ICCL writes to Oireachtas setting out recommendations on proposed referendum wording

To: Oireachtas members (by email)

15 January 2024

Re: Wording for referendums on 'family' and 'care'

A chara,

Ahead of the consideration by the Oireachtas of the proposed Bills to amend provisions of the Constitution dealing with ‘family’ and ‘care’, the Irish Council for Civil Liberties (ICCL) wishes to set out a number of recommendations on the proposed wording for the proposed constitutional amendments.

In doing so, our focus is on how the Oireachtas can ensure that any proposed text put before the public in a referendum provides the best opportunity to strengthen the protection of human rights under the Constitution, while also ensuring that any such proposal is clear and can be easily understood by the electorate.

ICCL recognises the extensive work done to implement the Citizens’ Assembly recommendations and bring forward these important referendums. We have made two submissions to the Oireachtas Committee on Gender Equality in March 2022[1] and November 2022.[2] We also made a submission, which was endorsed by the Children’s Rights Alliance, to the Interdepartmental Committee on the Referendums on Family, Care and Gender Equality.[3]

We also note the recent submission to the Oireachtas by FLAC on the proposed referendum Bills.[4] FLAC has set out a detailed legal analysis of the proposals including significant and constructive recommendations which ICCL believes have the potential to strengthen the protection of rights in the Constitution and to bring clarity to public discussion. We hope that all members of the Oireachtas will consider both the points addressed here below and the further analysis set out in FLAC’s paper.

Proposed ‘family’ amendment

ICCL supports broadening the constitutional definition of ‘family’ beyond the marital family. Achieving equality for all families has been a core objective of ICCL’s work for many years, as set out in detail in our 2006 Report “Equality for all Families”.[5]

The definition of ‘family’ plays a significant role in constitutional law and frequently falls to be considered by the Courts and by State bodies. Any amendment to it would have consequences for the daily lives of citizens. Due consideration must therefore be given to the legal implications of the proposed wording, including the reasoning for the inclusion of the novel phrase ‘durable relationship’.

In this context, we draw your attention to FLAC’s recommendation that Government outline the legal and policy implications of the proposed new definition of ‘family’ as well as the rationale for the chosen wording. We believe there is a strong onus on the Government to provide this clarification in advance of any referendum.

Proposed ‘care’ amendment

ICCL fully supports the removal of the archaic reference to a woman’s place in the home from Article 41.2. In line with our previous positions, we support the objective of amending this article to include gender-neutral language and to strengthen the rights of carers in the home and wider community.

Both the Citizens’ Assembly and Oireachtas Committee on Gender Equality recommended that the Constitution be amended to recognise care within and outside the home; however, the wording proposed by the Government refers only to care within families. ICCL has previously stated our support for the amended article to recognise care in the family and wider community.

We have also previously highlighted that any amendment must ensure full and equal protections for both carers and people who are cared for. In this context, we remain concerned that there may be unintended negative outcomes for people who are cared for arising from the proposed text in its current form.

We draw your attention in this regard to FLAC’s recommendations that the final wording of this amendment recognise care within and outside the home, and also that it recognise the rights of people with disabilities in line with the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

Conclusion

We hope these points, and the proposals put forward by FLAC, will be afforded due consideration this week and next when the Houses of the Oireachtas debate the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023 and Fortieth Amendment of the Constitution (Care) Bill 2023.

We await the Oireachtas debate and look forward to a constructive discussion of these and other issues. In particular, we hope Government and opposition members will consider carefully all options to strengthen the protection of human rights under the Constitution before finalising these referendum proposals; while also ensuring that any such proposals are clear and can be easily understood by the electorate. In this vein, we hope that Government will provide clarity on its intentions and on the legal implications of these proposed wordings.

ICCL will consider and reflect on our position on the referendum proposals when final text of the referendum Bills has been agreed.

We remain available for further engagement and to provide any supplementary information that may be required.

Yours sincerely,