Brendan Howlin (Wexford, Labour) | Oireachtas source

The Minister is very much downplaying what is a fundamental change in law. It is a matter of constitutional law, as determined by the Supreme Court. I make the general point that it is unfortunate that such a change would be brought in as a Committee Stage amendment without proper pre-legislative scrutiny. A number of external bodies, including the Irish Human Rights and Equality Commission, have significant views to express on this. I do not agree with the Minister that this is a small matter which is regularising an issue.

In October 2020, as the Minister has said, the Supreme Court in Damache v. Minister for Justice held that the current system for the revocation of citizenship acquired through naturalisation is unconstitutional. The court's findings centred on the lack of an independent decision-maker in the revocation process. It was held that the procedure, which the Minister instanced had been used eight times, was systemically flawed. The Minister for Justice stated on Second Stage of the Bill that section 19 of the Irish Nationality and Citizenship Act 1956 would be amended to give effect to the decision of the Supreme Court in the Damache case.

In Irish law a person's citizenship may only be revoked if they are a naturalised citizen. This means those who acquire citizenship through the naturalisation process do so on a contingent basis. Section 18 of the 1956 Act states that every person to whom a certificate of naturalisation is granted shall, from the date of issue and so long as the certificate remains unrevoked, be an Irish citizen.

In essence, this places naturalised citizens on a different footing from those of us who acquired citizenship by birth. There is in a very real sense unequal citizenship.

Revocation of citizenship is an executive decision made by the Minister for Justice. In Ali Charaf Damachev the Minister for Justice and Equality, the Supreme Court based its findings of unconstitutionality on the systemic flaws in the current procedure. It held that the process provided for under section 19 of the 1956 Act did not afford the procedural safeguards required to meet appropriate standards of natural justice, bearing in mind the potential severity of the consequences that occur when a person's citizenship is revoked. In essence, because the Minister both proposes revocation and, following consideration of the non-binding findings of a committee of inquiry, makes the final decision, the revocation process was found by the Supreme Court to be lacking an impartial and independent decision maker. A central point of the judgment of the Supreme Court in the Damache case was the gravity of the consequences of revocation of citizenship. We can all envisage what it would mean. It was due largely to the potential severity of the outcomes of a revocation that it associated fair procedure requirements and it is why those requirements are so high.

I want to put on the record that we are grateful to the Oireachtas Library and Research Service for providing comparative information. Its briefing states that the power to deprive dual nationals of their citizenship exists in the law of a number of states and that in recent decades in particular, there has been a resurgence in the prevalence of the usage of such revocation. Revocation is typically based on one of three grounds. The first is where citizenship was acquired through some form of fraud or deception and so the individual was never actually entitled to citizenship. The second is a failure of some form of residence requirement or the acquisition of another nationality and the third ground is a lack of loyalty to the state or actions otherwise contrary to the common good, usually as a result of some form of terrorist activity.

I do not believe there is any controversy about cancelling or revoking a grant of citizenship obtained by fraud. There probably would be consensus on that in the House. However, the third ground in particular has proved contentious for a variety of reasons. Revoking citizenship on grounds of disloyalty, according to the Library and Research Service, is widely viewed as being primarily a counter-terrorism response, especially a way to address national security questions. This response is described as "a reinvigoration of security-based denationalisation" - it is a mouthful of a sentence, but it captures the idea well - a practice that has been largely unused for several decades. I will quote from the Oireachtas report:

The justificatory language used in this context focuses both on revocation in such instances being in the public interest and as a valid form of sanction for the individual’s lack of loyalty to the State. This is a view whereby citizenship is a “privilege” which may be lost due to lack of national fidelity. This view of revocation as a punitive measure is becoming increasingly common.

My advice is that we need to proceed cautiously. I note the authors of several editions of Kelly: The Irish Constitution argued that the constitutionality of section 19 was highly questionable. In particular, they focused on section 19(1)(b) of the 1956 Act, which permits revocation where the person to whom citizenship has been granted has "by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State". The phrasing here comes from Article 9.3 of the Constitution, which states:

Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens.

It is worth noting that these duties are referred to as political rather than legal duties in the Constitution. It is also worth noting that these duties are expressly stated to be owed by all citizens and not just a category of citizen who happen to have become citizens through naturalisation. Nonetheless, this piece of political rhetoric has been taken from the Constitution and inserted as a statutory test. Those who fail that test can have their citizenship revoked. What the Constitution refers to as a political duty has been transformed by statute into a legal duty. It is hard to see that it serves properly as a legal duty because it is so difficult - I suggest almost impossible - to legally define. According to the authors of Kelly: The Irish Constitution, the duty and fidelity criteria in section 19 are so vague that they invite "an unpredictable, subjective application of a kind hostile to the concept of due process or due course of law". This argument was not considered by the Supreme Court in the Damache case, but it may well arise again and there are other worrying aspects.

The United Nations Convention on the Reduction of Statelessness is a 1961 UN multilateral treaty, whereby sovereign states agreed to reduce the incidence of statelessness. It creates positive obligations on states to eliminate and prevent statelessness in national legislation. Under Article 8.1 of that convention, "A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless". That is a legal obligation under the UN convention to which we are a party. We acceded to that convention in 1973, subject to the following reservation:

Ireland retains the right to deprive a naturalised Irish citizen of his citizenship pursuant to section 19(1)(b) of the Irish Nationality and Citizenship Act, 1956 on grounds specified in the aforesaid paragraph.

In short, this reservation means that Ireland is not legally obliged to consider potential statelessness when applying the section 19 revocation process against a person accused of disloyalty to the State.

The Library and Research Service states that the UK provides a useful point of comparison because until 2002, its system for revocation was similar the one currently in place in Ireland. It also states that the UK system was subsequently, the word used is "revitalised", and the UK powers to revoke citizenship are now unusually strong in international terms. UK Governments, which I stress have been Tory Party Governments in recent times, now have at their disposal powers to strip citizenship that are arguably broader than those possessed by any other western democratic state.

We should not be looking to the UK when adopting our approach to citizenship. The Library and Research Service also informed us, that New Zealand has adopted an approach that tends not to favour the revocation of citizenship of those who engage in terrorist activities and instead focuses on an appropriate domestic criminal law remedy. In Canada, a debate took place on new powers to revoke citizenship, essentially as a punitive measure. That is what it is in this Bill. It is using the revocation of citizenship as a method of punishment. It was argued that revocation as punishment does not provide an effective deterrent to those engaged in terrorist activities, but it reinforces that we have two classes of citizenship. If we go down this road, if naturalised citizens are accused of disloyalty, it will be possible for them to be punished by having their citizenship revoked, whereas Irish born citizens can be as disloyal as they like, subject to the law, but cannot have their citizenship - which is a fundamental right - revoked.

The Canadian approach provides an example of a state that introduced new revocation legislation in response to current events but which subsequently changed its mind and decided such powers were excessive.

We have tabled four amendments to the Minister's amendment No. 3. I will deal with amendment No. 2 to the amendment, which is out of order, separately. Amendment No. 1 to the amendment is:

After section 3(a), to insert the following: “(b) in section 19 (1) (b), by the deletion of “, by any overt act,” and the substitution of “, by any overt and specified act,”,”

Section 19(1)(b) of the 1956 Act provides that the Minister may revoke a certainty of naturalisation if satisfied "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". The amendment to the amendment is proposing the test be made clearer by referring to an overt and specified act. Basic rules of natural justice and fair procedure mean if you are accused of doing something wrong, you must be told what wrong thing you are accused of doing. You must be given particulars of the wrongdoing; otherwise, you cannot defend yourself against the accusation. Introducing the word "specified" therefore provides a safeguard against a vague or nebulous charge.

Our second amendment to the Minister's amendment has been ruled out of order. Prima facie, it does not directly relate to the Minister's amendment. Having regard to Salient Ruling 142(c), the Chair might be minded to reconsider the ruling. The precedent suggests when dealing with amendments to an amending Bill, amendments involving new matter may be permitted when the Bill is of a miscellaneous character. This Bill falls into that characterisation. This is an important principle. The House should not be confined to considering just the existing proposed amendments in a miscellaneous provisions Bill. We could not have proposed our stand-alone amendment to the 1956 Act since the amending of the Act from the beginning was outside the scope of the Bill as published. The Bill initially was not amending this Act and it falls within the scope of the Bill only because we were instructed at the start of the debate to return this debate to Committee Stage. We have had no opportunity to table this amendment other than as an amendment to an amendment. We will have no opportunity to table it on Report Stage because there will be no Report Stage amendments. None will be permitted because we are going directly to Report Stage after Committee Stage. The result of the procedure is, although amending the 1956 Act will fall within the scope of the Bill after this amendment, no amendment other than the amendment proposed by the Minister is or could be permissible. The spirt of Salient Ruling 142C suggests to my judgment a more permissive approach to the amendment to the amendment might be adopted. Otherwise, in essence we are saying the Minister can come in and basically recharacterise the Bill to amend a long-existing statute but nobody else can amend the statue because of the procedure we are adopting. Maybe the Leas-Cheann Comhairle will reflect on that.

Will I make a case for the second amendment to the amendment, briefly?

See this speech in context