The Family and Care amendments aren’t worthy of our Constitution

After announcing an abortion referendum in January 2018 to be held in late May, the government published both a policy paper and a General Scheme (Heads of A Bill) by March. The nature of that referendum meant that any legislation could be changed later, but at least for the moment people knew what they were voting for.

This could have happened for next week’s referendums. Instead, pre-legislative scrutiny by the Dáil, when TDs thrash out the meaning of proposed changes, was waived entirely. Debate on the referendum bills themselves was truncated through guillotine motions.

A Freedom of Information request for access to minutes of 16 meetings of a Government Interdepartmental Group has been denied because it allegedly would not be in the public interest to publish them before we vote.

These interdepartmental meetings will presumably have discussed everything about these amendments, from the implications for taxation and inheritance to protecting the government from financial obligations, yet the electorate cannot see the minutes.

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Astonishingly, both Minister of State, Thomas Byrne and Minister Roderic O’Gorman have confirmed that if the amendment is passed, a person can be part of a marital relationship and a durable relationship at the same time

This shocking failure to properly inform the electorate raises the question as to whether the government is just incompetent or actively concealing vital information.

Take the infamous “other durable relationships”. We still have no clear definition. Astonishingly, both Minister of State, Thomas Byrne and Minister Roderic O’Gorman have confirmed that if the amendment is passed, a person can be part of a marital relationship and a durable relationship at the same time.

[ Do we want a society in which non-marital relationships are the easier, equal and growing norm? ]

The government representatives claim that this just represents reality. In Thomas Byrne’s words, “That happens all the time.” He has said that in this situation, the marital family’s rights will take precedence. We are supposed to take his word for it and are assured that the courts will settle the hard cases.

Marriage, and cohabitation, as legally defined since 2010, have clear boundaries. You cannot be married to anyone else and be legally married or a cohabitant. If the amendment passes, someone in both a marriage and a durable relationship will see both relationships are simultaneously considered to be the “natural and primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law”.

The potential consequences are enormous and far-reaching.

The UK’s EU Settlement Scheme defines the criteria under which EU citizens can remain in the UK after Brexit and includes “durable partners” among those who may be eligible. Defining a “durable partner” has proved so complex that Upper Tribunal Judge Canavan stated: “Some parts of the rules relating to the EU Settlement Scheme are so difficult to comprehend that it is at least arguable that they lack the clarity of law.”

But in one respect they are crystal clear: neither member of the couple should have another durable partner, spouse or civil partner who is in the UK with immigration status based on their relationship.

So even in this labyrinthine UK legislation, you cannot be in both a marriage and a durable relationship. But if we amend the Constitution as proposed, Irish people can be.

In The Irish Times Inside Politics podcast, Ms Justice Marie Baker, chairwoman of the Electoral Commission, was clear that if the amendment was passed, the next step constitutionally would be legislation, which “would identify the persons who are recognised as being in durable relationships”.

In an impeccably polite way, she is saying that the government cannot skip its duty to legislate and instead rely on the courts to do its job for it.

But, sadly, not before we get to vote blindly on it.

As for the Care Amendment, as Prof Oran Doyle has said crisply: “Don’t tie yourself in knots worrying what concrete effects your vote will have. It won’t have any concrete effects.”

As for the rubbish being claimed about Article 41.2.2, for example that it was responsible for the marriage bar, the British Foreign Service had a marriage bar until 1973

Like most people, I would have heartily supported an amendment that meaningfully underpinned State support for the indispensable roles of both parents and carers. This amendment removes references to both mothers and home from this Constitutional article and places no additional obligations on the State whatsoever.

In the 1970s, Cherish, the pioneering organisation for lone mothers, used the allegedly regressive Article 41.2.2 enumerating the right of mothers not to be forced by economic necessity to work outside of the home to argue for an increase in the pittance of an allowance given to single mothers at the time.

As for the rubbish being claimed about Article 41.2.2, for example that it was responsible for the marriage bar, the British Foreign Service had a marriage bar until 1973. The French until 1965 had a law requiring women to have permission from their husbands to take up a professional working role and did not trouble themselves even to give women the vote until 1944. Was Article 41.2.2 responsible for all that, too?

It would be entirely wrong to vote No to either proposed amendment just to give the Government a kicking for unrelated causes. It would, however, be entirely appropriate to vote No because the Government has failed miserably to demonstrate that the Family Amendment and the Care Amendment are worthy of being included in our fundamental statement of values.