This week, Fine Gael released a video of Taoiseach Leo Varadkar answering common questions and objections to the upcoming Care and Family referendums on Friday, including an attempt to clear up the confusion around what a “durable relationship” is exactly.
“[Durable] is a word that already exists in legal jurisprudence there in European law,” the Fine Gael leader said, adding, “That’s the reason why we chose it.”
Now, what the Taoiseach is saying here is quite clear. Many people have raised concerns that the idea of a “durable relationship” is so vague and nebulous that it could mean almost anything, and would thus potentially lead to legal chaos if recognised in the Constitution. By way of rebuttal, Varadkar is arguing that this is not the case, because “durable relationships” are already referred to in EU law. Therefore, it’s a recognised legal term that has specific meanings which are widely understood by legal experts. Which, on its own, would be a very fair argument, if one was to leave it there and scrutinise the matter no further.
However, a problem arises when one considers that this was totally contradicted by Equality Minister Roderic O’Gorman in the Dáil just before Christmas.
In mid-December, O’Gorman – who has a legal PhD and was previously a lecturer in EU law at DCU – insisted that the definition of “durable” that the government is proposing “is not influenced” by the EU definition.
“It is important to say there are many words used in EU and Irish law that have different meanings,” O’Gorman said.
“For example, in EU law, a ‘regulation’ is one of its strongest legal tools, whereas in Irish law a ‘regulation’ is quite low down the pecking order.
“The definition of ‘durable’ that we are seeking to put into the Irish Constitution is not influenced by the EU law definition of ‘durable’.”
He added: “…There is that term ‘durable’ in European law but Irish constitutional law can have a different meaning. Most importantly, the wording in the citizenship directive only refers to cohabitee relationships.
“We are very clear, when we are amending our Constitution to include durable relationships, that we are talking about cohabitee relationships and one-parent family relationships as well. We are very clear on that. Looking at the term ‘the family’ in other constitutional articles, particularly Article 42, which is the article on the family, it is very clear that the term ‘family’ includes children.”
The Taoiseach says the idea of "durable relationships" is one that “already exist in European law – that’s the reason we chose it.”
But O'Gorman previously said the government definition of "durable" is "not influenced by the EU law definition" and has a "different meaning." pic.twitter.com/ScyfqbtjDw
— Ben Scallan 🇮🇪 (@Ben_Scallan) March 6, 2024
So O’Gorman clearly states, in no uncertain terms, that the EU law definition of “durable” did not influence the government’s proposed definition, and that the Irish definition means something very different.
So why is the Taoiseach falsely insinuating, in a very misleading fashion, that “durable” in the Irish constitution will simply adopt a run-of-the-mill, widely agreed-upon EU definition, when his own Minister in this area has already confirmed that this is not the case?
Alas, I seriously doubt we will get an answer to that question before polling day, or indeed ever. But it’s still worth asking at the very least.