Pat Rabbitte (Dublin South West, Labour)

The Government may have been engaged over the past couple of days — and the Minister's excited condition is testament to it — in spinning madly the assertion that because the British Government is not bothered, there is no difficulty with the Good Friday Agreement. To help the spinning, it has tried as hard as possible to create confusion between the British-Irish Agreement and the multi-party talks agreement, implying that only one was relevant to this debate. As part of that process, it has secured the agreement of the British Government to a so-called legal interpretation.

I challenge the Government now to publish all the legal advice available to it on this matter. I challenge the Government to publish not only the Attorney General's advice received by the Government in the course of its preparation of the referendum proposal, but also all correspondence behind this so-called legal interpretation. This House, and the people, are entitled to read in full all the argumentation put forward to the Government by its legal advisers in this matter.

This week, both the Taoiseach and the Minister for Justice, Equality and Law Reform have slipped into their press comments sly references to the British-Irish Agreement when asked questions about the Good Friday Agreement. They are desperately trying to create a confusion between the two. The British-Irish Agreement is an international treaty and binding between the two sovereign states in the normal way. However, it has, as an annex, the multi-party talks agreement, the outcome of so many weeks of negotiation at Castle Buildings at Stormont.

The multi-party talks agreement, which deals in detail with strands 1, 2 and 3, rights, equality and so on, would not have of itself any binding status as a treaty, since it was not entered into between parties competent to contract in the international arena. However, the British-Irish Agreement is not capable of being interpreted without reference to the multi-party talks agreement. Given the entirely bound together nature of the two, it is impossible to argue that the two documents should not be read together as a coherent whole.

For example, the text of the proposed changes to Articles 2 and 3 of our Constitution were set out, in full, in the multi-party talks agreement, but its adoption, by Government order, is referred to in the British-Irish Agreement as the trigger that brings all the institutions, strands 1, 2 and 3, on line. They are both integral parts of the overall Good Friday package. The first part of the Vienna Convention on the Law of Treaties is relevant in this respect. It provides as follows:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: . . .

As I pointed out, the multi-party talks agreement is an annexe to the British-Irish Agreement, so the international treaty must be interpreted by both the British and Irish Governments in good faith in its context, which includes its preambles and annexes. We are entitled to know on what legal basis the joint "legal interpretation" from the British and Irish Governments feels free to depart from that principle, all the more so because this so-called legal interpretation represents a fundamental change in the legal understanding of the Government. On 20 April 1998 the Taoiseach wrote to my predecessor, Deputy Ruairí Quinn, stating: "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 Irish nationality and hence to citizenship." He went on to state in that letter that "considerations of peace in Northern Ireland would outweigh any concerns relating to immigration". This morning the Minister said that was a matter of political judgment in the context of the time, implying that if he had been in the Taoiseach's place he would have done differently. That seems an entirely inadequate explanation of the reply given to Deputy Quinn's questions at the time.

How, in the light of that, can the Government now sign up to a "legal interpretation" with the British Government stating that "it was 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 in any part of the island of Ireland whose parents do not have sufficient connection with the island of Ireland?" It is clear from the letter of 1998 that not only did they know what the intention was, they knew what the consequence would be, accepted it fully and went into it with their eyes wide open. It is fundamentally dishonest now to claim that this was all somehow unanticipated.

The Government's dishonesty goes deeper than that. On 14 May that same year, my predecessor asked the then Minister for Justice, Equality and Law Reform in the Dáil whether his Department intended to change the ground rules for Irish citizenship, because leaks to that effect had appeared in the newspapers. The Minister replied that a recommendation had been made by an interdepartmental committee to consider legislation that might eliminate the possibility of citizenship being granted to babies born to non-national mothers here. However, he said that matter, "will fall to be considered in the light of the agreement reached in the multi-party negotiations on 10 April and its implementation". The Taoiseach referred specifically to that reply in a further letter to Deputy Quinn on 21 May 1998, the day before the Good Friday referendum, stating, "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."

Did the Government bring that correspondence to the attention of the British Government when it was seeking the political cover of the legal interpretation after running into difficulty over recent weeks and finding this referendum was not the cakewalk its inspirers thought it to be? Did the Government tell the British Government it has always been aware that the consequence of changing Articles 2 and 3 would be to confer nationality, and hence citizenship, on every person born on the island of Ireland, and that it had always accepted this consequence? I doubt it. I repeat that those trying, as senior members of Government have in recent days, to convince the nation that they had never foreseen this consequence are simply not telling the truth.

We amended Article 2 of the Constitution in 1998 to preserve the rights of those from Northern Ireland to be Irish citizens, which was an integral part of the peace process, replacing the so-called "territorial claim". However, the Minister now proposes to amend Article 9 of the Constitution to directly override Article 2. No honest interpretation is possible except that this amounts to a unilateral amendment of the Good Friday Agreement.

We know from the Minister that the Northern parties were not consulted — they were simply informed. However, they have sat up and taken notice, including at least one party that never supported the Agreement in the first place and would welcome any precedent showing that the Agreement could be re-written at will by anyone.

The fact that the British Government is prepared, no doubt for its own reasons, to sign up to a legal interpretation at variance with the facts is not the point. The Taoiseach and the Minister for Justice, Equality and Law Reform have rejected concerns expressed about the citizenship referendum. They are both reported to have said the referendum would not cause any difficulty with the Agreement. However, each of them was careful enough to specify on tape that it would not cause any difficulty "with the British-Irish Agreement". This is the significant point the Government seems to be relying on. It is saying, in effect, that if the British Government has no problem from the point of view of the British-Irish Agreement — the only legally binding document in terms of international law — then a breach of the multi-party talks agreement is of no legal significance, since that document is a political rather than a legal document. This makes one wonder what is going on in the wider peace process at present which, as Deputy Jim O'Keeffe said, is a matter we do not have time to discuss today.

The attempted separation of the international treaty from the domestic political outcome of the Good Friday talks has no validity. The reality is that the elements of the Good Friday Agreement are inextricably part of the same package. The legal compact must be interpreted in the context it was arrived at, which includes its annexes. What, therefore, is going on in Irish constitutional terms? On the one hand, one would be entitled, by virtue of birth in Ireland, to be part of the Irish nation. On the other hand, notwithstanding any other provision of the Constitution, one could be stripped of the entitlement to both citizenship and nationality. Would one still, in some grandiloquent but meaningless gesture, be part of the Irish nation while, at the same time, not entitled to Irish nationality and citizenship?

There is only one precedent of which I can think. As Humpty-Dumpty said in a rather scornful tone when he met Alice through the looking-glass, "When I use a word it means just what I choose it to mean — neither more nor less". However, while Humpty-Dumpty was pontificating along these lines to poor Alice, he was sitting on a wall. We all know what happened after that.

If we consider a group of people who under Article 2 have an entitlement and birthright to be part of the Irish nation, we can see how this amendment would operate in practice, for example, how it would apply to a small group such as sportsmen. Steve Heighway, I understand, had neither Irish parents nor grandparents. He was entirely fortuitously born in Ireland. John Aldridge and Andy Townsend have two Irish grandparents between them. While Jason Sherlock has an Asian father and Paul McGrath is black, they both have Irish mothers. Paul McGrath was born abroad.

All of these individuals are part of the Irish nation. Indeed, how many times in the past have we all been proud to share nationhood with each of these individuals? However, what is the Government's cut-off point? Which of these five people should not in future be accepted as part of the Irish nation? Would it be the fortuitous birth, the grandparent rule or the child born outside marriage abroad? It is not good enough to say that the rule is not retrospective. If one does not want it to happen in future, it is because one thinks it should not have happened in the past.

It is striking that we propose to remove the rule of entitlement to citizenship by virtue of being born in the Coombe Hospital in the Liberties in Dublin, while holding on to the rule that an Irish-born grandparent can be produced by someone from Cricklewood or the Bronx to guarantee exactly the same result. Is there not a certain irony to the fact that a Fianna Fáil-led Government is seeking to amend Mr. de Valera's Constitution in order to remove an anomaly and cure an unintended citizenship advantage conferred purely by an accident of birth? It was Mr. de Valera's US citizenship that saved him from execution in 1916 — a citizenship that the infant son of two immigrants of uncertain status automatically acquired solely by reason of the fact that Mr. de Valera was born in New York.

The effect of this proposal is to create a "doughnut" form of citizenship entitlement, whereby those born in the heart of the capital city of this country can be excluded from citizenship, while there will remain far more people born abroad entitled to Irish citizenship than there are people entitled to it by birth in Ireland. They are entitled under the grandparent rule and there are millions of them, but the Government has no plans to amend that rule because most beneficiaries of that rule are English-speaking and white — some of them might even be good enough to play for Ireland.

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