International Women’s Day and the Programme for Government

Dr Siobhan Mullally

Today is the 100th anniversary of the first International Women’s Day. One hundred years ago, women marched, protested and called for the right to vote, equal rights to political participation and the empowerment of women in aspects of public and private life. It is timely, therefore, to reflect on the Programme for Government concluded between the two largest political parties in the Dáil, Fine Gael and Labour, the Government for National Recovery 2011-2016.

The Programme makes a number of important commitments of relevance to the promotion of gender equality in Ireland. Many of these do not go far enough and will disappoint those who have advocated for more sweeping and urgent reforms. If realised within the term of this incoming Government, the commitments made, albeit limited, could, however, see significant change in both the legal and political structures of the State.

To begin with, the Programme commits the Government to a reversal of the minimum wage cuts (p.8), disgracefully introduced in the dying days of the last Government. As the National Women’s Council noted at the time of the cuts, most of those affected were women, and many were immigrant women, working in sectors such as hotel and catering, cleaning etc. The commitment to reversing the cut is a victory for campaigners who advocated strongly against imposing such a burden on a vulnerable group of workers. The finding of the Labour Court yesterday, that cleaning staff at the Davenport hotel, should be returned to the work roster on the original minimum wage, is another welcome vindication of the rights of low paid workers in Ireland.

The Programme for Government also promises to maintain social welfare benefits at their current levels, a welcome respite for the many lone parents and carers who are dependent on welfare payments, the vast majority of whom are women.

On political reform, the Programme acknowledges the need for greater female representation in the Dáil and requires that public funding for political parties will be tied to the numbers of women candidates achieved. Quotas, are for the moment, not contemplated, but the constitutional review process is also to be tasked with exploring how greater female participation can be secured. So, we may yet see parity, quotas and other forms of positive action being proposed. The incoming Dáil Éireann will comprise of only 17% of female T.D.s, reflecting an ongoing failure of more equitable and diverse political representation in Ireland.

On reproductive and sexual health, the Programme avoids any clear commitments to legislative reform, despite the A.B.C. judgment of the European Court of Human Rights. It does however commit to the establishment of an expert group to review the judgment and its implications. It remains to be seen whether we will see yet another compromise on women’s reproductive rights. As the Supreme Court noted in Attorney General v X, almost 20 years ago, the Eighth Amendment to the Constitution, ‘historically divisive’ has remained ‘bare of legislative direction’ since its adoption. The ABC judgment has received widespread commentary. The majority judgment follows an earlier finding in Tysiac v Poland, where the failure to provide effective access to an abortion that would have been lawful under domestic law, was found to be a breach of the applicant’s right to private life (article 8). The Court adopted a similar reasoning in its ABC judgment, with respect to the third applicant C, given the substantial risk to her life arising from the pregnancy.

The judgment was disappointing in its dismissal of the article 2 and 3 claims, given the very difficult circumstances endured by each of the applicants in this case. The majority judgment, that there was no violation of article 8, with regard to applicants A and B, reveals the limits of European human rights law, and the willingness to defer to the margin of appreciation doctrine, to restrict the universalist underpinnings of the Convention itself. As the partly dissenting judgments (on the application of article 8 to the first two applicants) note:

[…] in the case before us a European consensus (and, indeed, a strong one) exists. We believe that this will be one of the rare times in the Court’s case-law that Strasbourg considers that such consensus does not narrow the broad margin of appreciation of the State concerned.

Again, as the dissenting judgments note, this is ‘the first time that the Court has disregarded the existence of a European consensus on the basis of “profound moral views”. Stark language is used to describe this shift: ‘a real and dangerous new departure in the Court’s case-law.’

The majority judgment of the Court failed to take account of significant developments in international human rights law, on the subject of reproductive and sexual health, including on the emerging right to have access to a safe and legal abortion. What was particularly surprising about the ABC judgment, was the willingness to consider the possibility of travel to another jurisdiction (the UK), as relevant to considering the legality of the restrictions imposed upon abortion by Irish law and to the determination of the proportionality of the State’s actions.  It is difficult to see how such reasoning might be applied in other contexts before the Court.

Despite political commentary in the aftermath of the ABC case, the Court’s judgment is unequivocal on the legal reform needed, to give effect to the Supreme Court judgment in Attorney General v X. It is to be hoped therefore, that the proposed expert group, will swiftly come to a conclusion that will support long awaited, if limited, reform for women.

On marriage equality for same sex couples, the Programme does not make any firm commitment to change. It is agreed that the Constitutional review will include consideration of same sex marriage. This is compromise between the Labour Party manifesto, which gave a commitment to the introduction of same sex marriage and marriage equality,   and the Fine Gael manifesto, which did not.

To be welcomed, however, is the commitment to legislative reform to ensure that outstanding taxation and social welfare issues on civil partnerships will be addressed, and to redress the inequities in protection of the rights and interests of children in such partnerships, omitted from the scope of the 2010 Act. This latter commitment, together with the promise for a constitutional amendment on children, is particularly to be welcomed. Let’s hope it will see speedy implementation.

The Programme also makes a commitment to reform in the area of gender recognition, a topic that has been discussed in some depth at the CCJHR. Following the settlement of the Foy case, it now seems likely that gender recognition legislation will be enacted within the life of this incoming Government. As Dr Tanya Ni Mhuirthile has commented, it will be essential to ensure that any such legislative reform does not repeat the errors of UK legislation, but moves beyond categorisations such as ‘gender disorder’ and instead, recognises the rights and principles set out in the UN Draft Declaration on sexual orientation and gender identity.

The Programme also makes a commitment to legislative reform on female genital mutilation, reflecting the advocacy of Senator Ivana Bacik. Hopefully any review of reform in this area will consider whether targetted legislation is necessary and desirable or whether amendments of existing criminal laws might ensure effective protection, and address gaps in protection such as the absence of extra-territorial effect. (See:  a recent article by Mullally and Ni Mhuirthile in Dublin University Law Journal on this subject).

Finally, the Programme makes a commitment to reviewing the much malinged constitutional provision: article 41 on women’s position and duties in the home (about which, see further here. It is hoped that any proposed constitutional reform will include a commitment to recognition of the work of all carers, inside and outside of the home, without the gender bias that came with Bunreacht na hÉireann.  IWD 2012 will give us an opportunity to reflect on whether or not these promises of change have come to fruition. As our sisters one hundred years ago did, let us hope and dream.