Michael McDowell (Dublin South East, Progressive Democrats)

The Bill before the House today is designed to allow the Oireachtas to address a serious issue that would in other circumstances have been addressed long ago by legislation. That issue is the aspect of Irish law that enables people born in Ireland, whether North or South, to acquire an entitlement to Irish citizenship notwithstanding that neither parent has any substantial connection with Ireland.

It is a serious issue for a number of reasons. The Government does not think that it is right that Ireland's citizenship should be thought of simply in terms of a passport with a harp on the cover, a passport that gives the holder free movement within the common travel area in operation between Ireland and our nearest neighbour and that carries with it an array of European Union treaty rights of free movement and establishment throughout the 15, and from midnight tonight 25 member states of the European Union.

Irish citizenship brings with it all of those things but I know from the debate in this House last October on Senator Quinn's Private Member's Bill that it is a view widely shared by Members on all sides of this House that there is much more to citizenship than simply a casual connection with the State whether based on investment or accident of birth. Senators will recall my support during that debate for the Private Member's Bill, which remains on the Order Paper of this House. It sought to put beyond possibility of revival any scheme of citizenship for investment. My support for that Bill was of a piece with my motivation for putting to Government the proposal that has resulted in the Bill now before the House. The common thread is my firm conviction that Irish citizenship is something to be respected. It carries with it responsibilities to one's fellow citizens and to the entity which bestows the status of nationality and citizenship. Article 2 of the Constitution speaks of people being part of the Irish nation whether they are citizens by virtue of being born in Ireland or otherwise by operation of law. Article 9.2 reminds us that fidelity to the State and loyalty to the nation are fundamental political duties of all citizens. As T.K. Whitaker's seminal Constitution review group report of 1996 points out, the terms "nationality" and "citizenship" are interchangeable and synonymous. Citizenship is not simply a status, it is a relationship with the State and with the other citizens of that State for better or for worse. It is a little like marriage in that respect. A duty is owed when circumstances are bad as well as when they are good. One cannot simply say one will dine À la carte on the benefits of citizenship. If one's country needs one, one must serve it. If one's country enacts laws which impose on one territorial or extra-territorial civil or criminal liability, those laws are binding on one as a citizen of the State.

We are increasingly aware of the phenomenon of women from abroad arriving in Ireland late in pregnancy. While we can argue about it, it remains a fact and is a worrying phenomenon. Obstetricians and others involved in maternity care have expressed grave concerns at the risks for the mothers in question and their children. We know from radio interviews in recent weeks that women are making the journey to Ireland to ensure that their children will be entitled to Irish citizenship at birth. I am not expressing Victorian moral reproof of those people. It is perfectly rational to exploit the circumstances Irish law presents. It is perfectly rational for people to want their children to be EU citizens and to have all the privileges that attach to that status. I do not condemn people for taking advantage of the current circumstances. As we all know, many of those people have very few advantages in life. If they take the course of coming to Ireland to exploit our law in its current state, that is perfectly predictable and it does not cast a moral slur on them. They are probably doing the best they can for their children. It is likely that they are motivated by the instinct of any parent to do the best he or she can for his or her children.

It is no longer the case that this phenomenon involves only people who are seeking to stay in Ireland long-term themselves and who are using the asylum system to gain access to this country. We are aware of women of reasonably substantial means who enter Ireland on holiday visas or otherwise in a manner consistent with our immigration laws or those applying in Northern Ireland, to give birth and collect a birth certificate and passport before leaving Ireland. People are being advised to arrange their affairs in this way. For example, the papers in the European Court of Justice case of Mrs. Chen make no bones about the fact that her lawyer in Cardiff advised her to travel to Belfast for the birth of her child to enable it to acquire Irish citizenship. The issue in that case, which has not yet been decided, is whether Mrs. Chen can be said to be immigration dependent on her EU citizen child and thus obtain a right of residence in the EU.

The parallel with the investment-based citizenship scheme Senator Quinn's Private Members' Bill raised is striking. People are using the resources available to them and arranging their affairs to acquire Irish citizenship, notwithstanding the most tenuous of links with either part of this island. The resources involved are very different; as in the case of passports for sale the people seeking citizenship had very considerable means at their disposal. I do not claim the analogy is by any means a complete one. For a start, the investment-based naturalisation scheme involved a positive act by the authorities at the time for the grant of Irish citizenship under the scheme. I am happy to be able to remind the House that I am the Minister who finally killed off that scheme in a termination process which, in fairness, commenced under my predecessor, Deputy O'Donoghue.

Shortly after resuming office, I published the report of the review group on investment-based naturalisation with a view to informing public debate on the matter. I have no doubt that report formed a useful backdrop to Senator Quinn's legislative initiative. On moving the Bill in this House, I indicated to Senator Quinn that the Government would not oppose its Second Stage reading because I proposed to deal with the issue by way of the forthcoming legislation on the matter. What that report illustrated, and what I believe is fundamental to the proposal before the House today, is that the acquisition of citizenship should never be a means to an ulterior end. It should be a matter of fundamental importance that is an end in itself. Irish citizenship should not be seen only in terms of its passport and international travel rights involving little or no commitment to the concepts of fidelity to the State and loyalty to the nation.

To put some perspective on the scale of the issue we are addressing, I will offer Senators some figures which I have compiled by reference to the 2002 census of population and a nationality breakdown for all births in the Dublin maternity hospitals in 2003. I want to enter a caveat at this point. I believe a considerable number of migrants into Ireland who are in doubt about the legality of their status did not show up in the census figures. I concede immediately that there may have been people in Ireland illegally who for one reason or another decided not to bring to the attention of the authorities their presence. The census figures are not be taken as gospel on this subject.

According to the census, there were 1.8 million Irish national females resident in the State. In 2003, there were 17,000 births to Irish national mothers in the Dublin maternity hospitals, a birth rate of almost 1% of the total female population of Irish nationality. There were 69,000 EU national females resident in the State according to the census. In 2003, there were 970 births to EU national mothers in the Dublin maternity hospitals, a birth rate of 1.4% of the total female population of EU nationality. There were 40,881 non-EU national females resident in the State according to the census. In 2003, there were 4,501 births to non-EU national mothers in the Dublin maternity hospitals, a birth rate of 11% of the total female population of non-EU nationality.

There may be many explanations in that regard. Lest anybody would suggest I am perverting the figures or hyping them up, I ask Senators to take them with some degree of scepticism. If one divides the number of births by the number of all Irish females, one is dividing by a total number of females irrespective of whether they are of child bearing age. It is more likely that the recent pattern of migration will have included young adults rather than children or elderly people. It is also more likely there will be an elevated rate of pregnancy among a migratory population because the women are more likely to be of child bearing age. I accept that criticism of these figures before it is made.

Based on those figures, the fertility rate among non-nationals is eight times the fertility rate of the population as a whole. Commentators have made the point that many of the births could be to work permit holders. That is a good point and I accept it could be one explanation but it is unlikely because the top five countries for the grant and renewal of work permits during 2003 were Poland, Lithuania, Latvia, the Philippines and the Ukraine. Only one of these countries, the Philippines, features in the top five countries for non-EU nationals in the Dublin maternity hospitals. Some 44% of births to non-EU national mothers in Dublin maternity hospitals arise in the case of two nationalities, Nigerian and Romanian, both of which are regarded as causing the most difficulty from the point of view of illegal immigration. It is no coincidence that all the charters organised by the immigration authorities for the return of persons illegally in the State have been to both of those countries.

In 2003, there were 46 births to Polish mothers and 1,515 to Nigerian mothers in the Dublin maternity hospitals. There were 73 births to Lithuanian mothers in the Dublin maternity hospitals in 2003 and there were 469 births to Romanian mothers. It is possible that there are cultural differences and that in Eastern Europe there is a different attitude to fertility. I ask the House to be fair-minded and objective. While it is not mathematical proof of any proposition as cultural issues and demographic issues can be added in, if one is looking for evidence of the trend, there seems to be a strong correlation between certain forms of migration and certain patterns of child bearing in Ireland.

By any reckoning, these figures reveal a disproportion and not just in the simple numbers of births. The figures available for late booked or unbooked deliveries in the National Maternity Hospital for 2003 continue the apparent trend. The National Maternity Hospital had 251 deliveries which had not been booked or which had been booked within the previous ten days. Of those, 70 were to Irish nationals, eight were to EU nationals, 163 were to non-EU nationals and ten were unrecorded. I have seen this figure dismissed as irrelevant on the basis that almost half of the mothers in question were Irish. The figure would be irrelevant if it were the case that around half of the female population of childbearing age as a whole was Irish, but that is patently not the case as the earlier figures show.

I gather that most of the Irish late bookings are mothers transferred from other maternity facilities, usually for medical reasons. I do not have that indication, and there is no reason to believe, that this is the explanation for non-national late bookings. Let us remind ourselves that this is the phenomenon that is of most concern to the managers and practitioners in our maternity services because of the grave risks for the mothers themselves and their children. We are not talking of mere statistics. In every case we are talking about a loving mother and a young child.

I do not in any sense want to reduce this to a debate about statistics. However, I want to contradict the suggestion that I am manufacturing evidence, flying in the face of the evidence, working on pure supposition or effectively trying to conflate an argument based on figures that do not exist. Nobody who has been critical of the figures has given clear explanations for the patterns that exist. I have seen much material, which suggests the explanations are much clearer.

Of asylum-seeking women coming to Ireland of childbearing age, 58% were pregnant at the time they arrived. If anybody is saying that in those circumstances the citizenship arrangements in Ireland are not, as the international organisation on migration study showed, a considerable attraction because uniquely among the European Union member states Ireland has the jus soli concept built into its constitutional law, the evidence seems to contradict that point of view.

I want the House to accept that since my appointment as Minister for Justice, Equality and Law Reform, I have done my level best to pursue a policy in which our immigration law is made effective. On a number of occasions, I have brought legislation before the Houses of the Oireachtas on the basis that not to have an effective immigration law, and worse still to be seen to have a wholly ineffective immigration law, is not simply asking for trouble but playing into the hands of those in Irish society who will use intolerance and racist feelings to engender communal distrust and ultimately hatred and enflame that feeling towards their own political ends. People exist who are quite capable of doing that and in recent days we have seen a number of people who have in the past used this weapon as a way of engendering support for very different political agendas. I will not be more specific than that.

Since becoming Minister for Justice, Equality and Law Reform, I have taken a middle course on these issues. Following the referendum, regardless of the outcome, we will continue to have the most liberal nationality and citizenship regime of the member states of the European Union. We have and will continue to have one of the most accommodating attitudes among the general population to immigration manifest anywhere in the European Union. Some people suggest this country is on the cusp of some racist division which is about to break out. I do not believe that is the case.

It is amazing that Ireland has had a total change from emigration to inward migration. We have had a very considerable influx of nationalities and races of a diversity which we did not experience in the past. We have had to change our mindsets and attitudes from an introverted view of a homogeneous society to a much more extroverted and generous view of a heterogeneous society. We have done all these things over the last five or seven years in circumstances where there has been remarkably little friction, discord or exploitation of the issue by those who could have exploited it. Ireland has not seen an emergence of parties of the far right on this issue such as happened in the Netherlands and Denmark. We have not had Pim Fortuyns suddenly emerging on the political radar screen. We have an electoral system which would be very easily open to people who wanted to come in to the political debate on the issue. We have a generous PR system, yet the Irish people have kept an even keel on the subject and a coherent, generous and good-minded approach to all of this. We have seen a transformation of our society which is ongoing and welcome in circumstances remarkably free from controversy, friction, bitterness or improper attitudes.

We must continue what the Government is doing, that is, steering this steady middle course, having an effective system while at the same time maintaining our generous approach to immigrants, welcoming migratory labour, maintaining our strong view that they should be integrated into Irish society and a willingness to uphold all the principles of international law. If I were to be seen by a section of the Irish public to be weak and ineffectual in making our laws work, nothing would be more potent tinder for a small group of people who would exploit the issue. Nothing could be more damaging to coherence and solidarity in Irish society.

As I said at the outset, in other circumstances this matter would have been addressed by legislative change by now. That would have been possible because prior to 1998, as Article 9.1.2° of the Constitution says, "the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law". If I had to adjust the laws to prevent abuse of the jus soli concept, I could have done it by legislation. I want the House to appreciate that I would have done it by legislation if that were the case. The situation changed on the adoption of the new Articles 2 and 3 which we as a nation adopted arising out of the Good Friday Agreement to replace the former articles which contained the territorial claim on Northern Ireland. The position up to December 1999 was that, under the Irish Nationality and Citizenship Act, every person born on the island of Ireland was an Irish citizen. This was a matter of statute law and was something that could have been changed, tweaked, adjusted or made immune from abuse in a very small way by a small calibration of the statutory mechanisms which were open to us.

The adoption of the new Article 2 removed the question of citizenship arising from birth in Ireland from the statutory level to the constitutional level. It did so by creating an entitlement and birthright for every person born in the island of Ireland to be part of the Irish nation, which is the same as being entitled to be an Irish citizen. The effect is that each person born in Ireland, whether North or South, is entitled to be an Irish citizen. It is not just my view. The strong advice of the Attorney General, based on dicta of the Supreme Court, is that legislation I might try to introduce that sought to limit or even defer the exercise by a person born in Ireland of the entitlement to Irish citizenship would be unconstitutional by reference to Article 2. Thus, the apparently general statement in Article 9.1.2° of the Constitution of the power of the Oireachtas to legislate is, in fact, curtailed as regards the citizenship entitlements of those born in Ireland.

Before the Government can bring forward legislation to address the issue, it must propose this constitutional change. That is what we are about here. We are not about some far reaching constitutional law or alarming new proposal. We are simply saying that in the case of people born on the island of Ireland to parents, neither of whom was an Irish citizen or entitled to be an Irish citizen — that includes the entire Nationalist and Unionist population of Northern Ireland and the great majority of people in the South of Ireland — that in the case of that category of people, the Legislature should have restored to it what it had until December 1999, the right to protect the system from abuse. It is nothing more or nothing less. It is a very simple and modest proposal to make. It is not a far reaching proposal and it is not one that anybody could reasonably describe as racist or playing the race card.

Article 2 puts out of bounds any legislation whatsoever that would limit or defer the exercise by any person born on the island of Ireland on the entitlement to Irish citizenship, but if the Government's proposal is accepted by the people, both Houses of the Oireachtas will have the power to legislate for a narrow class of persons born on the island, namely those born to parents, neither of whom was Irish or entitled to be Irish. In taking that approach, the Government is keenly aware that Article 2, as it now stands, has its genesis in the Good Friday Agreement and that anything we do must be absolutely consistent with that Agreement. The limited change to Article 9 that the Government proposes is consistent with the British-Irish Agreement and the Good Friday Agreement as a whole.

The international dimension of the complex of agreements that we speak of as the Good Friday Agreement or the Belfast Agreement is represented by the British-Irish Agreement. In that agreement, the two Governments acknowledge and confirm the rights and expectations of the people of Northern Ireland, as defined in annexe 2 to that agreement, to identify themselves and be accepted as British, Irish or both as he or she may choose. Those rights and expectations will, under this proposal, continue to be respected to the full in so far as it is within the competence of the Irish State to secure it.

We cannot legislate in this country for the entitlement to British citizenship — that is a matter exclusively for the UK authorities — but the entitlement to Irish citizenship is within the competence and responsibility of the Legislature and to that extent we owe it to our citizens in the North and the South and to our partners in the British-Irish Agreement to ensure that our laws and our Constitution continue to offer that guarantee. That is what the Government's proposal will continue to make available.

In annexe 2 to the British-Irish Agreement, the two Governments declare that it is their joint understanding that the term "the people of Northern Ireland" when used in article 6 of the British-Irish Agreement means:

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 people of Northern Ireland who are being granted this right to have citizenship of one or both countries as they chose were all the people of Northern Ireland who were descended from British nationals, Irish nationals or from long-term residents in Northern Ireland who had neither nationality. Excluded from it was a category of short-term residents, who simply had their children in Northern Ireland on the basis of no long-term residence entitlements.

We can see, therefore, that not everybody born in Northern Ireland is part of the people of Northern Ireland for the purposes of that aspect of the Agreement. A child born there is excluded if his or her parents are permitted to be only temporarily in that jurisdiction, or who have no permission at all. When we look at Article 2 of our Constitution, the text of which was in the multi-party talks Agreement and which is annexe 1 to the Agreement, we see that its effect is that anyone born in Northern Ireland is entitled to be an Irish citizen, even if he or she is not entitled to be a member of the people of Northern Ireland for the purposes of the Agreement.

The Taoiseach spoke about this subject in the Lower House the other day. He said frankly that, at that time, the goal of getting the Good Friday Agreement was paramount in his mind. He said he had not envisaged that this difficulty would materialise to the extent that it has done. The point was made by a number of people then that it could happen, but it was the Taoiseach's view at the time that it was unlikely to happen and unlikely to have any serious consequences. Compared to the project, which was keeping the issues in the referendum simple, the Taoiseach took the political judgment to go on the basis that we would not do what the then leader of the Labour Party, Deputy Ruairí Quinn, suggested we might consider doing, which was to insert a balancing amendment to Article 9 of the Constitution to ensure that the problems that have arisen could have been avoided.

Let us be clear that this was a judgment taken at the time. One can criticise it in retrospect but it was done for the best reasons and in the hope and expectation that the measure would not be abused, that we would not have a problem with it and, therefore, that it would not have a significant effect on our immigration law. It has had an effect, however, and continues to have.

I wish to emphasise another aspect. This is not simply an issue affecting the minds of control freaks in the Department of Justice, Equality and Law Reform, including myself. This is not some kind of academic issue. If a child is born in Ireland to a parent who immediately removes the child, herself and possibly the father back to some other part of the world, that parent leaves Ireland with a birth certificate and passport for the child. The child becomes an Irish citizen and is entitled to confer Irish citizenship by descent, just as one of us would if we were in America, Australia, Nigeria, Romania or anywhere else with our families and begat another child. Such a child is entitled to confer citizenship by descent for two generations.

However, we do not take fingerprints or blood samples from children, and I ask Senators to consider this as a practical problem. If, in 18 years' time, somebody comes to us and states that his or her father was the person mentioned in the birth certificate, we have no real way of knowing whether that is true. We have very few means of checking it either. If we allowed this problem to motor along for the time being at the rate of 4,000 or 5,000 births per annum, and even if one took half those births as being motivated by citizenship considerations, it is not something which will pad along at that subdued level; it will become more complex as time goes by.

One member of the District Court Judiciary is already insisting that where passports are sought, they should be effectively deposited in court for certain purposes so that they cannot be abused by bringing in another child on the basis that it is the child referred to in the passport. We do not have a system of DNA or biometric identification and we are not in a position to do that. In all reasonableness, I do not think anybody could expect us to have put in place a system of that kind. As regards the integrity of our immigration laws, therefore, this is not something that will continue on a subdued basis over the years. It will become more complex and more difficult to deal with as time goes by.

In bringing forward the referendum proposal in this Bill, the Government was conscious of the need for Parliament and the people to know how it is intended that the law should operate and so we arranged for the publication, in its explanatory documentation, of the text of a proposed implementing Bill. That has been circulated widely and is available on my Department's website. The draft implementing Bill is not before us today in any formal sense; it cannot be because it would be unconstitutional to introduce such a Bill until the Constitution accommodated it. The acceptance of it will not have the slightest effect on the way our citizenship laws operate at present. It is only the passage of the subsequent implementing legislation that will bring about that change.

In order that Senators may have a full understanding of the Government's package as a whole at this stage, it is appropriate to summarise our legislative intentions. The draft implementing Bill will address the entitlement to Irish citizenship of persons born in either part of the island of Ireland to parents who are not Irish citizens and who do not have an entitlement to Irish citizenship. The proposal has four features. A person born 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. 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 towards calculating that three-year residence period. The above provision is to provide equality of treatment with persons born in similar circumstances in the State. 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; this is to make the situation the same North or South.

A person born whether North or South to parents one of whom is a British citizen or has an entitlement to reside in Northern Ireland without any restriction on his or her period of residence will be entitled to Irish citizenship. People have complained about this provision already but it is simply a matter that if a British citizen in Derry goes to Letterkenny General Hospital to have her child, then that child should have just the same rights as a child born in Altnagelvin Hospital in Derry. If we did not say that British citizens who have their children in Irish hospitals should not be accorded that right we would create an artificial distinction between someone who just happened to be south of the Border on the particular day and someone north of the Border, putting the former child in a position disadvantageous to that of a child born to a British citizen in Northern Ireland.

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. That is frequently the case for people to whom refugee status has been granted. They are told they can remain here indefinitely and do not have to go home. In those circumstances their children are entitled to Irish citizenship and that applies North and South.

An essential thread running through these features is equality of treatment for Irish citizenship purposes, that the entitlement to citizenship of persons born in Ireland to non-national parents and the qualifying residence conditions for the parents will be the same whether that residence is North or South and whether the child is born North or South. For implementing legislation in this area not to provide this North-South equality of treatment would give rise to serious questions of legal soundness as well of course as being unacceptable from a policy point of view.

That point was made by Deputy Quinn in his letter to the Taoiseach at the time. He said if one was making what he called a belt and braces change to Article 9 of the Constitution then one should consider making it very clear that there will be no difference in treatment North or South in those circumstances. That is what happened, that is what the Bill is about and that is what the implementing legislation will be about.

Having set out what the Government's proposal will do, I will look briefly at what it will not do. It will not deprive anyone of citizenship, and I emphasise that. We are parties to the UN convention on statelessness, and we already have provision in our statute law for ensuring compliance with our obligations under that convention in section 6(3) of the Irish Nationality and Citizenship Act 1956, as amended in 2001.

Every child born in Ireland is entitled to be a citizen of this State unless that child is entitled to be a citizen of another State. This point has not been emphasised or understood. We are not creating a group of stateless children. As a sovereign State we are party to an international convention that we will always accord citizenship and nationality to any child born in Ireland if that child is not entitled to citizenship of any other State. The practical effect of this legislation, if the amendment to the Constitution is passed, is that it will stop some parents who are short-term residents in Ireland from choosing Irish citizenship for their child where they are already in a position to confer nationality by descent on that child. That is its only effect. People use rhetoric about creating some class of stateless children but that is untrue. The legislation will not act retrospectively and the text makes very clear that no-one will have a situation which has already accrued affected by this. The third point is one that has to be taken head on. I am sorry that if sometimes I am combative, but we must have clarity of thought. If the nature of the beast is to be combative, I am sorry if that appears unappealing but that is the way I am.