The crushing loss of the referendums, coupled with the strong disappointment resulting from the persistence of explicitly sexist language in Article 41.2, along with the choice against providing further constitutional protection to diverse households, have led to a growing fear that societal transformation may be facing a deadlock. This reminds many of the grim, hopeless period that followed the unsuccessful initial divorce referendum.
Nonetheless, this 1986 failure did not impede the motion towards rights-based changes. Instead, it catalysed an immediate and significant modification to the family legislation mechanism. By the time the subsequent successful divorce referendum took place, the doubts and fear that initially emerged were largely alleviated by establishing legislative provisions. Today, we hold an even stronger conviction that a forward-thinking legal reform agenda can and should succeed the unsuccessful referendums.
Referendums represent the intersection of values, laws, and politics, a stage where we strive to encapsulate political objectives and values through legal language. On this occasion, a glaring discord emerged between the initial motivations that drove the demand for constitutional amendments and the vague and ineffective language chosen for public presentation.
The care amendment appeared to have been meticulously phrased to guarantee minimal legal resulting changes. Without an accompanying legislative reform, the possible beneficiaries of the family amendment would be forced to commence lawsuits to identify and affirm their novel rights, ignoring the substantial practical challenges and risks associated. This would lead to an entirely unsuitable and disproportionate transference of legislative responsibility to the judiciary.
The lack of draft laws and in-depth policy pledges (on subjects including investing in public childcare, fairer pension plans, homecare assistance for the elderly, personal support for those with disabilities and aid for single parents) implied that it was never clarified how the amendments would influence individuals’ lives and rights. A deficient emphasis on disabilities and associated concepts such as autonomy, choice, and the interaction between disability and care, probably played a pivotal role in the resounding defeat of the amendments.
The results of the referendums signified, in part, a strong desire for unequivocal, rights-based changes and for social rights imposing tangible responsibilities on the State. The insights gathered from these referendums serve as a foundation for creating legislative reform strategies aiming to bring about significant transformation for families, caregivers, and individuals with disabilities.
The chances are high that an initial assessment of the legal discrepancies in how non-married families are treated has already been conducted by the inter-departmental committee in charge of referendum preparations for diverse families. This research can be utilised as the groundwork for a law reform initiative, geared toward enhancing the rights of diverse families in areas such as family law, social welfare, inheritance, tax, and housing. It should also be a top priority to design a tailored support system for single-parent families.
Gerard Quinn’s writings stress the pressing requirement for a “fresh social contract for care and caregivers” which mirrors our mutual dependence. Alterations in legal and policy spheres should explicitly focus on the rights of the person receiving care (whether a child, an elderly person, or a person with a disability), the unpaid carer, and often underpaid care worker. The required reforms must embody and put into practice Ireland’s pledge to the UN Sustainable Development Goals to, by 2030, “acknowledge and appreciate unpaid care and domestic labour via the provision of public services, infrastructure, and social protection legislation, and encourage shared responsibility within the home and family”.
A reason for hope and celebration comes from a distinct shift since the first divorce referendum’s downfall – the rise of a robust disability justice movement, made apparent throughout the referendum campaigns. The powerful voices of disability activists, evident across various social media platforms during the campaigns, need to be at the heart of planning and executing a programme for disability reform. As stated by Professor Eilionóir Flynn, the task of overhauling an extensively flawed system is challenging and multifaceted, but it is the endeavour that disabled people and their families are inviting allies to participate in.
It’s evident that potent partners can be found in the Centre for Disability Law and Policy as well as the Irish Centre for Human Rights at Galway University. It’s important for IHREC and the National Disability Authority to unite and design the necessary reforms to prevent Ireland from remaining an odd one out in terms of disability rights. From our standpoint, FLAC tirelessly advocates for the long-awaited finalising and putting into action the review of Ireland’s outdated and ineffective anti-discrimination laws – a significant step towards better equality, human rights, and opportunities for disabled individuals.
The referendums have certainly left a profound impression on the need for societal change and the law reforms required to bring it about. We should draw on the drawbacks of the referendums to guide future constitutional alterations, such as introducing a right to adequate housing and a reinforced equality guarantee. Future changes should be conspicuous in their rationale and anticipated effects. Most importantly, we ought to ensure that morals, political goals, and legal language align to cause genuine transformation.
A pledge to bring about transformational structural change for the benefit of people with disabilities, coupled with a political, legislative, and policy commitment to meaningful law and policy modifications for carers and varied families, would leave a potent and positive impact of these referendums.
Eilis Barry serves as the Chief Executive of FLAC (Free Legal Advice Centres).