We have some concerns with the content of the legislation as well as the way in which the legislation has come before us today. We propose to delete Part 3. As a member of the justice committee, I know that when a waiver of pre-legislative scrutiny is requested of the committee, much discussion takes place on the merits of waiving pre-legislative scrutiny, as well as on whether something needs further scrutiny. Before this request was made in respect of the Bill, I dissented, as I nearly always do in relation to waiving pre-legislative scrutiny, which plays such an important and vital role in our democracy. It also ensures that we ground our policy and legislative decisions in evidence and with human rights compliance.
The first reason I dissented in relation to the waiver of pre-legislative scrutiny was in regard to another Part, which was to extend sentences for knife crime. We all know - and I think the Government would also admit - that increasing sentences does not actually reduce violence. There is no scientific evidence for that because violence breeds violence. Public health messaging from around the world is that increased sentencing does not decrease acts of violence.
When this Bill came before the justice committee, it did not contain this extremely important amendment. This amendment would have needed pre-legislative scrutiny all on its own. We would have needed to hear from witnesses and ensure that people would have an adequate amount of time to appeal and respond. We also would have needed a general discussion on what it means to be a citizen. We talk about national security, which is obviously paramount to protect the citizenry, but I ask the question: what is citizenship if we can grant it to people but then take it away? Not only can it potentially be revoked, but there was also no scrutiny of this Bill and this particular amendment to ensure people have everything they could possibly have to ensure that they could engage in the process in a fair and just way.
The amendment to the Irish Nationality and Citizenship Act was published a week ago. It has not been subject to pre-legislative scrutiny, nor has it been brought to either House for a Second Stage debate. This is a significant Bill with serious implications for tens of thousands of people who are naturalised citizens. I say it has serious implications for those tens of thousands of citizens, but this is not to imply that those citizens will be in a position where their citizenship will be revoked. However, there is a lack of understanding about the level of seriousness of something that has to happen within a State for revocation to even be considered. People can have many indiscretions in their lives, but they are never the sum of their worst mistakes. I understand that a panel will be in place to discuss whether it is warranted or not, but there has been no discussion in advance of the criteria under which the revocation of someone’s citizenship may be considered.
People can struggle throughout their lives. Even if they are born in Ireland, they can come into contact with the criminal justice system. This may be due to poverty, lack of housing, lack of other security or mental health issues. Many people come here for support, and they have different mental health issues such as trauma, lack of treatment, etc. Sometimes you can do something that brings you onto the radar of the justice system. How perfect a citizen do you have to be to ensure that your citizenship is protected in full? I do not think that is clear. People might feel quite worried if they have any sort of indiscretions, or even if there is any sort of criminal justice approach to them in relation to violence, minor convictions, etc., that they will be treated differently from every other citizen. They may worry that if they put a foot wrong to a degree that it comes to notice and may be progressed to revoking their citizenship. I am obviously not referring to this happening in everyday life, but certain things can go wrong in a person’s life and they may end up before the court system.
I am trying to understand what the urgency is. I do not think there is ever an imperative to skip standard parliamentary procedure, especially in relation to something that could have been brought in after the summer, even with the ruling. In the wake of the Supreme Court decision, Damache v. Minister for Justice, I still do not see the urgency to skip pre-legislative scrutiny, as well as Second Stage and Committee Stage in the Seanad in terms of the discussion on this Bill.
Regarding the procedure of revocation, the Supreme Court recognised in its judgment in Damache v. Minister for Justice the enormity of a decision to revoke citizenship. As such, it recommended that such decisions include fair procedure, due process and high standards of natural justice. Those high standards deserve discussion, such as about what those standards are and what that fair procedure is. However, we have not had that discussion. Taking this into account, there are massive problems with the timeframes for decisions that might be made under the new regime. The decision will solidify only 28 days from the point at which a person is contacted to inform them that their citizenship has been revoked. From this point, the person only has 14 days to appeal that decision under a committee of inquiry. These timeframes are unreasonable, and they are notably shorter than corresponding periods for someone to appeal a decision if they are refused naturalisation. There is a real concern that these proposed processes may not meet the standards of courts’ previous judgments.
There are also technical concerns with the procedures. Regarding the serving of notices of revocation, section 3(a)(4A)(2) states that notice may be sent to a person by electronic means “in a case in which the person is registered on an electronic interface, by leaving it on that electronic interface.”
To illustrate how problematic this is, let us consider what happens when someone registers for citizenship through an online portal. In some situations, such as where someone does not have a fixed abode, access to the online system every day or regular access to the Internet, there is a likelihood of their missing this notice in the first place. This could feasibly result in their citizenship being revoked without them knowing. The timelines then come into play. In a solid system, there would be a notification to someone but then there would be clarification that the person has received the notice. The process would kick in at that point. There are real questions around the practicalities and technicalities involved and how they could hinder someone being able to reply in adequate time. Someone could even leave the country for six weeks, only to return and discover that they are no longer a citizen.
Second, there are issues relating to the committee of inquiry. The membership is to be made up of a retired judge and two ordinary members, but it is left to the Minister to decide what experience or expertise is appropriate for the ordinary members. It is not clear if these committees will be ad hoc or sitting committees. That might be something the Minister will clarify. The Minister retains the power to set procedures, including if and when there will be oral hearings. There is a desperate need for a specific architecture around the appeals committee. If national security concerns are being used as a reason to revoke a person's citizenship, it is not clear whether the committee of inquiry will have access to the same information as the Minister. She may have touched on that in her opening statement. The Minister can simply inform the committee that there are national security concerns. Where does the relaying of national security concerns finish? Does it stay with the Department or is it shared with the committee? Is it just the individual who is subject to the revocation process who does not receive the national security information? Where does the flow of information end? I am reminded about the views of the Garda in respect of other legislation, such as, for example, sections of the Parole Act. Certain information can be kept from a person during a parole hearing and as he or she progresses through the criminal justice system. Is the structure similar in this case? Is there a section which states that the person who is potentially seeking to appeal the revocation decision does not have all the information held against them as the reasons for that revocation? If that is the case, how can an adequate appeal be developed?
I understand that an assessment may have to be made when it comes to national security as to whether the information held can be divulged to the individual involved. However, this does not allow for an individual to answer any of those concerns. Understanding the scenario may give a bit more insight into the information flow between the Minister, the committee and the individual of concern. I understand the need for sensitivity and discretion on issues of national security, but the ruling in AP v. the Minister for Justice and Equality is relevant here. AP applied for citizenship and was denied on the basis of national security concerns. In granting AP leave to appeal the decision, the Supreme Court stated that there was a need to put in place a mechanism whereby an independent assessment could be made in respect of privileged information relied on in refusing an application for naturalisation and to justify the extent that the disclosure should be required, provided it is done in a way which would not affect the State's interests. This is a fundamentally important point. If the committee does not have access to information when decisions relating to concerns around national security are made, there is no capacity for independent assessment. This calls into question the entire appeals process and it does not meet the standards set out in the court's judgment. Given the recognition of the enormity of revoking citizenship in the ruling relating to Damache v. the Minister for Justice, and that the ruling in AP v. the Minister for Justice and Equality considered an issue around applications for naturalisation rather than revocation, the legal standards for independent assessment of such information will be even higher in instances where citizenship is being revoked. It seems likely that decisions made under the new revocation regime will not withstand legal challenges.
Third, within the revocation process, there is the absence of any explicit safeguard against a person being made stateless. The Minister has given information on where that is referenced elsewhere but, as she said, we have international obligations in this regard in terms of the conventions she mentioned. Is there a need to refer to them in the context of statelessness in this legislation?
Fourth, there is an ongoing lack of clarity on the extremely low threshold for the Minister to initiate a revocation process that is not addressed by this amendment to the Irish Nationality and Citizenship Act. The threshold can be met if a citizen, through an overt act, fails in his or her duty or fidelity and loyalty to the State. In effect, this could be anything. Could criticism of the Government of the day be perceived as a fidelity issue? What is meant by an overt act in this regard? The Government's amendment offered a chance to address the vagueness of this aspect of the revocation process, but the Minister has not taken the chance to do that thus far.
The proposed revocation process could feasibly lead to a two-tier citizenship system. While natural-born citizens can never lose their citizenship, naturalised citizens may have their's revoked on vaguely defined grounds of fidelity and loyalty. This could result in their fundamental rights and freedoms of expression being significantly undermined. We are grateful to the Irish Human Rights and Equality Commission, the Irish Council for Civil Liberties and the Immigrant Council of Ireland for highlighting the vast swathe of issues with this legislation. As I said at the beginning of my contribution, the manner in which this legislation has progressed to the Oireachtas is highly unusual. The reasons for that should be clarified today. As we have already mentioned, there is good reason to believe this Bill would not stand up to legal challenges. It clearly does not address recommendations made in two separate Supreme Court judgments. We urge the Minister to delete this section.