Wrangling between Government departments over the constitutional amendment on family and care continued until close to the final deadline that would allow the referendum to take place in early March, the minutes of the power group overseeing the process have disclosed.
In particular, a proposed wording put forward by the Department of Children for the care referendum was heavily criticised by other departments for exposing the State to a “substantially higher level of risk: and making it likely the judiciary potentially becoming involved in matters of resource distribution”.
The Interdepartmental Group on Referendums on Gender Equality met 16 times between March 2023 and November 2023 to agree on wording for the two amendments on family and care that it could recommend to the Government. The committee was chaired by Laura McGarrigle, a senior official in the Department of Children, and among its 32 members were Attorney General Rossa Fanning, and key advisers to the then taoiseach and Tánaiste, Deirdre Gillane, Bríd Murphy, Gráinne Weld.
Minutes of its meetings were released on Wednesday. The heavily redacted documents show that the wording on the family referendum was agreed by September.
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However, substantial differences remained on the wording of the care referendum, with several Government departments challenging the proposal of the Department of Children to commit the State to “reasonable measures” to uphold the rights of carers. This, said other departments, would expose the State to litigation and also to potentially substantial financial risk.
Some departments favoured the weaker phrase “shall endeavour” which formed part of the original article on family and care in the Constitution. The discussion on the compromise wording of “shall strive” for the care referendum, and how the group came to recommend it, is redacted from the documents.
However, the minutes reveal that the Cabinet and the group were still examining “new options” for wording in the fortnight leading up to the Government decision to publish the legislation triggering the referendum.
Other files obtained by The Irish Times earlier this month show Minister for Public Expenditure Paschal Donohoe directly warning Cabinet colleague Roderic O’Gorman of “extensive policy and expenditure risks” in the care referendum.
The two amendments were overwhelmingly defeated in the referendum held on March 8th.
The documents show that a key phrase in the family referendum — “durable relationships” — was agreed by July.
“Attendees broadly agreed that the word ‘durable’ was a good addition and generally noted that durable relationships could apply to a number of different family formations, including one-parent families,” it said.
[ Donohoe warned against stronger care referendum wording regarding spending riskOpens in new window ]
As for the care referendum, at a critical meeting in August, an effort by the Department of Children to strengthen the language of the proposed amendment and impose an obligation on the State met strong resistance from other Government departments.
The minutes for the meeting state the emphasis in the care referendum until then was on the wording “shall endeavour”.
It has stated: “By contrast, the paper now has emphasis on the wording ‘reasonable measures’ within the proposed amendment.”
The minutes note that the Department of Children referred to the report of the Citizens’ Assembly and also the submissions from the public and organisations concerning care.
However, the proposed change met significant resistance. Several members of the group raised significant concerns regarding the shift in emphasis from ditching “shall endeavour” and including the phrase “reasonable measures”.
“It was noted that this entails a substantially higher level of risk for the State, goes significantly further in terms of the likelihood of the judiciary potentially becoming involved in matters of resource distribution and the sets a threshold that the State is more likely to fail having regard to particular areas of service pressure and need,” the minutes stated.
By October, the Government had already indicated the referendum would not take place by the end of 2023 but in spring 2024.
On November 7th, the chairwoman, Ms McGarrigle, noted that a paper presenting the full spectrum of options for the recommendation on the care amendment was being discussed. It indicated that new options for wording on that amendment were still being considered at this late stage.
“It was agreed that the legal implications of the newer options needed to be explained in greater detail,” it said.
The Cabinet committee decided on the final wording at a meeting on November 20th.
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