LAST UPDATE | 7 Mar 2024

THE ADVICE OF the Attorney General to Children’s Minister Roderic O’Gorman regarding the referendums on family and care has been leaked, a day before voters go to the polls. 

The Ditch published an article containing the leaked advice from Rossa Fanning on the proposed care amendment to O’Gorman this afternoon. 

The Journal understands that the advice contained within the article is that of the Attorney General to the Minister.

A spokesperson for the Minister had no comment to make on the leaking of the advice.

The advice from Fanning to O’Gorman states that there is a “lack of guidance from the courts” on how the word ‘strive’ will be interpreted.

“Although the term is used in Article 45.1 of the Constitution in relation to the promotion of the welfare of the people as a whole, this forms part of the Directive Principles of Social Policy, which are expressly stated to be non-justiciable,” Fanning says. 

“There is therefore uncertainty as to the likely meaning and effect of an obligation to ‘strive’ to support the provision of care in a new Article 42B and whether, in its interpretation by the courts, it would be regarded as imposing a more onerous obligation than an obligation to ‘endeavour.”

However, he also says that “there can be little doubt that the obligation on the state to ‘strive’ to support the provision of care will have real effects which will be enforced by the courts, and that it will be relied upon in a very wide range of contexts in support of claims that the constitution requires the state to provide, and/or support the provision of care”.

“This could have the effect of drawing the courts further into questions of resource allocation than is currently the case and could result in declaratory orders against the state with significant financial implications.”

What both sides are saying

The article has been shared on social media by those advocating for a Yes and a No vote in the referendums, with both claiming that it is in line with their argument.

Electoral Commision chair Justice Marie Baker has said that there is no legal definition for ‘strive’ but that “obviously it means try or try very hard”. 

“Courts would look at the general use in language, and it is a strong word,” she said.

Speaking to The Journal, Green Party Senator Pauline O’Reilly said she was surprised that The Ditch had published the advice “because actually, it’s the opposite to what the No side should be wanting to see if they really want to get No over the line”.

“I see a deliberate misinterpretation in my view by some people,” she said. 

“People have been trying to argue that [the amendment] would have a significant impact in terms of the government being forced to financially support the provision of care and this leak does demonstrate that. That’s what the advice of the attorney general is.”

Asked about the AG’s line about ‘strive’ having “real effects which will be enforced by the courts”, O’Reilly said:

“It’s not that people will have to take court cases. It’s that the AG always advises against that, and so the AG’s advice is based on the government’s going to have to do a lot more financially. Otherwise, it would face legal consequences, which it doesn’t want to do.

“This will significantly improve the support to carers and indeed to those being cared for as well,” she said. 

Asked about the “lack of guidance” from the courts surrounding word ‘strive’, O’Reilly said: “There’s a lack of guidance because the word is not in the Constitution yet. That’s what he’s saying. Obviously he doesn’t have court cases to fall back on.”

She added that Fanning is “crystal clear” that there will be “significant consequences” for the government if they fail to support care. 

Aontú TD Peader Tóibín told The Journal that the revelations are “absolutely damning” in terms of Minister O’Gorman.

“I think Minister O’Gorman misled the Irish people very, very clearly on this.”

Tóibín said the leaked advice “underlines” Aontú’s point “that there’s no legal obligation on the State to provide the services”.

“The State are using this sentence as a ‘get-out-of-jail’ clause in terms of this, an effort to put a ceiling,” he said.

“But this advice does show that there’s going to be significant uncertainty, potentially leading to significant litigation, which will be costly for the State and for the individuals involved. It remains to be seen what the the views of the judges will be in this.”

He cited Fanning’s advice that where ‘strive’ does appear in the Constitution currently, it is non-justiciable – meaning not capable of being decided by a court of justice.

“There’s no doubt that in where ‘strive’ appears before, there’s no legal obligation to provide support,” Tóibín continued.

“The Attorney General’s advice is that there’s going to be uncertainty which will lead to litigation, which will force people to the courts, and it’ll force the State to defend cases. There should have been a far clearer definition so that people could understand it.”

Family referendum

The Ditch has also published an article in relation to the family referendum and the term “durable relationships” this evening. 

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 courts may well address the question of what constitutes a ‘durable relationship’ on a case-by-case basis, having regard to the facts and circumstances of the particular case and the evidence before it.”

He said that policymakers will be required to offer greater weight to the rights of the non-marital family, including in child care, immigration and social welfare.

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“It is likely that issues relating to the application of Article 41 to non-marital families will be more heavily litigated than at present, for example it is foreseeable that the provision will be relied upon in the context of immigration and surrogacy.”

Fanning told the Minister that the amendment will have little impact on immigration. 

“As referenced above, it is foreseeable that the amended Article 41.1.1° will be relied upon in the context of immigration. However, in my view, it is unlikely that it will have any particularly significant effect in this area,” he said.

In his advice, dated 8 December, he also said that there is a risk that the phrase “durable relationships” could be “distorted by some commentators so as to argue that, for example, polygamous relationships are included within the scope of the provision, which is not the policy intention”. 

Polygamous relationships are illegal under Irish law.

The AG’s prediction that the issue of polygamy would be raised came to fruition in the Dáil on 17 January this year. It became a mainstream talking point after a Dáil debate* between Clare TD Michael McNamara and Roderic O’Gorman, who was asked about the potential impact of polygamous relationships on Ireland if a Yes vote passes.

“It is one thing to say it will not have an impact but I struggle to see how recognising durable relationships will not have an impact regarding polygamous marriages, regardless of whether we recognise them as marriages for Irish purposes,” he said. 

O’Gorman clarified that no recognition of polygamous marriages will arise from a Yes vote, and that the Government was “clear that such a relationship is not covered with the concept of durability”.

“A polygamous relationship is not one that represents a fundamental group of society and it is not one that represents a moral institution in Irish law,” he said.

“And it is not one that represents as durable.”

Responding, McNamara said: “All durable relationships will, by definition, have to include both polygamous and monogamous durable relationships. I do not see how it could possibly be interpreted otherwise.”

O’Gorman returned by saying that it will not just be the word durable relied on in such instances. “We also use the other language within Article 41,” he said. “The family, following the amendment we are proposing, still has to be a natural and fundamental unit group of society and a moral institution.”

McNamara then questioned if polygamous relationships would not be considered moral. Following an interjection from the Ceann Comhairle, Labour leader Ivana Bacik intervened: “With respect, we have established criminal laws against bigamy and polygamy. Presumably that will also be part of this. I do not think there is any reality to Deputy McNamara’s points because we have such established law already. How could it be moral if it is based on a relationship that is illegal in Irish law elsewhere?”.

*An earlier version of this story did not include the date of the debate. For clarity, the Dáil debate about polygamy came after the Attorney General’s advice was sent to government. The new version of the article includes these dates, and extra detail of the debate.