Twenty-seventh Amendment of the Constitution Bill 2004: Committee Stage.

Before Committee Stage commences I would like to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment, which is contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice, the sections are postponed until consideration of the Schedule has been completed. I ask the Minister for Justice, Equality and Law Reform to formally move, in accordance with precedence, that consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.

I move:

That sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.

Is that agreed?

No.

Cuireadh an cheist.

Question put.
The Dáil divided: Tá, 63; Níl, 45.

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Browne, John.
  • Callanan, Joe.
  • Carty, John.
  • Coughlan, Mary.
  • Cregan, John.
  • Curran, John.
  • Dempsey, Tony.
  • Dennehy, John.
  • Devins, Jimmy.
  • Ellis, John.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Grealish, Noel.
  • Hanafin, Mary.
  • Harney, Mary.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • Martin, Micheál.
  • McDowell, Michael.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Keeffe, Ned.
  • O’Malley, Fiona.
  • Power, Peter.
  • Power, Seán.
  • Sexton, Mae.
  • Smith, Brendan.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Wilkinson, Ollie.
  • Woods, Michael.

Níl

  • Boyle, Dan.
  • Broughan, Thomas P.
  • Bruton, John.
  • Connaughton, Paul.
  • Costello, Joe.
  • Cowley, Jerry.
  • Crawford, Seymour.
  • Cuffe, Ciarán.
  • Deasy, John.
  • English, Damien.
  • Ferris, Martin.
  • Gilmore, Eamon.
  • Hayes, Tom.
  • Higgins, Michael D.
  • Hogan, Phil.
  • Kehoe, Paul.
  • Lynch, Kathleen.
  • McCormack, Padraic.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Murphy, Gerard.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Keeffe, Jim.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Penrose, Willie.
  • Perry, John.
  • Quinn, Ruairi.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, Seán.
  • Sargent, Trevor.
  • Sherlock, Joe.
  • Shortall, Róisín.
  • Stagg, Emmet.
  • Stanton, David.
  • Twomey, Liam.
  • Upton, Mary.
  • Wall, Jack.
Tellers: Tá, Deputies Hanafin and Kelleher; Níl, Deputies Durkan and Stagg.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.

Amendments Nos. 18 and 19 in the name of Deputy Costello are out of order. Amendment No. 20 in the name of Deputy Jim O'Keeffe proposes a new Schedule. Amendments Nos. 10 to 14, inclusive, and amendments Nos. 20 to 23, inclusive, are related. Amendment No. 10 is consequential on amendment No. 20, amendment No. 11 is consequential on amendment No. 21, amendment No. 12 is consequential on amendment No. 22, and amendment No. 13 is consequential on amendment No. 23. These amendments will be taken together by agreement. Is that agreed? Agreed.

SCEIDIL NUA.

NEW SCHEDULES.

Tairgim leasú a 20:

I leathanach 7, roimh líne 1, an Sceideal nua seo a leanas a chur isteach:

"SCEIDEAL 1

CUID 1

Faoi chuimsiú reachtaíochta arna hachtú de bhun Airteagal 9.1.2°

CUID 2

Subject to legislation enacted pursuant to Article 9.1.2°".

I move amendment No. 20:

In page 6, before line 1, to insert the following new Schedule:

"SCHEDULE 1

PART 1

Faoi chuimsiú reachtaíochta arna hachtú de bhun Airteagal 9.1.2°

PART 2

Subject to legislation enacted pursuant to Article 9.1.2°".

I should explain my thinking behind the various amendments and my reaction to the ruling out of order of so many of them. I fully understand that in the circumstances in which we are debating Committee Stage there are tight parliamentary rules as to what can or cannot be accepted by way of amendment. While I accept that the Ceann Comhairle must apply these rules objectively, they are a further chapter in a story of constraint on debate.

A number of amendments which have been ruled out of order would not have been tabled at all if we had gone through the original proposed process of referral to the All-Party Committee on the Constitution, or in default of that, if we had conducted detailed discussions between the parties or full discussion before the Select Committee on Justice, Equality, Defence and Women's Rights. None of these processes were available to us. Ironically, if Committee Stage of the Bill was dealt with by select committee, perhaps we would have had more leeway in the discussions. When I and other Members raised the issue this morning at the Committee on Justice, Equality, Defence and Women's Rights, the Chairman informed us time constraints made it impossible to take it in committee.

What I wanted to see happen was along the lines proposed by the All-Party Committee on the Constitution in its sixth report on the holding of a referendum. I wanted the committee to invite before it key experts and personnel from the legal, medical and human rights areas to provide their expert insights into the implications of the proposed constitutional amendment and of the exact wording proposed. We were not able to do that because of the constraints.

This debate would have been better informed if we had had the opportunity of such contributions. One of the people I had in mind was Gerard Hogan who is acknowledged as one of the leading constitutional experts in the country. I would be very happy to get his views on this Bill. I would like to have seen ——

He is a good supporter of the Progressive Democrats.

I am reminded by Deputy Costello that he has a particular orientation; that would not trouble me in the least. I have had some private discussions with him and would like to have heard him put his views on record on this issue.

I was wondering why the Deputy was in discussion with him.

This debate has nothing to do with constitutional law.

I would also like to have heard the views of experts from the medical fraternity, particularly the masters of the maternity hospitals. I am somewhat addled by the figures and would like to have got full clarity on them. An additional dimension which has not been focused is the data from Northern Ireland which also has an impact on the current situation from the point of view of current citizenship. Additional questions I would have raised would have concerned the exact figures for non-EU national births within Northern Ireland over the past number of years. This is an aspect which has not been examined, as far as I know. I had the opportunity of talking to a doctor from Northern Ireland last weekend who is also involved in politics. He gave me some information which would have been useful and could have informed our discussion on some "late arrivals" in Northern Ireland.

The human rights area is another aspect needing examination. It would have been helpful to have some people from this area before a committee. I listened to the Minister this morning when, in a rather abrasive manner, he used a sledgehammer approach to Michael Farrell of the Human Rights Commission. That is not the way to treat a constitutional amendment or a view being put forward on it. I have not even had the opportunity to fully consider all the points raised in the human rights document. Rejecting them out of hand by use of language such as "tendentious" and by challenging the concepts in the document without an opportunity for proper debate is not the way to deal with the issue. It was the wrong approach.

I have no intention of coming between the Minister and the Human Rights Commission because we have not heard the details. We touched on one aspect. The Minister made a reference that he got no response from the Opposition when he originally floated his proposals last month. That is not true. The facts are that the proposals were originally presented around 10 March. They were followed up on 11 March by a letter to the Taoiseach from the leader of Fine Gael, Deputy Kenny — I have the correspondence — suggesting that the proposals should be referred to the All-Party Oireachtas Committee on the Constitution.

I said I never got any response on the substance.

That was not the point. There was an immediate response. Deputy Kenny wrote to the Taoiseach on 11 March stating that he strongly believed that the Government should refer the proposal for a constitutional amendment concerning the issue of Irish citizenship for children of non-national parents to the All-Party Oireachtas Committee on the Constitution. He proceeded at length, indicating the approach we would adopt, that we would try, as we always do, to be constructive but that the issue should be teased out fully and that this was the process by which it should be teased out.

Nothing was heard from the Government side until 30 March at which stage there was a response, nearly three weeks later, rejecting the approach of referring the issue to the All-Party Oireachtas Committee on the Constitution but indicating that the Minister would be available for further meetings should members of the Opposition wish to contribute to the development of proposals. Such a further meeting was held a couple of days later. I spent an hour and a half with the Minister. I asked him 34 preliminary questions which I felt should be teased out. If the process followed by the Minister is considered by him to be consultation, I utterly reject it. The Minister must accept I did not get the replies to those questions until two weeks later, in two instalments, on the night before the Second Stage debate. That is a ridiculous way to handle the issue. In addition, to say there was no contribution from the Opposition is wrong. Furthermore, I sought an emergency meeting of the justice committee yesterday morning to bring in outside experts. It was not possible to organise that.

We are now dealing with a Committee Stage debate constrained by Committee Stage rules without having had proper discussion and consultation between the parties and, above all, a proper input from bodies such as the parties in Northern Ireland, the masters of the maternity hospitals and legal experts, all calling for the process recommended in the report of the all-party committee. It is not the way to amend the Constitution. I have considerable respect for the Constitution. It has served the country well. I wish the Minister had similar respect for it.

Regarding the amendment before the House, I should explain the approach I have adopted. I have tabled a number of amendments. I have done so on the basis of highlighting the many options which could have been discussed by the All-Party Oireachtas Committee on the Constitution. Many of them are alternatives to one another. Some of them do not sit comfortably together. However, as spokesperson for an Opposition party which took the approach of being constructive from the beginning, I felt this was the best contribution I could make. I am not necessarily advocating any one of the seven or eight proposals I have put forward as being the best. However, the very number of them illustrates the very many ways in which the problem, such as it is, could have been remedied. This is only on a constitutional level. There are other possible practical approaches which have come up in discussion.

I will deal directly with the amendment before the House, allow colleagues in and return to the other issues. The Minister suggests in the Bill that the way to deal with the issue is by amending Article 9 of the Constitution. Some people would agree that is the best approach. Others would not. There is an informed view that a constitutional amendment is not necessary. That is something that has not been fully teased out. There is a further very strong view that the correct approach is to confront the issue head on in the article which is the source of the problem. It is accepted that the difficulty, in so far as there is a difficulty, has arisen because of amending Article 2 in 1998.

If Article 2 is the basic problem, would it not be more up-front, honest and transparent to amend that article? I appreciate that, because of the Anglo-Irish Agreement and the multi-party document associated with it, it would involve discussions with the UK authorities — I would not anticipate any difficulty there — and also with the parties in Northern Ireland. Why not have such discussions? If there were discussions at the time would it not be appropriate that there should be such discussions rather than effectively amending Article 2 by the back door, which is what we are actually doing? We will discuss this in more detail as we go along. Why should we not address the issue in an up-front, open and transparent way?

The amendment with which we are dealing recognises that there is already power under Article 9.1.2° to deal with the future acquisition and loss of Irish nationality and citizenship and provides that this will be determined in accordance with law. Why are we not determining it in accordance with law? The answer is there may be a constitutional barrier because of the reference in Article 2 which refers to the entitlement and birthright of every person born on the island of Ireland, which includes its islands and seas, to be part of the Irish nation. If that is a problem, surely it can be very easily resolved by taking one of the many options I have put forward and merely adding to Article 2 the words, "subject to legislation enacted pursuant to Article 9.1.2°". That would achieve the same result because it would make it clear that the power under Article 9.1.2° to have laws governing our nationality and citizenship would not be overridden by Article 2. That is one of the many approaches that should be teased out. It is the basis on which I put forward this amendment, because there is a whole range of other ways in which Article 2 or Article 9 could be amended. My concern is that these other possibilities have not been teased out. We are rushing this today. There is a whole raft of amendments, many of which have been ruled out of order with no real opportunity to debate them fully or get advice on them.

My last point relates to the fundamental issue of whether we should amend Article 2 or Article 9. That hinges on the question of how effective Article 9 is regarding the existing Article 2 and the nature of that relationship. The case has been made that the Minister, or the Government of the day, does not have that power under Article 9 of the Constitution, which specifies, "the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law". This is because of the revised Article 2 that was included in the Constitution in 1998. The Irish Nationality and Citizenship Act 1956 was amended, however, by the Irish Nationality and Citizenship Act 2001. I direct the Minister's attention to section 3 of the 2001 Act, which inserted a new section 6 into the 1956 Act to restrict the entitlements of a person born in the island. It specifically states that, in certain circumstances, such a person "shall not be an Irish citizen" unless he or she makes a declaration.

Unless they opt to become an Irish citizen.

If it was possible in 2001 to provide for such a restriction in legislation — the amending Irish Nationality and Citizenship Act 2001 — why is it not possible to do so in 2004? This issue needs to be fully considered. Two categories of person are mentioned in the amended section 6, the first of which is persons born "to a non-national who at the time of that person's birth was entitled to diplomatic immunity within the State". One could argue that special rules apply to diplomats in any event, although I am not sure that an unconstitutional provision should be made for them in legislation. The second, more relevant, category mentioned in section 6 is persons born in the island of Ireland "to a non-national on a foreign ship or in a foreign aircraft". Such persons shall not be citizens of Ireland unless they make a declaration, etc.

If it was possible to provide for restrictions on Irish citizenship in the 2001 Act, which was enacted after the 1998 constitutional amendment, why are we rushing into this amendment? Is it because the Minister says it is necessary to provide for further restrictions? I will be happy to give the Minister the opportunity to reply fully to that point. If I recall correctly, it is obvious he is well aware of the 2001 amending legislation because, as Attorney General, he advised on the constitutionality of the 2001 provisions.

May I deal with Deputy O'Keeffe's query now, as I will not be here later? It is important that I should deal with the issue. Two exceptions are provided for in section 6 of the Irish Nationality and Citizenship Act 1956, as a result of amendments made in the 2001 Act. The exceptions do not represent an infraction of the birthright provisions in Article 2 of the Constitution. We should bear in mind that the birthright is a right to be exercised; it does not constitute an automatic conference of citizenship on people against their wishes.

I tried to speak about the two categories mentioned by Deputy Jim O'Keeffe during the ruaille buaille that took place on Second Stage, but I was unable to be heard because of the disorder that was taking place. The Deputy was not present at that time, but the matter had been raised by some of his colleagues. The Irish State is saying that it will not impose Irish citizenship on persons in the two categories against their wishes. Under the Constitution, as it stands, it is their birthright to have Irish citizenship if they wish. We have made such a provision because, in the case of diplomats, it is an international convention that such people do not have citizenship imposed on them. The convention is in place because if citizenship were automatic, one might be liable for conscription if one was born in a certain country while one's father or mother was working as a diplomat there and citizenship had been imposed on one against one's wishes.

The same provisions apply to persons born on board a foreign ship or aircraft. Irish citizenship is not imposed against their will on persons whose mothers were on board a foreign ship or aircraft when they were born and who have no intention of assuming the rights to which they are entitled as a consequence of having been born in Ireland. Deputy Jim O'Keeffe should not consider that Article 2 of the Constitution says that everyone born on the island of Ireland is an Irish citizen, whether they like it or not. Article 2 of the Constitution does not say that — it states that it is the "birthright of every person born in the island of Ireland ... to be part of the Irish Nation". On thearbiter dicta of two judges of the Supreme Court, the Attorney General advises me it is the entitlement of everybody born on the island of Ireland to claim Irish citizenship.

I understand a casual reading of the Irish Nationality and Citizenship Act might lead one to consider that it represents a statutory derogation from the birthright of everybody born on the island of Ireland. It is not a derogation from the birthright, however; it simply confers an option on a person. One is not deemed to be an Irish citizen in the absence of the exercise of the option by one or one's parents. Nobody has suggested the State is entitled to oblige people in Northern Ireland of the Unionist persuasion to be regarded for all purposes as Irish citizens and to owe a duty of "fidelity to the nation and loyalty to the State" in line with Article 9 of the Constitution. Nobody has suggested that such demands are being imposed on people against their wishes.

If one reads Article 2 of the Constitution carefully, one will see that the "entitlement and birthright" phrase is very clear. It confers an option on everybody born on the island of Ireland to become an Irish citizen. It does not confer an obligation to be regarded as an Irish citizen. That is the distinction one has to draw. For the purposes of Ireland's need to remain consistent with international law, we had to say to the children of diplomats that it is a matter of Irish law — section 6(1) of the Irish Nationality and Citizenship Act — that "every person born in the island of Ireland is entitled to be an Irish citizen". That does not mean, however, that everybody born on the island of Ireland is an Irish citizen, whether they like it or not.

If the Minister believes there is no full automatic entitlement to citizenship under Article 2 of the Constitution——

There is an automatic entitlement to citizenship, but citizenship itself is not automatic.

According to the Minister's interpretation, does Article 2 of the Constitution not merely confer an entitlement to apply for citizenship in the circumstances he has mentioned?

There is an entitlement to be——

How does he make the argument that the specific provision in Article 9.1 of the Constitution, that "the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law" is overridden by Article 2 of the Constitution? If Article 2, as amended in 1998, merely gives an entitlement to apply for citizenship, surely Article 9.2 should override Article 2? Would it not then be the case that there is no need for a constitutional amendment? That brings us again to the question of whether it is wise to proceed with the proposed referendum and to refer the matter to the Supreme Court, if necessary. If Article 2 merely confers an entitlement to apply for citizenship, surely the existing Article 9 takes precedence because it specifically states that "the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law".

Article 2 does not simply provide for an entitlement to apply for citizenship. The phrase "entitlement to apply" suggests that one is entitled to apply, but one might be rejected. That is not the case. One is entitled to Irish citizenship. Section 6(2)(a) of the Irish Nationality and Citizenship Act states, “subject to subsections (4) and (5), a person born in the island of Ireland is an Irish citizen from birth if he or she does, or if not of full age has done on his or her behalf, any act which only an Irish citizen is entitled to do”. Section 6(2)(b) goes on to state, “the fact that a person so born has not done, or has not had done on his or her behalf, such an act shall not of itself give rise to a presumption that the person is not an Irish citizen”. I wish to make clear that section 6(1) is fully consistent with Article 2 of the Constitution because it acknowledges the entitlement to citizenship. Deputy Jim O’Keeffe is saying that if entitlement to citizenship is not automatic, it means——

I feel I have to interrupt at this point. The Minister is not replying to the debate on the amendments before the House. A number of other Deputies wish to speak. The Minister is now on a question and answer session while not addressing the substance of the issue. The normal procedure is that those Deputies offering are given the opportunity to speak and the Minister then replies.

With respect, Acting Chairman, that is not the procedure. The order in which Members contribute on Committee Stage is not on the basis that the Minister responds at the end.

Deputy Costello was offering before the Minister spoke. I allowed the Minister speak because he wished to reply specifically to Deputy Jim O'Keeffe.

It was on one specific point.

I have not deviated from that point. Deputy Jim O'Keeffe has asked me whether the contents of this section did not give the lie to the proposition that, through legislation, the entitlement to citizenship could be qualified or reduced. It cannot be.

The Minister is not in a position to spend 15 minutes answering a specific question. Other Members offered to speak before the Minister but we agreed to allow him to reply to that specific point.

I am happy to sit down. However, I find it rich that Deputy Costello, whose party conducted three divisions this morning, is now attempting to curtail Committee Stage. We are suddenly told that he is in a desperate hurry.

The Minister is wrong once again. The Labour Party did not call three divisions this morning.

There were three divisions.

Yes, but the first was an amendment to the Order of Business from the Fine Gael Party.

If Deputy Costello wishes to make a contribution, he may do so now.

It is high-handed of the Minister to feel he can interrupt and go onad nauseam on this issue when no opportunity was given to debate the issue properly. He comes into the Chamber, talking off the top of his head and making all sorts of inaccurate allegations. He then informs the House that he will have to leave the Chamber for the rest of the debate. Who does he think he is?

The Minister for Justice, Equality and Law Reform is expected to be present in the House when introducing a constitutional amendment. Committee Stage is being taken in the Chamber because it is an important constitutional issue. Does the Minister not recognise that we are proposing to change the Constitution in a number of ways? When we gave way to the Minister to answer a specific question raised by Deputy Jim O'Keeffe, he spoke for 15 minutes and informed us that he will be absent for the rest of the debate. Are Members expected to speak in limbo while the Minister is out of the Chamber on business he considers more important than an amendment that will change the democratic framework of the State? He then gets on his high horse because he believes he is entitled to speak for the few minutes he is in the Chamber. It is wrong to allow the Minister to behave in such a high-handed manner. I, at least, expect the Minister to hear what I have to say on this Bill.

To date, there has been minimum consultation with the Minister. While he has spokenex cathedra, he has not engaged in dialogue. There will be at most six hours’ debate on Committee Stage and only two hours on Report Stage. All Stages will be taken in the Seanad on Friday. The Minister, Deputy McDowell, should not be Minister for Justice, Equality and Law Reform if he cannot manage to be in the Houses for those three days. His prior responsibility is to the House. If he is putting through a constitutional amendment, he is expected to be here to answer all questions.

An attempt was made to establish a forum with the Oireachtas Committee on Justice, Equality, Defence and Women's Rights. Last Friday, I wrote to the committee with specific proposals——

On a point of order, we are meant to be discussing an amendment and not the process of this House. There have been discussions on the process over a number of days with votes taken on the issue. With respect to Deputy Costello, he is only talking about the process when this amendment should be discussed. If the Deputy is concerned about order being kept in the House, he should speak to the amendment and not about what committee might have considered the Bill.

Deputy Costello will address the amendment.

We are discussing amendments Nos. 10 to 14, inclusive, and Nos. 20 to 23, inclusive. The Minister spoke only on one point for 15 minutes so he should not decide how the House conducts its business. I was making a point as a backdrop to the substance of this legislation.

The Opposition endeavoured to seek a proper debate on these amendments. The context in which they are being discussed is wrong. I asked for the Committee on Justice, Equality, Defence and Women's Rights to seek expert advice from the three masters of the maternity hospitals, the Human Rights Commission, the SDLP and the Immigrant Council of Ireland. Today, on "Morning Ireland", the Minister and Mr. Michael Farrell of the Human Rights Commission discussed its concerns that rights may be undermined by this Bill. The commission will meet its counterpart in Northern Ireland to issue a statement tomorrow. When I met the Minister on 7 April——

The Chair has already ruled that the Deputy address the amendment and not the process.

Deputy Costello should address the amendment.

This is the last contextual point I will make. The Minister did not address the amendment during 15 minutes speaking. He addressed the issue of how the position of persons born on a foreign ship or not directly on the island could be altered by legislation and not necessarily by constitutional amendment.

When I met the Minister on 7 April, I made the offer that if there was all-party consensus on the issue, the Labour Party would accept it. The Minister claims the spokespersons did not come back to him, but I would have liked him to come back on my proposal.

Deputy Jim O'Keeffe's amendments show other ways for the Minister to address this issue. An amendment to Article 9 will effectively delete Article 2. Deputy Jim O'Keeffe has suggested that there was provision to deal with this through the citizenship Act 2001. Article 9.2 regarding the future acquisition and loss of Irish nationality has a considerable degree of flexibility.

Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.