Attorney General Rossa Fanning’s confidential legal guidance, which is thought to have been shared among Ministers recently, asserts that proposed referendum changes asking the State to “strive” to back family care provisions could have tangible implications and could be legally enforced. Nonetheless, the counsel expresses uncertainty regarding whether “strive” has a stronger connotation than “endeavour” – a term currently employed in a correlated section of the Constitution.
It was additionally underscored by the attorney general’s advice that predicting how “durable relationships” would be legally interpreted by Irish judiciary is challenging.
On Friday, Irish citizens will cast their vote in the referendums concerning family and care, which aim to extend the idea of family beyond marriage-based entities and to replace phrasing concerning a woman’s home life with provisions that attach importance to familial care.
The objective of the Government is to incorporate a fresh article, Article 42B, into the Constitution, which states: “The State accepts the reality that care provided by family members to each other because of the bonds they share furnishes Society with a kind of support indispensable for achieving common good, and will strive to endorse such provisions.”
Nonetheless, some activists against the changes argue that the term “strive” lacks the necessary strength and may not lead to any significant changes.
Unearthed advice from the attorney general reported first by The Ditch website confirms that there is “minimal doubt” that the act of “striving” to endorse care will indeed have real consequences. This advice was sent to Minister for Equality Roderic O’Gorman back in December last year.
In the counsel provided, it was emphasised that the state’s duty, characterised as ‘striving’, to support care provision might invoke concrete consequences several contexts under the influence of the Constitution, consequently escalating the involvement of courts in matters regarding resource distribution. This potentially could lead to the issuance of declaratory orders against the state, carrying substantial financial impact.
Mr Fanning further elaborated on the possibility of a marked increase in lawsuits due to this provision. He highlighted the strong possibility of this obligation being referred to by parties in numerous contexts to justify legal pursuits for the Constitution’s requirement for the state to accommodate care provision and/or back it. Therefore, there is a tangible possibility of a spike in lawsuits following this amendment.
The lawsuits related to this field are likely to be instituted by individual parties who might be vulnerably placed or dealing with severe circumstances, with courts being proactive in safeguarding their rights. This possibility could surface in areas such as health, childcare, social protection, education, and immigration.
Mr Fanning noted the absence of judicial guidance about how ‘strive’ might be interpreted, extending to whether it might be viewed as a heavier obligation than ‘endeavour.’
Both in Dáil and Seanad, Mr O’Gorman contended that ‘strive’ extends beyond ‘endeavour.’ In the Dáil, Mr O’Gorman expressed the belief that ‘shall endeavour’ has failed to yield any tangible benefits and that introducing ‘shall strive’ installs a clear commitment by the government, a significant shift with legal implications and meanings. This change, which he hopes will receive public backing in the referendum, ushers in a brand new provision suffused with a clear mandatory obligation.
In the Seanad, it was stated that the term “strive” implies a clear duty on the State which is enforceable and may be judged in court cases. Current verbiage in the Constitution that may be amended asserts that the State should aim to ensure mothers aren’t forced by economic circumstances to work rather than carry out household tasks.
The upcoming referendum on Friday aims to broaden the family definition to encompass other lasting relationships outside of matrimony, as per the government. In response, Fanning advised that it is uncertain how Irish courts would interpret the expression ‘other durable relationships’ without explicit legal or constitutional descriptions.
He added that it is probable that the courts will tackle the interpretation of a ‘durable relationship’ on an individual case basis, considering the unique facts and circumstances of each case.
Fanning stated that the proposed extension of family definition to include other durable relationships wouldn’t likely have a significant impact on immigration issues. However, during the referendum campaign, doubt was raised over whether a sustained relationship could entail polyamorous or “throuple” relationships.
Fanning cautioned the Government that the term ‘durable relationships’ might be misconstrued by observers to suggest the inclusion of polygamous relationships within the scope of this provision, contrary to its intended policy. Stay up-to-date by connecting to The Irish Times via WhatsApp, and receive directly delivered news alerts and analysis through our Inside Politics Podcast.