The Deliberative Wave Crashes

Following the recent referendum defeats in Ireland, it's time for a re-examination of Citizens' Assemblies

Photo by Sime Basioli on Unsplash

Citizens’ Assemblies have become increasingly popular in Ireland over the last ten years, associated, as they are, with the passing of the same-sex marriage referendum in 2015 and with the ‘Repeal the Eighth’ referendum in 2018 that resulted in the legalisation of abortion. The more recent Citizens’ Assembly on Gender Equality recommended the two referendums that took place in Ireland in March 2024 which were resoundingly defeated. The recent wave of Citizens’ Assemblies has peaked, curled, and is breaking. There are important lessons to be learned.

A Citizen’s Assembly is simply a group of citizens who have been randomly selected to participate in a series of discussions about a certain topic. Experts present material to the citizens who then deliberate on the issue and develop recommendations for authorities. The Assembly members are believed to be representative of wider society. The effective operation of the process, however, is dependent upon the organisers sticking to the remit, maintaining neutrality, providing the members with accurate and objective information, and recording decisions in an open and transparent manner. The Citizens’ Assembly on Gender Equality failed on all these parameters.

The Citizens’ Assembly on Gender Equality was corrupted from the outset, even before the members began to deliberate. By the first meeting in January 2020, a decision had already been taken to switch the focus from ‘gender’ to ‘gender identity’ with implications for the entire existence of the Assembly. The final Assembly Report does not  explain who made this decision or why it was taken. There were other flaws in the running of the Assembly too, as outlined in my recent article in The Critic magazine.

The Oireachtas (Irish parliament) established the Citizens’ Assembly on Gender Equality in 2019. The main reason for establishing it was because successive Governments could not decide what to do about Article 41 of the Irish constitution and, meanwhile, high-profile organisations such as the National Women’s Council of Ireland (NWCI) and the Irish Human Rights and Equality Commission (IHREC) were exerting pressure on the Government to hold a referendum on the Article, particularly on clause 41.2. It could be argued that setting up this Citizens’ Assembly was the Oireachtas passing the buck on a contentious issue, but it was also likely a genuine attempt to gauge public opinion on the matter.

Article 41.2 of the constitution recognises the support women in the home give to the State. It also obliges the State to ‘endeavour to ensure’ that mothers shall not be obliged by economic necessity to work outside of the home. Over the years, various organisations, individuals, and politicians have claimed that the Article is sexist and outdated and needed to be deleted or else replaced with gender-neutral language.

Debates about Article 41.2 date right back to 1937 when the constitution was adopted. Flurries of critique intensified in the 1990s. External attention also came from the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) whose 2005 report on Ireland said that certain provisions in the Irish constitution about the family and women ‘deserved attention’. That report also expressed concern at what was referred to as ‘the persistence of traditional stereotypical views of the social roles and responsibilities of women and men in the family and in society at large which are reflected in article 41.2 of the Constitution’.

The Citizens’ Assembly on Gender Equality, made up of 99 members of the public and a chairperson, deliberated during a series of meetings that took place over ten weekend-dates between January 2020 and April 2021. A secretariat, an expert group of seven, a research team, and a well-established academic who ran the public consultation process, were all involved in the Assembly’s operation. The Assembly concluded with 45 recommendations brought to the Oireachtas. These recommendations included holding referendums on Article 41 of the constitution.

There were differences between the recommendations put forward by the Assembly and the wording adopted by the Government for the referendums. Some suggested that the reason the referendums were defeated was because the Government had veered from the Assembly recommendations. The Assembly had recommended that the protection afforded to family life be expanded to include non-marital families. The Government opted to use the phrase ‘other durable relationships’ to refer to non-marital families. 67% of voters said ‘no’.  

The Assembly recommended that Article 41.2 of the Constitution ‘should be deleted and replaced with language that is not gender specific and would oblige the State to take reasonable measures to support care within the home and wider community.’ The Government’s proposed wording was: ‘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.’ This proposal saw the biggest referendum defeat in the history of the State. 74% of voters rejected it.

Previous reports and debates about Article 41 acknowledged the potential challenges of amending Articles relating to the family. The 1996 Report of the Constitution Review Group, for example, concluded that ‘the constitutional protection of rights of any family unit other than a family based on marriage presents significant difficulties’. That prescient report outlined difficulties including questions arising about relationship duration that arose in debates in the run up to the referendums this year.

It is interesting to look over various reports and debates from down through the years to find that many politicians and other speakers repeatedly referred to the ‘sexist’ and ‘outdated’ language contained in Article 41.2 and called for either the deletion or amendment of it. Yet, in 2006, an All-Party Oireachtas Committee on the Constitution published a Report on The Family which points out that of the 7,989 written submissions and 16,143 petitions submitted to the Committee by organisations and individuals, the vast majority ‘supported leaving the Articles related to the family unchanged.’

The Citizens’ Assembly on Gender Equality included a public consultation process. Submissions were invited on the broader topic of gender equality. Of the 246 published responses, only around 29 raised issues with Article 41 of the constitution. Again, this indicated that the public were perhaps simply not as invested in amending the constitution as some of the groups and politicians calling for change.  

At a Joint Committee on Justice and Equality meeting in September 2018, the then Minister for Justice and Equality, Deputy Charles Flanagan, astutely acknowledged the complexity of a referendum on the matter and spoke of the ‘how difficult it is to draft constitutional amendments that will stand the test of time’. He also spoke of his ‘reservations about the depth of analysis regarding some of the recommendations’ made in the past. He said that the Government had decided that the matter should be referred to a Citizens’ Assembly. Presumably the expectation was that the level of analysis in an Assembly format would be of high quality and depth.

One of the organisations calling for a referendum on Article 41.2 was the National Women’s Council of Ireland. During the Joint Committee meeting in September 2018, Orla O’Connor of the NWCI called for a referendum to be preceded by a deliberative process and stated that it would be ‘absolutely critical in this public discussion that the experiences of women in all our diversity are heard.’ This call for diversity seems to clash with the views expressed in a public letter signed by the NWCI in November 2020 that called on politicians and the media ‘to no longer provide legitimate representation’ to anyone who did not align themselves with gender ideology.

Interestingly, O’Connor stated at that 2018 meeting that NWCI consultations showed no disagreement about “the need for the sexist language in Article 41.2 to go.” She stated: “On this matter, everyone agrees.” Clearly, as the referendums showed, not everyone did agree.

Links between the Citizens’ Assembly and the Electoral Commission are notable. In February this year, Orla O’Connor was appointed to the Research Advisory Group of The Electoral Commission. The academic who designed and analysed the public consultation process of the Citizens’ Assembly on Gender Equality, Dr. Pauline Cullen, was also appointed to this group, as was Dr. David Farrell who was part of the Assembly’s research team. Dr. Mary Clare O’Sullivan who led the Assembly secretariat has since been appointed to the management team of the Electoral Commission.

The research team that was chosen to monitor and record the quality of the Citizens’ Assembly on Gender Equality stated in their Evaluation Report that the Assembly was ‘a very well run process, with high deliberative quality and good levels of knowledge gain and understanding by members.’ Two of the members of the research team, Professor Jane Suiter and Dr. David Farrell, had been involved with previous assemblies and had been part of a group of academics calling for Citizens’ Assemblies since 2010. Having reviewed the Citizens’ Assembly on Gender Equality I disagree with their conclusions about the Citizens’ Assembly on Gender Equality.

Impartiality, viewpoint diversity, neutrality, transparency, objectivity and accuracy are all key elements of an effective deliberative process. If the Irish Government is to continue to pursue a deliberative path on contentious issues, it must ensure that the organisers stick to the remit, actively seek out different perspectives, interrogate ideals and acknowledge complexity. Citizens’ Assemblies have potential but it seems to me that a lazy haze has set in around Ireland’s deliberative process and the deliberative wave has lost energy and needs reinvigoration or removal.