The publication of advice from a taskforce to Minister for Justice Frances Fitzgerald which recommends amending the archaic and reactionary Constitutional provisions on "women in the home" in Article 41.2 scarcely came as a surprise. The article provides inter alia that "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."
And the case for repeal or amendment has been well rehearsed and overwhelmingly accepted. It has for some time been high on the agenda of women’s and human rights groups, constitutional review groups and international organisations. It is even backed by the Government. What to replace 41.2 with, is another matter.
The taskforce report was commissioned in response to the 2014 Constitutional Convention's support for amendment. The then minister for justice Alan Shatter told the Dáil that the government accepted the need to amend the language but the convention's desire simultaneously to acknowledge constitutionally the role played by carers in society generally would delay efforts to change the Constitution.
At issue is the vexed question of social rights and their place in a constitution, specifically the desirability of conferring on citizens social rights enforceable by the courts. But is the Constitution just a place for pious aspirations? Of which Article 41.2 is a classic case in point – unimplementable and never yet vindicated in practice by the courts – or as Hanna Sheehy-Skeffington, opposing the provision in the original debate put it rightly, “mere empty formulae”.
The taskforce, unsurprisingly, upholds the conservative view of the status of such rights, and argues that support for carers be dealt with in Article 45 "which contains directive principles on social policy and is not recognisable by the courts". And support levels should be " 'as determined by law' in order to ensure the Government and the Oireachtas remain responsible for decisions on the allocation of public funds". Plus ça change . . .