Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I move amendment No. 18:

In page 9, between lines 36 and 37, to insert the following:

"(4) A refusal by the Minister to issue a passport under this section may be appealed to the District Court.".

Gabhaim leithscéal mar nach raibh mé anseo níos luaithe nuair a moladh na leasuithe.

The rationale for this provision is similar to that for the group of amendments dealt with prior to the last group of amendments. The Bill gives huge discretionary powers to the Minister and in the context of this section, it is the power to refuse to issue a passport. The Minister has the power to cancel or take back a passport under an earlier section but under this section he or she has the power to refuse to issue a passport in the first instance. The constitutionality of this provision is open to question, given that an individual is either a citizen or not a citizen of the State and a citizen should be entitled to a passport. If restrictions are to be placed on the use of the passport issued, well and good, but an individual as a citizen should be entitled to a passport.

I argued this point at length on Committee Stage. What right has a Minister, on the basis of his or her opinion or that of his or her Government colleagues, to deny an Irish citizen a passport and, therefore to deny that citizen the right to leave this State? Other states can refuse to allow an Irish citizen into their jurisdictions in the same way that we can refuse to allow into this jurisdiction an individual who presents himself or herself and who is considered to pose a danger or a threat. However, in this instance, we are denying somebody the right to leave this State and confining him or her to this State. States other than member states of the European Union require a person to have a passport to travel to them and even within the European Union, a person is required to have a national ID. As citizens here do not have a national ID, a passport is the document that establishes their credentials, although a driver's licence is accepted in some instances.

Under this section, the Minister is depriving an individual of a fundamental liberty. The Minister outlined on Committee Stage that power could be exercised in circumstances where there was a danger to public safety or the issuing of a passport would be contrary to the common good, but I have not heard of an instance that would stand up to a refusal to issue a passport being the right course of action. There are other courses of action that can be taken, other than refusing a passport in the first instance, if a person is considered a threat to the common good or to public safety.

The provisions of this Bill in assigning these powers to the Minister and to a passport appeals officer, a point to which I will return, to cancel or to refuse to issue a passport constitute a judicial function. Does this provision amount to the Minister exercising a judicial function? In the way it is worded, I believe it does. The Minister of State should re-examine this section and perhaps the Minister should be required to apply to the courts to refuse the issuing of a passport, if he or she wishes to go down that route.

The amendments I tabled are direct in stating a person refused a passport has the right to appeal that decision to the District Court. While the Minister of State might say that one can appeal any matter to the District Court or to the other courts, if he is adamant that this is the way to proceed, at least this amendment will ensure it is explicit that a person so refused a passport has the right to appeal that decision to the court.

I read into the record on Committee Stage points of law that are relevant in this regard. Mr. Justice O'Flaherty, in the Keady versus Garda Commissioner in 1992, held that in the exercise of judicial powers, an exercise is judicial in its nature if there is contest between the parties — there would be if the Minister refused to issue a passport — that can result in the infliction of a punishment or liability — supplementary criteria were stipulated in another case — and that the function is of far-reaching effect and importance. In terms of all those points the provisions in this regard are repugnant to the Article 37 of the Constitution and contrary to that judgment made in 1992. There is a contest in this instance, a liability can be imposed because the applicant is denied his or her liberty to travel outside this State and the decision has a far-reaching effect and importance. I urge the Minister of State to re-examine this section. That is the basis of amendment No. 18. Amendment No. 25 is related and it provides for the inclusion of a reference that a cancellation of a passport can be appealed to the District Court.

Amendment No. 32 is the final amendment in this grouping. In regard to the section dealing with appeals, we argued on Committee Stage as to point or purpose of a passport appeals officer structure being set up, when such an officer will have no power. It will represent merely the establishment of another quango. All a passport appeals officer will be able to do is confirm the decision of a Minister or recommend that it be set aside, but such an appeals officer will not have the power to set it aside. Therefore, such a decision will be referred back to the Minister who in the first instance refused to issue the passport. That section should be removed and it should be implicit that appeals should be referred to the court, or otherwise the appeals officer should be given the power to set aside the Minister's decision in such circumstances. That is the effect of my amendment No. 32.

These are reasonable amendments. I doubt the Minister will take them on board because Ministers tend to want to have all these powers and to face the challenge of having to defend themselves in the Supreme Court at a future day. That would be the effect of this provision. I asked on Committee Stage how many passport applications had been refused to Irish citizens. The Minister of State said it was very few as this was not a power Ministers have exercised. I do not believe it is a power they should have over Irish citizens. This whole section needs to be looked at again and the powers being bestowed on the Minister.

See this speech in context