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

Atógadh an díospóireacht ar leasú a 8:
I leathanach 7, roimh an Sceideal, 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. 8:
In page 6, before the Schedule, 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°".

Senator Walsh stated that this is a very simple referendum. In theory it is a simple referendum with which we should, in principle, have no problem. However, I am concerned about this method of dealing with an issue. Amending our Constitution is a very serious matter. We should explore every available avenue to arrive at an appropriate solution. Putting a referendum to the people to amend our Constitution should be a last resort. This Bill is, therefore, extremely important. To date, the courts have not adjudicated on Articles 2 and 9 and therefore we do not know their real meaning. If the courts were to adjudicate on them, would the amendment proposed by the Government stand up? What would be the position, following the passing of this referendum, of economic migrants from countries outside the EU, for example, Albania, who have given birth here to a child who is now an Irish citizen?

This referendum, if passed, will not deprive anybody of citizenship who is an Irish citizen. Therefore, to take the Senator's example of two Albanians who have had a child in Ireland who is now an Irish citizen, as matters stand their presence in Ireland falls to be decided in accordance with the principles laid down in the L and O case. Having an Irish citizen child is not an absolute guarantee of a right to remain in Ireland. On the other hand I emphasise the Supreme Court never ruled that the Minister for Justice, Equality and Law Reform could deport people casually and at will notwithstanding that they had a citizen child. The ruling of the Supreme Court was that if there were compelling grounds in the view of the Minister for requiring the parents of the child to leave, it did not constitute an absolute bar on their deportation that the child was an Irish citizen. The Supreme Court never ruled that the Minister could deport anybody he considered inconvenient or whose presence he found undesirable.

Between the beginning of 1999 and the end of 2003 some 10,335 European Economic Area non-nationals secured residency in the State on the sole basis that they had an Irish born child. A total of 2,400, roughly 25%, of these parents never claimed asylum. The vast majority of such parents were not married to EU nationals since, save in exceptional circumstances, the general policy is to grant the EEA non-national spouses of Irish or EEA nationals permission to reside here, whether or not they have Irish born children. There are no figures available on the break-down between mothers and fathers. At present more than 9,000 EEA non-nationals have indicated that they have Irish born children and wish to remain in the State on this basis. They constitute the 10,000 we have heard about in discussions. The position regarding these was set out in the dictum of Hardiman J. in the Supreme Court in the L & O case. He said: "it seems to me that the existence of an Irish born child does not fundamentally transform the rights of the parents, though it requires the specific consideration of the Minister who must reasonably be satisfied of the existence of a grave and substantial reason favouring deportation." The notion that I was suddenly handed a free-flowing pen with which to authorise the mass deportation of 9,000 people is not grounded in reality. I committed myself to considering the rights of each of them on a case by case basis. It is not true, therefore, that cases involving Irish-born children who are Irish citizens are in some sense a foregone conclusion in administrative terms as a consequence of the L and O cases. That is far from being the case.

A significant additional ingredient in such cases demands more rigorous and labour intensive consideration by the Department of Justice, Equality and Law Reform. It appears that people continue to have a perception that there is a strong possibility of success in securing permission to stay in Ireland at the end of the process. If one follows what Mr. Justice Hardiman said, there has to be a "grave and substantial" reason to tell the parents and their child to leave. If the child is not an Irish citizen, there is an expectation that the process of reaching a decision will be less time-consuming and more straightforward. Where deportation is appropriate, it will not be a question of "grave and substantial" reasons, but of the balance of what is fair, having regard to humanitarian concerns.

The matter does not end if the parents of a child who is an Irish citizen are deported. The child cannot be made the subject of a deportation order. I cannot deport an Irish child. It is likely to arise at some point that parents will refuse to take the child with them in an attempt to frustrate the deportation process. I point those who think I am inviting such a case to be brought against me to the language of the Constitution, specifically Articles 41 and 42, which we discussed during Private Members' business. Article 42 of the Constitution states, that parents have an "inalienable right and duty" to look after their children.

If parents are being deported as a matter of Irish law, it could be strongly argued that they are obliged to bring their child with them. They have no legal right to dump or abandon a child in Ireland. I do not believe that would happen because the vast majority of parents are sane and loving. I do not want to suggest that people would consider abandoning a child to embarrass the State. Only a person with a very bad value system would think of doing so. There has never been a hint of such a move in any of the cases I have come across. Regardless of the country from which they come, parents throughout the world have an absolute and total commitment to their children, especially young children. This is equally the case in respect of asylum seekers.

The amendments before the House would raise a further layer of complication if a child who is a citizen returned to the jurisdiction with a deported parent, for example, a year after the deportation. If a three year old arrives at Dublin Airport waving an Irish passport saying "this is my mother", should I tell him that he can enter the country, but his mother cannot? I agree that the scenario is somewhat fanciful, but it is not the case that I can separate children from their parents without humanitarian and constitutional regard to the interests of the child. I cannot act in an arbitrary manner by saying that I do not care about the child's family relations and by decreeing that the child can enter but his mother should be sent back. If one examines the Preamble to the Constitution, one will see that it refers to the virtues of "Prudence, Justice and Charity" and to the Christian nature of the State. One cannot conduct migration policy on such a crude basis.

A good number of people face the circumstances mentioned by Senator Terry. Many decisions remain to be made. I have to maintain the integrity of our immigration laws. The Supreme Court has said that when I am of the view that a decision is necessary to maintain the integrity of the law, I can act to deport. I will need to have a "grave and substantial" reason, to adopt Mr. Justice Hardiman's phrase, to do so. I will not be permitted to do so as a matter of light and superficial policy preference.

I spoke earlier about the importance of the proposed referendum. Senator Jim Walsh said that it is a simple process, but it is most important nonetheless. Our last resort should be to change the Constitution. Senator Mansergh spoke about my call for the proposal to be referred to the All-Party Oireachtas Committee on the Constitution, which I believe is the right way to proceed. I disagree with the Senator's argument that such a referral would be a delaying tactic. That is certainly not the case — I am treating the matter very seriously. We are not here to try to delay the entire process. I want it to be dealt with in a proper fashion. If we proceed with the proposed referendum on 11 June, we will not give the issue the consideration it deserves.

I wish to respond to the Minister and to thank him for his reply. Many people will have concerns, particularly the 10,335 members of families who have been granted residency here. The Minister can deport a family only if he has "grave and substantial" reasons for doing so. One has to ask what such reasons might be. If members of the family in question are in receipt of social welfare in the State, would the Minister consider it a sufficiently "grave and substantial" reason to deport them? Do they deserve to be deported if they are not independent and self-sufficient?

I wish to raise an issue that may cause problems in the future. I refer to the problems that may arise if the Minister decides to allow a family that includes an Irish-born citizen to stay here. What will happen if the family has a second child in this country after the enactment of this legislation? The child in question would not be an Irish citizen. I accept the Minister's assurance that all children are treated equally and protected while they are in this country, regardless of whether they are Irish citizens or citizens of a foreign state. It will be strange if a family has a child who is an Irish citizen and a second child who is a citizen of the country from which his or her parents originally came. Has the Minister considered such a possibility? How will it play out in terms of the family's life here?

I want to raise the case about which the Minister spoke. I would have thought such a case demonstrates that there is not a loophole in the Constitution. The citizenship rights that were bestowed on the child did not entitle the parents to be Irish citizens or to stay here, which meant that they could be deported. A constitutional amendment is being proposed on the basis that there is a loophole, but the case cited by the Minister shows that no such loophole exists, or at least that no loophole exists that can be abused.

The Labour Party opposes the abuse of social welfare. Many changes in the social welfare code over the years have prevented people who were born as Irish citizens from abusing the social welfare system here. They have been required to show that they are looking for work, for example. It is obvious that more needs to be done in that regard. I feel that such measures would be more appropriate, especially if combined with the proposed green card system. It is obvious that other legislation that has been introduced by the Government has had an effect.

Many speakers have said that it is a simple issue, but it is a complicated issue. If the proposed constitutional amendment is accepted, two children in a single family will have different rights if one was born in Ireland before the referendum and the other was born in Ireland after it. One child will have been born with the right to Irish citizenship, but that will not apply to the other child, assuming that adequate provision is not made in the legislation that is introduced after the referendum. Any referendum proposing a change to the Constitution is complicated.

The Minister has mentioned on many occasions the fact that Deputy Quinn raised this issue when the Good Friday Agreement was being considered by the people. The Deputy raised the issue, which is the proper way to deal with any proposal to amend the Constitution. These different aspects should be explored further. No constitutional amendment can be taken lightly and this one could give rise to other unforeseen complications. Deputy Quinn was not claiming to have the definitive answer at the time. Instead, he was acknowledging that this issue is not so simple. The same goes for this constitutional amendment and there could be unforeseen consequences if it is passed. The House has not been given the opportunity to examine it further.

The only rights that the children concerned would have under the Constitution are their rights as citizens. One gap in the Constitution is that there are no specific rights for children. Apart from an indirect one relating to education, their fundamental rights are those associated with adulthood such as the inviolability of one's dwelling. The Constitution only refers to the family and the role of the parents. This gap in the Constitution should be examined in the future. An unborn child has rights under the Constitution and is seen as an equal. However, if this constitutional amendment is accepted, some children born in Ireland will not have the same equal status that they have now.

Senator's Tuffy is arguing the Labour Party's point that any child born in Ireland, regardless of whether the parents are nationals, should have an immediate entitlement to citizenship. That is the substantive issue to which I referred to earlier. On Second Stage and in previous debates on this issue, application of citizenship rights in other EU member states was raised. Ireland's arrangements are unique and along the lines advocated by Senator Tuffy. The proposal that a child born of non-national parents, one of whom must have resided in Ireland for three of the past four years, will be entitled to citizenship is generous. However, I believe the period should be for a minimum of five years or longer. There will be an opportunity to debate this when the legislation is introduced.

I disagree with Senator Tuffy's argument because this is an area that needs to be regulated. Evidence from the hospitals of women arriving in Ireland late in pregnancy has been raised. This is neither in the interest of their personal health nor of the child's. Many of these women do not have a full understanding of the language, which also imposes difficulties on the hospitals in giving effective treatment. There are also obligations to other EU member states because, as a consequence of obtaining Irish citizenship, one also obtains EU citizenship. There is a good argument for bringing broad harmonisation to this area.

Senator Terry and Senator Tuffy raised the instance of a family with one child who is an Irish citizen and another who is not. However, that instance occurs as matters stand. There are thousands of families in Ireland where one of the older children is not an Irish citizen while the youngest is a citizen. It does not seem to me to complicate life for those parents. A Nigerian family with one child born in Ireland and another in Manchester would be in the same position, if the referendum is passed, as a family with one child already born here and another in the future. The second child would not be entitled to Irish citizenship as a right, just as the child born in Manchester is not. If the family came to reside in Ireland thereafter, it might be considered odd that the older child was an Irish citizen and the younger was not. However, I do not see any injustice or lack of protection for the younger child consequent upon it.

Senator Jim Walsh does not like the three year period of residence for the child's parents which is a more cautious viewpoint than the Government's. However, one could be more liberal than the Government in arguing that a child is entitled to citizenship if the parents resided here three years after the child's birth. That is not in the Government's current text but one could liberalise or make the conditions stricter. That is a matter of detail and policy that I would be interested in debating when the Bill is introduced.

Anyone who is lawfully present in Ireland for five years — three years if their spouse is an Irish citizen — is entitled to apply for Irish citizenship and nationality. These people are also entitled to have their children made Irish citizens with them. Sometimes, it is done on a rolling basis as it is easier and cheaper to apply for naturalisation of one's children at a later stage. I do not see any problems in this regard.

Senator Terry asked if I could have followed the route of testing legislation. I discussed this on Second Stage but I reiterate that it is simply impossible for me to run a Bill through the Houses believing it to be unconstitutional. The Attorney General would not permit this and, if he was overridden on the issue, he would be forced to resign. It would be a breach of my duty, and that of Cabinet members, as a citizen with loyalty to the State and the Constitution to admit that, although a Bill is wrong, I will still have a go and hope to get lucky with a Supreme Court ruling upholding it. Such a method of operation has never been countenanced by the Government. It would be a great abuse of the presumption of the constitutionality of legislation introduced in the Oireachtas. When I was Attorney General, such a ploy was never suggested. An Attorney General would have to resign if he heard Cabinet deciding such a ploy. The Cabinet would be breaching its duty of loyalty to the State. The State is the State based on the Constitution. We could not possibly have a group of people deciding to have a go at passing a law that was fundamentally unconstitutional. It would breach their fundamental duty of loyalty to the State and its Constitution. What does happen on occasion is that the Attorney General or a member of the Cabinet sees something in a Bill that might be constitutionally suspect, but the Government would not proceed with the Bill if it thought it was constitutionally improper. It could consider an argument against the Bill and decide that the balance of opinion was that it was constitutional and would be proceeded with. That would be a different situation.

There is no method by which the Cabinet can simply come up with a Bill and run it through both Houses in the subjective belief that it violates the Constitution. The Attorney General's advice and the Government's position are clearly right. The second sentence of Article 2 is the key to all of this. It makes it clear that the first sentence is a method by which the entitlement to citizenship is conferred on people and that it cannot be taken away. There is a variety of views in Dáil Éireann and this House about whether, in principle, this is a good or a bad idea, but there are some people in the Dáil and, judging by Senator Tuffy's views, in this House who actually believe it is wrong to change thejus soli absolute rule. Perhaps I am misinterpreting the Senator, but I gathered from her last intervention that she thinks it is wrong to do so.

A Green Party or Sinn Féin Member may believe the present constitutional regime should be left exactly as it is because it guarantees citizenship to everyone born in Ireland in every circumstance, regardless of the length of his or her connection to Ireland. If that Member asked me in the House whether I believed a Bill I was putting forward was consistent with the Constitution and I said "Probably not, but let us see what the Supreme Court says," it would be a resigning matter for me. Likewise, if I said I believed it was constitutional in order to mask my embarrassment and lubricate its passage through the House, I would be engaging in a gross deception of Parliament.

It is not possible to put forward experimental legislation if one has clear advice, with which one agrees, that it would be unconstitutional. It is an attractive idea that this might be possible. It is like throwing a die — one does not think it will come up on six, but if it does that is great. If the world was like that we would have far fewer problems, but the Constitution would mean a lot less if Governments behaved in that way. I must take this relatively seriously. For me to experiment, come up with something I believe is unconstitutional and push it through both Houses in the hope that the Supreme Court will see it from a different angle is subversive and disloyal to the Constitution.

Senator Tuffy referred to Deputy Quinn's letter. I have this letter and accompanying memo. I find it fascinating that for all the debate on this issue, nobody has ever put it into the public domain. One would imagine that if the Labour Party was content to put it in the public domain it would now be plastered all over the newspapers so its members could say "We told you so." This time the usual impulse of politicians has been overcome by the desire not to know what they said because it would be more convenient to have a different view today.

Perhaps we should look for it under freedom of information.

It is amusing that this document, which has been the subject of passionate debate, has never been put in the public domain. This demonstrates an uncharacteristic shyness on the part of the Labour Party.

Is the amendment being pressed?

I must correct my previous statement. I am told that Deputy Quinn read large chunks of the letter into the record on Committee Stage of the Bill in the Dáil. I do not know which chunks he read.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasuithe 9 go 11 go huile.
Amendments Nos. 9 to 11, inclusive, not moved.

Amendments Nos. 12 and 13 are alternatives and may be discussed together by agreement.

Tairgim leasú a 12:

I gCuid 1, leathanach 7, línte 5 agus 6, ", an tráth a shaolaítear an 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. 12:

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,".

My understanding of the section, taking it at face value, is that at the time of the birth of the person concerned at least one parent who is an Irish citizen or entitled to be an Irish citizen must be alive. The Minister read out Article 2 of the Constitution, showing how one can read one thing from another thing in a section. I feel this is true in this case. The amendment seeks to remove a cruel loophole. If, for example, a father dies before his child is born, the child would not enjoy the constitutional right to Irish citizenship. If the mother dies during the birth, before the precise moment of the child's birth, the child's citizenship right would be in question.

This matter may have been raised in the Dáil and the Minister may have said he would deal with this issue through legislation. However, it would make more sense and avoid unnecessary litigation if it were dealt with now. The words should be deleted or the section clarified so that it does not mean the father or mother of the person must be alive at the time of his or her birth.

The intention of my amendment is the same as that of the Labour Party, although the wording is different. The current wording of the Bill means that if the Irish parent dies — generally the father, although it could be the mother——

It could happen.

It is possible. If this happens, the child will be denied citizenship. This is a problem that needs to be addressed because I can see it going to court otherwise. The wording I propose to insert is "or at any time previously."

This raises the interesting question of whether a parent is a parent regardless of whether he or she is alive or dead. I have a bad habit in public discourse of referring to my late father. My wife constantly corrects me on this, saying that he is my father, always was my father and always will be my father. It does not follow that a person should cease to be a parent simply because he or she is dead.

This issue had already been anticipated by the ingenuity of the Chief Parliamentary Counsel. If one considers the theme of the Government's proposed legislation, it proposes to extend citizenship by statute to a person born on the island of Ireland if the person was born to parents, one of whom was deceased at the time of the person's birth, or if the deceased person was, immediately before he or she died, entitled to reside in the State without any restriction on his or her right of residence. The same applies in each of the four categories. The anomaly with which Senator Terry's amendment and Senator Tuffy's amendment is designed to deal is precisely the kind of thing one can deal with in legislation, without complicating and jumbling the Constitution in order to deal with these exceptions.

Curiously, at the time of the death of a person, the deletion in Senator Terry's amendment would run contrary to the annexe of the British-Irish Agreement. For the purpose of giving effect to this provision, that annexe says all persons born in Northern Ireland and having at the time of their birth at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on residence, should be considered to be the people of Northern Ireland, and that at time of their birth——

Surely it is the birth of the child that counts. It does not necessarily require the continuing existence of the parent.

That is correct. The minimum guarantee is that the group of people referred to will be guaranteed citizenship. There is the possibility of a mother being kept alive on a machine, for example, though that would be rare. It is much more likely that an Irish father would predecease the child. In those circumstances one would encounter all sorts of complications. I do not want to get into the question of AI donors, and so on. We could be here until doomsday discussing such scenarios. The issues we have spoken of should be dealt with by legislation rather than by constitutional provision.

Certain remarks of mine may have been unintentionally misinterpreted by others. On one occasion, when confronted with a microphone, I used the phrase "manufactured arguments, North and South", in reference to arguments against the amendment. I used that phrase while having in mind some of the arguments used in the South which I believed to be manufactured. I will not go back down that road again. When I was talking of Northern Ireland, I was thinking more of the arguments based on the proposition which the DUP came up with, that this was some unravelling of the British-Irish Agreement and showed that anything could be changed in Dublin. I did not mean that the SDLP's concerns were manufactured. I have never thought that about the SDLP's concerns, but I used the phrase "manufactured arguments North and South" and I can well appreciate that some SDLP members might have thought that I was referring to their reservations. I was not doing so. I was talking of what I believe are the entirely opportunistic arguments advanced by the DUP.

I also want to put another matter formally on the record, because it would be of value, particularly to the SDLP. Regarding the administrative arrangements which will be necessary to make the legislation workable, we will of course closely consult with those people north of the Border, so that people from Northern Ireland are not burdened with greater practical requirements to prove their entitlement to Irish citizenship in a way that is unreasonable.

My colleague, the Minister of State, Deputy Brian Lenihan, has stated clearly that any attempt on foot of this legislation to differentiate between people born north of the Border and those born south of the Border would be unconstitutional. That is my understanding too. This amendment does not permit a distinction to the entitlement of Irish people or people of Northern Ireland under the British-Irish Agreement to be drawn on the basis that they were born north or south of the Border. Obviously, a distinction can be drawn with regard to how they go about proving it, but that is simply one which will be overcome in a non-discriminatory fashion.

Is there such a distinction?

In so far as this new law permits the Oireachtas to determine the circumstances in which people born north and south of the Border shall obtain Irish citizenship, it would be unconstitutional to avail of this referendum to distinguish between the people of Northern Ireland, as defined in the British-Irish Agreement, and the people of the South with regard to their entitlement. The clear meaning of the Agreement is that they are entitled as of birthright to Irish citizenship. It should be clearly understood that this does not open the way to a second-class status for people born in Northern Ireland who are the children of Irish citizens or UK citizens or long-term residents. They will not be put into a second-class status as regards their entitlement to access Irish citizenship if that is their desire.

The Minister noted the Parliamentary Counsel anticipated this issue, and that it is dealt with in the draft legislation, so that the citizenship right is extended to people whose parents are not alive at the time of the child's birth. That means that people in such a situation do not have a constitutional right, and the right has to be provided by legislation.

Second, the fact that the Minister has to legislate in this way and anticipate matters in this way means the wording in the constitutional amendment was flawed. The Minister has had to address that flaw through legislation. The most important point is that people in the position referred to do not have the constitutional right of citizenship. It is unbelievable that this would be the intent of the legislation.

My amendment merely inserts four words to bring about the desired effect we are requesting. We are asking that after the word "person" on line 17, we would say "or at any time previously". That will put it into the Constitution that anyone born of an Irish parent who has died prior to that person's birth would be granted citizenship. It is much better to deal with the matter simply than to deal with it afterwards by means of legislation.

Regarding the Minister's clarification, is this an apology to the SDLP?

I acknowledge the Minister's tetchiness about upsetting the SDLP. He should be just as tetchy when saying that parties in the South have "manufactured arguments" about this referendum.

I did not say that about parties.

Perhaps the Minister will clarify that for me, but he did refer to people North and South, and he agreed that people in the South manufactured arguments. The Minister should make it clear of whom he is speaking when he says that, and not allude to any of the political parties in this House.

I am grateful to the Senator for the points she has made.

I am not in the slightest bit tetchy about this subject. When I went home that evening and saw the reaction to what I said, it suddenly occurred to me that what I actually said could have been reasonably interpreted as applying to the SDLP, but it was not my view at the time. I was thinking about the arguments, which were then being advanced by the Paisleyites north of the Border that this somehow warranted the entire scrapping of the Anglo-Irish Agreement. I thought that was a somewhat manufactured argument. People were saying also that because the DUP was saying that in Northern Ireland, it was a reason for not having the referendum, but that is a manufactured reason because if their objection is a manufactured one, arguments derived from it are manufactured also. I do not want to get personal at this stage but I read other arguments which I believe were divorced from reality, clutching at straws and instances of the wish being the father of the thought, in so far as "thought" is a fair term to apply to it.

In case it appears we are getting a little adversarial, I commend the Fine Gael Party for agreeing in principle with this referendum, subject to all its reservations about timing and the like. I thank it for drawing the distinction between its reservations on timing and its ultimate stance on this issue. If we are talking about making the parties in Northern Ireland tetchy, I would say very demurely, and with the greatest affection and respect, that Senator Terry's earlier amendment, which we did not proceed with, would have caused much more fluttering of the dovecotes than anything I have ever done or said. Whereas it is right to explore that possibility, if I had run with it, I would have faced a blizzard of abuse.

Beginning with me.

If I had run with that amendment, the aeroplane would never have lifted off the runway.

I call Senator Tuffy and ask her, with all due respect, to come back to the subject matter of the amendment.

I will, yes. The more I look at this amendment, the more concerned I become about it. For example, one of my family members is married to a non-citizen and they could be affected by this measure. There are many people in that position. There are many people whose children emigrated to America and other countries, married, came back here and presumed their children would be constitutionally entitled to Irish citizenship. Surely this measure puts that in question. I want the Minister to be clear in his reply. If an Irish citizen goes abroad to work, marries somebody who is not an Irish citizen, comes back here — the spouse does not have Irish citizenship at that stage — they have a child but the Irish citizen dies before the birth of that child, that child's constitutional right to citizenship will be in question.

That is my reading of it. There is a need for legislation——

The child never had a constitutional right until 1999 in those circumstances. It was a statutory right. The world went on very well without a constitutional right until 1999. The roof will not fall in in similar circumstances now. To be practical about it, anybody who is living in Ireland on a long-term basis is entitled to claim Irish nationality. If that person was entitled to live in Ireland, he or she would be entitled to claim Irish citizenship and nationality after a period of time.

One of the joys of bringing this back to the Legislature is that we will be able to deal with all of these cases by legislation. We will be able to provide whatever we wish in respect of recently deceased parents who were Irish citizens — spouse does not enter into this in most cases, it is purely parentage — and deal with all of those exceptions. We will be able to provide the most minutely tailored distinctions between one category and another as we desire.

Senator Terry asked me what was wrong with her proposed amendment to the Constitution, but would it deal with a situation where somebody renounced Irish citizenship? If we said "who was at any time previously an Irish citizen", would she say that somebody could renounce it? Would she say that even though both parents of the child had renounced Irish citizenship, the child should nonetheless be an Irish citizen? That would be a strange outcome. There is no point putting this into the Constitution. We can deal with all of it in statute form and we can make all the exceptions, concessions and restrictions we believe are apposite to produce a fair result. To take the example, the draftsman of Senator Terry's amendment contemplated somebody dying and drafted words on that account, but it equally applies to somebody who renounced Irish citizenship or who was deprived of Irish citizenship by legal process. Do we want to put that into our Constitution without thinking it through?

Perhaps Senator Tuffy was unnecessarily worried about this aspect. I do not want to get into a discussion on eugenics but one acquires a parent at conception. They do not cease to be a parent even though they die before the child is born.

That is not what the Constitution states.

I do not think that is the case.

Why does it need to be legislated for if that is the case?

What is mentioned in the Constitution is at the time of birth of the child. There are posthumous children who still retain the rights, whatever they were, of their parents. I suggest the Senator is unnecessarily worried about that aspect.

The Minister appears to be worried.

When we were drafting this amendment we were thinking of it in the context of the parent dying prior to the birth of the child and many other reasons can be put forward to justify not providing for it here. I will withdraw the amendment and consider it again before Report Stage tomorrow but I remind the Minister that in the Immigration Act 2004 the term "a non-national who was born in Ireland" is used twice. Why did the Minister use that term when there is no such thing as a non-national who was born in Ireland? That will not be the case until this legislation is enacted.

I will give the Senator an example. A Unionist in Northern Ireland is a non-national who was born in Ireland.

What the Minister said is correct but as a former diplomatic officer who had to deal with consular, passport and nationality matters I would like to put Senator Tuffy's mind at rest about a person, who is an Irish citizen, who goes abroad, marries and comes back here. One parent is sufficient to provide citizenship. Otherwise, the founder of our party and our State would have been in trouble. There is no concern about that aspect. It is now a constitutionally based right if one is born in Ireland, except in very exceptional circumstances, and it was a constitutional right between 1922 and 1937 as well.

Why does it need to be legislated for if it is a right and there is nothing to be worried about?

There is a very simple answer to that question. If Senator Hayes's proposition were incorrect, that would not be a cause for worry, as it is open to the Oireachtas to legislate on the matter.

I will withdraw the amendment on the basis that I will table it again tomorrow.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasú a 13.
Amendment No. 13 not moved.

Tairgim leasú a 14:

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. 14:

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".

We want to delete the words "or nationality" since there are three references in the text proposed by the Minister to "citizenship" but only one to "nationality". The distinction between the two is obscure, and the reference seems to be unnecessary and inappropriate. If there is a distinction between the two, what is it? Why is there not a reference to "nationality" in the other provisions of the section, for example, in line 17? Why is there no reference to a parent having Irish citizenship or nationality?

Without pre-empting the Minister's reply, nationality and citizenship today are effectively synonymous and interchangeable terms. However, they have different nuances. Citizenship is being a civic member of a state, whereas nationality is membership of a nation. Nation and state are not precisely the same thing. Under the Good Friday Agreement, it is quite explicitly stated that "nation" has a geographical reference to the whole island of Ireland, whereas "State", very emphatically after 1998, refers to only 26 counties. I see no particular reason why one should not continue to use both terms. Citizenship is of the State, while nationality is membership of the nation, and those terms are not exactly coterminous. In this context, they have the same practical consequence, in that membership of the nation entitles one to citizenship of the State. However, one should not fall into the trap of thinking that they are the same. In practical terms, they may amount, for these purposes, to the same thing, but they are not identical terms and do not have identical references.

Interestingly, we could spend many hours discussing whether there is a distinction to be drawn between citizenship and nationality in practical terms today, as they are used interchangeably in many documents and areas. This sounds terrible, but I believe that a theoretical distinction between the two existed in Europe until the Second World War. There were some societies in Europe which counted women as their nationals but refused them citizenship. I may be wrong, but I believe that Germany, at one stage, accorded nationality but not citizenship to women. There may have been some other states. One of the great attributes of de Valera's Constitution was that he guaranteed citizenship regardless of gender. At the time, that was worth saying, although it seems self-evident to us now. In those days, it was not a self-evident proposition in international law that men and women were considered equally entitled to be citizens of every state. There was a distinction, which has now become largely redundant, between citizenship and nationality for the purposes of constitutional law.

Does the Minister accept that nation and State are not the same thing?

I definitely accept the proposition that the Irish nation and State are separate concepts, and that is probably to be found if one examines the text of the Constitution itself. The first part of the Constitution, covering Articles 1 to 3, inclusive, is headed "The Nation", and "The State" is the heading for Article 4 onwards, so there are different concepts at play. I am not suggesting that State and nation are the same but that I believe that some states in Europe denied women citizenship while according them nationality. I also believe that there were cases where people were deprived of their rights of citizenship while remaining nationals of that state.

Chief among them the right to vote.

Yes, there is the right to vote.

French women did not have that until 1947.

I remind the Senator, if he wishes to speak, to retain a little decorum.

I support Senator Mansergh's proposition. I am glad the Minister rather went out of his way to reassure people in Northern Ireland that there will be no diminution of the position they thought they had reached through the Good Friday Agreement and the constitutional changes flowing from it. However, the architecture of the Good Friday Agreement is really based on the proposition that the State and the nation are not identical and that the nation can flow across the borders of the State. If we appear to be tinkering with that again, it could be destabilising.

Let us examine Article 9.2 of the Constitution as it stands. It states "Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens". A distinction is being drawn there, as it does not state "fidelity and loyalty to the nation and State".

That is a distinction.

There is a distinction. Perhaps it is a distinction without a difference, but it is there. I believe that Senator Mansergh is right and that there was a case that citizenship was not accorded to all the nationals of many states in Europe. It was a relatively late development that it became available to everyone in a society. I do not know and do not wish to speculate, but there were cantons in Switzerland in which women were denied the vote. However, they were definitely Swiss nationals. I do not know how they could be citizens and not entitled to a vote.

In that respect, the French Revolution may have been something of a fraud, referring as it did tocitoyens and citoyennes.

The Minister's explanation on the use of the word shows that this amendment affects Article 2, which refers to the Irish nation, whereas Article 9 more specifically refers to citizenship, although it also mentions nationality. By bringing in nationality, the Minister is affecting Article 2 of the Constitution.

Perhaps the Minister might respond to my question about why the concept of a non-national born in Ireland is referred to. The Minister said that a non-national born in Ireland could be a Unionist. However, why was that phrase used in the Immigration Bill 2004 at a time when this referendum was not being considered? The Immigration Bill 2004 became law in February, and we first heard of this referendum after that date. Under Article 2, anybody born on the island of Ireland is an Irish citizen.

Entitled to be.

Perhaps the Minister might explain why that phrase was used in the Immigration Bill 2004.

The phrase is not of 2000 vintage, going back to 1946 at the very least. It goes back to the basic point we discussed at the beginning of today's proceedings. One is not automatically an Irish citizen if one is born in Ireland. One is automatically entitled to Irish citizenship if born in the island of Ireland. The child born to a French couple in Ireland this week is not automatically an Irish citizen. If that child does not do something — either have a choice made for it by its parents or makes it itself — consistent with claiming citizenship, he or she will be a French national by descent. Such a child may legitimately be called a non-national born in the island of Ireland. A Unionist in Northern Ireland can be legitimately called a non-national born in the island of Ireland. An Irish citizen who renounces his or her citizenship to become a citizen of a state that does not permit dual citizenship is a non-national born in the island of Ireland. There are many categories to which that phrase may apply and they are of considerable antiquity.

The fact that the Senator may have seen them, first, in an Act of 2000 does not mean the words were not used many times before and had a clear meaning, which is that it is possible to be born in the island of Ireland and to be either a Unionist or somebody who has nationality of some other state by descent; or somebody who was born here and has been an Irish citizen and has repudiated citizenship with a view to becoming a citizen of some other country. All of those people may legitimately be called non-nationals born in the island of Ireland.

I would just add a refinement to that position. There are many Unionists who choose to have Irish nationality alongside British nationality. I say this so that we do not give any impression from this debate that a Unionist isper se non-Irish or not an Irish citizen. Many Unionists are Irish citizens. I gather the post offices in Northern Ireland do a roaring trade in Irish passports, even in predominantly Unionist areas.

I agree. Senator Mansergh is right to remind me that the debate might convey I was suggesting Unionists cannot be Irish citizens. One can be a Unionist and an Irish citizen.

Is that more tetchiness from the Minister?

No, it is not tetchiness at all. I am now realising that I have been using the phrase "Unionist " too broadly. What I was trying to get at was somebody who was so "Unionist", they would have nothing to do with Irish citizenship, on ideological grounds, and who would never do what Senator Mansergh referred to.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasuithe a 15 agus 16.
Amendments Nos. 15 and 16 not moved.
Aontaíodh an Sceideal.
Schedule agreed to.
NEW SECTIONS.

Amendment No. 1 is ruled out of order as it is in conflict with the principle of the Bill as read a Second Time.

Níor tairgeadh leasú a 1.

Amendment No. 1 not moved.
Níor tairgeadh leasuithe 2 go 6 go huile.
Amendments Nos. 2 to 6, inclusive, not moved.
Aontaíodh alt a 1.
Section 1 agreed to.
ALT 2.
SECTION 2.

Amendment No. 7 is ruled out of order because it is in conflict with the principle of the Bill as read a Second Time.

Níor tairgeadh leasú a 7.

Amendment No. 7 not moved.
Aontaíodh alt a 2.
Section 2 agreed to.
RÉAMHRÁ.
PREAMBLE.

Amendment No. 17 is ruled out of order because it is in conflict with the principle of the Bill as read a Second Time.

Níor tairgeadh leasú a 17.

Amendment No. 17 not moved.

Tairgim leasú a 18:

I leathanach 5, líne 11, i ndiaidh "OIREACHTAS", "AGUS AG AN bPOBAL" a chur isteach.

I move amendment No. 18:

In page 4, line 11, after "OIREACHTAS" to insert "AND BY THE PEOPLE".

The reason we are tabling this amendment to the Preamble is that we believe the formula as it stands in the Bill and under the legislation to amend the Constitution is incorrect. Bills to amend the Constitution are not enacted by the Oireachtas, rather they are enacted by the Oireachtas and the people. We feel the formula that has been in use for the past six years is not accurate and could be rectified in this Bill.

This is a somewhat theological point and I am loath to get into a theological battle at this hour of the evening. However, while not speaking on the advice of the Attorney General, it is my view that Article 46 of the Constitution provides that the method of amending it is by means of a Bill that is enacted by the Oireachtas. Subject to being persuaded otherwise, it is my view that the provision of Article 46.3 is relevant here. It provides: "Every such Bill shall be expressed to be ‘An Act to amend the Constitution'." The Bill must be expressed to be an Act to amend the Constitution. Having been passed or deemed to have been passed by both Houses of the Oireachtas, it must "be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum".

I do not believe that the phrase "referendum" means that the people make the decision in the sense that the people do the enactment. I believe it is a condition precedent to the President signing a Bill to amend the Constitution, that it has been submitted for the decision of the people in a referendum, but the people's act in approving a Bill to amend the Constitution at a referendum is not a process of enactment. It is a process of decision, which amounts to a condition precedent, not a legislative act. However, it does not really matter which way it is because all the amendments to our Constitution have been done in the old way, which seems to follow my understanding of the matter.

I do not think the Labour Party could possibly argue that the Constitution has never been validly enacted for want of the addition of these words. That would be a radical proposition, to put it mildly. Therefore if the old method of procedure, which is the traditional one, is sufficient to amend the Constitution, we should stick to it. It has not gone wrong yet and it has not been challenged yet. I would be surprised indeed — famous last words, I suppose — if this came unstuck in the courts on that basis.

I do not understand the logic of this amendment because if we insert "be it therefore enacted by the Oireachtas and the people, as follows" and this Bill was passed, then it would be deemed to have been passed by the people, whereas in fact it has to be submitted to the people for referendum. In effect, we would be pre-empting the people's decision. That is the way I would look at it, logically.

At the same time it still goes to the President to be signed if the referendum is passed. It should surely state, at that stage, that it is enacted by the people. Either way, I will withdraw the amendment at this stage.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasuithe.
Bill reported without amendment.

When is it proposed to take Report Stage?

Amárach.

Ordaíodh go tógfaí an Tuarascáil, Déardaoin, 6 Bealtaine 2004.

Report Stage ordered for Thursday, 6 May 2004.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.