At the outset I would like to say that the Fianna Fáil Party support the principle that British citizens resident in Ireland should have the legal right to vote in Dáil Éireann election. The House will recall that the leader of the Fianna Fáil Party, Deputy Haughey then Taoiseach, informed the British Prime Minister, Mrs. Thatcher, at their Summit meeting in 1980 that he would agree to reciprocate the voting rights enjoyed by Irish citizens in British parliamentary elections by the extension of the same rights to British citizens living in Ireland. The Fianna Fáil Party, therefore, welcome this Bill inasmuch as it fulfils the commitment of the leader of our party. We in Fianna Fáil recognise that the British citizens who have settled in Ireland have made a valuable contribution to the social and economic development of the State and believe that they should now enjoy the same voting rights as Irish citizens living in Britain.
However, in considering why and how it should be done and how it is being done, many questions arise. In considering why we should extend voting rights to British citizens, we might usefully look back at the background to the voting rights enjoyed by the Irish in Britain. It is not for any brotherly love of thy neighbour that the Irish are allowed to vote in British parliamentary elections to this day. In the United Kingdom, foreigners — or aliens as they are known in British law — have been debarred for centuries from voting in elections for the House of Commons or from sitting as members of the House. An alien is disqualified, both at common law and by statute. As far back as 1698, the unaminous vote of the House of Commons debarred aliens from voting in elections or sitting as members. This is the law to the present day, where their right to vote or sit as members of the House of Commons is debarred by statute.
Traditionally, the policy reasons for excluding foreigners, or aliens, from having voting rights in the United Kingdom is to restrict the influence of foreigners in their national affairs. Prior to 1922 no question could have arisen, as far as the British were concerned, as to whether an Irishman was a foreigner or an alien because of the colonial status of Ireland. Even after 1922, this question again could not arise because of the legal status of Ireland as one of His Majesty's dominions. Between 1922 and the passing of the Republic of Ireland Act, 1949, the State was, in British law, as much a part of British territory for the purpose of nationality law as the United Kingdom itself. Since 1949, citizens of Ireland are not, in British law, aliens or foreigners and Ireland is not a foreign country. The British Parliament in all relevant enactments has steadfastly refused to recognise, or avoided recognising the state of, as British statute law describes it, the Republic of Ireland as a foreign country. While the statute law in Britain recognises the citizens of the Republic of Ireland or citizens of Eire, as a distinct group or classification, they are still not aliens or foreigners for the purposes of British nationality law, or electoral law.
Have the Government considered these matters and the reasons for the decisions which they have taken with regard to them? I would also like to know if the position of Irish citizens born in the Republic and living in the Six Counties, Northern Ireland, is concerned here. At present they can vote in Westminister elections, in European and local elections but not in parliamentary Stormont or Assembly elections. Therefore, the situation in Northern Ireland is different from that in Britain, where there are no such restrictions. Have the Government had discussions with the British on these matters and if so, what has been the outcome?
The Bill, in its terms, does not simply seek to grant a right to British citizens to vote in Dáil elections but rather entitles them to be registered as Dáil electors in the constituency in which they reside. Therefore a British citizen who is registered as a Dáil elector will be entitled to vote in Dáil elections, in presidential elections and at referenda on amendments to the Irish Constitution. The Minister referred to the voting rights being granted on a reciprocal basis. However, the right to vote in the election of a Head of State is obviously not reciprocal because, of course, the electorate of Britain have no say in who becomes their Head of State. Similarly, while British citizens will have a right to vote on amendments to the basic law of the State at constitutional referenda, there is no corresponding right to Irish citizens in the United Kingdom. Therefore Irish citizens in the United Kingdom have no say, directly or indirectly, in the membership of their Upper House, the House of Lords.
Of course, the status of Irish citizens in the United Kingdom was never governed by any consideration of reciprocity since it stems directly from the colonial status of the country over centuries and even as part of His Majesty's dominions until 1948. Coupled with this political status, there were undoubtedly socio-economic considerations where, for example, Ireland was always considered part of the United Kingdom labour market and treated, indeed, as a source of cheap labour, which also helped to keep down the price of labour in the United Kingdom. The large number of settled Irish communities in the United Kingdom at the time when we pulled out of the Commonwealth made it impracticable as well as politically impossible for the United Kingdom Government to treat Irish citizens as foreigners or aliens for the purpose of the electoral law, or indeed otherwise. For these and many other reasons of self-interest, Irish citizens retain the right and have it to this day, not because the UK Government has given the right to foreigners, but, as pointed out, because it refuses to acknowledge Irish citizens as foreigners, or Ireland, indeed as a foreign country.
Because Ireland and its people have been considered, in British minds and British law, as a vassal state and its denizens accordingly allowed to vote, there is the danger that the proposed Bill will be seen as an acknowledgement on our part of that status by singling out British citizens only as being entitled to receive allegedly reciprocal rights under our electoral law.
Has the Minister given consideration to the extension of voting rights to all foreigners living here? Indeed, a case for granting foreigners resident here a right to vote could be approached in two ways, firstly on the ground that it would be just to do so in respect of foreigners who have been resident here for a specified number of years and paying taxes or, secondly, that we should grant reciprocal rights to the nationals of a foreign country in which Irish citizens have the same rights. Neither approach would justify the passing of a Bill confining the right to vote to British citizens by legislative enactment. Neither approach would justify in principle a singling out of Britain from all nations of the world as a country which should be given special status by legislation in this context. Certainly, one could justify confining such legislative reform so as to affect EEC countries and their nationals only. On the basis of the first approach, the legislative reform would involve simply giving voting rights to nationals of all EEC countries resident in Ireland for a minimum number of years or simply resident in the country without any such qualifications.
If voting rights are to be granted on a reciprocal basis, then such legislation should provide that citizens of any member state of the European Community may be granted reciprocal voting rights in parliamentary elections where Irish citizens have substantially corresponding rights to vote in the parliamentary elections of that State. The actual application of the Bill to the citizens of an individual State resident in Ireland could be left to ministerial order. Once the Minister was satisfied that Irish citizens had voting rights in parliamentary elections of a member state as referred to in the Act, he would be empowered to make an order applying the provisions of the Act to citizens of that State who are resident in Ireland so as to enable them to be registered as electors for Dáil Éireann elections only. Such an order would be laid before both Houses of the Oireachtas and come into effect within a specified time unless annulled by a resolution in one or both Houses.
Has the Minister given any consideration to these points, and, if so, would he explain to the House why they have been rejected? The House is entitled to know the Government's views on these matters before agreeing to the selective proposals contained in this Bill. Also we in Fianna Fáil are anxious to have a very firm assurance from the Minister on the constitutionality of the proposal before the House. The Minister stated in his opening address that he believes that the Bill is compatible with the Irish Constitution. There remains a very large question mark as to whether that belief will, in fact, stand up in law.
Article 16 of the Constitution provides that every citizen who has reached the age of 18 years and who is not disqualified by law and complies with the provisions of law relating to the election of Members of Dáil Éireann shall have the right to vote in an election for membership of Dáil Éireann. Article 16 further provides that "subject to the foregoing provisions of this Article" elections for membership of Dáil Éireann shall be regulated in accordance with law.
Article 12 of the Constitution provides that "Every citizen who has a right to vote at an election for members of Dáil Éireann shall have the right to vote at an election for President". The Article goes on further to provide that "Subject to the provisions of this Article elections for the Office of President shall be regulated by law".
Again, Article 47 provides that "Every citizen who has a right to vote at an election for members of Dáil Éireann shall have the right to vote at a Referendum". The Article further provides that "subject to the aforesaid, the Referendum shall be regulated by law".
The question must arise as to whether the proposed Bill in granting, inter alia, voting rights would be considered invalid, having regard to the provisions of the Constitution.
It is not proposed to deal here at length with all the considerations that arise in connection with this issue. The net issue is whether the relevant provisions of the Constitution simply guarantee voting rights in question to citizens so as to prevent them being taken away or qualified by legislation while, at the same time, leaving it open to the Oireachtas to make provision by law for the granting of the same or similar voting rights to non-citizens, or whether the Constitution envisages that such voting rights are confined to citizens and citizens alone. That is the kernel of the issue to which the Minister has referred.
It certainly can be said that the relevant Articles of the Constitution recite the right of the citizen to vote and then go on to provide that, subject to the provision in question, the elections or voting shall be regulated by law. It is clear that in each case the only discretion given to the Legislature is to regulate elections or, in the case of a Referendum, to regulate it.
Regulating elections for the Dáil or the Presidency does not, in my view, mean regulating who may or who may not vote, but rather the manner in which votes are cast. The right to regulate is specifically subject to the preceding provisions of the relevant Article, including the provision creating the right of the citizen to vote. It certainly can be argued — and I think the Minister will agree — that if the Constitution intended that the Legislature should have the power to extend voting rights, there would have been specific provision for doing so, for example, providing that "subject to the foregoing provisions of this Article . . . the right to vote shall be determined by law". The Constitution did not say that.
In other Articles where specific rights or duties are created, there is provision for additional powers to be conferred by law, as for example, in the case of the President where Article 13.10 provides: "Subject to this Constitution, additional powers and functions may be conferred on the President by law". Again, while the right of pardon and the power of punishment is vested in the President, the Constitution specifically provides that the power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.
Again, Article 33 which sets out the powers and duties of the Comptroller and Auditor-General, concludes by saying: "Subject to the foregoing, the terms and conditions of the office of Comptroller and Auditor-General shall be determined by law". The Attorney General has such duties as are conferred on him by the Constitution and by law. In short, where the Constitution envisaged that rights or duties could be extended, it specifically provided for this.
The comments I made are made in passing at this stage. The Fianna Fáil Party are anxious that full consideration should be given to the serious implications contained in the Bill before we move on to Committee Stage. I am putting forward these points for general discussion and consideration before final decisions are made by the Dáil on the adoption of the Bill. As I said at the outset, we favour in principle this extension, but we question whether it is being done in the correct manner by the Government. There is a strong possibility that it might be challenged.
For the present it is sufficient to say that, in my view, there is a serious and substantial doubt as to the validity of the Bill if it is passed. It is likely to attract constitutional challenge from any one of a number of quarters, even if it is accepted by all the major political parties in the Dáil. Such proceedings obviously could be launched at any time after the Bill has become law. This could occur in sufficient proximity to a general election so that there could be widespread uncertainty before, during and in the aftermath of a general election as to the validity of the election, with all the consequences that would have.
While one cannot say with certainty that the Bill would be held to be unconstitutional, one can certainly argue that it is a strong possibility. It is one, therefore, which if not withdrawn should at the very least be referred by the President under Article 26 to the Supreme Court. The Minister made reference to that, and we would support reference to the President to have the Bill tested on constitutionality grounds. We feel very strongly about this.
It will be recalled that an amendment to the Constitution was introduced and passed in order to give votes to citizens from the age of 18 years instead of the previous provision of 21 years. Any argument that can be advanced to say that the Electoral Bill does not conflict with the Constitution could have equally applied to a Bill extending voting rights to persons of 18 years and upwards, and thus have rendered unnecessary the holding of a Constitutional Referendum. I was Minister at that time, and the view was expressed by some individuals that an amendment of the Constitution at that time was not necessary, since the right of 18 year olds to vote could be introduced by legislation. We did not act on that view and we proceeded to hold a Referendum to alter the Constitution with regard to the voting age.
I was Minister for Local Government at the time and I well recall the debate and consideration given. We took the course which we thought was the correct one, that it was necessary to have a Referendum to change the Constitution to do what we did. It is not that we do not wish to agree with this Bill or what is in it, but we are concerned that somebody may decide to take a constitutional case and bring the Bill to nought and cause havoc at the time of a general election. The whole thing could be over and then declared null and void. Neither side in this House wants to see that happening. It is essential that we tread very warily and very carefully about putting this Bill on the Statute Book.
Finally, I should like to query the reference in section 1 to a British statute and also the reference to a British citizen which is a designation defined in British law. I may have more to say about this on Committee Stage. I do not want to delay the House on it now. Would it not be better to extend voting rights to citizens of the United Kingdom? More about that on Committee Stage. We should not give special statutory definition to the term "British citizen" by reference to a British statute which may be altered. I understand that at the last general election in Britain the SDP, the Liberal Party and Labour Party all had it in their election manifestos that they wanted to alter the Nationality Act in Britain. If it is altered in the future I should like to pose the question: What will happen to the Irish legislation? Will we have to introduce further legislation to amend this Electoral Bill which makes reference to that statute?
Our main concern is the constitutionality of the Bill, and I am asking the Minister to give the House very definite assurances before we proceed to Committee Stage.