Michael McDowell (Dublin South East, Progressive Democrats)

I emphasised that as far as I am concerned this is a process about the integrity of our citizenship law. This is a Bill designed to put one simple question to the people. It is not a complicated question. It is a question of whether the people want to restore to the Houses of the Oireachtas the capacity to deal with the circumstances in which children born to non-nationals become citizens or accept nothing can be done on this issue and there is no need to think of legislating, as it is now a principle graven in stone that no qualification on that right can be put in place. This is what the referendum is about.

Three arguments have been made against the proposed amendment. Some have argued with its timing. While it has not been echoed in this House, the Green Party and Sinn Féin argued it is wrong in principle to change the Constitution because the absolute right must remain. While I disagree with that position, I understand it.

The third proposition is to approach this issue in another way, in particular by legislation. Having been Attorney General and now being a Minister, I know I cannot introduce legislation into either House of the Oireachtas which I believe to be unconstitutional. I cannot say that I believe it to be unconstitutional, but will have a go anyway. If it ever became the practice that a Government did that in the hope that the President would take a different view and refer the legislation to the Supreme Court, it would mean that the Government would have a licence to introduce legislation it believed subverted the Constitution and was effectively hoping that the President, as the constitutional goalkeeper, would save the penalties from going into the net. That is not a proper way to approach this matter. I must approach this on the basis that every other Minister has done, including during the time when I was Attorney General.

When the Attorney General advises that a proposal is contrary to the Constitution, it should not proceed. As Senator Brian Hayes hinted, the Government can ignore the advice of the Attorney General on the basis that it believes that advice is wrong. However, in those circumstances the Attorney General would be in a very difficult personal situation and it would nearly be a resigning issue. If the Attorney General says it is his solemn belief that a proposal is unconstitutional and the Government says it does not care and intends proceeding, at some stage the Attorney General must ask why he is sitting at the Cabinet table giving advice.

I was not free to experiment and come up with legislation which I was advised and believed to be unconstitutional, and go through a test bench proposal hoping the President would refer it to the Supreme Court. That was never an option to me. However, questions have arisen because of an article written by Colm MacEochaidh, a colleague of mine in the Law Library, zeroing in on section 6 of the Citizenship and Nationality Act 1956, as amended in 2001.

It was suggested that the contents of section 6(4) indicated that the Government, to which I was Attorney General, had limited the entitlement to citizenship. However, the reasoning behind the argument is wrong, because what is in Article 2 of the Constitution is an absolute entitlement to nationality and citizenship. Entitlement is not the same as automatic conferring of that status. All of us are entitled to express our views under the freedom of speech guarantee under the Constitution. It does not mean all of us express a view on occasion. It is a freedom to claim citizenship.

On the advice of the Attorney General, Article 2 of the Constitution confers an absolute right to claim Irish citizenship on any person who wishes to do so and was born on the island of Ireland. When it came to the citizenship and nationality provisions that were enacted in 2001, it was provided that although it was effectively the absolute entitlement of people to claim Irish citizenship if they had been born on the island of Ireland, they would not be deemed in Irish law to be Irish citizens in certain circumstances unless they exercised that right or had it exercised on their behalf. There is nothing inconsistent about that. We would not impose on, say, Unionists in Northern Ireland, children of diplomats, or people who accidentally happened to be passing through Irish territorial waters on a ship or whatever, the obligations of fidelity to the nation and loyalty to the State unless they were in a position to say that is what they want.

Section 6(1) states that subject to section 6(A), which is not relevant for this purpose, every person born in the island of Ireland is entitled to be an Irish citizen. In other words, they have a right to claim Irish citizenship. Subsection (2) states that subject to subsections (4) and (5) a person born in the island of Ireland is an Irish citizen from birth if he or she does anything which only Irish citizens are entitled to do, in other words, if they claim a passport or whatever or, if not of full age, has it done on his or her behalf. In other words, if one's parent chooses on one's behalf to get one a passport at the age of six weeks, one year or one and a half years, if one is born in the island of Ireland one is an Irish citizen under Irish law. It is not a matter of choice or entitlement — Irish law regards one as that.

Subsection (3) provides that a person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other state, which is the rule against statelessness. No child will be left without nationality under our law. Subsection (4) states that a person born in the island of Ireland to a non-national whose parent is a diplomat, or to a non-national on a ship or aircraft, shall not be an Irish citizen unless in the prescribed manner that person declares, or if not of full age, has declared on his or her behalf, that he or she is an Irish citizen.