Government has a big job on its hands now to convince me (and the electorate) to vote Yes and Yes
MY heart says Yes, but my head says No. That’s how I currently feel regarding the proposed changes to our Constitution. Especially with regard to the first amendment relating to the extension of the meaning of family.
Don’t get me wrong. I certainly don’t want to deny non-marital couples anything less than equal constitutional protection to that of married couples. I want to extend the definition of family to include one-parent families and cohabiting unmarried couples. But the Government, in my opinion, has made a dog’s dinner of the way it has handled it.
The volume surrounding the upcoming referenda is increasing. As I listen to the debates, it occurred to me many of the contributors seem to be very sure about their respective positions. However, the longer it goes on, the more uncertain I have become.
Leaning on my legal experience, I would always say we should not change our Constitution, unless there is a clear reason to do so. For instance, if it is required as a result of a decision of our courts, or because of an EU treaty matter.
Wearing my political hat, I would also adopt a cautionary approach to constitutional change, in that our experience over the last few decades, the rationale for changing a clause is sometimes forgotten during the maelstrom of the political debate before the vote.
Confidence
Often, when a government proposes a constitutional change, the campaign is diverted into some major political issue of the day. And, sometimes, the vote on an amendment ends up being a vote of confidence in the government.
This Government has decided to propose changes to our definition of family and the provision of care. It wishes our Constitution to reflect modern Ireland. Surprisingly, for a document dating back to 1937, the Constitution has stood the test of time very well.
Some of the opponents of the changes say if it’s not broken, don’t fix it. Others say the changes don’t go far enough, especially on the issue of care provision.
It is incontrovertible that the make-up of family in Irish society has changed dramatically since the drafting of our Constitution. Nowadays, we have family units which are much different to those envisaged by the drafters of our Constitution. Historically, oneparent families, co-habiting couples and other forms of household have felt their position has been undermined by the clauses in our Constitution. These groups validly claim they are still treated as second class, from a constitutional point of view. Hence the proposed change in this respect.
The Government, obviously based on the Attorney General’s advice, has decided to extend the protection of the family to include not just those based on marriage, but also to what it calls ‘durable relationships’. This is where it gets difficult. What constitutes a durable relationship? It is not proposed to define it! Apparently, the Government wants this left to the courts to adjudicate upon, based on ‘hard cases’, as the head of the Electoral Commission, Judge Marie Baker, put it.
She added that the interpretation of what constitutes a durable relationship would be somewhat subjective. She said ‘a relationship is durable if it’s committed… Are you invited as a couple to weddings, do people send postcards, Christmas cards to both of you?’ I can see trouble ahead with this. Why isn’t it possible for the Oireachtas to lay down some parameters in legislation as to what constitutes durable relationships? Surely, this would provide far more certainty to the voter.
In 2010, as Minister for Justice, I initiated the Civil Partnership Bill to give civil partners, including same-sex partners, the same rights and obligations as married couples. In the drafting of this Bill, I, and my department officials, along with the AG’s office, spent a huge amount of time deliberating on what constitutes a civil partnership. And the Bill, when passed, contained detailed provisions dealing with this.
Why has this Government not done likewise when it comes to their ‘durable relationships’? Not to do so, potentially, will leave issues such as succession rights, tax, etc, up in the air. Normally, the government would publish legislation contemporaneously with a referendum proposal, so the voters know what they are voting on. Not this time. Some Government spokespersons, in response to criticism, have now said they may publish legislation later, after the referendum. But, in my view, that makes matters even worse. Why not before?
Certainty
Minister Roderic O’Gorman, who is leading this change for the Government, has said that to prescribe durable relationships by legislation would involve differential treatment between families that are founded on marriage and those that are not. The former would fall within the constitutional definition. The latter would only do so if they satisfied relevant statutory provisions.
A fair point. But surely it is better for citizens to have some certainty as to where they stand, by being able to look up legislation on the issue, rather than having to go to court or rely on ‘hard cases’! Clearly, in Government, they’ve forgotten the legal adage: ‘Hard cases make bad law.’
The amendment proposes to raise the so-far-undefined durable relationships to the same constitutional level as marriage. We know what constitutes marriage. Surely, when we are asked to vote in favour of durable relationships, we should know what they are?
On the second proposal, the care amendment is designed to give constitutional recognition to the ‘care provided by family members to each other’ and contains a statement that the State would ‘strive to support the provision of such care within families’. This proposal also includes the deletion of the existing provision which says the State will ‘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’.
The inclusion of this latter statement originally in the Constitution has been the source of much controversy. Indeed, even in the late 1930s, it led to intense debate. Over the years, the discussion surrounding this has tended to morph into an erroneous view that this existing provision mandates that a ‘woman’s place is in the home’.
Minister Catherine Martin fell into that trap when she said our Constitution is ‘not reflective of today’s society’ when it says ‘a woman’s place is in the home’! She was corrected by Judge Baker who said it says no such thing.
Judge Baker said Minister Martin is ‘simply wrong’. She added that the Constitution says ‘something much more positive than that’. The existing article was intended to reflect the reality of life in 1930s Ireland, and was included to recognise women who worked in the home. In the intervening years, it has been derided as being anti those women who choose to work outside the home.
However, in 2001, then Supreme Court judge Susan Denham said, in her opinion, this article did not assign a domestic role to women. It recognised ‘the significant role played by wives and mothers in the home’, and the ‘immense benefit’ of that work to our society.
Controversial
However, again, it is incontrovertible that, since the drafting of the Constitution, State provision for women, whether they work inside or outside the home, has not been even-handed. Thankfully, our membership of the EU has forced us to provide for equal rights in the workplace. Correctly, the Government has decided to change this provision to more accurately reflect care provided inside and outside the home.
However, the way in which it is proposed to be changed has also proved to be controversial. Some say it diminishes the position of stay-at-home mothers, while, others, particularly people who provide specific care, such as disability care, are adamant the provision does not go far enough.
For instance, Minister O’Gorman says the care amendment will replace the women-in-the-home provision with ‘a new legal obligation on the State to support care within families’. But the wording merely says the State ‘shall strive’ to support family care. Ultimately, it will be up to the government of the day to decide how it assists care within the family, unless the courts decree otherwise.
Another conundrum regarding the care amendment is that the Government decided to go ahead with it, in the first place. It is aware the Supreme Court intends, in April, after the referendum vote, to give its views on whether the existing article, 41.2, recognising the work of women in the home, has any role in the State’s obligations when it comes to setting the level of the means-tested carer’s allowance. Surely, the Government should have waited to hear the views of the Supreme Court before it proceeded to put an amended article before the people.
The court felt the existing provisions have never been examined in the context of the spending of public funds to a person who provides full-time care for severely disabled children. I would have thought it was advisable for the Government to await its views.
As I said at the start, I want to vote Yes, but the way the Government has gone about it has made my choice more difficult. Between now and the vote, maybe it will be able to convince me, and other doubters, that its way is in the best interests of our people.