FLAC Legal and Human Rights Analysis of the Proposed Family & Care Constitutional Amendments
19 February 2024
This statement sets out FLAC’s position on the Family and Care Referendums. It is based on our legal analysis of the extent to which the proposed amendments will deliver enforceable rights, stronger obligations on the State and positive, practical improvements in the lives of people and communities who experience inequality, discrimination and disadvantage - with a particular focus on women, carers (who are mostly women), older people, people with disabilities, single parents and diverse families. In summary:
FLAC supports the ‘family’ amendment which we believe will ultimately have positive policy and legal implications (in areas like social welfare, family, taxation, and succession law) which will lead to practical improvements in the lives of diverse families that are found by the Courts to come within the definition of “durable relationships”.
In relation to the ‘care’ amendment, it is highly regrettable that voters do not have the choice to simply delete the current so-called ‘women in the home’ provision which is ineffective, sexist and offensive. Instead, they are being asked to replace it with a new ‘Article 42B’ concerning ‘family care’:
FLAC is of the view that the wording of the proposed ‘care’ amendment is as ineffective as the current so-called ‘women in the home’ provision. It is unlikely to provide carers, people with disabilities or older people with any new enforceable rights or to require the State to provide improved childcare, personal assistance services, supports for independent-living, respite care or supports (at home or in school) for children with disabilities.
The amendment would give constitutional expression to harmful stereotypes such as the concept that the provision of care, including the care of older adults and adults with disabilities, is the private responsibility of unpaid family members without any guarantee of State support. Like the explicitly sexist ‘women in the home’ provision, the proposed Article 42B endorses a status quo where women undertake the bulk of unpaid care work and places no obligation whatsoever on the State to redress this gender imbalance – rendering it an implicitly sexist amendment.
It also would give constitutional expression to the harmful stereotype of people with disabilities as the subjects of family care rather than autonomous individuals and rights-holders. The proposed new wording does nothing to enhance (and potentially compromises) the rights of people with disabilities as set out in the UNCRPD.
On the basis of this analysis, and because it is a missed opportunity for the rights of women, carers, older people and people with disabilities, FLAC does not support the ‘care’ amendment.
Having offered our legal analysis (which is set out in further detail below), FLAC will not actively participate in the current referendum campaigns.
Analysis: The Family Amendment
The proposed ‘family’ amendment achieves the important aim of expanding constitutional protection to families beyond those based on marriage (by stating that the family is “founded on marriage or on other durable relationships” and deleting the words which state that the family is founded on marriage alone).
FLAC is aware of the negative disparities in how diverse families are treated under the law (in comparison to families based on marriage) especially in areas such as social welfare, family, taxation and succession law. Our Telephone Information and Referral Line deals with thousands of family law queries each year) and FLAC represented the O’Meara family in their recent successful constitutional challenge.
While it does not explicitly refer to single parent families (as FLAC recommended), the amendment’s reference to ‘families based on other durable relationships’ would on its face, appear to extend constitutional protection to those families, as well as cohabiting couples in long-term relationships and their children and possibly families where multiple generations live together as one unit.
FLAC is highly concerned that the likely legal consequences (and benefits to diverse families) of the ‘family’ amendment have not been explained adequately to date. There is an urgent need for the Government to publish its analysis of the impact of the amendment on existing law and policy. Draft legislation should be published setting out what relationships come within the definition of “durable relationships” in the first instance and the changes that the amendment will require. If the referendum succeeds and such legislation is not introduced (which seems to be the approach the Government is proposing to take), diverse families will have to go to court in order for their new rights to be defined and given effect to.
However, FLAC believes that the amendment will ultimately have positive policy and legal implications (in areas like social welfare, family, taxation, and succession law) which will lead to practical improvements in the lives of diverse families that are found by the Courts to come within the definition of “durable relationships”.
Analysis: The Care Amendment
FLAC is fully in favour of the deletion of the so-called ‘women in the home’ provision of the Constitution which is sexist, out-of-date and has been wholly ineffective to date in requiring practical supports for women or anyone else with care responsibilities in the home. However, the current ‘care’ amendment does not propose to simply delete that offensive provision; it proposes to replace it with a new provision (Article 42B) concerning ‘family care’.
The new provision would provide symbolic recognition in the following terms: “The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved…” It then states that the State “shall strive to support such provision”. This effectively mirrors the weak language of the current so-called ‘women in the home’ provision which requires the State to “endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
The wording of the proposed amendment is as ineffective as the current so-called ‘women in the home’ provision. It is unlikely to provide carers, people with disabilities or older people with any new enforceable rights or to require the State to provide improved childcare, personal assistance services, supports for independent-living, respite care or supports for children with disabilities. The wording is specifically limited to family care and does not relate to care in the community or in schools. The experience of the ‘Children’s Rights’ amendment illustrates that a weak and unenforceable amendment is unlikely to have a tangible positive impact on law and policy.
FLAC is also concerned that the amendment would give constitutional expression to harmful stereotypes such as the concept that the provision of care, including the care of older adults and adults with disabilities, is the private responsibility of unpaid family members without any guarantee of State support. Like the explicitly sexist so-called ‘women in the home’ provision, the proposed Article 42B endorses a status quo where women undertake the bulk of unpaid care work and places no obligation whatsoever on the State to redress this gender imbalance – rendering it an implicitly sexist amendment.
The proposed new wording does nothing to enhance (and potentially compromises) the rights of people with disabilities. Ireland does not have strong disability rights legislation. The provisions of the Equal Status Acts concerning reasonable accommodation for people with disabilities are extremely weak. Ireland has not ratified the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) which means that the rights of people with disabilities under the Treaty are not enforceable. The proposed new Article 42B compounds this situation and would mean that the only mention of people with disabilities in the Constitution is an implicit reference to them as the subjects of family care rather than autonomous individuals and rights-holders.
The amendment, with its emphasis on the provision of care in the home by families, is contrary to concepts of autonomy and choice for people with disabilities set out in the UNCRPD, Article 19 of which recognises “the equal right of all persons with disabilities to live in the community, with choices equal to others” and obliges parties to the Convention to “[ensure] that…Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement…”
The enactment of Article 42B would be a step backwards for rights-based constitutional reform which has been on a positive trajectory over the past decade during which votes such as ‘repeal’ and ‘marriage equality’ have provided symbolic recognition and (importantly) meaningful new rights and protections.
The rushed process for scrutinising and finalising the amendments has contributed to the weaknesses of the proposals now before the people. It is hugely regrettable that pre-legislative scrutiny of the Referendum Bills was waived and that the legislative process was truncated. The referendum wordings differ significantly from the proposals which emerged from the Citizens’ Assembly and Oireachtas Gender Equality Committee and it remains unclear why this is so.
FLAC remains deeply committed to rights-based constitutional reform which promotes full equality in practice.The next stages of progressive constitutional reform in Ireland should include the introduction of enforceable socio-economic rights, beginning with a right to adequate housing. There is also an urgent need to update and strengthen the Constitution’s Equality Guarantee to promote full equality in practice for all groups who experience discrimination and disadvantage. The completion of the current review of the equality legislation should also be expedited to achieve this aim.
ENDS.
Notes:
FLAC (Free Legal Advice Centres) is an independent human rights and equality organisation, which exists to promote access to justice. As an Independent Law Centre, FLAC takes on a number of cases in the public interest each year and operates a Traveller Legal Service, Roma Legal Clinic and LGBTQI Legal Service. FLAC also operates a legal information and referral telephone line and a nationwide network of legal advice clinics where volunteer lawyers provide basic free legal advice.
Our analysis and recommendations are informed by our work representing clients. In our casework, FLAC has sought to rely on the Constitution (in particular, the Equality Guarantee and the provisions concerning the family) in cases concerning discrimination, housing and homelessness, and social welfare (including in relation to the entitlements of non-marital families). As a result, we are keenly aware of the limitations of the current constitutional provisions.
Since late 2022, FLAC has undertaken a considerable amount of policy, research and advocacy work concerning the current proposals for constitutional reform, and has engaged widely and constructively with Government, relevant civil society organisations, policy-makers, academics and legal practitioners. FLAC has sought to ensure that any proposed constitutional amendments would contain the best and most effective wordings which would require changes in law and policy and, as a result, practical improvements in the lives of women, carers (who are mostly women), older people, people with disabilities, single parents and diverse families.
Background to the Proposed Amendments & FLAC’s work in this area
In June 2021, the Citizens’ Assembly on Gender Equality published its report – which included three recommendations for constitutional reform in relation to equality, the family and care. The Joint Oireachtas Committee on Gender Equality was established to consider the recommendations of the Assembly. In December 2022, the Oireachtas Committee published its final report setting out its proposed wording for amendments to Articles 40 and 41. In March 2023, the Government announced its intention “to hold one or more referendums on this issue [gender equality]”.
In addition to a submission to the Oireachtas Committee, FLAC made a submission to the Inter-Departmental Group established to prepare for the referendums (as well as a short supplemental submission). In May 2023, FLAC held a workshop where leading legal practitioners and academics offered their views on the referendums and wordings. FLAC published a report on that workshop which set out our key findings and recommendations arising from it. In September 2023, FLAC made another submission on “Standards & Suggested Wording for Constitutional Amendments in relation to the Equality Guarantee, replacing the ‘Women in the Home’ Provision & the Non-Marital Family”. Each of our submissions and reports were provided directly to relevant members of the Government, members of the Oireachtas and Civil Society Organisations.
In December 2023, the Government “approved proposals for two referendums” (in relation to ‘family’ and ‘care’) and Referendum Bills were published. FLAC published a preliminary analysis of the wordings in the Bills which raised a number of concerns. In January 2024, FLAC published Recommendations to Strengthen the Proposed ‘Family’ & ‘Care’ Constitutional Amendments. That document set out amendments which, in our view, would strengthen the wordings and have a significant impact on their effectiveness in delivering tangible improvements in law and policy and promoting equality and human rights. It also set out matters which need to be addressed by Government to provide clarity on the rationale for and intended effects of the proposed new constitutional provisions. Scrutiny and debate of the Bills was truncated and Pre-Legislative Scrutiny of the Bills was waived by the relevant Oireachtas Committee. The Bills completed the legislative process without being amended.