Seanad Éireann debate -
Wednesday, 6 Feb 1935

Vol. 19 No. 15

Irish Nationality and Citizenship Bill, 1934—Report and Fifth Stages.

Mr. Johnson

I move amendment No. 1:—

Section 16, sub-section (1). To delete in line 3 the words "one year" and to substitute therefor the words "two years."

Section 16 deals with the case of a person who left the Free State and went to reside permanently in another country, let us say the United States of America, since the 6th December, 1922, and there married a citizen of that country. If he or she was a citizen of the Free State in 1922 it says he or she shall, before the expiration of one year after the passing of this Act, lodge with the Minister a declaration of election to retain Saorstát citizenship or he or she shall cease to be a citizen. It was represented to me that in such a case one year might be insufficient to allow such persons to become acquainted with the obligation resting upon them, and that, at least, another year should be given to such persons to elect whether they would wish to remain citizens of the Saorstát. The object of the amendment is to increase the period from one year to two years in respect of those referred to in Section 16 (1). It is a matter whether we consider one year sufficient time to give that class of citizen an opportunity to become aware of the new conditions. I suggest that two years is a more appropriate time than one year.

Mr. Fitzgerald

I second the amendment, which I urge should be accepted. I understand that notification will be made by the consulates, but I agree with Senator Johnson that there might be portions of vast countries like the United States of America where intimation might not be conveyed to people who might desire to retain Irish citizenship, and for that reason I trust the amendment will be agreed to.

Minister for External Affairs (The President)

There is no serious objection from our point of view. We thought one year would be a reasonable time, but, as some Senators are anxious to extend the time, we will accept the amendment.

Amendment agreed to.

Mr. Johnson

I move the following amendments, which are consequential:

2. Section 16, sub-section (2). To delete in line 14 the words "one year" and to substitute therefor the words "two years".

3. Section 16, sub-section (2). To delete in line 15 the words "one year" and to substitute therefor the words "two years".

4. Section 16, sub-section (2). To delete in line 17 the word "year" and to substitute therefor the word "period",

5. Section 16, sub-section (2). To delete in line 18 the words "one year" and to substitute therefor the words "two years."

Mr. Fitzgerald

I second.

Amendments agreed to.

Minister for Lands (Mr. Connolly)

I move Government amendment No. 6:—

Section 17. To delete in line 9 the word "may" and to substitute therefor the word "shall".

Mr. Quirke

I second.

The President

This amendment was introduced to meet a point raised by Senator Blythe. In fact, in almost all cases I think the Bill would operate as if the word were "shall". I am accepting the amendment.

Amendment agreed to.

Mr. Connolly

I move Government amendment No. 7:—

Section 18. After the word "Eireann" in line 35 to insert the words "before the application".

Mr. Quirke

I second.

The President

This is merely a drafting amendment, to make it clear that the residence period applies to the period before the application.

Amendment agreed to.

Mr. Connolly

I move Government amendment No. 8:—

Section 18. To delete in line 44 the words "may, if he so thinks fit," and to substitute therefor the word "shall".

Mr. Quirke

I second.

The President

This amendment is also introduced to meet a point of the same character as the other one made by Senator Blythe. I should like to point out to Senators, however, that it dispenses with the residence qualification only. The Department of Justice are anxious that the Minister must be satisfied with regard to the other qualifications.

Amendment agreed to.

Mr. Connolly

I move Government amendment No. 9:—

Section 23. To add at the end of the section a new sub-section as follows:—

(6) Every order made by the Executive Council under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after the order is laid before it annulling such order, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.

Mr. Quirke

I second.

The President

This amendment was introduced to meet a point raised by Senator Johnson. In other parts of the Bill it is applicable to orders laid before the Houses, and this appears to me to be, perhaps, one of the most important orders to be made under the Bill. On that account we think it only right that the order should be laid before the two Houses.

Amendment agreed to.

Mr. Milroy

May I ask the President what has become of the amendment we adjourned from the Committee Stage?

The President

I do not propose to move the amendment because I think we can secure our purpose in another way. The intention is that the whole code, when passed, should come into operation at the same time and I think that we can secure that because the other two Bills are to come before the Dáil immediately. In view of the fact that the amendments passed to this Bill will have to go before the Dáil, I think we will be able to arrange matters so that the three measures will come into operation on the same date.

Question proposed: "That the Bill be received for final consideration."

Mr. Milroy

On that question, I desire to submit to the House some considerations why we should not complete the Report Stage to-day. I do so not with any obstructive idea but from what I consider to be in the true interests of the Bill. In reply to the question which I put to him a moment ago, the President indicated that the Aliens Bill will be coming before the Dáil on its re-assembly. The relation between that Bill and the one we are discussing is very close. In fact, I think it might be said that the Aliens Bill is really supplementary to this Bill. It is surely of the first importance that there should be no discordance between the provisions of the two Bills. It is not improbable, I suggest, that when the Aliens Bill has made some progress in the Dáil we may discover some anomalies in this Bill which it would be desirable to correct for the purpose of establishing harmony between the two measures. But, if we completed the Report Stage of this Bill to-day and if flaws or defects were discovered in it subsequently, then it would not be possible to rectify them except by means of the introduction of another Bill and that, I submit, would not be the best way to deal with such a contingency.

That may be considered a somewhat speculative or theoretical consideration. Still, I think it is one which is well worth weighing before it is dismissed from the minds of the members of the Executive Council. But there is another and more practical reason for the suggestion I am making, one which has come to my notice by a further examination of the Bill since we dealt with it in Committee. When I disclose it I think it will indicate that there is some reason for asking the House not to complete the Report Stage of the Bill to-day and the Government not to press for the completion of the Report Stage to-day. I ask Senators to turn to Section 2, paragraphs (c) and (d). It will be noticed that amongst those who are to be claimed as natural-born citizens are the following:—

(c) every person who was born on or after the 6th day of December, 1922, and before the date of the passing of this Act in a ship registered in Saorstát Eireann, and

(d) every person who is born on or after the date of the passing of this Act in a ship registered in Saorstát Eireann.

Very good. But there is nothing in this Bill to implement these provisions. Here is the importance of the point I am making: that in Section 24 or 25 provision is made for securing the necessary information for the registration of natural-born citizens who are born abroad or born in Northern Ireland, but there is no provision whatever in this Bill for securing statistics or information relevant to the class I am referring to, namely, natural-born citizens born on a ship registered in Saorstát Eireann. I think it would be essential, in order to make these two paragraphs operative, that there should be inserted a section imposing "on the master of every such ship the duty of entering the fact of such birth in the log and furnishing the Registrar-General with particulars of such in due form." It would be then duly registered, and the name might be entered in one of the registers proposed to be established by this Bill, if that was thought desirable. But in this Bill as it stands there is no such provision.

How does the Government propose to secure the statistics and information necessary for this purpose—that is, relating to natural-born citizens born on a ship registered in Saorstát Eireann? If these paragraphs that I have quoted are not to become largely —I will not say entirely—a dead letter that information must be secured. I take it that this could not be entirely an oversight on the part of the draftsman. It would seem to me that for the procuring of such information the Government are relying upon old British statute law for the source of such information. That statute law is to be found in Section 27 of the Births and Deaths Act, 1874, and Section 254 of the Merchant Shipping Act, 1894. Briefly, the procedure provided by this British statute law is that when a child is born on a British ship, the master of that ship must record that event in his log book and when the ship arrives at any port in the United Kingdom—this is the wording of the statutory source from which this information can be derived—the master must make a return of the facts to the Registrar-General of Shipping and Seamen in London. A further sub-section states that if the child's father is an Irish subject of His Majesty, the Registrar-General of Shipping and Seamen must send a certified copy of the return showing the birth of such a child to the Registrar-General of Births and Deaths in Dublin. Any lawyer who is conversant with these Acts knows that the facts are as I have stated.

Two important facts are disclosed by this. Firstly, under these two paragraphs which I have quoted, we are claiming as natural-born citizens all children born on a ship registered in Saorstát Eireann, but from this source —and it is the only source from which we can at present secure the information—there is no return made to the Registrar-General in Dublin unless the father of that child is Irish or with the exception of the case in which the mother of an illegitimate child happens to be Irish. Apart from that, there is no return made of such birth from such source. The position is, therefore, that such information as is procurable is incomplete for the purpose of this Bill and, secondly, for a certain very important provision in this Bill, we are relying upon the officials of a British Department to supply statistics and information and these, when supplied, are, as I have indicated, very incomplete in their nature for the purpose of this Bill.

That is not exactly in accord with the status which we have been claiming and which this Bill ostensibly aims at securing, and I think that from what I have said it will be clear that it would be unwise to complete the Report Stage of this Bill to-day until the obvious hiatus or flaw in this provision is rectified. For that definite and practical reason, and for the reason that I mentioned in the beginning, that in the light of the other Bill which relates to the provisions and purposes of this measure, other anomalies may be discovered, it would be desirable to rectify them before this Bill passes from this House, as this will be the last opportunity for amending the Bill. I suggest that it is a sound line of action to pursue to allow this Bill to remain in the Seanad until the other Bill has made some practical progress in the other House. We can then see how far the Bill, as it will stand when the matter I have drawn attention to has been amended, will be efficient and workable.

Mr. Comyn

The point raised by Senator Milroy reminds me of a debate at which I presided two nights ago at the Solicitors' Apprentices' Debating Society. In that debate I pulled out of one hat the subject of debate and out of another the name of the apprentice who was to speak to it and, on the spur of the moment, he had to speak as best he could. But first, listening to Senator Milroy, one thought that there might be something in the legal point he raised, particularly as we know from the debate on the last occasion that he was thoroughly conversant with the Merchant Shipping Act, an Act which is, I think, the longest in the Statute Book and the most difficult to understand. If you examine this section, I think you will find that the draftsman of this Bill had thought of and thought out the very question that is disturbing the mind of the Senator. So far as I can see, the position is this: a person born in an Irish ship is a natural born citizen of Saorstát Eireann. The Merchant Shipping Act and the other Act—the Act of 1872, I think—to which the Senator has referred, provided for the case in which a child was born in a British ship. The particulars must be entered in the log book, and when the captain comes to any port in the British Isles a communication has to be made to the registrar in London, and in the case of a person whose father is Irish that communication must be transmitted for registration in Dublin. Do these arrangements not provide fully——

Mr. Milroy

No.

Mr. Comyn

——for the case set out in Section 2?

Mr. Milroy

This claims that all children born on a ship registered in Saorstát Eireann are Irish-born citizens but the return of the information from London relates only to the child of an Irish-born father. With regard to others, there is no information at all.

Mr. Comyn

The ships that are registered in Saorstát Eireann are very few. We know them and we know the masters. Look at Section 2. It says:—

The following persons shall be natural-born citizens of Saorstát Eireann, that is to say:—

(c) every person who was born on or after the 6th day of December, 1922, and before the date of the passing of this Act in a ship registered in Saorstát Eireann, and

(d) every person who is born on or after the date of the passing of this Act in a ship registered in Saorstát Eireann, and

Let us deal with (c). The Senator is afraid that there would be no account taken of a child born in such a ship, but in the Acts of Parliament which he has cited to the House, which are enactments dealing with the Free State and made laws of the Free State, he has the machinery for finding out such a person. The name of that person must go to London and must be transmitted to Dublin, and in that way you will have in the Registry here in Dublin the name of the person born in the Irish ship. If I am wrong in that, I am open to correction. Then comes

(e) every person who was born outside Saorstát Eireann on or after the 6th day of December, 1922, and before the date of the passing of this Act and whose father was, on the day of such person's birth, a citizen of Saorstát Eireann——

Cathaoirleach

Senator Milroy was not referring to that.

Mr. Comyn

I am bound to point out that the nationality in that case followed the citizenship of the father. Then we come to

(f) subject to the subsequent provisions of this section, every person who is born outside Saorstát Eireann on or after the date of the passing of this Act and whose father was, on the day of such person's birth, a citizen of Saorstát Eireann.

Now looking rapidly through these questions we find that in Section 2 at all events, the nationality of the child follows the citizenship of the father. Without knowing anything as to how this section came to be drafted, I think that the section is drawn with a thorough knowledge by the draftsman of the legislation already in existence with reference to the registration of the birth of children born on board ship. It would be a very serious error if a thing like that were omitted, and I do not see how a draftsman could complete the drafting of a Bill without the case of a child born on board ship having been brought to his mind and having been dealt with by him. It is rather late in the day for Senator Milroy to spring on this House a question like that where we have not the statutes before us. But I think the House may take it that the Bill, which has been subjected in the Dáil and in the Seanad to the close scrutiny to which this Bill has been subjected, is now as perfect as we could make it. This Bill has been closely scrutinised and in the case of ordinary legislation coming before this House, when we have done our best so far as lies in our power to consider the various clauses of the Bill and to examine the amendments and objections made to it, what we usually do, and the right and proper thing to do, is to pass the Bill and leave it to fortune afterwards. That is what we do in respect to other Bills. I do not see why we should, in regard to this Bill, cast an aspersion upon it, upon ourselves and upon the Dáil by the suggestion that would be involved in the hanging up of this Bill in apprehension of some terrific blunders that may be found out in it afterwards.

There is another point made by Senator Milroy. He said there is an Aliens Bill coming on and he asks why should we not hold up this Irish Nationality and Citizenship Bill until we are dealing with the Aliens Bill. Something, he says, may occur to us in our discussion on the Aliens Bill that would affect our opinion in regard to this Bill. Now the two things are as much separated from each other as right is from left. They are in separate watertight compartments and they have no relation whatever to each other. I would ask the Senator not to hold up this Bill. I accept fully what Senator Milroy says that he is not actuated by any desire to obstruct this measure. I quite accept that. But I think his reading of the 500 sections of the Merchant Shipping Act and the other Acts to which he referred has puzzled him somewhat. These Acts are even puzzling me.

Mr. Staines

Senator Comyn has misunderstood Senator Milroy altogether. There is no intention on this side of the House to hold up the Bill, and I did not hear Senator Milroy saying any thing that would suggest that. The Senator asked a very straight question. He made reference to two or three points. One point in which I am interested is this:—We all know that if a child is born on a British registered boat or ship, that that child is properly registered as, and under ordinary law becomes, a British citizen or British National—call it what you like. The point that Senator Milroy raised has not been answered by Senator Comyn. This is the point I would like the President to answer:—Supposing a child were born on an Irish registered ship, where is that child to be registered? Is it at Ringsend, or at Howth, or with the Registrar-General in Dublin, and does that registration confer Irish nationality? Incidentally, this Irish Nationality and Citizenship Bill has brought us into the nationality of ships and shipping. A Dublin citizen, Senator Milroy's brother, stated yesterday that there were two lines of Saorstát Shipping—the Saorstát Continental Steamship Company and the Limerick Steamship Company. Now that is a statement made by a very responsible man. I rang up a man this morning who is interested in Dublin shipping and he gave me a whole lot of other lines that he says are registered in the Saorstát. He mentioned the L.M.S. and two or three other companies. Now I want to know are these Irish registered or British registered. That is what a good many of us want to know. Would one not like to know whether his child, if born on a ship, is to be registered as an Irish citizen or as a British subject?

I remember in the old days crossing to Holyhead and Liverpool, and on coming back during the war time, we were always asked our nationality and I always said Irish. The man who asked the question said "British," I said "Irish." Eventually, they got so much into the idea they did not ask your nationality. They simply said "British," and you said you were Irish. I remember one evening saying "No, I am not British, I am Irish." I had not got much choice in the matter. The man's answer to me was "British," and he shoved me up the gangway. There was no good fighting the question out with him. Are our ships Irish or British? If a child is born on one of our Irish-registered boats, is that child Irish or British?

Dr. Gogarty

There is one serious omission from this Bill and it is this: that there is no clause precluding an Irish-born citizen from being at the same time a citizen of another country. This question was raised in 1916. Of what country was the President a citizen in 1916; of what country is he now a citizen, and when did he become a citizen of that country? That is what we would like to know. If there is to be a retreat out of the country in times of stress and perhaps in times of non-stress, we would want to know if this precludes us from citizenship in another country. We have heard something about Irishmen abroad coming home, but it is far more likely that the riff-raff of Europe will come over here and become, under these easy stages, citizens of Saorstát Eireann. It is only fair now that if there is to be citizenship given it ought to be given without having a sort of back door to it. This aspect of the matter is to my mind a very important one.

Cathaoirleach

Senator Gogarty knows the rules of debate. He is really making a Fifth Stage speech.

Dr. Gogarty

I was going to bring it up on the Second Stage. How do we stand as regards American citizenship?

Cathaoirleach

The Senator cannot pursue that now. We are dealing with the question of shipping. I allowed Senator Milroy to bring up that point, but Senator Gogarty is going into a different question.

Mr. Brown

I am not sure, Sir, that Senator Milroy has not raised a very important question on this Bill. It would be a pity, if he is right, that the Bill should pass this Stage without our having some opportunity of looking further into it and of seeing if it really is what I am inclined to think it is, a serious point. Under the Bill as it stands, every person born on a ship registered in Saorstát Eireann will become an Irish citizen but there is no machinery for that in this country. A child born on a British ship whose father is Irish, under the provisions of the Merchant Shipping Act will, I think—that is my recollection of it—be duly registered in the office of the Registrar-General in London and I think the office of the Registrar-General in London is bound to communicate with the office of the Registrar-General here because the child's father was Irish and would naturally search here for the registration of his child's birth. In the case of a child who is born on a ship registered in Saorstát Eireann, it does not matter where he comes from, that makes him a citizen of this State, but there is no machinery, I am afraid, in this Bill to provide for the compulsory registration of that kind of birth. If that is so, I think we ought not pass this Stage of the Bill to-day. I may say that I blame myself somewhat for not noticing this point before, but I have not had time to look into it and I am speaking more or less from recollection of my knowledge of the Merchant Shipping Act. The President will recognise that it may be a serious flaw in the Bill that we cannot carry out what all of us desire that we should be able to carry out.

Mr. Foran

Might I ask Senator Brown a question?

Cathaoirleach

Yes.

Mr. Foran

What makes it obligatory on the captain of a British ship to register a birth on his steamer?

Mr. Brown

The Merchant Shipping Act.

Mr. Foran

I submit that the same conditions will apply to a Saorstát registered ship. The obligation will be on the captain of the ship to record the event on his log and notify the authorities. I do not see anything very much in the point at all. I understand that under the Merchant Shipping Act, the captain is bound to keep a log and the captain and the owners are responsible for conveying information of such an event to the proper authority. I presume that in the case of a ship registered in the Saorstát, the same obligations would apply to the captain.

The President

There appears to be a good deal of confusion of thought here and I attempted to intervene earlier to point it out. We are not registering every person or we are not making provision that every person, who may be a natural-born citizen, should have his birth registered here. It is only in particular cases that we are making provision for the registration of certain facts, in this case the fact of birth. There will be quite a number of natural-born citizens born outside the country. We are not making provision for the registration of their births but I take it they will have to prove the facts that will enable them to claim that privilege. The same thing is true of a birth on a ship. If a child is born on a ship, and wants to claim the privileges of citizenship here, the person who claims Irish citizenship for the child, or the child himself when he becomes an adult, will have to prove the facts. What the Senator seems to think is that we should provide a means by which a person can prove this fact. There is no difficulty in proving such a fact at the present time, as far as I understand. We would have to make very strange provisions indeed if we had to provide a means whereby a person born of Irish parents in a country or a district where there was no register of births could prove the fact of birth. Some other means would have to be adopted to prove the fact that the person was born outside Ireland of Irish parentage. I think the point is not germane to this Bill at all. It might come into a Merchant Shipping Bill, and I understand there is one being drafted at present, or to some other type of Bill. It is not necessary to provide for it in this Bill and it is not a flaw in the Bill that such provision is not made in it. I think Senators are talking beside the point.

Mr. Milroy

May I speak again?

Cathaoirleach

I think you cannot at this stage.

Mr. Jameson

Might I put a question? I think what Senator Milroy is arguing is that under this Bill we should give equal chances by proper registration of birth to children born on a ship to become Irish Free State citizens, as under the Merchant Shipping Act the British child has to become a British citizen. That seems to me to be the point after listening to the debate, that equal protection should be afforded to children who desire to be Irish Free State citizens as under the present law, under the Merchant Shipping Act, is given to the British child. That seems to be the hiatus in this Bill. I have been listening quietly to the discussion and I cannot see that anything has been said which would prove that there is as good protection under this Bill for future Irish citizens as there is for the British child who is born on a British ship. If any of these provisions are missing, there is not the same protection on an Irish ship as there is on a British ship for either an Irish or a British citizen. That seems to be the hiatus. The point does seem to be of importance, that future Irish citizens should have as good protection as a Britisher. This Bill should make that perfectly clear.

Mr. Johnson

I have been under the impression that the Adaptation of Enactments Act put the owner and captain of an Irish-registered ship, in relation to the Free State, in the same position as the British-registered ship would be to the British authorities.

A Senator

Not if it is only registered in the Free State.

Mr. Johnson

In the case in question we are dealing with a ship registered in Saorstát Eireann. If a ship registered in Saorstát Eireann carries with it the obligations to the Saorstát that a ship registered in Britain has to Britain, then I think no question arises at all except—and I think this is the idea behind Senator Milroy's suggestion—that notwithstanding the obligation upon the shipping master, there have been no means adopted whereby a shipping master's duty can be fulfilled. If there is a means whereby that Irish shipping master can notify the fact of births on his ship, I do not think any question arises at all, because the Irish ship has to do to the Irish authorities what the British ship has to do to the British authorities. If that is so, surely no question arises.

Mr. Milroy

It is not so.

The President

I simply want to repeat once more that the matter that has been raised in this connection is a matter for the registration of births and is not properly germane to this Nationality Bill. It is a matter that might be raised if the Merchant Shipping Act or some measure of the kind were before the Seanad but it is not germane to this Bill. If the Seanad so wishes, there is no reason why the Fifth Stage of this Bill should not be postponed but I think it is better to finish the present Stage. We shall have the Aliens Bill and the Bill to amend the Constitution before the Seanad in a short time and if there is any desire on the part of Senators to keep the Final Stage of this Bill over until then, I have no objection. With regard to amendments, in any human work which is left over, you will always find opportunity for amendment. Anybody who has written anything and put it aside realises that, when taken up again, something is always found that can be amended. A reasonable time has been given to the consideration of this Bill and the only thing to do is, as Senator Comyn suggested, to enact it and, if any flaws are then disclosed, they can be repaired by an Amending Bill. It is desirable to foresee all the defects possible but there is always power of amendment if some point has not been foreseen.

Mr. Douglas

I quite see the President's point but I should like to know if he considers that what Senator Johnson says is correct. Personally, I think that it is correct.

The President

I think that it is correct.

Mr. Milroy

It is not correct. The information I have here absolutely rules out Senator Johnson's point.

Cathaoirleach

I shall allow Senator Milroy to quote his authorities.

Mr. Milroy

I mentioned two Acts. The provisions are very similar in both. The Registration of Births and Deaths Act, of 1874, provides that where a birth occurs on a British ship— as things stand, that would include a ship registered in Saorstát Eireann— the captain is bound to return the particulars to the Registrar-General of Shipping and Seamen upon the arrival of the ship at any port of the United Kingdom. Where it appears that the father of any child so born or, if the child was illegitimate, the mother was Scotch or Irish, the Registrar-General of Shipping and Seamen is required to send a certified copy of so much of the return as relates to the birth to the Registrar-General of Births and Deaths in Scotland or Ireland, as the case may be. There is no provision in existence to make the master of Irish-registered shipping craft fulfil the same requirements towards the Irish authorities.

Mr. Johnson

Have you the Adaptation of Enactments Act?

Mr. Milroy

I have not.

Mr. Blythe

Could the President tell us if an Order has been made under the Adaptation of Enactments Act covering the point raised by Senator Milroy?

The President

I could not answer that question straight off. However, it has no relation to this Bill. We are dealing with quite a different matter.

Mr. Farrell

Even though Senator Milroy's argument be a sound one, we cannot amend the Merchant Shipping Act in this Bill. If there is any difference of opinion in regard to the important point raised by Senator Milroy, the matter cannot be remedied now. What we should have to do would be to amend the Merchant Shipping Act by special Bill or make an Order that the captain of a ship registered in the Saorstát register all births occurring on his ship as soon as he arrives at an Irish port. We cannot deal with the point in this Bill and we are only wasting time in discussing it.

Mr. Milroy

We could deal with it.

Question put and agreed to.

The President

I am prepared to leave over the Fifth Stage until the other two Bills are before the House.

Fifth Stage adjourned sine die.