The overwhelming defeat of the referendums, the bitter disappointment that explicitly sexist text remains in Article 41.2 and the decision not to give additional constitutional protection to diverse families, have given rise to a palpable fear that social change has been stalled. It is reminiscent of the dark, depressing days after the defeat of the first divorce referendum.
However, that failure in 1986 did not slow down rights-based reform. Instead, it heralded in urgently needed and radical transformation of the family law system. By the time the next successful divorce referendum was held, the uncertainties and fear that arose in the first instance were largely assuaged by having legislative provisions in place. Today, we have even more reason to believe that a progressive programme of law reform can and should follow the failed referendums.
Referendums are where values, law and politics collide, where we attempt to capture political aims and values in legal terminology. In this instance, there was a huge dissonance between the values and aspirations that motivated the desire for constitutional change to begin with and the unclear and weak wordings chosen to be presented to the people.
The care amendment seemed to have been carefully worded to ensure that it would have the most minimal of legal consequences. In the absence of attendant legislative reform, potential beneficiaries of the family amendment would have had to litigate in order to identify and assert their new rights – notwithstanding the significant practical barriers and risks involved. This would have been a wholly disproportionate and inappropriate divesting of the legislative function to the courts.
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The absence of draft legislation and detailed policy commitments (in areas such as investment in a public childcare model, more equitable pension arrangements, homecare supports for older people, personal assistance for disabled people and supports for lone parents) meant that it was never clear how the amendments would impact people’s lives and rights. A lack of focus on disability and concepts such as autonomy and choice and the interconnections between disability and care also probably played a critical part in the overwhelming defeat of the amendments.
The outcomes of the referendums were, in some part, an expression of the unmet demand for clear rights-based reforms and for enforceable social rights that impose meaningful obligations on the State. What we have learned from the referendums can be used as the starting point for creating law reform programmes that aim to achieve substantive change for families, carers and people with disabilities.
For diverse families, it is likely that the preliminary mapping exercise of the legal differences in the treatment of families not based on marriage has already been done by the inter-departmental committee established to prepare for the referendums. That research can be used as the basis for a programme of law reform to promote the rights of diverse families in areas of law such as family, social welfare, succession, taxation and housing. A bespoke package of supports for single parent families should also be a top priority.
As Gerard Quinn wrote in these pages, there is an urgent need for “a new social contract for care and carers” reflecting the reality of our interdependence. Legal and policy changes in this area should be explicitly concerned with the rights of the care-receiver (be it the child, the older person or the person with a disability), the unpaid caregiver and the often low-paid care worker. The necessary reforms must reflect and implement Ireland’s commitment under the UN Sustainable Development Goals to (by 2030) “recognise and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies, and the promotion of shared responsibility within the household and the family”.
What is very different from the failure of the first divorce referendum is the emergence of a strong disability justice movement, which became evident during the referendum campaigns. This is cause for optimism and celebration. The voices of the disability activists (which were very powerful on all forms of social media during the referendum campaigns) must be at the centre of work to devise and deliver a disability reform programme. As Professor Eilionóir Flynn said, it is hard and complex work to overhaul a system that is so broken, but nonetheless that is the work that disabled people and their families are asking allies to join.
There are clearly powerful allies in the Centre for Disability Law and Policy and the Irish Centre for Human Rights at the University of Galway. IHREC and the National Disability Authority also need to come together to map out the reforms needed to ensure that Ireland is no longer an outlier in the area of disability rights. For our part, FLAC continues to campaign for the long overdue completion and implementation of the review of Ireland’s outdated and ineffective anti-discrimination legislation which could be a significant advance for equality and human rights and for people with disabilities.
The referendums have left us with a clearer sense of the scale of the demand for social change and the law reform needed to achieve it. We must also learn lessons from the failure of the referendums in pursuing future constitutional reform, such as the introduction of a right to adequate housing and a strengthened equality guarantee. There must in future be as much clarity as possible around the rationale for any amendments and their intended effects. Above all, we must ensure that values, political aims and legal wording coalesce to deliver meaningful change.
A commitment to transformational structural change for people with disabilities, and political, legislative and policy commitment to meaningful law and policy reform for carers and diverse families, would be a powerful and positive legacy of these referendums.
Eilis Barry is Chief Executive of FLAC (Free Legal Advice Centres)
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