Care referendum unlikely to lead to justiciable rights – academic

The public will vote on Friday on proposals to change the constitution about the meaning of family and the role of women.

The family amendment proposes extending the meaning of family beyond one defined by marriage and to include those based on “durable” relationships.

The care amendment proposes deleting references to a woman’s roles and duties in the home, and replacing it with a new article that acknowledges family carers.

Dr Daly said the lack of energy surrounding this referendum reflects a “certain degree of indifference and confusion” over the questions being asked.

“I suppose it’s also reflects the the lower stakes in terms of the outcome in terms of practical impacts that would be compared to those previous referendums,” he told PA news agency.

“The campaign has picked up in terms of controversy, more so in the care referendum, people understood it at the start in that it was just about the abolition of the old clause and then people began to notice the new text being proposed and wonder about it.

“That gives some new energy to the whole campaign around that.”

It might have some new consequences, but they're likely to be very modest if they happen at all. It won't really create any obvious new entitlements on the ground

The proposed changes to the care referendum has attracted criticism from disability activists, who claim that it will leave care as the responsibility of family members.

“The opposition has actually come from civil society groups, spontaneous and ad hoc groups, activists, rather than from any kind of obvious political party or a lobbyist coalition against either the amendments,” Dr Daly added.

“I think the care amendment has sparked more opposition on what you might call the left or maybe in progressive circles, because it’s seen as embodying a very conservative idea of care and privatising care or reflecting the idea of care being essentially a private responsibility and the state having very much a subsidiary role.

“The wording in a sense actually reflects the status quo in society.”

He said the amendment will unlikely effect any changes to the nature of care.

“It’s really a kind of a symbolic statement of what the state values in terms of care. It’ll probably end up being just a dead letter,” he added.

The bread and butter of family law is contained in legislation. What it's going to do is to widen the definition of the family in the constitution but that doesn't in itself necessarily change the picture on the ground

“What’s more than likely and almost certainly, it won’t lead to the creation of any justiciable rights or enforceable rights.”

The public will also vote to change the constitutional definition of family, to include those in a “durable” relationship.

While the government has not given an explicit definition of “durable”, ministers say it will include co-habiting couples and single parent families.

Dr Daly said there has been a lot of “scaremongering” around the meaning of durable.

“My analysis of the family amendment is that it will be a very modest change,” he said.

“It might have some new consequences, but they’re likely to be very modest if they happen at all. It won’t really create any obvious new entitlements on the ground.

“The Constitution isn’t where most day-to-day family rights actually come from.

“The bread and butter of family law is contained in legislation.

“What it’s going to do is to widen the definition of the family in the constitution but that doesn’t in itself necessarily change the picture on the ground.

“It’s not the case that unmarried mothers don’t have rights. It’s not the case that children born outside marriage don’t have rights.

“In practice, at the ground level the decisions around children and around family, they’re driven by more by practical consideration more than a question of whether or not marriage exists in a particular setting.

“It’s not going to be anything radical and the thing people often fail to realise is that they’re not going in blind because there already is a framework for recognising the rights of non-marital families and that’s in the European Convention of Human Rights.”

“What matters is whether or not there’s a de facto family relationship and that’s very hard to define exhaustively or pin down exactly what that is.

“But it’s not going to be ‘throuples’ or your college flatmates or some nonsense like that.

“It’s not going to be the case that somebody takes inheritance because someone had an affair with someone else. All of those are kind of scare stories you see on social media, they’re all nonsense.”