Tomorrow the broadcast media moratorium on the referendums to be held on Friday will come into effect. And for me what has been a hectic engagement with media of all kinds – here and elsewhere - over the last number of weeks will have come to an end. Voters will have a calm period of political ceasefire in which to deliberate on whether to vote and on how they will vote.
I have a number of reflections to offer.
The first is that the whole process was rushed. There was no opportunity for the Houses of the Oireachtas to engage in what is pre-legislative scrutiny, a process in which legislators are allowed to call in interested parties including departments of state and experts to examine the likely implications any proposed legislative changes.
Why was there such a hurry that it was necessary to use a guillotine motion supported by the imposition of the party whip to foreclose discussion on the wordings once published? Was it to hold the referendum on International Women’s Day, as suggested?
Or was it to forestall a Supreme Court hearing of an appeal on a matter of “systemic importance” for fulltime carers which depended in part on construing the words now proposed to be deleted from article 41.2 – the date of the hearing having been fixed in late 2023 for 11th April, a few weeks hence?
Many voters tell the media that they simply do not know what the referendums are all about. Whose fault is that? Should anybody be asked to amend our constitution in a state of non-understanding? Is the reasonable default position not to refuse to make any amendment that is not properly explained to you?
Confronted with the obvious difficulty that the Family amendment about “other durable relationships” is vague and will depend on court decisions in “hard cases” to reveal its real meaning and implications, proponents of the amendments have resorted to saying that it really will make very little difference – that the amendments are largely “symbolic” but have the merit of being “inclusive”.
For a certainty, elevating “durable relationship” families to the constitutional status of family must have significant effects – not on next Monday morning but as court decisions in “hard cases” are handed down in future disputed cases.
A person in a durable relationship for a lengthy period with another person who dies intestate and receives no part of that person’s estate because the married spouse of that person who had lived apart for decades is entitled to all of the estate, is bound – as night follows day – to challenge the existing laws on intestacy and the existing provision of section 173(5) of the cohabitants legislation of 2010 which leaves her penniless.
That claim will be based on the constitutional status of the unmarried family and the person’ equality rights under article 40.
Likewise, if a couple have been cohabiting for twenty years and the male partner who owns the family home and the building in which he carries on a garage business dies having made a will in favour of his partner leaving her his entire estate, her inheritance will be subject to what may well be a crippling inheritance tax bill at 33%.
If she has even a small ownership share in any other dwelling, she will also lose her relief in respect of the family’s principal home under current tax law.
After the O’Meara case, will she not be able to invoke her family’s constitutional rights arising from her durable relationship, and her children’s rights under article 42A, and their equality rights under article 40, to make the argument that she and her family are the victims of an arbitrary and invidious discrimination when compared with a similar married family in identical circumstances?
The fact that these matters are provided for by statute does not take them out of the courts’ power to deem the result unconstitutional in the same way as Mr O’Meara succeeded in his Supreme Court argument with the Attorney General in relation to widowed persons social welfare entitlements.
So, the argument made by ministers and some non-practitioner academics that the amendments will have no serious consequence is wholly implausible.
It is not only the law of intestacy or taxation that is likely to be involved; existing statutes and non-statutory rights in a wide range of legal areas such as family law rights and disputes between successive or contemporaneous families arising from “durable relationships”, pensions law, welfare law, and laws (including case law) relating to deportation of family members will be affected.
As for single parent families, nobody has been able to identify any way at all in which the proposed family amendment will change their rights in any meaningful way.
Nor does the Care amendment make any positive change in the rights of carers and those in need of care, including adult disabled persons.
Food for thought?
