Michael McDowell (Dublin South East, Progressive Democrats)

It is the same day. I am fascinated that Senator Brian Hayes seems to think that if we held the presidential election on the same day as this referendum, none of the candidates in the presidential election would be expected or entitled to express views on a major issue happening on the same day. I very much doubt that and I do not think that anybody in good faith believes it.

I welcome the fact that because of the constitutional position it will be the case that the people of Ireland will be required to express a view on these matters. I see no merit in any attempt to ask them to express that view separate from the context of an election campaign. It is important that a good number of people turn out to vote in this election and not a narrow, ignored, academic paper exercise such as some of the referenda which have attracted a very low turnout. I believe the vast majority of the people are not racist and that they will be well capable of taking issue with any candidate who promotes a racist agenda or who seeks to exploit this issue to curry favour with them in regard to the local or European elections. Their views will also be informed by the work of the Referendum Commission. Perhaps I have more faith in the Irish electorate to be discerning in these matters than the proponents of the Opposition motion.

There are also sound practical reasons for holding the referendum at this time. It will save the State from the cost of having to organise a second polling day for this purpose. As I said earlier in regard to the presidential election, first, there is no guarantee there will be one and, second, it would not be either advantageous or particularly edifying to see the presidential candidates having to tog out on this issue and to see in particular, were it to be the case, the outgoing President forced to adopt a position on this because her opponents were adopting a position also. That is not desirable and, on reflection, I do not think this House will deem it desirable.

This issue is not new. In August 2002, the Department of Justice, Equality and Law Reform published a report which it had commissioned from the much respected International Organisation for Migration. The report was entitled International Comparative Study of Migration Legislation and Practice and was intended to inform the development of immigration policy generally. At pages 97 and 98 the report discusses the nexus between inward migration pressures and citizenship and questions how such pressures can be managed. It goes on to state:

It may be necessary, when the migration management aspects are being examined, to go deeper and consider whether the particular feature of citizenship law itself should be changed. It is acknowledged that, depending on the approach finally adopted, it might be necessary to consider a change to the Constitution.

The issue was also flagged for consideration in An Agreed Programme for Government and all sides of both Houses are aware that it was being kept under review by the Government. All parties have been supplied with a comprehensive briefing document, and that document is also available on the website of my Department.

One aspect that has not been well canvassed is the European Union dimension to this debate. Article 17 of the EC treaty provides that every person holding the nationality of a member state shall also be a citizen of the Union. It is an accepted principle of European Community law, and indeed international law, that the regulation of a state's nationality comes within its own reserved domain. In that regard Ireland is the only country in the European Union or its candidate states which gives an automatic entitlement to citizenship to every child born here from the date of that child's birth. Once Irish citizenship is acquired, however, a European Union dimension kicks in.

The free movement of persons is one of the fundamental rights guaranteed to citizens of the Union. It is subject to certain tightly defined limitations. Indeed, the full extent of these limitations is still being judicially explored. It has been the case that such rights were understood to apply to adult persons and their non-national dependants. However, in the Chen case which is currently before the European Court of Justice, a non-EU national is claiming an entitlement to reside in the United Kingdom on foot of her Irish citizen child who was born in Belfast. It is common ground in that case that the reason Mrs. Chen went to Belfast was to ensure her child, when born, would acquire nationality, thereby enabling her mother to raise a possible claim to remain in the United Kingdom.

This case illustrates one of the perceived advantages of the current free movement regime. Those advantages do not simply flow from an immigration-free status in the State. They flow from an immigration-free status for Irish citizens in the United Kingdom because of the common travel area. In addition, they flow from the extensive right of Irish citizens to move freely throughout the European Union and the full extent of the implications are illustrated by the Chen case, which I just mentioned. In effect, what we have is Irish citizenship law being used in an attempt to circumvent UK immigration control through the exercise of EU free movement rights.

I mention these facts simply to illustrate to Members of this House that there is a significant advantage to be gained by organising the birth of a child in the island of Ireland even where the parent in question does not seek or does not attain residency on that basis. This is why many women are willing to risk their own lives and the lives of their children by arriving here in the late stages of pregnancy. In many cases I have no doubt that they are operating on the misguided notion that it is in the best interests not of themselves, but of their unborn children.

It is one thing to be generous in the application of our citizenship laws, but it is another when those laws operate in a manner which motivates prospective parents to travel here at great personal risk and at danger to their children in circumstances where they would not contemplate having a child here otherwise. The Government's view is that this activity should be curtailed and that the people of Ireland should be asked to approve such a course in referendum.

I will now set out a brief history of the constitutional entitlement to Irish citizenship for Irish born children since 1937. Article 9 of the 1937 Constitution provided that any person who was a citizen of Saorstat Éireann prior to its coming into operation would become a citizen of Ireland. That was the only overt constitutional guarantee of citizenship that existed prior to 2 December 1999.

On that date the Government declared, under Article 29.7.3° of the Constitution, that the State had become obliged, pursuant to the British-Irish Agreement, to give effect to the constitutional changes. Thus it was the case that during that period of over 60 years the citizenship entitlements of all persons born in Ireland, which probably includes the vast majority of Members sitting in this Chamber this evening, were determined by legislation and not by overt constitutional guarantee. Consequently, it was never a fundamental tenet of the Irish citizenship regime that citizenship rights had to be guaranteed in the Constitution.

The reason such rights were enshrined in what is now Article 2 was in the interests of guarantees to the people of Northern Ireland and the removal of the territorial claim in the pre-existing Articles 2 and 3, in the context of the Good Friday Agreement. However, Article 1(vi) of the British-Irish Agreement — the intergovernmental agreement — only imposed citizenship commitments on both states in respect of the "people of Northern Ireland". Annex 2 to that agreement defines the common intention and understanding of both Governments of that term as meaning "all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence".

The two Governments had a common intent to provide for the people of Northern Ireland that they could be citizens of one or other or both states, regardless of what happened to the status of Northern Ireland in the future. That guarantee of citizenship would remain and the extinguishment of the territorial claim as set out in the old Article 2 would not prejudice the rights in particular of Irish nationalists in Northern Ireland, who cleave to this State and citizenship of it, to retain their citizenship in future. Both Governments understood that to be that case and expressed solemnly in their agreement that to be the understanding they were reaching.

However, the new Article 2 of the Constitution, which was introduced at the time, went much further. It did not mention the "people of Northern Ireland", but refers to the people of all of Ireland and the rights of people born anywhere in the island of Ireland. On reviewing the British-Irish Agreement, it can be seen that a joint enterprise, which was to confer rights of citizenship on everybody in Northern Ireland to be citizens of either state or citizens of both states and which had a very particular meaning, emphatically excluded the notion that somebody could go to Belfast, have a child and thereby become an Irish citizen. That was excluded from the joint understanding of both Governments.

Unfortunately, that understanding was not reflected in Article 2 of the Constitution as amended. Therefore, there is now a lack of symmetry between UK law and Irish law. In UK law, those who are transient do not confer any right of UK citizenship on their children born in Northern Ireland. However, in Irish law, as a consequence of the wording of Article 2, the legal advice to the Government is that an absolute right to citizenship from birth — not postponed — was conferred, regardless of whether it takes place North or South. Therefore it is the view of the Government that what is being proposed will not be in conflict with that agreement. It is also the case that while there is no general principle under which the State's obligations under any international agreement must be enshrined in the Constitution, it is most certainly the case that the Government cannot introduce legislation which is in conflict with its international obligations.

The Government's proposal for an amendment to the Constitution will not, of itself, have any immediate effect on the citizenship entitlements of those born after its enactment. The wording of the amendment itself will not be exclusionary. The regime as provided for under existing law will continue to apply until such time as suitable amending legislation is passed by the Houses of the Oireachtas.

The amendment will enable the Oireachtas to determine the citizenship entitlements of Irish born children who do not have an Irish parent at the time of birth. The Government will be publishing shortly a draft of the amending Irish nationality and citizenship Bill in the context of the referendum proposal. This will help to inform debate on the Bill to amend the Constitution during its passage through the Houses of the Oireachtas and during the subsequent referendum campaign.

Senators should be conscious that a vote for the constitutional amendment is a vote for the right of the Oireachtas to determine the citizenship entitlements of the children of non-national parents. I therefore respectfully suggest that it is not the case that one should reject the constitutional amendment simply because one finds fault with the Government's proposed implementing Bill. That is a separate issue.

It will be open to any Member of the Oireachtas to propose an amendment to the implementing legislation, which would maintain the status quo. That will not obviously be the Government's position but it will be a possibility, which comes within the ambit of the constitutional amendment. The effect of the constitutional amendment will be to enable the Oireachtas to decide the circumstances in which the child of non-national parents may become a citizen of the State, as was the case with all children born in the State for more than 60 years. I ask Senators to bear this in mind when considering the matter.

The Government's intention is that the legislation to accompany constitutional change will be carefully drafted to achieve the following aims: A person born, whether North or South, to non-national parents, either of whom has been lawfully resident in the State for at least three out of the four years preceding the birth, will have an entitlement to Irish citizenship. The European Economic Area, EEA, includes the European Union and certain other states. For non-EEA national parents, periods spent in the State for study purposes or while awaiting the determination of an asylum claim will not count.

A person born, whether North or South, to parents, one of whom is a British citizen or has an entitlement to reside in the UK and thus in Northern Ireland, without any restriction on his or her period of residence, will be entitled to Irish citizenship. A child born to a couple, one of whom is a UK national, or to a person who is a long-term resident of the United Kingdom, who is not a UK national, will be entitled to claim citizenship of this State, regardless of whether the birth takes place in Derry or in Letterkenny.

A person born, whether North or South, to parents, one of whom has an entitlement or permission to reside in the State without any restriction on his or her period of residence, will be entitled to Irish citizenship. A classic example would be a person who is not an Irish citizen, but a refugee who has been given the right to remain in Ireland indefinitely. Such a person would be entitled to have his or her child considered an Irish citizen.

A person born, whether North or South, to non-national parents, one of whom has been lawfully resident in Northern Ireland for at least three out of the four years preceding the birth, will have an entitlement to Irish citizenship. For non-EEA national parents, periods spent in Northern Ireland for study purposes or while awaiting the determination of an asylum claim will not count. Exactly the same regime will apply North and South in respect of that category of people.

The Government's view is that there should be a rational and informed debate on this matter and that there should be no objection in principle to that debate taking place in the context of local and European election campaigns. Furthermore, the Government is satisfied that the regime laid down in Article 46 of the Constitution provides a more than adequate framework for the involvement of the Oireachtas.

The Referendum Commission will inform the public fully and objectively on these matters. The issue is a fairly simple one. Despite all the claims that more time is needed, the following points should be taken on board by at least some Members of this House whose minds are open on this issue. If I were to state that there would be a referendum of this type in 2004 or 2005 then lawyers, such as the one advising Mrs. Chen, throughout Europe would advise migrant people with children to go to Ireland before the gate closed. It is not simply a matter of saying we should consider this issue at a later stage or that we should allow a long period to elapse so that we could reflect on it because the inevitable consequence will be that people will take advantage of the status quo. There is a sense of urgency on this issue. It is not a fanciful or dreamed up sense of urgency if our law is to conform with what is normal internationally while at the same time keeping the most generous nationality and citizenship law in any member state of the Europe Union. Those who doubt me and believe fortress Ireland is emerging out of these proposals should read Carol Coulter's article in The Irish Times last Saturday. They are wide of the mark.

Those who say this proposal is playing the race card or that it is racist in content must ask what it is about the laws of all other States that is not racist; what is it about the laws of all the countries of origin of migrants to Ireland, which do not share our current and unique situation, that is not racist. There is nothing racist in this proposal. I reject completely the suggestion that it is either the playing of the race card or a racist referendum. Those who have employed language to that effect should ask themselves whether they are using language honestly or dishonestly for the purpose of political rhetoric. I thank Members for their attention.