Replacing the ‘women in the home’ provision in the Constitution with a broad reference to all carers could lead to a spate of compensation claims against the State, an Oireachtas committee has heard.
Fianna Fáil justice spokesman Jim O’Callaghan said grandparents looking after their grandchildren, or even a teenager walking a younger sibling home from school, might have a case for payment.
The Irish Human Rights and Equality Commission told the Oireachtas justice committee it wanted Article 41.2 removed from the Constitution and replaced with a wording that recognised the importance of family life in the broadest sense and recognised and supported the work of carers in that context.
Mr O’Callaghan asked if that would mean enabling carers to go to court to vindicate their economic rights. Chief commissioner Emily Logan stressed the issue was complex but agreed: “In a word, yes.”
Mr O’Callaghan said he was concerned at the financial implications. “We may be undermining the social welfare budget,” he said.
The Government is to hold a referendum next year with the aim of repealing Article 41.2 but while that move is widely supported, there is disagreement over whether it should be repealed or replaced.
Justice Minister Charlie Flanagan told the committee he had doubts that a replacement wording could “capture the diversity of carers and of care situations”.
National Women’s Council director Orla O’Connor said it should be possible to have a general wording in the Constitution that recognises carers, followed up by specific legislation.
Dr Laura Cahillane, law lecturer at University of Limerick, said personally, she would prefer the article to be deleted entirely and followed up with legislation. However, she said from a legal perspective, there is nothing to stop the insertion of a specific entitlement with financial implications in the Constitution.
We already have an existing socioeconomic right to free primary education in the Constitution which also imposes a financial burden on the State,” she pointed out.
Fine Gael TD Colm Brophy urged a straightforward deletion of the article with a separate discussion on legislation later on. “One of the absolute nightmares would be that we would hold a referendum to do something that almost everyone agrees with and end up losing it because it could get caught up in a campaign on a replacement that people felt they couldn’t support because it was too strong or too weak.”
The committee meets again next week to hear more presentations.