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Papers reveal deep anxiety in Government over wording of amendments

Files show officials battled over legal and financial risks as Coalition honed proposals to change the Constitution

Voters overwhelmingly rejected the proposed changes last week. Photograph: Bryan O’Brien

Arthur Beesley Current Affairs Editor
Fri Mar 15 2024 - 06:00

In the heat of the family and care referendum campaigns, the Coalition insisted the proposed amendments would not affect tax, succession, family law or immigration. Now files released by the Department of Finance show officials grappled with some of those very questions as the Coalition honed proposals to change the Constitution. Voters overwhelmingly rejected such changes one week ago.

The draft amendments proved deeply contentious, not least because the electorate emphatically dismissed them even though they were backed by the three Coalition parties and most in the Opposition. In defiance of Taoiseach Leo Varadkar saying a No vote would be “a setback for the country”, some Coalition TDs and Senators declared they voted against the changes. After overwhelming defeat, there have been public divisions between Ministers over responsibility for the affair.

The care referendum fell after 73.93 per cent voted against State commitments to “strive to support” care and the removal of mothers’ duties from the Constitution. The family referendum was rejected after a 67.69 per cent vote against recognition for families in “other durable relationships” in addition to those “founded on marriage”.

Government campaigners presented the referendums as an opportunity to update basic law dating back to 1937 so it reflects life as it is lived in the 21st century. But the No side warned of multiple complications in the proposals and serious deficiencies.

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For one thing, disability rights campaigners and legal scholars said the word “strive” in the care amendment was inherently problematic because it gave no new rights to care that could be asserted in court.

It is now clear that such assessments chime with the views of some in Merrion Street. In a November note for Minister for Finance Michael McGrath, officials said the option of using the word “strive” was “intended to avoid a concrete and mandatory obligation to provide support”. Legal advice on an alternative saying the State “shall take reasonable measures” to provide care said that would impose a “very strong mandatory” obligation with a “greater risk of the State setting a very high threshold that it could quickly fail”.

Suggested “speaking points” for McGrath noted “the high level of legal and financial risk associated with the various proposals and the examples provided”.

A separate note from the Department of Public Expenditure said wording obliging the State to “endeavour to support” care was preferred over the “reasonable measures” wording. “When this legal advice is combined with the lack of robust costings I would have serious concerns as the Minister for Public Expenditure and would question whether this leaves the State at risk of significant and open-ended exchequer implications?” one official asked. “Could there be millions in legal fees alone?”

All of that suggests deep anxiety about fiscal implications, which is the work of the finance and public expenditure departments. But it casts a different light on the Government’s argument in the campaign that the care amendment put a positive obligation on future administrations to provide additional State support to carers.

At issue for many critics of the family referendum was the risk of uncertain outcomes from amendments whose ultimate meaning would be determined by judges when “hard cases” went to court, without democratic input from the Dáil or Seanad. It now seems from internal files that such concerns reflected questions raised in the upper reaches of the finance department.

Minister for Equality Roderic O’Gorman always said the term “durable relationship” was “intended to encompass relationships of strength, stability and commitment, such as are consistent with the existing definition of family”.

Still, No campaigners led by Senator Michael McDowell, a former tánaiste and attorney general, bemoaned the lack of precision in the “durable relationships” expression. They said it would bring huge uncertainty into the Constitution, particularly because the Government declined to include in the proposed amendment provision for the Oireachtas to define such relationships. McDowell said the result would be a constitutional “blank cheque”, with policy questions delegated to judges and not TDs and Senators.

The finance papers point to detailed consideration of tax issues and concern about potential complications

The finance papers show the Government’s first plan was to include in the amendment a clause allowing families to be defined by law, empowering the Oireachtas to cast legislation “as it sees fit”.

Behind the scenes, however, officials warned of potential problems: “Ideally this legislation would be published and debated in advance of the referendum. The paper identifies significant challenges in achieving that goal given the complexity of these issues and suggests that it may be necessary to proceed without the legislation being published or consider a deferral.”

The Coalition ultimately opted against proposing a provision to define families in law, even though officials gave an implicit warning about problems with that approach. A paper last May to the Cabinet committee on social policy referred in favourable terms to the idea of the Oireachtas retaining power to define the new concept of family: “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.”

Once the referendum campaign started in earnest, the No side was quick to highlight similar concerns. But little if any of that was acknowledged on the Yes side. The Government insisted it could not release the records of the group of departments that prepared the referendum because of the McKenna judgment of the Supreme Court and associated rules that ban the use of State resources to publish anything that might favour or disfavour a referendum proposal.

Although McDowell said there would be tax implications from expanding constitutional recognition and O’Gorman said there wouldn’t, the finance papers point to detailed consideration of tax issues and concern about potential complications.

“While there may be significant cost implications to extending certain treatments to cohabitants, it should also be noted that from a practical perspective, it would be very difficult to administer a regime for cohabitants which would be the same as that for married couples or civil partners,” said a paper last April to McGrath.

“Married couples and civil partners have a verifiable official confirmation of their status. It would be difficult, intrusive and time-consuming to confirm declarations by individuals that they were actually cohabiting. It would also be difficult to establish when cohabitation started or ceased.”

Later, however, finance officials said the approach taken preserved “a legal basis upon which to distinguish, in legislation, between people who are married and people who are not [for instance, in areas like taxation, succession law or pensions]”. That was “an important clarification” which addressed their earlier concerns, they said.

As with tax, there were conflicting views on immigration. O’Gorman insisted there would be no immigration impact, citing Attorney General advice. However, No campaigners challenged that stance.

The Cabinet committee paper of May noted serious implications from extending constitutional protection to non-marital families. Citing legal advice, it said “policymakers would be required to offer greater weight to the rights of the non-marital family, including in childcare, immigration and social welfare”.

As the Government counts the cost of a bungled campaign, the papers raise many questions about the approach taken.

Arthur Beesley

Arthur Beesley

Arthur Beesley is Current Affairs Editor of The Irish Times

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