With regard to amendments 1 and 2 in my name, the Minister has very kindly sent me some observations on these amendments and I am satisfied from those observations that my amendments would not be necessary and accordingly I propose not to move them.
Gaeltacht Ministry. - Irish Nationality and Citizenship Bill, 1955—Committee Stage.
I move amendment No. 3:—
In line 32, to add "unless and until his naturalisation is revoked according to law".
It did appear to me that the words "shall remain an Irish citizen" were not quite clear. I appreciate what is meant is that such a person would remain an Irish citizen, although the Act under which he became one was revoked. It does seem to me that a person does not get Irish citizenship in perpetuity and that the citizenship might be revoked in certain circumstances.
Sub-section (5) of Section 19 makes it quite clear that the power to revoke a certificate of naturalisation applies to certificates granted under the 1935 Act. We do not think it desirable to make any reference to revocation in Section 5, if only because the citizenship of most people affected by it is incapable of being revoked. Therefore, I am unable to accept the amendment.
I move amendment No. 4:—
In sub-section (2), lines 38 and 39, to delete "an Irish citizen at the time of that person's birth or becomes an Irish citizen under sub-section (1)" and substitute "born in Ireland or was naturalised."
Section 6 is, of course, the most important section in the Bill. It did appear to me to be extremely involved in its drafting and I must confess that I have very considerable doubts as to what its effect in certain cases might be. Sub-section (2), as drafted, provides:—
"(2) Every person is an Irish citizen if his father or mother was an Irish citizen at the time of that person's birth or becomes an Irish citizen under sub-section (1)...."
I propose to amend those words to "every person who is an Irish citizen if his father or mother was born in Ireland or was naturalised." I am aware that the Minister has difficulty about accepting that.
Is the difference between Senator Cox's amendment and the text of the sub-section not that the sub-section gives a person the right to be a citizen if he registers, if he expresses his desire to have citizenship conferred upon him, but, as far as I understand the drafting of Senator Cox's amendment, it would make him a citizen automatically? I do not think he intends that—does he? The intention is to preserve the direct line of blood and, if a person of an Irish father or mother desires to become an Irish citizen, give him the right to become one, but not make him one automatically by the text of the Bill. Is that not correct?
We are speaking of sub-section (2) of Section 6 and I understand that the effect of that is to make one an Irish citizen if one complies with it.
There is no question of any option or election there. The whole point really turns on sub-section (4) of Section 6 which relates back. Under sub-section (4) of Section 6:—
"A person born before the passing of this Act whose father or mother is an Irish citizen under sub-section (2), or would be if alive at its passing, shall be an Irish citizen from the date of its passing."
I understand that to mean that, so to speak, retrospectively, the father or mother is deemed to be an Irish citizen, but then, apparently, one has to read that again in conjunction with sub-section (2) of Section 7 which goes back on sub-sections (2) and (4) of Section 6 and provides:—
"(2) Neither sub-section (2) nor (4) of Section 6 shall confer Irish citizenship on a person born outside Ireland if the father or mother through whom he derives citizenship was also born outside Ireland, unless—
(a) that person's birth is registered under Section 27, or
(b) his father or mother, as the case may be, was at the time of his birth resident abroad in the public service."
It would be better if we took amendments Nos. 4 and 5 together.
The whole scheme seems to bring Section 6 and sub-section (2) of Section 7 together. To understand sub-sections (2) and (4) of Section 6, one has to refer to sub-section (2) of Section 7, which has a direct bearing on it. I do not know whether my words improve it at all. At the time I drafted them, I thought they might. I understand that the idea really is that if a person, A, was born in Ireland and emigrated that might carry citizenship to the third generation, but no further. That is my understanding of it. If the Minister does not think that my amendment clarifies what is admittedly, I think, an extremely obscure section, naturally, I will not press it.
I have had this amendment very carefully examined. I presume that Senator Cox's intention was to simplify the drafting and not to make any change of substance. I would not be agreeable to a change of substance and I am advised that the draft suggested by Senator Cox would not meet the needs of the situation.
Let us take an example. A is born in Dublin in 1930. He is an Irish citizen. He emigrates and his son B is born in New York in 1960. B is a citizen. In due course B has a son, C, born in New York in, say, 1990. The intention is that C, being in the direct blood line will be a citizen if he registers. That is achieved by the first part of sub-section (2) of Section 6 ("every person is an Irish citizen if his father or mother was an Irish citizen at the time of C's birth")—subject to the registration provision in Section 7 (2) which applies to C. Now, if we substitute Senator Cox's draft, we find that there is no provision under which C could be a citizen otherwise than by naturalisation.
One of the principles on which this Bill is framed is that people in the direct blood line, even though they are of the second generation born outside Ireland, should be citizens if they voluntarily opt to maintain the connection. We are not imposing citizenship on them but we think they should have a right to citizenship if they wish to assert it. That is the reason we are unable to accept the Senator's amendment.
If the Minister has considered it, of course, I will withdraw the amendment, but I must say that the section is extremely obscure. However, I withdraw the amendment.
I move amendment No. 5:—
In sub-section (4), line 44, before "born" to insert "alive at the passing of this Act and"; in lines 44-46, to delete "whose father or mother is an Irish citizen under sub-section (2) or would be if alive at its passing" and substitute "whose father or mother was born in Ireland or was naturalised".
This amendment really goes with amendment No. 4. As amendment No. 4 has been withdrawn, I withdraw the amendment.
Senator Skeffington, who, I am sorry to say, is laid up, asked me, as I was moving other amendments, if I would formally move his amendment. Accordingly, I move amendment No. 6:—
In sub-section (1), lines 52 and 53, to delete "6th December, 1922" and substitute "16th December, 1925".
I know that the Minister has a reply to that and I have just formally moved the amendment.
I should like to support Senator Cox in this amendment. I think it is important from our point of view. I know Senator Hayes will feel annoyed with me for saying this——
I did not say a word. I should not be made a bogeyman.
I am sorry. I feel it is very important from the point of view of our Party, because at that juncture in Irish history, there was only one Opposition Party in this House and that was the Labour Party. The other fraction of the Sinn Féin Party had not arrived. At that juncture, the Labour Party fought very bitterly against an agreement made. I support the amendment because I think it will give a more factual account of Irish history at that time. I would like to have it on the records of the House again that at that time the Labour Party was opposed to the agreement reached.
Perhaps the House might permit me to quote from the Official Report dated 16th December, 1925, Volume 6, column 124, where Senator Farren said:—
"Partition was imposed on us by an alien Assembly, but this is the first occasion on which any body of Irishmen in this country are asked to agree to set up a border line between the people of this land."
That was the point of view expressed by our Party at that time. I should also like to point out that if that other fraction of the Sinn Féin Party which has since become known as Fianna Fáil had recognised their democratic duty and been in attendance in the House, the situation that developed might have been very different.
The Senator is going very far outside the scope of the Bill.
I only wanted to make that point and I will now sit down.
I cannot see that any good purpose would be served by accepting this amendment. The date in Section 7 (1) of the Bill—6th December, 1922—is the date of the coming into operation of the Constitution of Saorstát Eireann, and Irish citizenship, established by Article 3 of that Constitution, is based on domicile in Ireland on 6th December, 1922. That date is also a determining date for citizenship established under the Act of 1935.
As I said before, I cannot see how, at this stage, the substitution of the date in 1925 suggested in the amendment would serve any useful purpose.
I move amendment No. 7:—
In sub-section (2), lines 2 and 3, to delete "the father or mother through whom he derives citizenship was also born outside Ireland" and substitute "both his father and mother were born outside Ireland".
Sub-section (2) of Section 7 says:—
"Neither sub-section (2) nor (4) of Section 6 shall confer Irish citizenship on a person born outside Ireland if the father or mother through whom he derives citizenship was also born outside Ireland, unless—
(a) that person's birth is registered under Section 27, or
(b) his father or mother, as the case may be, was at the time of his birth resident abroad in the public service."
In that there seems to me to be a contradiction in terms.
The amendment is only a drafting amendment and the wording in the sub-section appears to the draftsman to be quite clear.
I move amendment No. 8:—
In line 14, before "of" to insert "in writing to the Minister."
Paragraph (c) of Section 15 states:—
"(c) he has (in the case of application made after the expiration of one year from the passing of this Act) given notice of his intention to make the application at least one year prior to the date of his application."
I suggest that the application should be in writing.
The section intends, of course, that notice in writing must be given to the Minister and, in fact, it is intended that the statutory form of application to be prescribed under Section 17 will specifically refer to the necessity for advance notice to the Minister under Section 15. As the Minister has an absolute discretion to refuse a certificate, there could be no question of an applicant quibbling that he has given notice in some other form and that he has a right to a certificate; but the statutory regulations will prescribe the form and manner in which application for certificates of naturalisation must be made.
I move amendment No. 9 in the name of Senator Sheehy Skeffington:—
In paragraph (d), line 16, to delete "one year's" and substitute "three years' ", and, in line 20, to delete "four" and substitute "five".
Senator Sheehy Skeffington's proposal was to increase the period in paragraph (d).
There is something to be said for this amendment, but on full consideration, the Government feel that the periods of one continuous year, plus four years in the previous eight, are adequate in which to determine whether an applicant is a fit and proper person for the grant of a certificate of naturalisation. These are the qualifying periods under the Act of 1935 which is now being repealed.
As the Minister for Justice may, at his absolute discretion, refuse a certificate, fulfilment of the residence requirement does not by itself mean that the applicant will get a certificate. If the Minister is not satisfied as to the applicant's good character and his intention of having his future residence in Ireland, he is precluded from granting a certificate.
Of the 1,526 certificates of naturalisation granted since 1935, not even one case has come to notice in which the holder would be refused a certificate if he had to apply all over again. Care is exercised in the grant of certificates and fulfilment of the minimum statutory requirements does not necessarily mean that any application will succeed.
I move amendment No. 10:—
To add a new sub-section as follows:—
(3) The Minister shall have power to make regulations in regard to the granting and revocation of naturalisation.
I propose that there should be added a provision that the Minister should have power to make regulations in regard to the granting and revocation of naturalisation. I did not believe that the Bill expressly gave that power, but I understand that the Minister is satisfied that he has the power and I will not press the amendment.
I have been asked by Senator Sheehy Skeffington to move amendment No. 11:—
In sub-section (1), to delete paragraph (b).
I do not propose to press it.
I move amendment No. 12:—
In sub-section (1), paragraph (b), line 15, before "or" to insert "Provided always that an appeal shall lie to the High Court of Justice from such revocation".
This is the section under which I have suggested that there should be an appeal by a naturalised person to the High Court of Justice from a revocation by the Minister of the grant of naturalisation. Obviously, if a person has been naturalised, it is a very serious step to cancel his naturalisation and revoke it. It would appear to me that, in so serious a matter, it should not be left entirely to the discretion of the Minister, but that the person who has been naturalised and now finds it is alleged that he has done something which justifies his being denaturalised and possibly then becoming a stateless person, should have a right of appeal to the court.
Does not the section improve the position as it is at present, which is that the Minister may give a certificate in his own absolute discretion? The section makes provision for a committee of inquiry, with a chairman with judicial experience. Is that not a great improvement? Citizenship is a privilege conferred upon people, and I am not too sure that the idea of having a ministerial decision on a matter of this kind appealed, after a committee of inquiry presided over by a person with judicial experience, is a good idea. The numbers of revocations are very small, and revocations are only operated in pretty serious circumstances. While there is a good deal to be said in theory for the appeal to the High Court, in practice I doubt if it would prove to be desirable.
My submission is that one can hardly imagine anything more serious or any penalty greater than loss of the status of citizenship. An alien who has come here and presumably lived here for a very long time, behaving well, had been thought worthy to be naturalised, and it seems a very great penalty to lose his naturalisation and, so to speak, be expelled from the country and have no status thereafter, without having an opportunity of going to the court. After all, the smallest sentence of imprisonment is a matter for a court, and one can scarcely imagine anything more serious than to be deprived of one's nationality.
Yes, but suppose we look at the facts. Over the past 21 years, 1,500 persons have taken out citizenship papers and the only revocations have been cases of persons who were more than seven years in residence abroad and intended to have their permanent residence outside the State. Therefore, in 21 years, there has been no case of citizenship being taken from a person in circumstances where he would appeal to the court. I do not know whether Senator Cox knows of any country where you can appeal to the High Court of the country from a ministerial decree that your citizenship is revoked. I think the section the Minister has now put into the Bill, with the committee and a chairman of judicial experience, is better than the circumstances that apply in most countries. I doubt if this amendment should be put in. It purports to meet a case which in 21 years has never occurred and is very unlikely to occur.
Before making a decision on this amendment, perhaps if we had a little more information it might help the House to clarify its mind. As Senator Cox very rightly points out, to deprive a person of nationality that you have given him, who, before you gave it, has satisfied certain conditions of residence, proof of character and so on, and to deprive him of right of appeal to the High Court or the Supreme Court, if necessary, seems to me at this stage at any rate, for lack of information, to be rather strange. In what circumstances does the Minister visualise that such action would be taken? Past history does not help us, because in 21 years no cases have arisen. Why is the Minister taking to himself this power? In what circumstances?
The power has always been there.
I know that. What particular set of circumstances does the Minister perceive would make it necessary to use this power? There are other countries where there are certain things definitely laid down that will deprive you of your citizenship. For instance, a citizen of the United States who resides in a country other than the United States automatically loses citizenship, if he votes at an election there. I do not think we can apply that rule here, in view of what some of our citizens are doing at the moment.
I want to support this amendment. The case which Senator Cox makes seems to me to be a very good one, and it is reinforced by Senator Crosbie. I must say that I feel that the very fact that no case has arisen is not an argument against having a right of appeal to the courts of law. It is really a point in its favour. The thing apparently has not happened at all before and probably will be a very rare occurrence. I feel that that is all the more reason why an appeal should lie to the court, because I feel that nowadays there is too much side-stepping of the law courts. I feel it is a very bad feature of our modern state that, in the name of speed and expediency, the Minister's convenience, and so on, we are more and more getting away from the citizen's right of appeal to the courts. I feel this is a glaring case where there should be the right of appeal to the courts, instead of to an ad hoc committee.
The section reads:—
"(1) The Minister may revoke a certificate of naturalisation if he is satisfied:—
(a) that the issue of the certificate was procured by fraud, misrepresentation whether innocent or fraudulent, or concealment of material facts or circumstances, or
(b) that 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 or, (c) that (except in the case of a certificate of naturalisation which is issued to a person of Irish descent or associations) the person to whom it is granted has been ordinarily resident outside Ireland (otherwise than in the public service) for a continuous period of seven years and has not during that period registered annually in the prescribed manner his name and a declaration of his intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister."
Before the Minister can revoke a certificate of naturalisation, he must give due notice and the person concerned can claim to have an inquiry. There may be circumstances in which a person may be undesirable after some years by reason of his want of loyalty to the State. You may have the right to remove such a person, subject to his right of going before the committee.
As Senator Hayes has pointed out, there has never been a case in 20 years, but a case might appear ten or 12 years hence. I will withdraw this amendment now, but I should like to mention it again on the Report Stage.
I move amendment No. 13:—
In sub-section (1), paragraph (c), line 21, before "during" to insert "without reasonable excuse".
This amendment applies to the case of a naturalised person who has left this country and has been abroad and has applied for a new certificate. I suggest that the words "without reasonable excuse" should be inserted. I can easily visualise the case of a person who has been naturalised and who possibly goes abroad for health reasons, finding himself in difficulty and perhaps failing to report. I have a case in mind of an Austrian who lived here for a number of years and was naturalised. He had to go abroad to a warmer climate for health reasons and he is terrified by the idea that if one remains for seven years outside the country, one might find oneself denaturalised and becoming a Stateless person and perhaps referred back to a State to which one does not want to belong.
I do not know whether the words would improve the matter. The opening section says that the Minister must be satisfied before he revokes a certificate of naturalisation. Presumably the Minister, or the Department, would recognise the case of a resident who had to go abroad for health purposes. As the Minister has discretion in the matter, presumably reasonable excuse may be offered to him.
I suggest that the words in the amendment would at least emphasise that it is not to be an automatic effect if a person fails to report for seven years.
Would the person have the right to state at the court of inquiry what his excuse was? It would take into consideration under the section whether there was a reasonable excuse.
It would seem that this amendment does not propose to change the meaning. It is merely clarifying it rather than changing it in any way. I suggest that the Minister might be wise to accept it.
I will consider the matter.
I move amendment No. 15:—
Before sub-section (6) to insert a new sub-section as follows:—
( ) The Irish citizenship of the wife and/or children of a naturalised Irish citizen, whose certificate of naturalisation has been revoked under this section, shall not be affected by such revocation.
The purpose of this amendment is to insert a new sub-section so that the Irish citizenship of the wife and children of a naturalised Irish citizen whose certificate of naturalisation has been revoked under this section shall not be affected by the revocation. I formally move the amendment and I ask leave to withdraw it.
I hope that, between now and the Report Stage, the Minister will give further consideration to this question of a right of appeal to the High Court. When we confer citizenship on an alien, we give him certain privileges. Before we take these privileges away, for whatever cause, we should give him the same right of appeal as any Irish citizen has, that is, to the courts of this country.
I am not in the least impressed by this commission of inquiry presided over by some person of judicial experience. "Judicial experience" is a very wide term. It may be great judicial experience or very little judicial experience. A commission of inquiry is not quite the same as one of our courts. We do not know who the other members of the commission would be; we do not know whether this commission is to sit in public, whether it will be open to the public, to the Press, and so on and so forth. For all we know, it is little better than a Star Chamber Court. It is the kind of set-up that, where the rights of an individual are concerned, I must oppose with all the vehemence at my disposal. I think it is a very undesirable practice. I hope that, between now and the Report Stage, the Minister and his officials will give it further consideration. I very much doubt if a court of this nature would receive approbation in most democratic countries.
I should like to join with Senator Cox, Senator Crosbie and other Senators in appealing to the Minister to reconsider this section. The Constitution provides that the courts are one of the protections which an ordinary citizen has. If a citizen, whether a naturalised citizen or otherwise, is to be deprived of that right, then it is a serious infringement on his liberty. As Senator Cox has stated, the revocation of citizenship is a most serious act and when one considers that, in the case of even the smallest fine in the District Court, a defendant has a right to appeal to the Circuit Court, I fail to see why this committee, of whose composition we were not informed, should have the final say in this matter. All we know about this committee is that the chairman will be a person of judicial experience. That may be interpreted as a defendant in a court. At any rate, a chairman in such a capacity is extremely different from a judge of the High Court or the Circuit Court in the sense that he is not independent under the Courts of Justice Act. The judges appointed by the Government are independent and therefore can look at a matter much more objectively and with much greater freedom. A judge of the High Court who has practised for many years at the Bar and has qualified and sat at the High Court for possibly some time will be in a better position to adjudicate on a case of appeal against the decision of a committee which has been set up by a Minister.
We all know that, under the present Minister and probably under the Ministers we have had so far in our State, this committee would probably give a fair and square deal to somebody who is being deprived of his citizenship. I would point out, however, that this is permanent legislation. I think this may be all right in the right hands, but it could be very dangerous in the wrong hands. We have seen this kind of legislation used in countries in Europe. I know that in Poland existing laws were used by the wrong people to perpetuate injustices of the most flagrant and violent nature on citizens. In the future, this committee might not be all right and it would be very unsafe to give such powers for the future. Therefore, I ask the Minister to think again about this matter before the Report Stage and perhaps give the right of appeal to the High Court.
I promise the Seanad that I will have the matter about the High Court very carefully considered. Every Minister, no matter who he may be, will naturally be anxious to get rid of the responsibility, if there is a way out. It is our desire to have a good Bill, whether for all citizens or for people who may be deprived of citizenship. I appreciate the assistance I have received from the Seanad and I shall do everything possible to meet their wishes.
I move amendment No. 16:—
In sub-section (3), line 19, to delete "of an alien" and insert "of parents both of whom are aliens".
This sub-section relates to a child born in the State of parents one of whom is an alien and not entitled to diplomatic immunity in the State, but who is then a duly appointed consular or other officer of another country, or an official of an international organisation on official mission to the State. The parent or guardian of that child may renounce Irish citizenship on his behalf under sub-section (1) of this section in the same manner as that person himself could, if he were of full age, and notwithstanding that he is resident in the State. My amendment is moved because I think that this provision should not apply unless both parents are aliens.
As the section stands, apparently it could happen that if one of the parents was an alien holding one of these positions, whether the father or the mother, that person could renounce for the child, for ever, Irish nationality, even though the other parent might not be a party to it. I can quite understand that we are dealing here not so much with people with diplomatic immunity as with people who have very close ties to the foreign country when they come here. It is to be remembered that in this case it might be a woman official who might be involved. She might marry an Irish husband or a man official might marry an Irishwoman. I do not quite see why, in that case, one should give power to one parent to renounce for ever Irish citizenship on behalf of the child. It does not seem to be necessary. Therefore, I put forward this amendment so that the sub-section will apply only if both parents are aliens.
It is most unlikely that where one of the parents—the mother, presumably—is Irish, the other parent, being a foreign official, would renounce the Irish citizenship of the child without very good reason and unless it is in the child's interest to do so. If, however, he does wish to renounce it, I think that the special position of foreign consular officers, etc., must be recognised and that he should have the right to do so, no matter what his reasons may be. People of that kind stand in a special relationship to their own government and to their own country. Therefore, I am unable to accept the amendment.
I will not press the amendment, but I should like the Minister to consider it. It is to be remembered that an Irish person might be a duly appointed consular officer in a foreign country, so that you might have this case arising. The consular officer of a foreign office might be a secretary who might be an Irish citizen.
Does it not apply to the child of an alien? The Senator is really going too far on this now, Sir.
I move amendment No. 17:—
In sub-section (1), lines 12 and 13, to delete "other than a naturalised Irish citizen".
Under Section 28 of the Bill as it stands, a person who claims to be an Irish citizen may apply to the Minister or, if resident outside Ireland, to any Irish diplomatic officer or consular officer, for a certificate of his nationality, but that does not apply to a naturalised citizen. It seems to me that there might be circumstances in which a naturalised Irish citizen might be abroad and might not have with him his certificate of naturalisation and, possibly, in time of war, perhaps, a serious question might arise. I was thinking that he should have the right, just as much as a citizen by birth, to apply for a certificate to the Irish Minister there, so that he could show that he was an Irish citizen. It might be very important in certain circumstances and I find it very difficult to understand why he should not be given that right.
A naturalised Irish citizen is already in possession of a certificate of naturalisation and is that not prima facie evidence of his citizenship at any particular point of time? He can also get from the Minister for Justice a statement that his Irish citizenship has not been lost. As a matter of fact, the curious point about it is that the naturalised Irish citizen has a certificate that we have not got at all. He is better off than we are from the point of view of certificates.
Yes, but I should like to put the case that such a naturalised citizen, supposing he was abroad, supposing he had gone to Italy on holiday, might not have brought his certificate of naturalisation with him. Supposing war breaks out in which Italy is involved and we are neutral. He may have no ready means of proving straight away that he is an Irish citizen.
What means would the Minister have?
I find it very difficult to see why he should not be entitled to go to the Irish Minister in Rome, or wherever he might be, and obtain a certificate of naturalisation. It is the sort of thing that might arise in some emergency.
The Minister would have no means of finding out in that case. How could he know? What could he do, particularly in a state of war? I presume that I would not have much difficulty in convincing an Irish Minister somewhere that I was an Irish citizen.
My friend here suggests that I might. That is presumably because I have not got a Cork accent, but, even if I have not, how could a naturalised Irish citizen, say, a Slav, prove in Rome that he was a naturalised Irish citizen if he had no documents with him? As other matters are being considered on Report Stage, perhaps this could be considered also.