Irish referendum ‘a recipe for chaos and uncertainty’ says former Attorney General

The veteran politician Senator Michael McDowell SC has laid bare the legal mess that could arise from voting in proposed changes to the Constitution.

The former Tánaiste and Attorney General, has called for a No vote in both referendums. In an article for The Irish Times he explained that the two referendums are unnecessary.

He was particularly scathing about amending a key clause on the family to add the phrase “other durable relationships” alongside marriage, calling it “a recipe for chaos and uncertainty”.

‘Durable relationships’

On 8 March, citizens resident in the Republic of Ireland will be asked to vote in two referendums on changing the Constitution.

The first, on family, places “other durable relationships” on an equal footing with marriage.

No definition of “durable relationships” is provided, but the Chairwoman of the Electoral Commission, Judge Marie Baker, suggests it could include people who receive joint Christmas cards and wedding invitations.

The second, addressing ‘care’, removes protections for mothers who wish to care for their children at home.

Protections for mothers

Snr McDowell is a Senior Counsel and served as Attorney General of Ireland from 1999 to 2002.

He warned that the ‘care’ amendment would “delete provisions of the Constitution which have in the past been relied on by the Supreme Court”.

The former Attorney General gave examples of them invalidating “income tax laws that were discriminatory against married people and in holding that husbands with adequate means could not demand that mothers be obliged to work outside the home where it was their choice to look after their children”.

a recipe for chaos and uncertainty


But his greatest criticism was reserved for the proposal to extend the constitutional meaning of family.

“This is a recipe for chaos and uncertainty arising from the Government’s proposal to ascribe to the courts the function of defining what is meant by ‘other durable relationships’.

“We are being asked to redefine the family so as to allow its meaning to be decided in future cases where disputes between parties are brought before the courts.”

He continued: “it is hard to imagine precisely how the courts are to interpret the proposed amendment in any rational way”, adding: “Dissolving the legal concept of the family in a veritable soup based on litigation outcomes in hard cases is neither necessary nor advisable”.


The veteran politician concluded: “The bottom line is that these referendums are not necessary to achieve any policy goal; they bring damaging and costly uncertainty into whole swathes of law, from pensions, family law, tax law, migration law, residence law and succession law – to name but a few”.

they undermine marriage and remove protections for mothers who wish to care for their children at home

The Christian Institute’s Ciarán Kelly commented: “The two referendums seek to introduce seismic changes to the Irish Constitution.

“Together, they undermine marriage and remove protections for mothers who wish to care for their children at home.

“Indeed, they remove the only reference to ‘mothers’ in the Constitution, devaluing their unique and essential role in society.”

Family and Care

Ireland faces two referendums on 8 March.

The first proposes to change Articles 41.1.1 (by adding the words in bold) and 41.3.1 (by deleting the words that have been crossed out):

Article 41.1.1: “The State recognises the Family, whether founded on marriage or on other durable relationships, as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”Article 41.3.1: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”

The second proposes replacing Articles 41.2.1 and 41.2.2 with an entirely new clause:

Article 41.2.1: “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.”Article 41.2.2:“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.”
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.”