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Seanad Éireann debate -
Wednesday, 17 Jul 2024

Vol. 302 No. 6

Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024: [Seanad Bill amended by the Dáil] Report and Final Stages

I welcome the Minister, Deputy McEntee. This is a Seanad Bill that has been amended by the Dáil. In accordance with Standing Order 148, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the printing and circulation of these amendments. The Minister will deal separately with the subject matter of each related group of amendments.

Senators have tabled one amendment, which arises from the changes made to the Bill by the Dáil. To avoid repetition, I propose that the amendments made by the Dáil and the related amendment tabled by the Senators be debated together in related groups. A decision on the amendment tabled by Senators will be taken when the discussion on all groups of amendments has concluded.

I have circulated the proposed groupings to the House. A Senator may contribute once on each grouping. I remind Members that the only matters that may be discussed are the subject matter of each grouping of amendments made by the Dáil and the amendment tabled that arises from the amendments made by the Dáil.

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

I call the Minister to discuss the subject matter of the amendments in group 1.

The amendments in this grouping are amendments Nos. 1, 3 and 4 and Seanad amendment No. 1.

Amendment No. 1 provides for a change to the Long Title to reflect the fact that the Irish Nationality and Citizenship Act 1956 is to be amended by the Bill.

Amendment No. 3 provides for changes to the Bill’s commencement provisions owing to the insertion of amendments on Committee Stage in Dáil Éireann.

Amendment No. 4 is a Government amendment, inserted on Committee Stage in the Dáil. It inserts a new section 4A in the 1956 Act and amends sections 19(2) and 19(3) of that Act. I am proposing the insertion of section 4A to allow for the electronic service of notices under the 1956 Act. This is in line with my Department’s modernisation goal of moving towards a more efficient delivery of service. The amendment mirrors similar amendments that were introduced last year to the International Protection Act 2015 and the Immigration Act 2004 by way of the Courts and Civil Law (Miscellaneous Provisions) Act to allow for electronic services of notice. As with other Acts, notices may only be served electronically where the person has provided his or her consent to that.

The amendment of sections 19(2) and 19(3) of the 1956 Act restores the power of the Minister for Justice to revoke certificates of naturalisation under that Act following the Supreme Court judgment in Damache v. Minister for Justice. This amendment provides those going through the revocation process with higher standards of protections and safeguards, thereby ensuring the new procedure is robust and fair. It must be noted that the circumstances in which certificates can be revoked under section 19(1) remain unchanged. This power is used extremely sparingly – fewer than ten times since 1956 – and the revocation of Irish citizenship is only undertaken in the most serious of circumstances. The loss of citizenship has serious consequences and each case is considered carefully. I assure Senators that, to date, this power has only been used in serious instances primarily related to the fraudulent acquisition of citizenship and, in some cases, terrorist activity. My Department has engaged extensively with the Attorney General’s office to develop a new procedure that is line with the Supreme Court’s findings on fair procedures.

I will outline how the process worked previously. Where a person was informed of the Minister’s intention to revoke his or her certification of naturalisation, he or she had a right to request a committee of inquiry to examine the Minister’s decision. The committee then reported its findings to the Minister. Crucially, though, the Minister was not obliged to accept the committee’s findings.

I will outline how the new procedure provides more robust safeguards, which is important. The Minister will first write to the person concerned where the Minister is considering the revocation of a certificate of naturalisation or citizenship. The Minister will provide the reason for the proposal, subject to national security limitations. I will revert to this point in a second. The person concerned will have 28 days to make representations to the Minister on foot of the notice. At this point, the Minister will make a decision on the revocation, taking into consideration the representations made, if any. The Minister will write to the person outlining the decision and the reason for it, subject to the same national security restrictions.

Where the Minister's decision is to revoke the certificate, the person will be entitled to request that the committee of inquiry examine the decision. The person will have 14 days to request that the committee be formed from the date on which the notice is deemed delivered. I wish to make clear why there is a shorter notice period. The person concerned only has to request that the committee be established at this point. The person does not have to provide reasons or representations at this stage.

The committee will be chaired by a retired judge of the Circuit Court, the High Court, the Court of Appeal or the Supreme Court and will have two ordinary members whom the Minister deems to have appropriate qualifications. The committee will operate independently of the Minister and will have the option of affirming or setting aside the decision of the Minister. In coming to this decision, the committee will hear from the Minister and the person concerned and may have regard to any other matters it deems relevant. The committee will notify the person and the Minister of its decision and provide the reasons for same, with similar restrictions in respect of national security concerns.

I am satisfied this new procedure meets the high standards of natural justice mandated by the Damache judgment. It provides more opportunities to be heard and ensures the committee's decision is binding on the Minister unlike the process that previously existed, under which a recommendation could be made to the Minister and the Minister could still decide to revoke a certificate even if the recommendation was to not do so.

I assure Senators that any decision to withhold information on national security grounds is not taken lightly. All facts will be fully considered by the Minister or the committee where national security considerations may apply. It is clear from the legislation that the Minister will have to provide the person in question with the grounds for revocation under section 19(1) and as much information as reasonably possible while working within the constraints of needing to protect national security. The committee of inquiry must have sufficient evidence before it to justify a decision to revoke citizenship. If there is information related to national security, the committee will be provided with that to allow it to make its decision. It will be in possession of all the relevant facts. There may be cases where certain information needs to be withheld from the person subject to the revocation proposal on national security grounds, but it is clear this information would have to be provided to the committee for it to perform its functions and make an informed decision.

The committee would then have another opportunity to consider the release of this information. Even if the Minister decided not to, the committee, on looking at the information, could make the decision to release that information as part of the procedure.

In taking into consideration the protection of the sources of information, it is important to balance the right to information with the need to maintain the security of the public and to prevent loss of life and other serious harms arising from terrorism.

I will briefly touch on the issues of statelessness also, which was raised in the debate in the Dáil. I want to be really clear that we have no intention of rendering people stateless. It is a matter of Government policy that people are not made stateless and that statelessness should be reduced. It is very rare full stop, not just in Ireland, but globally. We are a party to, and are very aware of our obligations under, the 1954 Convention relating to the Status of Stateless Persons, and also the 1961 Convention on the Reduction of Statelessness. I am very aware of the convention to which we are a party and, as a matter of policy, we do not make individuals stateless. Again, these are very rare circumstances. It has not happened to date in the very few cases have come forward. If a person were potentially to be rendered stateless, it could apply in terms of the decision here. In some instances, the reason for revocation of citizenship is to remove the person from the State if they pose a risk. If that is not possible in cases where there is nowhere for them to go, then they would not be removed from the State. All these issues have to be taken into consideration, but it is something we take very seriously under our obligations under the conventions of 1954 and 1961, which I mentioned.

I welcome the former Minister, Dick Roche, his wife, Eleanor, his friend, Dr. Gay Prendiville, and their grandchildren, Natalie, Conor, Sorcha, and Ronan. They are very welcome. I thank the former Minister, Dick Roche, for being here. He is looking very fit and I am glad to see him here.

Do any Members wish to comment on this grouping? I call Senator Ruane.

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.

Before I call Senator Clonan, I welcome Deputy Cahill and his guest to the Public Gallery.

I thank the Minister for coming along today. In regard to the first group of amendments, this is an oppressive and wholly inappropriate instrument. It does not just give rise to the risk of creating two categories of Irish citizenship, it de facto creates a two-tier Irish citizenship, and in doing so devalues the whole concept and value of Irish citizenship in the first place.

I share the concerns set out by Senator Ruane and those communicated to all of us in this House by the Irish Council for Civil Liberties, the Immigrant Council of Ireland and the Irish Human Rights and Equality Commission. The concerns are specifically focused around the proposed procedure for revocation, particularly the appeals procedure and the idea of there being an ad hoc committee deciding on a case-by-case basis whether a person's citizenship should be revoked. There is also the question of matters relating to national security.

By way of declaration, I wrote an expert report for the Director of Public Prosecutions in respect of the prosecution of Ali Damache prior to the decision to revoke his citizenship, so I have a keen understanding of both security concerns and national security concerns. In 2005, I went to Guantanamo Bay. I attended the commission's procedures on Guantanamo Bay where prisoners, euphemistically referred to as detainees, were brought before kangaroo courts. They had the appearance of courts. There was a stenographer and a man who was dressed up as a judge, a US Army colonel, who, I discovered on inquiring, had no legal qualifications whatsoever. They put to the detainees that they had sensitive security information about them, which was actually provided by other members of Islamist extremist groups, like al-Qaeda and so forth, and those prisoners were denied any access or knowledge of the sensitive security information that had been presented as part of the case against them.

The US military and judge advocate general would say that commission's process in Guantanamo Bay brought the United States and its procedures - the separation of the powers of state - into international disrepute and what is set out here and what is proposed by way of the procedures in revocation of citizenship of naturalised citizens and the appeal procedures is a cut and paste or a photocopy of those procedures. It is completely and totally-----

On a point of order-----

We are on grouping 1 now.

-----with great respect to my colleague, I do not think you could compare this legislation to the dreadful events in Guantanamo Bay. It is not a valid comparison.

I have just done so in an informed way.

Can we address the comments through the Chair?

I have just done it on an informed basis, on the basis of evidence that I have given you. I have been to Guantanamo Bay - I do not think Senator O'Reilly has - and I have read the legislation.

We do not accept anything that happens in Guantanamo Bay.

When you say "we", are you referring to the royal we?

This is not a comparable situation.

All right, thank you, Members. Please address your comments through the Chair and stay with the group 1 amendments.

I am talking about the procedures as set out. I am not comparing Dublin to Guantanamo Bay. For a start, the weather does not compare. However, the concept does. It creates a two-tier citizenship where naturalised citizens have diminished rights as compared with those of citizens by birth.

I will give another example. Shamima Begum, a 15-year-old girl from Bethnal Green in London, and a couple of her school friends went to Syria in 2015 as children. When they got there, she was married to a Belgian jihadist and then serially raped for three years. On the collapse of that caliphate, the British Government decided to revoke and strip her of her citizenship, claiming that she had Bangladeshi citizenship to avoid the accusation of rendering her stateless. Bangladesh had denied that she is a Bangladeshi citizen and she is now effectively stateless in a refugee camp in northern Syria. She has had threats against her life. I am not condoning her actions but her actions were carried out as a child, she was raped and she has been further victimised and placed at risk by being stateless as a result of an act of the British Government. However, somebody like Lisa Smith, a member of Óglaigh na hÉireann who swore an oath of allegiance to uphold the Constitution, travelled to Syria as an adult and knowingly participated in Islamic State's activities and lived in the-----

I advise the Member to be cautious and careful in the naming of people who are not here to be able to defend themselves.

It is a matter of public record that she was convicted of these offences in the courts.

I appreciate that but it is the etiquette of the House.

She could never be stripped of her citizenship because she is a citizen by birth. However, if she, like Shamima Begum, was a citizen by naturalisation, then she would have this double jeopardy of being on the one hand a child who was groomed and trafficked into the caliphate and then stripped of her citizenship as a further punishment. Everybody here, myself included, has constituents who are naturalised citizens. I would ask everybody in this House, are you really going to promote and support legislation that will render them with a second-class status as a citizen?

Think about how this House came into being. The 1916 Rising took place during some of the biggest offensives in the First World War - the battles of the Somme. Who fought them? It was the United States and the British army. Imagine if Éamon de Valera had been stripped of his US citizenship by participating in an armed insurrection against America's allies here in Dublin. What would have happened to Éamon de Valera if he had been stripped of his US citizenship for participating in what they would have described as a terrorist act at the height of the offensives on the Somme? I am sure Senator McDowell could tell us. He would have been executed. When you strip somebody of their citizenship, it is not just an administrative act; it is a punitive act. Why would this House support the idea of a punitive act against any of our citizenry? I draw no distinction between a fellow citizen by virtue of accident of birth or by virtue of naturalisation.

On this idea of fidelity to the State, I swore a solemn oath of allegiance to uphold the Constitution and to be loyal to the State as a commissioned officer. Last Sunday, if I had supported England in the finals, would I have been guilty of a failure in my fidelity and loyalty to the State? That is a facile facetious question but it begs the question, what precisely does that mean? For example, should all Members of the Oireachtas swear a solemn oath of allegiance to uphold the Constitution and to always and exclusively act in the public interest, and if a Minister was found to have acted in a manner that was not consistent with the public interest, they should be recused? That is what we are asking of citizens by virtue of naturalisation only. In the absence of an oath of allegiance to the Constitution, we have no definition whatsoever of what constitutes fidelity to the State. As was pointed out by Senator Ruane, does voicing criticism against public policy or participating in, for example, a demonstration in the city centre for the interests of an entity such as Kurdistan or Rafah mean you could be associated with something that was inimical to the interests of the State? At present, periodically we have convoys of cars being driven around Ireland by people of Russian origin who are naturalised Irish citizens and they sometimes protest in favour of Putin's criminal invasion of Ukraine. Should they be stripped of their citizenship for their lack of fidelity to the State and their outrageous and offensive views?

Many of the concerns raised by IHREC, by the Immigrant Council of Ireland and by the Irish Council for Civil Liberties are well founded. The Minister would never act outside of the public interest and would always act with absolute integrity, but how do we know in a future administration that might be the case? This carries with it the risk of being a very oppressive instrument in the wrong hands and it could be remedied if there had been sufficient pre-legislative scrutiny. It is being rushed. It is poorly drafted. It will de facto create a second tier of citizenship. Do those dynamics not sound similar to us? When questions like this are put to the public by way of referendum, we know the Irish public reject things that are poorly thought out. As a House, we have a duty. It behoves us to robustly challenge this legislation.

I ask the Minister to consider it. The five categories are the ad hoc nature of the proposed procedures for revocation and the procedures for appeal. For example, it may be chaired by a retired judge and two ordinary members. The Minister has discretion over who is appointed and absolute discretion in the architecture of that appeals procedure. That is inappropriate.

On the absence of safeguards against statelessness, the Minister may decide to revoke citizenship here or strip somebody of their Irish citizenship on the basis they might have Syrian citizenship or they might previously have had Russian citizenship or what have you, but that could be a death sentence to return them to those jurisdictions. While the Minister says it would never be the intention of the State to render somebody stateless, as in the case of Shamima Begum, it would in effect lead to that impact on a person.

On concerns relating to existing grounds for revocation, I have rehearsed that. I agree that, where someone's citizenship is obtained through fraud or where a person has failed to meet the necessary residency requirements, it should be open to revocation, but where a person has failed in their duty of fidelity to the State is not only a vague but a bizarre assertion. It comes from the 1950s and that is where it belongs.

That idea does not belong in the 21st century. It is also highly problematic where the citizen concerned is also a citizen of a country with which Ireland is at war. We are aware of very publicised cases of what happened to German and Japanese citizens who found themselves in the United States and could not return to those jurisdictions. In most cases, having their citizenship revoked would effectively have been a death sentence.

I agree with Senator Ruane that this Bill risks the perception of two-tier citizenship. It would de facto create two tiers of citizenship status. A former member of Óglaigh na hÉireann who, by accident of birth, is an Irish citizen could do whatever the hell he or she wants and commit the most egregious of crimes without the risk of losing citizenship whereas every person in this country who is here by way of naturalisation would constantly be in fear and have at the back of their mind the question of what fidelity to the State constitutes and whether they could lose their citizenship.

I remind all Members of the House that we are to conclude this debate at 3.30 p.m. I ask Senators to keep their contributions brief so that we can let in as many people as possible.

Everything has already been said by people who are much more informed about this matter and much more eloquent than I am but I will highlight some of the things that have been brought up with those of us in the Labour grouping by the ICCL, the Immigrant Council of Ireland, Nasc, IHREC and a number of other organisations that have expressed fair concerns about the legislation and about whether the limited time available for scrutiny of the Bill and related amendments allows us to have the constitutionally compliant safeguards it is our duty to build into legislation. The Bill was only published on 9 July, a week ago. That is an extremely tight turnaround. My Labour Party colleague, Deputy Ivana Bacik, has spoken about our concerns as to the lack of adequate time and opportunity for appropriate scrutiny. We must think about the size of the Bill and its potential impact. It is a significant change to legislation that has been around since 1956. It seems extraordinary that there would be no pre-legislative scrutiny and there have been quite limited opportunities to engage on the Bill.

Some of the issues that have been raised with us relate to the ongoing lack of clarity as to the appropriate threshold for the Minister to initiate a revocation process, concerns that the legislation could facilitate the use of revocation in circumstances where it is not warranted, the term "insufficient fidelity to the State" and not having to disclose why revocation is proposed. There are also concerns as to the potential use a future Minister might make of this provision. The Minister has said this has been used less than ten times - I believe it was only eight times - up until now, which is right and proper but we have to look forward and future-proof the legislation. Another issue that has been raised with us is the level of independence afforded to the committee on inquiry and the control the Minister has over the establishment of the committee, filling positions on it and prescribing its procedures, including the circumstances in which an oral hearing can be heard. There are also concerns as to the extent to which procedural safeguards can be circumscribed when issues of national security are raised, such as the exception to the requirement to provide reasons under the proposed section 3(b)(1O).

I will not go around and around again. Most of what I have to raise has been said but we have deep concerns and I echo the concerns raised by the previous two speakers and those raised by my colleague, Deputy Ivana Bacik, as to the insufficient time allowed for us to examine the Bill. It is a very significant change and it is important that we look to the future and to what future Ministers could potentially do with the provision. I do not know whether we have given due diligence to that in this House.

I welcome the guests of Deputy Ivana Bacik from the National Print Museum who are in the Gallery today.

There are many points I wanted to make on this Bill but, given that it is very important that we get to vote against this highly problematic addition to legislation, I will keep them very brief. Others have gone through the many problems with how this is supposed to operate in great detail. These problems range from the fact that people may be sent a message on a website to the highly opaque qualities of the committee that is to decide on this life-changing and immensely important issue and the fact that, other than the Minister's stated intent, there are no clear measures to prevent the creation of statelessness. To be clear, the State is required to have measures to ensure that statelessness is not created.

This comes back to a fundamental point. Senator Clonan is right; this creates two-tier citizenship. Fundamentally, if you are a citizen, you should be a citizen. That is particularly important in a republic because republics are based on the idea of all citizens coming together. Republics are meant to be built on the principle of equality, which is quite different from what certain other states are built on. We cannot have a situation in which not all of the citizens of a republic are fundamentally equal. We could also talk about the tests in respect of the acquisition of citizenship and naturalisation, including the test prescribed in AP v. Minister for Justice and others. There are discussions in that regard but, fundamentally, once you have acquired citizenship, you need to be a citizen on an equal basis. Otherwise, it does not work as an equal republic and it is bad for democracy. I have seen situations in other places where migrants who have become citizens live in fear. They do not know if they can go to a political protest or criticise a policy. They are at risk of abuse as somebody with secure citizenship can be in a position of power over those who have the risk of their citizenship being revoked hanging over them. It creates the same kinds of abuses of power we have seen and had to tackle in many other areas, although now it is happening between citizens.

Although I note it is the Government that is currently breaking the law in the area of migration because it is failing to comply with the court judgments against it in that regard, where an individual citizen commits a crime, we have a courts system to prosecute, penalise and punish that person. We are now talking about something different that does not even apply only to criminal acts but to fidelity in a wider sense. We are not using the Offences Against the State Act. If an action is really serious, we should look to that Act. Let us tie it to something serious and concrete and talk about what it means to offend against the State as a whole. Instead, it is a question of fidelity. That is deeply authoritarian language, particularly for a Government that has blurred the line between state and government. People constantly see "Government of Ireland" strapped to public services provided by the State. There is a real question here. Do you show a lack of fidelity if you do not step forward to cheerlead for the State or if you believe that Ireland has a public policy that is wrong? Whether or not that is how the State interprets it, that potential for authoritarianism sends an intimidatory message to many citizens across the State. It creates a culture of fear.

It is fundamental that we do not move forward with this very poorly designed and badly scrutinised proposal. Others have outlined the technical details but it is fundamentally something that will be bad for everyone in this State and bad for us as a republic.

This legislation is being rushed through. It is wrong in principle to bring a Bill to Dáil Éireann to deal with adding new judges, tinkering with the firearms Act and so on and to then throw into it an entirely new provision on the revocation of citizenship. It is wrong in principle to attempt to do that. Whatever urgency there is in dealing with the Damache case, that urgency has existed since the decision was given and it could have been dealt with separately.

The second thing is the provisions of the Bill are highly suspect from the point of view that the committee being established is not sufficiently independent and demonstrated to be independent of the Minister. The idea that the Minister of the day - and I have been Minister - can just choose four people and a retired judge and pop them into a room to deal with this is not what we should be doing on a matter of this importance. It should not be totally reserved for the courts and there should be circumstances in which the revocation of citizenship can take place in a different way. Citizenship fraudulently obtained should be immediately liable to be reversed. I do not think anybody would have a problem with that proposition but I do not think this is right at all. There is not even a guarantee of legal aid for a person who will have their citizenship investigated.

The phrase "fidelity to the State" is an odd abstraction from Article 9 of the Constitution, which refers to "Fidelity to the nation and loyalty to the State". It is a vague charge to make against anybody that they have demonstrated a lack of fidelity to the State. I am deeply worried about that.

The statelessness issue is the least of my worries because if somebody has obtained citizenship by fraudulent means, that cannot really say they would be stateless without the fruits of their fraud. That is not a significant issue. Thousands of people have obtained a certificate of naturalisation. To tell them that they have a question mark over their citizenship by virtue of a criterion such as lack of fidelity to the State, and that a Minister could convene a committee to uphold or revoke the his or her decision, seems a very strange law to bring in. If this was not being rushed through, I do not think anybody would have said this was the best way to deal with it. Although there is judicial review available to everyone, the time limit provided for is that when the committee decides the citizenship has been revoked, the person has two or three days in which to get out of the country or challenge it. That is pretty horrific because the citizenship stands revoked.

I like to be constructive and supportive of a Department of which I was once Minister but this Bill is being railroaded through, having been mutated beyond recognition when going through the Dáil. It asks us to make far-reaching constitutional decisions about the future and status of people who have been naturalised in circumstances where we should not be asked to do that. Therefore, I have to oppose the Bill.

I thank the Senators for their points. It is clear this is not a new law that, de facto, will suddenly create a two-tier system or different system. This is a law that has existed since 1956. It is already there and has been used sparingly. As we have heard, it has been used eight times. It is not thrown about willy-nilly.

It was challenged and we know the Damache outcome. It was clear from that decision that the Supreme Court did not challenge the availability of this law to a Minister, nor did it challenge the criteria or reasons for a person's citizenship being revoked. It said we needed to put in place greater safeguards for the individuals at the heart of it. It set out clearly there was no issue with the process but was about making sure there are more safeguards in place for the individuals in question. That is exactly what is being done here. The committee at the moment can make a recommendation and the Minister does not have to take that on board. We are saying in this that the committee, having all the facts available to it - I remind Senator Ruane that this would include security information - could decide if it would provide that information to the individual. Provision has to be made for the fact that providing information to a person who might be a security risk could put other people at risk or alert other individuals in a similar situation. We cannot have that scenario so the committee will have the information and can decide whether to provide that to the individual. Those measures have to be there.

It was suggested that a judge, whether a former High Court judge, a Circuit Court judge or president of a court, would not be independent. We have just passed a Bill to ensure any judge who is appointed is appointed by an independent process. The Minister has the support of the Judicial Appointments Commission and the committee to make sure our judges continue to be independent. Any person appointed to work with the people on the committee will, I have no doubt, uphold and take this role extremely seriously, as they would be required to do.

Electronic means is only by consent. Senator Ruane made a point about someone of no fixed abode who had a phone. Most people have phones and that is the way they would be able to receive information. It is only if a person consents to receiving information electronically that it can be provided to them. As a matter of policy, something as serious as this would not be done via e-mail alone. There would be further engagement, whether a letter or in person. If a person asks for electronic communication, it is important we can provide it.

There was a suggestion this is like a kangaroo court or Guantanamo Bay. We are talking about judges and a system where there is an opportunity for somebody to appeal through judicial review. The fact the Damache case was taken on foot of judicial review shows how our system works in upholding the rule of law and protecting individual rights because the outcome of that case is that we need to strengthen the rights of individuals here. The Constitution provides for the loss of citizenship to be governed by law. Article 9.1.2° provides that: "The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law." The Constitution also states:

All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

I appreciate that is older language. At citizenship ceremonies where people declare fidelity to the State and loyalty to the nation, this is something conferred on an individual. It is not a right for anybody not naturally born in a country. If I as a citizen of Ireland went to the US or another country, obtained citizenship fraudulently or otherwise and was part of a terrorist organisation where my focus was to take part in a terrorist event, I do not think anybody would suggest I should not face any repercussions or that my citizenship could not be revoked. Where this privilege is bestowed on people, it is revoked in only the most serious of circumstances. Much of the discussion I have heard outside of this Chamber has been about where a person commits crimes. I do not think supporting England in the final on Sunday is along those lines. I know Senator Clonan was being satirical, but we are not talking about minimal crimes. We are talking about where somebody is a serious risk or threat to the State and that information is provided to the Minister through the gardaí, the Defence Forces or the institutions of the State and separately confirmed through that independent body and process. That ruling is given to the Minister and he or she must adhere to that. We are future-proofing a process so that it is more focused on human rights and ensuring any individual has access to that independent process.

I do not mean to trivialise this because revoking anybody's citizenship is a serious matter. For the most part, this is a response to a ruling. I appreciate that any miscellaneous Bill tends to come at the end of term. There are individual laws that need to be changed and do not fit into any one large Bill.

Bringing them all together usually happens at the end of the term and there is often a challenge with the time. This particular piece and this particular amendment have been worked through by my Department. We have engaged with the Attorney General on it. It has been moved to make sure that we can respond to the 2020 ruling and not have it go on for another year or two, potentially, whenever there might be another miscellaneous provisions Bill. I reiterate that this does not create a two-tier system. Citizenship is bestowed on people and for 99.9% of people that is a really important time in their lives and something that will never be abused. However, where a person abuses that to the extent I have mentioned, there has to be a mechanism for a Minister to revoke citizenship. What we are doing is making sure that the safeguards are there in response to the Damache ruling.

As it is now 3.30 p.m. I am required to put the following question in accordance with the Order of the Seanad of 15 July 2024. That amendment No. 1 is hereby negatived, Fourth Stage is hereby completed and the Bill is hereby received for final consideration and the Bill is hereby passed. Is that agreed? It is not agreed.

Question put:
The Seanad divided: Tá, 21; Níl, 9.

  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Conway, Martin.
  • Crowe, Ollie.
  • Currie, Emer.
  • Daly, Mark.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Reilly, Joe.
  • Seery Kearney, Mary.

Níl

  • Boyhan, Victor.
  • Clonan, Tom.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Ruane, Lynn.
  • Sherlock, Marie.
  • Wall, Mark.
Tellers: Tá, Senators Robbie Gallagher and Joe O'Reilly; Níl, Senators Lynn Ruane and Alice-Mary Higgins.
Question declared carried.
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