Referendums, referendums … but what are they all about?

Dr Conor O’Mahony

We love a good referendum here in Ireland. We have had two in 2018, and 12 in the last 10 years; and now it seems certain that we will have several more in 2019.

The Government has committed to holding two referendums in May (coinciding with the local and European elections): one to reduce the constitutionally-prescribed four year waiting period for divorce, and another on voting rights in presidential elections for Irish citizens living abroad. A further proposal on public control of water services is under active consideration, possibly for the same day.

The proposed referendums seem unlikely to be as momentous and divisive as recent polls on abortion and marriage equality; but under the surface, there are quite a few issues to be resolved before they can proceed.

For example, should the divorce amendment reduce the waiting period stipulated in Article 41 to (e.g.) two years, or should it give the Oireachtas full discretion to set the qualifying period of separation?

If past history has taught us anything, it is that entrenched constitutional provisions are not the place for detailed and prescriptive rules on matters of social policy. A Constitution should state broad principles, while leaving points of detail to the Oireachtas.

Including the four year waiting period in the divorce amendment in 1995 was a political manoeuvre designed to ensure the passage of an amendment that had been rejected nine years earlier. By imposing a high hurdle for prospective divorcees, fears of the floodgates were allayed. But divorce is now an accepted and uncontroversial part of Irish society, and divorce rates remain low by international standards.

There is broad support for reducing the period; but it makes no sense to replace it with one that might require further referendums in the future. If the people were willing to trust the Oireachtas to legislate on the far more sensitive issue of abortion, they are surely willing to extend this trust to the discrete issue of the waiting period for divorce.

On the issue of water services, the issue is more technical in nature. Advocates of the referendum propose a wording guaranteeing that the public water system “remains in public ownership and management”. The Attorney General is concerned that the reference to “ownership” might create difficulties for private water schemes or for future public-private partnership arrangements. Whether an alternative proposal that focuses on “control” rather than ownership will be sufficient to allay concerns about potential privatisation of water services remains to be seen. (I discussed this issue with Eoin Ó Broin TD on Morning Ireland on November 21.)

Other proposals are in the background. It has long been agreed that there should be a referendum on removing the reference in the Constitution to the life of the woman in the home; but the poll was deferred when politicians failed to reach agreement on whether to simply delete this provision or to replace it with a gender-neutral version.

This week, the Oireachtas Justice Committee put forward two alternative options: one was an alternative wording for the provision, and the other was to refer the issue to the Citizens’ Assembly for further debate on the form that any alternative wording should take.

The latter is a rather feeble recommendation. The issue was previously debated in full by the predecessor to the Citizens’ Assembly (the Constitutional Convention), and this was followed by a detailed report by a Task Force on implementing the Convention’s recommendations. It is difficult to see what further discussion at the Assembly would add. The Oireachtas Committee is the body charged with progressing the issue; we saw how a similar Committee managed to formulate a reform proposal on the Eighth Amendment in spite of deep division.

Article 41.2 is offensive to many due to its references to the woman’s “life within the home” and to mothers’ “duties in the home”. But in truth, sexist as it may be in its rhetoric, the provision is a dead letter. It has no tangible impact on law or policy, and it is likely that replacing it with a gender-neutral dead letter would be similarly devoid of concrete impact.

Of course, the exercise would be of symbolic value as a gesture to carers. But there is a danger that a purely symbolic provision might do more harm than good. Constitutional scholar Dylan Lino cogently argues that enacting symbolic provisions with no concrete effect repudiates their constitutional significance and ignores real grievances of excluded groups. Carers may find that a constitutional amendment is a sop to their legitimate demands that changes nothing while offering politicians an “achievement” to hide behind.

At the same time, the possibility of a stronger provision that would allow for an enforceable right to support and resources is unlikely to secure the support of the Oireachtas; and any efforts to include enforceable socio-economic rights in the Constitution should really be considered in the round and not on an ad hoc basis focused on individual rights.

If sexism is the problem with Article 41.2, and the Committee cannot agree on a replacement, there is a quicker and cleaner solution: simply delete it.

Dr Conor O’Mahony is a senior lecturer in the School of Law at University College Cork.

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