Prof Gerard Casey posted a most interesting thread on X yesterday regarding the definition of a phrase which, because of the two referendums being held on March 8th, is now attracting significant public attention.
The government is proposing to amend references to “the Family” in the Constitution – deleting the reference to the institution of Marriage “on which the Family is founded”, and then describing families as being “founded on marriage or on other durable relationships”.
This phrase, “durable relationships”, has led to issues being raised which the government likely did not expect in the debate – such as the possible impact of the change on immigration.
Fine Gael TD, Neale Richmond, certainly set the cat amongst the pigeons inadvertently or otherwise, when he told The Tonight Show that changing the definition of family was a “key point” which would have “serious consequences” for “immigration law” in relation to “family reunification”.
For those that missed it #TonightVMTV, here's minister Neale Richmond admitting that redefining the family to be based on a "durable relationship" will have a considerable impact on immigration.#VoteNoNo https://t.co/n4NwODPJcJ pic.twitter.com/rG08htZHdp
— Keith Mills (@KeithMillsD7) January 31, 2024
While the government has warned against ‘red herrings’ being raised, Senator Michael McDowell also pointed to officials warning the Cabinet that the new definition “could lead to increase in people seeking reunification with family who emigrated to Ireland.”
The former Attorney General said that was “entirely naïve of the government to think that the extensive group of lawyers who act of behalf of asylum seekers would not seek to have those rights asserted.
In response to questions about what “durable relationships” might mean, the Chair the Electoral Commission, Ms Justice Marie Baker said the interpretation of what was a durable relationship would be somewhat subjective.
““Its durability can sometimes be how you are treated by other people. Are you are you invited as a couple to weddings? Do people send Christmas cards to both of you? These are the indicators of your commitment to each other,” she said.
That didn’t seem to add much clarity, with all respect to the learned judge. The government says that the courts will decide what “durable relationships” means – but only after the referendum is passed, obviously.
“Lots of people have all sorts of durable relationships – business relationships, for example, that might go on for decades. Nobody’s going to be able to drop down to the courts and say that makes them a family,” Leo Varadkar insisted at the launch of Fine Gael’s YesYes campaign.
Again, that doesn’t seem like a very concrete answer to give to voters who are, after all, being asked to amend the country’s foundational legal document.
But, as Prof Casey pointed out, perhaps that certainty simply doesn’t exist. “Don’t know what a ‘durable relationship’ is? Well, you’re not alone,” he wrote.
He gathered the following comments on ‘durable relationships’ from the Dáil record, mostly from TDs who are campaigning for a Yes vote.
Ivana Bacik, Labour leader
“Durable relationships…is not a phrase which has that precise and established legal meaning which I think we need.”Holly Cairns, Social Democrats leader
“What exactly is being defined as a durable relationship under the law? For example, at what point does a couple in a relationship come under the protection of Article 41? What are the implications for the application of taxation policy, social welfare payments, joint income assessments, succession, family law and mortgages, to name just a few areas?”Jennifer Carroll MacNeill, Fine Gael TD
“It [durable relationships] is not a constitutional concept that I have ever seen. I questioned what it meant. It is really important that we tease this through now because it is naturally going to be a question later. What is durability? Is it about commitment or enduring?”Sorca Clarke, Sinn Fein TD
“The word ‘durable’ is peculiarly odd and vague in a constitution…We need assurances that this language will not cause legal issues or loopholes. Ambiguity is not much use. We should have clear and defined wording.”Verona Murphy, Independent TD
“The proposed amendment to the Constitution includes the words ‘durable relationships’. Marriage is a legal contract that is clearly defined and easy to understand. Therefore, we refer to marriage in the Constitution and it is legally clear what is being referred to. However, the phrase ‘durable relationships’ is open to interpretation, whomever you discuss it with. Is it a good idea to insert a clause in the Constitution which contains a very subjective term?”Catherine Connolly, Independent TD
“I have the greatest difficulty with the word ‘durable’. If I take it on a personal basis in my own experience, I might apply the term ‘durable’ to one particular relationship and not another that was much longer than a shorter relationship. I do not know about that word. It needs to be teased out.”
This seems completely bonkers. Why would Labour or Fine Gael or the Soc Dems or Sinn Féin support an amendment which its own leaders and representative’s find “odd and vague” or lacking in “precise and established legal meaning”.
As Michael McDowell wrote: “We are being offered no explanation as to what ‘other durable relationships’ means and are being told that it will be up to the courts to decide it meaning in future.
And he observed: “We are simultaneously offered bland assurances that nothing will really change and passionate claims that the amendments are important.”
That inherent contradiction is obvious everywhere: we are being told the change is radical and necessary and important and progressive – yet concerns regarding its impact on immigration or family law or marriage are waved away as being matters to decide afterwards.
“The best lack all conviction, while the worst are full of passionate intensity,” as Yeats wrote: a passionate intensity for an undefined term lacking certainty and legal meaning.
“Is it a good idea to insert a clause in the Constitution which contains a very subjective term?” asked Independent TD Verona Murphy. That’s a good question with a fairly obvious answer.