Donohoe warned against stronger care referendum wording regarding spending risk

Minister for Public Expenditure Paschal Donohoe warned Cabinet colleague Roderic O’Gorman of “extensive policy and expenditure risks” in the care referendum, in a clash over the extent of new duties on the State.

One month after voters overwhelmingly rejected the care amendment, internal files point to a schism over the referendum between Mr Donohoe and the Minister for Equality.

Mr Donohoe’s officials expressed concern about “major risk” in proposals for the March vote before the Government watered down the original wording to avoid a “mandatory obligation” on the State.

As Mr Donohoe pushed back against the Green Minister, the officials expressed anxiety about a “wide range of known and potentially unknown demands for additional supports which would entail significant expenditure risks”.

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Mr Donohoe sent a letter to Mr O’Gorman last May saying the referendum could leave the State “open to undue risk and litigation”, according to files released under the Freedom of Information (FoI) Act.

Two months later the secretary general in Mr Donohoe’s department wrote to his counterpart in Mr O’Gorman’s department highlighting the need for the Cabinet to consider “analysis and quantification of the potential cost implications” and pointing to “risks highlighted” by Attorney General Rossa Fanning.

Citing FoI exemptions, the Department of Public Expenditure redacted Mr Fanning’s advice from the files.

In the March 8th referendum, a 73.93 per cent majority of voters rejected care amendments to “strive to support” care and delete mothers’ duties from the Constitution.

Critics argued that the proposal would deny disabled people “the right to State support”. In previously disclosed files, Department of Finance officials said the “strive” wording was “intended to avoid a concrete and mandatory obligation to provide support”.

Still, Mr O’Gorman’s spokesman said Mr Fanning’s advice “outlined the significance of the term strive, including potential successful litigation against the State”.

The “strive” wording had changed from earlier drafts that would have imposed an obligation on the State to provide “reasonable” support for care. Another proposal saying the State “shall endeavour” to provide care was also dropped.

In the separate family referendum on the same day, a 67.69 per cent majority rejected amendments recognising families in “other durable relationships” in addition to marriage families.

The public expenditure records include an official warning of “potential expenditure risks” in the original care proposal.

The warning cited Mr Fanning’s advice raising “significant issues” with proposals to replace the constitutional reference to women in the home with a “reasonable” support obligation.

In a document for Mr Donohoe early in the talks, officials said the Government could increase support for care through “more appropriate statutory means” and the annual budget.

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As the talks neared a conclusion last November, department officials complained that a draft Government memorandum on the referendum was “not likely” to be circulated for ministerial observations.

“Given that this will be a memo for decision and given that that proposed amendment for decision carries a risk of imposing significant Exchequer costs in the future the Minister for [Public Expenditure] should be provided an opportunity to share his [observations],” an official wrote.

Such concerns were in line with earlier correspondence, expressing anxiety about “potential for significant unintended consequences and costs”.

Mr O’Gorman’s department was urged to stress in Cabinet papers the risk set out by Mr Fanning. “The implications of this risk need to be sufficiently expanded upon in the paper to be considered by [the] Cabinet committee,” said a May note from public expenditure officials.

“These issues need to clearly set out in their own section of the paper for Government to be sufficiently informed of these potentially significant negative unintended implications,” the note added.

“More generally, is there a precedent effect here that needs to be considered with regard to enshrining socio-economic rights in the Constitution? It is [the Department of Public Expenditure’s] view that to date these risks, including those to the Exchequer, have not been sufficiently quantified or communicated to Government up to this point.”

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