THE GOVERNMENT NEEDS to provide clear information on what proposed amendments to the Constitution will mean in legal terms in order to stop the spread of “misinformation and scaremongering” ahead of the upcoming referendums, the Free Legal Advice Centre (Flac) has warned.
Flac has raised a number of concerns – both in terms of the proposed wording and lack of clarity about the practical implications of the amendments – ahead of the votes due to take place on 8 March.
The group has said the proposed changes, as currently worded, are “symbolic” and “will not deliver meaningful enforceable rights and stronger constitutional protection for women, families and carers – as well as other groups who experience discrimination and disadvantage, such as people with disabilities”.
Flac has proposed alternative wording for the amendments including the reference to ‘durable relationships’.
In less than two months voters will be asked if they wish to:
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
Misinformation
A number of political parties and civil society groups have raised concerns about the proposed wording of the referendums.
Legislation to approve the referendums is due to be debated in the Dáil today and in the Seanad next week.
Opposition parties including Labour, the Social Democrats, People Before Profit and the Rural Independents group are tabling amendments to the legislation, while Sinn Féin is reserving its position and seeking clarity on a number of issues.
Flac has warned that the “lack of clarity around the rationale for the amendments, what they are seeking to achieve, and what they will mean in practical terms for law and policy” has resulted in confusion and misinformation.
The lack of legislative proposals defining what these new provisions mean will also “result in diverse families being forced to look to the courts to define and give effect to their new constitutional rights”, the group said.
Speaking to The Journal, Eilis Barry, Flac CEO, said: “When there’s a lack of information, there’s a vacuum and into the vacuum goes misinformation and negative speculation.”
With previous referendums, such as the Marriage Equality and Eighth Amendment votes, the public clearly knew what they were voting for, but that’s not the case this time around, Barry said.
“If you look at those two amendments – the same sex marriage referendum and the repeal referendum – people knew exactly what they were going to be getting. The law was going to be changed, family law was going to be changed that would enable same sex couples to get married.
“It was the same with the abortion referendum, we had the draft legislation which was going to be then implemented, which would allow for the provision of abortion. You knew what you were getting in terms of actual policy and legislation and what the impact is going to be.
“Here, they’re making the change in the Constitution, but they’re not actually spelling out what it means. When you don’t do that, you’ll have all kinds of misinformation and scare mongering and ‘Oh, maybe it’ll mean this, maybe it’ll mean that’.”
‘Durable relationships, not throuples’
Minister Roderic O’Gorman has said the addition of the phrase “durable relationships” to the Constitution recognises “the diversity of family in Ireland today”.
While many people have welcomed the idea of broadening the definition of family to include unmarried couples and one-parent families, for example, there has been speculation in recent weeks as to what exactly a ‘durable relationship’ is.
Some people have asked if the definition could include, for example, blood relatives or people in polyamorous relationships.
Writing in the Irish Times last week, Senator Michael McDowell questioned if durable relationships could include throuples.
“Are we talking about households with one male cohabiting with two women or vice versa? Or polygamous relations recognised abroad?,” McDowell, who previously served as the Minister for Justice and Attorney General, wrote.
Unless the Government defines what a ‘durable relationship’ is, people will be forced to go to court for clarification, Flac has warned.
In its recommendations to the Government, the group notes: “The use of the term “durable relationships” in the constitution is novel.
“On the face of it, it would appear to provide that single-parent families will enjoy constitutional protection (on the basis that those families are founded on the relationship between a parent and their child or children).
“Out of an abundance of caution, it may be worth considering amending the proposed new wording as follows:
Adding the following after “durable relationships”: “such as that which exists between parents and children”.
Research conducted in this area by the Inter-Departmental Referendums Group should be published, as well as draft legislation outlining the changes the amendment will bring about, Barry said.
It should be clear ahead of the referendums what the various changes will mean legally so that the Oireachtas can debate the issues, she added.
“So there really needs to be a Bill – like with the abortion referendum, where a quite detailed Heads of Bill was available [prior to the vote] – which can be debated and discussed by the proper body, the Oireachtas.
The TDs and senators should be debating what relationships are covered and what it will mean. And that will do away with your misinformation or your speculation or your fearmongering – you need something to replace that.
“It will let voters know what they’re actually voting for, rather than speculating or leaving it to the courts.
“There needs to be absolute clarity, people should know what will it mean for a lone parent, what will it mean for long-term cohabitating couples in terms of social welfare, in terms of tax, in terms of succession.
Then they can say ‘Yes, that’s a good thing. I’m in favour of that’, rather than the kind of, you know, ‘Are sisters covered? Are throuples covered?’ or whatever.
Speaking last month, Taoiseach Leo Varadkar said the Government is taking the upcoming referendums “as seriously” as it did previous referendums.
“We’re going to make sure that all the information is out there and the facts are out there,” he added.
Widow’s pension
Flac is currently representing a man who has taken a legal case against the Minister for Social Protection over the non-availability of the widow’s, widower’s or surviving civil partner’s contributory pension scheme to bereaved partners and their families where the parents were unmarried.
Johnny O’Meara’s partner of over 20 years, Michelle Batey, died after contracting Covid-19 in 2021. The couple had planned to marry following Batey’s recovery from breast cancer but sadly never got the chance.
O’Meara applied for the widower’s contributory pension after her death, but was refused as they were unmarried. He believes this decision was discriminatory against him and his children.
The High Court ruled against him in October 2022 but the case is currently being considered by the Supreme Court. A ruling in the case is due next week.
‘Watered down language’
In relation to the care amendment, Flac has taken issue with the word ‘strive’ and has recommended the following alternative wording:
The State shall take reasonable measures to support care within families and the wider community and shall promote and protect the rights of people with disabilities to live independently and enjoy full inclusion and participation in the community.
Barry explained: “The use of the word strive – if you look it up in the dictionary, it really means attempt or try, it’s almost like a new year’s resolution, rather than an enforceable obligation.
“It has watered down the wording that was in the Citizens’ Assembly, in the Oireachtas committee. We think you need to go back to that wording to ensure that there actually is a meaningful change to the status quo.”
Barry said Flac is also concerned about what the proposed wording will mean for carers and people with disabilities.
“As it stands, if the new amendment is implemented, the only reference to people with disabilities [in the Constitution] will be as subjects of care, and that doesn’t really recognise their right to live as autonomous human beings.
“It doesn’t provide for any obligation to provide the person assistance where they get to choose where they live, they get to choose how they’re supported,” she said.
In April 2021, the Citizens’ Assembly on Gender Equality recommended the following:
In December 2022, the Oireachtas Joint Committee on Gender Equality published its final report.
The committee recommended that the constitutional definition of a family should be “not limited to the marital family” and that the State should “take reasonable measures to support care within and outside the home and family”.
‘Legally meaningful’
When asked about Flac’s concerns, a spokesperson for Minister O’Gorman said that every amendment to the Constitution is “legally meaningful”.
“The Government is clear that this amendment to insert a new Article 42B into the Constitution is intended to recognise the unpaid care that is provided by immediate and extended families.
“Significantly, this new amendment will oblige the State to strive to support the provision of care within the family. This is the first time such an onus will be present in our Constitution.
“The use of the phrase “shall strive” clearly signals the intention of the Government to make serious and sustained efforts to support family care, recognising that this work will be progressively realised.
“This is a significant new step in terms of the obligation being placed on the State to support family care.”
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