If you asked Stephen Donnelly about the health agencies his department is responsible for, about whether he thinks they’ve strived to support the carers of children with spinal conditions over the past few years, he would likely look at you and tell you, yes, of course. (It wouldn’t be a straightforward yes though – he’d answer as only an ex-McKinsey consultant can, never missing the chance to use five words where one would do).
Carers are used to this. They’ve got it from successive ministers and the people who run their departments. Promises are made. They’re broken. Failures are sold as successes, or at least honest attempts.
This government has now taken its commitment to failing carers and the people they care for further. It’s managed – with its proposed constitutional article 42B, which says the state “shall strive to support” familial provision of care – to distil the state’s disregard and neglect into one paragraph.
“Strive” is the best the state can do.
With this proposed article, the government is suggesting that an aspirational constitutional amendment, which promises nothing other than effort, offers more to carers and those for whom they care than increased funding or primary legislation that would address material needs such as better access to support services and increased financial support. This is the same government that is repeatedly brought to court over its failures to provide for the basics such as assessing children with special needs. It’s the same state that illegally gathered evidence on autistic children's families so they could pressure them into settling legal actions. These aren’t the actions of an actor on whose efforts can be relied.
The wording of this amendment is no mistake. The government may well be incompetent – this article isn’t however an example of its incompetence. Article 42B manages to at once feign empathy and absolve the state of responsibility for carers and people with disabilities. This has long been state policy and, to take Leo Varadkar at his word last week, is the ideological impetus for the proposed change.
Speaking on Virgin Media’s Six O’Clock Show Varadkar told viewers last Friday that he doesn’t think providing care to those who need it is the state’s responsibility.
“I don’t actually think that’s – (caring for relatives) – the state’s responsibility. I do think that is very much family responsibility,” said King's Hospital (€19,832 in yearly boarding fees) alum Varadkar.
The taoiseach’s attitude both to carers and those for whom they care, his belief that the state bears little responsibility for either, with his conservative invocation of the family that wouldn’t be out of place in the work of early neoliberals like Friedrich Hayek and Ludwig von Mises, isn’t surprising. He can pose with Justin Trudeau, show off his socks with a smile; he can take part in soft podcast interviews with Ireland’s political correspondents; he can continue to rely on the country’s two referenda last decade as evidence of his progressive credentials, but he can’t hide who he is and the political tendency he represents. He’s still the unreconstructed, no-such-thing-as-society Thatcherite who said, “Tiny Tim should get a job.”
Though Varadkar said this is his personal view, he’s the taoiseach, the head of state – it would be naive to think that this view, personal or otherwise, isn’t representative of the government’s decision to bring this referendum.
What – exactly – led to the wording?
Varadkar was, at least, honest. The coalition government hasn’t been, and has conducted this referendum campaign with cynicism, trying to sell the idea that removing outdated language from the constitution is enough. The government does so knowing that it puts progressive voters in a bind. These voters, as the Free Legal Advice Centre has alluded to, are being asked to remove an overtly sexist constitutional provision and replace it with something slightly less sexist.
“The proposed article 42B endorses a status quo where women undertake the bulk of unpaid care work and places no obligation whatsoever on the state to redress this gender imbalance,” as FLAC put it.
Some campaigners, including Socialist Party TD Mick Barry and his former backbench colleague Ruth Coppinger, have listened to the concerns expressed by carers and withdrawn their support for a yes vote. Independent TD Catherine Connolly asked straightforward, but uncomfortable, questions for government on last Sunday’s The Week in Politics. She raised the secrecy around how government chose the care amendment’s wording and questioned the lack of pre-legislative scrutiny.
“What led to the wording?” she asked.
This question is unlikely to get a meaningful response. (Likely because the real answer is in the attorney general’s office inside a file titled “legally avoiding responsibility for carers in a PR-friendly way”).
There is a plausible answer.
The Supreme Court in November last year decided it would hear a mother’s appeal against a High Court decision about her carer’s allowance claim.
The mother, who provides 24-hour care to her autistic 18-year-old son with Down syndrome, receives a reduced carer’s allowance because her partner earns €850 a week. Her lawyers have made legal arguments under the current constitutional care provision – which the government is asking the electorate to change this Friday.
In deciding to allow the mother’s appeal to be heard, the Supreme Court panel noted that the court had not extensively considered article 41.2 and had never examined it in the context of providing public funds to parents who are obliged to care for severely disabled children.
The government, just days after the Supreme Court ruling, announced that a referendum to amend article 41.2 would be held in March this year. Media reports at the time correctly suggested the cabinet had opted to ignore the citizens’ assembly and joint Oireachtas committee recommendations and instead propose what one law lecturer described as a “cosmetic change”. This includes, as we know, removing any reference to “economic necessity” from Article 41.2.
Were the Supreme Court to issue a judgment with a carer-friendly interpretation of article 41.2, the state would’ve been financially exposed. Did cabinet act to avoid this?
Now they try to sell this cosmetic change.
Yesterday social protection minister Heather Humphreys, with face straight, said that passing the amendment would mean more support for carers. If she, and her government colleagues, wanted to support carers they could. Humphreys can remove, overnight, the means testing of carer’s allowance, something that she has been asked to do for the past three-and-a-half years. She won’t.
Instead these organisations get a proposed amendment. The amendment has been worded with care – because avoiding legal responsibility requires it. Constitutional law lecturer Dr Eoin Daly last night, posting on X, explained the significance of the state’s decision to use the word “strive”. Its only mention in the constitution is in the Directive Principles of Social Policy, which Daly said is “a nice bit of fluff explicitly declared non-justiciable” – which is to say it can’t be relied on as a constitutional protection capable of court enforcement.
“Using 'strive' is important because it clearly signals the intent to enact a non-binding political commitment,” added Daly – fitting given the state’s continued lack of commitment to carers.
The amendment provides nothing more than words to, for example, a mother in receipt of €248 a week carer’s allowance who can’t work because her child relies on her 24/7 for their every need. And that’s all it was ever meant to give: words. Voting yes to this amendment will say that words are enough. Worse than that, it will endorse state apathy, both historical and continuing, for those who deserve more.
