Referendum proposals which would see the State “strive” to support the provision of care within families would have “real effects” that could be enforced by the courts, according to unpublished legal advice from Attorney General Rossa Fanning.
However, the advice, which is understood to have been circulated among Ministers in recent weeks, said there was legal uncertainty over whether the word “strive” would be more forceful than “endeavour” – a word currently in use in a related article of the Constitution.
Legal advice from the attorney general also said that it is “difficult to predict with certainty” how the Irish courts would interpret the concept of “durable relationships”.
Ireland will go to the polls on Friday to vote on the family and care referendums, which seek to widen the definition of family beyond those based on marriage and which also seek to replace language around a woman’s life in the home with a provision recognising care within families.
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The Government wants to insert a new article, article 42B, into the Constitution which would read: “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.”
Some campaigners on the No side of the debate have argued that the word “strive” is not strong enough and that it would not have any meaningful impact.
According to unpublished advice from the attorney general, first reported by The Ditch website, there is “little doubt” that “striving” to support care would have real effects. The advice was sent to Minister for Equality Roderic O’Gorman last December.
According to the advice, “as with any obligation placed on the state which is expressed by use of the term ‘strive’, 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.”
Mr Fanning also detailed how there could be significant litigation on foot of such a provision.
“It is highly likely that this recognition of the value of care, and the imposition of an obligation on the state to strive to support it, would be invoked by litigants in a very wide variety of contexts in support of legal claims that the Constitution required the state to provide and/or support the provision of care. There is, therefore, real potential for a significant volume of litigation consequent on the amendment.
“Litigation in this area is likely to be brought by individual litigants who may be highly vulnerable or in very difficult circumstances, whose rights the courts will be vigilant to protect. It is foreseeable that this could arise in areas such as health, child care, social protection, education and immigration.”
Mr Fanning advised that there was a lack of guidance from the courts on how the word “strive” may be interpreted. This uncertainty extended to whether it would be regarded as a more onerous obligation than an obligation to “endeavour”.
In both the Dáil and Seanad, Mr O’Gorman has argued that the term “strive” goes further than “endeavour”.
In the Dáil, he said the wording “shall endeavour” has “not actually delivered anything in terms of tangible benefits. The use of the term ‘shall strive’ introduces a clear obligation newly entered into by this Government, which I hope the public will support in this referendum by the State. In using ‘shall strive’, the Government is introducing a brand-new article with a clear mandatory obligation. This is a significant change that has legal value and legal meaning.”
In the Seanad he said using the word “strive” puts a “clear obligation on the State. It is a justiciable obligation on the State and it will be tried and tested in the courts”.
The current wording in the Constitution, which would be removed if the new amendment passes, reads that the State shall “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”.
In the second referendum on Friday, the Government wants to widen the definition of family to those based on other durable relationships beyond marriage.
Mr Fanning’s advice 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.”
Mr Fanning said extending the definition of family to other durable relationships, as proposed, would be unlikely to have any particularly significant effect on immigration.
During the course of the referendum campaign, some politicians raised questions around whether a durable relationship would include a polyamorous relationship or a “throuple.”
Mr Fanning warned the Government that there was a risk that the use of 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”.
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