de Londras on Reflection, Rapidity and a Children’s Rights Referendum

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The proposed children’s rights amendment to the Constitution offers much material for discussion in terms of scope, substance and process and these questions are considered in the other contributions to this blog carnival. My intention in this contribution is to take a step back and consider the importance of having a reflective, reasoned and open period of debate on the wording of the proposals before progressing to a formal constitutional referendum. The risk, after a long period of committee-based consideration and consultation such as that which has taken place around these proposals (even if that consultation was somewhat limited in various ways), is that the wording as proposed would be presumptively considered to be the final wording for the referendum. In such circumstances the debate would likely be dominated by somewhat polemic and positional viewpoints on the value and risks of separately enshrined children’s rights and away from the important question of what kind of language and constitutionalist value relating to children we as a people want to enshrine in the Bunreacht.

This danger is exacerbated in the context of children’s rights in Ireland by the particular social context in which the proposed wording has emerged. The recent past has brought to public attention the neglect and abuse suffered by children in Ireland at the hands of institutions to whom their care was entrusted, particularly institutions run by religious orders. The scale and extremity of the abuse and neglect that has been exposed has put the vulnerabilities experienced by children into sharp relief. In addition, the position of children who are being cared for within the family has also been brought into public consciousness in cases and controversies surrounding matters such as parental refusal for blood transfusions, medical treatment, access and guardianship, legal protection for the child’s relationship with unmarried fathers and so on.

As a nation we have been bombarded with revelations of the very particular types of rights violations that children can experience and we have, it is fair to say, been outraged. One of the areas in which the general discourse has concentrated is understandably the position of children under the Irish constitution as it stands and, as a result, constitutional change has been mooted as a solution. When placed in the context of an impatience for action and a protracted process for production of the proposals, recognising a constitutional deficiency and agreeing that constitutional amendment is required can obstruct constructive debate about the vision that we as a nation want for children’s rights within our constitutional framework. Although they may sometimes be dismissed by human rights lawyers as perspectives emergent from a particular ideological standpoint, the views of influential social commentators such as John Waters on the proposed referendum serve the important function of reminding us that this (as much as any other) proposed amendment asks us as a people to think not only about the particular matter at hand but also about the values and structures we want reflected in our constitutional framework.

Momentum may well be an important consideration in the context of this or any constitutional referendum, but reflection ought also to be seen as important and we must, as a nation, reflect on the proposed wording for the referendum and on the constitutionalist values that we want to communicate through our Bunreacht. By means of example of why debate on the proposed wording is important, we need only to look at the first phrase of the proposed amendment, that the State would “cherish all children of the State equally”. As a matter of principle, we need to consider whether we want to include a rhetorical statement of this nature in our constitutional text. In the context in which this process is taking place, we in 2010 may well be able to say that this is rhetorical and is intended as a statement of broad principle; perhaps even non-cognisable. But what will this phrase mean in forty or fifty years time? Will it mean that the State must treat all children equally? Will it mean that the State must protect all children equally? Will “children of the State” mean all children within the territorial jurisdiction of the state? Or all children within the care of the state? Or all children within the control of the state whether within the territory or not? Or all Irish citizen children? Such questions and a focus on this phrase may seem pedantic or even unhelpful but a primary lesson that any first year constitutional law student learns is that hard cases on ambiguous constitutional provisions make for complex and sometimes problematic law. Moreover that law would have a constitutional status that would cause it to have a pervasive impact on future litigation, future advice of Attorneys General and even possible future referenda.

We must, therefore, ensure that the understandable desire we feel for the protection of children in constitutional terms and the difficult history of national neglect, abuse and exploitation of children from which these proposals at least partially emerge, do not seduce us into progressing swiftly towards a referendum on the wording as proposed without a rigorous debate at this point. Constitutional change is important, difficult and to be undertaken with care. It requires a thorough, respectful and values-related public discourse that we risk sacrificing in the context of the children’s rights referendum.