Dáil Éireann debate -
Wednesday, 28 Apr 2004

Vol. 584 No. 3

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

SCEIDIL NUA.

NEW SCHEDULES.

Atógadh an díospóireacht ar leasú Uimh. 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°".

Debate resumed on 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°".

—(Deputy J. O'Keeffe).

Mr. J. O’Keeffe

On the matter of amendment No. 20 and associated amendments, I am cognisant that there is a guillotine on this debate and that we have limited time to discuss the outstanding issues. I made it clear already that I put forward these amendments for the sake of discussion and to tease out alternative options to those proposed by the Government. In light of that approach and the limited time allowed for Committee Stage debate — although I believe we have not had sufficient debate and that we have not treated the Bill properly by not getting the advice of outside experts — I do not propose to press this particular amendment in order to allow some time for the many other amendments that need to be discussed.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendments Nos. 21 to 23 have already been discussed. Is the Deputy pressing any of the associated amendments?

Mr. J. O’Keeffe

They are associated amendments. They have not been fully debated in my view, but to clear the decks for the other amendments which have been tabled, I will withdraw them.

Níor taireadh leasuithe Uimh. 21 go 23 a huile.

Amendments Nos. 21 to 23, inclusive, not moved.

An Ceann Comhairle

That is appreciated. Amendments Nos. 24 and 25 in the name of Deputy Costello are out of order.

Níor tairgeadh leasuithe Uimh. 24 agus 25.

Amendments Nos. 24 and 25 not moved.

An Ceann Comhairle

Amendment No. 27 is an alternative to amendment No. 26. Amendments Nos. 26 and 27 will be discussed together by agreement. Is that agreed? Agreed.

Mr. Costello

Tairgim leasú Uimh. 26:

I gCuid 1, leathanach 7, línte 5 agus 6, ", an tráth a shaolaítear and duine sin," a scriosadh

agus

I gCuid 2, leathanach 7, línte 16 agus 17, ", at the time of the birth of that person," a scriosadh.

I move amendment No. 26:

In Part 1, page 6, lines 5 and 6, to delete ", an tráth a shaolaítear an duine sin,"

and

In Part 2, page 6, lines 16 and 17, to delete ", at the time of the birth of that person,".

I welcome our third Minister for the day, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O’Dea)

I am delighted to be in the Deputy's company again.

Mr. Quinn

The good wine for the end.

Mr. Costello

This amendment relates to a section in the text which, to my mind, is the unkindest cut of all in this provision. The section states that an Irish parent of a child seeking citizenship must be alive at the time of birth of the child. If the parent is not then alive, the right to citizenship is lost. It is not uncommon for a father to die during the pregnancy of the mother and perhaps he would be the parent with Irish citizenship. This would leave the child with no constitutional entitlement to citizenship and therefore it makes no sense for the Minister to say that there may well be a legislative entitlement. This is a mean provision to include in this section.

It is also possible that a mother could die in childbirth and as an Irish citizen she could be the sole carrier of the citizenship right. This provision seems totally unnecessary. The inclusion of this miserable caveat, that at least one parent to be an Irish citizen "at the time of the birth of that person", is one of the meanest and unkindest cuts of all. Why does it have to be at the time of birth? It should be sufficient that a child has a parent who is an Irish citizen. Why should the child be discriminated against if the parent who happens to a citizen is dead at the time of the child's birth?

Surely the Minister can eliminate that clause. It should be deleted because it serves no purpose except to discriminate against the entitlement of the child when obviously the parent is an Irish citizen. Where a parent might have died six months, two months, a week, a day or hours before the birth of the child, he or she will be deprived of his or her constitutional entitlement. It is extraordinarily mean to create such a situation.

This provision reflects the total antipathy in this legislation to the rights of the child. The legislation is not based on any understanding of or sensitivity to the rights of the child or on any understanding of the case of a child deprived of citizenship in those circumstances. As we know, Article 40 grants a host of entitlements and rights on the basis of citizenship. These will not be available to a person deemed a non-national who has no entitlement to Irish citizenship. We are creating a two-tier type of child recognition in this country and this is dangerous.

I wish to home in specifically on the immorality of this provision. There is no justification for it and it is wrong.

Mr. F. McGrath

It is a disgrace.

Mr. Costello

It is disgraceful and outrageous. It shows the petty-minded attitude of the people in the Department of Justice, Equality and Law Reform who concocted this clause. I cannot see the purpose of it and hope the Minister can explain what benefit can be gained by depriving the child of an Irish citizen, who happens to die before the child is born, of citizenship. I remain to be convinced of any benefit. I do not want to hear the Minister reply that this will be, or is already, provided for in legislation. That is not good enough.

There was some reference to the issue in the draft proposals which purport to be the background for the legislation to be enacted if this referendum goes through. That is not good enough. We need a clear constitutional statement and that is not too much to ask. I hope the House accepts this amendment.

Mr. J. O’Keeffe

I moved a similar amendment. I welcome the third member of the ministerial triumvirate to honour us with his presence. In a sense, one could say that the focus on this issue is an indication of the combined wisdom of the ministerial weight of the Department. However, a more practical explanation might be that the debate is being fitted in between meals by the different Ministers, which is perhaps a further indication of the offhand manner in which this issue is being handled.

Mr. O’Dea

That is outrageous. On a point of order, I cannot let that go unchallenged. The Minister is unavoidably absent, as Deputy O'Keeffe knows very well.

Mr. Costello

He could have told us. He came in here and then left. The Minister of State should not have to apologise for him.

Mr. O’Dea

I attended the opening of an extension to a school for the disabled in Limerick today. I got here as quickly as I could. It is not a question of fitting it in between meals.

An Ceann Comhairle

That is not a point of order.

Mr. J. O’Keeffe

I understand the explanation but I do not accept it. The Committee Stage of an amendment to the Constitution Bill should get top priority. If the Minister had to be in Brussels——

An Ceann Comhairle

I would prefer if Deputies would confine themselves to the amendment. As they rightly pointed out, there is a guillotine on this legislation.

Mr. J. O’Keeffe

Let me respond briefly. If the Minister has business in Brussels, he should be there. However, he and the Presidency would have known that business had been ordered long before Committee Stage was ordered. The Committee Stage should have been ordered for a day on which the Minister could be here. I will not go beyond that at this stage.

We are discussing amendments to the wording of the proposal. This fits into the context of how this should be done, if there is to be an amendment to Article 9. I have already strongly expressed the view that if it is to be done it should be done in a minimalist way. That would avoid the problem so ably expounded by Deputy Costello. All we are trying to do is establish that legislation enacted pursuant to Article 9 will not be declared unconstitutional because of Article 2. If that is the objective, as I believe it is, the obvious approach would be to proceed with the amendment to Article 9 by inserting the words "notwithstanding Article 2" and leaving the rest of Article 9 in place. That would clearly indicate that the intended objective is to give supremacy to Article 9.

I understand the sensitivities regarding any open reference to Article 2, that in political terms it may cause problems. I merely point out it is an issue that should be teased out. However, if we are to proceed along the lines proposed by the Government in the present Bill, we must be careful to ensure that the wording will not cause injustice, unfairness or hardship. That is the basis of the amendments put down by Deputy Costello and I, which focus on our concerns arising from the inclusion of the words "at the time of the birth of that person" in the provision giving citizenship rights to a person born on the island of Ireland which includes its islands and seas who has at the time of the birth of that person at least one parent who is an Irish citizen. By including the words "at the time of the birth of that person" we may be precluding from the protection of the Constitution an Irish baby born in Ireland merely because the Irish parent may have died prior to the birth. It may be a measure of the haste of the Government in rushing this referendum that this issue has not been properly addressed. As I did not get an explanation from the second member of the triumvirate when I raised this issue earlier, perhaps the Minister of State, Deputy O'Dea might deal with it.

I mentioned my concerns regarding abandoned babies. I highlighted a case recently where a baby was found in a bus shelter. The unfortunate mother has not yet come forward. I do not want to dwell on this but I hope the matter is resolved. Occasionally babies are abandoned. If there are indications — how will I express this in a politically correct way — that an abandoned baby might not be totally of native Irish stock——

Mr. Quinn

Is the Deputy referring to somebody like Paul McGrath?

Mr. J. O’Keeffe

Deputy Quinn has come to my rescue. Would that baby be denied its rights, even though he or she might eventually play for Ireland and distinguish himself or herself in the Irish colours? Might that baby be denied its rights because there was no proof and no presumption of an Irish parent at the time of its birth? That is an issue that has not been adequately examined. If there is genuine concern on this, as I believe there is, given that both Deputy Costello and I put forward similar amendments, there are a number of ways of dealing with it and we need not rush into accepting this.

Mr. Quinn

Is the amendment being accepted?

Mr. J. O’Keeffe

If it were accepted in principle that there might be a problem, it could be dealt with in a number of ways.

Mr. Quinn

On a point of order, is the amendment to delete the phrase "at the time of the birth of that person" being accepted? If it is, we can move on to another issue.

Mr. O’Dea

No, it is not.

Mr. J. O’Keeffe

We must tease it out further. If it were accepted that there was a problem, we could find a solution. If the Minister is not prepared to accept the deletion of the words "at the time of the birth of that person", there are other ways of dealing with it. For instance, it could be done by inserting in page 6, line 16, after the word "have", the words "or did not have". An alternative would be to insert in page 6, line 17, after the word "person", the words "or at any time previously". These are different options for resolution. I favour the deletion of the words "at the time of the birth of that person". In the absence of a reasonable explanation, I hope the Government will accept that approach.

Mr. O’Dea

I reiterate what I said earlier. The Minister is chairing a meeting of the JHA in Brussels today and is unavoidably absent.

Aengus Ó Snodaigh

This should have been scheduled for next week.

Mr. O’Dea

I have explained why I could come in only at this late stage. I apologise to the House for that. It was beyond my control.

Mr. Quinn

No. It was not. The Minister of State should not have to attend.

Mr. Costello

It was not beyond the Minister's control.

Mr. O’Dea

I take issue with Deputy Costello's suggestion that the State can do what it will in terms of a person who is not an Irish citizen. That is an old chestnut and is demonstrably false. This debate has been going on for the past three days. That assertion is obviously false. I do not know why the Deputy keeps repeating it.

Mr. Costello

This debate only began today.

Mr. O’Dea

We heard the same from Deputy O'Keeffe. He said that including a clause providing that Irish citizenship could be acquired only by somebody who had an Irish parent at the time of birth excludes them from the protection of the Constitution.

Mr. Quinn

Citizenship is denied.

Mr. O’Dea

That is not true. Non-citizens here know it is the present law that undermines the concept of Irish citizenship.

Mr. Costello

We are talking about the Constitution.

Mr. O’Dea

I will explain in a moment what we are doing here. The question of abandoned babies is another chestnut.

Mr. J. O’Keeffe

Will the Minister complete the other point first?

Mr. O’Dea

I will answer the point. I will deal with points according to my own chronology.

Mr. J. O’Keeffe

The Minister has not dealt with any point yet.

Mr. O’Dea

Deputy O'Keeffe makes much of the idea of abandoned babies, stating that there may be no proof of parentage and asking how we can prove citizenship and whether we are depriving abandoned babies of citizenship. Another Deputy sneered that they will not be deprived of citizenship if they can play soccer. That is a peculiar way to deal with an issue that, according to the Deputy opposite, is very serious. I do not know to what extent Deputy O'Keeffe has researched the legislation surrounding this, but it is as clear as a bell.

Mr. J. O’Keeffe

Obviously to a greater extend than the present Minister.

Mr. O’Dea

It is obvious that Deputy O'Keeffe has not done it at all. I suggest to him that it is as clear as a bell. Section 10 of the 1956 Act, which is the governing legislation, states that "every deserted infant first found in the State shall, unless the contrary is proved, be deemed to have been born in Ireland". That is the law as it stands.

Mr. J. O’Keeffe

I am talking about the constitutional protection under this provision.

Mr. O’Dea

The best advice we have received is that the proposed constitutional change will not affect that. If it does affect it in any way, we will ensure that the implementing legislation will make it clear——

Aengus Ó Snodaigh

It will change the Constitution.

Mr. O’Dea

——that a foundling will be deemed to have been born to an Irish parent, unless there is compelling evidence to the contrary.

Mr. J. O’Keeffe

Why are the words "at the time of the birth of that person" being included?

Mr. Costello

What about citizenship?

Mr. J. O’Keeffe

What is the relevance of those words?

Mr. O’Dea

I will explain that to the Deputies, who are very impatient.

Aengus Ó Snodaigh

We have been here all day.

Mr. Costello

There are flaws in the Minister of State's argument.

Mr. O’Dea

The Deputies will take their time and they will listen to me.

Aengus Ó Snodaigh

No.

Mr. O’Dea

If they listen, they might learn. The stance being taken by Deputy Ó Snodaigh in the House is quite different from that being taken by his party's candidates on the doorsteps in Limerick. I will quote chapter and verse for the Deputy in that regard before the local elections.

Aengus Ó Snodaigh

The Minister of State can work away.

Mr. O’Dea

Sinn Féin is all things to all men and women.

Acting Chairman (Cecilia Keaveney)

I ask the Minister of State to confine his remarks to the amendments.

Aengus Ó Snodaigh

The Minister of State should check the behaviour of his party in Limerick.

Mr. O’Dea

I would not like to take up the time of the House by quoting what some Sinn Féin candidates have said to people on the doorsteps of Limerick.

Aengus Ó Snodaigh

The Minister of State should go ahead.

Mr. O’Dea

I can give the time, date and place and I can provide witnesses.

Aengus Ó Snodaigh

He can go ahead and raise the matter.

Mr. J. O’Keeffe

The high level of the Minister of State's contribution has been noted.

Mr. O’Dea

I would like to explain to Deputy O'Keeffe that amendment No. 26 seeks to remove from the proposed constitutional amendment a phrase that is, to my mind, essential for the clarity and certainty of operation of the new provision. As it stands, the proposed amendment to the Constitution makes clear the extent of the power of the Oireachtas to legislate for the future acquisition and loss of Irish citizenship of a finite class of persons — those born in Ireland who did not, at the time of their birth, have a parent who was an Irish citizen or was entitled to be an Irish citizen. If one removes the phrase "at the time of the birth of that person", as this amendment proposes, one must consider what one will be left with. The extent of the class of persons to whom legislation can provide Irish citizenship entitlements immediately becomes quite unclear.

Mr. Costello

No, it does not.

Mr. O’Dea

Is it now to be possible for the Oireachtas to legislate for the citizenship of a person born to a parent who had been Irish, but ceased to be Irish before the birth?

Mr. Quinn

How does one cease to be Irish?

Mr. O’Dea

What will be the legal situation in respect of a person who is born to a parent who is not an Irish citizen at the time of birth, but who may subsequently acquire Irish citizenship? In putting the proposal to the people as it stands, the Government is asking them to vote for or against something which is clear and on which individuals can make up their own minds. If I accept amendment No. 26, the Government will ask the people to decide on something that is demonstrably unclear.

Mr. Costello

Will the Minister of State accept the amendment?

Mr. O’Dea

I do not propose to accept the amendment. Similarly, amendment No. 27 would not help to clarify the situation. In fairness to Deputy Costello, it appears that the purpose of amendment No. 27 is to address the question of posthumous birth. I do not accept that the amendment is necessary to address the circumstances of posthumously born children. I wish to draw the Deputy's attention to the draft implementing Bill.

Mr. Costello

I drew the Minister of State's attention to the draft Bill.

Mr. O’Dea

The draft Bill is set out in Citizenship Referendum: The Government's Proposals, a document which was circulated to all Deputies on the same day as the Bill before the House was published. The Bill is not formally before the House and cannot be brought forward until the people have accepted the referendum proposal. It is relevant to this debate, however, because of its standing in respect of the development of a proposal to amend the Constitution in a way which I will briefly explain. The draft Bill contains extensive provisions to address the issue of posthumous births, ensuring that the pre-decease of a parent through whom a child would have derived an entitlement to Irish citizenship will not prevent the child from continuing to derive that entitlement, notwithstanding the death of the parent in question.

Mr. Costello

So why do we not——

Mr. O’Dea

I can tell Deputies, if they want to hear it, that the draft Bill was drawn up before the proposal to amend the Constitution was drafted. This ensures that the scope of the constitutional amendment will be sufficient to guarantee the constitutionality of the implementing proposals. The Deputy's proposed amendment to the proposed Article 9.2 is not a pre-requisite for addressing the matter of posthumous births in legislation, as the draft implementing Bill amply demonstrates.

The amendment may have a broader, perhaps unintended, effect, however, which the Government would regard as unwanted and undesirable. If a naturalised person whose citizenship has been revoked on one of the grounds set out in section 19 of the Irish Nationality and Citizenship Act 1956 subsequently becomes the parent of a child born in Ireland, I do not want the child to acquire an entitlement to Irish citizenship automatically. I am concerned that the inclusion of the words proposed in Deputy Jim O'Keeffe's amendment might give rise to a claim that such a person has an implicit right to Irish citizenship, notwithstanding the revocation. That would certainly not be acceptable. I do not propose to accept the amendment for those reasons.

Mr. Quinn

Do I understand correctly the Minister of State's comment that the draft Bill was prepared before the text of the proposed constitutional amendment was drafted?

Mr. O’Dea

Yes.

Mr. Quinn

Can the Minister of State tell me when the draft Bill was drafted?

Mr. O’Dea

It was drafted in the three weeks running up to 6 April.

Mr. Quinn

Can the Department of Justice, Equality and Law Reform produce such a level of documentation so quickly?

Mr. O’Dea

It was produced by the Office of the Chief Parliamentary Counsel.

Aengus Ó Snodaigh

I wish the office could do likewise with all other Bills.

Mr. Quinn

I am afraid that I do not believe the Minister of State.

Mr. O’Dea

I am passing on the information I have been given by my officials.

Mr. Quinn

It is not credible.

Mr. J. O’Keeffe

Can I press the Minister of State a little further on the issue of timing? This process raises the issue of a non-national who was born in Ireland. Such a person may have entitlements under Article 2 of the Constitution, but will not be entitled to citizenship under Article 9. I wonder when that concept was first developed. The question of timing is quite relevant. A person born in Ireland was considered to be an Irish citizen by statute until 1998 and under the Constitution since 1998. When did the concept of a non-national born in Ireland come into vogue as a separate category of person? That is what will arise, essentially, when the proposed constitutional amendment is passed.

Mr. O’Dea

There has always been a distinction between nationals and non-nationals. I understand that Deputy O'Keeffe is asking me when the idea to legislate——

Mr. J. O’Keeffe

For non-nationals born in Ireland——

Mr. O’Dea

Precisely. I have given the Deputy the information I have. The instruction was given and both Bills were drafted in the three week period leading up to 6 April.

Mr. Quinn

We know from the report of the interdepartmental committee that the idea has been around since 1998. It was one of the recommendations of the interdepartmental committee. There is a difference of opinion, but I think it is fair to say that officials in the Department of Justice, Equality and Law Reform, irrespective of the identity of the Minister at any given time, have been running with this idea because they collectively perceive — I do not necessarily refer to the officials beside the Minister of State — that there is a necessity to curtail open entitlement to citizenship on the basis of having been born on the island of Ireland.

One of the recommendations of the interdepartmental committee in 1998 that I mentioned in my speech earlier — I will not go through it again in the interests of time — was that restrictions be introduced to the right to apply for citizenship of children born to foreigners on this island who would previously have had such a general entitlement. In light of the increasing level of migration that was perceived, it was considered that the right would have to be curtailed. I am offering that as an explanation of when the concept first arose. I am answering Deputy Jim O'Keeffe's question.

Mr. J. O’Keeffe

Did the Minister of State complete his response, or is he getting further advice on the matter?

Mr. Costello

It was my amendment.

Acting Chairman

I will call the Deputy after Deputy O'Keeffe.

Mr. J. O’Keeffe

I would like to ask a question arising from the Minister of State's comment that this concept was first dreamt up three weeks before the documents were circulated.

Mr. Quinn

It is a patent lie.

Mr. J. O’Keeffe

On the basis that anybody born in Ireland is an Irish citizen under the prevailing legislation — the constitutional amendment of 1998 — will the Minister of State explain why in the Immigration Bill 2004, which was circulated in January of this year, there is a reference to non-nationals born in Ireland in the section dealing with the obligation of non-nationals to register? Obviously, this is a separate category of person even though no such person existed under legislation or in the Constitution at that time.

Aengus Ó Snodaigh

The Minister first briefed the spokespersons on 10 March that there would be a constitutional referendum on this issue. The second briefing was in April. Some thought went into it prior to 10 March, which is not three weeks before the debate. There was much more thinking on this issue than we were informed.

Mr. Quinn

Back in January, Richie Green was running a solo in the Department of the Environment, Heritage and Local Government.

Aengus Ó Snodaigh

A Minister does not make an announcement on proposed legislation to a spokesperson in March unless he has done his preparatory work on it.

Mr. O’Dea

There has been reference to non-nationals in Irish immigration legislation since the 1940s.

Mr. J. O’Keeffe

What about a non-national born in Ireland?

Mr. O’Dea

There are distinctions on citizenship between nationals and non-nationals born in a particular country in every European country. The distinction of entitlement to citizenship is drawn in every European country. If someone is a national born in the country or born outside the country, in most cases, he or she has an automatic right to citizenship.

Mr. J. O’Keeffe

This is incredible. A person born in Ireland is an Irish citizen.

Mr. O’Dea

Non-nationals are entitled to take up Irish citizenship if they so wish. In every country, there is a distinction in the acquisition of citizenship between nationals and non-nationals. There are restrictions on non-nationals, people who are not native of the country, whose citizenship——

Mr. J. O’Keeffe

Native if they are born in the country.

Mr. O’Dea

They are not. No European country gives the right to citizenship to a non-national simply because of birth.

Aengus Ó Snodaigh

Ireland does.

Mr. J. O’Keeffe

We do.

Mr. O’Dea

Except us.

Mr. Quinn

We do.

Mr. J. O’Keeffe

Why is there a provision in the Immigration Act for a non-national born in Ireland?

Mr. O’Dea

We do not give citizenship automatically but an entitlement to take it up. There are many non-nationals in the country who have not exercised that entitlement.

Mr. J. O’Keeffe

Under Article 2 anyone who is born on the island of Ireland is a citizen of the Irish nation. This problem arises because the article entitles an automatic right to citizenship

Mr. O’Dea

They are entitled to be citizens of the Irish nation.

Mr. J. O’Keeffe

The issue is that in the Immigration Act which was circulated last January.

Mr. O’Dea

That occurs in the 1946 legislation.

Mr. Costello

All the information received from the Minister indicated that the legislation was drafted prior to the provisions of the constitutional referendum. It is strange to find that there were draft proposals in place a number of weeks before the text.

Mr. O’Dea

Prior to the finalisation — Deputy Costello should not be putting words in my mouth.

Mr. Costello

That is meaningless because when the spokespersons met the Minister on 7 April, he was still unsure whether to use "the" or "him or her". Finalisation can mean anything. The draft legislation contains proposals, and not even finalised. How long were these proposals in gestation?

Mr. Quinn

Three weeks.

Mr. Costello

It was supposed to be three weeks before the provision was there. Was it prepared at that stage? Were these proposals in some textual form before the spokespersons heard anything?

Acting Chairman

Will the Deputy return to the amendment?

Mr. Costello

The Minister of State's clarification of this amendment does anything but clarify it. His clarification points out that it is a finite class of person and that it would be unclear, otherwise, if the clause was not there. It is then claimed that it is satisfactory that a posthumously born child is dealt with through the draft proposals. However, these are not yet enacted and may never be so. Instead, it is a mish-mash of some proposals, text, bullet points and suggestions. The draft Bill, entitled citizenship referendum, is the Government's proposals.

If the constitutional amendment is passed on 11 June, the legislation that follows will only then be finalised by the Government and presented to the Oireachtas for approval.

Mr. Quinn

It will join the queue with other Bills.

Mr. Costello

This can only happen in June. Is there an indication that this legislation will be passed by both Houses of the Oireachtas by July, before the summer recess? Considering how the Government operates, it might not happen until the autumn. Anyone born in the referred circumstances will suffer in that intervening period. Having draft proposals that may or may not be enacted is not satisfactory.

The introduction of this caveat in the Constitution is mean-spirited. It means that though one of the parents must be an Irish citizen, the parent, either the mother or father, must be alive at the time of the child's birth. Who is the Government trying to catch out with this proposal? How many citizenships for non-nationals are being revoked while little is done with those characters who traipse around the world on Irish passports that were handed to them?

Mr. Quinn

Could one be posthumously alive?

Mr. Costello

Will the Minister of State readdress this issue? No reason for this clause has been given to satisfy the House. This should be looked at with consideration of a child's rights. The child who is born is the one entitled to citizenship. Why should the death of a parent, in a short time and not in excess of nine months, be a reason for denying citizenship? It was claimed that there might be a time when citizenship might be revoked. Will the Minister inform us what those circumstances are and has it happened? Why is this caveat needed in the Constitution rather than a more generous entitlement to the child.

Mr. J. O’Keeffe

I have raised the scenario of a foundling's rights. I am not satisfied that there is constitutional protection for a foundling but I wish it could be done. I do not accept the Minister of State's response that it is governed by legislation as that can be changed at any time. If we are talking about protection, a foundling is one who needs it more than most. However, the core issue of this amendment is the use of the expression "at the time of birth" of a person. The Minister of State has not adequately responded to Members' concerns on this issue.

I have been considering the three possibilities put forward: one in my own amendment, one suggested by Deputy Costello and another which was mentioned earlier. On balance I prefer Deputy Costello's formulation which reflects more adequately our concern that somebody who is unfortunate enough to lose his or her Irish parent before he or she is born may not be covered by this constitutional protection. If the Government is genuinely committed to listening to all views on this issue, it should take our concerns into account. It could easily do so. If this is not the case, we are only wasting our time.

Mr. O’Dea

Deputy Costello asked about the existence of any textual material before a certain date in April. As far as I am aware there was not, but I will make further inquiries. I am assured there was not but since the Deputy is so determined to pursue the matter I will make further inquiries and inform the Deputy if I find this is not the case.

Deputy Costello said the legislative proposals were simply in draft form and not yet in the form of a Bill. That is exactly what we said. They will be in the form of a Bill. Deputy Costello and every other Deputy and party in the House will have their opportunity to make a contribution to that Bill. The question he has legitimately raised about posthumous births will be dealt with. That is the Government's intention.

Mr. Costello

The Minister of State used the phrase, "will be".

Mr. O’Dea

It will be dealt with in the legislation.

Mr. Costello

The Government may not be around to deal with it in the autumn after the local elections.

Mr. O’Dea

If the referendum is passed it will be dealt with in the legislation to follow.

Mr. J. O’Keeffe

Why include the problem in this Bill?

Mr. O’Dea

The Constitution is not the appropriate vehicle to deal with every aspect. This is more properly dealt with in legislation. I am giving the Deputies an assurance that we will deal with it.

Mr. Quinn

I accept there is a problem in this area, although I am not sure of the extent of it or how best to deal with it. We are using the sledgehammer approach. However, I do not deny there is a problem. Civil divorce was also an issue about which many people had major reservations. The Government of the day decided that not only would it amend the Constitution but it would actually draft and publish the legislation in advance to enable people to know when they voted to change the Constitution, precisely how the change would be implemented in light of all the difficulties and nuances of the issue. Will the Minister of State accept this set a precedent? His party in Opposition, having previously been in Government, supported not only the principle but the legislation.

Part of our concern is that this is another reflection of the rushed nature of the approach to this matter. There is a precedent, when questions arise of how an amendment will actually work, for publishing the legislation in final draft form — a green copy, if one likes — as was done during the divorce referendum, so people will know that if they vote "Yes" to this constitutional change, this is the Bill that will be introduced.

Mr. O’Dea

Is that not precisely what the Government is doing? We have outlined what our proposals will be and it does not matter whether they are in pink form, white form or green form. We have provided this information for the people who are to decide on whether we will do this.

People are not necessarily deprived of their rights under the Constitution or their human rights because they are not citizens. There are a few things to which citizens are entitled and non-citizens are not — the right not to be deported, for example, because non-nationals are here with the permission of the State if they are here legally. If this Bill is passed by the Dáil tomorrow and the Seanad next week, the law on the right to citizenship will not change. The nationality and citizenship legislation of 1956 will continue to operate until the referendum is passed, if it is, and the new legislation is passed by both Houses of the Oireachtas after due debate.

Deputy Costello asked me the circumstances in which somebody can have a certificate of naturalisation revoked. This is set out in section 19 of the 1956 Act.

Mr. Costello

How many times has it happened?

Mr. O’Dea

The Deputy asked me the circumstances. Section 19 states:

The Minister may revoke a certificate of naturalisation if he is satisfied——

(a) that the issue of the certificate was procured by fraud, misrepresentation whether innocent or fraudulent, or concealment of material facts or circumstances, or

(b) that the person to whom it was granted has, by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State, or

Mr. J. O’Keeffe

There are a fair few of those around.

Mr. O’Dea

The section continues:

(c) that (except in the case of a certificate of naturalisation which is issued to a person of Irish descent or associations) the person to whom it is granted has been ordinarily resident outside Ireland (otherwise than in the public service) for a continuous period of seven years——

Mr. J. O’Keeffe

The Pirate of Prague is in the Bahamas again.

Mr. O’Dea

The section continues:

—and without reasonable excuse has not during that period registered annually in the prescribed manner his name and a declaration of his intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister, or

(d) that the person to whom it is granted is also, under the law of a country at war with the State, a citizen of that country, or

(e) that the person to whom it is granted has by any voluntary act other than marriage acquired another citizenship.

Those are the circumstances to which the Deputy referred.

People talk about the citizenship for investment scheme as if ours was the only Government in the world that ever operated such a scheme. It was the Fianna Fáil-Progressive Democrats Government that put an end to that practice. As far as I know it has been the practice of every Government since the foundation of the State to give passports in return for investment. It has certainly been practised by Governments of all hues. It has also been the practice of governments in every other country in the world until relatively recently. We discontinued this in 1998. Deputy McDowell is probably the first Irish Minister for justice never to have operated such a scheme.

Mr. J. O’Keeffe

Máire Geoghegan-Quinn is the only member of the Fianna Fáil Party to emerge with any honour.

Mr. O’Dea

Deputy McDowell is the first Minister not to have operated that system.

Mr. J. O’Keeffe

She stopped the free-booting that was going on between 1988 and 1994.

Mr. O’Dea

I do not know what was going on between 1988 and 1994 as I was on the back benches.

Mr. J. O’Keeffe

Nobody else does either. That is why the matter is before the tribunals. The Minister of State should ask Bobby Molloy.

Mr. O’Dea

The scheme offering citizenship or passports in return for investment has been operated by every Government in this country and the governments of practically every other country in the world.

Aengus Ó Snodaigh

Operated? Abused is a better word.

Mr. O’Dea

We are delighted to have put this scheme to rest, which will happen when the referendum is passed, as I hope it will be.

Mr. Costello

The Minister of State did not answer the second part of my question. When did we ever revoke passports and what were the circumstances? Even if we were to revoke passports, why should we penalise the children of parents that had passports?

The section does not need the clause with which we are dealing. We could go on arguing about it for ever, but when we consider the matter from the point of view of a child there should be no question about whether this caveat should be removed. I urge the Minister of State to accept the amendment and allow these words to be deleted. If he does not I will certainly put the matter to a vote. It is the least we should expect in terms of an amendment to the text. There is nothing to be gained by retaining this clause.

We became somewhat confused about the question of a draft Bill and when it was produced. Do we know when it went to Government? Did it go to Government during the period before it appeared on 7 or 8 April? When did it go to the Attorney General? When was it approved by the Government?

How long has it been in gestation? That matter has not been clarified. Were different heads of the draft Bill circulated to Government for approval? If so, when were they circulated? If the Minister of State does not have the information, it is important that it should be provided so that we know when work began on this issue and what procedures were followed.

Aengus Ó Snodaigh

On 30 March I tabled three parliamentary questions to the Minister for Justice, Equality and Law Reform about the timing of the referendum and the consultation that took place. He stated in his reply:

I initiated the consultation process on 10 March 2004 by meeting with spokespeople for each of the Opposition parties on justice matters, including the Deputy. The briefing material which I had prepared and provided to the spokespeople as a basis for those consultations is now available on my Department's website.

That was four weeks before it eventually appeared.

He further stated: "No Government decision has yet been made as to when the proposed referendum will be held but the proposal is to publish the amendment of the Constitution Bill as soon as possible, and, at the same time, to produce a draft text of the proposed implementing Bill and other explanatory material." I did not believe either of these statements. If the mish-mash of notes and scribbles is a draft text for the implementation Bill, God love us, because it does not address the specifics, a number of which have been raised by other Members.

We still await the implementation Bill relating to the International Criminal Court. The Bill has been published but awaits discussion three years after the referendum. If this referendum is passed, will we have an idea about how the constitutional provisions will be implemented three years later? The Minister has given an assurance in this regard but it is similar to most assurances given by his predecessors and this Government. They are not worth anything.

Mr. J. O’Keeffe

If the referendum is passed, a new class of person will be created, who, under Article 2, will be part of the Irish nation but who, under Article 9 and the subsequent legislation, may not be an Irish citizen, even though he or she is born here. The citizenship entitlement of everybody born here will be restricted.

The Minister of State waxed lyrical about the rights of people on this island that are not related to citizenship. Since the Government will create a new category of person, what will be his or her rights? Will he or she be entitled to reside in the State or take up employment without a work permit? Will he or she be entitled to reside here similar to anybody else born on the island and entitled to the same rights, protections and privileges?

Mr. O’Dea

With regard to Deputy Costello's final question, both texts went to Government on 6 April and they had been in gestation for approximately six weeks. The Deputy asked a number of more specific questions and I will try to obtain replies to them before tomorrow.

Mr. Costello

On what date did the drafting of the texts begin in the Department?

Mr. O’Dea

I will find that out for the Deputy between now and tomorrow. I am not aware of circumstances in which citizenship was revoked by a Government. Deputy Jim O'Keeffe mentioned free-booting days in the 1980s when people allegedly obtained passports to which they were not entitled.

Mr. J. O’Keeffe

It was over dinner in the Shelbourne Hotel and without any formalities being observed.

Mr. O’Dea

The Deputy's party was in Government subsequently and it had every opportunity to revoke them under section 19. It did not do so. What is sauce for the goose is sauce for the gander.

Mr. J. O’Keeffe

We clean up enough of Fianna Fáil's messes and the tribunals are still doing it. The Minister of State knows full well——

Mr. O’Dea

The Deputy should quit while he is behind. Deputy Ó Snodaigh was gratuitously offensive about the draft texts circulated by the Government. Not only have we circulated the draft of our proposals but we have also, unusually, provided details of how the Irish Nationality and Citizenship Act 1956 will be amended along the lines proposed. This is quite unusual and far beyond the call of duty.

Deputy O'Keeffe stated the referendum will create a new class of Irish citizen.

Mr. J. O’Keeffe

No, the person will not be an Irish citizen but will be part of the Irish nation. He or she will be a non-national born in Ireland.

Mr. O’Dea

The Deputy is incorrect because the referendum does no such thing. The referendum enables the Oireachtas to legislate for the requirement to become a citizen. It is up to the people to decide whether they want to give the Oireachtas that power. If the people so decide, the appropriate legislation will be introduced by the Government and we will all have an opportunity to make a contribution on it.

Mr. J. O’Keeffe

The Minister of State is evading the question. The Bill has been presented as part of a package.

Mr. O’Dea

We are discussing a Bill to give people the right to decide.

Mr. J. O’Keeffe

The Minister of State should have stayed in Limerick. I have raised a reasonable point and the manner in which he has dealt with it does him no credit. If he does not have a reply, that is fine and I will accept that.

Mr. O’Dea

I will debate it at the appropriate time.

Mr. J. O’Keeffe

If the package is passed, there will be a new class of person born on this island who will not be an Irish citizen. If the Minister does not understand that, there is no point in debating the issue further.

Mr. O’Dea

Nobody understands this except the Deputy who is like Noddy.

Mr. J. O’Keeffe

Between the Minister of State and his co-correspondent with the Sunday Independent, there is a pair. He should concentrate more on his day job or perhaps his column is his day job.

Mr. O’Dea

The Deputy is in the House long enough to understand what he is discussing.

Mr. J. O’Keeffe

If the Minister of State is not aware the consequence of this package is a new class of person who will be part of the Irish nation under Article 2 but will not be an Irish citizen under Article 9, as amended, and the proposed legislation, then he does not understand the issue. If this package is agreed, in future some people born on the island who heretofore would automatically have been entitled to citizenship may not be Irish citizens because they do not have an Irish parent or do not comply with other conditions proposed in the legislation.

The Minister of State said one's rights and entitlements do not depend on citizenship. The people to whom I refer will exist in future if this package is agreed. What will be their entitlements? If the Minister of State does not know, perhaps he will make the information available tomorrow.

Mr. O’Dea

Fundamental rights, including the right to life and the right to free travel within the State, will not be affected whether one is a citizen.

Mr. J. O’Keeffe

That is not the question. Will such a person be entitled to reside here?

Mr. O’Dea

The person will be entitled to reside here with the permission of the Government. Whether it be on a work permit in the case of the Minister for Enterprise, Trade and Employment, or whether in any other circumstances, they will be entitled to reside here with the permission of the Government.

Mr. J. O’Keeffe

That is not the point.

Mr. O’Dea

Taking Deputy O'Keeffe's case to its logical conclusion, he is saying people who are not Irish citizens should have an automatic right to reside here. Is that the point he is making?

Mr. J. O’Keeffe

Is the Minister of State being deliberately thick? If he does not know the answer, I accept that. He is not a walking encyclopaedia, and he only walked in on the discussion of this Bill tonight. It is a legitimate point that because of the Government proposals, some of the people born in future on the island of Ireland will not be automatically entitled to Irish citizenship. I am inquiring as to the rights of those persons, bearing in mind that under Article 2 of the Constitution, they are entitled to claim that they are part of the Irish nation. Under the new provision, and the legislation proposed, they will not be entitled to Irish citizenship. What will their rights be? That is a simple question.

Anyone from Guatemala to Hong Kong might get a work permit, or apply for one. I am asking about these people's entitlements under Article 2, bearing in mind the restrictions being imposed on them under Article 9. That is the point being raised regarding this amendment from the beginning, that the interlocking nature of Articles 2 and 9 is being changed as a result of the amendment. What will be the effects on the person who will thereby not be entitled to Irish citizenship, though born in Ireland?

Mr. O’Dea

Those people will be in exactly the same position as anyone currently in the country who is not an Irish citizen.

Mr. J. O’Keeffe

Will they not have any entitlement under Article 2, no rights of residence or any such rights, even though they form part of the Irish nation?

Mr. O’Dea

Not unless they are Irish citizens — unless with permission. They will have the right to reside if they have permission. They will have no automatic right to reside.

Mr. J. O’Keeffe

What, if any, will their entitlements be under Article 2, which entitles them to be part of the Irish nation?

Mr. O’Dea

They are entitled to the full protection of the law while they are in this country.

Mr. J. O’Keeffe

A visitor from Guatemala is entitled to that.

Mr. Costello

I do not want to pursue this matter much longer. My main concern is that the person who is born to one parent who is an Irish citizen, or entitled to be an Irish citizen, should have rights to Irish citizenship even if that parent dies during the pregnancy or childbirth. I want to see that in the constitutional provision as distinct from the text. There is no reason it should not be there. All that is required is to delete "at the time of the birth of that person". It would then read as follows: "Notwithstanding any other provision of this Constitution, a person born in the island of Ireland which includes its islands and seas, who does not have" — and then drop the next clause — "at least one parent who is an Irish citizen or is entitled to be an Irish citizen, is not entitled to Irish citizenship or nationality as provided by law." Incidentally I wonder if "born in the island of Ireland" should not read "on the island".

Could we simply make that change? Regarding rights, there is a clear problem. Article 40 of the Constitution outlines the fundamental rights of citizens. These rights are given only to citizens, and under Article 40 there is an entire range of fundamental rights which are the rights of citizens. They include the right to life of the unborn, the right to a good name, property rights. The Article says that no citizen shall be deprived of his personal liberty save in accordance with the law, and guarantees to citizens the right to express freely their convictions and opinions. I do not know if that is granted in the same fashion to anyone else. Citizens are given the right to assemble peacefully. These rights are guaranteed by the Constitution. The citizen has the right to form associations and unions. These are the fundamental rights given to citizens of this country. They are not given to any other category of person. Obviously a diminution in rights will result for the people we have been discussing. That goes without saying. Regarding the amendment, can we get a "yes" or "no" at this point? Will the Minister of State consider it for Report Stage tomorrow or leave it for the Seanad. That will come up on Friday so it would need to be reconsidered for Report Stage. If not, I want to put the matter to a vote.

Mr. O’Dea

I take the Deputy's point about the wording, because we are dealing with the Constitution, whether the reference should be to "in the island of Ireland" or "on the island of Ireland." As I understand it, we are tracking the wording in Article 2, so that is why this terminology, which I would not have used, is being used.

Regarding rights given specifically to citizens under the Constitution, I take Deputy Costello's point. He is correct. It can be seen in Article 40 that it is the citizen who will not be deprived of his personal liberty. It is the citizen who is referred to throughout Article 40.

Mr. Costello

Fundamental personal rights are involved.

Mr. O’Dea

Deputy Costello must be aware that there is a wealth of jurisprudence, a wealth of court decisions here that afford such protection to people who do not happen to be citizens of this country and who are here.

Mr. Costello

We are talking of people on the island for the first time.

Mr. O’Dea

We are not considering this in a vacuum. I will send the Deputy copies of the case law which gives protection to people who happen to be in this country but who are not citizens. There is also a wealth of Statute law which gives further protection to those people.

I share Deputy Costello's view — strangely — that a person should not be excluded from citizenship because one of his or her parents happens to have died before the person's birth. We differ in how we should resolve that. Deputy Costello feels it should be resolved by means of the relevant Article in the Constitution. It is more appropriate for resolution by means of the legislation.

Mr. Costello

It should be seen from the point of view of the child.

Mr. O’Dea

If the referendum fails, the matter will not arise. If the referendum is passed by the Irish people in their wisdom, the follow-up legislation will contain that protection, and it is right and proper that it should.

Mr. J. O’Keeffe

We are talking of the rights of this new breed of person, this non-Irish Irish person who will have entitlements under Article 2 but will not be entitled to citizenship. A further issue has been triggered by the reference by the Minister of State to fundamental rights. As the Minister of State should know, Article 42 deals with the issue of education, and there has been much litigation on this matter in the courts. The rights and entitlements under Article 42 are not confined to citizens.

What is the position of the family, as protected under those rights? Article 42 acknowledges the primary educator is the family, and notes that the State will provide free primary education. Under the Article, a baby may be born in this country, and become part of the Irish nation, but because of the new provisions will not be an Irish citizen. Will that baby be entitled to the fundamental rights regarding education under Article 42? There is also the issue of the parents of that baby, who have rights and obligations under Article 42.

This issue is discussed in broad terms in Hogan and White at page 1857, and perhaps it is an issue that might be looked at. We have not discussed it to date. It involves the issue, following the L and O case, of the position regarding education, where the problem is — not for me, but for the Government — that the entitlement is not confined to citizens. This goes back to the earlier question I raised regarding residents. How can they exercise their rights of education if they have no entitlement to residence? This is part of the problem arising from the headlong rush into this issue. It was not completely resolved in the L and O case. It is one further issue that should be looked into in more detail. I do not expect the Minister to have an immediate answer to it.

Mr. O’Dea

My understanding is that the rights people enjoy by virtue of Article 42 of the Constitution, which, as Deputy O'Keeffe rightly says, is not confined to citizens, will remain unchanged. It is true that if they leave the State those rights can no longer be vindicated but the rights apply to people in the State. Article 42 is applicable as long as people are in the State. From that point of view it is unchanged.

Mr. J. O’Keeffe

Will they be forced to leave the State? In other words, will they be precluded from exercising their rights under Article 42?

Mr. O’Dea

The Supreme Court has considered this matter. In the L and O cases, the Supreme Court decided that an Irish citizen child has the right to the society of his or her parents, but not necessarily in Ireland.

Mr. J. O’Keeffe

Yes, but the education aspect was not dealt with in the L and O cases.

Mr. O’Dea

I am sure the education aspect was in the mind of the Supreme Court.

Mr. J. O’Keeffe

It is one of the many outstanding issues that have not been totally teased out.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."

Rinne an Choiste vótáil: Tá, 62; Níl, 43.

The Committee divided: Tá, 62; Níl, 43.

Tá

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

Níl

• Boyle, Dan.
• Broughan, Thomas P.
• Bruton, Richard.
• Connaughton, Paul.
• Connolly, Paudge.
• Costello, Joe.
• Crawford, Seymour.
• Cuffe, Ciarán.
• Gilmore, Eamon.
• Gormley, John.
• Gregory, Tony.
• Healy, Seamus.
• Hogan, Phil.
• Kehoe, Paul.
• Lynch, Kathleen.
• McCormack, Padraic.
• McGrath, Finian.
• McGrath, Paul.
• McManus, Liz.
• Mitchell, Olivia.
• Morgan, Arthur.
• Murphy, Gerard.
• Naughten, Denis.
• Neville, Dan.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Dowd, Fergus.
• O’Keeffe, Jim
• O’Sullivan, Jan.
• Penrose, Willie.
• Perry, John.
• Quinn, Ruairi.
• Rabbitte, Pat.
• Ring, Michael.
• Ryan, Eamon.
• Ryan, Seán.
• Sargent, Trevor.
• Shortall, Róisín.
• Stagg, Emmet.
• Stanton, David.
• Twomey, Liam.
• Upton, Mary.
• Wall, Jack.

Tellers: Tá, Deputies Hanafin and Kelleher; Níl, Deputies Kehoe and Stagg.

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.

Faisnéiseadh go rabhthas tar éis diúltú don leasú.

Amendment declared lost.

An Ceann Comhairle

Amendment No. 27 in the name of Deputy O'Keeffe has already been discussed with No. 26. Is the amendment being pressed?

Mr. J. O’Keeffe

The same arguments apply in this case, so I will not press the matter. We have effectively already debated amendment No. 27, and the result on No. 26 would also apply toit. I will not press it, especially as we are short of time.

Níor tairgeadh leasú Uimh. a 27.

Amendment No. 27 not moved.

Mr. Costello

Tairgim leasú Uimh. a 28:

I gCuid 1, leathanach 7, líne 9, "nó náisiúntacht" a scriosadh

agus

I gCuid 2, leathanach 7, línte 18 agus 19, "or nationality" a scriosadh.

I move amendment No. 28:

In Part 1, page 6, line 9, to delete "nó náisiúntacht"

and

In Part 2, page 6, lines 18 and 19, to delete "or nationality".

This amendment seeks the deletion of the phrase "or nationality" in the main provision. There is some confusion regarding the distinction between citizenship and nationality, and in that section, the word "citizenship" occurs on three occasions, but the word "nationality" on only one. It has never been made clear, and does not seem to be clear in the Constitution, just what is the difference between citizenship and nationality. In the letters that passed between Deputy Quinn and the Taoiseach in 1998, the Taoiseach seemed to presume that nationality and citizenship were tantamount to being the same thing, although he did not supply any argument why he came to that conclusion. At the same time, the word "nationality" seems to occur from time to time in the Constitution, and here it occurs for the first time in the amendment proposed.

When one parent is an Irish citizen, the child of that parent has an entitlement to be an Irish citizen. It does not say that one parent has Irish citizenship or Irish nationality, yet it goes on to say that the person is not entitled, unless the child of an Irish parent, to Irish citizenship or nationality. Should it not read "Irish citizenship and nationality"? What is the extra meaning conveyed by "nationality"? Does the phrase mean citizenship or nationality, is it an addendum, or is it the same word in a different format? It is certainly not clear, and this amendment has been tabled to ask the Minister if he can throw some light on the issue. Is it tautology? If not, why does it occur only on this one occasion, when "citizenship" occurs on three occasions? "Nationality" is associated with it on this occasion, but not on the other three occasions that it occurs in the provision of the constitutional amendment.

Mr. J. O’Keeffe

We are going to the heart of the problem in many ways. I touched on it in my contributions regarding the issue of someone being part of the Irish nation under Article 2 but who would not get citizenship under the amended Article 9. That raises the question very ably put by my colleague, Deputy Costello, of whether there is a distinction between citizenship and nationality. The existing Article 9.1.2° appears to distinguish between nationality and citizenship, in that both words are used. Is there any substance to that? Does one distinguish between them, or is one synonymous with the other?

This issue was considered in 1996 by the Whitaker committee, the constitutional review group. There was a reference to nationality and citizenship probably being attributable to the continuation of a British Commonwealth usage. That is somewhat out of date. We are talking about amending the Constitution of a free republic after all these years. It raises the issue as to what "citizen" and "citizenship" mean. I think this issue was confused somewhat by the Minister, Deputy McDowell, in some of his speeches. He referred to the fact that the concept of citizenship goes well beyond the entitlement to a passport. How far beyond does it go? He then went on to say that citizenship is rather a term that embodies the concept of membership of a modern state, whatever that means.

It goes back to the issue I raised earlier, the question of citizenship and nationality. We should have had a full debate at an early stage on an all-party basis to tease out that issue. It would have teased out the issues raised by Deputy Costello in this particular amendment. The one raised earlier by myself, about which I am greatly concerned and which has not been resolved, concerns the entitlement of somebody who will be a part of the Irish nation under Article 2 but who will not be a citizen under Article 9.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

Nationality and citizenship are synonymous terms in our law, and some Deputy who understands anything of the history of Irish republicanism should put it on the record of the House. Under the Constitution we are a nation and a State. We are nationals and we are citizens. The two terms are synonymous because we are not a State without a nation. We might have been before 1937. We are a nation and a State. That is why our nationality law is a "nationality and citizenship" law and has been so described since 1956. The Opposition should have checked out these facts. Deputy O'Keeffe should have checked this before he entered the House with yet another red herring, about this particular amendment of the Constitution. Nationality and citizenship in our system are synonymous terms. One is both an Irish national and an Irish citizen. In the United Kingdom one is not a citizen. It is not a modern state. One is the subject of a monarch. As the Constitution also provides, fidelity to the nation and loyalty to the State are fundamental political duties of all citizens.

Mr. J. O’Keeffe

One is part of the Irish nation, and will be part of the Irish nation under Article 2, but will not be a citizen under the amended Article 9. We have received no explanation of that. A new category of person is being created. With all due respects, the issue has not been resolved nor have the rights and entitlements of that person.

Mr. Costello

I am seeking to amend the words "not entitled to Irish citizenship or nationality". The Minister of State, Deputy Lenihan, has informed us they are synonymous. Why is it either-or? They cannot be the same if it is an either-or situation. Somebody has not told the Minister of State everything about Irish republicanism and statehood. Let us look at the Irish version. What is a citizen in Irish?

An Ceann Comhairle

I would prefer if the Deputy gave way to Deputy Ó Snodaigh. Deputy Costello has made a contribution on this. The Minister of State has not replied, as yet. Perhaps we will hear Deputy Ó Snodaigh. If there is time we will hear the Minister of State. If not, we will have to conclude.

Aengus Ó Snodaigh

I can be brief because what I have to say is similar to Deputy O'Keeffe's argument. If we adopt these we will create three categories of people on this island, citizens, nationals — because they would be part of the Irish nation, according to Article 2 — and non-nationals.

(Interruptions).

An Ceann Comhairle

Allow Deputy Ó Snodaigh speak without interruption.

Aengus Ó Snodaigh

I am not complaining. I am just saying the Minister of State, Deputy Lenihan, is trying to undo that by creating three categories of people on this island, non-nationals, citizens and nationals. How can the Government insert anything into the Constitution which negates another section? That is in fact what it is doing. It would try to remove nationality from someone who has gained it under Article 2. I do not think contradictions in the Constitution augur well for the way it should be changed.

Mr. Costello

I was just going to finish on——

An Ceann Comhairle

The Deputy has already contributed on this issue.

Mr. Treacy

The Ceann Comhairle should allow the Deputy one last shot.

An Ceann Comhairle

I understand the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea will speak.

Mr. Costello

We have two Ministers of State who are——

Mr. Quinn

There we have it — a national and a citizen.

An Ceann Comhairle

We will hear the Minister of State and then——

Aengus Ó Snodaigh

And a non-national in Brussels.

Mr. O’Dea

There is a lost leader and a future leader.

Mr. Quinn

If the Deputy loses more weight, both Ministers of State will be identical.

Mr. O’Dea

I agree with the Minister of State, Deputy Lenihan. The terms are synonymous. We are amending Article 9 of the Constitution. Article 9.2 already refers to nationality and citizenship. Article 9.3 refers to nationality and citizenship. Deputy Costello asks, quite reasonably, why we use both terms if they are synonymous. The answer to that is contained in the report of the Constitution review group, on page 17:

The use of both ‘nationality' and ‘citizenship' is probably attributable to a continuation of a British Commonwealth usage. It does not seem that the two terms have different legal meanings. Article 9.1.2° anticipated legislation in regard to both citizenship and nationality, now comprised in the Irish Nationality and Citizenship Acts, which do not purport to give the two terms different meanings. The Attorney General's Committee of the Constitution (1968) concluded that the term, ‘nationality' was probably obsolete in Irish law, but that in popular usage it implied inclusion of all those of the Irish race. Nevertheless, the term ‘nationality' is included in the citizenship legislation (the Irish Nationality and Citizenship Acts); the term ‘national' is used in section 6 of the Transfer of Sentenced Persons Act 1995; and Article 8 of the EU Treaty, as inserted by the Maastricht Treaty, refers to ‘nationals' of member states. In these circumstances retention of the term ‘nationality' in the Article would appear to be quite justified.

Mr. Costello

The Minister of State says that if we look at the Constitution review group's report, all will be clear. If we look at Article 9, which is also referred to by the Minister of State, there is a reference to citizenship and nationality. It is Article 9 that we are amending. It states: "the future acquisition and loss of Irish citizenship and nationality". Article 9.3 states: "No person may be excluded from Irish nationality and citizenship". What are we inserting into the Constitution? What is the new proposal in which an Irish citizen is not entitled to Irish citizenship or nationality? If the two are synonymous, why is one "and" and the other "or"? Should we not use the same format if we are satisfied the two are synonymous? Surely it is not "and" in one situation and "or" in another. All is not revealed and all is not clear.

I was also going to make a point about the Irish version. A citizen is a saoránach, a freeman or free person; and nationality is náisiún, a nation.

Mr. Treacy

Náisiúntacht is nationality.

Mr. Costello

The word "náisiún" implies origin from birth or nativity whereas "saoránach" is a fully fledged grown up adult, and we are talking about children in this respect. We are interested in children's rights. If a child is born to an Irish parent we want to ensure they get the full rights of citizenship, not diluted rights. Under Article 40, a fundamental set of rights are given to every Irish citizen.

Mr. J. O’Keeffe

The Minister of State has quoted from the report of the Constitution review group. Another interesting concept is raised on page 17 of the group's report. In it the group considered whether Article 9 specifically provides for citizenship based on place of birth. It decided against including such a provision on the basis that:

The Review Group, recognising that a provision on citizenship by birth necessarily includes exceptions and conditions and is correspondingly complex, is of the view that the subject is more appropriately dealt with in ordinary legislation. It concludes that a provision on the subject should not be inserted in the Article.

This amendment includes such complexities and exceptions and gives rise to the debate in which we are engaged. We finish as we began. This subject has not been properly debated.

Mr. Quinn

The use of a guillotine in a debate on a constitutional amendment is a disgrace.

An Ceann Comhairle

Ós rud é go bhfuil sé 10.30 p.m., ní foláir dom an cheist seo a leanas a chur de réir ordú an lae seo ón Dáil: "Gon-aontaítear leis seo i gCoiste an Sceidal, ailt 1 agus 2, an Réamhrá agus an Teideal."

As it is now 10.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the Schedule, sections 1 and 2, the Preamble and the Title are hereby agreed to in Committee."

Cuireadh an cheist.

Question put.

Rinne an Choiste vótáil: Tá, 62; Níl, 47.

The Committee divided: Tá, 62; Níl, 47.

Tá

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

Níl

• Boyle, Dan.
• Broughan, Thomas P.
• Bruton, Richard.
• Connaughton, Paul.
• Connolly, Paudge.
• Costello, Joe.
• Cowley, Jerry.
• Crawford, Seymour.
• Cuffe, Ciarán.
• English, Damien.
• Enright, Olwyn.
• Gilmore, Eamon.
• Gogarty, Paul.
• Gormley, John.
• Gregory, Tony.
• Healy, Seamus.
• Higgins, Joe.
• Kehoe, Paul.
• Lynch, Kathleen.
• McCormack, Padraic.
• McGrath, Finian.
• McGrath, Paul.
• McManus, Liz.
• Mitchell, Olivia.
• Morgan, Arthur.
• Murphy, Gerard.
• Naughten, Denis.
• Neville, Dan.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Keeffe, Jim
• O’Dowd, Fergus.
• O’Sullivan, Jan.
• Penrose, Willie.
• Perry, John.
• Quinn, Ruairi.
• Rabbitte, Pat.
• Ring, Michael.
• Ryan, Eamon.
• Ryan, Seán.
• Sargent, Trevor.
• Sherlock, Joe.
• Shortall, Róisín.
• Stagg, Emmet.
• Stanton, David.
• Upton, Mary.
• Wall, Jack.

Tellers: Tá, Deputies Hanafin and Kelleher; Níl, Deputies Kehoe and Stagg.

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.