‘There is therefore uncertainty': attorney general

The attorney general told minister for children Roderic O’Gorman there is legal “uncertainty” about the government’s proposed care amendment to the constitution and the legal obligations it would place on the state.

The proposed amendment, which has been heavily criticised by carers and people with disabilities, says the state “shall strive to support” familial provision of care.

In advice to government, which cabinet has refused to publish despite doing so with its equivalent during the campaign to repeal the eighth amendment, attorney general Rossa Fanning told O’Gorman there is “lack of guidance from the courts” about how the word “strive” would be interpreted.

He also advised about the effects of the proposed amendment on potential litigation against the state.

Though social protection minister Heather Humphresy this week told reporters that passing the care referendum would result in more support for carers, the attorney general said it remains unclear what, if any, obligation it would place on the state.

‘Significant financial implications’

Voters are being asked to pass two constitutional amendments tomorrow – one about the definition of the family, the other about the definition of care.

Carers and people with disabilities have criticised the care amendment for what they consider an uncertainty in how its terms would be interpreted – in particular the word “strive”.

In unpublished advice to minister Roderic O’Gorman, attorney general Rossa Fanning confirmed this uncertainty. He also referred to the only other mention of the word “strive” in the constitution – noting that it featured in a “non-justiciable” provision, meaning its only other mention doesn’t impose a legal obligation on the state.

“There is a lack of guidance from the courts on how the word ‘strive’ will be interpreted. Although the term is used in Article 45.1 of the Constitution in relation to the promotion of the welfare of the people as a whole, this forms part of the Directive Principles of Social Policy, which are expressly stated to be non-justiciable. There is therefore uncertainty as to the likely meaning and effect of an obligation to 'strive' to support the provision of care in a new Article 42B and whether, in its interpretation by the courts, it would be regarded as imposing a more onerous obligation than an obligation to ‘endeavour,’” wrote Fanning to O’Gorman on 8 December, 2023.

Elsewhere in the advice Fanning mentioned that the state had received advice on alternatives to “strive”, including "shall endeavour" and "shall take reasonable measures". Both the Citizens' Assembly on Gender Equality and the Joint Oireachtas Committee on Gender Equality recommended “shall take reasonable measures”. Fanning in his advice noted the “significant financial implications” the amendment may bring.

“As with any obligation placed on the state which is expressed by use of the term ‘strive’, there can be little doubt that the obligation on the state to 'strive' to support the provision of care will have real effects which will be enforced by the courts, and that it will be relied upon in a very wide range of contexts in support of claims that the constitution requires the state to provide, and/or support the provision of care. This could have the effect of drawing the courts further into questions of resource allocation than is currently the case and could result in declaratory orders against the state with significant financial implications,” he wrote.

Fanning wrote that the recognition of care would bring “real potential” for a “significant volume of litigation” from “highly vulnerable” people.

“It is highly likely that this recognition of the value of care, and the imposition of an obligation on the state to strive to support it, would be invoked by litigants in a very wide variety of contexts in support of legal claims that the constitution required the state to provide and/or support the provision of care. There is, therefore, real potential for a significant volume of litigation consequent on the amendment. Litigation in this area is likely to be brought by individual litigants who may be highly vulnerable or in very difficult circumstances, whose rights the courts will be vigilant to protect. It is foreseeable that this could arise in areas such as health, child care, social protection, education and immigration,” he wrote.

There is further uncertainty, according to the correspondence from Fanning to O’Gorman, surrounding the Irish version of the proposed article, which Fanning noted “prevails over the English text”.

“In Article 45.1, the phrase ‘the state shall strive’ is expressed in Irish as ‘Déanfaidh an Stát a dhicheall.’ It must be highlighted that by contrast, the term ‘strive’ used in article 42B will be expressed in Irish as ‘dréim’ meaning that, if the referendum passes, there will be two different Irish terms used in the constitution for the same English word. It is also important to emphasise that article 25.4.6° of the constitution provides that the Irish text of the constitution prevails over the English text in case of conflict, which may influence the interpretation of the proposed amendment as comprehending a more aspirational commitment,” he wrote.

O’Gorman and the government press office have been contacted for comment.