viewpoint was supported by the Irish Human Rights and Equality Commission, the National Women’s Council of Ireland, and the Irish Countrywomen’s Association among others. The IHREC wanted recognition of the wide range of family relationships. The NWCI submitted that there should be “a deliberative process and national conversation prior to a referendum”, in particular to consider the recognition of carers.
• The third proposal involved deleting article 41.2 and adding a new provision in article 45 (the non-justiciable directive principles of social policy). The Minister for Justice discussed the possibility of deleting article 41.2 and putting in a new provision on caring in article 45. Extensive legal advice had been obtained on this option, and it had shown that the benefit of any such new provision would be negligible.

Universal consensus

Ultimately, the committee stated that “there was universal consensus among both witnesses and members of the committee that article 41.2 of the Constitution as currently drafted is sexist and paternalistic and has no place in the Ireland of the 21^st century’.

The committee concluded by recommending two options:

1. Replacing the existing article 41.2 with the following: “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.”
2. That a referendum on article 41.2 offers an opportunity for a broader discussion on the role of care work and the rights and needs of carers. Therefore, a call was made for the Government, before proceeding with a referendum in 2019, to establish and engage in a public consultation process – an obvious possible model being how the Citizens’ Assembly addressed the issues around the eighth amendment.

What next?

The debate is not over. The challenge will be to articulate a clear position when the waters will undoubtedly be muddied by conflicting points of view. There are those who advocate for repeal – possibly the lawyers’ point of view regarding the article – based on its lack of efficacy. Then there are those who advocate for an amended article with gender neutral language to reflect the value society has for carers and the recognition of a wider range of families.

Two debates

A possible solution to accommodate all points of view may to be ensure that not one, but two debates take place.

The first should be to debate repeal simpliciter only. Is article 41.2 fit for purpose – and what is that purpose? If it is not fit for purpose, it should be repealed.

Then a separate and different debate is:

1. If and in what manner do people want the State to recognise the modern family, and
2. If and in what way do people want the State to recognise carers in society?

Whatever the outcome, debate on article 41.2 presents an opportunity for positive change.