Constitutional replacement of women in the home reference must be ‘legally robust’ to avoid unintended consequences

Justice Minister Charlie Flanagan has warned that replacing a reference to women in the home in the Constitution with another wording could lead to unintended consequences similar to the “abortion debacle”.

Mr Flanagan says he wants the proposed referendum in October to go ahead but that the reference to women should be simply deleted as a replacement would need to be “legally robust”.

In an interview with the Irish Examiner, he defended the Government proposal to delete Article 41.2, despite calls for a gender-neutral phrase or reference to carers to replace it.

There are doubts the referendum will go ahead because of disagreement over deleting the reference to women in the home or replacing it for something instead to replace this.

Members of the women’s caucus in Leinster House want options debated while Disabilities Minister Finian McGrath, who sits at Cabinet, has said he would like a reference to carers inserted instead.

The Oireachtas justice committee is expected to scrutinise the referendum wording in a meeting early next month. It is unclear if this will allow enough time for the order for the vote to be moved and for a referendum commission to also conduct its work.

Asked if the vote would go ahead, Mr Flanagan said: “My civil law priority for the autumn session will be the holding of the referendum. My preference date and that of the Government will be the last Friday in October when it is anticipated the presidential election will take place.”

This is particularly timely with the 100-year anniversary of women’s suffrage. I want that referendum this year. However, I acknowledge our minority-government situation.

"And I understand the justice committee is meeting on this issue. I would encourage the committee and my colleagues to facilitate this taking place on the planned date.”

The attorney general has advised that any insertion around guarantees in the home or the role of someone such as a parent or carer could have unpredictable legal consequences, depending on the courts.

This has been interpreted as possibly leaving the State with financial implications. However, no such test case based on women in the home has ever been taken.

Nonetheless, Mr Flanagan has compared a replacement reference in the Constitution as having similar implications to the 1983 Eighth Amendment, which restricted abortion.

Everyone agrees that Article 41.2 is not fit for purpose , is outdated, it needs to be deleted. I am very concerned, as justice minister, the unintended consequences of replacing deleted words with another form of wording.

“We have only got to look back to the 1980s and the abortion debacle since then. I don’t want any unintended consequences. My preference is for straightforward deletion.”

The Government instead is proposing that issues around the rights of carers or those in the home should be protected in legislation and that this should be analysed by the citizens assembly. An alternative insertion into the Constitution is not an option, says Mr Flanagan.

“I accept that there is a school of thought that would like to see a form of guarantee or acknowledgement of the work of carers. It is a separate and distinct issue. It is one for the Citizens Assembly. I would like to see that Citizens Assembly up and running in parallel with the referendum campaign.

“Our Constitution, as a body of law, is quite a complex document. We have seen a number of incidents where wording was inserted in the Constitution which had consequences which were different to those that were intended.

“We saw, for example, the Eighth Amendment had the affect of dividing Irish society for over 30 years. Any wording that is inserted in the Constitution needs to be legally robust.

“In the case of 41.2, I’m not convinced that there is an appropriate level of wording that is necessary to go into the Constitution.”