Michael McNamara (Clare, Independent) | Oireachtas source

By reference to the constitutions that existed in Europe at the time, it was a very forward-looking Constitution. Many, not all, aspects of it are still forward-looking and can be interpreted in a manner that is relevant to modern life. This is one of the aspects of it that is not but equally, it is one of the aspects of it that has been interpreted to be virtually meaningless because I suspect that most families now require two incomes to support them, notwithstanding this provision. I do not know if there have been that many cases where it has been cited.

I think there may have been one case in which it was relevant to the determination of the case. I would just like to know what the Minister means by "strive". I brought up what the Minister meant before and he said it will mean this, because the courts have interpreted it up to now as this. If, however, we change something, we expect, surely, that the courts will interpret what we change differently from that which was there before because we have made a change. I was reminded in the time between then and now that Adrian Hardiman predicted during the debates on the eighth amendment that it would lead to travel injunctions. He was derided by some for making that prediction, but the history is as the history is. I just do not accept that anybody in this House can predict how the courts will interpret something. A very senior politician and statesman from my constituency at the time the eighth amendment was being introduced was asked about it by those who were seeking to have it introduced. He said it would be a huge mistake to do so from their perspective. We know that the Oireachtas, and TDs generally, are a conservative body of people, predominantly men, so we move very slowly. We know equally that the courts are less conservative, and it will fall to the courts to interpret what an amendment means. That is, ultimately, exactly what happened. I think that for many who wanted the eighth amendment introduced, it did not exactly ensure what it was they sought to bring about and, in fact, arguably, led to an opposite effect than had they just sought to change things by way of legislation.

I therefore simply do not accept that it is possible to predict what certain words will mean, like when we talk about a "durable" relationship. Which relationships will be covered? When we say the State will "strive" to do something, what will the courts interpret that to mean? What I would like to know is what the Minister envisages because that, at least, is something, even though it is ultimately, I would have thought, irrelevant what anybody in this House thinks it means because it will fall to be determined by the courts, as with every other amendment. It is for that reason that, in general, I do not believe in holding referendums unless they are absolutely necessary. First, they cost a lot of money, second, they cause a lot of confusion and, third, they lead to a lot of litigation. We know what every provision in the Constitution means. Every single provision up to now has been heavily litigated, and we know that when changes are made, they will be heavily litigated. We know what each of us would like and we might not all agree on how we would like the courts to interpret something. Ultimately, however, it is for the superior courts to interpret what a provision will mean. When we say "strive", then, what does the Minister want that to mean, and what legislative changes will he make? It is all well and good to throw out a constitutional amendment, but what legislative changes does he envisage introducing in order that the State or the Government strive to bring this about? If he does not propose any legislative change, if he does not think any is necessary or appropriate, then he is saying, "Vote for this, but it is meaningless because we do not need to make any changes as part of our striving."

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