FORMER JUSTICE MINISTER and current Fine Gael TD Charlie Flanagan has said the government should have published the advice of the Attorney General in relation to the referendums.

On Thursday, a day before voters went to the polls, The Ditch published an article containing the leaked advice from Rossa Fanning on the proposed care amendment to O’Gorman.

While some politicians have since criticised the leak, Flanagan said the “real issue” is the “refusal and failure by government to publish the advice for clarity and purpose”.

The advice from Fanning to Minister Roderic O’Gorman stated that there is a “lack of guidance from the courts” on how the word ‘strive’ in the Care amendment would be interpreted.

Regarding the family referendum, Fanning said that in the absence of clear guidance within the constitutional text or by way of legislation, “it is difficult to predict with certainty how the Irish courts would interpret the concept of ‘other durable relationships”.

The Family amendment was rejected by 67.7% of voters, while the Care amendment was rejected by 73.9%.

Minister of State Mary Butler said the leak was a “huge concern” and described it as “absolutely scandalous”.

She noted that on the day it was leaker, a broadcast moratorium had been in place from midday.

The broadcast moratorium doesn’t extend to online media, and Butler told RTÉ’s This Week programme that “we’re certainly going to have to look” at a social media moratorium “going forward”.

In a statement yesterday, The Ditch said it will not apologise for “acting in the public interest” and added that if the move was scandalous, “it was a scandal caused by the government’s refusal to publish the advice in the first place”.

In a post on X, former Justice Minister Charlie Flanagan said: “The real issue here is not the leak of the Attorney General advice but the refusal and failure by government to publish the advice of the AG for clarity and purpose as (then-Taoiseach) Garret FitzGerald had done in the 1983 referendum when he published (then-AG) Peter Sutherland’s advice.”

The real issue here is not the leak of the A.G advice but the refusal & failure by government to publish the advice of the A.G. for clarity & purpose as Garret FitzGerald had done in the 1983 referendum when he published Peter Sutherland’s advice. https://t.co/v2GiKn2uTi

— Charlie Flanagan (@CharlieFlanagan) March 10, 2024

Louise Crowley, professor of family law at University College Cork, also agreed that the Attorney General’s advice should have been published in advance.

Speaking on RTÉ’s Morning Ireland, she said “there was an information and a clarity gap”.

“People like myself tried to fill it, but there were a lot of other voices suggesting that ‘durable relationships’ could mean all kinds of things, which I don’t think is actually true.

“Clarity wasn’t there for people going out to vote, and if the clarity isn’t there, you’re more inclined to vote no.”

Crowley supported the proposed changes and said this was a “wonderful opportunity to address two or three issues in our Constitution”.

“It could have been quite an emphatic Yes/Yes but for the way it was presented and also unfortunately some of the scare-mongering that was put out there,” she added.

She added that there was unnecessary “confusion and a lack of clarity”.

She also said that if the amendments were “presented in a different way”, there could have been a Yes/Yes vote.

For example, Crowley said the insertion of the term “durable relationships” in the family amendment “caused confusion and brought in suggestions that wouldn’t have any founding in law, but people weren’t to know that”.