A Ministerial briefing note released to Gript Media under freedom of information legislation states that the wording of the recently defeated Article 41.2 “Care” amendment to the constitution was designed to avoid placing into the constitution “a concrete and mandatory obligation to provide support.”
The note was part of a series of briefing notes, talking points, and Cabinet Committee papers reviewed by Gript.
It appears, based on the documents seen by Gript, that the wording of the “Care” amendment voted down by voters in the recent referendum was chosen in order to allow the Government to put forward an amendment which included a positive commitment by the State to support care whilst also minimising the risk that that amendment could be used before the courts to impose obligations upon the Government.
The wording chosen allowed the state to avoid placing into the constitution a concrete and mandatory obligation to provide support as opposed to the ‘reasonable measures’ language suggested by the Citizens’ Assembly, whilst also introducing doubt as to the actual impact of the word, both due to a lack of guidance on how the term would be interpreted by the Courts and due to the Government’s decision of how to translate the wording into Irish.
A paper prepared for a meeting of the Cabinet Committee on Social Affairs and Public Services in May of 2023 explicitly states that the “policy objective” of the Government in amending Article 41.2 was to allow the state to acknowledge “a role for the State in supporting unpaid care,” whilst also ensuring, “to the extent possible, that the Government and the Oireachtas retains the power to define the types and levels of supports.”
This is supported by advice from the Office of the Attorney General to the Government which stated that amending the constitution to require reasonable State support be given to “various forms of care, both inside and outside the house, both paid and unpaid” would amend the Constitution to “for the first time provide for constitutionally protected socio-economic rights, and it would do so by inserting into the Constitution concepts that are so vague and so broad in their scope that the judiciary would inevitably be called upon to interpret and clarify the extent of the right.”
This, according to the Office of the Attorney General, would have resulted in “a transfer of power from the legislature, and from the executive, to a judiciary which is unelected and unaccountable.” A development, they say, which “the Courts have themselves state in clear terms would be [sic] undesirable development.”
The statement that the ‘strive’ wording “is intended to avoid a concrete and mandatory obligation to provide support” comes from a briefing note for Minister McGrath, given to him before a meeting of the Cabinet Committee in November of 2023.
Cabinet Committees are committees “which are established by Government to assist it in carrying out the responsibilities of Government.” The membership of each Cabinet Committee comprises at least two Senior Ministers and may also include Ministers of State and the Attorney General.
Taoiseach Leo Varadkar, Tánaiste Michael Martin, and Ministers Eamon Ryan, Pascal Donohoe, Michael McGrath Catherine Martin, Heather Humphreys, Roderick O’Gorman, Simon Harris, and Helen McEntee, are all listed as current members of the Cabinet Committee on Social Affairs and Public Services.
It appears the Cabinet Committee considered five different options before settling on the “strive” variant that went before the people – the briefing note contains an analysis of six different options to deal with Article 41.2.
These options range from a simple deletion of the article, to the inclusive of an obligation on the state to “take reasonable measures” to support carers, to the ‘strive’ wording which was put before the people.
It is noted that the majority of these variants “will bring with them significant import and real effects will be enforced by the Courts.”
The “reasonable measures” variant was the first considered – the wording came from the Joint Oireachtas Committee on Gender Equality, which itself took the wording from recommendation 3 of the report of the Citizens’ Assembly on Gender Equality.
The briefing note for Minister McGrath states that the “reasonable measures” variant represented the greatest risk of “the State setting a very high threshold that it could quickly fail.” The briefing notes states that legal advice had been acquired which had “reiterated the very strong, definitive and mandatory nature of the obligation imposed” by this wording.
A variant of the “reasonable measures” option was considered, one which contained a specific note that it was the right of the Oireachtas to determine what constituted a reasonable measure. This option was disregarded following legal advice which raised “a number of risks that such a change may not operate as intended.”
A variant stating that the State “shall endeavour to support care relationships,” was also considered, and this option was at some point the preference of Minister Pascal Donohoe.
A document seen by Gript, laying out speaking points for Minister Pascal Donohoe for the Cabinet Committee meeting in November 2023, notes that the Attorney General had provided legal advice which “stressed that the obligation to ‘endeavour’ has significant import and real effects which will be enforced by the Courts.” The advice left “little doubt that the proposed wording [endeavour to support] would be relied upon in support of claims that the Constitution requires the State to provide, and/or support the provision of care.
One of the speaking points provided for Minister Donohoe was, therefore, to recommend that Article 41.2 be either deleted, without being replaced, or be replaced by a simple recognition of carers with no commitments by the State support said care.
This matches with the information present in the portion of the Attorney General’s advice to the Government which was leaked prior to the referendum by The Ditch.
The advice differs from the listed speaking points in that it argues that the usage of the term ‘strive’, rather than ‘endeavour,’ 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. The AG does, however, go on to state that there is “uncertainty as to the likely meaning and effect of an obligation to ‘strive’ to support the provision of care… and whether…it would be regarded as imposing a more onerous obligation than an obligation to “endeavour.”
An interesting note, contained within the Attorney General’s advice to the Government, is that the word ‘strive’ is to be expressed in the Irish version of the Constitution, as “Dréim”, which is an indirect translation.
Dréim can mean strive but can also broadly mean an aspiration or contention.
This is of extreme importance as Article 25.5.4 of the Constitution states that the Irish version of the Constitution has primacy over the English version if there is a conflict between the versions. This, the Attorney General says, “May influence the interpretation of the proposed amendment as comprehending a more aspirational commitment.”
It’s unclear why the Government chose to do this; if it was a poetic flair, an unthinking decision, a mistake, or a deliberate desire to frustrate potential litigation. What we can say is that the documents seen by Gript, and broadly detailed above, show that the Government was willing to invest a considerable amount of time and resources in attempting to find a way to ensure that they, and future Governments, would be insulated from the consequences of the passing of this amendment.