Twenty-seventh Amendment of the Constitution Bill 2004: Report and Final Stages.

I welcome the Minister for Justice, Equality and Law Reform. I remind Members that a Senator may speak only once on Report Stage, except in the case of the proposer of an amendment who may reply to the discussion on it. Amendments Nos. 1 to 3, inclusive, and amendment No. 5 are out of order. As Senator Tuffy is not present, amendment No. 4 cannot be moved.

Níor tairgeadh leasuithe Uimh. 1 go 5 a huile.

Amendments Nos. 1 to 5, inclusive, not moved.

Amendments Nos. 6 to 9, inclusive, amendment No. 11 and amendments Nos. 14 to 17, inclusive, are related and may be discussed together, by agreement. Amendment No. 6 is consequential on amendment No. 14, amendment No. 7 is consequential on amendment No. 15, amendment No. 8 is consequential on amendment No. 16 and amendment No. 9 is consequential on amendment No. 17.

Tairgim leasú a 6:

I leathanach 5, idir línte 12 agus 13, an méid seo a leanas a chur isteach:

1.—Leasaítear leis seo mar a leanas Airteagal 2 den Bhunreacht:

(a) cuirfear an téacs atá leagtha amach i gCuid 1 de Sceideal 1 a ghabhann leis an Acht seo isteach roimh na focail ‘Tá gach duine’ sa téacs Gaeilge,

(b) cuirfear an téacs atá leagtha amach i gCuid 2 de Sceideal 1 a ghabhann leis an Acht seo isteach roimh na focail ‘It is the entitlement’ sa téacs Sacs-Bhéarla.”.

I move amendment No. 6:

In page 4, between lines 12 and 13, to insert the following:

1.—Article 2 of the Constitution is hereby amended as follows:

(a) the text which is set out in Part 1 of Schedule 1 to this Act shall be inserted before the words ‘Tá gach duine’ in the Irish text,

(b) the text which is set out in Part 2 of Schedule 1 to this Act shall be inserted before the words ‘It is the entitlement’ in the English text.”.

I have arrived in the House to be given another letter informing me that my amendments are out of order. There must be a better way of conducting our business. Could Senators be given details in advance of the way in which amendments will be dealt with?

Senators are welcome to call to the Seanad office for a discussion before debates begin.

I thank the Chair. I am not criticising any individual officials.

I do not intend to delay the debate, but I would like to highlight the reasons for my amendments. I want to outline the options that would have been available to the All-Party Committee on the Constitution if it had been allowed to examine and discuss the proposed amendment and to make suggestions on the Bill. The Government has dealt with this proposal in a manner that would not be generally recommended for dealing with legislation. When one is proposing to change the law, a constitutional amendment should be used only as a last resort. There are other ways of dealing with problems that arise. We acknowledge that a problem has arisen and that a loophole exists, but the matter should be considered in its fullest context. Are ways other than a constitutional amendment available to help us to close the loophole? The Government chose to solve the problem by holding a referendum without giving adequate time for interested parties, such as the All-Party Committee on the Constitution, the Human Rights Commission and many others, to express their views. Such bodies would have been glad to have, given their opinions if they had been asked to do so. We should not be dealing with this problem in such a manner.

I do not agree that the proposed referendum should take place on 11 June, as the local and European elections are taking place on that day. If the Government proceeds with its plans to hold the referendum on that date, I pray that racist comments will not be made as part of the debate on the matter during the local election campaign. The Minister is aware, as all Senators are, that certain individuals will use the referendum campaign to secure votes in the local elections in an opportunistic manner. Some people will use racism if they think it is the popular thing to do, but we should try to ensure that an opportunity to operate in such a manner is not presented to them. The holding of a referendum at the same time as the local elections is not the best way to proceed. We would have preferred if there had been more debate, if more time had been provided and if a more appropriate date for the referendum had been selected. My amendments present the Minister with various options, although I doubt if he will consider them at this late stage. I have outlined the reasons for the amendments.

I second the amendment. Given that I wish to oppose the section, should I speak at this stage or should I wait?

Sections cannot be opposed on Report Stage.

I wish to discuss Senator Terry's amendments. The Labour Party did not propose similar amendments because it opposes the section and the Bill as a whole.

Such points should have been made on Committee Stage.

I know.

I would like to point out that this is Report Stage.

I understand.

I ask the Senator to discuss the group of amendments.

I would like to consider some of the points made by Senator Terry. She made a good point about the timing of the proposed referendum, which is detracting from local issues. Many people who have grievances about local authority housing policies, for example, are focusing on the referendum as a solution to such problems. That is not right, especially as the vast majority of houses are not allocated to foreign nationals. I do not suggest that those who are disseminating such misinformation are engaging in racism. The proposed referendum will not help to clarify why an insufficient number of council houses is being built, for example. Better policies and better delivery by county councils are needed. Such matters will be forgotten if people's attention is focused on the referendum and if they consider that local authority issues will be resolved by a constitutional amendment.

We are rehashing the debate on Second and Committee Stages to some extent. The timing of the referendum is a secondary issue and we should concentrate on the substance of the matter. It is not fair to say the Opposition has not been given enough time to deal with the matter. This has its genesis six years ago in the Belfast Agreement and the Supreme Court decision a year and a half ago. The issue has been debated in the House and at the relevant Oireachtas committee. These amendments that seek the Bill's referral to an all-party committee are not sensible. It is a simple constitutional amendment in which the people are being asked to give the Oireachtas the right to make decisions on children born of non-nationals. The Minister for Justice, Equality and Law Reform has set out the proposed legislation in this area. Members should not be afraid of dealing with this issue. There is some feeling that we do not have the confidence to deal with this in a humane and responsible way. There will be differences of opinion. For example, Senator Tuffy argued that the three year period for residing in Ireland was too long while I argued it was too short. I look forward to the debate on the legislation. I do not subscribe to the arguments put forward by the other side of the House.

There has not been one iota of racist comment since it was suggested there would be in the newspapers.

Let us hope it stays that way.

The racism issue has only been raised by Members of the Opposition in this House. It is almost as if there is a wish that there might be something in that regard.

That is not true. The Senator should withdraw his comments. There is no wish on this side of the House for racism to emerge in the debate.

Order. Senator Terry will have a right to reply.

I do not have to reply to that. The Senator must withdraw his comments.

I have no intention of withdrawing my remarks. It is an impression that I have come to from listening to the debates on this issue in the House. I ask the Opposition to put this above party politics. This is an issue that must be dealt with in the interests of the Irish people and those of immigrants and non-nationals. I ask that it be approached in a way, which will ensure no racist tendencies are prompted to pollute the debate on this issue.

The Fianna Fáil Party did that in the last election.

Senator Terry, order please.

There would be a greater risk of this happening if the referendum was held in isolation. By combining it with the forthcoming elections, there is less likelihood of racism emerging.

While canvassing for the forthcoming elections, I have noted that the members of the public also see it as a simple question. If it is left that way, there will be no difficulties. No politician should try to get in on the back of fears and prejudices. It would be disingenuous to do so.

I support my colleague, Senator Jim Walsh. He was not accusing any Member on the other side of racism. He simply pointed to the attempt to ascribe a racist motivation to the Government side as one of the main planks of the Opposition case against the referendum. There was nothing improper in making such a point in the moderate fashion in which it was made.

As we are at the end of the process, Members should resolve to treat this constitutional amendment on its merits. The Fine Gael Party has indicated it will support the substance of the amendment. From my experiences on the doorsteps, it will be neither an advantage, or disadvantage in the elections. As Senator Tuffy said, people are more preoccupied by housing issues and so forth. One should not exaggerate the public interest in this issue. I have seen it raised only once on the doorsteps. It is time that this issue was depoliticised. As the Fine Gael Party agrees with the underlying merit of the constitutional amendment, what benefit is there in alleging certain motivations behind it? On the doorstep I will be pushing Fianna Fáil local and European candidates and have no intention of raising the referendum, unless asked about it. It will not be of the slightest extra benefit even if a candidate puts it in his or her literature. As people will see it as a separate issue it will not make them vote for or against particular candidates.

It is time to take the emotion out of this debate and to stop attributing motives to this side of the House. All Members do not want racism in this society. Our economy, as the Minister for Justice, Equality and Law Reform eloquently explained, will need inward migration. The way to keep racism in check, and hopefully reduce it as people adjust to our changing society, is to have a fair, firm and humane immigration system which is not open to abuse. This debate is part of that wider picture.

There is an element of "Groundhog Day" to this debate as we have been over this ground a number of times. I acknowledge that Senator Terry has tabled these amendments to tease out some of the issues and to show alternative views that can be taken into account to enrich the debate. I also acknowledge that the Fine Gael Party is taking a responsible course in this debate by examining the merits of the issue. Having regard to what it has said about the possibility of doing the same task by a different way or on a different occasion, it is informing the public that this proposal should be favoured rather than rejected. I appreciate that support, subject to the qualifications I mentioned.

It has been suggested that because the Fine Gael Party and the Labour Party were not concentrating on this issue, then no other party was exploring the alternatives. That is simply not the case. It is always a Minister's and his Department's first instinct to deal with any problem by administrative or legislative action rather than by constitutional change. I looked at this matter prior to my appointment as Minister for Justice, Equality and Law Reform when I was Attorney General in the previous Government. It was an issue of concern when the number of asylum seekers rose to approximately 12,000 per year. This was prior to the L and O cases. At all times a considerable amount of intellectual effort went into the area of immigration, citizenship and its effect on asylum seeking. People scratched their heads and wondered how to deal with the issue because there were significant social implications if it was not dealt with. During that process, every single approach to this issue was considered. In particular, the legislative approach was considered at great length by me as Attorney General and by my successor. As Minister, I asked the Attorney General whether there was any way I could deal with the matter through legislation. I was told emphatically, in light of the second sentence of Article 2, about which I spoke yesterday evening, that neither he nor the Government could put their hands on their hearts and say they believed that legislation which had the effect of postponing, delimiting, refusing or confining the birthright entitlement to citizenship could be described as constitutional.

I confirmed yesterday that it is not possible for a Minister to know something is probably not constitutional but try to implement it anyway and that to attempt this would be to involve the Cabinet in a conspiracy to undermine the Constitution. If there was a 50:50 balance of probabilities or there was substantial doubt, different considerations could arise. In this case, however, the wording of Article 2, particularly the second sentence, makes it logically inescapable that there is currently a birthright entitlement to Irish citizenship, as the Taoiseach's letter to Deputy Quinn acknowledged so long ago, for everyone born on the island of Ireland regardless of circumstances. Given that this is the case, the Government has had no legislative option. Had there been such an option, it would have been taken.

I would like the House to accept the fairly elementary proposition that there is always a reluctance to amend the Constitution and that no Minister who wanted to amend the Constitution wantonly would be listened to for two seconds at Cabinet or anywhere else. Nobody in Cabinet genuinely thought this was a redundant exercise in plebiscitary democracy that was not required by the Constitution. There was no alternative.

It has been implied here today that somehow the motives of the Government in asking the people to vote on this proposition on 11 June are suspect, base and designed to achieve political advantage for the Government parties. I do not see how Fine Gael can be at a disadvantage, since it will be supporting the proposition. The Labour Party and other parties may take the view that because they want to oppose it, this might muddy the water. The purpose of a referendum under the Constitution is to consult the people and allow them to make a decision. The best way to do this is under circumstances in which the turnout of voters is likely to be broadly representative of the community rather than of people who have a narrow interest in the subject. We saw at the time of the Nice referendum how 17% could defeat 14% — I have forgotten the exact figures — because of a poor turnout. It is desirable that an issue such as this should not be decided by people who have strong passions on the issue to the exclusion of people who are not greatly motivated by issues of immigration but are nonetheless entitled to an equal say, as citizens, about this simple proposition.

As I said before, we are now 40% into the life of this Government. There may or may not be a presidential election later this year. There may or may not be a referendum on the result of the IGC if a treaty is concluded. The one occasion prior to the next general election on which we can be reasonably sure significant numbers of people will be going to polling stations across Ireland with many issues on their minds is 11 June. That is the best time to test the real view of the people on this issue. I agree with Senator Walsh that a single-issue referendum may not produce a more enlightened or representative result. If I were to encourage people to go to the polls on a single issue this autumn, I would be lucky if 25% of people voted. In order to enthuse them I would have to go stomping around the country making speeches about how important this is. I am certain that in those circumstances I would be accused of being an obsessive who is trying to run people out of their houses. I would be asked why I was not dealing with the crime problem and where are the 2,000 extra gardaí. I can imagine it all — I could write the scripts myself, because I have been in Opposition and I know exactly what I would say about someone in my circumstances.

We remember that.

That is an unlikely and contrived scenario. The simple, common sense thing to do is to put a simple proposition to the people when they are going to the polls.

I agree with Senator Mansergh and Senator Walsh — I do not believe anyone would gain a significant advantage by saying he would be running for the local urban district council and strongly favoured a "Yes" vote. People would look at him and tell him to visit a doctor on the way home.

I am sure we will hear it.

I do not believe that.

That has not stopped Fianna Fáil candidates stating it in their literature.

People are entitled to express a view on the issue. I do not believe many people are likely to switch their votes and vote in councillors to local authorities on the basis that they agree with their views on a referendum. There will be such a variety of candidates on each side that people must make up their minds which party they support. They will make up their minds based on what representatives of these parties are saying on the doorstep about local election issues.

Senator Walsh made a statement which is true and Senator Terry will be replying to him so she might as well reply to me too. I have been accused of being responsible for racist deportations, engendering a racist referendum proposal and playing the race card. I have read all the articles in the newspapers about these issues. I will not dignify their writers by naming them, although I will state that some of them should keep taking the tablets. However, it is their prerogative to write this kind of stuff if they want to.

People are entitled to be passionate on this subject but I am trying to be rational and reasonable. I will take the slings and arrows of political debate. I have reasonably broad shoulders and I am quite happy to take a certain amount of abuse. However, as Senator Walsh said, all of these accusations about the motives of others have come from the people who are opposing this measure. I have not impugned the motives of the Labour Party, Sinn Féin or Fine Gael for taking the stances they have.

I have not heard anyone in this House describing the Minister as racist.

The Senator will have an opportunity to reply.

The Senator must not have been reading the newspapers if she thinks that. In this House, this has been described as a racist referendum. I have been strongly accused in both Houses of playing the race card, though we have had a much more moderate debate in this House than in other places. I have no interest in playing a race card. This is not a race card. The way to avoid the emergence in a PR-based democracy of parties of the extreme right on this issue, such as emerged in Austria, Holland, which we all look to as a liberal society, and Denmark, which is held up as an enlightened and liberal society, is for the Government of the day or successive Governments to approach the issue straight down the middle with a firm hand on the tiller. It must not be swayed by any temptation to play the race card nor must it be frightened away from doing the right thing by political correctness. One must go straight down the middle.

The Irish electorate understands that issue clearly. Our society is free from racism. Apart from a few people of passion who are writing newspaper articles, the great majority of people on the street are not excited by this proposal or scandalised by it. They are simply saying that it is sensible and they propose voting for it. They will not shower their number one votes on people who appear on one side of this issue rather than another when it comes to choosing their local authorities.

I agree with Senator Walsh's point that there seems to be a hypersensitivity to this issue being dealt with at all. There is a constant refrain that to deal with it in the political domain is somehow to risk or to be reckless as to whether racism emerges. I do not believe racism will emerge in Irish politics regarding this issue or that anyone will get a significant number of votes, more or less, depending on how they present this issue on 11 June. The Labour Party will get whatever share of votes it will get in the Dublin City Council election, and will not be affected by whether it says "yes" or "no" on this issue. The same holds for Senator Terry's party and for my own, I hope, as well as for Fianna Fáil. People will vote based on what they want to say about those parties' policies and their own local authority areas.

For all those reasons, I reiterate my point that now is the time to face up to this issue. There are certain urgencies involved, such as the Chen case. If that is decided against us in June, July, August, September, or whenever it happens, we would have a crisis on our hands. Everyone would be called on. Because of the publicity the Chen case would give rise to if the court decision went against the arguments of the Irish State and those of the United Kingdom, we would have to run through a referendum very rapidly so Ireland would not be allowed to become a place where every migrant in Europe who is worried about his or her status could come to avail of European Union citizenship,

Now is the time to face up to this simple issue. In one respect Fine Gael is right in saying this should be supported. To revert to Senator Terry's proposed series of amendments, and those of Senator Tuffy, the alternative approach, to re-open Articles 2 and 3 of the Constitution, though intellectually interesting to canvass would be so politically disastrous and so irresponsible in the present circumstances that it would be a wanton act of reckless vandalism with regard to the structure of the Good Friday Agreement. To go down that road would have catastrophic effects. I know that Senator Terry is not saying this should be done, merely that we might have considered it. It was considered. The Government took exactly the same view as Deputy Quinn in his celebrated letter and legal memorandum of 1998, that the intelligent way to approach this was to deal with a collateral amendment which qualifies the meaning of Article 2, but does so without doing it structural damage. That is what we are doing.

In those circumstances the people will understand that very clearly and will appreciate that this is the appropriate way to deal with the issue. It is a moderate proposal, and as Senator Walsh said, the important point is that it leaves many issues to be determined, not simply in the first piece of implementing legislation, but in legislation designed to tweak or vary that, by these Houses over the years to ensure it is always fair, and is not subject to abuse or unforeseen consequences. We will restore to these Houses what they should always have had, and had until 1999, namely the right to legislate like most European democracies to deal with this sensitive issue.

We will do one more thing. We will bring Irish law on this issue, and European citizenship which derives from Irish citizenship, closer in line with the laws of other member states of the European Union. While doing so, if at the end of all of this the Government proposals are put into law in the Bill in the form we suggest, we will still have one of the most liberal nationality and citizenship regimes in Europe, and for immigrants one of the most accessible citizenships in Europe and one of the most generous systems not merely anywhere in Europe but anywhere in the world in terms of offering to people the right to become citizens.

The United States has a jus soli right to citizenship, and a migrant can go there and attempt to gain American citizenship. One can compare what is required there for citizenship status to what is required of a migrant coming to Ireland and seeking citizenship. Members might compare all the impediments to becoming a citizen of the United State to those cast in front of someone seeking Irish citizenship. Ireland compares very favourably in that area. If one talks of liberalism, generosity, inclusiveness, and of acknowledging that this society will have inward migration for a considerable period, just as in the past it had emigration, then if one looks to the likely character of Irish society after this referendum, if it is carried, we will still be one of the most generous nations in the world, and one of the countries in Europe where racism is least politically potent. We will also remain one of the European countries where some party of the far right has not emerged to exploit this issue, because the Government will be seen to have taken a sensible middle of the road course.

In speaking in this House today and yesterday, I attempted to be very measured in my comments. When I said earlier that holding the referendum on 11 June, a local election day, could give rise to racist remarks by some candidates, I did not expect that to initiate a comment from the Government side that the Opposition wished for racist remarks to be made. That totally misinterprets what I said. I interrupted and asked Senator Jim Walsh to withdraw the remark.

He did not make such a remark.

I wrote down what he said. He said it is almost as if we had a wish that the racism issue will be raised during the election campaign.

He did not accuse anyone of being racist.

He said we have a wish. I wrote it down and I am sure it will be on the record.

That was a general contribution which did not apply to anyone, and I do not believe it needs to be withdrawn in that context. I am sure you will accept that, Senator Terry.

I will accept that from you, a Chathaoirligh. I hope racism will not be an issue. In fact, I was the individual, representing Fine Gael one Sunday about two months ago, who signed a declaration to the effect that we will not engage in any racism. Representatives of all the political parties were there that day and they signed that declaration. I ask that members of my party, and all of us, make every effort to ensure racist remarks are not made during the election campaign.

We have got into the technicalities of this amendment, and I appreciate the time the Minister has given to explain the many aspects of it, but the bottom line is that we are dealing with human beings. We talk about the mothers who come here to have their babies but I ask myself if I would go to the same lengths as many of those women to give their child a better life. That is what this is all about. They take huge risks and leave their country and families far behind to come here to have a better life, but I accept that whole process has led to abuse in that it is not just those to whom we would like to grant asylum who come here. Many people come here for economic reasons and that is putting a huge strain on our resources. I accept we need to have proper immigration laws in place, which is something we are all working towards. I will conclude on that but the comments from the other side in regard to a minor remark that I made in good faith were unwarranted and over the top.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasuithe Uimh. 7 go 18 a huile.
Amendments Nos. 7 to 18, inclusive, not moved.

Amendment No. 19 is in the name of Senator Tuffy and amendment No. 20 is an alternative. It is proposed to discuss amendments Nos. 19 and 20 together, by agreement.

Tairgim leasú a 19:

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

agus

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

I move amendment No. 19:

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

and

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

We discussed this issue at some length yesterday. This proposed amendment of the Constitution is flawed. I understand the difficulty of drafting a wording that would incorporate a person whose parent had died before they were born, without allowing for a person whose parent became a citizen after they were born. I understand the reason for inserting the wording but it is flawed. This is not a simple issue and a simple wording should not be inserted. Every word in the Constitution counts and any word could be the one on which a Supreme Court decision rests, and that is the difficulty in coming up with a wording. We experienced this problem in the past. The amendment we made to the Good Friday Agreement has resulted in this proposal, and on other occasions when we amended the Constitution we had to revisit the issue concerned. It is a complicated process. People continue to say it is a simple issue but it is not. In closing one loophole we are opening others. This is just one the Labour Party has identified but we are probably creating other loopholes with this amendment.

As I said yesterday, there was no loophole to be exploited. If we take the case, the name of which escapes me at the moment, which found that because a child has a right to citizenship it did not give their parents that right——

The L and O case.

The L and O case highlighted the fact that those parents could not exploit a loophole, therefore, this referendum is not necessary. The Minister mentioned the Chen case. I do not know enough about that case to come back to him on it but we do not yet know the decision in that case. Should we hold a referendum in anticipation of a case that has not yet been decided? The only person who could exploit this is a child when he or she reaches adulthood, but that is not a bad thing. The Labour Party would be prepared to examine the issue, but in a definitive way. We should have a fully informed debate and then decide if a referendum is required, which was done in the case of the housing issue with the all-party committee.

We talked about America earlier. People have similar rights in America. The Minister said America has more stringent rules on citizenship but that is not necessarily bad in that it should not grant citizenship in the way we did in the past, when people literally bought citizenship. America has a comprehensive green card system, however, and the Labour Party has proposed such a system. The Minister said earlier that the Labour Party was not concentrating on the issue while he was working away on it. That is not true. We published a document, Ending the Chaos, which outlines a comprehensive green card system that the Minister has said he is considering introducing. That was even welcomed at the time by the bodies which support refugees.

We are not saying there should not be a system. The Minister is right when he says that if we have a proper immigration system it will combat racism. We are in favour of that. We do not believe there should be an open door policy or that this issue should be taken lightly. That is the reason we came up with a policy. We stand over that policy and that is the Labour Party position I will try to impart on the doorsteps.

I would have liked a more comprehensive examination of other alternatives. For example, when people talk about the X case, the Labour Party's position is that we should legislate within that and perhaps within the parameters of the decision on the L and O case and of the Chen case when it is made. That was an option but it appears not to have been considered.

I became very annoyed about this issue yesterday, as I am sure did many other people. It is something that is unlikely to happen to most people but if it did, it would be very upsetting for people to know that they had a constitutional right to something before this referendum and that we have taken it away through legislation. We know that it is wrong that they do not have that constitutional right if their parent died before their birth. Since that tragic thing has happened to them, they are denied constitutional rights, which are important. We would not have them if they were not so. It is dealt with by legislation, and I accept that the Minister said that. However, that is not the same as having a constitutional right. They have it now, but after this referendum, it will be taken away, and that is wrong.

I second the amendment.

Does the Senator wish to speak?

I have already spoken today.

I call Senator Jim Walsh, who is fast out of the traps.

I listened to Senator Tuffy yesterday. To be fair, she has raised an interesting point in this regard. I am not sure she is quite correct when she says people have that right now, since no one has a right under the Constitution until they are born, so the right does not come into play until then. It is not as if we are depriving someone of a right that he or she has at present. That point must be made.

While one could examine the wording of the constitutional amendment, as the Minister mentioned yesterday, there is a need to have it reasonably concise and clear-cut. Senator Tuffy has acknowledged that this will apply only in exceptional circumstances, but that does not mean we should not have regard to those circumstances when they occur. It is all predicated on "unless provided for by law". I have not discussed it with the Minister and do not know what is in his mind. However, I would be disappointed if the legislation did not in some way address the issue, either as published or as it goes through the House. The Senator's point is fair, and if we were discussing the legislation, I would support it.

However, that is probably the place for it, since many other aspects of how people qualify for citizenship will be included in the legislation. With respect, that is probably the place for it in this instance, since it relates specifically to children born of non-nationals. Therefore, there is a certain logic in having it all included in the legislation rather than part of it being attached to the Constitution, which is very specific about how people acquire citizenship as a birthright. While I sympathise and concur with the Senator's sentiments regarding the point raised, in practice the legislation will cater for it. It is probably preferable in the legislation rather than trying to have a much more detailed content in the Constitution. Much of what is in the Constitution is interpreted in various laws, which must conform with it. There would not be anything irregular about this either.

We all like to think of the Constitution as a rock on which this State rests. However, the Constitution, no matter how it is written on whatever theme, is subject, as we have discovered in certain instances, to legal and judicial interpretation. I am quite confident that, if there were no legislation and this failed to be interpreted by the Supreme Court, "at least one parent who is an Irish citizen" would be interpreted to include "was" if need be. In recent years, the Supreme Court seems in any case to have adopted much more of what one might call a pragmatic, common-sense approach to interpretation. In that context, I am personally glad the core of nationality and citizenship is again written into the Constitution. As I said, it was there at the beginning, between 1922 and 1937. I equally accept there are many matters at the margins which need to be regulated by legislation and if necessary, from time to time, changed by it. However, I am not unhappy that the core is in our fundamental law. There should be some statement on citizenship and nationality in it.

I very much agree with the Minister that it is not satisfactory to put off problems until we absolutely have to deal with them and there is an emergency on our hands. The situation highlighted by the Chen case is very unsatisfactory. A person with no intrinsic connection with Ireland came from outside the EU to Belfast, which is not even within our jurisdiction, thereby acquiring Irish citizenship and, probably more important from that person's point of view, EU citizenship. That must be dealt with in principle. To be frank, I regard that as the only compelling reason to hold a referendum. I know there are issues surrounding pressures on services. Those may be powerful arguments, but the Chen case regarding a back door to EU citizenship is a compelling issue. It is far better to deal with it now than to be subjected to political pressure from our EU partners, who will certainly not continue to take a disinterested approach to the question, or pressure from people rushing in to beat deadlines. It is best to deal with the problem now before it gets any bigger.

We discussed this matter at some considerable length yesterday. However, overnight I have had an opportunity to look again at the Government proposals document of April 2004. We can take some heart from the fact that the Parliamentary Counsel retained to translate the Government's intentions into legal effect looked at precisely the same issue as Senator Tuffy and said that, in each case, no one should be disqualified from Irish citizenship if his or her Irish parent deceased during the pregnancy, in other words, if the person who was the Irish parent ceased to be such at the time of birth, under one meaning of the term "parent". The parliamentary draftsman specifically included, under each of the grounds necessary to give effect to the four exceptions that the Government put in place, a paragraph extending the right to Irish citizenship to someone who, when born, was the child of a parent who had been an Irish citizen and who had died during the pregnancy. That goes as far as we can on this, but I do not at all dismiss the argument put forward by Senator Mansergh today and by Senator Maurice Hayes yesterday that, under one view of the term "parent", one's parents do not cease to exist because they die but remain one's parents, since everyone must have two, short of cloning. The identity or nature of people's parents is not transformed by death. On that reading of the Constitution, perhaps what the Parliamentary Counsel is inserting here would not be necessary at all. As Senator Tuffy has conceded, no wording is absolutely certain.

Whichever view is taken let us remember that the whole purpose is to give to this and the other House the right to address all those hard cases and to deal with them in the measured way that is proposed. The second point raised by Senator Tuffy is whether, in the light of the L and O decision, we can attempt to legislate within it. In her view, the L and O case effectively said that coming to Ireland with a view to having a child here presents no problem and the L and O case effectively knocks on the head the notion that parents can stay in Ireland because of their child's Irish citizenship. I reiterate what I said yesterday, that the L and O case is not that meat cleaver type of decision which just hands to the Minister for Justice, Equality and Law Reform the right to despatch people out of Ireland on a whim.

I will quote again what Mr. Justice Hardiman said in his judgment in the L and O case: "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 Minister did not outline what that would mean exactly yesterday.

A grave and substantial reason means that it cannot be, in effect: "There is an Irish citizen over there. The child's two parents are foreigners. Out." It is not to say as a matter of policy that we do not like that child being in Ireland and so out it must go. It must be a grave reason. There has to be a reason why a citizen child of Ireland should be excluded. One of the matters stated in the L and O case as a ground which the Minister could take into account was whether such a decision would, in fact, be warranted having regard to the necessity to maintain the integrity of Irish immigration laws. It does not mean that anybody who occupies my position as Minister can start signing deportation orders without any consideration as to what the implications are for an Irish citizen child — as to whether it is a reasonable decision. It is not enough for the Minister to say decisions are always made "along these lines" and that his or her mind cannot be changed now. I want to make that point clear.

One grave and substantial reason is the necessity to prevent our immigration laws from being trampled down and to maintain their integrity. It does not mean that it is a matter of automatic policy that the Minister simply dismisses from Ireland all children who are Irish citizens and who are entitled to have their cases looked at because of the L and O case.

A point which the House might have less sympathy for is also significant. There are approximately 640 public servants working in the immigration area of my Department. By any standard this is a sizeable cohort of the public service. Approximately 420 of them are people devoted to the asylum seeking process. It is immensely labour intensive, even to come to a decision based on the L and O principles as to whether somebody should or should not go. I would like Senators to come to my office some day to see the enormous files that arrive in for decision and to look at the amount of work already going into this penultimate stage as to whether I, as Minister, should be advised that a person should be sent home. This is not a matter where computers spit out deportation orders because somebody presses a button and a load of files fall into a legislative meat mincer from where results come out. Every single case is fat, larger than a telephone directory, with documents piled into it, submissions this way and that, considerations of the original evidence and advice to the Minister. That is the way the decisions are made.

A point which has been lost continuously in the flak which has gone on so far in this debate is that the UN Convention on the Reduction of Statelessness means nobody will be left without a state. Therefore, every child born in Ireland, who is not otherwise entitled to be a citizen by descent of his or her parent's state, will be given Irish citizenship. If one turns that coin over it means that the only people to be affected by the Government's proposals will be those who already have one citizenship available to them and whose parents have a small or tenuous connection with this State — they were here during the child's birth and nothing more. They are asking the State to accept that while the baby is entitled to citizenship of their country, by descent, they want to give him or her, in addition, the right to choose Irish and EU citizenship as well. It is only that category of people, who already have one citizenship, so to speak, in the bag and who ask to be given second and third citizenships — Irish and EU — on the basis of a fleeting connection with Ireland who will be adversely affected by this move.

Take any country one likes, for example, Sri Lanka. If a couple comes here and their child is born in Ireland and will not get Sri Lankan citizenship as a matter of entitlement, he or she will be entitled to Irish citizenship. Otherwise, the child would be stateless. If the child, however, is entitled to Sri Lankan citizenship, what we are saying is Irish and EU citizenship may not be claimed in addition to that entitlement if there is not a substantial connection to the island of Ireland, other than a fleeting visit or the happenstance that one was born here for whatever reason. That is all. When one looks at it in that light it is not a major step and neither is it a dramatic change. It is not an injustice because the child already has one citizenship, that of his or her parents. What the child is actually seeking is a second citizenship of another state, and also citizenship of the European Union, in addition to what he or she is already entitled to by reference to the parents' nationality.

I have not heard that point made. I tried to make it in one article, which was published inThe Irish Times. I have not heard anyone who is opposed to the referendum comment on it. The reason they have not commented on it is that, when it is looked at in the round, our position is so reasonable and defensible that it is not an area which any opponent of this referendum would like contemplated by the public at large. It sounds a slightly subtle point and it will be difficult to get it across in the course of the referendum debate. Most people do not want to hear about conventions against statelessness and do not want to think through the logic as I have just explained it. The only people who would be denied citizenship here are those who have some other option available but are attempting to opt instead for Irish citizenship. If that sinks home with the public I believe a large number of whatever fraction of the population is doubtful about this referendum would accept the proposal as reasonable.

Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú dó.

Amendment put and declared lost.
Níor tairgeadh leasú a 20.
Amendment No. 20 not moved.

Tairgim leasú a 21:

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

agus

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

I move amendment No. 21:

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

and

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

This was also discussed at length yesterday. Senator Mansergh appeared to say that nationality and citizenship are different. Is that right?

To a degree.

To a degree. If that is true and this referendum is about citizenship, why does one need to refer to nationality? If it is not true and nationality and citizenship are the same, why is it necessary to use the two words? I do not see why the two terms are necessary, which is why we propose to delete them.

I second the amendment.

Without going over yesterday's whole debate, they are different things. The people of Northern Ireland have Irish nationality. They are members of the Irish nation but they are also citizens of this State. We decided to give citizenship of this State to members of the nation and to entrench that in the Constitution. In principle, citizenship and nationality are not the same thing. It would be difficult for us to deny that people living in Northern Ireland who wish to have Irish nationality do not have it. One or two commentators have suggested that is what we should have done, but that would not be possible. Nonetheless, being a state with a jurisdiction confined to 26 counties, without its being in the Constitution it would not necessarily be automatic that because people have or claim Irish nationality they have citizenship of the State. I do not know what all the international parallels are, but I can imagine that there are national minorities in various states who do not necessarily have citizenship of the country to which they feel most affinity. Both concepts have validity; nationality is one thing, citizenship is another. We have decided to make them the same, but the state is of a different extent to the nation. There is no disputing that in territorial terms. We have to keep both concepts alive in the Constitution.

Citizenship evokes civic duties. Nationality is a sense of identity and identification. They are different political and philosophical concepts. Both are in the Constitution and I would like to keep them there, rather than to settle completely for one as against the other.

This was discussed at great length yesterday. I did not have an opportunity to verify whether I was right or wrong about certain countries up to the 1930s distinguishing between nationals and citizens. It is my belief that until comparatively recently, citizenship in certain states in Europe was confined to the male gender whereas "nationals" included everyone. Surprising though it may be, Mr. de Valera's Constitution of 1937 specifically stated that citizenship was available to both genders. It was regarded as a statement of importance at the time, that it was not possible to disqualify from citizenship one gender, which in the mores of the time was more likely to be the female gender. One never knows, the way things are going, perhaps at some future time men will have their citizenship under threat in some society. In this case I do not believe that the word "citizenship" or the word "nationality" has the significance Senator Tuffy's amendment seems to imply. If one goes to the famous second sentence in Article 2:

It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.

It is clear that citizens are entitled to be nationals. It is not clear if nationals can be disqualified from being citizens, although I suppose that could happen by way of renunciation. It is a metaphysical distinction for the purpose of this debate.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Amendment No. 23 is an alternative to amendment No. 22. They can be discussed together by agreement. Is that agreed? Agreed.

Tairgim leasú a 22:

I leathanach 7, línte 9 agus 10, "mura ndéanfar socrú ina chomhair sin le dlí" a scriosadh agus an méid seo a leanas a chur ina ionad:

"i gcás ina socraítear amhlaidh le dlí arna achtú de bhun an ailt seo, ach sin faoi chuimsiú aon eisceachtaí nó coinníollacha a shonrófar leis an dlí sin"

agus

I leathanach 7, líne 19, "unless provided for by law" a scriosadh agus an méid seo a leanas a chur ina ionad:

"where a law enacted pursuant to this section so provides, but subject to any exceptions or conditions specified by such law".

I move amendment No. 22:

In page 6, lines 9 and 10, to delete "mura ndéanfar socrú ina chomhair sin le dlí" and substitute the following:

"i gcás ina socraítear amhlaidh le dlí arna achtú de bhun an ailt seo, ach sin faoi chuimsiú aon eisceachtaí nó coinníollacha a shonrófar leis an dlí sin"

and

In page 6, line 19, to delete "unless provided for by law" and substitute the following:

"where a law enacted pursuant to this section so provides, but subject to any exceptions or conditions specified by such law".

The constitutional right that currently exists should be retained until a new law is enacted. The purpose of the amendment is to avoid any possibility that a number of children could be caught in limbo pending the enactment of new legislation. I accept that the current Act would be in place, but just in case a question should arise, this amendment would deal with the issue to the effect that the existing constitutional right would remain in place until the new legislation is given effect.

The other amendment has the same purpose.

I second the amendment.

One day I woke up at 5 a.m. and thought there could be an interregnum period of the kind alluded to by the Senator. I had a bad two hours thinking I had put my foot in it. A consoling phone call from my officials told me that the current law would continue and, therefore, the passage of the referendum would not create a limbo period. It is worthwhile to take a look at the way it is phrased. The provision states "unless provided for by law." If we phrased if differently and said that persons shall be Irish citizens only on foot of a law enacted on foot of this section, then one could have the nightmare scenario that gave me that momentary panic, that one could have a lacuna between the passage of the referendum and the passing of legislation.

I ask the Senator to accept from me that the situation now is that if the people vote in favour of this on 11 June and the President subsequently signs it into law, the amendment of the Constitution will take effect from that day and the law that exists on that day, the generous law we have at present, will continue in existence until such time as the new measures proposed by the Government, which are delimiting and restricting measures, come into effect. The existing statute law, which gives everybody born on the island of Ireland the entitlement to claim Irish citizenship, will keep going until such time as the two Houses in their wisdom choose to bring in measures, either in accordance with the Government's proposals or as the two Houses deem fit. There will not be a void which, in all honesty, for a couple of hours one morning I thought I had perhaps created.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasú a 23.
Amendment No. 23 not moved.
Glacfar an Bille chun an breithniú deiridh a dhéanamh air.
Bill received for final consideration.
Cuireadh an cheist: "Go rithfear an Bille anois."
Question proposed: "That the Bill do now pass."

I object to the Bill and I will vote against it for the reasons I outlined. As the Minister is aware, I agree, in principle, with the thrust of the Bill, but I must vote against it because of the way in which it has been dealt with.

Cuireadh an cheist.

Question put.
Rinne an Seanad vótáil: Tá, 28; Níl, 11.
The Seanad divided: Tá, 28; Níl, 11.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Coghlan, Paul.
  • Finucane, Michael.
  • McHugh, Joe.
  • Norris, David.
  • Phelan, John.
  • Ross, Shane.
  • Terry, Sheila.
  • Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Terry and Tuffy.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.