Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Question 39: To ask the Minister for Justice, Equality and Law Reform his views on the final observations of the Irish Human Rights Commission on the Government's proposed citizenship referendum. [16359/04]

Michael McDowell (Dublin South East, Progressive Democrats)
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The Irish Human Rights Commission produced a 32-page document of observations on which it would not be possible for me in the limited time available for parliamentary questions to give a detailed response. I propose to concentrate on the principal points made in those observations.

In summary, the commission asserts that being an Irish citizen makes the enjoyment of human rights in the State certain whereas, for the non-citizen, there is legal uncertainty and possible exclusion from the enjoyment of those rights. I do not accept the soundness of this assertion because its logical conclusion would be that in order to guarantee the protection of the human rights of a non-national present in the State, the State must confer Irish citizenship on every non-national who is in or comes to the State. This is a patently unacceptable proposition.

In publishing this assertion, the commission has not identified any respect in which the protections afforded by Irish law for the fundamental human rights of a non-national within the State would be diminished, either because that person is a non-national, or because that person would be affected by the acceptance of the referendum proposal. When I first saw the aforementioned arguments sketched out in an initial response by the commission I said they were weak, tendentious and fanciful. My view has not changed. The arguments have not been fleshed out in a way that would give them any greater weight, although they have greater size in the 32-page document.

The commission also asserts erroneously that the referendum proposal may be inconsistent with the State's obligations under the UN Convention on the Rights of the Child, which Ireland ratified in 1992. The referendum proposal is that the Oireachtas be given power to determine by legislation the future acquisition and loss of citizenship of a class of persons born in the State to parents neither of whom was an Irish citizen or was entitled to be an Irish citizen at the time of the child's birth. The proposal, if accepted, will restore in part the position that prevailed at the time of Irish ratification of that convention, a position in which the Oireachtas had power to make such legislation in respect of all classes of persons whether born in Ireland or not. If the present proposal were inconsistent with the UN Convention on the Rights of the Child, then so would have been the Irish constitutional position that we ratified in 1992. However, that was clearly not the case. Accordingly, I reject this second assertion also.

Additional information not given on the floor of the House

The commission acknowledges that there is an inconsistency between the British-Irish Agreement, at Article 1(vi) and Annex 2, and the wording of Article 2 of the Constitution which was included in the multi-party agreement at Annex 1 to the British-Irish Agreement. The commission's observations do not appear to take proper account of the joint interpretative declarationmade on 21 April last by the two Governments, whereby they acknowledge that it was not their intention in making the British-Irish Agreement that it should impose on either Government any obligation to confer citizenship on persons born in any part of Ireland whose parents do not have a sufficient connection with the island of Ireland and that the proposed constitutional change was not an amendment of the British-Irish Agreement.

I remind the House that I have asked the commission for its observations on the draft implementing legislation published by the Government in conjunction with the referendum proposal. This is the legislation that will follow in the event of a "Yes" vote in the referendum. I am anxious to ensure that the commission's observations in due course on that draft legislation will inform the debate on the implementing legislation.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I could not expect the Minister to give a full answer to the document which, in its entirety, concluded that the data on which the Government has relied to date are totally insufficient to allow anybody to infer the motives of non-nationals giving birth in Ireland. The document also concluded that the Government had not given sufficient consideration to the future constitutional protections of children born in this State whose parents are not Irish citizens. Moreover, it points out that the Government has failed to demonstrate that the interest of the child has been fully considered or that the proposal will not lead to discrimination in the enjoyment of rights or that it will not be applied in a discriminatory fashion. It is obliged to demonstrate this under international law.

Will the Minister clarify whether he regards the Human Rights Commission as a ginger group, given the terms he used to denigrate another credible statutory body last week? Does he believe human rights will lead to feudalism?

Will the Minister comment on the detailed analysis of the Children's Rights Alliance, bearing in mind that I do not expect him to give a detailed response as it is 34 pages long? The alliance's conclusions support not only those of the Human Rights Commission but also the views of those of us who identified problems and asked questions in respect of the referendum proposal and its motives.

Michael McDowell (Dublin South East, Progressive Democrats)
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Implicit in the Deputy's line of argument is that a child who came into this country with his non-national parents and who is in a playground standing beside a young Irish child born to Irish parents has different fundamental protections under our Constitution than the other child. I reject that suggestion. Despite the 32-page document and the conclusions of the Children's Rights Alliance, not one credible argument has been forwarded to support the suggestion. If we believed that a child of non-national parents, who itself is a non-national, had fewer fundamental rights and freedoms under the Constitution than an Irish child born to Irish parents, we would be under an obligation to reform the whole Constitution to extend the rights of the child born to Irish parents to every person within the State. It is very strange that this argument was never addressed to us by the Human Rights Commission until this referendum was proposed.

Deputy Ó Snodaigh made the slightly irrelevant but nonetheless timely remark that I had somehow denigrated the Equality Authority. I did not do so. I said the Equality Authority was both a statutory body and a ginger group. By the term ginger group, I meant, in a most uncritical way, a body whose job it is to formulate ideas and make proposals ahead of the consensus of a society in order to advance the debate. That is a fair description of what the Equality Authority has done in respect of many matters.

By statute, both the Human Rights Commission and the Equality Authority are independent institutions. It would be remarkable, therefore, if all their opinions were shared by a Minister automatically. On this occasion, I say respectfully to the Human Rights Commission that I believe its arguments are not substantial. It came as a disappointment to me that it did not consult my Department on any of these issues before it advanced its 32-page document. I felt it was a bit unworthy that a number of its leading members went into print in advance of the consideration by that commission of the issues on a collective basis.