{"id":1062,"date":"2024-02-25T20:51:54","date_gmt":"2024-02-25T20:51:54","guid":{"rendered":"https:\/\/ichr.ie\/?p=1062"},"modified":"2024-02-25T20:51:54","modified_gmt":"2024-02-25T20:51:54","slug":"a-review-of-the-care-referendum-due-to-take-place-on-8th-march-2024","status":"publish","type":"post","link":"https:\/\/ichr.ie\/a-review-of-the-care-referendum-due-to-take-place-on-8th-march-2024\/","title":{"rendered":"A review of the Care Referendum due to take place on 8th March 2024"},"content":{"rendered":"

1. A brief overview of the Care Referendum
\n<\/strong><\/p>\n

On 5 December 2023, the General Scheme of the proposed 40th Amendment of the Constitution (Care) Bill 2023, was published (a General Scheme is the draft heads of a proposed Bill).<\/p>\n

On 6 December 2023, Roderic O\u2019Gorman TD, sought and was granted a waiver from pre-legislative scrutiny.<\/p>\n

On 7 December 2023, the Government approved the publication of the proposed 40th Amendment of the Constitution.<\/p>\n

On 8 December 2023, the 40th Amendment of the Constitution was published.<\/p>\n

As of 20 February 2024, the 40th Amendment of the Constitution is currently at the 3rd stage in the Seanad having completed 8 out of 11 stages in a matter of weeks (and having completely bypassed the pre-legislative scrutiny stage) \u2013 all in a bid to ensure the vote takes places on International Women’s Day on 8 March 2024.<\/p>\n

The Explanatory Memorandum to the Bill states that the purpose of the Bill is to propose to: \u201c\u2026 delete the current wording of Article 41.2 \u2026\u2026and insert a \u00a0 new Article 42B into the Constitution that \u00a0 <\/i>recognises<\/i> family care.\u201d<\/i><\/p>\n

Roderic O\u2019Gorman TD, has said that the present wording of Article 41.2:\u00a0\u201cseeks to <\/i>contain<\/i><\/u> women in a very singular role, a role that\u2019s completely divorced from the reality of \u00a0 women\u2019s lives, women\u2019s careers across our State today\u201d<\/i><\/p>\n

In short, the purpose of the proposed amendment is to remove the special protection that Mothers enjoy under the Constitution whereby the State guarantees to endeavour to ensure that Mothers are not forced into the labour market due to economic necessity, and to replace this with a gender-neutral requirement upon the State to \u201cstrive<\/i>\u201d to support care between family members<\/p>\n

What is Pre-Legislative Scrutiny?<\/strong>
\n– Pre-legislative scrutiny is a process by which the D\u00e1il and Seanad scrutinize draft Bills (meaning the General Scheme of a Bill) \u2013 and report back with observations and\/or recommendations to the Minister sponsoring the legislation.
\n– Pre-legislative scrutiny was first introduced into the Houses of the Oireachtas following the 2011 General Election, as part of negotiations between coalition-partners during the formation of the then Government, following calls for parliamentary reform in light of the economic and banking crisis.
\n– The requirement for pre-legislative scrutiny was formally adopted into D\u00e1il and Seanad Standing Orders as a requirement for Government Bills (\u201csave in exceptional circumstances<\/em>\u201d) in November 2013, a reform which was retained by the 32nd D\u00e1il in 2016.
\n– This reform was considered necessary due to the perceived weakness of the Houses of the Oireachtas in terms of executive oversight and political and institutional capacity to influence the Government\u2019s legislative agenda (note that when we talk about the Government we mean the Cabinet, which is made up of a group of senior ministers responsible for the executive power of the State. Article 28 of the Constitution states that the Government may consist of no less than 7 and no more than 15 members, namely the Taoiseach, the T\u00e1naiste and up to 13 other ministers).
\n– The fear was that the Government (meaning a maximum of 15 people) were effectively running the country, without any real oversight, from any of the other elected representatives.
\n– As a means of responding to this lack of oversight, it was agreed to introduce pre-legislative scrutiny as a mechanism by which the D\u00e1il (meaning all TD\u2019s) could have meaningful involvement in the drafting of proposed legislation before it became a Bill, thereby giving them real and substantive influence in the law-making process.
\n– The 2016 Programme for Government stated: – \u201cWe will support mandatory pre-legislative scrutiny for all new bills and post enactment review of legislation by Oireachtas Committees\u201d.
\n– In light of this commitment, the 2016 Standing Orders (which are simply the rules which govern the work of the D\u00e1il) included the mandatory requirement for pre-legislative scrutiny at Rule 146A.
\n– When the 32nd Government of Ireland took office in June 2020, their Programme for Government and thereafter their Standing Orders significantly diminished the requirement for pre-legislative scrutiny:
\n– which from 2016 onwards could only be waived \u201cin exceptional circumstances;
\n– to permitting a waiver \u201cin accordance with any guidelines agreed thereon by the Committee\u201d (per new Standing Order Rule 30).
\n– As stated earlier, in the case of this proposed amendment to the Constitution, Roderic O\u2019Gorman TD, sought and was granted a waiver from pre-legislative scrutiny on 6 December 2023 (noting that several TD\u2019s raised this as an issue of significant concern during the D\u00e1il debates on this Bill).
\n– If nothing else, this Governments disregard for effective and meaningful oversight of the legislative process should be a cause for concern, as should the speed at which this Bill has proceeded through the D\u00e1il and Seanad.
\n– In relation to the manner in which the Government have railroaded this Bill through the Oireachtas, Senator Michael McDowell said the following: \u201cfirst, I have to totally endorse what Senator Mullen has said about the guillotining of the Bill. It is disgraceful that it is being shoehorned through in the manner that it is. What was the hurry? I will tell the House what the hurry was. Some eejit in Government Buildings said there would be a better chance of getting this through if we say it is going to be held on International Women’s Day, 8 March. That is what happened. We got stuck with the ridiculous notion that this will help the Bill to go through and we will be seen to be \u201cpro-woman\u201d and doing something on International Women’s Day if we select that day for the vote on a referendum. As I said yesterday, that is a gimmick but it is a crude little gimmick. It is not the way a Constitution should be changed. It is shameful that that stunt was allowed to become a backstop in terms of time for considering change to our Constitution.\u201d<\/em><\/p>\n

 <\/p>\n

2. Current wording of the Constitution\u00a0<\/strong><\/p>\n

\"\"<\/p>\n

 <\/p>\n

3. Proposed amendments to the Constitution\u00a0<\/strong><\/p>\n

\"\"<\/p>\n

 <\/p>\n

4. Previous proposals to amend Article 41.2 of the Constitution<\/strong><\/p>\n

\"\"\u00a0<\/strong><\/p>\n

 <\/p>\n

5. Why the Government state the Constitution needs to be amended<\/strong><\/p>\n

The Government state that Article 41.2 (The Family) of the Constitution needs to be amended:<\/p>\n