Sir, – Tomás Heneghan (Letters, January 26th) supposes that the drafting of the proposed “care” and “family” amendments “will go down in history, alongside the seventh amendment and the eighth amendment, as some of the worst examples of constitutional amendment drafting in the history of this State.” He applies to the drafting of these amendments the stark language used by Mr Justice Gerard Hogan in respect of the drafting of the seventh amendment: that it is “hapless, incoherent and confused” and the legal equivalent of an “ink-stain” left by “a careless restoration artist . . . on a Rembrandt.”
For all of its theatre, Mr Justice Hogan’s analysis was fair. The wording of the seventh amendment – concerned as it was with the electoral franchise for the six “university” seats in the Seanad – left in its wake a formula that was technically and legally unworkable.
But the application of Mr Justice Hogan’s words to the care and family amendments is not remotely fair.
One can reasonably disagree with the wording of the care amendment.
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Perhaps the Government should have stuck with the recommendation of the Citizens’ Assembly and proposed a provision that would “oblige the State to take reasonable measures to support care within the home and wider community.”
But the Government proposed one that would not place the State under quite that degree of constitutional (and potentially judicially-enforceable) obligation.
The State shall thus “strive to support” the provision of care “by members of a family to one another”.
I happen to prefer the Government’s proposal. I am sceptical of the insertion of social policy into constitutional text (even when, as here, the social policy is one that I happen to favour in general).
But the point is that there is nothing obviously problematic about the wording of the proposal in any technical or legal sense.
As for the family amendment, here the proposal of the Citizens’ Assembly was that the constitutional protection afforded by Article 41.1 to the family would “not [be] limited to the marital family.” And the Government’s proposed change is that the words “whether founded on marriage or on other durable relationships . . . " be inserted into the text of Article 41.1 so that they would immediately follow the opening clause (“The State recognises the Family . . .”) such that that provision would not be limited to marital families.
Mr Heneghan insists that the Government should have “properly defined the forms of relationships” on which the constitutional family may be founded. And his suggestion seems to chime with much of the public commentary. The Irish Times reported that John O’Meara – the Tipperary father of three who, despite not being married to his life partner, argued successfully in the Supreme Court that he was entitled to the contributory widower’s pension – has called on the Government to “put some more clarity on what they are proposing”, insisting that the wording of amendment was to “leave it all in the hands of the judges to decide again”, thus “creating that argument for the ‘No’ vote.”
But in my view – with due respect to these civic-minded citizens – this is to misunderstand the nature of written legal prescriptions. Even if we wanted legal texts to define, for example, every conceivable utterance that, under every conceivable scenario, would be protected under a free speech clause, it would simply not be possible. Life and society are just too complex. And this is all the more true in the case of written constitutions, the provisions of which – unlike legislative provisions – are meant to be capable of enduring over significant periods of change and time.
In any case, if this new legal concept of “durable relationships” would indeed reduce the clarity around which families will enjoy protection, we must bear in mind that it will be for the Government and the Oireachtas in the first instance to determine which families would qualify in this or that context (ie in policy and legislation). Sure, anyone who feels they have been excluded unfairly can go to the courts and argue on the basis of this new constitutional wording. But the courts (as Michael McDowell SC well knows) will defer to the Government and the Oireachtas, as they are required to in accordance with the “separation of powers” envisaged by the Constitution (“McDowell questions need to hold referendum on family in light of O’Meara judgment”, News, January 22nd). Thus the exclusion would have to be arbitrary or indefensible before the courts will intervene – in something like the manner of the exclusion of the O’Meara family from that pension scheme was found to be indefensible under the existing equality provision.
Allied to this is the fact that the interpretative culture in this jurisdiction is one in which judges strive assiduously – and with great democratic conscientiousness – to abide by the text and structure of the Constitution. The fact that that phrase “durable relationships” would sit in the text right next to the phrase “marriage” would likely be significant in any contested case. The judges would interpret the new legal concept with reference to the existing legal concept of marriage. Thus the O’Mearas would undoubtedly count under the new family provision: the couple in that case had lived together in “in a committed, stable and long-term family unit” from 2008 until the sad death of one partners in 2021, and had had three children together. Whereas a casual “throuple” would undoubtedly – and obviously – not.
Let us debate the amendments then.
But let us leave the hyperbole to those on the fringes. And let the rest of us engage in a spirit of serious democratic exchange. – Yours, etc,
Dr TOM HICKEY,
Associate Professor of Constitutional Law,
School of Law and Government,
Dublin City University,
Dublin 9.
Sir, – Catherine Day, the chair of the Citizens’ Assembly on Gender Equality, has defended the vague wording of the proposed referendum on the family by saying that “You don’t try to define everything in the Constitution. That you leave to judges and they will interpret it. They understand the modern world and . . . make decisions that reflect it” (News, January 25th).
The strange implication here appears to be that unelected judges are in a better position to “understand the modern world” than either the people or our elected representatives in the Oireachtas.
Ms Day has helpfully summarised in plain terms what the Government has been saying sotto voce, ie that important decisions should not be made by the great unwashed or by our elected representatives, but should instead be made by an unelected elite of the judiciary, citizens’ assemblies and statutory agencies, who frankly know better than we do.
This position cannot be allowed to stand in a mature democracy.
During the Seanad debate on the referendum Bill, an amendment which would have allowed “durable relationships” to be defined in law by the Oireachtas was proposed by your columnist Michael McDowell. This was overwhelmingly rejected by senators, and no such amendment was proposed on the Dáil. Just four members of the 220-strong Oireachtas thought that they, and not 10 unelected judges, should decide this crucial policy question, a stunning abdication of responsibility by the entire political class.
It is vital for proper democratic accountability that this referendum is rejected with the same contempt with which the Oireachtas appears to view its own responsibilities to the electorate. – Yours, etc,
BARRY WALSH,
Clontarf,
Dublin 3.
Sir, – Further to “Idea that article 41.2 had no real-life consequences is rubbish. Just ask the Lingus ‘girls’” (Fintan O’Toole, Opinion & Analysis, January 30th), the Irish marriage bar preceded the 1937 Constitution and reflected employment practice in Australia, New Zealand, the United Kingdom and the United States at the time, so it’s a bit of a stretch for Fintan O’Toole to link it to article 41.2 and Éamon de Valera. – Yours, etc,
Dr JOHN DOHERTY,
Gaoth Dobhair,
Co Dhún na nGall.
Sir, – The failure to define “durable relationships” in the upcoming referendum is being defended by the Government largely on the basis that it will allow the courts to be flexible and decide what a “family” is on a case by case basis.
But constitutional rights, including the rights of the family, do not operate on a case by-case basis. They must apply uniformly to all categories of people in similar situations. If the courts can make this decision, why can the Oireachtas not do so?
And why was a similar approach not taken on other recent referendums? For the votes on same-sex marriage in 2015, abortion and blasphemy in 2018, and reducing the timeframe for divorce applications in 2019, the wordings in each case were extremely specific, with no room for ambiguity or judicial interpretation. Why the sudden desire to use ambiguous wording and to allow judges such huge scope to impose their own views which would then stand in law for all time unless subsequently repealed by a future referendum?
The politicians and lobby groups who support this referendum are invariably groups who decry what they see as the political overreach of the US supreme court into policy matters in recent years. So why do they now want to hand similar powers to our own Supreme Court? Can they really have such short memories? – Yours, etc,
THOMAS RYAN, BL
Harolds Cross,
Dublin 6W.
A chara, – Pat McGrath (Letter, January 30th) notes that his Oxford dictionary defines “durable” as meaning “hard wearing”, and proposes “committed” as an alternative wording for the proposed constitutional amendment.
However, my Cambridge dictionary defines “durable” as “able to continue to exist for a long time”, and it would thus be a perfectly suitable wording.
May I propose a boat race on the Liffey, between eminent legal scholars, as the means of sorting this linguistic dispute? – Is mise,
CATHAL Ó hÉANNA,
Cathair Dún Iascaigh,
Co Thiobraid Árann.