On 8th March 2024, Ireland held two referendums to amend the Constitution. One of these referendums sought to delete Article 41.2, which referred to women’s role in the home and to add a new Article 42B, which referred to the value of care within the home for society. This referendum suffered the largest defeat in Irish referendum history.
One of the prominent criticisms of the care referendum was that the provision was symbolic and would not improve the circumstances of those who give and receive care. Taking this critique as a starting point, this piece will seek to highlight a tension at the heart of symbolic constitutional change in Ireland. It asks: for whom do we change the constitution? For those affected by the issues or for governmental interests? I argue that in the case of the care referendum, the evidence suggests that the likely beneficiary of the referendum may have been the Government itself.
A brief history of Irish referendums
Since the 1970s, Ireland has held referendums on many large social issues. Of recent note is the 2015 referendum to legalise same-sex marriage, which made Ireland the first country in the world to do so by popular vote. Also, the 2018 referendum on abortion brought Ireland from one of the most restrictive abortion regimes to one of the more liberal abortion regimes in Europe. Following the abortion referendum, two further referendums were held in 2018 and 2019, which removed the offence of blasphemy and liberalised the divorce regime, both of which were relatively uncontroversial. There were no further constitutional referendums until the proposals on Family and Care.
The Development of the Care Proposal
Article 41.2 of the Constitution states:
1° In particular, the State recognises that by her life within the home, woman gives to the State support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
Since the Constitution’s enactment in 1937, Article 41.2 has been criticised for its sexist implication that a woman’s place is in the home. Despite this, the provision has had a relatively minimal impact on Irish law. It was successfully cited twice only to support conclusions that the state’s decision to treat deserted husbands less favourably than deserted wives for social security was not unconstitutional. Cahillane, in her comprehensive overview of the provision, concluded that: ‘it seems clear that as it stands this provision has no real use in law.’
From 1993 until the 2024 referendum, the removal of Article 41.2 had been recommended by eight different committees. Most reports recommended that Article 41.2 be replaced with a gender neutral statement which emphasised the importance of care in Irish society. There was considerable divergence of opinion concerning whether any proposed amendment should impose binding obligations on the state. The 2012 Convention on the Constitution was the first to recommend that the state be obliged to provide a ‘reasonable level of support’ to carers within and outside the home. Subsequent reports in 2016 and 2018 recommended a weaker formulation, citing the risk of creating a constitutional right to social welfare payments, which would curtail the Government’s power to decide how money is spent. Both the Citizens’ Assembly and the subsequent parliamentary committee recommended a stronger wording of a ‘reasonable level of support’. At several meetings of the interdepartmental group which developed the final wording, concerns were raised that the phrase ‘reasonable measures’ would create a higher financial ‘risk’ to the state, with the courts more likely to intervene in terms of resource allocation.
On 8th March 2023, the Government committed to holding a referendum on Article 41, which was scheduled for the same date in 2024. While the government proposal was heavily criticised by opposition, all major parties endorsed a YES vote. The proposed amendment was as follows: to delete Article 41.2 and add Article 42B:
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
As the campaign progressed, criticism of the proposal continued to mount. Support for the proposal reduced throughout the campaign, with a large drop-off in the final week. The final referendum turnout was 44% with the care proposal decisively defeated.
The issue of symbolic change
One of the more prominent critiques of the care referendum centred around the decision by the Government to choose the term ‘strive to support’, which implies a weak level of obligation on the state to provide support to carers. The proposal was accused of being tokenistic and an example of the State shirking its responsibilities.
The government’s proposal was criticised for being symbolic rather than providing new enforceable rights for carers. What makes a constitutional provision symbolic depends on how the courts choose to interpret the provision. It is not a binary choice between constitutional change with symbolic versus material impact, and it depends in part on the wording of the article. For example, the term ‘shall provide for’ in Article 42.4 has led to an ‘expansive approach’ to the extent of the state’s duty to provide primary education, although there is still discretion left to the legislature in terms of implementation. The term ‘strive to support’ only exists in Article 45’s directive principles, which are non-justiciable. Therefore, it remains to be seen how the phrase would be interpreted by the courts in an enforceable provision. The Attorney General’s leaked advice to Government notes that while there was ‘uncertainty’ regarding how the word ‘strive’ would be interpreted judicially, it was likely that the courts would see the provision as impacting the obligations of the state. However, Cahillane argued that ‘it is unlikely that its [Article 41.2] replacement will be any different, given that it contains almost identical language declaring that the State will “strive” to support care – which is not a legally-enforceable duty.’ Similarly, the Free Legal Advice Centre stated that: ‘It is unlikely to provide carers, people with disabilities or older people with any new enforceable rights.’
In its campaign rhetoric, the Government repeatedly emphasised that the provision was intended to provide a ‘positive obligation’ on the state to provide for carers. Even if the Government’s interpretation were true, any obligation created by it would likely have been minimal, and similar in effect to the current Article 41.2. Furthermore, it is documented in the Interdepartmental Group minutes that the cabinet was aware of the primarily symbolic value of the amendment.
It could be argued that the decision to hold any referendum on care would represent some commitment to the issue of care, as there is both a significant cost and risk in orchestrating a referendum. However, the intended commitment appeared to be directed towards symbolism rather than concrete action. Many actions could be taken to concretely improve the circumstances of carers and care receivers. Rather than legislating to provide better support, the Government chose to hold symbolic referendums on the issues, where the material impact for those affected is unclear.
It could also be argued that there is no justified criticism of replacing symbolism with symbolism. The existing Article 41.2 has, in practice, a negligible impact on women in contemporary Ireland. Similarly, the new Article 42B stood to provide little concrete benefit to care receivers and caregivers. I would argue there is a difference between removing a historic symbolic provision and entering a contemporary symbolic provision. The conservative ideology reflected in Article 41.2 is generally not reflected in contemporary Ireland, and therefore, its removal is a formality. In contrast, the present crisis in the care system stands in deep contrast with the statement in the care proposal. Therefore, the insertion of a symbolic provision leans closer to tokenism.
Constitutional change for whom?
A referendum to change the constitution has far-reaching effects, and many different actors can benefit from both the outcome and the process. Some actors which might benefit are the Government, opposition, NGOs/Advocacy Organisations, grassroots/social movements, corporations, the general public and those directly impacted by the issue voted on. This paper will focus on the government and those directly impacted.
In Ireland, the executive-controlled legislature holds the sole power to initiate referendums. The question for this paper is: when the government exercised this power, for whose benefit was the decision to hold these referendums made? It will not be one or the other; all interests may be considered to some extent. However, the question of who benefits from constitutional change is a relevant one, as it likely impacts the kind of proposals put forward. As the government has sole decision-making power, there is a public interest in analysing the extent to which its motivations are self-serving or serve the interests of other actors.
How did those directly affected stand to benefit from this referendum?
A clear rationale for holding a referendum on care would be to improve the situation of those giving and receiving care. In the context of more symbolic change, this rationale is weaker. Alternatively, it could be argued that those impacted would benefit from a statement of values on care. However, it is difficult to see the tangible benefit of this in the context of ongoing crises in the care system. Any indirect benefit from a societal appreciation of the value of care is likely outweighed by the difficult socioeconomic conditions which care receivers and carers face. Once this referendum failed, there was no commitment to rerun the referendum with better wording, nor were the issues addressed legislatively, which does not indicate a strong commitment to the concerns of those directly impacted.
Another explanation is that those affected could benefit from their voices being centred within the development of the proposal and in the campaign. This would ensure that the proposals were sensitive to the needs of these groups and also allow the campaign to act as a platform for these individuals. However, it does not appear that lived experiences were centred in the development of the proposals, as the vast majority of witnesses and submissions came from advocacy organisations, rather than individuals directly affected. The Citizens’ Assembly, at the hearings specifically on constitutional change, did not hear from the lived experiences of carers or care receivers. In the prior hearings on care, conversation centred on the experience of care givers, with care receivers’ experiences ‘refracted through experts and advocates.’ In the subsequent parliamentary committee hearings, only experts and advocacy organisations were called to witness.
Care receivers’ voices came to the fore at the campaign stage, with many advocating a NO position to the referendum. In one sense, it could be said to be beneficial to have the experiences of care receivers garner public attention. However, it is also likely distressing to have to advocate against a referendum proposal which was developed with the exclusion of affected groups. The decision to use advocacy organisations could be seen as a way to shield those directly impacted from this burden. However, such a position could be taken as condescending and disempowering. Either way, it appears that those advocacy organisations did not necessarily appreciate the overemphasis on carers rather than care receivers, as it was only during the campaign that the perspective of care receivers emerged publicly.
Overall, the majority of the interests represented at all stages of development were elite advocacy organisations. As expected, these organisations consult with the groups they represent and likely act in good faith, but their interests are still different to those of the individuals directly impacted – for example, an NGO must be concerned with funding and maintaining its position within the process of constitutional negotiation. Furthermore, many of these organisations are single-issue and do not necessarily consider issues of intersectionality, such as gender and disability or economic status.
I have argued that there is little evidence to suggest that the referendum in design and practice stood to benefit those directly impacted by care issues. The proposal was unlikely to have had a material impact on the lives of those affected, and the process prioritised advocacy organisations over lived experience. The evidence instead suggests that the motivation was to pursue primarily symbolic change in care. There is no constitutional barrier to improving the situation for carers and care receivers, yet the government pursued symbolic constitutional change on the issue.
How did the Government stand to benefit from symbolic constitutional change?
There is a broad literature on the capacity for referendums to be exploited for the benefit of governments. Successful referendums can offer legitimacy to governments as a metric of public trust and confidence. Referendum success may be employed politically as a sign not just of approval of a policy, but also implicitly of approval of a leader or party. It is also on this basis that unsuccessful referendums may prove embarrassing to political leaders who have campaigned for a ‘yes’ vote, on the grounds that the people by proxy disapprove of the government. As such, following the defeat of the Family and Care referendums, Taoiseach Leo Varadkar described the defeat as ‘two wallops’ for the coalition government.
It is commonly argued that the Irish referendum process, which is codified by the Constitution, leaves less room for government manipulation compared to less regulated states, such as the UK. Gallagher argues that government control is reduced as there is less choice over whether certain issues can be decided with or without a referendum. In the case of abortion, for example, it would have been difficult for the Government to legislate for abortion access without removing the 8th Amendment to the Constitution. However, Daly points out that even in a regulated context, there is ‘considerable political discretion as to the scope of constitutional amendment itself.’ The care referendum exemplifies this point. In this case, the Constitution as it stood was not blocking any particular action, and therefore, there was no immediate necessity to change the Constitution. In contexts such as these, the Government’s scope for manipulation is much broader.
Referendums provide an opportunity for governments to construct favourable outcomes. These outcomes could be material policy goals, such as achieving European integration. However, in cases of symbolic constitutional change where legal effects are minimal, the desired outcomes may be less tangible. For example, Daly argues that ‘referendums offer a source of symbolic political power that is easily instrumentalised, in particular by those who have the power to initiate them.’ He argues that in Ireland, referendums have played a part in constructing neoliberal identity in the wake of the 2008 financial crash and recession. This identity-formation function is reflected in the Government’s statement before the care referendum: ‘our constitution isn’t just a legal document. It’s also a statement of our values, how we see ourselves and others.’ The succession of liberalising referendums can be seen as aiding the construction of neoliberal identity in Ireland, i.e. the development of a state that protects individual social rights while pursuing policies such as privatisation and austerity.
The care referendum can be viewed through a similar lens. As a symbolic referendum intended to liberalise the Constitution, it could be seen as an exercise in further developing neoliberal identity. The decision to hold the referendum on International Women’s Day shows a cognisance of the optics of a successful referendum, and potentially a desire to portray Ireland globally as a forward-looking country that fosters liberal values. When taken in conjunction with the ongoing privatisation and commercialisation of care in Ireland, it fits with Daly’s argument that recent referendums could be part of the ongoing process of neoliberalisation, where socially liberal values are enshrined in the constitution while neoliberal economic policies are pursued. There is also evidence that the referendum result was indeed taken as a statement of shifting national identity. Following the referendum, backbenchers commented that the referendum was a sign to return to ‘core values’ rather than continue to focus on ‘social issues.’ This revised ethos is reflected in the commitments of the new Programme for Government, such as increasing police numbers and support for business.
A final reason to hold a symbolic referendum would be due to capitulation to opposition pressure. Undoubtedly, many opposition parties advocated strongly for referendums to be held on Article 41. The Government may have come under pressure to be seen to be acting on the recommendations of the Citizens’ Assembly and may have seen a symbolic referendum as a relatively low-cost means to assuage opposition calls for the referendums.
Conclusion
Comparing the potential benefits for each group, the balance tips in favour of the Government. There was no clear benefit to be gained by those directly impacted by the care referendum, whereas a symbolic referendum on care presented opportunities for the Government to create favourable political outcomes and manage its own political optics.
While constitutional liberalisation appears to be off the agenda for now, it is essential to continue to critically examine political motivations for constitutional change. Particularly where symbolic policy statements may contradict policy actions. Given our constitutional structure, it is tempting to believe there is little room for Government manoeuvring, compared with less codified states. However, the concept of the symbolic referendum leaves significant leeway for Government control and thus warrants ongoing scrutiny.
Reidín Doyle is a PhD researcher at the School of Law, Trinity College Dublin. Her doctoral research concerns the relationship between constitutional change and representative democracy in Ireland. Before commencing her doctoral research, Reidín worked for a member of the Irish parliament, which inspired her interest in the political role of constitutional referendums.
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