Alan Shatter (Dublin South, Fine Gael)

I welcome the publication of this legislation. It is an anomaly that no detailed passport legislation has been enacted in the history of the State. The issuing of passports has, essentially, been a discretionary exercise carried out by the Minister of the day on behalf of the Government.

Many of the provisions in this Bill are worthwhile but substantial amendments are required if great difficulties are to be avoided in a number of areas to which I will refer. In one respect this Bill is seriously, if not fatally, flawed and will require very detailed amendment to ensure it works in a manner that protects people's constitutional rights.

I will first consider the fatal flaw in the Bill that must be addressed. It is important that the Bill sets out the backdrop to the issuing of passports and details the circumstances in which the Minister may decline to issue a passport and the circumstances in which passports already issued may be revoked. It seems that the manner in which some of these issues are being dealt with loses sight of a fact detailed in the explanatory memorandum and referred to in the Minister's speech.

Arising under the Constitution, in a law case in which I must make a declaration of interest — 20 years ago I represented the applicants in the particular proceedings — the courts held that people have a constitutional right to travel. The Minister referred to that right to travel. Based on the decision delivered in that case, every citizen has a constitutional right to travel. In order to travel they require a passport, except within the common travel area, although Ryanair and some other airlines have their own perspective and impose passport requirements. However, if we take it that people generally require a passport to travel, we start from a position, with the enactment of this legislation, that every citizen has a right to a passport. Rights in the Constitution are delineated by the common good. Therefore, this right is not an absolute right, but can be curtailed in circumstances that accord with the common good. This is a summary of the court decisions in this area.

These are issues the Minister has in mind in the content of this legislation. I wish to refer specifically to section 12, which deals with the refusal to issue passports and to a later section which deals with revocation of passports. Section 12, as phrased, confers a very wide discretion on the Minister. It states that the Minister shall refuse to issue a passport to a person in a number of circumstances — first, if the Minister is not satisfied that the person is an Irish citizen. This is reasonable and understandable. Presumably, if someone is an Irish citizen, he or she will be able to establish that fact. The second circumstance is if the Minister is not satisfied as to the identity of the person. This should not give rise to too much controversy. However, the area that gives rise to substantial difficulty is sub-paragraph 12(1)(c). It provides that the Minister can refuse to issue a passport to a person if:

(c) the person would be likely in the opinion of the Minister, after consultation, where appropriate, with the Minister for Justice, Equality and Law Reform or the Minister for Defence or both, to engage in conduct that—

(i) might prejudice national security or the security of another state,

(ii) might endanger public safety or order,

(iii) would be contrary to the common good, or

(iv) might endanger that person [That is the passport applicant] or others.

In a nutshell, this provision is designed to ensure that if we have our own domestic-grown citizen suicide bombers who want to use a passport to leave the country and perpetrate mayhem elsewhere, we can refuse to issue a passport for them, or we can refuse a passport to persons seeking a passport who have knowledge of matters relating to State security that could give rise to difficulties and place the State in danger. I have no difficulty with provisions (c)(i) or (c)(ii), the prejudice to national security or the security of another state or the danger to public safety or order. The State has a role to play in this area. It also has a role to play where people might endanger themselves or others.

People have a constitutional right to a passport. However, based on the way this legislation is drafted, a person can be deprived of his or her passport and his or her constitutional right to travel as a result of a secret discussion that takes place, between the Minister for Foreign Affairs and the Minister for Defence or the Minister for Justice, Equality and Law Reform, in which a conclusion is reached that if given a passport the person might prejudice national security or endanger public safety or order, or endanger himself or herself. That secret discussion takes place, but no information is furnished to the person concerned and he or she is deprived of his or her passport.

I have no doubt that if an individual citizen is deprived of a passport under this section, he or she could take the issue to the courts. This section is open to serious constitutional challenge. It is particularly open to challenge in circumstances where people are not given any information as to the basis on which they may be deprived of a passport and even more so in circumstances where there is no right of appeal. The legislation does not prescribe any statutory appeals mechanism for people for whom it is concluded a passport should not be provided.

I am not being naive about this area. I understand the Garda special branch may have information or the State may have received information from Interpol which would indicate the significant security risk attached to providing an individual with a passport. It may also be contrary to national security to make that information available in full to the person to afford him or her the opportunity to contradict it. Equally, it could be the result of tittle tattle, reports in the tabloid press or malicious information provided to the Government about an individual that leads to someone being deprived of the right to travel.

Earlier, Deputy Mansergh strayed into the area of tribunals and false allegations allegedly made against the Taoiseach. I will not comment on that matter. If it is true that people could give false information to tribunals to generate hearings that cost the State millions of euro, who can say some malicious individual who dislikes someone — perhaps a neighbour or someone who has done them down in business — may not furnish information seeking to prevent a person from obtaining a passport. There are major difficulties with the provisions of this section and significant constitutional problems attaching to it. If this legislation was referred by the President, under Article 26, for consideration by the Supreme Court, there is a serious possibility the provisions could be held to be repugnant to the Constitution and the legislation may never be enacted and signed into law.

There are also serious difficulties attached to section 12(1)(iii). This allows the Minister for Foreign Affairs, with or without a discussion with the Ministers for Justice, Equality and Law Reform and Defence, to deny someone a passport because he concludes it would be contrary to the common good. What does that mean? I was interested to note this was not spelt out in the Minister's speech. On what basis will it be concluded it is contrary to the common good that someone be given a passport?

Let us give an example. What, for instance, will happen if the Government is engaged in some controversial decisions and a meeting is to take place somewhere in one of the member states of the European Union at which Ireland is to sign up to some arrangement that is a cause of controversy at home? Perhaps it may be learned that a group of people plan to leave Ireland to demonstrate in the foreign country against the actions of the Government or Minister. If we had a particularly authoritarian Government — to put it at its most extreme a Chinese or Zimbabwean style government — or a Government that did not take too well to criticism on the international stage, would it not be hugely convenient to refuse, or at least delay, the issuing of a passport to prevent a person travelling, particularly if the person was known to be a member of an organisation going to demonstrate abroad, on the basis that it would be contrary to the common good or contrary to the good of Ireland in the context that it might, perhaps, affect our tourist industry or the image of the country?

Let us assume that in ten or 15 years we have a Government of a different political complexion. Perhaps Sinn Féin is the majority party in Government and it has a particular ideological view of the world and the rightness of its cause and wants to control those who criticise it on the international stage. This section could be invoked in those circumstances to deny people passports. In circumstances in which in a constitutional democracy people have a constitutional right to travel, articulated by the courts arising under Article 40.3 of the Constitution, to extend the discretion to Government to deny someone a right to travel on the very broad ground that it would be contrary to the common good — whatever that means — is far too wide and dangerous a provision and requires serious and further consideration.

The powers to revoke passports mirror these grounds. On any of these grounds, someone who has already been granted a passport can have their passport revoked and the first they may discover of it is when they are notified by letter to the effect that the Department of Foreign Affairs has revoked their passport. What do they do next? Are they given a reason? Are they entitled to a reason? There is no provision for that in the legislation. Is there anyone to whom they can appeal? There is no provision for that in the legislation. Is there any appellate system composed of independent individuals who can give further consideration to this matter? That is not in the system. Are they to telephone their Deputy? Are they to go to the High Court? Are we to create a whole new set of High Court proceedings?

If I have a passport and a constitutional right to travel, I do not believe the Government can arbitrarily revoke my passport without some form of procedure that gives me an opportunity to address any allegations made against me, in so far as that is possible within the context of protecting national security, and allows me to make my case as to the reason I should keep my passport. I urge the Minister of State to give detailed, serious additional consideration to the section that deals with the revocation of passports and the provision that deals with the refusal to issue passports.

A number of provisions in this legislation impact or impinge on what I would describe as the family law area. I know they are well intended but they are also in some respects a cause of substantial difficulty. Section 14(2) has an odd provision. It states: "If a parent of a child is not a guardian of the child, the Minister shall, in determining whether to issue a passport to the child without the consent to such issue of that parent of the child, have regard to the circumstances of the case in so far as they are known to the Minister." The purpose of that section, in a nutshell, is that if a child is born outside marriage, automatically the child's mother is a guardian of the child and the father is not a guardian. The father can apply for guardianship to the courts or become a guardian by the consent of the mother.

This section is clearly designed to facilitate some form of consultative process with the non-guardian parent, that is, the father of a child, in circumstances in which the mother seeks a passport but the way in which this operates is a mystery. The father of a child born outside marriage could contact the Minister or the Minister's office, knowing that a mother is seeking to have a passport issued, and tell the Minister something about the background circumstance and, without further ado, the Minister can deny the mother the right to a passport for her child. The child has a constitutional right to travel as well.

Let us take that a little further. There are circumstances in which children are born outside marriage in which the fathers refuse to support those children and mothers are forced to take court cases to get basic maintenance support and other financial help. There are occasions when those mothers are threatened by the fathers that they will make their life difficult if they take such action or if they progress the proceedings to hearing. A malicious father using this section, with regard to a mother of a child born outside marriage, could prevent a passport being issued if that mother wants to go on a holiday with her young child and needs to obtain the passport for the child, without the mother having any right of hearing, knowing the reason or being forewarned. That is a very odd way to deal with those matters. That subsection should be removed from the legislation. If the mother is the guardian, she has the right to seek the passport for the child. If the father has an objection, there are court procedures that should be available.

The father can make applications to the courts to be named guardian and to prevent a passport being issued if issues exist relating to the child's welfare. That should not be a function of the Passport Office in that way and it will cause difficulty and disadvantage to individuals who are caught in difficult family circumstances. Unless the provision can be amended to address that problem, it should be removed from the section.

Other similar difficulties arise. Subsection (8) of the same section provides that the Minister may, for the purpose of subsection (1), regard a consent given in writing by a guardian of a child to the issue of a passport to the child as being the consent of that guardian, essentially until the child attains full age. To take the example of a married couple, both have consented to the issue of a passport to the child, a passport is issued and the wife, for example, holds the passport, the marriage breaks down and the parent who does not hold the passport — in this instance, the husband, although equally it could be the wife — decides to leave the jurisdiction and abduct the child but they cannot get their hands on the passport. They then go to the Passport Office secretly, without the other parent knowing it, and apply for a passport. The Passport Office, under this section, examine their files — I presume some records will be maintained — and sees that there is already on file a consent from the other parent as guardian to the issue of a passport and a passport is issued. That section is misconceived also.

If there is a consent from a guardian to the issue of a passport, the consent should apply to the issue of that passport and should not continue to apply for the 18 years of a child's minority. That provision is a hostage to fortune and in this sad and tragic area where we have cases of child abduction by both mothers and fathers in circumstances where marriages break down, that provision is an invitation to threat. It provides a mechanism to facilitate the issue of passports without the other parent who is a guardian having any knowledge of any nature whatsoever.

In the context of this legislation, there are other difficulties to which I want to make reference. I am sorry if much of what I am saying is critical. It is good that this legislation is before us and it is important that we engage in a true legislative process and seek to have it made better legislation when it is passed by the House.

I have already dealt with what I referred to as the security provisions in the legislation. Section 18(1)(d) allows for the revoking of a child's passport when the Minister becomes aware of a fact or circumstances which satisfy him that, for the purpose of securing the welfare of the child, the passport be cancelled. That is open to abuse not just in circumstances where a child is born outside marriage, but in the case of a warring couple who are estranged, whose marriage has broken down and the mother resents the father taking children away for vacation periods or the father resents the mother doing so. Under this provision one of them could give information to the Passport Office which generates concern that something may be wrong although that is not the case. The mother or the father might end up in Dublin Airport trying to check in for a flight only to discover, unknown to them, their passports have been revoked. That should not be part of this legislation. It should be dealt with by way of court order.

In the context of those issues I want to ask a question of the Minister. I would have liked to address other issues but we will have an opportunity to do so on Committee Stage. What record system will be in place not just in his Department, but at points of departure from the State to indicate to airlines and others if someone presents a passport that has been cancelled or revoked? How will that be known? Will there be some central registry to which those who are licensed to do so can gain access? How will this information be known by those to whom it is relevant in the context of security issues in this State and travel arrangements? There are no provisions that I can see in this legislation that allow for that in a detailed way and that is something that must be further clarified.

See this speech in context