A legal analysis carried out by the Free Legal Advice Centres (Flac) concerning next month’s referendum proposals has led to it supporting the proposed “family” amendment to the Constitution but not the “ineffective” and “implicitly sexist” amendment on carers.
The care amendment is unlikely to provide carers, people with disabilities or older people with new enforceable rights or improved services from the State, Flac said.
The proposal gives constitutional expression to “harmful stereotypes” in care provision and “potentially compromises” the rights of people with disabilities.
While Flac has said it will not be participating in the referendum campaigns, the position adopted by the respected independent human rights and equality body is a significant contribution to the debate.
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Before the Government published its proposals, Flac was among those who made submissions concerning amendment of the relevant constitutional provisions.
It has also acted in several legal challenges aimed at expanding rights, including the case by bereaved unmarried widower John O’Meara, a father of three, who last month won a landmark Supreme Court declaration that he is entitled to the widower’s pension.
[ McDowell questions need to hold referendum on family in light of O’Meara judgmentOpens in new window ]
In the referendums set for March 8th, the Government proposes expanding the definition of family in article 41 of the Constitution to recognise those based on “durable relationships”.
The proposed care amendment involves replacing language in article 41 around “duties” of women in the home with language providing the State will “strive to” support care within families.
Flac’s intervention is likely to be seen as a blow to the Yes-Yes campaign, which has the backing of the Government and the main opposition parties.
Speaking at her party conference at the weekend, Social Democrats leader Holly Cairns said she understood some people on the left had wanted the Government to “go further” on the proposed recognition for carers in the Constitution. However, she said, “we will be voting yes based on the two options that we have”.
Flac’s legal analysis of the likely impact of the amendments particularly focused on women, carers, older people, people with disabilities and diverse families.
In a statement on Monday, Flac said the family amendment achieved “the important aim of expanding constitutional protection to families beyond those based on marriage”.
The reference to families “based on other durable relationships” appeared to extend constitutional protection to single parent families, cohabiting couples in long-term relationships and their children, and possibly families where multiple generations live together as one unit, it said.
[ Electoral Commission to address uncertainty over next month’s referendumsOpens in new window ]
It expressed concern that the likely legal consequences, and benefits to diverse families of the proposed amendment, “have not been explained adequately to date”.
It called for publication of draft legislation setting out what relationships came within the definition of “durable relationships” and the changes the amendment would require, it said. If the referendum succeeded and such legislation was not introduced, diverse families would have to go to court to have their new rights defined and given effect to, it said.
Flac said it believed the family amendment would ultimately have “positive policy and legal implications” in areas such as social welfare, family, taxation and succession law leading to practical improvements in the lives of diverse families whom the courts decide fall within the definition of “durable relationships”.
In relation to the “care” amendment, Flac said it was “highly regrettable” voters did not have the choice to simply delete the so-called “women in the home” provision “which is ineffective, sexist and offensive”. Voters were instead asked to replace it with a new article 42B concerning “family care” with wording “just as ineffective”, Flac said.
This 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 home or school supports for children with disabilities, it said.
Article 42B would “give constitutional expression to harmful stereotypes” such as the concept the provision of care is the private responsibility of unpaid family members without any guarantee of State support.
The proposal 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”.
Article 42B would also give constitutional expression to “the harmful stereotype” of people with disabilities as subjects of family care, rather than autonomous individuals and rights-holders.
It “does nothing to enhance, and potentially compromises”, the rights of people with disabilities in the United Nations Convention on the Rights of People with Disabilities.
Based on that analysis and because it was “a missed opportunity for the rights of women, carers, older people and people with disabilities”, Flac said it did not support the care amendment.
Article 42B, it added, would be “a step backwards for rights-based constitutional reform” following the referendums on marriage equality and repealing the Eighth Amendment on abortion which provided “symbolic recognition and meaningful new rights and protections”.
The “rushed” process for finalising the amendments was “hugely regrettable” and contributed to the weaknesses of the proposals being advanced, Flac said. It was “unclear” why the referendum wordings “differ significantly” from the proposals made by the Citizens’ Assembly and Oireachtas Gender Equality Committee, it said.
Flac stressed it remained committed to rights-based constitutional reform “which promotes full equality in practice” and said that should include the introduction of “enforceable socio-economic rights”, beginning with a right to adequate housing.
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