Previously unpublished advice from the attorney general, Rossa Fanning, informed ministers that it is “difficult to predict with certainty” how the Irish courts would interpret the concept of “durable relationships” – and that the new family provision could “be relied on in the context of immigration and surrogacy“.
The Attorney General’s advice was that: “in the absence of clear guidance within the constitutional text or by way of legislation, it is difficult to predict with certainty how the Irish courts would interpret the concept of ‘other durable relationships’.
“The courts may well address the question of what constitutes a ‘durable relationship’ on a case-by-case basis, having regard to the facts and circumstances of the particular case and the evidence before it.”
Legal advice leaked to bolster the Yes campaign shows the Attorney General advised that it is “difficult to predict with certainty” how the Irish courts would interpret the concept of “durable relationships'."
Yet throughout Government ministers said it was clear. #VoteNoNo— Michael McNamara TD (@MlMcNamaraTD) March 7, 2024
Regardless of the referendum outcome tomorrow, the Attorney General's leaked advice to the Government makes clear beyond any reasonable doubt, in my view, that Ministers actively mislead the public about the potential legal consequences of a Yes vote.
— John McGuirk (@john_mcguirk) March 7, 2024
The Attorney General’s advice was published in full by the Ditch website this evening.
The letter also informed Minister for Children Roderic O’Gorman that there is legal “uncertainty” about the government’s proposed care amendment to the constitution, and that there is “lack of guidance from the courts” about how the word “strive” would be interpreted.
“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,’” the Attorney General wrote in the letter addressed to Minister Roderic O’Gorman, on 8 December, 2023 copying Minister Eamon Ryan, and Taoiseach and Tánaiste, Leo Varadkar and Michéal Martin.
He said: “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 added.
“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.”
Polls in the referendum open tomorrow on two proposals to change the Constitution in relation to recognition of work in the home and the provision of care, and on the family.