This is relevant to something I want to deal with myself. I did not come here just to track Deputy Molloy: I came here to make a few points of my own but I will use him as a launching pad now that he is here. This section does not leave the Minister free to make up his own mind whether he will hand out the vote to German citizens once Irish people are allowed to vote in Germany. The purpose of subsection (1B) is to compel the Minister to activate this provision once he has made up his mind that the voting requirements in, for instance, Germany are of a kind analogous to those which an Irish person would have here. I do not think the subsection could possibly be interpreted as letting the Minister put the matter on the long finger. Were it so, a German citizen resident here could compel the Minister by an order in the High Court to make this order or declaration. Paragraph (b) of the subsection states:
the provisions of that law enabling citizens of Ireland who are so resident so to vote are the same, or are substantially the same, as those enabling nationals of that Member State so to vote,
Everyone knows what this provision is aiming at but in order to avoid getting into a tangle later the Minister might consider inserting after the word "law" a parenthesis saying "other than those relating to citizenship". Obviously the ordinary law of Germany relating to the right to vote there provides that it is restricted to citizens and clearly an Irish citizen cannot conform to that part of the law and it is an absurdity to require the Minister to satisfy himself that that part of the law is the same as it would be for Irish people here. In order to avoid doubt it should say specifically that the provisions of that law which are supposed to be in the Minister's mind must be those provisions that are analogous but not literally the same because, by definition, they cannot be the same since an Irishman living in Germany does not satisfy the requirement of German citizenship.
There seems to be an omission in the section, namely, that it is not sufficiently explicit what will happen if the situation in the foreign country changes. Subsection (1E) (a) states:
The Minister may revoke or amend an order under this section (including an order under this subsection).
I presume the Dáil would intend — and if so perhaps it should say so — that he may revoke or amend an order only where his opinion as to the voting law of the other country has changed. If the Minister is of the opinion, as he must if it is brought to his attention, that the law of the other State has been made more rigorous and has excluded Irish citizens, then he should revoke the order, as is the intention of the Dáil. I take it that the reciprocity which the Dáil seems agreed on is to be strictly one of mutual conditionality: in other words, there is to be a reciprocal voting arrangement but only so long as it remains reciprocal. If the other side opts out, that should bring into operation the Minister's right to suspend or revoke his order. It should be made explicit that he may revoke or amend that order only where his opinion as to the quality of the voting law in the other country has changed.
Another matter that should be spelled out relates to where a member state of the EC ceases to be a member state. What is the position then? For example, if Denmark, Holland or Britain were to leave the EC — I cannot foresee what motives might lead them to do so — and if we had a reciprocal voting arrangement with them as we will have automatically in the case of Britain because of the existing situation and as we may hereafter in the case of other EC member states, what will happen? Presumably the intention of the Dáil is that the reciprocal voting arrangement should automatically lapse. But since it does not appear to be a necessary implication of the Bill and in order to avoid doubt, perhaps the Minister would consider taking Report Stage another day and including a short clause making clear that where a State ceases to be a member state his order becomes automatically voided.
I have made the point that where voting laws in other countries change, the Minister's power under subsection (1) (e) opinion of the voting laws in any other country has changed. However, that sub-country has changed. However, that subsection refers only to countries, other than Britain, which are EC members. Unless I have misread the Bill, the Minister would not appear to have the same discretion in regard to Britain. I would be totally against any discrimination, favourable or otherwise, vis-à-vis British subjects and the citizens of other EC States. I would have prefered if no individual nationality had been referred to in the Bill. It could have been put in more general terms to the effect that the conditions outlined would apply automatically where there are reciprocal voting rights and that otherwise the Minister shall form an opinion thereafter as to whether these rights are provided in any other States. That right of the Minister to revoke or amend the order does not seem to have anything corresponding to it in the case of the British.
I wonder what the reaction of the House would be if the Irish living in Britain were disenfranchised so far as voting in that country was concerned and Britain is the only country where there is even the shadow of a likelihood of that happening. It is not likely to happen in Holland or Denmark where the numbers of Irish are negligible. The presence of Irish voters in large numbers can have significant effects in individual constituencies in Britain as the Tory Party have complained repeatedly. They have always believed that the constituencies which are marginal in the Labour direction tended to be kept marginal by the inclination of Irish people to vote Labour.
My impression is that Irish people living in Britain no longer vote en bloc for the Labour Party. Many of them probably vote either of the other ways. However, the question of whether the Irish ought to have a vote in England has been fairly contentious there and that is why I say it is the only country in which Irish people might be disenfranchised. There appears to be no provision for the Minister to retaliate in such an event. I use the word, “retaliate” merely to save time. I have no wish to imply any note of vindictiveness. It would be unfortunate if what we are trying to do as a gesture of neighbourliness were to incorporate anything which seemed retaliatory but we should not leave ourselves without any way to indicate displeasure if Irish people living in Britain were, by reason of some political necessity, to be deprived of their voting rights there.
Subsection (1) (f) proposes that the Minister ought to regard as a British citizen someone who, under the Act entitled the British Nationality Act, 1981, is a British citizen. I do not wish to be considered to be making a legal niggle though, as I have said here before often, those who complain loudest about legal technicalities and niggling technical points are the fastest to shelter behind such points when in difficulty and are the fastest to spell out those points if a lawyer should miss them. It would be a pity if a Minister who is simply an administrative officer of the State while wearing that hat were to be asked to interpret a British Act because a British Act is part of a foreign legal system.
In the Irish courts judicial notice will be taken of a British Act which antedates the emergence of this State so that one would not have to expound the meaning of an English Act that was pre-1922, but if one were trying to prove to an Irish court for some reason relevant to the court's proceedings that someone was or was not a British citizen, one would have to quote expert evidence. The kind of evidence the court would require in such circumstances would be the evidence of a member of the English Bar. A number of Irish barristers got English qualifications simulteneously with their Irish qualification but there would be the nuisance of bringing in one of those people to interpret the English Act. An Irish Minister is not necessarily supposed to have any official understanding of what the English Act means. It is not part of his duty to be well instructed in English case law which may have grown up around the Act and which may be there in accretions in the words of the Statute.
In 99 cases out of 100 I would envisage no problem arising and nobody being disposed to trying to create a problem but it would be regrettable that in applying criterion to an Irish Statute an Irish Minister would have to come to the conclusion that someone qualified as anything in particular under a British Act. It would be better if the clause were redrawn or if a further clause were included empowering the Minister to determine entitlement to franchise. Obviously, if there was a contrary view put by someone who had an interest in preventing someone from voting, legal questions would arise but, barring a dispute, the Minister should be empowered to decide for himself in the matter of authorising entry on of the nationality of some more flexible and simple the criterion of whether he qualified under the British Act.
There may be reasons why the holding of a UK passport is not a workable criterion. I expect that all of the some hundreds of British people who reside in my constituency, for example, have British passports and if they are British citizens to the point that they have not sought Irish nationality, they will be getting the benefit of this Act. The Minister would be wise either to delete paragraph (a) and to use some wider criterion which would not involve his interpreting British law, or otherwise to add another clause empowering him to reach a conclusion in any case by reference to some easily available piece of evidence such as the holding of a passport purported to be a UK passport and purported to be in the name of the person applying for registration.
