I am glad we have a new Minister for Justice, Equality and Law Reform in the person of Deputy Coughlan.
Twenty-seventh Amendment of the Constitution Bill 2004: Committee Stage (Resumed).
There could be a problem with such an appointment, as I am married to a member of the Garda Síochána.
Has the Government given up at this stage?
I apologise for being late. I thought the Bill was to resume at 3.50 p.m.
I welcome the Minister of State, Deputy Brian Lenihan. However, the Minister for Justice, Equality and Law Reform remained with us for less than one hour of this debate. More pressing business required his attention. The same is true of the Second Stage debate when he was scarcely present in the House. This is a debate on the Constitution and I would have expected that the Minister would be here for the entire debate. If this matter is to be rushed through this House and he thinks it is so important, the least he can do is grace us with his presence. It is not good enough that the Minister can hop in for a while and then disappear for the rest of the day as though this is not an important issue. The reason we are in this Chamber is that this is a constitutional amendment Bill, otherwise we would be dealing with it in committee. Since we are in this Chamber we expect the Minister to be here to address the issues we raise.
I want to flag my extreme disappointment and objections to the manner in which the Minister is handling this debate. About three quarters of an hour is all the time he spent with us, and that certainly is not good enough. We should amend Standing Orders to ensure that when a constitutional amendment Bill is before the House the Minister responsible sees through the entire debate. It is not as though we will be here all day, although we will be here for a large part of it, but we will not be dealing with this Bill all week. We have six hours maximum to deal with Committee Stage, fewer than two hours to deal with Report Stage and we do not know if the Minister will be here for that debate tomorrow.
I strongly register my protest. I would have expected that the Minister would be here for the entirety of this debate but I presume we will not see him for the rest of day. Will the Minister of State, Deputy Brian Lenihan, indicate whether we will have the benefit of the wisdom of the Minister for Justice, Equality and Law Reform at some stage in the course of today's proceedings. Will the Minister of State clarify that before we proceed further. I note Deputy Jim O'Keeffe also wishes to speak on this matter.
I have the highest regard and respect for the Minister of State, Deputy Brian Lenihan, but it is unsatisfactory that a quarter of the way through Committee Stage of the Bill——
One sixth of the way through it.
——the Minister for Justice, Equality and Law Reform absented himself. We were engaged in an intense debate on a particular point. The difficulty about this debate is that each issue requires intense debate and even each word needs to be teased out, parsed and analysed because a word inserted, removed or inserted in the wrong place can result in an unintended legal interpretation.
I will give an example of that. The wording of the famous abortion referendum 20 years go, pushed like mad by people who were anti-abortion, led to the opposite outcome. The Minister of State, Deputy Brian Lenihan, is well aware of the background to that. He was party to the situation that led to the diffusing of that issue. He had hearings before the all-party committee, of which I was glad to be a member, and they led to the issue being calmly and reflectively debated. This is what we wanted to happen in this case.
I raised a number of issues with the Minister, Deputy McDowell, this morning. We had not concluded on the amendment with which we were dealing. It is ridiculous and a waste of Oireachtas time to have to cover the entire ground again. I register my protest. There may be pressing reasons for the Minister's absence and if there are, I can understand that — it can happen to anyone — but we did not rush this debate. That was done by the Government and, in particular, the Minister. He was up bright and early this morning challenging the Human Rights Commission without giving its representatives the opportunity to make their case. That is part of the unsatisfactory process relating to this entire debate.
As long as it is the media, the Minister has no problem finding time, but he cannot find time for a debate in this House.
Perhaps because of the nature of the exchanges that take place in this House we lose sight of the fact that this is a Government Bill and it has been collectively decided upon by the Government.
Virtually all Bills are Government Bills.
Virtually all of them are.
This is a constitutional amendment Bill.
Yes, but it is a Government Bill. It is a proposal which has the collective authority of the Government behind it. That is why a Minister or a Minister of State is fully in a position to explain this measure to the House. The Minister for Justice, Equality and Law Reform, Deputy McDowell, will not be present, as I understand it, for the section of this Committee Stage which will continue until Private Members' time. I am a Minister of State at the Department of Justice, Equality and Reform and I believe that the other Minister of State at the Department will take Committee Stage after Private Members' time.
The Minister of State must be joking.
This is a disgrace. That will mean that three Ministers in the one day——
In the one Department.
——will take Committee Stage of this Bill. The Minister could not be here for more than one hour.
The other matters Deputy O'Keeffe raised were Second Stage points. We should deal here with——
Having welcomed the Minister of State and having great respect for his ability, and perhaps his taking over from the Minister for Justice, Equality and Law Reform is a sign of things to come, at least in the short term up to the next general election. Does the Minister of State feel compromised in handling this debate in a situation where the progress report which bears his name sets out the guidelines for running a referendum and every one of them has been trampled on by the Minister, Deputy McDowell? Does the Minister of State, Deputy Brian Lenihan, feel awfully compromised to be foisted into the debate at this stage apparently only as a temporary substitute? It is like a blood injury on the rugby field. He is on while the Minister is out for blood.
The Minister is in the sin bin.
That is more likely the case. My colleague, Deputy Costello, has summed it up correctly. If the Minister is not in the sin bin, that is where he should be.
I remind Members that they are here to address the amendments. We have coupled with amendment No. 20, amendments Nos. 10 to 14, inclusive, and amendments Nos. 21 to 23, inclusive, and I would like Members to address them.
Before the Minister left at 1.30 p.m. he intervened to tell us that he intended to go off and that he would not be back after 1.30 p.m. We were outraged by that. We have now heard that not only will we have this Minister of State for the next three hours but that we will have another Minister of State for the remaining portion of the debate up to 10.30 p.m. The Committee Stage debate is being divided between three Ministers. That is totally unsatisfactory when we need to tease out the wording of the Bill. This is a short Bill and we are going through it line by line. It is a constitutional amendment Bill to provide for a referendum. As Deputy O'Keeffe said, a good deal depends on the wording of the Bill. If we do not get the wording right, the thrust of the intent behind the Bill could fall apart. We deserve an apology from the Minister for Justice, Equality and Law Reform.
Parliament deserves an apology for the way he has treated us. We are in this Chamber for a specific purpose because this is such an important issue. It is a constitutional amendment Bill and therefore it should be treated with respect. The Minister has not treated us with respect. I do not mind whether this Bill has the collective authority of the Government to put it through, but the Minister of State should not forget that there is an Opposition here which has a responsibility. It is our amendments, not Government amendments, that are before the House. We expect respect and the debate on those amendments deserves a decent hearing.
I call the Minister of State to address this issue and then I will move on to consideration of the amendments.
I should make it clear to the House, because of the nature of what has been said about the Minister for Justice, Equality and Law Reform this afternoon, that he is in Brussels chairing the relevant European Union Committee on Justice and Home Affairs.
Then why did he not set another day to deal with Committee Stage?
Deputies are well aware that the European Union Presidency in progress.
The Minister should have deferred this debate until after that meeting.
Ministers have been assigned to take this debate. The Minister discussed these amendments in great detail——
——with his officials and his Ministers of State. In regard to the constant cry about all-party agreement, we thought we had all-party agreement because the then leader of Deputy Costello's party requested this amendment when the Good Friday Agreement was concluded.
That is not true.
The correspondence is clear. With regard to what Deputy O'Keeffe said, on the principle——
That is absolutely untrue. I ask the Minister of State to withdraw that remark.
I will not withdraw that remark.
The former leader of my party will be in this House——
He suggested that.
He did not. He will be in this House to address that issue. That is an outrageous statement to make.
From the correspondence I have seen——
It is unbecoming of the Minister of State.
I will certainly deal with the matter. I want to say to Deputy O'Keeffe——
Deputy Quinn, the former leader of the Labour Party, will be here shortly to address that issue. It would be more appropriate to deal with the matter at that stage.
In correspondence it was stated, "the Deputy will note the proposal in the enclosed memo that a consequential amendment could be made to Article 9, together with the already published changes to Articles 2 and 3". The correspondence also states this could possibly be presented as a belt and braces exercise by the Government to ensure its intentions, as they relate to citizenship, are carried into effect. It further states that on the grounds it would not require any change in the wording agreed at Castle Buildings, there would be no question of reopening the concluded talks process.
The Minister of State does not know what he is talking about, which illustrates the point we are making.
I must insist that we return to dealing with the amendments before us. As the Deputy so eloquently put it, his party's former leader will be in the House shortly and will have the opportunity to take issue with what the Minister of State said.
The memorandum goes——
If I could ask the Minister of State——
The Minister of State is completely out of order.
Has the Deputy examined the memorandum?
Of course I examined it. The Minister of State is completely out of order.
Deputy Rabbitte will be coming before the House shortly.
It is not Deputy Rabbitte, it is Deputy Quinn.
We must return to dealing with the amendments.
There is no all-party agreement on this matter. My party is certainly not in agreement with what is being done.
Will the Deputies please address the amendments?
The Minister of State indicated there is all-party support but that is not the case.
Deputy Costello should focus on the amendments.
At this point, I feel I must call for a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
As Deputy Jim O'Keeffe stated, he tabled these amendments in order to try to explore the complexity of the proposal before us, to tease matters out and to have discussions with the Minister in respect of what might be possible, either on a constitutional basis or, more preferably, on a legal basis, in terms of addressing the issues. The Deputy is trying to address matters in respect of Articles 2 and 9. I do not necessarily agree with the intention of seeking to amend Article 2 or to make it in any way subject to Article 9. That might have the effect of adding further to the difficulties with the Good Friday Agreement. Article 2 should have priority and the latter should be clearly asserted because that was the intention of the legislation that arose on foot of the Good Friday Agreement.
Article 9 is an enabling instrument and makes provision with regard to circumstances where citizenship can be withdrawn. The only people who automatically qualify for citizenship under Article 9 are those from Saorstát Éireann. However, Article 9.2 states, "Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens". Therefore, there are circumstances in which citizenship can be revoked. I do not know if the provisions of this Article have ever been exercised and someone's citizenship revoked as a result.
I have in my possession a reply from the Minister for Justice, Equality and Law Reform to a question I tabled in respect of a gentleman I have been pursuing for a period of time. I refer to the infamous Victor Kozeny from the Czech Republic who is a fugitive from justice in a number of states. If Mr. Kozeny did not possess an Irish passport, he would have been locked up in one of the countries which have warrants out for his arrest. In the reply to which I refer, the Minister indicates that a certificate of naturalisation can be revoked in a number of circumstances. He makes specific reference to Article 9 and whether the certificate granted was procured by fraud, misrepresentation, innocent or fraudulent, etc., or if the person to whom it was granted has, by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State. Does the Minister have any intention of investigating some of the approximately 150 individuals to whom passports were issued under the passports for sale scheme, who have proven to be unsavoury characters and who are wandering the world on Irish passports?
Mr. Kozeny is going to be standing in the European elections in the Czech Republic, not by virtue of his Czech citizenship, which has been withdrawn, but by virtue of his Irish passport which grants him entitlement to stand for elections.
Mr. Kozeny rejoices in the nickname of the pirate of Prague.
That is correct. He is being sought by the authorities for allegedly defrauding €3.6 billion from 800,000 citizens of the Czech Republic. Would it not be great if the Minister turned his attention to dealing with the citizenship and naturalisation of that gentleman and those like him? The point I was making was that in section 9 there is already some provision that allows, within the Constitution, for citizenship to be withdrawn on those grounds.
I do not intend to pursue this any further at present. The Minister has presented us with afait accompli or with a wording which he is not prepared to change. He has categorically told us that he will go forward with that particular wording and that we must like it or lump it. I feel that our presence here, without the Minister, is very much a formality and any arguments we put forward are not likely to be listened to. We would like to have had the opportunity of teasing out the possible options that might be there, the extent of the problem, the facts and figures underpinning it, and how it could be addressed. I do not think we will have the opportunity to do any of that.
I get the feeling that we are wasting our time somewhat on this debate. However, we keep doing the best we can in the circumstances. It is important to put matters in context. In this particular proposal I put forward one option as to how the problem can be resolved. A range of other proposals were made, including by way of legislation, which we will come to separately.
I want to make it clear that I put these options forward for debate and discussion on the basis that these issues would have been examined in detail in the context of an all-party discussion. I do not press any of them as being a preferred option. The range is quite wide. If we reach the stage of accepting there is a need for a constitutional referendum, there are three or four different possibilities for Article 2.
For example, it could be made clear that Article 2 is subject to Article 9 with regard to the power of the Oireachtas to legislate for citizenship. That could be done simply by the amendment which I put forward which suggests putting in at the beginning of Article 2 the words, "Subject to legislation enacted pursuant to Article 9.1.2°". This means that Article 2 would then clearly take second place to Article 9. The Minister, however, proposes to take the back door route and do it the other way around. He proposes to do the same indirectly in Article 9. I accept that if he dealt with this in an honest upfront way, we would have to have discussions with the parties in Northern Ireland.
Another possibility is to insert in Article 2, after the words "person born on the island of Ireland, which includes its islands and seas", the words "of at least one parent who is an Irish citizen or entitled to be an Irish citizen", thereby using the Minister's own words.
A further possible way of dealing with this issue in Article 2 is to include the words "to seek" after the word "seas" in the phrase "born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation". That would raise the issue of somebody who does not want citizenship foisted on them — another issue we have not teased out. What is the current and future position in this regard? I will get back to that issue.
The question of nationality and citizenship should have been teased out fully. Let me ask a simple question. Is Dr. Ian Paisley an Irish citizen? These are the kinds of coal face issues one must examine.
He is entitled to be an Irish citizen.
He may be or may be entitled to be — so what? This is just one of the issues which has not been examined.
There are also far simpler ways of amending Article 9. We could insert at the beginning of Article 9.2 the words "Notwithstanding Article 2". This would clarify that the power given for the future acquisition and loss of Irish citizenship and nationality shall be determined in accordance with law. It would also make it absolutely clear that the entitlement would be there for the Oireachtas to do that, notwithstanding Article 2. This again is another way——
I am reluctant to intervene but I want to try to have an orderly Committee Stage. There is no restriction on time on Committee Stage, as the Deputy knows, and no restriction on the number of contributions. I understand that the Deputy proposed these amendments and that Deputy Costello then contributed after him. Before Deputy O'Keeffe makes another major contribution, I should call Deputy Ó Snodaigh, Deputy Quinn and then the Minister. It would be unusual for a Member to contribute twice before hearing the Minister's reply to the first points raised. As the Deputy knows, there is no restriction on time other than the guillotine and what it entails. The Deputy will have ample opportunity to contribute.
I accept that. I suppose the situation where the Minister is out on a blood injury and we have the replacement Minister of State here for a few hours and will have another Minister later——
I understand that the Minister did make one contribution which Deputy O'Keeffe may well have understood was his contribution.
The problem is we did not even complete the debate on that small issue. I accept the Ceann Comhairle's ruling entirely.
We will hear Deputy Ó Snodaigh, Deputy Quinn and the Minister of State and I will then call Deputy O'Keeffe again.
This shows how ludicrous it is to try to explore all the issues within the constraints of this Committee Stage debate.
I accept that.
Tá me go hiomlán i gcoinne na leasuithe seo ar an mBunreacht. Níl aon réiteach idir mé féin agus an Aire maidir leis an gceist seo. Níl réiteach uile-pháirtí ar an gceist.
Chomh maith leis sin, ba mhaith liom meabhrú do Fhianna Fáil, ach go háirithe, agus b'fhéidir don Aire Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí, a dúirt le déanaí gur poblachtánach é, féachaint siar ar dhá príomh doiciméad poblachtánach na hÉireann, is iad san, forógra na Cásca agus clár daonlathach an Chéad Dála. De réir fhorógra na Cásca, "Ráthaíonn an Phoblacht saoirse chreidimh agus saoirse shibhialta, comhchearta agus comhdheiseanna dá saoránaigh uilig agus dearbhaíonn sí gurb é a rún séan agus sonas a lorg don náisiún uile agus do gach roinn di le comhchúram do chlann uile an náisiúin agus le neamart ar an easaontas.....".
Chomh maith céanna, i gclár daonlathach an Chéad Dála, déantar tagairt arís do "cherishing all the children of the nation equally". Tá an cheist sin i gceist anseo mar luaitear an náisiún.
Níl an cheist sin i gceist anseo in aon chor.
Tá, mar tá sé luaite in Airteagal 2 den Bhunreacht. Cuireann an t-athrú a bhfuil an Rialtas ag triall a dhéanamh do Airteagal 9 isteach ar Airteagal 2, a deir go bhfuil sé de cheart ag gach duine a rugadh ar oileán na hÉireann——
A Cheann Comhairle, níl an Teachta ag plé na leasuithe atá ós comhair an Tí. The Deputy is not discussing the amendments before the House.
Deputy Ó Snodaigh, you should confine yourself to the amendment before the House.
The amendments deal with the text which would change Article 9. If we are to deal with that we must deal with them in the context that they have an effect on Article 2.
On Committee Stage the Deputy must confine himself to the details of the amendment before the House. What is appropriate on Second Stage is not appropriate on Committee Stage, the purpose of which is to address the amendments. The principles of the Bill have already been debated in this House. We are dealing specifically with amendments Nos. 10 to 14, inclusive, and amendments Nos. 20 to 23, inclusive.
I understand that. All those amendments have the effect of changing Article 9. Any changes in Article 9 have implications for Article 2. I am addressing the amendment and opposition to the amendment and the legislation itself. It is, therefore, in order. Dúirt an Clár Daonlathach gurbh é príomhchúram ar Rialtas an tSaorstáit ná "gléas a sholáthar chun leas corpartha, leas spioradálta agus leas intleachta na leanaí a chur in áirithe dóibh".
It is very simple. The rights of the children of the nation should be protected in full. If this legislation with these amendments is passed, that will not happen. It is necessary to focus on the effects these proposals will have on the Good Friday Agreement and on the changes that were brought about in 1998. They will negate the changes implemented in Article 2, the entitlement to citizenship, which were carefully negotiated. The amendments and the legislation before us are in violation of our international treaty obligations, in this case the Good Friday Agreement.
At present citizenship is conferred in Article 2 of the Constitution. This Article was negotiated in the Good Friday Agreement and its wording was included in Annex II to the first constitutional issues section of the agreement. The Government's commitment in this section was specifically included in the international British-Irish Treaty annexed to the agreement. This proposal by the Government indicates that rather than facing the significant political fall-out of tampering with the wording of Article 2, which replaced the existing Articles 2 and 3 in 1998, the Government is trying to get around it by amending Article 9. That is the effect of the wording before us.
We should accept none of the amendments nor the proposed wording. The Government asserts that they do not violate the Good Friday Agreement. It argues that the people of Northern Ireland whose citizenship is recognised in the British-Irish joint declaration and defined in Annex 2 includes all persons born in Northern Ireland and having at least one parent who is at the time of birth a British citizen or one parent who is an Irish citizen or who is otherwise entitled to reside in Northern Ireland without restriction on their period of residency. The Government's explanation is now bolstered by its recent interpretative declaration signed by both the British and Irish Governments in which they affirm that it is not their intention in making the said agreement that it should impose on either Government any obligation to confer nationality or citizenship on persons born on any part of the island of Ireland whose parents do not have sufficient connection with the island of Ireland.
Accordingly the Government has declared that the referendum proposal is in accordance with the intention of the Good Friday Agreement. I disagree wholeheartedly with the Minister on this. I have argued from the start that this is not the way to proceed on this issue. I will deal with other issues later regarding the manipulated figures the Minister quoted if I have the opportunity.
The amendment violates the treaty, despite the interpretative declaration. It also undermines the Good Friday Agreement which states that it is vital to Nationalists to have a constitutional guarantee underwritten by treaty. Another aspect is that the people to whom the Good Friday Agreement gave protections have no vote to agree or disagree with the proposals the Minister has produced. We have extended rights to those people yet we are taking them away without consultation with them. That has been raised by others. In addition, they have no say whatsoever in this matter.
No one's rights are taken away. This affects children not yet born.
The Good Friday Agreement was voted on by both sectors in Ireland——
This is a unilateral change in a contract by one side. That is what it amounts to.
——to implement something which affects those people who voted in favour of or against it. The agreement was accepted.
Ask Dr. Paisley about it.
He is an expert on our Constitution.
He probably is. There are others.
Allow the Deputy to continue without interruption.
It needs to be borne in mind that because of the rush to pass this legislation, we have not heard from the Human Rights Commission or other interested parties. I will not go into that major debate. However, what the commission had to say has major implications in terms of the wording of the proposals before us, Deputy O'Keeffe's amendments and the legislation itself. Because we have not had the opportunity to have the Human Rights Commission come before us and put its concerns on the record of the House, it is important that I take the opportunity to do that. The same can be said regarding the ICCL. I will not read the whole lot, but it is important to put this on the record so that future researchers will understand that outside bodies made very valid points which were insultingly dismissed by the Minister this morning.
I have never heard any Minister insult the Human Rights Commission as did the Minister for Justice, Equality and Law Reform, Deputy McDowell, this morning. If he were here I would ask him to withdraw the comments he made about the commissioners. We do not need to lower ourselves to the level of insult in which the Minister engaged. If he bothers to turn up tomorrow for this vital legislation he might withdraw his comments.
The Human Rights Commission stated that on 7 April, the President of the Human Rights Commission wrote to the Minister for Justice, Equality and Law Reform to express concern regarding a number of aspects of the proposed referendum, emphasising the short timeframe that was available for consideration of the matter, the potential impact of the referendum on race relations——
I draw the Deputy's attention to the fact that we are addressing eight amendments. There is a time limit on this debate and the Deputy should not make a Second Stage speech.
The time limit was not of my choosing. I opposed it. I raised the concerns of the organisations that I was hoping to quote extensively. They have been ruled out of this debate from the start. They were not given an opportunity, which they should have had under the Good Friday Agreement, to comment. They were not allowed to come to the House to make their points. What is in their document is relevant to the amendments under discussion and to my reasons for advocating that those amendments should be rejected. I have many more documents. I could speak all day, but I do not intend to do that. However, if people continue to interrupt me I will continue to speak.
If the Chair will bear with me, the document runs to only four pages and I was half-way through the first page.
I will skip the Human Rights Commission's background remarks which are at the start of its report. I will deal with the specific points the commission made about citizenship and the Constitution in its report, which states:
Under Irish constitutional jurisprudence, there is a prevailing lack of clarity as to which rights under the Constitution are guaranteed exclusively to citizens, and which rights are protected in respect of all persons within the State. This uncertainty as to the constitutional protection of the rights of non-citizens is evident in our constitutional jurisprudence and has been noted in the analysis of the leading academic authorities in the area. The proposed exclusion of children of non-nationals from the right to citizenship will, therefore, create a new category of persons born in Ireland whose protection of legal rights and social rights and services will be uncertain at best.
The proposed amendment would insert a new Article 9.2 to the Constitution, which would provide that, "notwithstanding any other provision of the Constitution", children of non-nationals are to be excluded from citizenship except as may be provided by legislation. Of particular importance is the possible impact of the amendment on Article 2 of the Constitution, which sets out that all persons born, on the island have an "entitlement and birthright to be part of the Irish Nation". The courts may in the future have to decide on the entitlements and rights of persons who are part of the Irish nation, but not considered under statute to have any entitlement to Irish citizenship or nationality, thus adding further confusion to an already uncertain area of law.
The "notwithstanding any other provision of the Constitution" aspect of the proposed amendment may also override all other constitutional provisions, including the fundamental rights provisions contained in Articles 40-44 and may apply to subsequent legislation which might provide for rights to citizenship from some category or categories of children of non-nationals. The significance of this point is that should future citizenship legislation provide for qualification for citizenship on a basis which might be deemed to be unreasonably discriminatory, the rights of those excluded to challenge that legislation might be frustrated.
A wider issue than the discrete issue of citizenship is the question of how any significant area of constitutional change should be approached. In the view of the Commission, the principles of human rights law provide standards against which any proposal for constitutional change should be considered. Any proposal for constitutional change which might lead to a significant restriction of rights should be accompanied by a serious and comprehensive consideration of the likely impact of the proposed change on the enjoyment of constitutional rights by the persons affected.
It is not apparent to the Commission that such a consideration of the human rights consequences of the proposed referendum has taken place. In this regard, the Commission is concerned that the Government chose not to consult with the Commission in advance of publishing the proposed Twenty-seventh Amendment to the Constitution Bill or in advance of taking the decision to proceed with a referendum on this issue.
The commission's report deals with the nature of the State's human rights obligations under international law, a matter to which I will return. It discusses the justifications for the proposed amendment before giving a summary of the commission's view. This is the crux of the matter, as it relates to the amendments before the House. The report further states:
It is the view of the Human Rights Commission that the proposed amendment to the Constitution aimed at removing a category of persons, notably children born in Ireland of non-national parents, from qualification for Irish citizenship raises significant issues relating to the human rights of those persons and their families.
A notable feature of the Irish Constitution is that some of the rights contained in the Constitution are explicitly linked to citizenship whereas others are not. Therefore, the proposed amendment will have the effect of creating a new category of non-citizens who are likely to be subject to a lower and more uncertain level of protection of rights than currently prevails for children previously born in the State in equivalent circumstances.
Under a number of the international human rights treaties to which the State is a party, Ireland has accepted obligations to guarantee rights equally to all persons, and specifically all children, within its territory without discrimination on the basis of nationality, race, ethnic background or other status. The differential treatment which is likely to result between citizen and non-citizen children may constitute unlawful discrimination under international law in respect of a new category of non-citizen children.
Any restriction of the protection of the rights set out in international human rights law must be justified by a demonstrated reasonable and objective need to further a legitimate purpose. The Commission is not convinced that such a need or such a legitimate purpose has been demonstrated in the present context, nor that other means of addressing any purported social need have been adequately explored which would not have the same detrimental effect on human rights.
In the view of the Commission, the Government has not demonstrated any justification for singling out one category of citizens with "no substantial connection to Ireland" upon which to impose restrictions as to citizenship entitlements.
That is just part of the Human Rights Commission's report. The commission issued a further press statement today, after a meeting of a joint committee of the two human rights commissions on this island. The joint committee concluded that the proposed constitutional amendment has:
implications for rights protected by that Constitution, including the rights of persons born in the island of Ireland as set in Article 2 of the Constitution. These implications are being addressed in detail by the Irish Human Rights Commission in observations being issued this week. In so far as the Irish Government's proposal impacts on Article 2 of the Irish Constitution, which was amended in order to allow the Belfast (Good Friday) Agreement to come into force, the Joint Committee believes that the proposal ought to be considered in the manner indicated in paragraph 7 of the section of the Agreement dealing with Validation, Implementation and Review. That paragraph requires the two Governments to consult with parties in the Assembly if relevant legislation (such as the Irish Nationality and Citizenship Acts) requires amendment.
I have outlined the findings of the joint committee of the two human rights commissions on the island of Ireland.
I have concerns about the proposed constitutional amendment and Deputy Jim O'Keeffe's amendments which have been suggested to promote a debate on something that is fundamentally flawed. My concerns relate to the removal of the rights of Irish citizens of certain national and ethnic origin and parentage. The removal of these rights represents the ethnic cleansing of the Constitution. The measures need to be understood in the context of the Government's overall legislative strategy, with respect to the rights of non-nationals.
I am afraid I have to ask the Deputy to state what amendments he is addressing.
I am addressing amendments Nos. 10, 11, 12,——
The Deputy is making points that would be more appropriate to Second Stage.
——13, 14, 20——
The Deputy has done very well.
——21, 22 and 23.
I ask the Deputy to return to the amendments before him.
I have spoken about the specific amendments you asked me to address, a Cheann Comhairle. Every one of the amendments I have mentioned would have the effect of changing Part 1 of the Schedule to the Bill.
The Deputy is not speaking about the amendments.
Can I ask Deputy Ó Caoláin what ethnic cleansing is?
It is the killing of Protestant farmers in County Fermanagh.
By trying to amend the Bill, Deputy Jim O'Keeffe has opened up a discussion on all aspects of it.
I ask the Deputy to confine his remarks to Deputy Jim O'Keeffe's amendments, rather than making general comments about their effect.
I am allowed to support the Minister by saying that I agree with the proposed constitutional amendment, but to do so would not be to speak on Deputy O'Keeffe's amendments. I will not say that I support the proposal, because I do not support it, just as I do not support Deputy O'Keeffe's amendments. I am speaking in that regard and putting into context why I am opposed to the amendments and specific parts of the legislation before the House. That is in order. If you stop interrupting, a Cheann Comhairle, I might be able to conclude what I want to say.
The Chair does not interrupt; the Chair intervenes.
Intervening and interrupting seem to be the same thing in this House, in most cases.
Deputies interrupt occasionally.
I will have to reiterate what I have said. I may restate what I have already said, as is my right if I am addressing the amendments. This is procedural stupidity — if we are addressing a Bill on Committee Stage, we should be allowed to address these issues. I have said that the Government's intention is to strip away rights from a category of people and to deny them equality.
I would like to discuss the consequences of the passing of this Bill in its current form, or in a new form if Deputy Jim O'Keeffe's amendments are accepted. If it is passed as it is, its effect on the Equality Bill 2004 will be to legislate for discrimination against non-nationals in general and asylum seekers in particular.
Section 10 of that Bill removes the protection of the Employment Equality Act from non-nationals, including both asylum seekers and refugees. Section 47 also excludes legislative discrimination against non-nationals by the Minister for Education and Science, directly reversing a decision of the Equality Tribunal. Section 49 removes Equal Status Act protection from current and former asylum seekers and persons who have applied for leave to remain in the State and allows Government, public authorities and statutory agencies to discriminate against them. All these Government proposals violate the non-regression principle enshrined in the EU race directive which the Bill purports to incorporate into law. It clearly illustrates the Government's agenda with respect to people of Irish descent from non-EU member states such as America, Canada, Australia and New Zealand.
There are many important aspects in the briefing document provided by the ICCL. However, it did not have an opportunity to make a representation on this matter to the committee. The worst aspect of this constitutional amendment is the haste with which it was introduced. Bad laws are made in haste.
I have not yet had an opportunity to speak in this debate as I was in Brussels last week. However, I will speak to the amendments and the Schedule. My name has been cited in this debate. I wrote to the Taoiseach — in confidence at the time — on aspects of the Good Friday Agreement. Though I have no problem with the correspondence being made public, selective extracts have been put into the public domain by the Minister for Justice, Equality and Law Reform, Deputy McDowell. With the Ceann Comhairle's permission I wish to put them on the record of the House as it is in the interest of proper debate and in the defence of my position.
The Chair ruled with regard to Deputy Ó Snodaigh that we would deal with the amendments at this stage.
In the rí-rá that occurred during my absence from the Chamber when I was at a committee meeting, a memorandum written in connection with these letters was selectively quoted in the House. I am duty bound to put the record straight. I will address the amendments in the context of what has happened here. I appreciate your accommodation, a Cheann Comhairle.
On 16 April 1998, I wrote the following to the Taoiseach:
An aspect of the Government's proposed rewording for Articles 2 and 3 was raised with me; I enclose a copy of the relevant memorandum. [I will not read the memorandum into the record] My understanding now is that the official view is also that the revised Articles do not, and were not intended to, confer an entitlement to citizenship as of right on all persons born in Ireland. In effect, Article 2 would create a right to be considered part of the nation, while the right to citizenship would continue to be dealt with separately under Article 9, which more, or less leaves the entire question to be regulated by statute.
I am not so much concerned with the merits of this proposal as with the potential for misunderstanding and confusion which appear to have been created. Several commentators and politicians, including both yourself and myself, have in good faith welcomed the draft as conferring, for the first time a constitutional recognition of the right of members of the Northern nationalist population to citizenship of this State. If this interpretation were to be contested and it were to emerge that, according to official view, no such effect was intended or brought about, there could be considerable controversy provoked in the referendum campaign with a seriously disruptive effect. At the very least it would be argued that supporters of the amendment were unsure of the precise legal consequences of the new draft.
I very much appreciate the sensitivity of the situation and you can be assured that I do not wish to raise publicly any reservations concerning what should primarily be seen as a vote endorsing; the totality of the multi-party agreement. I am nonetheless seriously concerned that a successful outcome to the referendum process may be endangered when an examination of [the] amendment commences and contradictory interpretations are put forward — even, perhaps, by different groups of supporters of the amendment.
Assuming that the wording of the proposed Articles 2 and 3 cannot now be changed, then there should be specific agreement between those who support it in the Oireachtas as to its meaning. It seems to me that it would be dangerous to make claims which could not be sustained under inevitable scrutiny. You will note a proposal in the enclosed memo that a "consequential" amendment could be made to Article 9, together with the already published changes to Articles 2 and 3. This could possibly be presented as a "belt and braces" exercise by the Government, to ensure that its intentions were carried, into effect as they relate to citizenship. On the grounds that it would not require any change to wording agreed at Castle Buildings, there would be no question of reopening the concluded talks process.
However, if something, along those lines could not be incorporated at this stage, then I believe that the Government, its officials and those whose support it seeks should make every effort to share a common understanding of the meaning to be given to the published text. I hope that you will be in a position to consider this issue and revert to me before the Dáil debate on this amendment.
The Taoiseach's reversion by way of letter dated 20 April 1998 is as follows:
Thank you for your letter and I am glad to be able to deal with your concerns.
The proper interpretation of the two opening sentences of the new Article 2 is that they confer on every person born in the island of Ireland an entitlement and birthright to nationality and hence to citizenship. This is emphasised by the use of the word "otherwise" indicating that the entitlement of citizenship may be given by law to persons not born on the island of Ireland and, therefore, necessarily implying that for all persons born in the island of Ireland statute law is not required for the entitlement to citizenship. While the mechanics of asserting the right to citizenship might continue to be governed by statute law (the 1956 Act or any future amendment which may well be needed), statute would in the context of the new Article not be the basis of the entitlement to citizenship for persons born in Ireland.
If the new Article 2 became part of the Constitution, it would not result in any contradiction between that provision and the current Article 9, nor would it make Article 9 redundant. There are many necessary provisions relating to the acquisition of nationality and citizenship which require to be dealt with by statute and would still so require after the granting of the entitlement in the first sentence of the new Article 2. Issues relating to nationality and citizenship acquired by naturalisation, by marriage arid by descent will continue to require legislation.
The concepts of nationality and citizenship are in Irish law virtually synonymous as is to be seen from the twinning of the two words in Article 9 and in our statute law. Where distinctions are drawn between the two as for instance in Article 9.2, it is to ensure that persons who have an entitlement to Irish nationality, and therefore citizenship, are not subject to the duties and responsibilities attached to citizenship unless they actively acknowledge it.
One effect of the new article will undoubtedly be to confer an entitlement to Irish citizenship on persons born in Northern Ireland irrespective of their family background or the circumstances of their birth in Northern Ireland. We do not contemplate any change in thejus soli rule. Considerations of peace in Northern Ireland would outweigh any concerns related to immigration. [That is a pertinent comment].
I have had to bear in mind, when considering the changes in the amendment the strong desire of Unionists not be automatically incorporated in the nation whether they will it or not. We wish to be as inclusive as possible, but at the same time to remove any suggestion of coercion.
The proposed constitutional amendment has been very carefully vetted not only by the Attorney General and his office but by others with expertise in this area, and, without absolutely compelling legal reasons, I would be very reluctant to contemplate making any changes to it. I would regard it as important that no unnecessary doubts, or uncertainties be created in the public mind and I would be very grateful for your support in this. On 19 May 1998, I subsequently wrote to the Taoiseach:
On 16 April I wrote to you outlining my concerns about the proposed re-wording of Articles 2 and 3. Then, as now, my concern was as to whether the Government's draft in fact achieved what was claimed on its behalf: that, for the first time, the right to citizenship of this State of every person born on the island of Ireland was being enshrined in the Constitution.
You replied to my letter to the effect that the proper interpretation of the amendment was that it did indeed place on a constitutional — rather than a statutory — footing the right of people born in Ireland to Irish citizenship. I accepted your assurances. I believe that you wrote in good faith and that you intended to reply on behalf of the Government as a whole, with the advice of the Attorney General, on the correct meaning of the new Articles.
However my faith in the view espoused by you has been substantially undermined by the revelation by the Minister for Justice that the Government has accepted all 12 recommendations of the Inter-Departmental Committee on Immigration, Asylum and Related Issues.
Briefly to recap the history. First, the draft amendment avoids setting out, in explicit terms, a clear entitlement to citizenship by virtue of birth in Ireland. Second, to be frank, it does not appear, on the evidence available to me, that your interpretation of the nature and effect of the re-worded Articles is shared by officials of the Department of Justice, which is the Department of State concerned with the administration of our citizenship laws. On the Wednesday following the Good Friday Agreement,The Irish Times was able to publish news that the Government was considering proposals designed to limit access to Irish citizenship. The proposals were intended to curtail the statutory right, which exists at present, of all persons born in Ireland to Irish nationality and citizenship and were designed to cut the flow of immigration.
Any such proposals would of course be clearly incompatible with the Constitution, if the referendum is passed and if the new text has the meaning which you have assured me it does.
The speech of Minister O'Donoghue in the Dáil debate on the agreement did not shed any light on his Department's attitude since, remarkably, citizenship was the only aspect relevant to his Department with which he did not deal.
Finally, on the 7th May, in written reply to a Dáil question only drawn to my attention today, Minister John O'Donoghue published the recommendations of the Interdepartmental Committee. These included recommendation No. 7, to the effect that "legislation should be examined to see what changes might be possible to eliminate abuses of Irish citizenship law in regard to post-nuptial citizenship and the deliberate arrangement of births to non-national parents here". The Minister indicated that the Government had accepted this recommendation but it would "fall to be considered in the light of the outcome of the agreement reached in the multi-party negotiations of the 10th April and its implementation".
If your reply to my earlier correspondence has any significance, then clearly recommendation No. 7 does not "fall to be considered" — it simply falls. Legislation to curtail citizenship derived from birth would be incompatible with the Constitution, as amended. In your letter to me you have a specific commitment that the Government did not contemplate any change in thejus soli rule.
It is not possible for the Government to ride two horses simultaneously. There is only one attitude for the Government to adopt which is consistent with the view that it, all its members and all of its officials share a common understanding of the nature and effect of the referendum being put to the people. It should publicly and formally concede that no restrictions on citizenship as birthright are possible and that consideration of this aspect of recommendation No. 7 is being abandoned, since any legislation along those lines would be unconstitutional.
I want to assure you that this is not simply the pursuit on my part of a side issue; my immediate concern in the context of next Friday's vote does not relate to the State's policy on immigration. Those questions are critically important and will be considered on another day. I am, however, committed to upholding the integrity of the referendum process. I believe the integrity of the process would be undermined if it was later revealed that your Government was committed to legislation which was completely inconsistent with your interpretation of the amended Article 2 of the Constitution — an interpretation campaigned for with the use of public funds.
The final letter is the Taoiseach's response of 21 May 1998.
I have your letter of 19 May about the acceptance by the Government of the recommendations made by an Inter-Departmental Committee on Immigration, Asylum and Related Issues, and the implications of the decision as regards the implementation of the Good Friday Agreement.
The interpretation you are placing on the Minister for Justice, Equality and Law Reform's recent PQ reply is not warranted.
The position is that the Inter-Departmental Committee on Immigration, Asylum and Related Issues presented its report to the Minister for Justice, Equality and Law Reform in February. The Minister subsequently brought the report to Government for their meeting of 17 February and obtained Government endorsement of its recommendations. The Minister made the Dáil aware of that fact in a debate on a Private Members Bill in the name of Deputy McManus on March 10. The Agreement in the Multi-Party Negotiations was, as you know, concluded on Good Friday, April 10.
The Minister, in responding to Deputy McManus's recent parliamentary question, set out — as requested — the various recommendations which were contained in the Inter-Departmental Committee's Report. He quite rightly indicated that the specific recommendation to which you refer would now fall to be considered in the light of the Good Friday Agreement and its implementation given that the recommendation had been made prior to the Agreement having been reached. The Minister answered a question from you in the matter on 14 May in similar terms. The changes to the Constitution proposed in the Agreement have yet to be approved by the Irish people although, I know, we both hope that they will be overwhelmingly endorsed in Friday's referendum.
There is no question therefore of the Minister or the Government resiling from the position I set out in my letter in reply to yours of 16 April. The Minister was simply making clear that that particular recommendation had now to be read with reference to the Agreement itself. I can assure you that in the event of the new Articles 2 and 3 taking effect, no legislation will be proposed by this Government to the Oireachtas which imposes restrictions on the entitlement to Irish nationality and citizenship of persons born in Ireland. I trust that this meets your concern on the point.
Given that the Minister raised the question of the letters I allowed the Deputy to put them on the record of the House. I would like him to discuss the amendments now.
I will do so. The proposed change and the Committee Stage amendments relating to this have been introduced in a way I find repugnant. It saddens me to say this. The way in which the Minister, Deputy McDowell, attempted to use that piece of correspondence and the related memo was devious and dishonest. Correspondence into which I entered in the spirit of support for an amendment which all parties in the House supported was legitimate and well argued. The Department of Justice, Equality and Law Reform has for many years had a persistent view — I do not refer to any individual, but to something in the air at St. Stephen's Green — that somehow we needed to impose restrictions in this area. I find this baffling. I have been misrepresented by the Minister for Justice, Equality and Law Reform in this correspondence and in comments made at different times.
We are starting at the end of a process, should such a process be necessary, rather than at the beginning. Whether the Government likes it or not, we are in the process of unilaterally changing the Good Friday Agreement, notwithstanding any joint agreement made with the current British Government. A memorandum of understanding between two Government Departments does not in any way invalidate the critique put forward by Deputy Ó Snodaigh and my colleague, Deputy Costello. That is the view shared by Mark Durkan of the SDLP. To suggest that it was legitimate to engage in consultation with the British Government but not with the parties involved — and that this was sufficient to meet the spirit of the Good Friday Agreement — flies in the face of not just the last three of four years of work but the last 30 years. We should not forget that the Good Friday Agreement is, in the immortal words of Seamus Mallon, "Sunningdale for slow learners." Thirty years of work with different parties took place. People devoted their whole careers to trying to find an accommodation. People shifted their fundamental positions to get to where we are now. Yet now the Government is casually changing the wording, and thereby the process, to such an extent that the first person to stand up and say "Hurrah" is Ian Paisley.
I ask the Deputy to address the amendment.
I am addressing the amendment. I am addressing the core of the proposals. It is repugnant that these amendments should be before us in the first place. For what purpose is this Bill? Is it so that the Government can hold on to council seats in June? I regret that my constituency colleague, Deputy McDowell, is not in this House. I find it cavalier in the extreme.
The Deputy should address the amendment.
I am doing so.
The Deputy is talking about whether a Minister is in the House.
If the amendments mattered and if the matter was so urgent, the Minister would be in the House. I say this with all due respect to the junior Minister, who is attached to three Departments. I presume he is wearing his Department of Justice, Equality and Law Reform hat today.
It is a three-cornered hat and the Minister is wearing one corner at the moment. With all due respect to his eminence and his attachment to this House and its traditions, it must——
Deputy, the Minister——
The Ceann Comhairle should not provoke me.
Eminent though the Minister of State may be, this is not relevant to the amendments. I ask him to deal with the amendments.
I am dealing with the amendment to change our Constitution, which was rushed in without consultation with anybody and up to the wire in terms of time, without taking account of the recommendations offered by the committee which is chaired by the Minister of State, Deputy Brian Lenihan, which state that we should have sufficient time while debating a proposed amendment to the Constitution so that every Member may contribute on Second Stage. I did not have that possibility. There simply was not the time.
The Minister of State should come over to this side of the House.
I am amazed that this proposal, and the section to which these amendments apply, was brought in by subterfuge. It was considered, I suggest, as far back as last autumn. The Taoiseach denied in the House that he was contemplating any amendment to change the Constitution, although in January Peter Green had written to the Department of Justice, Equality and Law Reform from the Department of the Environment, Heritage and Local Government asking whether the voting machines would have the capacity to deal with a third poll. We have been misled. There are other non-parliamentary words that could be put on the record.
Worse still, we have been deliberately misled by the Government. The person who has led that trail of deception is the Minister for Justice, Equality and Law Reform.
The Deputy is not addressing the amendments.
We are sufficiently constrained in terms of how we can debate the legislation so I ask the Chair to allow me, within reason, to address it. The intention is to amend the Schedule and I am addressing the motive for the proposed change, as much as its consequence. The motive is to deny a certain category of people, whose numbers cannot be quantified in the context of the 4 million people living in Ireland. The number of non-nationals who are in Ireland on work permits or extended visits or through marriage have not even been disaggregated from the number who have deliberately travelled to have a child on the island. The Minister of State cannot give us the facts. He is an eminent senior counsel and, if he were to present the entire argument as a book of evidence on behalf of the prosecution or by way of defence, his case would fall.
No substantial facts have been quantified to the extent that they are credible and they have not been highlighted in any way to justify an amendment to the Constitution. In the absence of a rational explanation as to why the constitutional amendment should be considered, we must speculate about the motivation, which is at the basest level. I never thought this would come from the Minister for Justice, Equality and Law Reform who distrusted single party Government so much that he climbed halfway up a lamp post while serving as Attorney General to beseech the nation not to trust Fianna Fáil in Government. We need not have bothered. Fianna Fáil would hardly have gone to these depths in terms of introducing such a base element into our Constitution to address a perceived peril, which they cannot even quantify.
However, the Government is playing with something much more substantial: a fear of the unknown, a fear of the foreigner that is shared throughout Europe. That fear was such that the council dealing with racism in Ireland asked all political parties prior to the last general election to sign a pledge not to use the race card during the campaign. I refer to the outrageous behaviour of Deputy O'Flynn in Cork whose racist comments were rewarded by the appearance of the Minister for Finance at a fund-raiser a number of days later. A member of my own party who made similar comments was expelled.
The attitude of Deputy McDowell since he became Minister with responsibility for immigration is inexplicable. His initiative is opportunistic and racially motivated. No one could draw any other conclusion. There is no compelling argument for amending the Constitution with such haste at this time. There has not been time for proper debate.
Ireland has a migration problem but it starts within the Department of Justice, Equality and Law Reform because of its attitude to this issue for many years. There has been a conflict going back to my time in the Department of Labour in the mid-1980s between the demand in the economy to bring in more skills and the attitude emanating from the Department in Stephen's Green which refused to allow the nation to open its door to foreign people in an extended way. I regret to say this but that has been my experience in this area for a long time.
Much of the prejudice among people who find themselves competing for scarce resources results from this right of centre Government refusing to provide adequate funding for resource teachers in schools, housing or health facilities and so on. Consequently, the minute people who work in our hospitals and elsewhere and who are here legitimately at the invitation of the State on work permits, take off their uniforms, get into a car, take out a mobile telephone or turn the key in the door of an apartment for which they pay rent, they are immediately branded as asylum seekers sponging off the State for the simple reason the Department has lamentably failed to address the issue.
I am aware of the argument put forward by the previous Minister for Justice, Equality and Law Reform to the Tánaiste who sought the granting to asylum seekers of the right to work after a period of time. It was proposed on the basis that it would be an additional pull factor. I recently left a committee meeting, which was addressed by the Taoiseach. He referred to the demographic deficit facing Europe and stated its birth rate needed to increase because more people were needed. Less than 500 metres from the Chamber, the Leader of the Government referred to the need to enhance Europe's capacity to bring in more people, yet Ireland is responding in the opposite fashion.
Ireland has an immigration problem. There are attitudes of fear, apprehension, resentment and race, which are common to all of Europe. Europe went to war on two famous occasions in the last century. We had the temerity to call them world wars but they were civil wars, much of which related to race. Europe, more than any other continent, has a history of having a difficulty with the question of race. Dealing with the issue is the responsibility of the Department of Justice, Equality and Law Reform.
Instead of that, it was extracted reluctantly from the Taoiseach during holy week — even though he had denied that a referendum was promised less than four months ago while knowing it was planned — that there would be a referendum and the House would have to come back for a debate to be taken in a half baked constitutional and legal way given that Second Stage would be debated before we even voted on the Order of Second Stage on a half sitting day.
This is a most unseemly rush to amend the Constitution so that Fianna Fáil and Progressive Democrats supporters can knock on doors seeking votes for their local election and European election candidates. Last night a friend of mine in the Dún Laoghaire-Rathdown local authority area, who is a member of the legal profession, was told on a doorstep, "If you want a nigger for a neighbour, vote Labour." I will send the Minister of State the documentation from Fianna Fáil. It is already out there. We are aware of the snivelling, side comments that are being made such as "the left cannot be trusted because it favours an open door policy", yet, at the same time, the Tánaiste and the Minister for Enterprise, Trade and Employment has issued 45,000 work permits. The minute those people take off their uniforms and leave the hospitals and IT centres in which they are employed, they are branded spongers and asylum seekers because, as the Minister famously said to Ivana Bacik on the radio recently, "Open your eyes, you can see with your own eyes." What can one see with one's own eyes? The elegance of their physical appearance or the colour of their skin?
This is a racist proposition and the Minister of State should be ashamed of himself to bring it forward in a manner that contradicts every recommendation he made as chairman of the Oireachtas Joint Committee on the Constitution. What is the justification for the rush? How many children are born in our hospitals to pregnant tourists who have come to Ireland to deliberately exploit the citizenship laws? What is the difficulty? How many non-nationals are working in our economy?
I refer to another case involving the Department of Justice, Equality and Law Reform and the shame I experienced as a Minister in a previous Government. I was approached by a qualified doctor from Sudan who came to work in one of our hospitals as a registered student. He came here to study and help our hospital system to work in the hope that he would become a consultant and return to his own country. His story is one of many. This man presented himself at my clinic in Charlemont Street and he asked me to explain why his wife could not get a visa to come and live with him during the four years he would be in Ireland. I said that I did not know and that I would find out. I made inquiries and the then Minister for Justice, Nora Owen, finally conceded under pressure that the reason the visa was refused for his legitimate wife was that if she arrived in Ireland, she might have a child and they would not return to the Sudan.
That man came to me on three or four Saturdays seeking news. He was lonely and he had the means to sustain and support his wife. Eventually I said I would tell him the truth, of which as a public representative and a citizen of this republic I was ashamed. I told him his wife was being refused a visa and that he was being denied the company of his wife, because this State thinks that if she were to come to Ireland and have a child, he would not return to his country. That man stood slowly up in front of me and said he appreciated the honesty which I had treated the question, but that he was disgusted with my reply. He said that if he had been told when he applied to the Royal College of Surgeons and the hospital where he trained that he would not be allowed the company of his wife, he would not have come to Ireland. He said he did not want to stay in Ireland, and wanted to return to his own country, and would have done his training somewhere else, such as in Edinburgh, or perhaps Norway, if he had been told.
We have had this attitude for a long time in this country. It did not emerge today or yesterday. I respectfully suggest that we deal with this issue of attitude to foreigners, that we deal with migration and a migration policy and with the fears that it genuinely generates among people. This country is no more or less racist than any other European country. We are simply human. This amendment does enormous damage to the Good Friday Agreement. In a couple of years' time, if not sooner, we will see attempts to unilaterally change the Agreement because we have created a precedent. That may not concern the Department of Justice, Equality and Law Reform or the people obsessed with immigration and foreigners coming into Ireland, but it concerns me.
The Minister of State has presented no logical reason as to why this matter is now before us. What is the urgency in the Department of Justice, Equality and Law Reform? Is it so free of a workload of legislation that it can advance this matter? If one were to consider the list of legislation proposed by the Government, then of the 140 or so Bills that are there, the Department of Justice, Equality and Law Reform is responsible for about 38. Why, for example, are we awaiting the disability Bill? Why do we see no change regarding the Work Permits Bill — not the Department's immediate responsibility — a change which would address some of the issues? Why did it suddenly become urgent in the Department that this matter should be fast-forwarded ahead of so many other Bills? Where is the logic that determines that we must push this through ahead of all the other matters to which we are committed, and for which there is a clear need? I would like to hear answers to those questions, because I have not heard them to date. I have heard today that we are getting no movement on an integrated migration policy, or on the issue of work permits, so that the bondage attached to those permits and the abuse related to them, a subject the "Prime Time" programme considered on Monday night, is not being addressed. There is no Government movement on that issue. We are getting no shift in the Department of Justice, Equality and Law Reform with regard to the right of asylum seekers to work, though at the same time Deputy Harney is seeking people to work in this economy. Meanwhile, the issue before us is being promoted.
Deputy McDowell's attempt to distort the basis of the critique which was put on the record in correspondence from me to the Taoiseach was politically dishonest, however clever the Deputy makes it look. His selective extract and quotation of my correspondence was added to by his statement that the Labour Party was trying to achieve the same ends as the Government in the matter. The Labour Party was doing the opposite. Since the culprit Minister is in Brussels attending to some issue which is no doubt immensely important, I would like the Minister of State, while he is on the watch before the entrance of Deputy O'Dea, to confirm that the thrust of the memo in question was to copperfasten the right of every person born on the island of Ireland not just to be a member of a nation, but to be a citizen. What has gone into the public record from the Minister, Deputy McDowell, is the suggestion, out of the corner of his mouth, that somehow or other, Ruairí Quinn in private correspondence to the Taoiseach in 1998 suggested that if Article 9 were amended in the way he was proposing, the same effect would result. The Minister of State will surely accept at least that much. He is not responsible. I would much prefer if his senior colleague were here.
I have sinned too, and I will deal with the matter.
It is unacceptable that it should not be dealt with. On this side of the House, we have never played politics with Northern Ireland. We have never attempted to undermine the position of the Government of the day on that issue, because it is too big an issue with which to play politics. Given the legacy of Europe, racial harmony on this island is a similar issue with which no party should be tempted to play politics. Unless I am given evidence to the contrary, I can only conclude that for reasons and fears in the Department of Justice, Equality and Law Reform which I do not understand — perhaps some day someone will explain them to me — successive Ministers have been pushed into attempting to change this fundamental right.
Some people say we have the most liberal laws on citizenship in all of Europe. Of course we have. They were brought into being deliberately so that a centuries-old conflict, which gave us 30 years of physical violence in Northern Ireland, would be resolved by explicitly extending to a category of people in Northern Ireland who felt that they were being betrayed by the Irish nation, because Article 2 was being altered. The view was vehemently held by many people on the republican or extreme Nationalist side south of the Border that in return, in compensation for the recognition of what was an historical compromise in Northern Ireland, the rights of the Nationalist community to be not merely members but citizens of the nation, would be copperfastened and written into the Constitution. It was done deliberately.
We now suddenly hear from the same people who agreed to that less than six years ago that it was somehow or other a mistake to have the most liberal citizenship laws in Europe. It was not a mistake or an accident. It was done deliberately to resolve an historical conflict. The Government is now trying to unilaterally change it and in the process undermine a whole series of negotiation — and for what? For the sake of 400 babies annually, who are now living back in Nigeria and who might arrive in Ireland to demand an Irish passport. By the time those children are aged 18, we will be paying their fare for them to come home because we will need their labour. By the time they are of working age, according to the demographic statistics given to us by the Taoiseach and others in the committee on European affairs, we will be issuing open invitations to those people. What is this about? It is about a narrow, racist, opportunistic attempt to garner some votes on 11 June. Sadly, that is the only conclusion I can reach, and it is disgusting.
That was a fine contribution from Deputy Quinn but unfortunately there were not very many Progressive Democrats or Fianna Fáil Deputies listening to it. I call a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I am glad to have the opportunity to speak on the Bill. I was unable to be in the House last week. I wish to address my comments to the amendments but I want to state at the outset that the Green Party welcomes a debate on the issue of citizenship but we are saddened that we were presented with afait accompli by the Minister for Justice, Equality and Law Reform a month ago and the pretence of consultation when, at the time, he walked out the door to the waiting microphones a few minutes after he brought the Opposition justice spokespersons into the room. In my definition that is not consultation, it is operating by diktat. I am also saddened, a Leas-Cheann Comhairle, that our amendment was ruled out of order by way of letter from your office today at short notice.
In regard to the entirety of the Bill, I feel rather like a rabbit caught in the headlights. We are moving rapidly towards a significant change in what constitutes being Irish. There is a real danger in moving so quickly. Only today I realised that because my late mother was American, I fall into that category of children born to foreign-born women. She lived in this country for 50 years. I was born 14 years after she left the United States but the type of statistics we gather are not taking sufficient account of that. It is important that those statistics are carefully examined and considered, and I am grateful to the Irish Council for Civil Liberties for the briefing paper it has prepared which concentrates on the issue of statistics and considers the fact that, for instance, 11% of the people of Dublin are non-nationals. When we talk about births to non-nationals, which is an emotive issue——
——we should recognise that one in ten of the people in Dublin were not born in Ireland. If we knew that before statistics were thrown out in a very haphazard fashion over the past several weeks, we could have a more considered debate on the issue.
Change is a challenge to all of us involved in public life. For many years in Ireland we were quite isolated from the mainland of Europe but that changed in 1973 with our entry into the Common Market, and it changed even further with the economic growth that changed Ireland for the better over the past decade. That change brought new faces, new races and new prosperity to the country. We have welcomed that change and I believe it has added to our economy, our social and religious life, our culture and even our cuisine. Long may this positive change continue.
Some people in public life, however, have used the issue of immigration to further their own political careers. I am saddened, and Deputy Quinn pointed this out, that the remarks from the Minister of State, Deputy Callely, and committee Chairman, Deputy O'Flynn, have not gone unrewarded. One of them received a junior ministry while the other received the boost of the chairmanship of a Dáil committee.
When we discuss citizenship it is important that we look at the substantive change that is being proposed. That change is reversing the basis of Irish citizenship fromius solis to ius sanguinis, a change from the land to the blood. There is a real danger that people will suffer from that change, particularly given that many of those who have recently arrived in Ireland have come here to seek work and are here subject to the whims of an Irish or a multinational employer. There is a real danger in all of that. If citizenship is given on the basis of residency, residency is given on the basis of a work permit and a work permit is given on the basis of an employer, and if that employer is a private company, we could end up with a scenario whereby citizenship might be subject to the vagaries of the employer.
Let us take the case of foreigners who have been living and working in Ireland for three or four years. If they find themselves pregnant, the citizenship of their child would surely depend on whether they are in employment and can remain in Ireland. This opens up a Pandora's box of difficulties that Bruce Morrison alluded to a fortnight ago. It was interesting to listen to a man like Bruce Morrison, who has enormous experience in the area of immigration into the United States. He has welcomed perhaps 50,000 Irish people to the shores of the United States and he has seen the type of pitfalls that can occur in immigration. He made a very salient point. He said the Irish immigration system is a mess and that we have to be able to respond immediately and coherently to those who come to our shores. I am not convinced that we have done that. Instead of looking at the wider issues of citizenship we are simply making a dramatic change to our Constitution, and I am not convinced that is the way to proceed.
We are probably much better off keeping the fundamental ofjus solis in the Constitution because otherwise, who knows where it might end? I would be much happier to see change in the Constitution if I felt we had considered every last aspect of the issue prior to going to referendum.
I am a member of the All-Party Oireachtas Committee on the Constitution which has, over an 18 month period, attempted to deal with every last aspect of what is, in some ways, the small issue of property rights. Citizenship can be seen as a wider issue than that. I am sure we left some stones unturned in our discussion of property rights. I am therefore doubly convinced that, by proceeding to a referendum on the issue of citizenship within a matter of months, we will leave ourselves open to further difficulties, and that this Pandora's box will be opened in Ireland. I know that those who will be at the receiving end of difficulties arising from this referendum will be the most vulnerable in our society, those who featured in that "Prime Time" programme earlier this week. God knows that they are exploitable and vulnerable. The best way to proceed is to discuss the issue in detail at the Select Committee on Justice, Equality, Defence and Women's Rights. I am still not convinced that such a change to our Constitution is justified; I believe that it is not. We should continue to keep the idea of citizenship based on soil rather than blood.
Change is a challenge to us all. We must accept that the face of Ireland in every sense of the word has changed dramatically over the past ten years, and that is positive. We should not have an open door, yet not proceeding with this change to our Constitution does not leave us with that. It leaves us with the Supreme Court decision of 23 January 2003, which my party supported. We therefore have safeguards in place for examining who comes to Ireland. I am highly critical of the way in which this referendum has been initiated and proceeded with. The debate should be mature and careful. For a Minister for Justice, Equality and Law Reform to use such phrases as "citizenship tourism" is a pejorative way to proceed, and I am critical of him on that.
I welcome the opportunity to speak — unfortunately, I did not get that last week. I speak today in opposition to amendments Nos. 10 to 14, inclusive, and 20 to 23, inclusive, as well as to the specific wording. This is not the first time that citizenship or changes to the procedure whereby people become citizens has been discussed in this House. In 1935, the Irish Nationality and Citizenship Act was passed to allow people born in Ireland or to one parent born in Ireland before the passing of the 1922 treaty but not domiciled in the country when the treaty came into effect to claim citizenship. There was originally a two-year limit on that provision, but it was extended by the amendment of 1937.
There is a curious echo of what was said at that time in some of the arguments being made by supporters of the current proposals. For example, some Deputies raised the spectre of the vast numbers who would use the change to claim Irish citizenship and then come to live in the State. They employed the very same phrase as that used by the Minister, of having "no connection" with this country. In response, de Valera pointed out that, in 1937, there were 608 such applications pending, and that there was no danger of the massive influx of people being considered. When the Minister, Deputy McDowell, announced his proposal, he also conjured up the same spectre of unknown but vast numbers of aliens ready to abuse the current provisions to claim citizenship. One would have got the impression — of course, that was deliberate — that those numbered many thousands.
Last week, he gave us statistics on the numbers of late arrivals in the category that would include women coming here solely to have a child and then leave with citizenship secured. There were 432 in the Dublin hospitals in 2003. However, even among that small group, there is no reliable way of isolating those who fit into the category defined by the Minister. Like the imaginary hordes of aliens of the 1930s, the myth of this State being deluged by the so-called "pregnancy tourist" is exposed.
In 2004, the bogeyman of the myth spun to justify restricting citizenship is the heavily pregnant African or eastern European woman. In the 1930s, it was the Jews. In 1937, there were people such as the Fine Gael Deputy, Paddy Belton, who claimed that the then Fianna Fáil Government was allowing this State to become a shelter for undesirable aliens coming to this country, many of them the outcasts of countries in which they had previously resided, coming in here and getting full citizens' rights. Those people were being driven out of their homes across Europe. Many of their relatives and peers went to the concentration camps, and that should not be forgotten by this House. They were what Belton described as "international Jews", people who, he claimed, owned entire streets of houses and threatened the moral and social ruin of the country.
That sounds familiar, except that now the "international Jew" has been replaced by another mythical figure, the refugee who takes over our hospitals, gets free mobile homes and jumps the housing list. We have all heard that, and we have all had to confront such issues in our constituencies. I pay tribute to many councillors on Kerry County Council and Tralee Town Council, as I am sure every Deputy here could throughout the island, who stood up to the bigots promoting such rhetoric and trying to inflame racial tensions. That happened right across the whole spectrum. Unfortunately, the Government, driven by the Minister, Deputy McDowell, is undermining everything, though credible people of all persuasions stood up to it in their respective councils.
This proposal and the campaign for it to be passed are a recipe for giving credence to all that nonsense. Every ignorant bigot who believes the rubbish to which I have referred has an excellent source in the Minister for Justice, Equality and Law Reform, Deputy McDowell, who has decided to frame a constitutional amendment on the basis of an argument that one might hear from certain bigots near closing time in a pub.
When confronted with Deputy Belton's bigotry in 1937, Seán McEntee reminded him that our people too had often been outcasts. We might do well to remind ourselves once more of the truth of that. There are millions of people of Irish descent around the world, and many of them, or their parents, have benefited from the provision of citizenship pertaining in the USA. The United States continues to admit large numbers of people from around the world, and while its immigration policies have become more restrictive, it has never been seriously proposed to remove the constitutional right to claim citizenship by reason of birth. There is no basis for doing so here and sorting out the small numbers of people who the Minister claims are abusing the current procedures.
Another of the arguments that we must confront is that concerning the need to bring our citizenship law into line with that of other EU states. I do not accept that as a valid argument. Surely we have not reached the stage where even such basic issues as the definition of Irish citizenship are to be revised to bring us into line with some putative EU consensus. Citizenship has never arisen in any of the EU referenda. The one that endorsed the Amsterdam treaty was held on the same day on which people in this State and across this island supported overwhelmingly the Good Friday Agreement and the definition of citizenship contained therein.
This referendum is proposed for 11 June 2004. It affects the people of this island, many of whom are excluded from taking part in it. Under the Good Friday Agreement as endorsed by the people of Ireland, this is an affront to the democratic rights of people in the other part of our island currently occupied, who have no rights and no democratic input into what is proposed.
I ask that this be debated, not in the next couple of weeks, but thoroughly, and that we remember the mistakes of the past. Remember the "Deputy Beltons" and others who contributed to the persecutions of minorities who were driven out by the Nazi regime in Europe at that time. Let us remember that children born on this island are no different from those born either to Irish parents or people from outside this country. They are children, nevertheless, and are entitled to citizenship.
I was hoping there would be a response from the Minister, shortly, to the wide variety of views presented. As the mover of this amendment let me focus on the point of it. The amendment I proposed, together with three others that relate to Article 2, was mainly to highlight the fact that if we are to follow the constitutional route, by way of referendum, all these various issues should be teased out. I am not proposing and neither will I be pushing for a vote to amend Article 2. I merely put these options forward for discussion. My main concern as regards this whole debate, as highlighted by many speakers, is its rushed nature. To a degree, the former Minister for Justice, Equality and Law Reform, who used to be known as "the bull" has been replaced by the present incumbent who can only be described as "a bulldozer". That is his attitude as regards this whole debate.
I put before the House for discussion four different options relating to Article 2. They are all premised on the basis that if we are amending Article 2 by the back door, which I believe we are, we might as well do it in an open and transparent way by the front door. I understand the problems and the need to have discussions with all the parties involved. However, if that is the right thing to do let us go and do it. That is one approach.
The other approach I have put forward by way of alternative amendments is that instead, if we are to amend Article 9, for instance, it should be done in an absolutely minimalist way, correctly, by including three words, at the beginning of the relevant section, "notwithstanding Article 2". Then powers are given to the Oireachtas to determine citizenship law. That is another simple possibility. Again, I am not pressing it, but it is an option that should be discussed. The Constitution should only be amended after all legislative and constitutional routes have been explored. If it is to be amended my preference is that it should be done in a minimalist way. That is why I argue that if the Government is going to amend Article 9 and its concern is that the Oireachtas does not have the power even to amend citizenship law, even though it is specifically stated in Article 9, then the problem should be approached in another way. If the Government's concern is about the new Article 2 and if it wants to retain the powers of the Oireachtas, it merely says, "notwithstanding Article 2". That makes it clear that the existing Article 9 has precedence over Article 2. I put it forward for consideration, again not pressing the issue, and also from the standpoint that these issues have not been properly teased out.
The Minister rushed into this debate. It is supposed to be over virtually within a month and this Parliament is supposed to rubber-stamp everything. That is utterly the wrong way to proceed. I can see I am striking a chord with the Minister of State, who, with some good assistance from his committee, produced a reflective document on how and in what circumstances the referendum process should be used. That was the sixth progress report of the All-Party Oireachtas Committee on the Constitution, very ably chaired at the time by the present Minister of State.
I would like to hear the Minister on all these various issues. One other aspect should be borne in mind. The Minister is putting in a substantial amendment to Article 9 and is specifically referring to a person born on the island of Ireland who does not have, at the time of his or her birth, at least one parent who is an Irish citizen. If the wording, "at the time of the birth of that child", is considered, has consideration been given as to what complications may arise in that regard? What happens if a parent has died before the birth, if the Irish father is killed in a road accident or something? That would seem to preclude entitlement to citizenship of the baby because he or she did not possess at least one Irish parent at the time of birth.
The more words are put in the greater the possible dangers. My view on the Constitution is that every single word has to be parsed, analysed, teased out and examined because of its possible implications, not just for the Constitution, but as regards all the laws that must conform to it. I see no discussion or debate on that issue, but when what is being proposed is examined, that immediately springs to mind.
There are three different ways to get over that possibility if the Minister's proposal is to be further refined, but to deal with it one has to have a Minister who is prepared to listen to the fact that there might be a problem. I do not want to——
It would be helpful if the Minister was in the Chamber.
I would be delighted to assist.
Another issue was raised with me on this point, the fact that someone is being excluded who does not have at the time of birth at least one parent who is an Irish citizen. I saw the case of an unfortunate mother in the newspaper where a child was abandoned, left in a bus shelter or in front of a church or something. There is a long history of that practice going back to "The Importance of Being Earnest" — was that the Oscar Wilde play?
The Deputy should be aware that there is existing statutory provision for that.
Yes, but I am talking about the situation under the new provision in the Constitution with regard to somebody who does not have at least one parent who is an Irish citizen at the time of his or her birth. If that baby is abandoned, how do we know——
They will wait until the child learns to speak and then interview him or her.
That is the kind of helpful suggestion that probably should be given some consideration. This whole process is a farce from the viewpoint of teasing out these problems.
It depends on the child's colour. If he or she is white it gets citizenship, if he or she is black, it does not.
The Good Friday agreement did not deal with foundlings.
Deputy Quinn has put it more bluntly than I would have, but that is one further issue. It is one of a hundred issues that have not been teased out properly because of the process adopted by the Government as regards this referendum. It all goes back to the suggestion that apparently developed only a month ago. Perhaps the Minister of State will confirm why this whole issue as regards the referendum was not first mooted and discussed. I am not talking about years ago, but recent times. When was the decision made to have a referendum on this issue? It would helpful from the point of view of teasing out these issues if we knew that.
It is only fair to leave it open to the Minister of State to refer to the various points that have been raised and as proposer of the amendment I reserve the right to speak again after hearing his response.
The Government decision was taken on 6 April, the day before the Opposition spokespersons were briefed on this matter. The Government decided to proceed with a referendum and to approve the proposals.
When was the decision given to prepare the memorandum?
The Deputy must bear with me a moment. This does not arise on Committee Stage. I am prepared, however, to assist the House and hope that the Leas Cheann Comhairle will give me some latitude because considerable latitude was given in raising points that were not strictly germane to Committee Stage, but I understand why they were raised. The memorandum was decided on approximately three weeks previously.
I will deal with Deputy Jim O'Keeffe's points first because, as he acknowledged at the end of his contribution, he tabled these amendments to focus debate on various issues closest to the questions on the referendum. He referred to "rubber stamping" a proposal here, whereas we are being invited to deal with a proposal to restore to the Oireachtas the power to legislate. The Oireachtas could have legislated in this matter before 1998 as the use of thejus solae was there since the 1956 Act and could have been amended at any time up to 1998. Only since 1998 has a constitutional fetter existed on the powers of the Oireachtas to deal with what is essentially a question of detail, not of principle. Many speakers have suggested that we are abrogating the rule of the jus solae, that when a person is born on a defined soil he or she is entitled to acquire the nationality of the relevant state.
When international lawyers refer to thejus solae they speak, as international lawyers do, of a general principle. These can always be qualified. We have managed in Article 2 to provide that the principle cannot be subject to any detailed amendment in any respect, which is a very definite fetter and restriction on the powers of this House.
I agree with many of the sentiments Deputy Ferris expressed about the need for racial tolerance and harmony but I was surprised to hear him say that the matter under debate was a minor problem because there were only 432 unbooked or late arrivals at the maternity hospitals in a given year. They are 432 women expecting children with no proper ante natal screening and no proper evidence available to medical practitioners in this State as to how they should be handled. I suspect that most of these women arrive in this country in an aircraft. That is a very serious matter.
So it is not a question of the integrity of citizenship.
I am addressing a point raised by Deputy Ferris and I am entitled to address it.
It is a health issue.
That is a very serious matter. The fact that, as was suggested earlier, it would take a long time to fill Lansdowne Road with all of these women does not detract from the seriousness of the matter. They are not cattle, they are women in a late stage of pregnancy putting themselves at considerable health risk. The Oireachtas should be in a position to legislate on this issue. There should not be a constitutional fetter in a matter of this kind. The decision to proceed with the referendum is a Government one.
Why, then, is the Minister for Justice, Equality and Law Reform concerned and not the Minister for Health and Children?
Deputy Jim O'Keeffe's amendments seek in the main to amend the text of Article 2 of the Constitution, one of the two Articles whose text was agreed in very delicate negotiations with which we are all familiar and which took place in the run-up to Good Friday, 1998. Were those amendments accepted Article 2 would now read:
Subject to legislation enacted pursuant to Article 9.1.2°, it is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, of at least one parent who is an Irish citizen or is entitled to be an Irish citizen to seek to be part of the Irish nation.
Beside that, as Deputy Jim O'Keeffe outlined, there would be an amendment to Article 9.1.2° which would provide that:
Notwithstanding any other provision of this Constitution, the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.
The spirit and clear intention of these amendments is to achieve in a different way the same objective as the Government seeks to achieve through its proposal, namely to restore to the Oireachtas the power to legislate in this area. There are several important distinctions in the approach taken in the amendments which make them unacceptable to the Government, whose aim is to achieve a limited restoration of the power to legislate for citizenship. The limitation is that Article 2 puts out of bounds any legislation whatsoever that would limit or even defer the exercise by any person born in the island of Ireland of the entitlement to Irish citizenship. In the event that the people accept the Government's proposal, the Oireachtas would have power to legislate for a very narrow class of persons born in the island, namely those born to parents neither of whom was Irish or entitled to be Irish. The Government is content to go for this limited approach because it is consistent with the British-Irish Agreement and the Good Friday Agreement as a whole. Speakers referred to——
Not as a whole. The Good Friday Agreement and the British-Irish Agreement are different things.
: I would like to address Deputy Costello's argument because it is an important issue and one about which we must be very careful. Deputy Quinn spoke about it, as did many other Deputies on Second Stage. It is clear from Annex 2 to the Good Friday Agreement that this position was plainly envisaged by the signatories at the time the Agreement was concluded. The correspondence to which Deputy Quinn referred, and to which I will return, is predicated on a clear recognition that Annex 2 of the Good Friday Agreement permits both sovereign states to legislate as we are doing here today. That is clear from the correspondence opened by Deputy Quinn.
Deputy Costello wishes to raise the question of the multi-party agreement because what we commonly call the Good Friday Agreement is two agreements: a multi-party agreement and the British-Irish Agreement. In the British-Irish Agreement there is a clear acknowledgement by the two states that the birthright of the people of Northern Ireland to be British or Irish or both would be safeguarded and respected in domestic arrangements and given vesture in that form. The Agreement was initialled on behalf of the two sovereign parties, by the Taoiseach and the British Prime Minister. Following that there are two annexes the first of which is the multi-party agreement and the second, which permits this particular legislation because in it the two Governments declare:
that it is their joint understanding that the term "the people of Northern Ireland" in paragraph (vi) of Article 1 of this Agreement means, for the purposes of giving effect to this provision, all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.
Unlimited residence is a concept of UK statutory law but not of ours. When people quote the DUP view that this is a breach of the Agreement they should point out that there is no third annex to the Agreement. On Second Stage, Deputy Rabbitte made the point, which Deputy Costello seeks to echo, that the precise text we are inserting into Articles 2 and 3 of the Constitution was outlined in the multi-party agreement. It was a step which our Government agreed to take in the implementation of the Good Friday Agreement and it was taken, when the amendment was submitted to the people and inserted into the Constitution. That was within the contemplation of the signatories.
It was more than an amendment, it was a variation on an Article.
No. At the conclusion of the British-Irish Agreement, which is a solemn international agreement, there is a reference to the multi-party agreement and the understandings to which it gave birth and which have been implemented. Next to this is the second annex reserving the position of the sovereign states. That is why the good legal advice which Deputy Quinn obtained raised the question that it was open to the Government to deal with this issue. That is clear from the tenor of the advice received at the time. That is the same advice we received from the Attorney General.
The Government would not do anything which amounted to a breach of the Good Friday Agreement or raise the suggestion that the proposal being put before the people is a breach of the Good Friday Agreement. That would be a very serious matter. We are relying on powers which were expressly to the two sovereign states that have to legislate on these matters under the Good Friday Agreement. They are contained in Annex 2 of the Good Friday Agreement. As I said earlier, if others seek to misconstrue what the Government is doing or feel suspicious that that is the case, it should be pointed out that there is no third annex. The Good Friday Agreement stands and what is being done here is within the scope——
May I ask the Minister of State a brief question?
The second annex, which the Minister of State correctly quoted is a reservation put in by the British Government to modify the entitlement to British citizenship. There is no similar third annex that gives the Irish Government a similar right. Is that not correct?
That is incorrect. If the Deputy examines it, it is a joint understanding of the two Governments in regard to the expression "the people of Northern Ireland" and in regard to their undertakings in respect of the same. There is an express reference to "Irish citizen" in the joint understanding.
The Deputy is historically correct to the extent that, at the time of the negotiation of the Agreement, the British legislation of the type we are envisaging enacting if the people adopt this proposal goes back as far as 1982. Since then Britain has had a modification of the rule that everyone born within the United Kingdom is automatically a British citizen. Naturally its legal advisers had to formulate a proposal to protect its rights. The protection of the rights is bilateral; it applies to both sovereign states and reserves its position in regard to the enactment of citizenship legislation.
Will the Minister of State explain how he gets that interpretation in light of the fact that Annex 2 refers specifically to the people of Northern Ireland?
To understand that, one has to go back to an earlier passage in the British-Irish Agreement Article 1.6:
Under the British-Irish Agreement of 1998, persons born in Northern Ireland to Irish citizens, British citizens, or to non-nationals with an entitlement to reside in Northern Ireland without restrictions as to their period of residence there, are entitled to be British citizens or Irish citizens or both as they choose. In the British-Irish Agreement, the two Governments recognise that "the people of Northern Ireland" does not include every person born in Northern Ireland.
Article 1(vi) of that Agreement recognises "the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose . . .".
The key concept in the international agreement, the mutual guarantee between the two Governments in the international agreement related to the people of Northern Ireland. Some Unionists argued we should give a similar guarantee in respect of this State, but the undertaking given by the two Governments was the birthright of the people of Northern Ireland to identify themselves and be accepted as Irish, British or both. The Governments went on to make their joint understanding of what that term means for the purpose of that provision. In other words, the international commitment given by the two Governments was directly qualified in Annex 2. That point is fundamental.
That appears to confirm the query I raised, that Article 1.6 is a recognition of the birthright of the people of Northern Ireland.
Deputy Jim O'Keeffe will have a right to reply.
I am replying, but I am happy to assist the House on this issue. The matter is so clear cut.
Article 1.6 of the intergovernmental agreement refers to the birthright of all the people of Northern Ireland. Similarly the annex refers to a joint interpretation of that reference to the people of Northern Ireland. How does that change the situation in regard to the people of the Republic? There is no reference to people born in the Republic.
The Minister of State has it back to front. Annex 2 was agreed solely by the British and Irish Governments in regard to the situation in Northern Ireland. In regard to Articles 2 and 3, the Good Friday Agreement was a multi-party agreement. The two sovereign Governments were also involved. The Good Friday Agreement involving all the parties was included in Articles 2 and 3. Annex 2 did not involve all the parties to the Good Friday Agreement; it only involved the two Governments. Therefore, if one is to fundamentally change Articles 2 and 3, one is fundamentally changing the Good Friday Agreement. The Minister of State has it back to front.
That was the point I made to Deputy O'Keeffe in reply to his amendments. We are not amending Articles 2 and 3 of the Constitution; we are amending a subsequent Article of the Constitution.
Is one not amending Article 2 by implication? The absolute right given in Article 2 is now to be restricted under Article 9. Is that not the difficulty? I referred to it as amending Article 2 by the back door. It clearly impacts on Article 2 and, therefore, how does one address the difficulty raised by Deputy Costello that Article 2 is specifically set out in the multi-party agreement which is an annex to the Good Friday Agreement.
That has already been implemented. We have firm advice from the Attorney General on this issue.
What is the advice? Can we see it?
His advice is that——
The Minister is unilaterally changing the Good Friday Agreement.
No. I am disappointed this issue has intruded into the debate. The Good Friday Agreement has to be construed as a whole. If one examines the Agreement, the annexes — the multi-party agreement is one annex — the other annex is the joint interpretative declaration by the Governments of their obligations.
The Minister of State is being very Jesuitical.
There are none so blind as those who will not see. This is a simple restoration to the Oireachtas of a power to legislate in this area.
I can see why the senior Minister went to Brussels.
Deputy Eamon Ryan suggested that this was a significant and dramatic change. He preferred soil to blood. A great number of Irish citizens will continue to acquire that status through birth in Ireland. It is clear what is envisaged in the details of the legislation submitted by the Minister to the House; it is a technical and limited change in our nationality law. The Government could not countenance the question of a unilateral variation of the Good Friday Agreement. Article 2 will continue to have considerable vitality in this area.
Whatever about the practical arrangements the Government would have to put in place in the event that the referendum is adopted, we cannot discriminate in the legislation between the position in Northern Ireland and the position in this State. There cannot be any discrimination in that legislation. There is no discrimination in the draft legislation submitted by the Minister. The three year restriction applies to Northern Ireland in the same way as it applies within the State. As a matter of practical implementation there may have to be different administrative arrangements because the administrative arrangements for the monitoring of those who come into the State are not the same as the administrative arrangements to monitor those who enter Northern Ireland.
Deputy Quinn entered into the matter of his correspondence with the Taoiseach at the time of the Good Friday Agreement. I accept that he entered into this correspondence in good faith. In a postscript to his opening letter he made a gracious acknowledgement of the work which the Taoiseach had done in concluding the Agreement. I am glad he opened the correspondence to the House today because it is of considerable assistance in throwing light on a number of issues which have arisen.
It is on the record of the House and I am proud to stand by it.
Deputy Quinn's assumption in his initial letter of 16 April was that the proposed amendment contained in the Good Friday Agreement would not confer any constitutional right on a person born in Northern Ireland to be an Irish citizen.
That right was previously enjoyed by people under the original Article 2. The territorial claim gave them that right and that is why we had to copper-fasten it.
That is arguable in the sense that the territorial claim was adopted by reference in the 1956 Nationality and Citizenship Act and hence the 1956 Act states that every person born in the national territory shall be entitled to be an Irish citizen.
Returning to the correspondence, I am not certain that was a matter of constitutional right. It was a pure matter of statutory provision, but in any event we had to meet this issue. The issue raised by Deputy Quinn was whether the birthright was made a constitutional right by the new Article 2. He had received advice that the text of the Good Friday Agreement clearly allowed the Government to act. Annex 2 indicates that the Deputy's advice at the time was that the text permitted it to act, and it appeared we had so acted because the Deputy received the advice that the text on one construction did not guarantee the constitutional right to citizenship. The Taoiseach then replied by saying that the Deputy's advice was inaccurate in that respect and that the position regarding Article 2 was that there was a constitutional right. That was the substance of the reply by the Taoiseach.
Deputy's Quinn's adviser in his note canvassed the idea, as I understand it, that an amendment could be made to Article 9——
To be sure, to be sure.
"Belt and braces" was the expression the Deputy used in his letter. Were that proposal adopted, it would not differ in substance, in the same way as Deputy Jim O'Keeffe's proposal would not differ in substance, from what the Government is doing now.
It had a different intent.
The Deputy did canvass that possibility.
With a totally different intent.
With the same intent, with respect.
No, it was totally different.
The possibility canvassed by the Deputy's adviser in the memorandum, the belt and braces measure referred to in the Deputy's letter, would have procured, on his understanding, the same result that we will procure if the people, in their wisdom, decide to accept this amendment.
I fundamentally disagree with the Minister of State.
The substance is the same. I accept that the Deputy's motivation in relation to this correspondence primarily related to the successful conclusion of the Good Friday Agreement at the time. There is the subsequent correspondence with the Taoiseach to which the Deputy referred and which puts that beyond doubt. The Deputy confirmed that his final political judgment at the time on the matter was that he was satisfied with the Government's approach to simply leave the matter as a matter of constitutional right in Article 2 and not address other issues.
The Government's aim is to achieve that limited restoration of power to legislate for citizenship. The Government must pursue this limited approach because it is consistent with the British-Irish Agreement and the Good Friday Agreement as a whole. The rights and expectations of the people of Northern Ireland, as defined in the British-Irish Agreement, to identify themselves and be accepted as British, or Irish, or both, as they may choose, continued to be respected to the full in so far as it was within the competence of this State to secure it.
We cannot legislate for the entitlement to British citizenship, a matter exclusively for the United Kingdom authorities, but the entitlement to Irish citizenship is within the competence of this Legislature and to that extent we owe it to our citizens in Northern Ireland and to our partners in the British-Irish Agreement to ensure that our laws and our Constitution continue to offer that guarantee. That is what the Government's proposal will continue to make available. Were we to follow the route of Deputy Jim O'Keeffe's amendments, they would not be as excellent or as superior as the amendments which were canvassed by Deputy Quinn's adviser in 1999 because Deputy Jim O'Keeffe's amendments would derogate somewhat from the continuing vigour of Article 2——
Will the Minister of State yield?
——not in the expressed terms canvassed in his amendments where he directly amends the text of Article 2.
The Supreme Court in construing the Constitution has the principle of harmonious interpretation of construction where it tries to make sense of the different provisions. We must take account of that when we are inserting a new provision into the Constitution. We are continuing to affirm the birthright in Article 2. We are permitting the Oireachtas to exercise a very limited discretion in the subsequent Article. Taking the whole complex of legal rights conferred by the Constitution — we have the advice of the Attorney General on this — in conjunction with Article 2, the proposed amendment means we cannot differentiate in our domestic legislation between persons born in Northern Ireland and persons born in the rest of the State. That is the advice we have. In other words, if the people adopt this proposal, the Oireachtas will not be competent to differentiate between Northern Ireland and this State in its restriction.
Will the Minister of State yield in regard to this point?
I am reluctant to yield much further, but I will yield to the Deputy on this point.
I do not want the Good Friday Agreement or the Multi-Party Agreement to be affected in any way. It is my duty to point out that I am concerned that they may be affected because of this proposal. We have not adequately or sufficiently teased out that potential danger.
Is the Deputy replying to the debate on the amendment?
No, I am not. I am making a point regarding the Good Friday Agreement. Given that we are discussing many issues, I thought it would be useful to focus on this issue to give the Minister of State an opportunity to further clarify the Government's position on it.
Ar aghaidh leat.
This is one of the most serious concerns many of us have in regard to the proposed referendum. None of us wants to see it impinging on the Good Friday Agreement or the Multi-Party Agreement. We would be doing our duty if we could clarify that. The Minister is making a point which does not fully clarify the position. I am raising issues that may be raised by others at a later stage. Such persons may claim that the Irish Government unilaterally resiled from this Agreement and that would give it the opportunity to similarly resile from some other aspect of the Agreement. That is my concern.
That is a matter of concern to me as well.
I have obtained advice from an eminent Senior Counsel on this issue because of my concern about it. The Senior Counsel raises a considerable argument in this respect that there could be a danger that we could be considered to be resiling from the Good Friday Agreement. He states clearly that certainly what is involved is a breach of the Mutli-Party Agreement and that it is arguable that the obligation to observe the Multi-Party Agreement is carried over into the Intergovernmental Agreement. I accept that the short Intergovernmental Agreement is a legal international document. If the British say they are happy with what is happening, that covers us in that respect. However, the Multi-Party Agreement is an annex to that Agreement, which implies at least a political obligation, although perhaps not a legal obligation, to observe the terms of the Multi-Party Agreement. It implies a political obligation on the parties who were parties to the Multi-Party Agreement. In this context, there is the danger that we may be accused of breaching the Multi-Party Agreement without reference to or even a debate with those bodies who were party to the multi-party negotiations.
The real problem was touched on in the advice I obtained from Senior Counsel who raised the issue about the clear terms of Article 2 of the Intergovernmental Agreement. He states that the two Governments affirm their solemn commitment to support and, where appropriate, implement the provisions of the Multi-Party Agreement. Therefore, the Government is obliged under that commitment to support the provisions of the Multi-Party Agreement. That Agreement sets forth exactly the provision on the entitlement and birthright of every person born on the Island of Ireland. The next stage, and the real concern, is that by amending Article 9, we are, effectively, if not resiling from Article 2, by implication and by the back door, reducing the entitlements under Article 2.
That is my genuine concern on that issue and the position was not adequately clarified by the Minister, Deputy McDowell. I am raising it to give the Minister of State, Deputy Brian Lenihan, the opportunity to do so now. However, I do not know if this can be done because I have received considerable legal opinion in respect of the point I am making.
I am also trying to do my duty and I appreciate the seriousness of the matter that has been raised. However, there is a clear-cut answer. I return to the express terms of the British-Irish Agreement. It is a pity Deputies do not have copies of that document before them because if they had they would understand the point in all its clarity.
We have copies of it.
The concluding part of the British-Irish Agreement lists the signatories and includes the annexes, of which there are two. The first of these relates to the agreement reached in the multi-party talks and the second to the declaration of what the Governments considered their obligations in terms of how we define who was born in Northern Ireland.
Deputy Jim O'Keeffe stated that the text of the new Articles 2 and 3 was contained in the agreement reached in the multi-party talks, which is correct. That was the implementing decision of the Government at the time. We have fully complied with our obligations in that regard and the people assisted us by enacting the relevant changes in the Constitution. That was done, it has been implemented and is an historic fact. When one is construing an arrangement of that sort, one must consider what was contemplated by the parties at the conclusion of the Agreement. What was contemplated by the parties on Good Friday was that we would enact those changes in our Constitution. When the Government stated, however, that we would enact those changes and supplied the text attaching thereto, we also said that the question of who was to constitute a person born in Northern Ireland was a matter of joint understanding between the Governments and could exclude the persons defined therein. That understanding defines such a person as having been born in Northern Ireland and as having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or who is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence. We were very careful, in terms of our international obligations, to put it beyond any question at the time of the conclusion of the Agreement that, notwithstanding the agreement reached in the multi-party talks or the expressed form of Articles 2 and 3 which we proposed to include in the Constitution, we would reserve our rights as a sovereign State with regard to who exactly would be entitled to invoke this guarantee in the international order.
That relates to people born in Northern Ireland. What about people born in the Republic?
The Good Friday Agreement and the British-Irish Agreement were not intended to deal with those people. The guarantee in the Good Friday Agreement relates to the people of Northern Ireland who can be British or Irish or both. There is no guarantee in respect of people born in this State contained in the Good Friday Agreement. The Agreement does not regulate such matters. Ireland is a sovereign State and has its own Constitution.
We agreed to put in place the new Article 2.
There is no guarantee for the people of the State. I have discussed this matter at some length and, as stated earlier, we could continue arguing about it all evening. I have set out the Government's case.
The Minister of State has been dealt a very bad hand.
I do not view it as a very bad hand.
I have shown latitude because a particular issue is being debated. I understand that Deputy Costello has an observation to make.
Let us get this point out of the way. I have in my possession a copy of the Good Friday Agreement, at the conclusion of which are two annexes. The first is "Annexe 1 — The Agreement Reached in the Multi-Party Talks" which was signed up to by all of the parties in Northern Ireland which were party to the talks. Those parties included the Irish and British Governments, the SDLP, the Women's Coalition, the Ulster Unionist Party and Sinn Féin. Annexe 2 was a side issue which comprised a declaration between the British and Irish Governments. That annexe did not constitute the part of the Good Friday Agreement comprised by the agreement reached in the multi-party talks.
There are further annexes in the Good Friday Agreement. I refer to the earlier annexe B which contains the Irish Government's draft legislation to amend the Constitution. That draft legislation is incorporated verbatim in the Agreement and deals with Article 29 — to which reference has not yet been made but which allows for the implementation of the various institutions and Articles 2 and 3. The amendments to the Irish Constitution are contained in verbatim form in the agreement reached in the multi-party talks. That is what the Irish people voted on, namely, an agreement reached by all the parties and not one agreed by just the British and Irish Governments.
The two Governments stated in recent days in their joint declaration that the referendum proposals were not out of line with the British-Irish Agreement. That is completely irrelevant. The British-Irish Agreement is not the issue. What we are concerned with is the Good Friday Agreement and, specifically, the part of it comprised by the agreement reached in the multi-party talks. The latter clearly contains the proposals to amend Articles 2 and 3. If we do violence to those articles, we will unilaterally change the Good Friday Agreement. The Minister of State must take into account the two annexes at the end of the document and the wording of the Article 2.
Before addressing Deputy Costello's point, I wish to make a final reply to Deputy Jim O'Keeffe who referred to advice that he received. We received advice from the most eminent counsel of them all, namely, the Attorney General, on these matters.
With regard to the point canvassed by Deputy Costello, an annexe is not a side issue. An annexe is described as an annexe. In construing international arrangements, one does not describe one matter as a side issue. This particular side issue was so important that it was given the same description as the agreement reached in the multi-party talks. Why is that the case? There is a fallacy which runs throughout the Deputy's argument and, again, it relates to what he terms the "Good Friday Agreement". The Good Friday Agreement is two separate documents: it contains the agreement reached in the multi-party talks and the British-Irish Agreement. It does not merely contain the agreement reached in the multi-party talks.
The phrase "The British and Irish Governments declare that it is their joint understanding that the term "the people of Northern Ireland" is used in annexe 2. The other parties to the Agreement are not party to that joint international agreement between the two Governments.
No, nor can they be because the power to legislate in this matter is reserved to the two sovereign Governments. The power to legislate for citizenship is not one which belongs to a political party, it belongs to the sovereign state.
That is the British-Irish Agreement. We are not talking about that.
In international law, political parties do not have the same standing as sovereign states. Any international court looking at an agreement of this character will give high credence to the stated intentions of the sovereign powers involved in its conclusion. The sovereign powers incorporated a reference to the agreement reached in the multi-party talks in their Agreement. That is the point. The only vitality the multi-party element of the Good Friday Agreement has in international law is through its incorporation in the British-Irish Agreement.
How do we get over——
I am entitled to conclude my argument. It was included in the British-Irish Agreement as an annexe with another annexe which fully protected the Governments' sovereign powers in this area. That is fundamental to our construction in this area.
How do we get over the solemn commitment of the two Governments to support the provisions of the agreement reached in the multi-party talks?
The solemnity of the commitment is qualified on the face of the document by Article 2, a fact noted and clearly acknowledged at the time by Deputy Quinn's legal adviser in the memorandum he submitted to the Deputy.
The reason may be deduced from the declaration contained in Annexe 2 of the British-Irish Agreement where the phrase "the people of Northern Ireland" is interpreted as meaning all persons born in Northern Ireland and having at the time of their birth at least one parent who is a British or Irish citizen, or entitled to permanent residence there. The intention is to exclude from the entitlement to dual citizenship, or potentially from citizenship of either state, the children of illegal immigrants and those who have only a temporary residence entitlement. That is the advice Deputy Quinn got at the time and it is the same advice the Attorney General has given the Government in recent weeks.
We cannot go further into this issue. The more we go into it the clearer the case becomes. We cannot equate an agreement concluded between a few political parties as having the same standing as an agreement concluded by Ireland as a sovereign State with a neighbouring sovereign state. That political agreement was included in the international treaty but it was expressly qualified by a reference to the annexe.
Deputy O'Keeffe raised the issue of a further provision with regard to the amendment. The Deputy has submitted a later amendment dealing with the issue of the time of the birth of the person.
It is the next amendment.
If it is, we will have time to deal with it later. Deputy Quinn also raised the question of a statistical basis and the evidence for this particular referendum. Much criticism was levelled at the Minister in the course of Second Stage debate on this issue, but the Minister was not in a position to give the information he wanted in his reply.
An analysis has been done of the 2002 census of population and we also have a nationality breakdown for all births in Dublin maternity hospitals in 2003. Some 1.8 million Irish national females were resident in the State according to the census. There were approximately 17,000 births to Irish national mothers in 2003 in the Dublin maternity hospitals. This is a rate of birth in the Dublin hospitals of almost 1% of the total female population of Irish nationality. I can arrange for this note to be made available to the Deputy.
It is a shame we could not get it earlier. This is the reason there is so much frustration.
The Minister sought to reply to the Second Stage debate. Do we really want to enter into the saga which ensued then?
Some 69,000 EU national females were resident in the State according to the census and there were 970 births to EU national mothers in 2003 in the Dublin maternity hospitals. This is a rate of birth in the Dublin maternity hospitals of 1.4% of the total female population of EU nationality. Some 40,881 non-EU national females resident in the State according to the census and there were 4,501 births to non-EU national mothers in 2003 in the Dublin maternity hospitals. This is a rate of birth in the Dublin maternity hospitals of 11% of the total female population of non-EU nationality. On the basis of these figures, a non-EU national female is eight times more likely to have a child than an Irish or EU national.
Deputies have often made the point that many of the births could be to work permit holders. The following countries are the highest for the granting or renewal of work permits during 2003: Poland, Lithuania, Latvia, the Philippines and the Ukraine. Only one of these countries, namely the Philippines, features in the top five countries for non-EU national births in the Dublin maternity hospitals.
Approximately 44% of the births to non-EU national mothers in the Dublin maternity hospitals arise in respect of just two nationalities, namely Nigeria and Romania, both of which are regarded as causing the most difficulty from the point of view of illegal immigration. It is no coincidence that virtually all the charter flights which have been organised by the immigration authorities to date have gone to both of these jurisdictions. The Minister wished to make this information available in reply on Second Stage. I will have a note circulated to Deputies about the matter.
Everybody is exhausted. I will be happy to conclude on this amendment. Essentially, I have put four possible options for an amendment of Article 2 before the House. I accept that it would not take much to convince me that, if possible, we should not amend Article 2. I put these amendments forward for the purpose of discussion, deliberation and debate and to highlight my fundamental concern with the approach adopted by the Government that even though Article 2 is not being directly amended, we are indirectly amending it because of the approach being adopted on Article 9.
The consequences of such an indirect amendment are what give rise to the concerns under the Good Friday Agreement. We have not fully teased out that issue. If we accept that Article 2 is being indirectly restricted by the proposal, we must look at the intergovernmental and the multi-party negotiation agreements in their entirety. I accept that the Minister of State, a very able senior counsel, has striven valiantly to deal with the points raised. However, there are still some loose ends.
To some degree, the Minister, Deputy McDowell, opened up this issue when he spoke in the Seanad last month. He focused on the reference to the people of Northern Ireland in Annexe 2 of the intergovernmental agreement. We are not discussing the people of Northern Ireland but all the people on this island. Therefore, Annexe 2 does not clarify the issue.
The point raised by my eminent legal adviser on this issue is fully clarified. When he says that what is involved is a breach of the multi-party agreement, I agree it is a breach. This is not a legally enforceable international agreement but an agreement between a variety of parties. However, the words in the agreement could not be clearer.
I will concede when I have made my point. The words in both the intergovernmental and the multi-party agreements could not be clearer.
Perhaps the Minister wishes to clarify some point.
Let me complete this point and I will be happy to yield to the Minister temporarily then. We have not clarified the interlocking nature between the intergovernmental and the multi-party agreements and the fact that the wording in Article 2 is clearly set forth in the multi-party agreement. It must be accepted that the amendment to Article 9 impacts on and restricts the effect of Article 2. How then, in that situation, does the Government deal with the points in Article 2 of the intergovernmental agreement which gave a solemn commitment — this Government is one of the two involved — to support and, where appropriate, implement the provisions of the multi-party agreement. This is an outstanding issue which I am keen to see clarified. I will yield on this point.
I wish to clarify the position. I am allowing some latitude for the Minister of State to respond because there will be a motion to close the debate at a certain time.
I appreciate that. I have already discussed how the Government characterises the agreement as part of the whole Good Friday edifice. The multi-party agreement begins with the declaration of support and proceeds to listing the constitutional issues which were of concern to the parties. It is interesting that those constitutional issues related to the aspirations of the people of Northern Ireland and included the birthright of the people of Northern Ireland to identify themselves and be accepted as British or Irish or both. At the conclusion of that, the participants noted that the two Governments had undertaken in the context of this agreement to support changes in the Constitution of Ireland and in British legislation relating to the constitutional status of Northern Ireland.
The reference to Articles 2 and 3 in the multi-party agreement is in the context of legislation relating to the constitutional status of Northern Ireland. That is clear from the preamble to the agreement. These matters were included and acted upon but, as I reiterated already, the sovereign position of this State was fully safeguarded in Annex 2 directly following upon the reference to Annex 1 in the Good Friday Agreement.
If the Deputy wishes to make an observation, it should be brief.
This is precisely the point on which we need elucidation. I have not seen the Attorney General's advice on this matter. I do not know whether the Minister has advice with him as to the Government's view of the matter or at least the Government's legal adviser's view of the matter.
It is the Government's view of the matter as well as that of its legal adviser.
We are talking about an interpretation of an international treaty as well as an agreement. There are two parts to it, the Good Friday Agreement, which is the multi-party agreement, and the international treaty between the two sovereign Governments, the British-Irish Agreement. The Good Friday Agreement negotiated the wording relating to Articles 2, 3 and 29. That wording was negotiated by all the parties to the Good Friday Agreement and it was put to everybody on this island. That is what we voted on as the Good Friday Agreement. The vote on that to change Articles 2 and 3 triggered the institutional change that brought about the implementation of the multi-party Good Friday Agreement. There was no multi-party negotiation on Annex 2. It was a joint arrangement between two sovereign governments. Now, Article 2 is being unpicked by the changes to Article 9 of the agreement. I cannot accept the Minister's assertion that Article 2 is unchanged by what is happening to Article 9. That is not so because the phrase "notwithstanding any other provision in the Constitution", without naming Article 9, is directed to undermining the intent and the strength and purpose of Article 9, which is the substance of the Good Friday Agreement. That is where we differ on this issue. That is where I, the SDLP and Dr. Paisley believe violence is being done to the Good Friday Agreement. I may be wrong. I am not a lawyer. However, that is my legal advice. It is Deputy O'Keeffe's legal advice. Apparently it is the view of the SDLP. I do not know whether it obtained legal advice before articulating that view.
Part of our problem is that we have not had the opportunity of a forum to tease out these issues apart from the very short time we have here today — the debate will conclude at 10.30 p.m. and this is but our first set of amendments. There are other important issues with which we must deal. Everybody has pointed out it is outrageous that we cannot do so. This is a fundamental issue that could unravel the Good Friday Agreement. The Minister says that is not so.
Why does Deputy Costello say these things?
It is no good for the Minister of State to appear pained about this. This is a very serious issue. There has not been an opportunity to tease it out to anybody's satisfaction. Despite everything the Minister of State has said, I am unconvinced of his interpretation of Annex 2 as against what we have presented in relation to Articles 2, 3 and 29 and the manner in which the Good Friday Agreement was negotiated.
I hope the Good Friday Agreement will not be affected or impinged upon by the Government's proposal. However, as a member of the Opposition, it is my duty to raise the issue and to avail of the time allowed in this limited debate to address it as best I can. On this issue I must raise these questions, and it is still a matter for the Government to plough ahead, or to bulldoze ahead as I characterise the Minister as doing, if it is 100% certain that we are completely all right on this point.
What would have been the effect if, in the course of the negotiations on the Good Friday Agreement, the Government had proclaimed what is its current position on the constitutional amendments that were a precondition to the intergovernmental agreement taking effect and which was a fundamental term of the multi-party agreement? What would have been the effect if the Government had said then that it was at liberty to put before the people a referendum to reverse or modify any of the constitutional changes to which it had fully committed itself at the time?
This relates to my point that I do not believe the Minister for Justice, Equality and Law Reform, Deputy McDowell, has at any stage dealt with the argument that Article 1.6 of the British-Irish Agreement only imposed citizenship commitments on both states in respect of the people of Northern Ireland. However, the multi-party agreement constituted an express commitment negotiated by the then Government to propose and support changes to the Irish Constitution which were then put to the people in May 1998 and resoundingly adopted as the 19th amendment of the Constitution. It was part of the choreography at the time in that because of so doing, certain other terms came into effect. Article 4 set forth a fundamental mechanism of the intergovernmental agreement, that it was a requirement for entering into the agreement that the British Government procured the passage of the legislation provided for in the multi-party agreement and that the Irish people had, in a referendum, approved the constitutional amendments specifically provided for and set forth word by word in the multi-party agreement. Each Government was to notify the other of the fulfilment of the conditions for which it was responsible, and the agreement was to enter into force on the date of receipt of the later of the two notifications.
Article 4.3 provided that immediately on the entry into force of the agreement the Irish Government would ensure that the constitutional amendments took effect. All of this was done. The last step was the declaration of the Government on 2 December 1999 that the State had become obliged, pursuant to the Good Friday Agreement, to give effect to the constitutional amendment. One of the major bases for my concern is that an inadequate level of discussion has taken place on this issue. There has been inadequate consultation. Serious, complex and multifaceted issues have not been fully teased out. I do not pretend to have all the answers or to believe that the amendments I have proposed for discussion resolve the problem in any way.
When I met the Minister to discuss this issue approximately a month ago, he handed me a copy of what was afait accompli at the time. It was presented on the basis of a ridiculous argument. I was asked if I had an alternative proposal to make, having received the document just five minutes previously. The Minister considers that there had been all-party discussion on the issue, but if the Bill had not been printed at that stage, it was about to go to the printers. It was quite ridiculous. I took the view that the way to resolve this problem was to confront the approach adopted by the Minister, for example, by trying to get a complete examination of the problem we were trying to resolve. I do not think that issue has been fully resolved.
Despite the plethora of figures that have arrived, many weeks after the start of this debate, I do not believe that we know the true extent of the problem. I am utterly confused by the figures that have been circulated. I do not know which figures relate to Ireland, Britain, the EU or places outside the EU. It is utterly confusing. I have not got around to asking questions about the figures for Northern Ireland. We have not been given the figures, needless to say. What would be the present situation if I had not raised such questions with the Minister at the time? Would we have continued to plough ahead blindly into a constitutional referendum without the Minister having bothered to raise the questions? It is clear that he did not have the answers, as it took him two weeks to answer the preliminary questions I asked him.
I am usually concerned that we are ploughing into uncharted waters without knowing the full extent of the problem. It has not been possible, therefore, to examine the various options that are available to help us to resolve the problem. Some progress has been made in the past month, largely as a result of the efforts of the Opposition, which has tried to raise these issues.
Any progress has been purely as a result of the Opposition.
It is understandable that the Minister attracted a rather turbulent response to the manner of his presentation and approach. It is a pity that he adopted such an attitude. On behalf of the Fine Gael Party, I intend to continue to tease out these issues in the best way possible in the limited time that is available.
I proposed the amendment to Article 2 without demanding in any way that it be carried. I would be worried if it were accepted without due explanation from the Government. I proposed the amendment in the context of the overall examination, in its entirety, of the Constitution. If we are to amend the Constitution, I recommend that we should, at least, examine those possibilities. I ask the Government to give serious consideration to the amendment of Article 9 to include the words, "notwithstanding Article 2", thereby giving Article 9 supremacy.
I am usually concerned about the full wording included in the proposal. The length of the wording leaves it open to possibilities of argument and court challenge, based on the interpretation of different parts of it. I refer in particular to a baby who does not have, at the time of his or her birth, at least one parent who is an Irish citizen. That is just one example of the kind of complexity that can arise as a consequence of the manner in which this is presented. Much as I admire the legal expertise of the Minister of State, Deputy Brian Lenihan, it would have been helpful to have been able to analyse these issues with an independent legal expert. The Minister for Justice, Equality and Law Reform is bound and constrained by his office. He is bound to follow the party line.
The Attorney General does not have a party line.
He has to follow a two-party line.
We have not seen the Attorney General's advice. It is said that doctors differ and patients die, but lawyers differ and they still get paid. I respect the view of the Attorney General, but I will not bow in front of it, even as a country attorney. I am bolstered by a lengthy opinion from one of the most eminent senior counsel at the Bar.
He is a future Attorney General.
He has put himself in the running to a considerable extent, but I had better not go into that at this stage. We will wait until after the next election to finalise such matters. I mentioned earlier Dr. Gerard Hogan, who is not my adviser but whom I usually respect. I understand that he happens to be a member of the same party as the Minister, Deputy McDowell. As a member of the Constitution Review Group, he examined this entire issue and was party to the group's recommendations, produced under the chairmanship of Dr. Whitaker. The CRG's recommendations were not followed up in the nineteenth constitutional amendment in 1998. It is clear to me from a legal point of view — I am leaving aside the other issues — that the kind of issues we are considering should have been discussed and fully teased out in a non-adversarial manner by an all-party group. I would have welcomed an invitation to somebody like Dr. Hogan to come to such a meeting to assist in that process. We have not had such an opportunity, however.
My real concern is that we are engaging in a dangerous process. While all legislation should be the subject of careful perusal and full debate, it is clear that extra care should be taken when we are amending the Constitution. The bulldozing efforts of the Minister, Deputy McDowell, have meant that the proposed constitutional amendment is getting less attention than it deserves. The kind of issues we are discussing have surfaced in recent weeks. There has not been enough time for reflection, consideration, teasing out the issues and getting advice and I worry that, as a consequence, Parliament will not have fully done its duty in respect of this issue. The real problem is that it may transpire that this amendment will have unforeseen consequences.
I recall from my early days in this Parliament the first constitutional amendment on abortion. There was absolute fury from the wings, as people said, "You must do this". An emotional tide swept that amendment into the Constitution. The amendment was ill-considered — one might even call it ill-conceived — and had unintended consequences that were pointed out at the time as being possible. This is why I am concerned at this process.
As there is only half a minute left, is the Deputy pressing the amendment?
I will not force it to a vote. I see this debate as a continuum and I am prepared to move to the next amendment. It has been an interlocking debate with crossover between the amendments.
Is the amendment withdrawn?
I wish to reflect on it.
Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.