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Referendum wording chosen to ‘avoid a concrete and mandatory obligation’, files suggest

Department of Finance records prompted No campaigner Michael McDowell to accuse the Coalition of misleading voters

The Government is embroiled in a new referendum row after internal files suggest the care amendment wording was chosen to “avoid a concrete and mandatory obligation” on the State.

The release of the Department of Finance records prompted No campaigner Senator Michael McDowell on Thursday to accuse the Coalition of misleading voters before the care and the family referendums were emphatically rejected one week ago.

That charge was immediately rejected by Minister for Equality Roderic O’Gorman, who insisted the Government wanted “a requirement on the State to make serious and sustained efforts to support family care”.

Ministers had insisted there were no taxation or immigration implications. But files showed officials grappling with tax issues and legal advice that said greater weight would be given to non-marital family rights “in childcare, immigration and social welfare”.


The finance records, released first to Gript website, were covered by a Freedom of Information request from The Irish Times and provided to the paper by the department.

The files showed officials saying measures such as those presented in the family referendum could create uncertainty because of the role foreseen for judges.

Officials referred in favourable terms to early plans – dropped by the Government in the referendum proposal – for the Oireachtas to retain the power to define the new concept of family in law.

“A failure to do this would leave it to the courts to determine the scope and limits of the family, with the result that the Government and the public would not have a clear understanding of, or political influence upon, the definition from one case to the next,” said a note to the Cabinet social policy committee.

A 73.93 per cent majority rejected care amendments to “strive to support” care and delete mothers’ duties from the Constitution.

A 67.69 per cent voted to reject family amendments to recognise families in “other durable relationships” in addition to marriage families.

The finance records, released first to Gript website, were covered by a Freedom of Information request from The Irish Times.

Some disability campaigners questioned the care proposal, believing it gave no new rights that could be asserted in court. But the Government said there would be an express obligation on the State to strive to support care.

In a note to Minister for Finance Michael McGrath, officials contrasted the “strive” wording with proposals – which were not accepted – for “reasonable measures” to provide care: “In summary this option is intended to avoid a concrete and mandatory obligation to provide support as opposed to the previous ‘reasonable measures’ language.”

Mr McDowell said people were misled. “Government spokespersons consistently misrepresented the substance of the legal advice that they were receiving from the AG and elsewhere [including apparently outside counsel],” he said.

“They attempted to minimise or deny any practical implications for succession law, taxation law, immigration law, welfare law and childcare in a manner that the documentation proves was misleading.”

Mr O’Gorman’s spokesman said: “The Minister rejects that assertion.”

He added: “The article would have been positioned in the justiciable part of the Constitution and the courts, as the judicial arm of the State, would have been required to interpret and apply this article, as appropriate, in cases where the provision of support for family care is an issue.”

Arthur Beesley

Arthur Beesley

Arthur Beesley is Current Affairs Editor of The Irish Times