As a matter of English, is there such a thing as the subject of a country?
In Committee on Finance. - Citizenship Bill, 1934—Committee Stage.
Question proposed: "That Section 1 stand part of the Bill."
Let us hear the contrary view.
According to history, one is a resident or a national of a country and the subject of an individual.
Apparently, the phrase—subject of a country—is used.
I should like to get an example of it from some other country.
We may be able to give the Deputy an example.
The President cannot give an example now?
Perhaps the Deputy would analyse the words "British subject" and tell us what they mean.
If the Deputy looks up Deputy MacDermot's speech, he will get an example.
According to this section, the word "legation" includes the office of High Commissioner. Is it the intention of the Government to establish the office of High Commissioner in such countries as Canada and Australia, so that the Bill may be of universal application to countries in which there are large Irish populations who may wish to retain their Irish citizenship? At present, we have only one High Commissioner—that is, in the United Kingdom. The bulk of the Irish population abroad, outside the United States and the United Kingdom, is in such countries as Canada, Australia, New Zealand and South Africa. It would be interesting to know whether it is the intention of the Government to establish such offices in these countries which have very close connection with Ireland and in which there is a very large Irish population.
The question I have been asked has to do with policy and does not arise under this Bill. The Bill makes provision in case we had High Commissioners, instead of Ministers, in countries like Canada and Australia. But the question of policy does not arise on this Bill.
If it is not the intention to establish these offices, then the Irish people in these Dominions will be at a disadvantage as compared with the Irish people in the United Kingdom and in foreign countries where we have representatives.
The Deputy is again departing somewhat from the direct road. This section deals with definitions. The Deputy may find a more appropriate opportunity than that afforded by this section for dealing with the point he desires to raise.
Section agreed to.
SECTION 2.
(1) The following persons shall be natural-born citizens of Saorstát Eireann, that is to say:—
(a) every person who was born in Saorstát Eireann on or after the 6th day of December, 1922, and before the date of the passing of this Act, and
(b) every person who is born in Saorstát Eireann on or after the date of the passing of this Act, and
(c) every person who was born on or after the 6th day of December, 1922, and before the date of the passing of this Act in a ship registered in Saorstát Eireann, and
(d) every person who is born on or after the date of the passing of this Act in a ship registered in Saorstát Eireann, and
(e) subject to the subsequent provisions of this section, every person who was born outside Saorstát Eireann on or after the 6th day of December, 1922, and before the date of the passing of this Act and whose father was, on the day of such person's birth, a citizen of Saorstát Eireann, and
(f) subject to the subsequent provisions of this section, every person who is born outside Saorstát Eireann on or after the date of the passing of this Act and whose father was, on the day of such person's birth, a citizen of Saorstát Eireann.
(2) Where—
(a) a person was or is born (whether before or after the passing of this Act) outside Saorstát Eireann on or after the 6th day of December, 1922, and
(b) such person's father was or is, on the day of such person's birth, a natural-born citizen of Saorstát Eireann born outside Saorstát Eireann, and
(c) such person's father was, on the day of such person's birth, not employed in the service of the
Government of Saorstát Eireann, such person shall not be a natural-born citizen of Saorstát Eireann unless within one year or, where the Minister because of special circumstances so permits, within two years after the date of the passing of this Act or the day of such person's birth (whichever is the later) the fact of such person's birth is registered—
(d) if such person was born before the date of the passing of this Act, in the foreign births register, or
(e) if such person is born on or after the date of the passing of this Act in a country in which there is, on the day of his birth, a Saorstát Eireann legation or consulate, in the foreign births entry book kept at such legation or such consulate or in the foreign births register, or
(f) if such person is born on or after the date of the passing of this Act in a country in which there is, on the day of his birth, neither a Saorstát Eireann legation nor a Saorstát Eireann consulate, in the foreign births register.
(3) Every natural-born citizen of Saorstát Eireann whose right to such citizenship is conditional on the entry in the foreign births register or in a foreign births entry book of the fact of his birth shall cease to be a citizen of Saorstát Eireann at the expiration of one year or such longer period as the Minister shall, in any particular case because of special circumstances, permit after the day on which such person attains the age of twenty-one years, unless such person, after attaining that age and before the expiration of the said year or longer period aforesaid, makes in the prescribed form and registers with the Minister in the prescribed manner a declaration of retention of his citizenship of Saorstát Eireann and also, if he is a citizen of a foreign country, divests himself, in accordance with the laws of that country, of his citizenship thereof.
(4) Notwithstanding anything contained in the foregoing provisions of this section—
(a) a person who was or is born in Saorstát Eireann on or after the 6th day of December, 1922,
(whether before or after the passing of this Act) shall not be a natural-born citizen of Saorstát Eireann if such person's father was or is, on the day of such person's birth, envoy extraordinary and minister plenipotentiary or other the head of a foreign diplomatic mission established in Saorstát Eireann or is the secretary of legation, or other member of the diplomatic staff of such mission whose appointment as such has been officially notified to the Minister for External Affairs or is otherwise entitled to diplomatic immunities and in any case possesses the nationality of the country by which such mission is accredited, and
(b) a person who was or is born in Saorstát Eireann on or after the 6th day of December, 1922, (whether before or after the passing of this Act) and whose father, on the day of the birth of such person, was or is a consul-general, consul, vice-consul, or other official of another country charged with an official mission in Saorstát Eireann and possessed or possesses the nationality of the country by which he was or is appointed, shall, if such person at his birth acquired or acquires by the laws of the said country by which his father was or is so appointed the nationality of such country, cease to be a citizen of Saorstát Eireann if and when a declaration of alienage is made and lodged with the Minister in the prescribed form and manner by such person's father on behalf of such person before such person has attained the age of 21 years or by such person after he has attained that age.
Amendment No. 1 has been ruled out of order and Deputy Esmonde, in whose name it stands, has been so informed.
I only heard of that decision yesterday. Had I known it sooner I might have been able to frame an amendment which would have conveyed what I wanted to achieve in a different manner. I hope to be able to put down an amendment on the Report Stage of the Bill that will cover the point I wish to raise. I hope when this Bill passes through Committee Stage, that sufficient time will elapse between that and Report Stage to enable me to produce an amendment that will be in order. I would prefer to have the point in this amendment brought forward in the form in which it is on the Paper to-day but that does not appear to be possible. I think it will be possible to bring in an amendment on the Report Stage which will meet with the approval of the Chair provided I am given time to see the Bill in print after it leaves Committee. Of course if it is the intention of the Government, which I hope it is not, to rush the Bill without giving sufficient time I would not be able to secure my amendment.
I move amendment No. 2:
In page 3, to delete sub-section (2) and substitute the following sub-section:—
"Where
(a) a person is born outside Saorstát Eireann on or after the date of the passing of this Act, and
(b) such person's father is, on the day of such person's birth, a natural-born citizen of Saorstát Eireann born outside Saorstát Eireann, or a naturalised citizen of Saorstát Eireann, and
(c) such person's father is, on the day of such person's birth, not employed in the service of the Government of Saorstát Eireann,
such person shall not be a natural-born citizen of Saorstát Eireann unless within one year or, where the Minister because of special circumstances so permits, within two years after the day of such person's birth the fact of such person's birth is registered—
(d) if such person is born in a country in which there is, on the day of his birth, a Saorstát Eireann legation or consulate, in the foreign births entry book kept at such legation or consulate or in the foreign births register, or
(e) if such person is born in a country in which there is, on the day of his birth, neither a Saorstát Eireann legation nor a Saorstát Eireann consulate, in the foreign births register."
The purpose of this amendment is to take away the implication that seems to be in sub-section (2) as it stands. It would appear that the section as it stands suggests that a person would be a natural born citizen before the passage of this Bill. As this Bill is creating natural born citizenship, for the first time, we have altered the section so as to agree with that fact. It was easier to re-write the section as a whole than to put in any amendments that would be necessary.
Is there not more than that in the alteration? Does it not also substantially change the position of certain classes of children born since December, 1922, but before the passing of this Act? That class of children mentioned in the section as it stands is not mentioned in the new section at all. It would appear that there is no necessity for these children to be registered in the future. I am speaking, as the section speaks, of children born outside Saorstát Eireann, and the children of an Irishman born outside Saorstát Eireann.
There is a certain material change in the amendment as it stands, but I do not think that is the point raised by the Deputy. There is a point which may have escaped the Deputy with regard to citizens and natural born citizens in the Bill in the form in which it stood originally. It would appear that a natural born citizen was put in a worse position than that of a citizen under Article 3. What we have done with the section is: We have put the naturalised citizen in a worse position, so to speak, than that of the natural born citizen or citizen under Article 3 in the new form.
We had better get that clear on this new section. What is it that is intended to be achieved under the Bill? Will there have to be three types of citizenship-natural born citizens; those that have become citizens under Article 3 prior in time to any citizens born hereafter; and naturalised citizens, and will they be called so in the future?
The three categories or classes will undoubtedly exist under the Bill, and they will all be referred to under the title of citizens. Citizens of all classes will have the status as clearly shown before the law. They will have the same status before the law. It is a question of categories. Undoubtedly we will have these three categories, and we can group them into these three groups.
We have citizens under Article 3. Some of them had nothing to do with the country except in their years of residence. Some of these people were born in Ireland. Others had one or both parents born in Ireland. Leaving out the small group not born in Ireland or born of one or other Irish parents, there is first your natural born citizens in the future. Yet they are degraded under this Bill. They will have to have a certificate of naturalisation, and if the person has children they are deemed to be natural born. Why natural born? Why make that distinction as to the children of somebody given a certificate of naturalisation?
In the one case there is a positive act by a grown person.
A positive act in connection with naturalisation; a positive act in relation to birth of Irish parents. Is the qualification probable birth in the country, or birth of Irish parents? Under Section 8 the man who gets a certificate of naturalisation enters the name of every child who at the date of the issue of such certificate is under the age of 21 years.
I suggest we should take that up when we come to Section 8.
But this is the foundation of the whole Bill. The President said on the Second Stage of the Bill that with regard to the original stock of citizens the children of the first generation would be automatically citizens, but that is not so now.
It is.
No. Let me point out where it is not. Supposing one of those citizens has a child born outside the country, then that child will not attain citizenship in this country unless its father is an Irishman. Is not that so?
Yes.
That is in paragraphs (e) and (f) of Section 2. I understand those, originally determined to be citizens under Article 3, were able to transmit citizenship to the first generation. That is not so under the Bill as it stands. I do not know whether that is deliberate. If so we have made that distinction, and I want to know why? There is another point. Is it intended under this Bill that a ship registered in Saorstát Eireann shall, for all practical purposes, count as part of the territory of Saorstát Eireann? If that is the idea it is not carried out under this Bill. There are times when these ships will be outside Ireland or outside the Free State. Does this include persons born on ships registered in the Free State? Most countries have ships registered and these ships count as part of the floating territory of the particular State, and any person born on such a ship is counted as a person born in the State. Is that to be the case with regard to Saorstát ships? And, last of all, in this section, I want to know what is Saorstát Eireann and where is Saorstát Eireann? Is there any definition of it? There is none here. We have read definitions of citizens in the Moneylenders Act and in the Cereals Act and other Acts and we are all aware of a certain definition of Saorstát Eireann in the Interpretation Act of 1923. What is the definition? Section 3 says:
The expression "Saorstát Eireann" ... when used for the purpose of defining the application of any law or the extent or incidence of any authority. or obligation or imposition shall mean the area for the time being within the jurisdiction of the Parliament and Government of Saorstát Eireann.
That definition was before the draftsman when the Moneylenders Act and the Cereals Act and the Control of Manufactures Act and other Acts came along, and yet it was decided having that definition of what Saorstát Eireann was not to define what comprised Saorstát Eireann here. I suggest that it was done because there was a realisation that the phrase "Saorstát Eireann," as there defined, does not meet this circumstance, because we are not defining this. The phrase would operate if you were talking about something within the confines of Saorstát Eireann, but where you are passing beyond that, or founding your whole Bill—not defining it, but founding it— on the general question of citizenship, I doubt very much if that phrase embraces them. I would not have thought of suggesting it only that I thought that the draftsman, in putting in, in several phrases, the phrase that was used and was to be operative, may not have realised that. I suggest that it was unnecessary and that the draftsman put in a new phrase. Why did he do that? These new phrases are not put in merely for the sake of filling up space. What is meant by the term "Saorstát Eireann"? That is what the whole Bill turns upon. Clearly, it is not defined in the Bill.
There is one point that I would like to have cleared up. Taking either these amendments or the original section, it seems to me to contravene what should be a guiding principle with us. It seems to me that a position is created in which people will have a dual nationality. If, by the mere fact of being born here; one is a citizen of Saorstát Eireann, we, surely, should recognise that another person, born in another State or in the area of that State's jurisdiction, is a citizen of that State. On the other hand, if any person born here is an Irish citizen, then, any person, not born here, is not a citizen of this State. If we were to follow that out to its logical conclusion, and if every other State did the same, it would be clearly impossible to carry out.
Here we have two principles—that of geography and that of parentage. We say, in effect, to anybody, that if your father was, say, a Russian, you are subject to its laws and, automatically, have the rights belonging to that nationality; but, at the same time, we say: if you were born in Russia, and your parents were Irish, we deny to the Russian Government—or the Italian, or any other Government—the right to make laws in your regard in this country; and we also say, in effect, that if your father or mother is Irish, you are an Irish citizen. That seems to me to be a wrong principle. We should define citizenship definitely in the way that seems to us to be right and proper, and I think that we should not assume a sort of arrogant nationality that anybody born here is Irish and that we have a sort of Irish imperialism over anybody born elsewhere, if their parents were Irish. I think that is wrong. If other countries were to do the same we would have an enormous number of people with different nationalities. We should say that people born here are Irish and, if not born here, they are of a different nationality. In other words, we should say that if a man is born here he is an Irish citizen, or, if it is going to be put on the question of parentage, no matter where he is born, he is going to be regarded as Irish.
The different principles operating there must necessarily mean that people will, at the same time, be citizens of the Irish Free State because of their birth in the Irish Free State, and citizens of other countries because of their parentage in other countries. In the same way, it can be said that people born in other countries, but whose parents were Irish can be claimed to be citizens of those other countries. It will lead to trouble. A person, born here and travelling with our passport, feeling that they have our Consular—or rather, perhaps I should say, the British Consular—offices, or their representatives, behind them, will feel that that is full security, but may find that in the other country to which they may travel they will be claimed by that other country as a citizen and subject to the regulations of that other country. The whole principle is awkward and unsound, and I feel that you have to make up your mind to have one of two things.
It seems to me either that there is a change of policy between the original proposals and the new suggestions, or else that an anomaly exists. Supposing that I had been born in another country—which I was not-but supposing that I had been born in another country and had a son born abroad in 1930, under the clause, as it appears to me, it would be necessary for me to register that son in order that he should be an Irish citizen. Under the new, or amended, clause, it would not be necessary to register him if he was born in 1930, but it would be necessary if he were born in 1935. Is that so intended?
Several points have been raised. Three points, I think, were raised by Deputies. First of all, the point was mentioned about a ship. The intention is to follow out the general line that an Irish ship should be regarded, for that purpose, as Irish territory. From that point of view, if we come to anything that seems to be contrary to that point of view, we can deal with it in another section. The next point was in regard to the definition of Saorstát Eireann. I do not know if it is necessary to define it. I think that everybody knows what we mean by the phrase, and I suggest that if there is to be any modification of the interpretation given to it in the Act, it should be outside this Bill. It is a matter which affects other Bills. I quite agree with the Deputy that what we mean by the phrase is a very important matter, and I, for one, took it that it had been legally defined already. However, if necessary, we will look it up.
Could there be any better place to have it defined than in a Citizenship Bill?
I do not think so, necessarily. It is a matter of general application. I do not suggest that this is not altogether an appropriate occasion, but I do not think it is the best occasion. Then there is the question that has been raised by Deputy Fitzgerald. I do not know what the Deputy is after. There are two well-known principles, but there are very few countries, for example, that carry out any one of them completely and absolutely. There is a mixture of both in all countries, and we are not doing anything new or novel in this Bill. You will find that if you study the basis of the nationality laws of other countries. You will find, for instance, that the birth of the father of a citizen is the normal basis for citizenship in any country so that the question of dual nationality is well recognised. The thing that it is almost impossible to avoid—and it is what we are attempting in this Bill as far as possible—is not to create multiple nationality. In certain circumstances it is almost impossible to avoid it unless you are going to exclude from your citizens a class that, according to the laws of other countries, would be regarded in those countries as their citizens.
I am afraid I have not yet got at Deputy MacDermot's point. Probably there was a difficulty about the Bill as it stood originally. The word "citizen" was in the section as it stood originally, and was in contradistinction to natural born citizen. The section that we amended had reference to natural born citizens, whereas in the other section you had "citizen," and "citizen" there referred to an Article 3 citizen. What we have done in the new section is to broaden it so that we have both natural-born an Article 3 citizens, if I may so put it, in the one category. We have naturalised citizens in another. If this section is passed and the Bill becomes law the position will be this: In the case of children born outside this country—I think that is the class the Deputy is interested in-if their father was himself born in this country and was a natural born citizen or an Article 3 citizen, these children will not have to register. That is definite. The only ones who will have to register are the children of a naturalised father.
I do not think that is quite right.
Why not?
Because you still have the phrase in paragraphs (e) and (f) "whose father was a citizen" and not "whose father was a natural-born citizen." These two paragraphs only contain the word "citizen."
Citizen there deals with the broad class. It is in sub-section (2) that we narrow down. In Section 2 you have citizen in its widest sense. You have all the categories that have been mentioned. In the new sub-section (2) we have specialised, and put the naturalised citizen.
If the President will look at sub-section (1) of Section 2 he will see that natural-born citizens are what are being dealt with. The words "natural-born" are there used. The word "citizen" without any prefix in paragraph (e) certainly includes, on the other hand, the Article 3 citizen. Most of us are Article 3 citizens. My point is this: that, notwithstanding the fact that I am a citizen, if I had not been born in this country and if I had become a citizen by virtue of the fact that I was domiciled here at the time of the Treaty, and if I then had a child born abroad subsequent to the Treaty but before the passing of this Act, it would, under the clause as it originally stood, have been necessary to register. Under the clause as it now is it would not be necessary to register unless he was born subsequent to the passing of this Act. What I am wondering is why a distinction should be made between a child born between 1922 and 1930 and a child born subsequent to 1930.
This may be a slip, but the President has said that in the amendment we are now supposed to be discussing we have put the natural-born and the Article 3 citizen into the same category. Is that the intention? because if so it is not carried out.
I think the best thing for us to do is to take the Bill in detail.
Let me deal with that one question of the person born outside this country. We have an amendment here which says: "Where a person is born outside Saorstát Eireann on or after the date of the passing of this Act." May I remark in passing that outside the Saorstát is obviously not meant to include "on a Saorstát ship," but it does at the moment. It is apparently meant to be only this: not born in the Saorstát or on a Saorstát registered ship. The phrase used is "outside Saorstát Eireann." We have no definition of Saorstát ships—Saorstát ships are considered to be inside—and until that is done, born outside the Saorstát will exclude born on Saorstát ships.
I doubt that, but I will look into it.
Let us take it that it is meant those who are not born either in the Saorstát or on a Saorstát ship, what will the position be after the passing of the Act? The first point that I have an objection to is that "such person's father is, on the day of such person's birth" something. Why not father or mother? If you are giving to the progeny of an Article 3 citizen a status in this country, then that should be father or mother, but I am diverted from that objection because this amendment runs on to talk not about citizens at all but about "natural born citizens" or "naturalised citizens," so that so far from putting the Article 3 citizen and the natural born citizen in the same category we are putting natural born citizen and naturalised citizen into the same category for this purpose. That leads me back to sub-section (1) of Section 2 and to paragraphs (e) and (f) of the section. Paragraph (e) says that "subject to the subsequent provisions of this section, every person who was born outside Saorstát Eireann on or after the 6th day of December, 1922, and before the date of the passing of this Act and whose father was, on the date of such person's birth, a citizen of Saorstát Eireann"—not a natural born citizen but a citizen which is the Article 3 person. Again, I ask why not father or mother if we are going to keep this as relating to citizens, and citizens, so far as we have gone without a definition, are Article 3 people. At the moment when we talk of these we have natural born citizens and naturalised citizens afterwards arising. Is all that intended? I think it is quite clear that we have not put the Article 3 citizen and the natural born citizen into the same category. What we have done is, we have put the natural born citizen and the naturalised citizen into the same category for a limited purpose. What we are doing in this very wide field it is hard to see.
I think if we had an amendment to the definition section saying that the word "citizen" includes natural born citizen and naturalised citizen it would eliminate the difficulty.
When Deputy McGilligan is speaking I sometimes wonder whether he has read the section carefully or not, and whether he understands it. I think that we had better deal with this, section by section. Section 2 (1) states the classes, who, in future, shall be natural born citizens. Then you have six paragraphs there—(a), (b), (c), (d), (e) and (f). They are divided into two groups, the first of which groups refers to those born before the passing of the Act, and the second to those after the date of the passing of the Act. Paragraph (a) says that "every person who was born in Saorstát Eireann after the 6th December, 1922, and before the date of the passing of the Act." Then you have the case of the person who was born in Saorstát Eireann on or after the passing of the Act. That is the first category.
Leave ships out for the time being.
I may take it then that we are satisfied on this, that every person who was born in Saorstát Eireann before the passing of the Act and after the date, 6th December, 1922, is a natural born citizen. We then have the next category with regard to ships, that a person who was born in a ship registered in Saorstát Eireann, if he is born before or after the passing of the Act and after the 6th December, 1922, is a natural born citizen. That is conceded. There is no difficulty about that. The difficulties, it appears, arise in regard to the next set. The next paragraph states that, "subject to the provisions of the next section"—these are the ones which will be read now with the amendment—"every person who was born outside Saorstát Eireann on or after 6th December, 1922, and before the date of the passing of the Act and whose father was, on the date of such person's birth, a citizen of Saorstát Eireann— such person when certain conditions, providing certain things in regard to the father, are fulfilled, is a citizen of Saorstát Eireann." We then come to the class of citizens who are natural born citizens and who are born outside Ireland of a father who was a citizen. Now we have certain exceptions or provisions with regard to the application of all that, and we read the rest of this section with special reference to (e) and (f). What we say is this: where a person is born outside Saorstát Eireann on or after the date of the passing of the Act, and such person's father is, on the date of such person's birth, a natural born citizen of Saorstát Eireann, born outside Saorstát Eireann—or a naturalised citizen of Saorstát Eireann—and such person's father is at the date of such person's birth not employed in the service of the Government, such person shall not be a natural born citizen of Saorstát Eireann unless, within one year, such birth is registered. What is the meaning of all that—"where such person's father is on the day of such person's birth a natural born citizen of Saorstát Eireann born outside?" The importance there is that if the father is himself born outside, then that child's birth has to be registered. There are certain exceptions later with which we shall deal. But according to that section, and the previous one, such person would not be a natural born citizen unless his birth was registered.
Does the President observe that in the Bill as it originally stood these provisions as to registration affect persons mentioned both in clause (e) and clause (f)?
Yes.
And that now in the amended sub-section the provisions refer only to persons in clause (f) and the class in clause (e) is apparently forgotten?
That is the point with respect to which I mentioned that there was an implication that a person could be a natural born citizen before the passing of this Act.
What implies that?
Would the President state why the word "father" is preferred to the word "parent"?
I shall deal with that.
Could we not clear up my point before we get away from the subject?
What makes the implication that one could be a natural born citizen before the passing of this Act as the Bill stood?
The statement in 2 (a)—"Where a person was or is born before the passing of the Act," and then (b)—"Such person's father was or is on the day of such person's birth a natural born citizen born outside Saorstát Eireann." You see it would be impossible to have a natural born citizen in these conditions.
But (a) and (b) remain.
The Attorney-General
Before the date, he could not be a natural born citizen.
He is going to be deemed to be.
The Attorney-General
He could not be.
Might I ask what is the difference between 2 (1) (a) and 2 (1) (b)? Why could not they be rolled together into one, stating "Every person born in Saorstát Eireann on or after 6th December, 1922"?
The draftsman considered that this was the better way to do it.
Why? Could they not be put into one clause as I have suggested? What is the difference?
There is a difference. Saorstát Eireann on that date in (a) was a different area from that which it was on the second date.
Oh, no. If Saorstát Eireann is going to be defined under the Interpretation Act, then it will change as circumstances change, because Saorstát Eireann is defined as being the area for the time being within the jurisdiction of the Parliament of the Free State. I do not think that objection holds.
The Attorney-General
There would be no sense in sub-section (2) (a) and (b), as they stood; there would be no sense as regards a person born before the passing of the Act. They are referred to there as having been natural-born citizens at the time of their birth.
They are going to be so referred to in your Act.
The Attorney-General
They are referred to as natural-born citizens at the time when natural-born citizenship did not exist at all.
Take (a) as it stands —"every person who was born in Saorstát Eireann on or after the 6th day of December, 1922, and before the date of the passing of this Act." Is that what you think ought not to be in the Bill? It is there.
We were discussing (e) and (f) and then the President and the Attorney-General bring us back to (a) and (b).
It was I who did so. I apologise. I wanted to go back to the root. Is there any difference between (a) and (b) or is it merely that the draftsman considers that it is better that way?
Yes.
Has he said why?
As the Deputy well knows, when you ask the draftsman to draft a Bill, very often you may consider that it is arranged in a suitable form, but he expresses the opinion that it would be clearer to put things in separate categories, such as in this instance, and that is not a thing that I would complain of. At the moment it may appear to be a more lengthy way of dealing with the matter, but the fact is that the draftsman has considered it desirable to put them in these categories. I ask the House to take the meaning of it as it stands.
Is it clear now that there is no distinction?
I do not think so.
Then let us get on from that point. It makes no difference so far as being considered as a natural born citizen is concerned?
No, none; these are only in different categories. I put them in these groups. It is just a matter of being clear about the meaning of it. I do not see any fault in the draftsmanship. Probably if you got another draftsman he might draft it in another manner. Our draftsman, who has a good reputation from the point of view of the drafting of Bills, decided to draft it in this particular form and it carries the ideas we have in mind. If any Deputy shows up anything hidden away which was not our intention, we would be glad to know of it. As it is, we do not see anything in the drafting that is contrary to our intentions. There are three classes of natural born citizens, as I see them. We have, first of all, those who were born in the country and, secondly, those who were born outside Saorstát Eireann of an Irish father who was himself born in Saorstát Eireann. Such are automatically to become natural born citizens. Then we have the third group, those who were born outside the country of a father who was not himself born in the territory, and the children of such a father have to be registered. That is the intention in these sections and I think the sections carry out the intention.
But not if they were born between 1922 and the passing of this Act. May I take a concrete case? Let us take the case of Senator Johnson, an Irish citizen, not born in Ireland. If Senator Johnson had a child born abroad in 1930, clause (e) of Section 2 (1) says that that child would be a natural born citizen, subject to certain subsequent provisions of the section. Now, in the new sub-section there are no conditions relating to the child born in that particular period. If, however, Senator Johnson has a child born after the passage of this Act and born elsewhere than in Ireland, it has to be registered. The position of the child born after the passing of the Act is clear, but what is the position of the child born in 1930? Is it left in the air, with no way of getting to be regarded as a citizen, or is it a natural born citizen automatically?
Might I put that point in another way? Clause (e) of Section 2 (1) sets out "subject to the subsequent provisions of this section", making you look at the subsequent provisions, for what? For a person born outside the Saorstát on or after 6th December, 1922 and before the passing of the Act. Then you take up the amendment, and the amendment starts with: "Where—(a) a person is born outside Saorstát Eireann on or after the date of the passing of this Act," and there is no reference to people born outside the Saorstát between 6th December, 1922 and the date of the passing of the Act.
I do not think the gap is there; as a matter of fact, I think it is not. We have classed as citizens those who were born in Ireland and those who were born outside Ireland of fathers who were citizens. These are natural-born citizens. As regards where a person is born outside Saorstát Eireann on or after the date of the passing of the Act, this exception applies only to a certain case. It seems to me that a person born before the passage of the Act is, under sub-section (1), a citizen.
Why say "subject to the subsequent provisions of the section"?
We set out what the subsequent provisions refer to. They refer to the time subsequent to the passage of the Act.
Surely the easiest thing to do is to amend Section 2 (e) by wiping out the first line? If you take out the first line of (e) you are where you want to be in this matter.
The Attorney-General
I think the words "subject to the subsequent provisions of this section" should be taken out.
Surely they should be.
The Chair would like precise information as to what is being done.
I am endeavouring to make sure that the section does what it is intended to do. We have here certain exceptions to what is generally dealt with in sub-section (1). We have certain restrictions and, if we do not mention the restrictions, the sub-section would go in with all its generalities. We talk of certain exceptions and one of them is set out here:—
Where—
(a) a person is born outside Saorstát Eireann on or after the date of the passing of this Act, and
(b) such person's father is, on the day of such person's birth, a natural-born citizen of Saorstát Eireann born outside Saorstát Eireann, or a naturalised citizen of Saorstát Eireann ... such person shall not be a natural-born citizen....
Now, that is the list of exceptions on the general reading of Section 1 and clearly, if we do not mention the exception it holds in all its generality. It is suggested that the subsequent provisions of this should be omitted. I think you do want some signpost to tell you that there are restrictions on the generality of this section.
Put the signpost in all of them—(a), (b), (c), (d), (e) and (f).
That may, perhaps, be better.
It is equally bad.
We can consider whether we could not do that.
I think there is a substantial point involved. That is one way of amending the measure—to take out the first line of (e); but if you do take out that first line, you only make all this exceptional provision apply to people who were born outside the Saorstát after the date of the passing of the Act. Do you want to have that applied since 6th December, 1922, because if you do, you should keep in the first line of (e) and retain the first line of (f) while making the first line of (a) in the amendment
Where a person is born outside Saorstát Eireann on or after 6th December, 1922 ....
but they are two different things. It depends on what you want to do. If we are going to keep this reference to the exception, which has no relation to paragraph (e), let us be uniform and push this same awkward and unnecessary phrase into (a), (b), (c) and (d). We will then give more attention to the limitation on the generality of the provisions and we will send people searching in years to come to know what it means. We refer a person to "subject to a certain exception, every person born outside Saorstát Eireann on or after the date of the passing of this Act, shall be a natural born citizen..." and you send every man who comes to construe that searching through the Act to see where the exception is—and there is no exception. If amendment (2), which we are supposed to be discussing, represents the mind of the Government in this matter, why not end it by taking out the first line of (2) (1) (c)?
I would consider before Report Stage as to whether that would satisfy us, because it is quite clear that there is a special relationship under this sub-section (2) to (e) and (f) over and above those of any other.
But really only to (f) now.
And none at all to (e).
It is really only to (f).
Now we are agreed.
And now with regard to the question of women. Is that the next?
Father or mother.
That is one of the matters in respect of which we might ask why amendments were not put down. It would show clearly what was the mind of, and the objection raised by, the Deputy. However, I am not going to find any fault on that head. With regard to the question as to whether we should have nationality descending both through the father and through the mother, we decided that it was a better principle to have nationality descending through the father. The case of Article 3 is misunderstood by a number of people. They talk about the principle of transmission of nationality through father and mother, according to Article 3, being adopted. There was no transmission, and there was no provision for transmission of nationality at all.
But there was acceptance of the transmission.
No, there was not.
There was.
Not necessarily. You are defining "domicile" at a particular time, and you are defining the class of people who were going to be regarded as your citizens and the basis of Article 3 was that it was those who were domiciled in the country.
What do you mean by "domiciled"?
Ordinarily resident.
"Domiciled" means ordinarily resident?
It might be for this purpose.
Does the President mean that Article 3 is based upon residence?
"Domiciled" might be a difficult word to get a full definition of, but it is a legal term, the full significance of which is known. The meaning of it relatively is "ordinarily resident." It would satisfy me for ordinary purposes, however. I do not propose to give a strict legal definition of it, but what we have is that "domiciled", roughly interpreted as meaning "ordinarily resident" on a certain date, was the basis of citizenship in Article 3. Article 3 had no reference whatever to transmission of citizenship through either parent. It was a question of determining what body of persons who were domiciled in Saorstát Eireann on 6th December, 1922, would be regarded as citizens. There were mainly two classes —those people either of whose parents was Irish and those who were resident for a certain period in Saorstát Eireann. What I say is wrong is to interpret Article 3 as suggesting that there was a provision for transmission of nationality through either parent. There was not. It was a purely local citizenship, and the complications that would arise through transmission through the second parent did not arise.
We have had some of the Deputies objecting to dual nationality. It is quite clear that you are going to have still greater confusion if you have it through the two parents.
Hear, hear!
So that, in considering this, we definitely decided that we would adopt the principle that nationality would descend through the father. In various parts of the Bill, so far as was consistent with that principle, we have accepted the principle of equality of the sexes. We have made provision for the working out of that, and, in this connection, it has been suggested, for example, that we should adopt the principle of the new law which was passed recently in the United States, the principle of which was adopted in a number of States in South America. As a matter of fact, from the point of view of the protection which it is desired to afford to women in the matter, our laws are very much better, and it is much easier, as the House will see when we come to it, for a woman who wants her children to become Irish nationals to have that nationality conferred on them than it is under the American Act. In the case of America, they require that a child born of an American parent abroad should be resident for five years before reaching the age of 18 before he or she could retain the citizenship which might be regarded as being nominally conferred at birth, so that from the point of view of protection of women and of giving them rights, our Bill is, in fact, more liberal than the American Bill. However, the point is that we have definitely here adopted the principle of descent of nationality through the father.
I must say that the remarks of the President have now cleared up a tremendous amount of confusion which existed in my mind after reading the Second Reading debate. First of all, the President has said, in a rather handing-off way, that he had waited for amendments. I read the President as saying, on the Second Stage:
"This is, as you will see, a very important Bill. We are anxious to have the fullest possible discussion upon it. In Committee we shall, of course, have an opportunity of examining it section by section and line by line. Any proposed amendments will be examined and given the fullest possible consideration. I do not think that this ought to be a controversial Bill. It certainly is not conceived, and, indeed, it would be altogether wrong to have a Bill of this sort conceived in any narrow or Party spirit. We expect that every Deputy in the House will take the closest interest in it, and I feel certain that, when it passes, there will be no reason for dissatisfaction, but every reason for satisfaction that the Bill has become law."
I aimed at getting a discussion, and I sat down to consider this Bill. I read the President's remarks, and it is only now I know why I had no key to the interpretation of those remarks. He has a different view of domicile from what anybody else has. The President has apparently in his mind aimed at an equation between domicile and residence. He corrected himself after he said that, and stated that one of the marks of domicile would be residence. It is not necessary to mark it domicile at all. The very Article which he is criticising as providing locally limited citizenship makes a distinction between domicile and residence. The peculiar thing is that when the Article was originally introduced the phrase "ordinarily resident" did not occur in it. "So domiciled" was the phrase in it, and the whole Article was founded upon domicile. It was then pointed out that you had "domicile" used in the first clause, and that was the shroud of covering upon everything. It was explained what that was; it was this intention of returning—the animus revertendi. It was explained that you might have people out of the country for 50 or 60 years and, of course, you could have them regarded as domiciled here. Even the people who passed this went on to make a distinction; taking everybody, for the purpose of this Article, before they could get towards citizenship in this country, it was necessary to have that intention— the domicile mind so to speak. There were to be other conditions. A person had to be born in Ireland; his parents had to be born in Ireland; or in the case of a person who might not have been born in Ireland, or none of whose parents was born in Ireland, if he was seven years ordinarily resident in the country he was to be a citizen. I must say that when I read the Second Reading remarks of the President I decided that the best thing to do was to come here and try to get some explanation of the phrases. It was impossible to follow the President's remarks. It is now possible to follow them, although it would be wrong to follow them when we get his view that residence and domicile are to be equated. There is no such question. While discussing this matter we might as well clear up what will arise in a later section. There is a proposal to give naturalisation to people who can claim Article 3 citizenship. The President says that this is a locally limited citizenship. I wonder why? Is it because of the phrase "shall within the limits of the jurisdiction of the Irish Free State"? When it is determined what that is, giving that any local or narrowing interpretation——
We do not mean the globe by it.
You certainly mean extra territoriality by it. It is anything that has to do with the peace, order and good government of the country. That is the phrase used in the Treaty; it is the phrase used in most Constitutions, and carries laws outside the confines or boundaries of the country. If a law is required for the peace, order and good government of the country, if it has its effect outside, then that law is not limited within the territory. There may be international complications in getting hold of the folk one wants to get hold of in order to apply the law, but the extent of the law is not limited. Certainly in this clause the extent of the operation of our citizenship is not limited by that law. However, that is another matter. This whole question of domicile was discussed in September, 1922, when the amendment was proposed to put in the words "ordinarily resident" instead of the words "so domiciled." The words "ordinarily resident" which appear in Article 3 were not in the original. The phrase substituted was "so domiciled." The Deputy then speaking said that he did not suppose there was any word which had given rise to more law than the word "domicile." He goes on to say "... a man may ascertain whether or not he is deemed domiciled here or in ordinary residence here, whichever term is adopted. I do not know if members generally realise that if you adopt "domicile" as your test you are adopting a test which would allow people to become Irish citizens who have not been here, not only for the last seven years, but for 40 years—people who say they have the intention of returning some day; people who have gone away with the intention of coming back to die." Of course, that is clearly the meaning. Nobody is going to attempt here to say what are the limits of that word "domicile," but there will be nobody who has read anything about law who will say that "domicile" and "residence" are to be equated. To equate "residence" and "domicile" is a thing that nobody would do. During the discussion in September, 1922, Deputy G. Fitzgibbon in supporting that amendment (vol. I., cols. 663-5) went on to say that "domicile" is a word which has given rise to a great deal of litigation, but he also made a distinction between "domicile" and "residence.""Domicile" has definitely a wider meaning than residence. We need not waste any time arguing the point. I am going to say that Article 3 is not locally limited, and never was. As long as there is "domicile," and that phrase is the intention to return, then if even now there is found a person who from this date has been seven years resident in the country, then that person is a citizen under Article 3 of the Constitution. I want to make that point again, because I think it is believed that it is not so, and I should like to have it looked into. "Domicile" is the intention to return. If you have a person not born in Ireland, and neither of whose parents was born in Ireland, and if you now find that that person has been seven years resident in this country, he can claim citizenship under Article 3 and will continue from time to time hereafter to be able to claim citizenship under Article 3, because the seven years is not defined as being the seven years prior to the date of the coming into operation of the Constitution. The "domicile" is dated and limited by the date of the operation of the Constitution. Granted that, the seven years' residence can occur at any time. We have then a certain crowd of citizens defined by this domiciliary intent, and being either seven years resident or being born in Ireland, or born so that either of the parents was Irish. The President then in relation to those people said this: it may have been too wide a phrase, but the President did say with regard to those Article 3 citizens that "being Irish citizens their children will in the first generation be automatically citizens." Does the President, at any rate before we start to argue the point, agree that that is not so under the Bill?
What?
That the children of the Article 3 citizens become automatically our citizens. Take a woman who was a citizen of this country under Article 3. She gets married and there is a child of that marriage born outside the Saorstát. Is that person automatically a citizen? Clearly not.
No.
Very good. The President's phrase was too wide. I understood that the situation we intended to bring about was that the children of any of the original stock of citizens, no matter where born as far as the first generation was concerned, would be citizens of this State. I do not care whether they were to be called natural-born or simply citizens, but they were to be citizens. Having started with a person either of whose parents was born in Ireland, we now suddenly make a jump to those people and say: "Remember, only the father in the case of that particular group can transmit citizenship in certain circumstances." I object to that. I think we should have it with regard to that particular group that as far as the first generation is concerned they should be citizens. There should be none of this marking them out and putting terms and conditions on them as to what they ought to do. The child of a mother who was a citizen under Article 3, if born abroad, cannot become a citizen of this country except by a process of nationalisation; cannot become one by a process of registration. I think that is wrong. Let me get to the original point at which the President started, in which he said that they wanted to put natural-born and Article 3 citizens in the same category. Does he still think he has attained that? Look at the phraseology used in paragraph (b) of amendment 2:—
Such person's father is, on the day of such person's birth, a natural-born citizen of Saorstát Eireann born outside Saorstát Eireann, or a naturalised citizen of Saorstát Eireann, ...
Then certain registration and certain status follows. Surely that is putting a naturalised citizen and a natural-born citizen in certain circumstances in the same category? Where is the equivalent of the natural-born citizen to the Article 3 citizen? The natural-born citizen can transmit nationality, but the Article 3 citizen cannot in the circumstances. All Article 3 citizens cannot transmit a particular status. I think there is considerable confusion in this, apart from what we have before us. The clothing of these words will be a matter, thank goodness, that will not lie with this House. It will be for someone else. Let us get the intention clear and, if the president seeks to put the natural-born citizen and Article 3 citizen in the same category, I should like to be told where and why he made a distinction in certain circumstances; why he has made a naturalised person almost equal to the natural-born citizen and, in certain circumstances, superior to the Article 3 citizen in some respects; and why he has made children entered on the certificate of a naturalised person better off than children under Article 3?
There is a further question I should like to ask the President. Is it really the deliberate intention of the Government that the children of foreigners, who happen to be in the Free State, should be natural-born citizens of the Free State? Supposing they were people who came over for a short holiday, and that a child happened to be born when they were here, is it really the intention that that child should be a natural born citizen of the Free State? If so, is not that going a great deal further in the way of giving citizenship than other countries? So far as I see the only limitation is the one in sub-section (4), and that applies to diplomatic and consular representatives. They are the only people who are deprived of the right to have their children regarded as Irish citizens automatically, if such children happen to be born in the Free State. I suggest to the President that he should consider whether it is really desirable to make our citizenship quite as cheap as it appears to be made as the Bill stands.
I do not know how far I would be able to get contact at all with Deputy McGilligan. He has stressed a good deal the difference of interpretation of what I said on the Second Reading, and on the different interpretations of "domicile." I take domicile as roughly equalling ordinary residence. The Deputy says it is not; that it has a wider meaning. If you want to get a particular person to say whether that person was or was not domiciled, you are not going to have an easy job to prove that that person is not so domiciled. Consequently, on this Bill lawyers can argue if they wish about what Article 3 may mean, and what is the class of citizenship. From the reading of the last part of the Article, particularly about future citizenship, it seems to me to be clear to be of a local character, and to deal with those residents before the passage of that particular Article, because the Article seems to suggest that there was to be further legislation. We are several years late in carrying out that. The main thing, when this Bill is passed, is that there should be no doubt as to who are citizens of Saorstát Eireann and who are not. That is the main thing to be aimed at. Wherever there are matters to be argued they might go to the courts for determination. Our business should be to determine and to have clearly in our minds what are the classes of persons we had deemed to be citizens, and are citizens in fact, so as to avoid those differences of opinion and of interpretation which it is obvious we are going to have, because lawyers on different sides are apparently not agreed upon certain interpretations. What is our intention? What classes of people are going to be citizens when this Bill is passed? We have first those under Article 3. We are not proposing to limit that group. Then we are having as citizens those born in this country and if there are objections to them, such as those raised by Deputy MacDermot, then our answer is that we would not be unique by any means, and that it is one of the most general provisions in Nationality and Citizenship Acts. It is one of the principles of them.
I suggest that the precedent observed in other countries is that it is made easy for the person born in these countries of foreign parents to acquire nationality. For example, in France a person born there of foreign parents is allowed to have a choice. So far as I am aware neither France nor America——
In America it is the other way.
Does the President assert that the child of two aliens born in America is automatically an American citizen?
Yes.
I was not aware of that. I doubt if there is any other country where that is the case.
It is the case in Great Britain, I think.
Oh, no.
You have that in America, and I am informed it is the most general principle underlying nationality laws. In fact, you will find that in 99 per cent. of such cases.
If that were so, every woman about to have a child would be in a fever not to have it abroad, lest she might find her son a citizen of the wrong country.
It may help the Deputy, seeing that some Deputy on the other side suggested that it was not the rule, to see what is in the British Act which I have been handed. It says that any person born in his Majesty's Dominions is deemed to be a natural-born British citizen. In technical language there are two principles.
I apologise.
It is difficult to get a word in edgeways in this valley of tears. My objections to the amended section are that coming generations in Northern Ireland, who wish to retain Irish citizenship, will have to register in London. The President admitted that on the Second Reading. He stated that it would not apply to the present generation, but to subsequent generations. I see no reason why we should not make provision to avoid that. I see no reason why we should not make provision so that people born in Northern Ireland should not have to go through any formality in order to enjoy the privilege of citizenship of this State. It is true that that will create dual nationality but, as it is, most of the people in Northern Ireland to-day have double citizenship. I do not think it is in any way impertinent to the President to suggest that we should do what Great Britain so kindly does for us; that is to say, to give them honorary citizenship of our State. The President thinks that it is an impertinence on the part of the British Government, but I do not think so. I do not think it would be an impertinence on our part with regard to Northern Ireland. In that connection I would remind Deputy McGilligan that there is some black magic in the Interpretation Act. If he looks it up he will find that, just as Lloyd George passed an Act which made Donegal part of Southern Ireland, so in the Interpretation Act Spike Island is made part of Northern Ireland. I think he will find that is correct if he looks up the Act. There is no necessity to mention Northern Ireland except that the amendment should be that this section should not apply to citizens born in Northern Ireland; and so they would not have to go through the grotesque formality of going to London to get registered as Irish citizens.
The President said he hoped that by the time the coming generation had grown up the Boundary would have ceased to exist. I am afraid it is generally thought that this Government is doing everything possible to make that Boundary not only fixed but eternal, and the prospect of its being swept away by that time is nothing but "bolony." There are some questions which could be asked and some amendments that could be inserted in this section. For instance, there is nothing to say whether under sub-section (d) a ship would include aircraft. Perhaps when one enters into that there are some questions which I do not think the President would answer. For instance, if we provided that an aircraft came under the definition of a ship and a child of Bulgarian parents was born in an Irish-registered aircraft flying over Czechoslovakia from Italy to Lithuania, what nationality would the child be? I doubt if the President could produce an answer to that.
My main objection, at any rate, is that we are legislating to make provision for this ridiculous proposal that Irish citizens in Northern Ireland should have to register in London, and I see no reason why we should not bring in an amendment to eliminate that.
I do not know if there is any good getting into it again. As far as policy is concerned, the policy and principles behind the Bill with regard to the classes of citizens are these. We are not definitely accepting descent through the mother. In other parts of the Bill we have tried to give equality to the sexes and in fact, we are making provision to avoid statelessness and some of the evils that follow any inequality with regard to the sexes. We could not, however, accept the principle of nationality descending through either parent, because we believe that it would lead to confusion and that in fact there is no hardship, taking the Bill as a whole, with all the sections dealing with this matter read together, imposed by the method by which we are operating the Bill. We are not accepting it as a principle. By the operation of the law it would give nationality where it would not be desired. That principle then is definite. We are standing on that as a principle, and the Bill is intended to carry out that principle.
The next thing is with regard to Article 3 citizens. They are left in the Bill with all the rights that they had. As far as their children are concerned, and descent through the father, they are not either naturalised or natural born. Therefore, the child of an Article 3 father is not subject to the limitations in sub-section (3). Therefore, for example, as regards those who are in the territory of Saorstát Eireann as originally determined on the 6th December, the child of any such father is automatically a natural-born citizen. It is only when you come to what I may call the next generation that the question of registration would arise.
With regard to the question of domicile, possibly there is a certain amount of overlapping in certain cases, where we have deliberately provided in other sections to make it easy for people born in this country before 6th December to be deemed to be citizens. The classes then are: Article 3 citizens; the children of citizens; the children of citizen fathers.
Not both—you are correcting?
Yes I am correcting. If, on the Second Reading, I said the children of citizens, I should have said of citizen fathers, because the thing is based on the father.
You said you would accept "either parent" instead of "father." You distinctly said that.
No, I am not accepting that.
The President did say that the children of Article 3 citizens are not subject to the limitations in this.
We have three classes of citizen fathers, so to speak. We have those who are Article 3 citizens; we have those who are born in the country, whose parents were born outside; and those who were born outside themselves.
Some of those born outside might be Article 3 citizens.
Possibly, but it is certainly not very clear. This question of the law about domicile may arise in connection with it. There might be a great deal of difficulty with regard to it. It might be objected, for instance, that it would have to be determined on the facts of a particular case.
Has not the President only three classes: Article 3's, naturalised and natural born?
Quite.
These are the only classes of fathers known. The President said in his concluding observation that the reservations of the proposed amendment 2 will not apply to the children of Article 3 fathers. The President said they would not. I understood him to say earlier that they would.
What would not?
The qualifications contained in amendment 2.
The President said that would not apply to the children of Article 3 citizens. He has corrected that to say that it will not apply to the children of an Article 3 citizen if the citizen is a father.
It will apply in the case of the natural born father or the naturalised citizen. That is specifically stated.
Yes, in amendment 2.
"Where a person is born outside Saorstát Eireann on or after the date of the passing of this Act, and such person's father, on the day of such person's birth, is a natural born citizen of Saorstát Eireann." There are three classes of citizenship mentioned under Article 3 of the Constitution:—that is, every person domiciled in the Free State on the 6th December, 1922, born in Ireland or either of whose parents was born in Ireland or who had been ordinarily resident in the area of the Irish Free State for not less than seven years.
Surely it is quite wrong to say that there are only three classes of parents in so far as the child of any person through the whole wide world born in this country is a citizen of Saorstát Eireann.
The Attorney-General
That is birth in the country.
You can deal with the question from the angle of locality or from the angle of parents. You are not confined to three sets of citizens. You have aliens. A child the son of anybody throughout the whole world if born here is a citizen of Saorstát Eireann.
The Attorney-General
Citizenship by descent imposed upon it and citizenship by birth in the Saorstát. The Deputy is confounding two things.
Do not be fogged and obstructed by that phrase.
Is it not clear that I was talking about the special provisions in class 2?
The special provisions do not apply there. There are a whole lot of root ideas in this on which we have not got clarity and agreement yet. Why does the President persist in saying that Article 3 does not recognise the transmission of nationality?
There is no provision for the future at all.
That is a different thing. It is clearly set out in the last words of Article 3 of the Constitution: "and the conditions governing the future acquisition and termination of citizenship in the Irish Free State shall be determined by law," but surely Article 3 recognises the transmission of nationality. A person to be a citizen of the Irish Free State must have been ordinarily resident here for seven years, had to be born in Ireland of Irish parents," or "either of whose parents was born in Ireland"——
The question is whether such a person has to prove domicile.
The whole root of everything is domicile. Under your Citizenship Bill domicile will come in, and it will come in in relation to other countries.
That is a different matter. We are not dealing with that now.
You cannot get rid of domicile, try how you will, in relation to Irish nationality. If you do, you are amending Article 3. Remember the Article 3 classes are not exhausted. They are not, even from the point of view of the growth of that class, exhausted. There may be, within Article 3, citizens this year, next year or twenty years hence unless this Bill amends it. I want to know does this Bill amend it. Suppose we have somebody born after the passing of the Act, and suppose that person leaves the country and gets into a condition where he would be regarded as an alien here. He would be regarded as a citizen by another country. Suppose that person gets a house here. That is the point applied by the courts as a test of his intentions to return. Under this Bill such a person can be given a certificate of naturalisation. But suppose he does not want it. Unless that person wants to remain in a sort of Stateless condition for seven years, unless he can prove domicile residence, he can leave birth out of it. Unless this Bill cuts across his progress in some way, that person could arrogate to himself Irish citizenship. The only phrase that is used is that the word "citizen" includes all those who were citizens by virtue of Article 3. It includes a person who is a citizen and that is all carried forward year by year. The President started an enumeration of the categories of persons who might be considered eligible for the privileges of citizenship of this sort but he stopped short in the enumeration. First of all, we must recognise that in the main this Bill is founded not on descent but on locality. The opening article to sub-section (1) of the Bill says every person who was born in Saorstát Eireann. The question of parentage is completely wiped out. It might be people of two different nationalities who got married and whose child is born here. That is entirely irrespective of what their nationality is or what their domicile is. The whole condition and test is upon locality. The foundation on which we start is territory.
Then in regard to (e) and (f) of 2 (1) we impose certain conditions. On that point the first divagation occurs. We have always the people born here. I do not know whether as to people born outside the country we allow them to become citizens here by regulations. But these conditions may be repudiated by a minor, when he comes of age. A child born here while his parents are on a holiday is stamped with our nationality. The only way in which we can get rid of that is if we discover that he has taken on another citizenship. When we come to this, moving away from locality, the person born outside the country, we have three divisions. One is according to the previous category the parent, and then there is the question of time and the birth. If that child is born outside the country, and if the father was a citizen then that child is automatically a natural-born citizen. If the child is born outside the country and if the mother were an Article 3 citizen, then, under no condition except by a certificate of naturalisation, can it become a citizen and it can never become a natural-born citizen. But that child can afterwards give natural-born citizenship to his child. That is the amazing thing about it. The child of a mother who is an Irish citizen cannot ever become a natural-born citizen. But when he gets a certificate of naturalisation—speaking of male—on being married and becoming a father, by simply signing a certificate containing the names of his children, these children become natural-born citizens. That is an amazing in-and-out performance. I wonder what is behind it. In the third group, we have people born outside the country. If the father is either a natural-born or a naturalised person, then those children, on being registered according to certain conditions, become natural-born citizens and have all the rights and privileges of transmission. I do not know whether that was done with intention. There could be any number of these categories, according to the angle from which you view the position. I think that, with regard to the original stock, where a child is born outside the country, if either parent is a citizen under Article 3, that child should automatically become a natural-born citizen. The President begs that argument and takes me as arguing, on that small point, for citizenship following either parent. I do not argue that. I am arguing only in regard to the small, particular class of Article 3 citizens. The other argument may follow later. At the moment I am not arguing that citizenship should follow the mother as well as the father. That is not the foundation of this Bill. It is not based on parentage, but on the place where born. When, however, we do make a distinction and allow a child born outside the country of a father, who is an Article 3 citizen, automatically to become a natural-born citizen, why should we not say that, in relation to that small class, a child born outside the country, either of whose parents is an Article 3 citizen, should be automatically a natural-born citizen? That is not enlarging the text of the measure so as to make nationality follow either parent; it is only suggested in regard to this limited group.
I object to the provision whereby a man, getting a certificate of naturalisation, by merely writing down the names of his children should have them regarded as natural-born and not as naturalised citizens. On coming of age, they can, of course, repudiate citizenship. Those are my two main objections. I do not think that what we are talking about is in the measure at all but these are the foundation ideas and I object to them specifically on these two points.
Would the Deputy be good enough to mention the two points again?
When we begin to divagate and deal with people not born in the country, we make a distinction. We say that children born outside the country of a father who is an Article 3 citizen become automatically natural-born citizens. But when we come to the case of children born outside the country of a mother who is an Article 3 citizen, these children do not become automatically natural-born citizens and cannot become, by registration, natural-born citizens. Then, we come to the people under Article 8. If an alien gets a certificate of naturalisation and afterwards is married and has children, by merely writing down their names these children become natural born citizens, although we prevent children born outside the country of a mother who is an Article 3 citizen from ever becoming natural-born citizens.
A further case might arise—the case of an Irish girl who married a Frenchman ten years ago. A son was born in France. He was liable to military service. The mother thought it would be better for her children to escape that. She leaves for Ireland, and on the way, a second son is born. This child is born in England. The next time she takes greater precautions and the child is born in Ireland. She has three sons—one born in Ireland, one born in England, and one born in France. These three children will have different nationalities, according to the President, Deputy McGilligan and Deputy MacDermot. The son born here has citizenship according to Section 2, sub-section (1). The other two sons cannot get it under any circumstances, so that we have a case of a cosmopolitan family.
Are we to take it that the citizenship provisions of Article 3 will continue to operate after the passage of this Bill?
That is the intention.
Then you may have a class of person who will be both Article 3 citizens and natural-born citizens and who, in their different capacities, will have different rights which they will pass on to their progeny. Furthermore, if Article 3 is to continue to operate, you will have serious difficulty in regard to women, because women, under Article 3, have the right to transmit nationality, whereas, under the Bill, no such right obtains. If that be not the case, you will have after the passage of this Bill the extraordinary anomaly that an Article 3 mother may have half her family citizens of the State and the other half non-citizens. An Article 3 mother who, prior to the passage of this Bill, conveyed citizenship to her children under Article 3——
Rather an Irish mother who conveyed Article 3 citizenship to her children.
After the passage of this Bill, that cannot be the case. Will it be possible after the passing of this Bill to have united in one person Article 3 citizenship and natural-born citizenship?
I do not think so. I do not think that that is in the Bill. It certainly was not the intention. We did not propose to touch the Article 3 class. They were already there under the Constitution. In regard to them, the only question is that raised by Deputy McGilligan regarding domicile. Personally, I should require a great deal of proof before I would be satisfied in the case of a man who had gone away and had no connection with the country. As to domicile, I think each particular case would have to be considered on its merits. I do not know the law on the subject sufficiently, but I think you would get different legal opinions on the point. There has been a great deal of litigation with regard to it. If Deputy McGilligan's view was taken, it is possible that some person outside the country would be regarded as an Article 3 person who would not occur to me as being entitled to citizenship. That is, if the Deputy's view was taken and it was proved to the satisfaction of a court that domicile was attached to a person who was permanently resident outside. What I am anxious to get is agreement upon principles or, if we disagree, to know exactly where we disagree, so that the relative merits of the two principles, if they are principles, may be weighed. On the first point as to women citizens under Article 3, I admit that the Deputy has made a certain case. I shall examine its implications. I do not want to cut across the fundamental principle upon which we had decided— that there would be transmission of nationality only through the father. I do not want to cut across that, but I shall consider the point favourably.
You do realise that transmission through the father only occurs in the case of a person outside the country.
I shall consider the point made by Deputy McGilligan. If it does not lead to further conflict of laws, and that sort of difficulty, I shall consider it favourably and see whether on its merits it has something in its favour.
Unless it leads to difficulty I will be prepared to try and get an amendment to cover the point. With regard to the question by registration of naturalised citizens giving their children natural-born status, I do not think I am quite prepared to go as far as the Deputy in regard to that. The Deputy does not wish to have these entered as natural-born citizens on registration, but we have not come to the section dealing with that yet. When we do, we can go into it more fully. Before we pass away from this section, I would like to say that I approached this Bill in a spirit that I stated on Second Reading. I regard the Bill as a very important one.
There is great complication in nationality laws, and the nationality of a person will be determined by the laws of the country with which he is associated. Nationality will be determined according to our citizens by Irish laws. There are other cases that come up for consideration. There is the case of dual nationality. It is difficult and complicated. Take a person born here of foreign parents. The same thing happens in the case of American parents whose children are born abroad. The children pose at one time as American citizens and also as citizens of the country in which they were born. There is a certain clash and there is no principle that will uniquely determine for each his nationality. Where there is a question of military service, where two countries are claiming a youth for military service, the principle acted upon is that he should go to the country with which he is most intimately associated. That is a commonsense principle.
I am anxious to come to an understanding of the categories of people who are our citizens; and if we differ I want to know where exactly we differ, so that if we go to a vote and there is a division we would divide on the actual merits of the case. What we say is, and what we are trying to get is, that every person born here should be a natural-born citizen; that those born outside the country of an Irish father should be citizens by right of the father; that if the father was born here then citizenship was automatic; that if the father himself was not born here, the children should be registered.
In the case of children of the mother, there is a section of tremendous importance dealing with that matter, namely, Section 6. At the request of either parent, children become citizens, but not natural-born. Natural-born citizens and naturalised citizens have the same rights and privileges. There is no distinction except the mere nominal distinction as to the manner in which their nationality came to them. But under the law, as to privileges, rights and duties, there is no difference between naturalised citizens and natural-born citizens.
And later transmission.
As regards later transmission, if we take naturalised and natural born——
I am harping back to your first phrase of putting them in some categories.
I do not want to have natural born citizens in an inferior position to naturalised citizens, and that is what is intended in the change here. I was wrong in saying that we equated Article 3, in every respect, as far as the powers of transmission go. In fact, here an Article 3 citizen is in a superior position because the limitation that applies to a father who is a natural-born citizen, and one born outside the country, as regards transmission of nationality, does not apply to an Article 3 citizen, so an Article 3 citizen is in a superior position. These are the classes provided for here. We have to be careful that the things we have set down here do what we want. That is a matter of interpretation and, I think, what we have set down here does what we want, and my advisers think so too. If it can be pointed out that the section here does not carry out that intention, I would have it very carefully examined into. As regards the question of women in regard to Article 3, I will have that matter very carefully considered.
I would draw the President's attention to this particular situation. Here you have Article 3 which lays down certain conditions on which citizenship is passed on from parents to children. You are now determining that you will only allow citizenship to be passed from the father to his progeny, and it will not pass from the mother to her progeny. That is quite understandable under the terms of this Bill. What I do not understand is this, that unless you purport to amend the Constitution in respect of Article 3 there is a body of Irish women under Article 3 who will hand down citizenship to their offspring at the present moment. Is not that so?
I am not accepting that.
Article 3 says very clearly that "every person without distinction of sex ... who was born, or either of whose parents was born in Ireland, is a citizen of the Irish Free State."
Every person without distinction of sex domiciled in the area.
I am taking these words as running through the whole article. I say that there is certainly a body of Irish women qualified now, at the present moment, to hand on Free State citizenship to their children.
Show me how. At the present time by Article 3, that may be so.
"Every person without distinction of sex domiciled in the area of the jurisdiction of the Free State ... who was born in Ireland or either of whose parents was born in Ireland."
"At the time of the coming into operation of this Constitution."
"Is a citizen of the Irish Free State." My contention, whether it be right or wrong, is, I apprehend from reading that article, that there are here Irish women at the present time capable of conveying citizenship to their offspring.
I do not admit that.
I was submitting it as my contention and if my contention is true, then there will be existing a fourth class of citizen which will come down from those women and be transmitted to their offspring, deriving their nationality from women who acquired their capacity to convey that nationality under Article 3. I think that that is worth looking into.
The Attorney-General
I should like to say one word with regard to this matter. I do not think that the Deputy is right in his interpretation of Article 3. If he would keep in mind some of the broad principles governing what constitutes nationality, I think it might be helpful. In most countries, the broad principles laid down are, birth, descent, or what Deputy McGilligan describes as locality. In other words, some nations lay down, as the broad basis upon which nationality is to be acquired, birth in the country. That is what obtains under the British law, for instance, and under the American law. In Continental countries they give more place to the acquisition of nationality by descent. I do not think that Article 3 is helpful in this connection at all. If one considers the circumstances under which that Article was drafted, one can quite see why neither of those two questions follows from it. It must be remembered that at that time you had a new State beginning and you had to define, for the purposes of the State, who were its citizens. You took a body of people domiciled here at the time, and the draftsmen made those people the nucleus of the new State. That is why domicile was made the test at the time. We are departing from that now and adopting a new method, for the reason that the original method was, necessarily, artificial and produced certain anomalies, as has been pointed out.
We are starting with a new definition. The new definition is birth, or the place of birth or descent. You will see, if you look at the first part of Article 3, that it embraces, first of all, every person, without distinction of sex, domiciled in the area of the jurisdiction——
Stop there. What is meant by "domiciled"?
The Attorney-General
The Deputy must have looked up the definition of "domicile," and I am sure he understands it. I do not pretend to say what its definition is in reference to this Bill. The question of domicile finds no place in this Bill. The broad test of citizenship in this Bill is founded on birth, and is to be found in Section 2 of this Bill, and has no relation to domicile at all.
Article 3 of the Constitution is not repealed, and if Article 3 carries domicile as a test of citizenship for the future, that test is there still.
The Attorney-General
All I can say is that my interpretation—and I think it is the general interpretation that has been connected with Article 3 since the date of the passing of the Constitution —is that Article 3 relates to the date on which it was passed. The Article says:—
"Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) at the time of the coming into operation of this Constitution who was born in Ireland ....."
and then it goes on to add a further test, as follows:—
"... or either of whose parents was born in Ireland or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State for not less than seven years."
I think that it is quite wrong to endeavour to argue from that that there is a principle underlying that argument that is being departed from here with regard to transmission. I submit that it is an additional test. Then the Article goes on to say:
"... provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State shall be determined by law."
Originally, therefore, the principle involved was that of ordinary residence, and those were the necessarily artificial tests set up to deal with an entirely unusual situation on the basis of which citizenship was to be conferred at the coming into operation of the new State. In order to show that that was what was in the minds of the draftsmen in drawing up that section, I draw the Deputy's particular attention to the concluding words, which I have already quoted, and which were as follows:
"... and the conditions governing the future acquisition and termination of citizenship in the Irish Free State (Saorstát Eireann) shall be determined by law."
And this is a law for the future acquisition of citizenship from the passing of that Act. I think it is quite clear. That period was the start of it, and all citizens who answered to the test then imposed were to be included as citizens. As from that date, however, it was necessary to introduce a nationality law. That is being introduced now; particularly in view of certain things that existed on account of the gap that existed between that period and the present time, and also in view of the usual practice of the English common law of nationality as it is phrased in the King's Dominions. Then, the statute law has come in and extended that in some respects in bringing in nationality by descent. Similarly, you have here the underlying principle of nationality by birth, without regard to whether the parents were aliens or not. Then you have these other added and restricting conditions as regards nationality by descent. As the President has already dealt with all that matter, I do not think I need say any more.
If I might be allowed to speak for the last time on this matter, I should like to say a few words. I submit that we cannot get any further on the discussion of citizenship until we are clear on the point that residence and domicile have nothing to do with one another.
The Attorney-General
Nothing to do with this Bill.
That is the point of the Attorney-General's which, I believe, is fallacious. However, I consider that it is worth while to have it made clear that there is nothing equivalent between domicile and residence.
The Attorney-General
Except that a person resident here is deemed to be domiciled here.
I think that if the Attorney-General would listen to me, instead of interrupting, it would be better.
The Attorney-General
It is an important point.
It is an important point. It is so important that I proceed with it. However, let us agree that residence is a test of domicile. I do not say that it is the only test. It is not the only test, nor is it by any means the only test.
The Attorney-General
It is the first test.
Yes. It is the first test to the extent that you need not go into other tests if that is satisfied, but it is not the only test to the extent that you need not go into any other tests. Beyond that, the questions of domicile and residence are completely distinct, you might say.
The Attorney-General
That is wrong.
I think it will be admitted by the Attorney-General that, in the last ten years, there have been at least half a dozen judgments in the courts—a couple in the Supreme Court —where the question of domicile has been ruled upon.
The Attorney-General
I know that.
Well, I am trying to educate the President, via the Attorney-General, to a little extent.
I am always open to education.
We agree that you cannot restrict domicile to residence, and it is notorious that on the day on which we first discussed this argument, two lawyers in the House—one of whom has since become a judge—discussed this matter and discussed it by positing that domicile was completely distinct from residence. That being so, let me say, with regard to Article 3, that you have an argument on both sides, and, undoubtedly, the lay mind generally has taken Article 3 to be restricted to the moment of the passing of the Constitution and to take it as if the phrase, "at the time of the coming into operation of this Constitution", governed not merely domicile but also residence. I only say that the phrase is not there in relation to residence. The only time limitation is, as far as Article 3 is concerned, the question of domicile, and that is intentional. That is the animus revertendi. Let us assume that domicile is agreed upon and that no court could deny it. Then you go on and it appears that any person who wants to claim citizenship at a particular time, and who can prove that he was born of an Article 3 mother, is a citizen.
Let me turn to the argument against that construction. It is not a natural construction. The argument against that construction is the phrase that the Attorney-General has referred to: that we go on to talk about future acquisition and termination. Supposing that the minds of the framers of the Constitution had been clear, that they wanted to give citizenship not merely to the classes found in certain conditions in the Free State at the time of the passing of the Constitution, but wanted to give it only in the continuing way that I have spoken of, they would still have to put in the phrase about future acquisition with regard, say, to aliens. I think that is agreed, so that the phrase is not completely without force on the interpretation that I am suggesting, and I suggest that interpretation is there. That is why I had to ask at the beginning whether this Bill in any way repealed, amended or cut in on Article 3. If it does not, some people had better begin to think about what Article 3 is, and whether they want to continue it in a doubtful way. If they want to amend it, then to proceed to amend it by taking out a phrase that has no effect at all would certainly not be by way of limitation. If it is thought that we should make it clear that it was related to a particular moment of time and has no effect beyond that, then it may have to be amended, retrospectively, deeming it always to have been that way. But that does not occur in the Bill. I suggest that it should not be tossed aside as a matter of mere wordy argument because, as Deputy Dillon has suggested, there is an interpretation of Article 3 despite all the force that has been laid on the phrase at the end about future acquisition of citizenship. There is an argument which might prevail and which might give, despite this Bill, citizenship to the child of an Article 3 mother, even although that child was born outside Saorstát Eireann.
I understand that we are not allowing for that in this Bill and the President is disposed to prevent such acquisition of citizenship. But it may be in Article 3, and I am simply putting it that it can be argued that it is. Undoubtedly, there are grounds upon which it can be argued. I have sometimes heard a judge, when asked to put a construction on this—to read this as if there was in the Article "ordinarily resident in the area of the jurisdiction of the Irish Free State for not less than seven years" at the time of the coming into operation of it—say "that phrase is not there and I will not put it in for you." It is possible that that Article has a continuing force and effect and that it will rule citizenship hereafter. There may be a contrariety as between it and what we are now proposing.
The President said that citizenship is a matter that ought to be defined accurately. That is a vain hope. When the President put it that way I think he ought to withdraw the measure until we know who are our citizens and who are not. I do not think that we will ever know that until individual cases, as they arise, have been determined. We can lay down tests, but I do not think there is any necessity why we should bark up anyone else's tree or why they should bark up ours. There is no reason why we should grab across the ocean at certain people in America under Article 3, if still continued in force, simply because we say that we consider that under a certain circumstance they are our citizens. There is no reason why we should fall out with the people and Government of America or any other country because they also claim these people to be their citizens. There is no reason why we should make that claim entirely disregarding what other people say. As a practical matter, do we want certain people of ours, if a test of nationality is applied in another country, to give up certain preferences or certain work which they have got because we consider it a degradation of our national status here, or because we consider that they are being saddled with something that we do not want them to have? It would be a more dignified way to say that we mean this Bill to meet certain objections raised on the other side.
On the details of this amendment I would like to make one or two concrete suggestions. First of all, on Amendment No. 2 we have only discussed paragraphs (a) and (b). I would ask the President to look at paragraph (d). This is a very small matter that could be easily rectified. This paragraph provides:
Where such person shall not be a natural-born citizen of Saorstát Eireann unless within one year or, where the Minister because of special circumstances so permits, within two years after the day of such person's birth the fact of such person's birth is registered—
(d) if such person is born in a country in which there is, on the day of his birth, a Saorstát Eireann legation or consulate, in the foreign births entry book kept at such legation or consulate or in the foreign births register.
Supposing that there is a legation or consulate there on the day of his birth and it is withdrawn inside the yearly period, where is he to register? The test is, if there is a consulate or legation in existence on the date of his birth, he is then given a year in which to register, but he has only one place in which to register. There is no alternative. But supposing that the legation or consulate is there at the time of his birth and then disappears, where is he to register? Clearly, there must be some provision made to meet that. It is only a minor matter, but I think it should be attended to.
I suggest that if this matter of ships is to be determined probably the best thing would be to define in a definition section that a particular ship registered in Saorstát Eireann was, for the purpose of determining the place of birth, to be deemed to be Saorstát Eireann. Then Saorstát Eireann will afterwards, by whatever it is deemed to be, define the definition that will have to be given to that term. I suggest, further, that unless there is some reason for it paragraphs (a) and (b) of Section 1, sub-section (2) ought to be collapsed into one. Paragraphs (c) and (d), if my suggestion about definitions is adopted, will disappear. There does not seem to be any reason why a distinction should be made between birth "on or after the 6th day of December, 1922," and between "on or after the date of the passing of this Act." I think that paragraphs (a) and (b) might be collapsed into one special clause.
What value would there be in re-drafting the paragraphs in the form in which the Deputy suggests?
Because it is a matter of surplus age to have them as they are if there is no real reason for it. The courts hereafter may say that this was not put in for nothing, and may go around searching to get a reason for it. Surely it is not a mere matter of convenience. If there is no reason for it and if simply saying "born after the 6th day of December, 1922," fills the bill for all practical purposes, why not leave it that way? Similarly, with regard to (c) and (d) I want to suggest another amendment. I think the President has agreed that the first line in (e) 2 (1) should go out. At least that is to be considered, the evidence tending rather at the moment towards the desirability of removing that line as it means nothing. I want to suggest also that the first line in (f) should go out. We say: "Subject to the subsequent provisions of this section." That is what I called before a signpost to an exception and, as a signpost to an exception in the Bill, is logical on this very matter we are dealing with in (f). Paragraph (f) deals with the person who is born outside and whose father was, on the day of such person's birth, a citizen of Saorstát Eireann, but there is no provision dealing with that case. When you come to subsequent provisions, they deal only with the natural-born or a naturalised father.
If you take "citizen" as inclusive of all classes—that is under Article 3 and so on—we will take the other as an exception in the case of a naturalised and natural-born father. Would there then not be a reason for the paragraph? If the word "citizen" in (f) does not mean an Article 3 citizen, he is a natural-born or a naturalised citizen. Then are there not exceptions? You are giving a special privilege, so to speak. You are not asking an Article 3 citizen to be subject to the conditions we had in sub-section (2) in regard to natural-born and naturalised citizens. Is the paragraph not required when you are dealing with it in that form?
On that particular basis I thought we were getting to the point where——
I see—the mother.
That is another point. Where that occurs it will have to be amended in different ways. I thought we were coming to the point where we were making a clear-cut distinction between an Article 3 citizen and a natural-born and naturalised citizen.
I think "citizen" is universal here.
It is stated in the definition clause that "citizen" includes a person who is a citizen of Saorstát Eireann by virtue of Article 3. Then take the next section. It starts off with the following:—
The following persons shall be natural-born citizens of Saorstát Eireann.
They are a special class.
At any rate, I am suggesting that since the line is going in (e) it should go out in (f), and that any exceptions that may be made should refer only to those natural-born citizens and naturalised citizens. Again, Saorstát Eireann has been defined in the Interpretation Act. This definition with regard to ordinary laws, fits because there is no doubt about the content of the definition. It is the area for the time being within the jurisdiction of the Parliament and Government of Saorstát Eireann. That still rules most of the laws that are passed, but this is a special and peculiar law. It is a law in which the definition of "Saorstát Eireann" is the groundwork and the basis of the whole thing. I suggest to the President that, first of all, there will have to be a determination as to whether that definition in the Interpretation Act does meet the situation. If it is thought that it does, there will be no need for an amendment, but supposing it is agreed that that phrase in the restrictive Preamble does not meet the circumstances under this Bill, why not amend the definition of Saorstát Eireann under this Bill for the purposes of nationality and citizenship because if you go back to the Interpretation Act you may have to give this Bill a retrospective interpretation.
I do not think it needs amendment. However, we shall look into it.
I suggest it does not meet the situation. The definition of Saorstát Eireann is in this Bill the groundwork of the whole measure. These are the main matters on which I wanted to touch. There are one or two smaller points, but they can be dealt with on later parts of the section. I am only now dealing with the section as brought into debate by the amendment that is supposed to be under discussion.
I do not agree with the Deputy's point regarding the foreign births registration. He referred to the fact that there might be no legation in existence at the time of the birth. I think he will find that there is an alternative in the clause. There is a foreign births book which is kept at the legation, and there is a foreign births register which is kept at the Minister's office.
What happens if the legation is closed at the date of the birth?
I would suggest that the Deputy should read the end of paragraphs (d) and (e). The birth is to be registered in the foreign births entry book kept at such legation or consulate, or in the foreign births register, or, if the legation should have disappeared, then there is the alternative of registering at headquarters in the foreign births register.
The phrase "on the day of his birth" might be changed to "at the date of registration." I suggest that the neater phrase would be "in which there is at the date of application for registration."
I shall have that considered.
Amendment put and agreed to.
Amendment No. 3 ruled out of order.
Question: "That Section 2, as amended, stand part of the Bill."
I note that at the end of sub-section 4 (a) we more or less preclude certain people from having Irish citizenship. We say at the end of Section 2, sub-section 4 (a) that a person who was born in Saorstát Eireann on or after the 6th day of December, 1922, shall not be a natural-born citizen if such person's father was a foreign representative. We add the peculiar phrase at the end of the paragraph "and in any case possesses the nationality of the country for which such mission was accredited." Supposing there was a woman born here under conditions, which under the laws of her country, would mean that she had no nationality—she would be Stateless—does it mean that we give her Irish nationality? In other words, why put in that additional qualification, because it is an additional qualification to everything that precedes it? Why should we want, in other words, to take and stamp as Irish citizens people who might be born under circumstances here—that is to say the children of foreign representatives; it would be a very exceptional case—who would not have the nationality of their fathers? Supposing they had not the nationality of the State to which their fathers were accredited, why should we want to give them Irish nationality?
Do we?
We do. Under Section 2 (1) we give every person born in the Free State our nationality and then in sub-section (4) we say that notwithstanding anything contained in the foregoing provisions of the section a person born here shall not be a natural-born citizen, if such person's father was a foreign representative and "in any case posseses the nationality of the country by which such mission was accredited."
That is to try and conform to The Hague Convention. We say that if he possesses the nationality of the other country, we do not give it to him where the appointment... has been officially notified to the Minister for External Affairs or otherwise entitles to diplomatic immunities and in any case where the father possesses the nationality of the of the country by which such mission is accredited.
Everything that goes before means foreign representative and then we add "and in any case."
Is it not here that we say if he is a foreign diplomat we except him? He is not a citizen. We do not claim him. If, in addition to that, or apart from that, he should have the nationality of the country to which——
Surely not. That is a very big enlargement of what I thought was in the section. I take this as meaning, first of all, that everybody born here is a citizen. Then we make an exception that even if a person is born here we do not call him a citizen if he has two qualifications. The first one, I describe it generally, would be that he is a diplomatic foreign representative. That is from the words "if such person's father was or is, on the day of such person's birth, envoy extraordinary and minister plenipotentiary." I am collapsing that into this phrase, if he is a diplomatic representative of a foreign country, and then we say if, in addition to being a foreign diplomat——
Is it by way of addition?
That is what I am asking. Why should it be put on as an addition?
I am not interpreting it in the same manner as the Deputy. "... whose appointment as such has been officially notified ... or is otherwise entitled to diplomatic immunities and in any case possesses the nationality of the country by which such mission is accredited."
There are two cases. I can see a case arising, for some reason or another, because of the laws of a foreign country. Let us say a foreign representative here has married a person not of his own country. Then, according to the foreign nationality laws of these countries, a person born here might not be a national of either of those two countries. Supposing you had a Persian Envoy here and there was a typist in his office or somebody who was not of sufficient status to get diplomatic immunities. Suppose that person was a woman and that person was married to a German and the child of that marriage, born here, under the German law became a German. Then we make that person an Irish citizen because they have not the nationality of the country by which the man is accredited and I do not think we ever meant that.
Why is a distinction made between Ministers and consuls? Why is it that the children of consuls are to become apparently automatically Irish citizens unless certain——
That conforms to a universal custom.
At the end of sub-section (3) of Section 2 it is set out "every natural born citizen of Saorstát Eireann whose right to such citizenship is conditional ... shall cease to be a citizen ... at the expiration of one year ... unless such person, after attaining that age ... makes in the prescribed form ... a declaration of retention of his citizenship ... and also, if he is a citizen of a foreign country, divests himself, in accordance with the laws of that country, of his citizenship thereof." Why not have a declaration of retention, at any rate, the condition precedent, and add, for most cases, the other if you like? I can envisage circumstances in which a person who wants to become a citizen here, but has become a citizen elsewhere, will find it difficult to divest himself of the citizenship of another country, and there are cases in which he will not be able to do it for years. What is to happen to that person who decides to retain citizenship here and takes the preliminary steps to divest himself of the other citizenship? He finds that he has a waiting period of three or five years before that can happen. What is to be the intermediate condition of that individual?
It is clear that the intention here was that the obligation of registration was imposed so as to bring up some positive act to show there was a desire—and this is an act on the part of the child himself when he attains the majority—to be an Irish citizen. If the father was not born here, and if the child was not born here the relationship in connection with this country might be rather remote, or is remote, and, consequently, it is desirable that there should be some positive act. Number one is the positive act that is required as a declaration of retention of citizenship. The other is that nobody should seek to acquire citizenship by a positive act when he or she was, in fact, a citizen of another country. You have the operation of laws relating to dual citizenship. If a person wants our nationality, desires it, the positive act indicating that desire ought to be accompanied by the relinquishing of the citizenship of another country. It is a positive act, and I do not think, whilst you cannot help the automatic operation of laws in connection with dual citizenship, we ought to make it easy for people.
Is Britain a foreign country for the purpose of that section?
As far as our laws are concerned, and as far as this is concerned, anyone who is not a citizen in accordance with this Act when it is passed will be an alien.
The phrase occurs in line 42: "if he is a citizen of a foreign country, divests himself in accordance with the laws of that country, of his citizenship thereof." Is Britain a foreign country within the meaning of that clause?
I would say so.
What is the way of getting rid of British citizenship for a man who wants to make that declaration?
In most cases the very fact of getting new citizenship, by a positive act like this, getting the citizenship of another country, would automatically make them non-citizens of their original country. That is so in most cases, but I am not quite sure if that is so in the case of Britain.
That is why I asked that that should be examined, because it seems to me that divesting is going to be such a complicated business, and, possibly, a lengthy business and an obnoxious business, so far as Great Britain is concerned——
I think that in British law the mere getting of another citizenship would. I am assuming now that there is not a special position.
I am taking it on the basis that from the angle of that section, in relation to Britain, this country is considered to be France, say.
Yes.
In those circumstances, all I say is: would inquiry be made as to whether a person, who, in some way or another, became a French citizen would automatically divest himself of his other citizenship?
I understand that, in the case of Britain, he would.
I should like to have that examined with regard to other countries where there might be a lengthy period of divestiture, and to see what is the necessity for having in those last two-and-a-half lines. If there is necessity to have them, would the clause not run better in the form of making it a condition precedent that there should be, within this year or a longer period, a registration of a declaration of retention of our citizenship, and add then, that, for exceptional purposes or in exceptional circumstances, the Minister might demand also, in order to do away with double citizenship, that the former citizenship be divested. It is a bad thing to make it a general rule when you do not know what you are walking into.
I would strongly suggest that the President should hesitate before laying down in a definition that any other part of the British Commonwealth would come under the heading of a foreign country. I think it would be a very revolutionary thing to decide that, say, an Irish-Australian would have to formally divest himself of his citizenship before acquiring ours.
We are making special provision in certain sections for privileges to be accorded—reciprocal privileges. It is not germane, I quite agree, but I think it is to Deputy MacDermot's remark.
It is not the same thing.
Section 2, as amended, agreed to.
SECTION 3.
I take it that the same principle underlines amendments 4, 7, 12, 25 and 26.
I move amendment 4:—
Before Section 3 to insert a new section:—
"The wife and children of a citizen of Saorstát Eireann shall be citizens of Saorstát Eireann."
The rule at present in force here, that a wife takes the nationality or citizenship of her husband, simplifies all matters of nationality and prevents the introduction of barriers between the husband and wife. In the case of marriages, where one of the persons is not a Saorstát citizen, the Bill, as it stands, will give the Minister, at his own discretion, power to separate husbands and wives at any time. If a Saorstát citizen marries an alien wife, she would have to get the permission of the Minister to come into the country and obtain a certificate of naturalisation which could be revoked at any time at the Minister's absolute discretion. This is an intolerable situation and should not be allowed to exist even under the excuse that such power would never be used by the Minister. A wife should reside with her husband, and the Bill should not place obstacles in the way of a wife residing with her husband. To introduce sex equality in this matter can only cause confusion between the nationalities of husband and wife, and their children, which is undesirable and quite unnecessary if this amendment is accepted.
I cannot accept this amendment. It cuts across the general principles of the Bill. The principle in the Bill here is that marriage of itself should not affect nationality. There are hardships of a variety of kinds which follow from any such law as that which would be our law here if this amendment was accepted. We make it easy for a husband or wife to acquire a common nationality. If a foreign woman comes here and marries an Irishman, the Minister will naturally impose no obstacles that should not be imposed in the way of such marriage, but there are instances in which marriage like that is resorted to for special purposes, and I think it ought to be retained as a power of the State or the Executive to prevent that. The conditions under which a woman coming in can acquire Irish nationality are set out in later sections, and I think that, when we come to them, we will find that they are not by any means onerous, and that it is very easy, by a positive act on the part of the person coming in, to acquire the nationality of the other spouse.
In the same way, if an Irishwoman goes abroad and marries a foreigner, she will be deemed to have lost her nationality unless within a certain period she takes a positive act for the retention of her Irish nationality. We are dealing with that in a later amendment. If an Irishwoman is abroad and if she becomes a widow, there are provisions by which she could resume her nationality on returning here and by a declaration, if she does not return, she will be Irish. We have provided also that Statelessness which is one of the evils at the basis of the calling of the Hague Conference, will be avoided. The principle in the amendment is different from the principle we are adopting here and we are adopting this principle deliberately, believing that, on the whole, it is fairer to women. The only ground on which there could be objection taken to our principle is on the supposition that the Minister was going wilfully to do something which I do not think there would be any reason for doing. He has certain powers to prevent, for instance, an immoral person coming in here and using marriage as a reason to reside here or something of that sort. I do not think there is anything in the principle to which objection can be taken, except on the assumption that the Minister would act in a way in which there would, I think, be no inducement for him to act. If the Deputy would suggest what motive a Minister could have in doing any of the things he has suggested might be done, I would certainly think the matter should be examined very carefully, but I have asked myself the question and can see no motive that there could be. I think then I will have to refuse the amendment.
Can the President say why he alters the present principle? A woman at the present moment takes the nationality of her husband, and there is no further bother about it.
There is a great deal of bother about it.
Has there been any demand for a variation in the system?
Oh, yes. I have suggested that there are a number of evils which follow on the system of the wife automatically taking the nationality of her husband, apart altogether from any question of equality of the sexes or anything of that kind.
I know that has caused trouble in another country, but I do not think it has caused any trouble here.
Take for instance the case of an Irishwoman married to some person on the Continent. She has lost her nationality, and she may not, for instance, ever acquire at all the nationality of her spouse. I am taking the case of a foreign woman coming here. According to your principle she would become an Irish citizen——
She does that at present.
Abroad, there have been difficulties.
What is the reason for the change?
The Deputy's remark is being questioned on the point as to whether or not any law to that effect applies here at the moment.
I understand that at the moment the wife takes the nationality of her husband——
It would be a big question as to whether or not the law which the Deputy has in mind applies here. The only law we have here at the moment with regard to our citizens is Article 3.
Unless the Act you are repealing applies.
Having examined the matter, and balanced all the pros and cons, we have decided that we would proceed as in this Bill. The Deputy's amendment is on quite a different principle; we see no reason why that principle should obtain. The other principle is fairer as regards equality of the sexes, and generally is fairer for the woman.
Is there anything in Article 3 that this amendment cuts across?
I do not think so, but with the new interpretations and suggested interpretations of Article 3——
They do not touch that point. On Deputy Good's amendment, surely, it deserves more consideration than has been given to it in the discussion so far. Deputy Good wants to get back to what used to be the position generally in the world, whether it was so here or not, that matter depending on whether we carried over by Article 3 of the Constitution certain British Acts. Certainly up to the outbreak of the war the guiding principle was that marriage did make a change, and that the wife took on the nationality of her husband. Their citizenship status was determined by birth, and the whole thing was ruled by the nationality of the father. Deputy Good asks whether there has been any difficulty about this matter. There has been considerable difficulty lasting over about eight or nine years. Not this exact phrase, but what is at the bottom of it was the question that was discussed at at least two, if not three, Imperial Conferences. It was discussed at a special conference called at the Hague and was discussed twice, I think, at the League of Nations. The point which the President might have informed us on was how many of the countries which previously had this view of the wife taking the nationality of the husband have decided to go back on that. All of the conferences I have spoken of broke up in confusion on the main point. They all agree that there were certain conditions in which either double nationality ensued, or Statelessness ensued. There was agreement that those particular circumstances should be met; that one should obviate a Stateless period, and that equally one should obviate a period during which there was double nationality. There are some important countries which have accepted the view that marriage should not make any change. With us, of course, that matter is not of so much substance, because it should be remembered that in the future we are not dependent upon the nationality of the parents. In the main we are dependent upon the place of birth. Whether both the parents are Irish, or one of them is Irish and the other not Irish, or both are aliens, does not matter. The place of birth is the foundation upon which we rest our citizenship for the future. "Born in the Irish Free State" is the ruling phrase. We bring in the father, strangely enough, in Section 2, when we get to a person born outside the Free State, but we are certainly in another clause definitely turning our backs on the old view that was held throughout the world—that it was a desirable thing in any event that the husband, the wife and the family should all bear the same nationality.
We are going away from that. We may not be breaking it up through the question on the matter of blood. The question of the place of birth is going to come in at every point in this. Certainly, as far as a phrase can do it, we are saying that marriage shall make no change. I had many examples brought before me of the confusion and even the hardship caused in time of war by the adoption of the principle that the husband and wife should be of the same nationality. In fact, this question became a live one as a result of various things which happened during the war. We had various people who had been married to Germans or Austrians. Then the family was broken up because either the wife who had previously been an Austrian or a German, or the husband who had previously been an Austrian or a German, was taken away and landed in a detention camp of some sort, while the other partner to the marriage was left alone. Even when those matters were put up as points of hardship the discussion did not go very far before it was realised that no matter what point of view you took on the case of a German marrying an Englishwoman, whether, in fact, they became Germans and lived in England, or whether they became English and remained in England, once we came to a person who was, in fact, an alien, he was going to be put in a concentration camp no matter what he called himself. The question of hardship always was there. An equal number of cases of hardship will arise where you make marriage have no effect upon the question of nationality as where you made it, in the eyes of the law, have an effect by making a change. For ordinary purposes, leaving those war circumstances out—and what did happen in the time of war is going to happen no matter what you call the family—I do still think there is a good deal to be said for the principle that the husband, wife and children should all have the same nationality, and that a great deal should be done to achieve that situation. I would even go so far as, if necessary, to allow the wife's nationality to rule. Make the husband change and take whatever is his wife's nationality. I do not think men are so concerned about, so to speak, the dignity of sex rights in this matter as women are. If it pleases those people who are concerned about this, and who are still sticking to the principle that the husband, wife and family should be of the same nationality, in any particular case where the woman on her marriage raises the point let it be decided in the event of disagreement that the husband will be deemed to be of the nationality of his wife.
It is a radical change, possibly more than talked of here. It is not going to happen in many cases, but by doing that you will preserve for ordinary purposes, in times of war and at other times, a sort of unity of the family in relation to citizenship and nationality. This is one point on which I thought the President would have decided to have let this Bill lie over for very much better consideration. It is a rather audacious thing that we should be asked to change the old concept with regard to husband and wife from the angle of nationality when it is known that for about eight years this matter has been very seriously agitated, that as far as the Commonwealth of Nations is concerned, it was discussed twice and hinted at even on earlier occasions; that a special Conference to deal with nothing but primarily the nationality of married women was called at the Hague and that it broke up in confusion and issued a very long report and a very short report on the matters in which they were in agreement. Eventually, the women's organisations that were keen on this matter got it referred to the League of Nations. Governments were asked for their observations on the matter, and it was discussed in the Assembly of the League in 1932. Some 18 or 20 countries responded to the invitation with observations, and some others put in observations afterwards. It was possibly the thing most lengthily debated at the first meeting of the League on that occasion, and although there was definite acceptance on the part of certain countries, others were vehemently opposed. I doubt if any of those that declared their point of view on that occasion have since been converted. It is worthy of observation in this House that quite a number of countries disagreed with the proposals on the ground that their Church had definitely recommended—I can go further and say authorised—them to vote against it, and demanded that they should vote against it. I would have thought, as this is not a matter anyone can get very excited about, and seeing that it is a very radical change, the President would have thought fit to direct Deputies' attention to the fact that there was a fair amount of reading to be done, and that the reports would have been specially segregated and put apart in the Library for Deputies to see. They could gauge only from that, that there was a very definite worldwide agitation and very definite divided opinion on the whole matter. He might have seen that there were other possibilities, even if this was regarded as a serious matter; other ways than the phrase used in Section 13, that marriage shall have no effect upon citizenship.
There is a very definite point in Deputy Good's amendment, one that I think should be debated at considerable length, that arguments for it, as seen by women's organisations, should be detailed at length. We might have the observations of one or two great countries which cannot be regarded as illiberal in their legislation regarding women, and the arguments of these countries against, with a view to enlightening Deputies before they, in a rather soporific mood, pass what is going to effect a considerable change.
There is not so much of importance here, but we get "place of birth" right through the Bill. It will have effect otherwise by way of incidents, and, in the state of the nationality laws of the world, and of countries as a whole, we are really going to cause more confusion with Article 13, so far as it is going to have any effect. On the other hand, it can be said that the tendency is towards adopting Article 13. A number of countries are moving slowly towards it, but some are not going to adopt it in entirety. To wipe out anomalies there is a good deal in Deputy Good's amendment.
I appeal to the President to examine the question further. I disagree with Deputy McGilligan on one point, that hardship would be caused only in a few cases. Up to the present it only applies to people of other nationalities who come in, Germans and Persians, but, if we take what the President said a few moments ago, about his definition of Section 2 (3), that he would consider Great Britain a foreign country, I do not at all subscribe to his definition. Supposing we take that definition for a moment there will be considerable hardships. It will be more apparent, I suppose, to one who like myself comes from a border county. If the President is right in his contention Northern Ireland will be a foreign country. One can then visualise quite a number of things occurring. I think that is a poor status to take up in this House, seeing that many Saorstát citizens are at present living in England, Scotland and Northern Ireland. It is not beyond the bounds of possibility that they may wish to come home and settle in the Saorstát, and if the women were not Saorstát citizens what would happen? In the light of that position I should like the President to consider Deputy Good's amendment.
No hardship has been pointed out as a result of the principle we are adopting in this Bill. As to a woman coming into the country, I think we are not asking any residence qualification if she is married to an Irish citizen. In the case of a man we have the two years' qualification, in order that he may become an Irish citizen. We are only asking the positive act. We are not by arbitrary law compelling a person to surrender nationality; we are making it easy to acquire ours. There is no difficulty about it. We are not standing in the way of the unity of the family. We are making it easy to have the unity of the family preserved. We are meeting a view about which there has been considerable agitation, on the ground of the hardships imposed on women by the operation of the contrary principle. There has been considerable agitation about that, and it has become recognised. Deputy McGilligan spoke about a Convention breaking up in confusion. It did nothing of the sort. If he means that they did not get a large number of States to agree with the Convention——
The Hague Convention?
I am informed it broke up on another matter.
Did the Hague Convention agree to what we have here?
That is not what the Deputy said. The Convention did not break up in confusion. It came to decisions on a series of principles.
About Statelessness, and nationality?
It is not right to say that it broke up in confusion. What happened was that agreement was not reached among a large number of States. There was no means of compelling agreement. If the Deputy means that we are not to adopt that principle, that States have not accepted it, he has not got more acceptance of one principle than the other. The fact of the matter is that we are proposing to adopt one which we believe will lead to the avoidance of certain hardships, and that does not do anything positive to prevent the unity of a family as regards nationality. It is easy for the wife, as I say, coming in here, to secure Irish nationality immediately. The husband, if he is a foreigner coming in here, can secure Irish nationality within a period of two years.
With regard to the wife, is the President correct in saying that she can secure it immediately? Is it not the case that under Sections 15 and 16 there is a time limit.
I think the Deputy is thinking of those who go outside and who would lose nationality if they did not——
Six months.
Sections 15 and 16.
You must apply for it within six months after such marriage. Section 16 (c) states:
Where ... within six months after such marriage the party to such marriage who, immediately before such marriage, was not a citizen of Saorstát Eireann duly applies under this Act for a certificate of naturalisation ...
There is no reason why you should wait for six months.
No. Supposing the woman had been married to an Irishman some years before and, as Deputy Haslett suggested, they came back to live in Ireland, the fact of her not having applied for a certificate within the six months stipulated would surely debar her from getting naturalisation except under the ordinary conditions that anybody could get it.
I do not think so.
The Attorney-General
Section 15 gives 12 months after the passing of the Act. Does that meet the Deputy's point?
Section 15 states:—
The Minister may, in respect of the said party so applying for a certificate of naturalisation, dispense with compliance with the provisions of this Act in relation to residence in Saorstát Eireann as a condition precedent to the issue of a certificate of naturalisation.
We do not know how he will exercise that.
Is there any doubt? Can anybody suggest a motive?
Will the President suggest how he will get over Section 16 (c)—the six months? Visualise a case where a person comes in, having been married to a citizen of this country for over a year.
That is the past; that is Section 15.
The Attorney-General
Is the Deputy dealing with the period since 1922 and before the passing of the Act?
I am dealing with Section 16 (c). What would override that?
I think the Deputy is making a mistake. Section 15 refers to the period before the passage of the Act and Section 16 to afterwards.
In either case the difficulty arises. Take Section 15, where the marriage has taken place before the passing of the Act. The woman is called upon to make her application within 12 months after the passing of the Act. As a matter of fact, the situation may not arise for several years after the passing of the Act, even though the marriage had taken place some time ago, so that the 12 months' provision will be no use to her. I am only suggesting that the elimination of the time limit in these two sections might be advisable—that that would make it a great deal easier.
We can extend the time; we have been open to conviction as regards to time; but I am afraid I do not see the point of the Deputy's question.
I do not know how I can explain it. I am sympathetic to the general principle that the Government have adopted and I, personally, think that the wife ought to be at liberty to maintain her original nationality if she wishes to do so. On the other hand, I do not see why she should be called upon to decide quickly and make up her mind once and for all whether to accept her husband's nationality. Circumstances might arise—perhaps children might be born—which might change her view after a time and she might wish to adopt his nationality. In that case it seems to me that she ought to have every facility.
That is the question of time.
This question of opting came out in the discussion at The Hague and at the League of Nations. I have here a paper which gives some of the answers that were returned to Geneva when the small points upon which The Hague Conference, the relatively minor points, described as the absurdly minor points in the case of the women's organisations.
On which they came to an agreement.
Yes. I said at the beginning that there was agreement upon double nationality and Statelessness. In the eyes of the women's organisations, some of them regarded it as a hindrance to have an agreement on that, because they thought many Governments would go away congratulating themselves that they had done a great day's work for the women, whereas they felt they did nothing. Their idea was that it would be far better to have had complete disagreement than agreement on these relatively minor points. The Hague Conference did agree on certain relatively minor points, but they were in utter confusion on the main matter—the matter mainly pressed by the women and which the women were really interested in, and that was that marriage should effect no change. At any rate, what had been agreed upon at The Hague was finally sent around to the Governments of the world so far as they were associated with the League of Nations and these Governments were asked to reply as to whether they thought there ought to be any advance upon this. They were asked would they agree to this and would they go so far as to agree that marriage should have no effect upon nationality.
South Africa, in fact, said they were against any further advance. Germany said:
"That the traditional idea of the civil unity of the family derived from the nature of the marriage union and the unity of the family and also founded on religious principles, is still irreconcilably opposed to the idea of self-determination for women based on the principles of individualism."
Having said that, they also said they would be prepared to engage in a study. The President knows enough of the language of Geneva to know that that means you want to postpone it for ten years. Australia said they were agreeable to accept the principle that woman on marriage shall not lose her nationality provided the rest of the Dominions agree; in principle, they accepted it.
The Belgians said they would be prepared to adopt a provision under which women might at the time of marriage opt for one nationality or the other. That is not what I would call a halfway house, but almost going the whole way with the women's organisations, but avoiding certain difficulties that might arise.
If you lay down that marriage will not affect any change, you can easily make that have the full effect that the women's organisations wanted and yet allow a woman to take the nationality of her husband immediately upon marriage without any other thing binding, if she so desired; in other words, unless she declared against, she would have her husband's nationality. The Belgians, I think, went on to say that they would be prepared to have some study on it, but they were even weaker in their enthusiasm than the Germans. Brazil said that:
"A Brazilian woman who marries a foreigner does not lose her nationality. On the contrary, her marriage facilitates the voluntary acquisition of Brazilian nationality by her husband, if the latter resides in Brazil and possesses immovable property there."
I think the Swedes are very much the same. The State of Columbia was in favour of the proposal. Egypt was definitely and dead against it. The United States of America, the law of which was, I think, the one upon which the women's organisation mainly founded, replied in this way:
"The discussion concerning the nationality of married women, which was held at The Hague Conference and the subsequent development show that this subject was highly controversial. Which fact is also shown by the statement of the Women's Consultative Committee on Nationality. While it appears that a number of States have in recent years adopted statutes in which the nationality of married women is wholly or largely independent of that of their husbands, it remains true that the majority of States still have laws in which the nationality of married women is wholly or largely dependent upon that of their husbands. Moreover, no solution generally acceptable has yet been reached with regard to the problem of the acquisition of citizenship jure sanguinis in cases of children born to parents having different nationalities.”
That indicated another point of objection, but the English reply was that:
"Articles 8 to 11 of The Hague Convention appear to represent the greatest measure of agreement that is likely to be reached for the present in regard to the nationality of married women, and constitute an advance on the present situation. Whether his Majesty's Government in the United Kingdom will be able to go further in the direction of giving effect to the principle of equality between men and women must depend upon the extent to which that principle received the support of the Governments of other countries and especially those of the other members of the British Commonwealth of Nations."
They said we are not in favour of it at the moment, but we will look into it if there is a disposition on the part of other countries to reopen the matter.
Hungary was definitely against it and that objection was founded upon what were called Catholic principles.
Japan said that:
"Since the principle of the equality of men and women as regards nationality is contrary to that family unit which forms the basis of the Japanese social system and since it creates many difficulties, the Japanese Government regrets that it cannot support the adoption of this principle."
Norway has a peculiar reply, because it said that they thought that The Hague Conference report was as far as they could go and they apologised for not having been able even to sign that, but they said they would be able to give sympathetic consideration to any proposal which may be submitted at the next assembly of the League. The Netherlands said that it
"desires to maintain the principle which is the basis of the existing Netherlands law—namely, the unity of nationality in marriage—a principle under which the status of the husband governs that of the wife."
The Hague Conference, representing as it did the greatest measure of agreement, could not agree with the principle of absolute equality of men and women.
Sweden have a peculiar law apparently and they are prepared to go to the point that
"the woman would not acquire the status of Swedish nationality by marriage with a Swede unless she is domiciled in Sweden at the moment of marriage or establishes her domicile there during the marriage."
These were the prevailing observations, and the majority of them were against, because of what they thought was the family unit. There is a case against that and the case which they stated here might get approval. But the case has not been stated, it is simply a case of having a Bill brought in and we are asked to pass that without any comment.
I do not know if it is necessary that I should reply to that. The way I look at the matter is this: there is no reason at all why we should have a law automatically operating in the way suggested. We are not by law affecting in any way the unity of the family because in the case of an Irish national marrying a person from outside, we make it easy for the second party to become an Irish citizen and in that way to preserve the unity of the family. In the case of a person going outside, we declare that the Irish woman going abroad will lose her nationality if she marries a foreign husband unless she takes a positive step to indicate that she wants to retain her nationality. For that reason it is beside the question to raise the point as to the unity of the family. In this Bill we are trying to deal with what, by the automatic operation of the law, has been known to create a hardship. There is no hardship created under our Bill. There is a demand which has been supported by a large section of Catholic opinion, as well as by opinion of another sort, in favour of giving relief—not imposing those hardships upon women which fall from the automatic operation of the law. The only reason why a long explanation would be necessary here is because the principle which the larger number of States adopt is not being adopted by us. We could not get agreement on this matter here amongst ourselves. In this case where different conditions, traditions and opinions are operating we want to get the consent of other nations. The nationality of the individual will be determined by our laws here, as we claim them to be citizens. Consequently, it is not necessary at all to go any further than simply to state that nobody has shown that the operation of the law, as we propose it, would impose any hardship beyond that which from time to time may arise because of the husband and wife being of different nationalities.
I did not make any mention as yet of anything about hardships.
That was mentioned by the Deputy.
It is in time of war that will happen.
There is an automatic application of law which the person involved cannot get out of.
In England when the war broke out the situation was that German women who married Englishmen, became English. When the war broke out the hardship was that the German women were forcibly seized and put into a concentration camp. In the new situation the German woman would marry an Englishman and would not become English.
She could if she wanted to.
Yes, and if a war broke out she would still be seized and put into a concentration camp. In the hectic circumstances of a war breaking out, what is the position of aliens married to citizens in your country? Let me point again to this supreme illogicality. An Irishwoman marries some foreigner. He is resident here. She does not become an alien. She does not take on his nationality. She preserves her Irish citizenship. She goes abroad with her husband and a child is born to them. That child can never become a citizen except by naturalisation. I am now talking of the child and not of the mother. We are making a difference between the father and the mother. When it comes to the question of being born outside this country we say: "If your father was a citizen, you are automatically a citizen provided you comply with this formality about registration. If your mother was a citizen there is a different set of circumstances." It is illogical if you are in favour of what the women's organisations want. What argument have we been given that will appeal to anybody's reason to make them vote for Section 13, which has been put up as a proposal by the Government? When I spoke about the women's organisations wanting something, the President said: "We will not give them everything."
Amendment No. 4 withdrawn.
Section 3 put and agreed to.
SECTION 4.
(4) Where the applicant for a certificate of naturalisation satisfies the Minister that he was born in Ireland before the 6th day of December, 1922, the Minister may, if he so thinks proper, dispense in the case of such applicant with compliance by him with so much of this section as relates to residence in Saorstát Eireann during any period more than one year before the application for a certificate of naturalisation.
(5) Where the applicant for a certificate of naturalisation satisfies the Minister—
(a) that she is a widow, and
(b) that her husband, immediately before his death, was not a citizen of Saorstát Eireann, and
(c) that she was, immediately before her marriage, a citizen of Saorstát Eireann, and
(d) that she relinquished under this Act her citizenship of Saorstát Eireann on account of her marriage to a person who was not a citizen of Saorstát Eireann,
the Minister may, if he so thinks proper, dispense in the case of such applicant with compliance by her with so much of this section as relates to residence in Saorstát Eireann during any period more than one year before the application for a certificate of naturalisation.
Amendment No. 5 falls with the previous amendment.
Amendment No. 5 not moved.
I move amendment No. 6:—
In sub-section (4), page 5, line 11, to delete the word "was" and substitute the words "himself or either or both of his parents was or were".
The purpose of this amendment is to enable those who were born in Ireland before the 6th December, 1922, to become naturalised citizens without any residence qualifications.
Why was "himself or either or both of his parents ..." inserted in that amending phrase? Why the words "or both"?
I do not know. Very frequently you will find these words "or both."
This will all be construed in relation to Article 3, because Article 3 is the foundation. If we put in "either or both" it looks as if you are casting a doubt about Article 3. Article 3 mentioned a "person who was born in Ireland or either of whose parents." If both parents were born in Ireland, it might be contended that a person would not be an Article 3 citizen whereas, if one parent was, he would be.
I do not think so.
Surely "either parent" will cover both parents.
That is my view personally but, apparently, it is thought safer from the legal point of view to put it this way. The phrase may have been found in similar Acts.
In 1922, the suggestion was made that the phrase should be "whose parents or either of them were born in the Irish Free State." That was ruled out by the draftsman at that time as a solecism.
As a layman, I do not see much point in the phrase referring to both parents.
I do not see much point in it either unless the point that, by a peculiar reaction, you might have doubt cast on the phrase used in Article 3—"either of whose parents." The "either" might be regarded as exclusive of "both" or as having a different meaning, so that a person both of whose parents were born in Ireland would not be a citizen but a person one of whose parents was born in Ireland would be. I am sure that that is not intended. Again, with regard to the people referred to in sub-section 4 of Section 4, surely these are Article 3 citizens. Article 3 covers a person born in Ireland before the 6th December, 1922. On that date, the Irish Free State and Ireland were the same area. Up to some time after 6th December, 1922, Ireland and the Irish Free State continued to be the same area. Would not a person born in Ireland before the 6th December, 1922, fit in immediately under Article 3, the question of domicile being outstanding?
The Attorney-General
He might not have been domiciled here on 6th December, 1922.
I said "that being outstanding." Immediately, you come to the point as to the likelihood of a person born in Ireland prior to 6th December, 1922, being deemed to be domiciled in this country. Prima facie, the case is there almost at once —birth in the country. There is a tendency, I think, in the courts to presume that a person will fly back to his native country. That presumption holds until it is dislodged. Birth in the country before 6th December, 1922, raises a presumption with regard to this mental condition on which domicile is based and, if it does draw down the question of domicile, then there has been birth in the country and Article 3 immediately comes into operation. If there is going to be discrimination, would it not be better to have some phrase brought in which will specially distinguish these people from Article 3 citizens and say that where a person is not domiciled and had been born here prior to that date, application can be made for facilities. Why have that overlapping which may, by reaction, cast doubts on Article 3?
The Attorney-General
I do not think that this provision has any relation to Article 3. It merely applies the principle of this Bill to that particular class of persons—persons with birth in Saorstát Eireann. There is no intention to refer to Article 3 at all.
I agree but, in fact, the circumstances covered in the section can, in many cases, be covered by Article 3.
The Attorney-General
I cannot see how the Deputy confuses the two things. I pointed out the difference in the principles underlying Article 3 and underlying this Bill. Area is the test under this Bill. In giving facilities under this provision, that test is applied, so that a person who was born in Ireland before 6th December, 1922, had gone away and was not domiciled here at all, may come along and make application to have facilities given him.
I take it that the Attorney-General wishes these new facilities to apply only to persons who were not domiciled here at the time of the Treaty. If they were so domiciled, they would not need these facilities.
If they were domiciled in this country at the date of the Treaty.
The Attorney-General
They might have been domiciled in the Six County area.
There was no such area as the Six Counties prior to the 6th December, 1922.
The Attorney-General
Prior to the date of the Constitution, there was. It is Ireland that is mentioned here.
Deputy McGilligan has pointed out that the class of persons who were domiciled here at the time of the Treaty is much larger than the Attorney-General or the President seems to have supposed because everybody starts with a domicile of origin which he retains until it can be shown that he has acquired a domicile of choice. That is not so easy to show. If a man goes over to England and becomes a member of the English Bar, you would probably say he would acquire a domicile of choice in England. Supposing, however, that, for any reason, he left England and went elsewhere to pursue some other avocation, he would have lost that domicile of choice altogether and he would have reverted automatically to his domicile of origin until he acquired a domicile of choice somewhere else. Now the consequence of all that is this. That the class of people whom the Attorney-General is designing to benefit by this provision is a smaller and less deserving class than he supposes.
The Attorney-General
Those who have domicile of origin must have been born here.
Yes, but I do not quite see the objection. These facilities are intended to help people who are not domiciled and who could not claim citizenship.
The Attorney-General
Domicile does not enter into this.
It does enter into it to the extent that to understand what class of persons benefit under this section, we must understand what domicile means. And that brings me to the Government's amendments. I confess I do not like them. I think that sub-section (4) of Section 4 is sufficiently generous as it stands. I do not think the Government were asking too much in making residence of one year a condition before giving a certificate of naturalisation to some one not domiciled here at the time of the Treaty. But it seems a good deal more generous to hand over a certificate of naturalisation, that required no qualification period of residence, to a person who has nothing else to qualify himself except that his parents were born in Ireland. The parents, in this instance, may have lived their whole lives in America, and the person himself may have lived in America, and be an American citizen, and have no interest in this country. I do not think it should be made so easy for such persons. Certainly, a period of residence of one year could be very reasonably required. I am at a loss to know why the Government brought in these amendments adding greatly to the facilities they have already provided.
As pointed out already, these provisions are intended to make it easy for people born in this country to return. The position of our people here, in the past, was so different from that of the people of a normal country. Numbers of our people were driven out against their will and numbers of them may desire to come back. In the peculiar circumstances, in regard to our people, I thought it right that we should afford facilities of that kind. On that account, mainly, we provided for those people and give them the opportunity of becoming Irish citizens without any qualification of residence, We did, as the Bill was originally drafted, require a certain length of time, a year or some short period of residence, but judging from the feeling expressed at the time of the Second Reading, I think I indicated at that time, that I was prepared to waive that period of one year of residence.
I put it to the President that that period should not be waived in the case of those not born in Ireland, but merely children of parents who were born in Ireland. I think it should be clearly indicated that there should be a period of one year's residence in the former case. I do not think it is a hardship or a handicap.
I am in favour of making it easy for those people to acquire their citizenship again. That is the reason that I welcome bringing this clause into line with Article 3. At first such a person should prove that he himself was born in Ireland. Now it is very much extended. Either he himself or one or other of his parents if born in Ireland would do. That is getting back closer to the days of Article 3. I have no objection at all to wiping out this insistence on compliance with a period of qualification by way of residence, except that I am somewhat doubtful of allowing this application to be made and tried and decided upon, for or against, by a Minister without any indication given to the person who applied as to why the certificate was refused; or without any indication being given to the House as to the number of such certificates that are being applied for and what is happening to them. However, that could be discussed more properly on the section itself.
On this amendment I want to go back to that other point about Article 3. There is still overlapping. I put it no further than that; there may be overlapping, but that could be completely obviated by putting into this phrase something about people being domiciled in the area of the Free State at the time of the coming into operation of the Constitution; that though they had all the other tests they lacked that one which is essential for Article 3 citizenship. I still think that is worth considering. If, in the end, it is found to be a very difficult matter to draft and that the draft might by some peculiar action exclude some persons who should get their citizenship, rather than do that I would be prepared to leave it as it is. But to my mind there is a fairly clear case there for the consideration of an amendment which might be easily drafted I think by an expert draftsman.
This is only intended to supplement other provisions of the Bill. Is not that so? But if there is already an Article giving this right, and not interfering with it, I do not see how any doubt can be thrown upon Article 3.
Get a phrase in to show that this is in addition to, and not in derogation of, anything decided by Article 3. Just as the Attorney-General argued that Article 3 is limited to a certain point, someone might come along and say people resident prior to the 6th December, 1922, were citizens; there is a precise statement, and that must apply to citizenship or naturalisation.
The Attorney-General
I shall have the matter looked into.
A simple statement to say that this is in supplement and not in derogation of Article 3.
We are strengthening the Deputy's interpretation of Article 3. I am altogether with the Deputy. Anything we can do to resolve doubts and prevent differences of opinion we shall do.
Amendment put and agreed to.
Amendment No. 7:
In sub-section (4), page 5, line 15, to delete all from the word "during" to the end of the sub-section.
Agreed to.
Amendments Nos. 8 and 9 are related, and might be taken together.
Amendments Nos. 8 and 9:
In sub-section (5), line 26, at the end of paragraph (d), to insert the following:—
"and
(e) that at the date of the death of her husband she was ordinarily resident outside Saorstát Eireann."
In sub-section (5), line 29, to delete all from the word "during" to the end of the sub-section.
I move these amendments. The purpose of amendments No. 8 is to include a widow who, at the death of her husband, was ordinarily resident outside Saorstát Eireann. This has regard to paragraph (d) of sub-section (5) which refers to a widow who has relinquished her citizenship of Saorstát Eireann on account of her marriage to a person who was not a citizen of Saorstát Eireann.
I must confess that I do not understand this amendment. The next amendment—I suppose we are to take both together—has to do with the deletion of the word "during," and has the effect that the Minister may dispense in the case of any such applicant with compliance by her with so much of the section as relates to residents in Saorstát Eireann. In other words, we are allowing the Minister, under amendment No. 9, to dispense with the qualification as to residence.
This has reference to amendments 8 and 9.
Under amendment No. 9, we are allowing the Minister to dispense with compliance with the residence qualification, and we are adding that at a time at which I think we should insist upon it, namely, that the person concerned was "ordinarily resident outside Saorstát Eireann."
But the person concerned is a widow.
Yes, that is clear. However, I can imagine making it easier for a widow, if she had been ordinarily resident inside the Saorstát area but who had not been resident during that period. I can imagine a case where the widow would be ordinarily resident outside the jurisdiction, but this, to my mind, is an amendment tending towards a somewhat greater exclusion, and because we add in that, we then take away this necessity for compliance. That is one point. The other point that I wish to call attention to is the conditions as set forth in paragraph (d) of sub-section (5). It seems to me that paragraph (d), if it becomes operative, may upset the section.
The Attorney-General
As regards the first point made by the Deputy, if the Deputy will look up amendment 18, which will come later, I think he will discover the reason for the additional sub-clause in connection with that. The effect of that is that where a woman satisfies the Minister that she is a widow, and so on, she shall be entitled to lodge a declaration with the Minister that she intends to continue to be ordinarily resident in Saorstát Eireann and that she desires to resume her citizenship of Saorstát Eireann.
Yes.
The Attorney-General
This amendment deals with a woman who, at the date of the death of her husband, was ordinarily resident outside Saorstát Eireann, and is making provision for such a case as against the other case that I have stated.
Yes, but in this case we take away the necessity for compliance with the residence qualification. It seems to me to be a rather peculiar purpose to put in for dispensing with the residence test.
It is only a distinguishing point.
That may be so, but may we have paragraph (d) of sub-section (5) explained?
The Deputy is referring to the paragraph that says
that she relinquished under this act her citizenship of Saorstát Eireann on account of her marriage to a person who was not a citizen of Saorstát Eireann?
Yes.
I take it that that means that at the time of marriage, either through neglect or other causes, she did not make the necessary declaration. In other words, she married a foreigner but neglected to make the necessary declaration.
Well, it may only mean that the phraseology is peculiar.
Yes, I think it is.
In another section the words are:
where a woman satisfies the Minister that she relinquishes ... her citizenship ... on account of her marriage to a person who was not a citizen.
It may not be by reason of her marriage, because that makes no difference, but still it seems to me that there is a contradiction there.
It is by reason of the fact that she married and had not taken the necessary steps. Because there is undoubtedly in operation the fact that by her marriage to a foreigner she took the nationality of that foreigner, and if she did not take the necessary steps, whether through negligence or from whatever cause, to indicate her desire to retain her Irish nationality, then it is necessary to have some such clause as this.
At any rate, the phrase is ugly.
Yes, I am inclined to agree with the Deputy on that.
There is another point to which I should like to draw attention. Is it not clear that on this section there is some possible interference—possibly not necessary interference—but some interference with Article 3? What I mean is that one of the proofs necessary here, in order to get this exemption from residence tests, is that the person, being a widow, had been a resident of Saorstát Eireann, and that person might be a resident under Article 3. Do we intend to make this applicable to Article 3 citizens?
Yes. This applies to all citizens.
Possibly it applies, but does it appear from this?
The Attorney-General
Does not the definition section convey that?
It is not clear. It is quite clear that the person referred to in paragraph (c) of sub-section (5) should be an Article 3 citizen. Unless it is clear that this applies to Article 3 as well as to everything else, then that person is not affected?
The Attorney-General
I do not see any reason why it should not apply.
Very good, if you are satisfied.
Amendments Nos. 8 and 9 agreed to.
Question proposed: "That Section 4, as amended, stand part of the Bill."
On the section, as amended, Sir, I wonder would the President state what is the intention with regard to these applications? There may be a period of, say, five or ten years provided, after the provisions of this Act, in which to get the information to our people abroad, and a number of applications may be made under this section or under a later section. Is it desired to have these applications, when made, adjudged upon entirely by a Minister? For instance, one of the tests proposed is that the person should be a person of good character. That is rather an elastic term and possibly one that should be a matter for judicial inquiry. I can imagine a test being laid down, such, for instance, as is laid down later, with regard to the revocation of a certificate of a person being fined not less than £100, and so on. That can operate as a bar against a person, evidently. But a Minister is given power, it seems to me under this, to define generally whether or not a person is of good character and, apparently, there is no redress or appeal against his decision; nor is there any way, so far as I can see, for Deputies to get information with regard to this. Is it intended to publish, from time to time, a statement as to the number of applications received and the number refused; and would it be possible for some means to be devised—without necessarily having it laid on the Table of the House and made available for publication in the newspapers, which, I can quite see, might be undesirable — whereby Deputies of this House could procure such information?
If any applications were refused the Deputy would hardly be unaware of it.
There may be certain cases. The Minister may, by reason of something said or put up to him or even alleged to be documented, refuse, and the person concerned may not bother any more about it. I do not say that there will be very many cases. There will be a period, after this Bill becomes law, in which there will be quite a number of applications from people to get certificates to remove doubts and about other things. Under the Bill, as it stands, the whole thing is thrown over on the Minister although there is an amount of almost judicial functions connected with it. There are no terms of reference given to him and no one has any entry in the matter. It is a rather large power to give to a Minister without giving him any terms of reference on which to decide. The phrase "good character" is very loose.
We will see how this should be operated, whether as in the Bill, at the discretion of the Minister, or in some other way. I think that in the United States of America there is a judicial proceeding, and that in other countries the matter lies more or less with the Executive. With regard to the two methods, we do not see why these applications should not be dealt with on their merits and why the Minister should not set up, if he wanted to, machinery by which they would be carefully examined. When we were drawing up the Bill we did not see that there was any need for having a tribunal of any kind. I imagine that if the Minister had a very large number of applications he might find it necessary to set up some body that would examine the applications and report to him. I think, however, that we would unduly complicate and delay the proceedings unnecessarily if we embodied all that in the Bill.
I suggest to the President that the United States example is the one to follow. There is a previous clause which says that "a certificate of naturalisation shall not be issued to a person of unsound mind." Is that person of unsound mind found by a court to be in such a condition, or is it somebody else who decides that?
I take it that the Minister would satisfy himself that the person in question was of unsound mind.
But the Minister may refuse the certificate on that ground even though no court had decided.
The Minister has to decide, and naturally he would take such steps as would give him the necessary information.
What I am suggesting is that the Minister may say that the person is of unsound mind although possibly that person may have been brought before the court in certain proceedings and not found as such. I suggest that in this matter it would be desirable to consider consultation with some of the judges to see if some arrangement could not be come to. There need not be much publicity. Could not some arrangement be made whereby, when a definite application was made to the Minister, it would be referred by him to some judge accustomed to dealing with these matters and deciding evidence on particular points? Judges have from time to time to determine such questions as good character. The matter could proceed through the Minister, and let him have a reference made for a determination by a judge.
I think that the House can leave that safely in the hands of the Minister. He can set up such machinery as he may think necessary in order that he may satisfy himself that the conditions laid down here are fulfilled.
I had intended raising a question on Section 9, but I find that the same principle is enshrined in Section 4. Sub-section (1) of that section reads:—
"Whenever an application is duly made to the Minister for a certificate of naturalisation, the Minister may, at his absolute discretion but subject to the limitations imposed by this section."
I would like the Attorney-General to tell us does that purport to set aside the right of the courts to grant a mandatory injunction to compel the Minister to issue a certificate?
I would say so.
Is that wise?
I appreciate that the President may take the view that that was the purpose in mind when the section was drafted. I ask Deputies to observe that the sub-section says:
"The Minister may at his absolute discretion, but subject to the limitations imposed by this section."
Does that not reinstate the power of the courts to issue a mandatory injunction compelling the Minister to issue a certificate of naturalisation under the conditions set out in the section? If it did, a great deal of my objection to the principle which appears to underlie the section would disappear. If we reinstate the courts and give the right to an individual to apply to the courts for his certificate of naturalisation, if he can prove that he has complied with the conditions, then I shall be satisfied.
The Attorney-General
I think the section has the effect of giving the Minister an exclusive jurisdiction to decide this, and that it would not be open to the court to issue a mandamus to him to issue a certificate in a particular case. If the Minister acted wrongly or outside his jurisdiction or failed to enter upon an inquiry as to whether a man should get a certificate or not that would be another question. I think in that case that a mandamus could be given to hear and determine the application. There is the classic case on the question of jurisdiction which arose in England where this very point turned up and where the Home Secretary has the same jurisdiction that is given here with respect to naturalised citizens. The Home Secretary there refused to give a certificate. The man who made the application went to the courts for an order to compel the Home Secretary to grant a certificate, and it was declined on the grounds that under the English Act exclusive jurisdiction was given to the Home Secretary. I think the same reason would apply here, so that I think the Deputy may take it that the effect of the section is to exclude the courts.
Surely that is to traverse the whole ground of the President's introduction of this Bill to the House. He said he was most anxious that all Deputies should co-operate——
The Attorney-General
I am only telling the Deputy the effect of the section as it stands.
——so that in the fullest sense citizenship would be conferred only on those persons whom all Parties in this House felt were entitled to get it, and that it would be withheld from nobody whom this House felt ought to get it. Section 4, which is the implementing section for the purpose of naturalisation, leaves the whole question at the discretion of the individual who happens to be the Minister for Justice at a given time. Surely we ought to do something whereby we can make this statute, as it will be the overriding authority, such that the will of Dáil Eireann can be invoked as against the personal inclination of any individual Minister at any time. There ought to be safeguards, if we commit the execution of the statute to a Minister, by way of giving the right to an individual to apply to the courts for an injunction to compel the Minister to do what Dáil Eireann intended him to do.
The Attorney-General
To give a right of appeal.
It is not quite a right of appeal, but I am trying to eliminate from the Bill this element that is introduced by the words "The Minister may at his absolute discretion" do certain things. It is relevant at this juncture to observe that under sub-section (1) of Section 9, this discretionary power is made much more extensive. because under that sub-section the Minister may at any time, on his own motion and at his absolute discretion, by order, revoke any certificate of naturalisation issued under this Act. The section then goes on to say that under certain conditions he shall revoke, but under that sub-section he may, at his absolute discretion, revoke apparently without assigning any reason at all. Now, of course, that opens a wider field, but in the narrower field of Section 4, I should like to see the right conferred on every applicant for a certificate of naturalisation to go to the courts, where he believed the Minister had not carried out the intention of Oireachtas Eireann, and to ask the judges for the necessary injunction to compel the Minister to do what the Oireachtas intended he should do.
The Attorney-General
I suppose what the Deputy means is that if the Minister refuses to grant a certificate on the ground that the person was not of a good character, he should be entitled to have the matter investigated in court?
If the person went in to put his character in issue.
The Attorney-General
I am only taking that as an instance.
Quite. He would have the right to apply for an injunction compelling the Minister to issue a certificate.
The Attorney-General
It is a question of policy. I imagine this has worked very well so far. It has worked very well so far in England.
And the other situation has worked very well in America.
The Attorney-General
I am all in favour of giving as much work to the courts as possible. At the same time I do not think that it would be really necessary. After all, you have seven or eight years of the Minister dealing with aliens. If it transpires after a few years that the Minister is perpetrating the iniquities Deputy Dillon foresees, I dare say the Oireachtas will very quickly bring him to book and provide some way by which these cases may be reinvestigated, but it is asking us to assume a lot in suggesting that the Minister would not give a proper and conscientious decision as to whether the applicant is a person of good character. It is asking the courts to try out the issue as to whether a man is or is not of good character. That is rather unnecessary. If it turns out that there are any evils arising from the operation of the Act, and that persons who are of good character are refused certificates, I think the Dáil will have no hesitation in amending the legislation and giving such an applicant a way of going to the courts. I do not think, however, there is any danger of such a situation arising.
Might I put a case to the President? A person applies for a certificate and the Minister has confidential sources of information, through the Department of External Affairs or the Ministry of Justice, and he makes up his mind that the person is not of good character and he deems it his duty to reject the application. The matter is raised in this House and the Minister says that after considerable investigation he has found that the applicant is not a person of good character. The moment he says that, he has perpetrated perhaps the gravest possible slander he could on anybody and the applicant has no remedy. The Minister may say: "I am not free to reveal the facts in this particular case; I have confidential sources of information." I suggest that unless some recourse to the law courts is open to the applicant, the Minister's lips may be sealed. He has certain sources of information and he is in the impossible position of defending what may be a very grave and injurious slander against some apparently inoffensive man. He is almost unable to explain why he makes the charge, whereas if my recourse is open to the applicant he can say to the public: "I regard this man as a man who should not have applied for a certificate and whose character is such that I cannot issue a certificate. If he thinks I have misjudged him or that I have listened to unreliable sources of information, he has his remedy of going to court."
The Attorney-General
Then the Minister could not produce the evidence for the court.
I do not know. It would be an invitation to the Minister to reveal such information as had reached him. Mind you, if the President laughs because he thinks that a situation might arise where he would get information which would justify him in refusing a certificate of naturalisation, and in which he would then feel it incumbent on him not to reveal anything and would consider that a sufficient defence, he is creating an extraordinary situation because at any time any Minister who likes could get up and blast a man's character and say: "I cannot reveal my sources of information." I warn you that that situation may arise. I put it to the President that such a situation is highly undesirable, would be open to the gravest possible abuse and might become a very great evil in the State, whereas if resort to the courts is there continually, no question of that kind could ever arise because the applicant has a remedy at all times. There can be no objection to giving that remedy because I suppose in a decade or 20 years a dozen such cases would not or could not arise.
I put it to the President that it is the kind of safeguard that should be readily afforded in order to prevent the growth of an evil and in order to preserve the principle that this House will be extremely reluctant to set aside the courts or to deprive the courts of the country of their right to intervene as between a Minister of the State and a citizen of the State. There is a great deal of that going on in the legislation in this House and elsewhere and the less there is the better it will be for the body politic. I put it to the President that here is a case where the intervention of the courts could do no harm if it is invoked. They might well be the instrument of justice in certain cases. Here is an opportunity of vindicating a great principle, that wherever possible the sovereignty of the courts will be preserved and that their intervention will be protected. I think no more suitable instance for the vindication of that principle could arise and on such grounds I appeal to the President to make such verbal alteration in the section as would restore that right to anybody who is obliged to avail of it.
It seems to me that this is a question of giving a certificate of naturalisation and it is desirable that, in matters of this sort, the executive authority and the Minister should be able to use any sources of information which they may have in determining whether a person is or is not a fit person to get a certificate of naturalisation. The Attorney-General said that he was in favour of giving the courts plenty of work to do. My motto is the opposite. I want to give them as little work as possible and I think we should do our best to avoid giving them unnecessary work. Two principles are in operation. It has been suggested that both work. They do work, apparently, and it is a question of choice as between the two. I am sure that we could argue until tomorrow morning and finally we might not be able to come to a decision after summing up all the pros and cons. At any rate we have adopted the principle that the Minister shall decide in his absolute discretion. We think it advisable that the sources of information which he may have, and which it may not be in the public interest to reveal, shall be available for him in determining whether a certificate of naturalisation should issue.
That does not carry us a great deal further. I find myself in a fog with regard to what the Attorney-General has said. He said that because of the phrase used, "the Minister, in his absolute discretion may do certain things," no court could intervene on it. Let me take what would be in practical life an absurd example. Supposing the Minister granted a certificate to a person under 21 and granted it under conditions that are not sanctioned by a later section. Suppose it was clear that there had been a breach of Section 4, surely there could be a restraint put upon the Minister?
The Attorney-General
I said if he exceeded his jurisdiction.
There is some zone of uncertainty with regard to what the Minister's powers are. There may be attempts through the courts to get after a Minister's decision unless he safeguards himself. The Attorney-General made reference to the Aliens Act. I think that was a frightfully bad example. When I was in certain difficulties at the time the Shannon Scheme was in operation I thought the strongest power I had with respect to getting people out of the country was because they were aliens. Then I discovered that the powers were of a police type, on the ground of bad character and so on, and I was forced to come to the conclusion that if a man disobeyed orders that I thought were properly given to him on the Shannon scheme, he should be regarded as a bad character and he was pushed out of the country.
The Attorney-General
That was certainly straining your conscience.
It was certainly straining the law. I know that became the practice and I am sure it is the practice at the moment that people are being dislodged from this country when they should only be so dislodged for police reasons, because they might be regarded as a danger to the community. I am sure there are many people being dislodged because they are occupying jobs that other people wish to get and not because they are a danger to the community. That is a matter that would not stand a moment's consideration in court. There is, I suggest, a good case possible, not so much under this section but under other sections where this power to the Minister is a much more abominable thing than here.
The President says that the Minister ought to be able to use any information available to him, no matter from what source it comes. Certainly, let him have that information. I am not concerned with the Minister using all the information he can get. All I am concerned with is that when a judgment has been passed, it will be a judgment which cannot be criticised as a judgment by somebody influenced by politics, the basis of whose whole life is politics. That is not so with judges. I think it is quite right to give the Minister power to deal with these provisions with regard to residence, as in sub-sections (4) and (5), or even with regard to (6) to say that the period of employment shall count. An application is made to the Minister and the Minister decides with regard to whether a residence qualification should be demanded or whether a period of work in the employment of the Government outside the Saorstát should be deemed to be residence in the Saorstát. Let him determine these things by all means and then let it be passed on to someone clean away from the whole political arena, someone who would decide with regard to good character or unsound mind. These are the two points he should get outside assistance on. If that were to be done, there is no necessity to give any statement to the Dáil about the number of applications made and refused.
Let there be an application via the Minister and a reference by him to some judge. I do not think it should be counted as court work. The judge may require further information from the Minister, but I do not think it should be regarded as a matter where there would be someone appearing for the applicant and someone appearing against for the Attorney-General. There should be, in my opinion, a quiet reference to a judge sitting in chambers, with all the information made available to that judge. All we want is the satisfaction of having someone removed from the political arena. We want to know that someone who is used to dealing with lunatics and not politicians will be in a position to say that such a man is or is not a lunatic.
I do not know that that would help us in the slightest. I am inclined to leave it as it is.
Then I shall divide the Committee on that section on that point.
Question put.
The Committee divided: Tá, 58; Níl, 45.
Tá.
- Aiken, Frank.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Patrick.
- Brady, Brian.
- Brady, Seán.
- Breen, Daniel.
- Briscoe, Robert.
- Carty, Frank.
- Cleary, Mícheál.
- Concannon, Helena.
- Cooney, Eamonn.
- Corry, Martin John.
- Crowley, Timothy.
- De Valera, Eamon.
- Doherty, Hugh.
- Donnelly, Eamon.
- Flinn, Hugo V.
- Flynn, Stephen.
- Goulding, John.
- Hales, Thomas.
- Harris, Thomas.
- Hogan, Patrick (Clare).
- Houlihan, Patrick.
- Keely, Séamus P.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kelly, Thomas.
- Kennedy, Michael Joseph.
- Kilroy, Michael.
- Kissane, Eamonn.
- Little, Patrick John.
- Lynch, James B.
- MacEntee, Seán.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moane, Edward.
- Moore, Séamus.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- Murphy, Timothy Joseph.
- Norton, William.
- O Briain, Donnchadh.
- O'Doherty, Joseph.
- O'Grady, Seán.
- O Ceallaigh, Seán T.
- O'Reilly, Matthew.
- Rice, Edward.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Victory, James.
- Walsh, Richard.
- Ward, Francis C.
Níl.
- Anthony, Richard.
- Beckett, James Walter.
- Belton, Patrick.
- Bennett, George Cecil.
- Brennan, Michael.
- Broderick, William Joseph.
- Burke, James Michael.
- Burke, Patrick.
- Cosgrave, William T.
- Costello, John Aloysius.
- Curran, Richard.
- Daly, Patrick.
- Dillon, James M.
- Dolan, James Nicholas.
- Doyle, Peadar S.
- Esmonde, Osmond Grattan.
- Fagan, Charles.
- Finlay, John.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Haslett, Alexander.
- Holohan, Richard.
- Keating, John.
- Lynch, Finian.
- MacDermot, Frank.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McGovern, Patrick.
- McGuire, James Ivan.
- McMenamin, Daniel.
- Morrisroe, James.
- Mulcahy, Richard.
- Murphy, James Edward.
- Nally, Martin.
- O'Higgins, Thomas Francis.
- O'Mahony, The.
- O'Neill, Eamonn.
- O'Reilly, John Joseph.
- O'Sullivan, Gearóid.
- O'Sullivan, John Marcus.
- Redmond, Bridget Mary.
- Rice, Vincent.
- Roddy, Martin.
- Rowlette, Robert James.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.
Question declared carried.
SECTION 5.
I move amendment No. 10:—
Before Section 5 to insert a new section as follows:—
(1) The Executive Council may, if and whenever they so think proper, cause a certificate of naturalisation to be issued under this Act to any person or to a child or grandchild of any person who, in the opinion of the Executive Council, has done signal honour or rendered distinguished service to the Irish nation.
(2) The Executive Council may authorise the Minister to dispense, in relation to the issue of a certificate of naturalisation under this section, with compliance by the person to whom such certificate is issued with all or such one or more as the Executive Council shall think proper of the conditions which are by virtue of this Act conditions precedent to the grant of a certificate of naturalisation.
I think the purpose of this amendment is clear from its terms. It is to provide for the issue of a certificate of naturalisation in special cases of persons or their children or grandchildren who may have rendered distinguished service to the country and who might not otherwise come in under the Bill. In other words, we feel that it is desirable that in cases that might not come under the Bill, or as a special mark of appreciation of their national services, it should be available for the State to give its citizenship to people who had rendered signal service.
This is an amazing proposal brought in by way of amendment. If it was thought that there was something in this as a reward for merit, surely, it must have been before the minds of the Executive Council before the Bill was drafted? Is this only something that occurred in the interim between the Second Stage and Committee Stage? I object to it on a variety of grounds. First of all, I think that if we want to do some honour to somebody who has done signal service to this country, there are other ways of doing it than this. This is an absurd business. It seems to me that if the conferring of our citizenship was to be regarded as an honour in return for signal or distinguished services to the Irish nation, a case made on that basis should go through the formal stages of the present procedure, which allows for the acquisition or conferring of citizenship by Private Bill legislation. In a case in which you can get all Parties in the two Houses to agree that for services which could be stated, a person deserves to have done to him the honour of admitting him amongst the ranks of our citizens, surely that is a better procedure than that the Executive Council, in a hole and corner way and for reasons which they will not reveal, should hand over some sort of certificate of nationality, there being no publicity as to what are the services, no statements to the House, or no statements about it in any way. It is a ludicrous proposal, and surely one that is apt to bring indignity upon persons who might be sufficiently dignified to have nationality conferred upon them in the other way. This is really reducing the citizenship of the country to the position of the old-time J.P.— something to be given out for services, and God knows what the services are going to be determined to be.
The grandmother's services.
As has been pointed out, it might be the services of your grandmother. Has the Executive Council any people in mind, and have they even a sufficiently clear idea of their terms of reference to tell us—even if they have got individuals— on what grounds they would, in the abstract, consider a person worthy of this honour when this procedure would be brought into play? I protest against the whole thing. There is a method already, by Private Bill legislation, of conferring citizenship. There you can test a man's services. The person's services can be put forward and argued about, and if they are sufficiently good to merit recognition from the State, then it will be something worth having after it is passed in the ordinary way. This, as a sort of substitute for the type of order of merit that other countries have, is not befitting any sort of proper circumstances. It is very likely to be abused, and will of course always be suspect of abuse if it is to be done by the Executive Council without saying why.
I should like to know whether this is even strictly comparable to an order of merit. Is the kind of citizenship which it is proposed to give the Executive Council power to confer, a citizenship that can be held concurrently with citizenship of another country, or must the person who is being complimented surrender any other citizenship in order to take this citizenship? In any case I thoroughly agree with Deputy McGilligan that this is a most unsuitable power to give the Executive Council, and a most unsuitable form of honour to pay to a distinguished person of another country. I specially object to its being in the power of the Executive Council to give our citizenship to someone who may not be in the least distinguished, or may not have deserved well of this country, just because an ancestor of his had, in their opinion, deserved well of this country. I am really astonished that the Government should introduce this new section, and I hope that, on reflection, they will withdraw it.
This is not an unusual power for an Executive to have. In the case of our country in particular it is a power which I think might very well be retained by the Executive. There is no doubt whatever that the Executive Council would be held responsible to the Dáil and to the country for any certificates of citizenship given under this section. I see nothing objectionable in it at all, and I think it is a power which the Executive should have. I do not agree with the points which have been made by the members on the opposite side, because it is clear that in the exercise of power like that the Executive would have to stand up to public opinion.
The last few words describe more adequately than anything else the Government's lack of foresight in connection with this matter. Fancy the Executive giving an honour to anybody and having that matter made the subject of public discussion throughout the country!
The Attorney-General
Public opinion.
Public opinion is always there.
Just imagine what the position would be if the Government in power decides to honour some person, or the child of that person or the grandchild of that person—the grandchild might possibly be 50 or 60 years of age—and that is to be the subject of public discussion and comment throughout the country. Surely the Minister has not made up his mind definitely on this subject, according to that particular presentation of the case? If there is one body of persons more than another that is responsible for a matter of this sort being received with suspicion it is the Executive Council. They were particularly anxious, during the time they were in opposition here, to take away from the Executive Council, which was then in office, any respect that there might be throughout the country for the persons in that particular Assembly. They now expect that they themselves should get the respect which they denied to others, and should get a matter of this sort considered as if there were no such thing in this country as a division of opinion. In the first place, what we would have expected to have heard in connection with a proposal of this sort, is that there were persons actually in mind to whom an honour of this sort should be given. If there be an honour, is this the best thing to do in the circumstances? It is a very nice commentary coming from this Executive Council that we should have an order of descent for the reception of merit. One would have thought they were so democratic that they could not possibly stand that sort of thing. The Executive Council had better make up its mind that if there are honours to be given this is not the method of doing it, and that public discussion of those honours is not an accompaniment which can be thought of in connection with the presentation of them. If there are honours to be given by the State they must not be the subject of public discussion, or they ought not to be. The very mention of that shows that there is, in the minds of the Ministry, a suspicion that there would be. This is not the time nor is this the place to insert an amendment such as that.
The speech to which we have just listened is a most extraordinary one. As if there will not be public discussion of every act of an Executive Council! There is bound to be discussion. What I have said is that any action taken under this Bill is bound to be discussed by the people, and that the Executive Council, if they take a certain action, will have to satisfy themselves that it is an action which is likely to be commended by the people. That is sufficient safeguard. It was not I who introduced the element of suspicion; it was the members on the opposite benches, who suggested that this might be operated in an improper manner. I say that, as against any likelihood of that, the Executive Council will have to stand up to public opinion. They will have to face public opinion on it, and that is sufficient safeguard. I think it is very advisable that it should be in the power of the Executive Council to give this special distinction to a person whose services have merited that he should be one of our community.
Would the President answer my question as to whether those people can hold our citizenship concurrently with some other citizenship?
As far as this is concerned here, there is nothing to say the opposite.
It happens that I have a long memory about certain matters and one of the subjects upon which I read some comments from members of the Front Bench opposite in one of their publications 12 years ago was the personnel of the first Seanad of this State. It so happened that they said there was one person alone in that Seanad who was worthy of the honour that was then conferred upon him. They themselves have since elected two of the persons who were in that Seanad, and those two do not comprise the one whom they then mentioned. That is my opinion of their judgement in connection with those matters.
We must go deeper into this. The Executive Council are going to issue certificates of naturalisation and they will have their views on what is signal honour and need not tell anyone what they are. The only information the public may get is after the event, when there is some publication of the name of the person with such other particulars as the Minister for Justice may decide to reveal. According to other sections in this Bill, which will operate in the ordinary way, if a grandchild of someone who had done distinguished service to the country was a married man with children, if he enters their names on a sheet of paper they become immediately natural-born citizens of the country, and that is an acknowledgement that the Executive Council has given this man signal honour. After a lapse a new Minister for Justice may revoke the certificate, and then there will be a wait of five, ten or 15 years, until the tide flows again the other way, when, if he lives so long, he may be reinstated once more, so that there will be as much controversy about putting on and taking off names from the register of citizens as there used to be about removing the Nelson Pillar. That is the position you are going to reduce that person to. The President indicates, to my mind, that that is the sort of move that is going to be made when he talks of standing up to public opinion in the matter. Standing up to public opinion is a phrase which means that this particular certificate will be given to persons who will commend themselves to public opinion. Here it is to be rather an attitude of mind which is going to be open to public criticism. That is what I take to be standing up to public opinion.
If a person were given a certificate that was not regarded by public opinion to be right, it would apply. What I said was clear.
Is it not a better situation if we take it that there will be always public criticism of anyone concerned? A far better situation would arise if a man's name and qualifications, and what the Ministry think about him, were promulgated. There should be the ordinary proposal to confer citizenship upon him by Private Bill legislation. Surely, in the end, there is something much better worth having, if the person gets such citizenship conferred after the two Houses have acquiesced in the statement as to his qualifications and distinguished services, and the signal honour, rather than if it were done in a hole and corner way by the Executive Council.
Would not the Private Bill be promoted by himself?
Certainly. What difference is that?
A very big difference.
Why?
In one case the Government is conferring the honour, and in the other case the man is seeking it.
A man who is told by the Government that they consider he should have citizenship conferred upon him, knows that with Government assistance at his back, and possibly opposition backing in the two Houses, he will have nearly everyone in his favour when it goes to a special committee for consideration. Is that the ordinary method of a man who wanted to get in for some purpose or wanted to escape the citizenship of some other country? Is it not better to have it done in an open way, in the case of a man who would not go forward unless he felt the honour he had done this country was going to ensure him a good reception? That is better than to have people sitting around a council table and deciding on merit than merely issuing a statement in Iris Oifigiúil that So-and-so had got a certificate of naturalisation, from which the public would not know whether the man had applied for it in the ordinary way or as a pure alien looking for entry into this country, as a person whose citizenship was in doubt and who was looking for a certificate to remove the doubt, or whether he was one who was being honoured because of his signal services to the country. Which is the better situation?
Would Deputy Moore like to have some other country's citizenship decided in that hole-and-corner way or would he consider it the bigger honour to be asked by the Government of the State to have his name put forward on the ground that he had done honour to the country? Which would he think the better, a thing handed down with a simple statement in Iris Oifigiúil, containing merely his name and the date, or a thing that could be promulgated publicly, and that Deputy Moore felt he could rely upon to carry him through in other States? Surely there is a big difference. The Deputy would not feel that he got much in the second way if there was a likelihood, by a change of Government, that the certificate of naturalisation could be revoked. There is less publicity, less honour, less security and less dignity between one proposal and the other.
I suggest that the Government must have overlooked some of the consequences that would flow from this amendment. As Deputy McGilligan has just mentioned, it is not merely that any Minister has power to revoke a certificate of naturalisation that has been granted, but that there is an absolute obligation on the Minister to revoke a certificate of naturalisation, if the person who received that certificate is fined £100 within five years of receiving it, for any reason, in any country, or, if he goes away from Ireland for a continuous period of seven years without maintaining substantial connection which, I suppose, means some sort of business connection with this country. The Minister is not given any choice. He has to revoke the certificate of naturalisation. I think that this is symptomatic of the fact that a naturalisation certificate whether granted by the act of the Executive Council alone or by the whole House is not an appropriate form of honour to some one whom the country desires to honour.
I think the talk about "appropriate form of honour" and all the rest is a misunderstanding of the whole situation. We have got a number of things here by which we can naturalise people who want to become citizens of our country. Assume that a person seeks a naturalisation certificate: If the person in question, or his son or grandson, has rendered signal services to the country the Minister can dispense—and that is all that counts—as a mark of appreciation of these services, with compliance with the conditions necessary in other cases. It is on that basis we should consider this question. In cases where an applicant for naturalisation is himself a person who has rendered, in the opinion of the Executive Council, signal services to the country or, if a son or a grandson of such a person applies for naturalisation, is it not right that the Executive Council—it is not merely the Minister in this case— should be in a position to grant that naturalisation without insisting on the conditions imposed elsewhere?
That is really what the section means. It is not as if we were conferring some special title or making an order of merit. It simply gives discretion to the Executive Council, in cases where an applicant for naturalisation is a person that, in their opinion, has rendered signal service, or is the child or grandchild of a person who has rendered such service, to dispense with the residence qualification, which is really the qualification in question. That does not run counter to the idea of the revocation of a certificate of naturalisation if the conditions which were necessary for its retention are not fulfilled. It simply means that we are making a special class and making it possible for the Executive Council to dispense, in a special case, with the residence qualification. That is all it amounts to. It is putting it on a wrong basis altogether to speak of it as it has been spoken of from the Opposition Benches. If there were any suspicion that in cases of this sort the Executive Council did not perform their duty by asking themselves whether, in fact, such service had been rendered to the country as would justify this special dispensation, they would be in such cases amenable to public opinion in the sense that they would have to stand over their actions as they have to do over other actions.
Then it would be a practical citizenship, not purely honorary?
Purely practical.
In that case, the person who receives the citizenship would have to give up any other citizenship?
In the same way as any other certificate would be given— it is a certificate of naturalisation.
We have listened to a most extraordinary speech from Deputy McGilligan on this section. He has told us that there is not very much honour in a citizenship which is conferred in a hole-and-corner way, the announcement of which takes the form of a bald statement in Iris Oifigiúil; that because of the statement and the form of the certificate, which the Deputy assumed will be of the same nature as that which would confer citizenship in the ordinary process, no person would regard a citizenship conferred in the manner indicated in the section as a special privilege. The Deputy is sitting beside the former Attorney-General and if Deputy McGilligan, who has possibly less experience in these matters than his colleague, had taken the trouble to consult Deputy Costello, he would probably have learned from him that the Executive Council should not act in the way contemplated in the section without citing its authority; and that authority would be conveyed and would appear on the face of the certificate and in the notice which would appear in Iris Oifigiúil in the terms of this section embodying the phrase: “Has done signal honour or rendered distinguished service to the Irish nation” which would appear on the face of the certificate and in the official announcement in Iris Oifigiúil.
Who told you that— because it is not there?
It is not there, but, as I say, when the Executive Council act in this way, it usually cites its authority.
I think you should adjourn and get a lesson in procedure.
The Deputy said that this would be less highly valued by the recipient than if the honour had been conferred by a Private Bill promoted in the Dáil. I wonder how many people, who might happen to differ from Deputy McGilligan in any matter, would care to have their name bandied about by him in the Dáil. I think that there are a number of people who would hesitate to have the right of citizenship conferred upon them——
They are not all as delicate as you, or as bad in conscience.
They are not as casehardened as I am. After all, Deputy McGilligan's tongue has been blunted sufficiently often upon me to give me a tough skin. There are other people who, not having engaged in the hurly-burly of politics with Deputy McGilligan over a period of years, and, possibly, more sensitive in matters of this kind than those who have listened to him in this House and can gauge what he says at its true worth, would hesitate to accept the right of citizenship if, as I said, they had to undergo such a process of martyrdom as Deputy McGilligan has outlined for them. We are told by Deputy Cosgrave that under the old régime the Executive Council was deserving of a certain amount of public honour and public esteem. Now, we are told by his colleague that it acts in a hole-and-corner way—that possibly one of the disadvantages in a process of this sort would be that the public would only hear of the honour after it had been conferred on the recipient. I can recall an occasion upon which the former Executive Council conferred a very high honour upon certain Irishmen—the honour of martyrdom—and the public did not know of it until after the honour had been conferred.
These reminiscences are not relevant to the matter before the House.
They are in the best possible taste.
No, Sir, they were conferred in a hole-and-corner way.
They are not relevant and should not be repeated.
We are told that the Executive Council should occupy a position of respect and esteem in this country. How can it, if people believe it meets in a hole-and-corner way? It is only a gang of conspirators that would do this in a hole-and-corner way. This will be done in all solemnity. Possibly it may never be done by us; it may be done by our successors. I am certain that those who are members of the Executive Council, when they come to consider a case like this, will bear everything in mind. While it is not possible to guarantee that everything they do will meet with unanimous approval, nevertheless, there was a time when the Dáil did things almost unanimously and the great majority of the people condemned them. The process which Deputy McGilligan has outlined as an alternative to that which is provided for in the section, would not, any more than what it is proposed to do under the Bill, obviate the necessity for an amount of public inspection and public scrutiny. There is one thing at any rate—it would not remove the possibility of there being a grave division of opinion in the country about the matter.
Might I reply to the martyr?
The Deputy might to report progress.
We will leave the matter over until another day.
Progress reported; Committee to sit again to-morrow.