Michael McDowell (Dublin South East, Progressive Democrats)

Senator Terry's amendment suggests that we should actually again tear open the terms of Articles 2 and 3 of the Constitution, consider what they involve and insert new wordings in them. I fully accept that this would be one way to approach this issue. All of the rhetoric I have heard for a long period runs to the effect that we should not touch these articles and that they should be left intact. As Senator Mansergh stated, it was a transient feeling that the articles were somehow being violated in a significant way, which led to a degree of disquiet among certain people who believed they should be consulted on the issue. It is worth looking at Article 2 very carefully. I agree with Senator Tuffy that we should all have our copies of the Constitution in front of us. The first sentence in Article 2 states: "It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation." The second sentence is one on which public debate has not focused, but it is crucial to an understanding of Article 2. It states: "That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland."

The phrase "otherwise qualified in accordance with law to be citizens of Ireland" proves conclusively that the first sentence was intended to bestow the birthright and entitlement of citizenship on everyone born on the island of Ireland, without qualification. The second sentence says the same entitlement and birthright applies to people who are otherwise qualified in law to be citizens of Ireland. The word "otherwise" means that the first sentence is conferring the entitlement to citizenship on the category of people born in Ireland.

I wish to make a point I did not feel I had the latitude to make on Friday because time was pressing. Article 2, in effect, provides that Irish citizenship for people born in Ireland is by self-selection. An entitlement and a birthright are what are conferred on a person. Senator Terry says correctly that citizenship is not automatically conferred by Articles 2 and 3. However, she is wrong, in my respectful submission, when she says that all Article 2 does is give the right to apply for Irish citizenship. It gives something more. It gives the right to have Irish citizenship if one so chooses. It is not a mere right to apply for it where one could be told "no" and to forget it. It is an entitlement to have it if one so chooses. That is the point I tried to make the other day with regard to the argument, slightly plausible but fundamentally misconceived, that the provisions of the 2001 amendment were, in some sense, inconsistent with what is now being argued. Those provisions provide that the son or daughter of a diplomat have the entitlement, because they are born in Ireland, to have Irish citizenship if they so choose, but they make it very clear that it is not an automatic conferral by Irish law on them of citizenship. It is likewise for people born on boats and planes in Irish waters or airspace. Citizenship is an entitlement if they so choose, or, as the language of the statute says, in the case of a child, if the choice is made on its behalf to have Irish citizenship.

The second sentence of Article 2 puts beyond any doubt that the clear meaning of the article was, as the Taoiseach conceded in his correspondence with Deputy Ruairí Quinn at the time, that any person born in Ireland, regardless of circumstances, was henceforth to be entitled to Irish citizenship. Deputy Quinn raised that point in his letter and asked the Taoiseach if he could, on a belt and braces approach, include in Article 9 a qualifying provision, which would maintain the right of the Oireachtas to control the issue. Attached to Deputy Quinn's letter was a prescient memorandum from my good friend Finbarr O'Malley raising the issue and showing how, by amending Article 9, one would not have to reopen what happened in Castle Buildings but could make it clear that citizenship was not an absolute entitlement in every circumstance, regardless of how tenuous or non-existent a child's parents connection with Ireland was.

The Taoiseach conceded fairly in the Dáil the other day that his priority at the time was to have a simple issue before the people and not to open the Pandora's box with which we are now dealing. He decided to keep the issue simple and go for it. He said he thought that was justified because the Belfast Agreement was a simple issue. Although it was passed by an overwhelming majority of the people of the South, it was not the most robust of plants at the time. Some of us will recall that there was quite a deal of agitation in Northern Ireland as to its exact meaning. The Taoiseach, as he said in the Dáil, wanted to keep it simple and at the time he did not foresee that any abuse of it would be of such a dimension or frequency as to cause any problems for the State. He said candidly that this was not a significant issue in his mind and he was going for the simple wording that had been agreed in Castle Buildings and did not want to open the Pandora's box of other considerations.

That was a political judgment at the time with which it is difficult to argue. However, some people, myself included, could see there would be difficulty down the road. I thought it would be an academic difficulty and that, coupled with the Fajujonu case and Supreme Court jurisprudence, it would be difficult to get people out of Ireland. The L & O case had not been decided at that stage. Nobody foresaw that significant numbers of people would be attracted to this country by virtue of being able to acquire EU citizenship by arriving in either part of the island and having a child. That was not foreseen as a significant problem and if people had thought so, I have no doubt that Deputy Quinn's advice might have been taken at the time.

If the issue was of such seriousness that it raised a red flag warning us of serious consequences which outweighed the advantage of simplifying the issue to be put to the people in 1998, which led to the amendment of the Constitution in 1999, a different decision might have been made. Hindsight is 20:20 vision. Then it was a question of looking prospectively at the chances of getting agreement on a simple issue, uncluttered by an immigration issue, which was far from people's minds.

What we have now is that Article 2 empowers people to decide whether they wish to be an Irish citizen. The choice belongs to the person. It is a self selection process based on the clear language of Article 2. That choice cannot be taken away from people. It cannot be taken away on the advice of the Attorney General, even in the sense of saying with regard to a minor that the rights of the minor can be postponed until the minor is 18, by statute as matters stand currently, or that any qualification, such as the connection between the parents and the country, should be of a particular strength or duration. It cannot be qualified in that way.

Where does this leave us with regard to Senator Terry's amendment? I acknowledge, lest she feels I am taking advantage of her, that what she is suggesting is one alternative approach, which would have been considered if the matter had been considered at greater length. That approach was considered. My Department considered carefully whether we should touch the wording of Articles 2 and 3. For all the reasons set out by Senator Mansergh, it became blindingly obvious to us that if there was any alternative route to the top of this mountain, other than up the north face of Articles 2 and 3, we should take it because the revisiting of the wording of those articles was fraught with difficulties of a political and every other nature.

Where does this leave the debate? Deputy Quinn's belt and braces suggestion is the appropriate way forward. It was a thoughtful reflection at the time and is, on thoughtful reflection, the right way forward on the issue now. We must now examine the combined effect of Articles 9 and 2 and address the unintended consequence of the Good Friday Agreement whereby we are vulnerable to unreasonable exploitation and abuse of our citizenship laws.

I agree with Senator Jim Walsh that this is a simple issue. It is not rocket science. We are simply suggesting that we return to the position that obtained before the 1999 amendment of the Constitution and give the Oireachtas the power to intervene in a very narrow way with the general principle, which is that the people of Northern Ireland have a right to citizenship of this State if they so elect. The Oireachtas is free to regard the people of Northern Ireland in the same way as the annex to the British-Irish Agreement regards them, namely, that people who are children of British or Irish citizens or of long-term residents of Northern Ireland are identified by the British and Irish Governments as being worthy recipients of the right to dual citizenship or citizenship of either country as they choose. It is the principle of Article 2, of the British-Irish Agreement and of the annex of the Agreement that a group of people was in contemplation, which we would all colloquially call the people of Northern Ireland, and who are in a state or part of a state which is divided in its loyalty, to whom the two governments, by an international treaty which is now registered atthe United Nations, guarantee the right to citizenship of the United Kingdom, of Ireland or of both states, without limit and absolutely. That is what the two Governments decided. It is that principle I do not want to invade, qualify or change.

It is because of the wording of Article 2 and its susceptibility to exploitation that we have a situation in which the people of Northern Ireland have the same right in respect of both countries, but people with no connection with Northern Ireland have the opportunity to piggy-back on the new terminology of Article 2 to achieve Irish citizenship where they cannot achieve United Kingdom nationality. Mrs. Chen could not by going to Belfast avail of the terms of the British-Irish Agreement to confer British nationality on her child and therefore avoid deportation or whatever she was seeking to avoid. She could not elect in relation to Britain. We therefore have a lack of symmetry and a lack of mutuality. Article 2 as so interpreted goes further than was necessary and creates a difference in the entitlement to citizenship between the two countries because it confers the right to citizenship without qualification on people who have no connection with the island of Ireland North or South in the case of Southern citizenship, but it confers it only on people who have some connection with Northern Ireland or long-term residence there in the case of United Kingdom citizenship. It is that asymmetry with which we are dealing.

To return to Senator Walsh's point, all of this sounds highly theological and highly complicated. However, in essence this proposal could not be simpler. The two Houses of the Oireachtas will have the power in respect of people, neither of whose parents are Irish or British and neither of whose parents are long-term residents of Northern Ireland, to provide that they must have some minimal connection with Ireland in terms of the duration of their stay in Ireland or their entitlement to be in Ireland before the right to Irish and EU citizenship kicks in. I repeat that this does not mean the Government's proposed legislation will be enshrined in the Constitution. It will be open to either House of the Oireachtas thereafter to vary the period from six months to ten years or to make other provisions to vary it in one way or another. This is a perfectly sensible, simple, rational and reasonable change to our Constitution. It does not require immense reflection to arrive at the conclusion that it is the best of the approaches available. If I thought for one minute that changing Articles 2 and 3 of the Constitution was the appropriate way of arriving at the summit at which we all want to arrive, which is a reasonable law, I would take that route. However, I know full well, as Senator Mansergh has said, that it would result in immense complication and confusion and bring down the whole edifice of the Good Friday Agreement in pieces around my head in circumstances where, as was pointed out by Deputy Quinn so long ago, it is unnecessary to take that risk.

I want to deal with the point, which has been canvassed fairly frequently, that this Bill will create a second class of citizen or an underclass in Ireland. That is a profoundly mistaken view. First, as I said here on the last occasion, because Ireland is party to the International Convention against Statelessness, nobody will be deprived of Irish citizenship by this amendment of the Constitution and the laws which will be in place thereafter, unless that person is already entitled to another citizenship by descent. The existing text of our citizenship and nationality law, which reflects that international obligation not to create stateless people will continue to apply. It states very clearly that anybody who would otherwise be stateless shall be an Irish citizen. The reverse side of that coin refers to children whose parents can confer on them nationality of the parents' home state. Therefore only people who will not through their parents be entitled to citizenship of some other state will be affected by the passage of this referendum. Looked at in a different way, that is the same as saying that everyone who has the right to one citizenship will not be entitled to avail of Irish citizenship as a matter of choice if their parents have no real tangible connection with this country. If they are entitled to their parents' citizenship they cannot accrue a right to Irish citizenship as well if their parents have no tangible connection with this State. That is what this proposal is about.

I expect the two Human Rights Commissions will sit down together and visit this territory. I am not trying to get my retaliation in first because I will be accused of being combative and arrogant. However, I fully accept the validity and common sense truth of the two Governments' declarations on this matter, which is that this approach by the Irish Government is entirely consistent with the British-Irish Agreement which has been registered at the United Nations as a treaty, and is entirely in accordance with the joint intentions of the two sovereign powers who are party to that agreement. The point may be made by some that a child who is born in Ireland and has only, say, Nigerian, Romanian, Chinese or French citizenship, will not be in the eyes of Irish law the same as an Irish citizen and will be somehow more vulnerable on that account. I reiterate that if an immigrant family comes to Ireland today, as asylum seekers or as economic migrants who wish to take up work opportunities, the children of that family are citizens of the state in which they were born or the state from which they came with their parents. Nobody who looks at such children playing in an Irish playground or walking down an Irish street will argue, in any plausible scenario, that their fundamental rights in Ireland are inferior to those of children who were born here and who are Irish citizens. I have never heard such an argument convincingly made nor do I see its force.

As I said earlier in the other House, I do not believe that the right to life of a child of a French couple living in Ireland, for example, is less protected than the right to life of a child of an Irish couple living in Ireland. It is not the case that the home of a French couple, neither of whom are Irish citizens, is less protected under the dwellings provision, which nominally attaches to citizens only, than the home of an Irish couple. I am not of the opinion that the good name of foreigners of Ireland is less protected. It is not the case that they cannot sue or that they cannot have access to our courts through judicial review. None of those arguments stands up in practice. Such arguments are contrived.

If the Constitution is interpreted by the courts as affording fundamental rights only to Irish citizens, who are the only people mentioned in the fundamental rights provisions, would we not be in breach of EU law if we were to say that the fundamental rights of EU citizens in Ireland are not protected by the Irish courts? I believe we would be in violation of the European treaties if we were to make such a statement. I regard that argument as a non-point.

I have to say, in advance of the results of the Human Rights Commission's further reflections, that I have not seen any cogent explanation of the argument that the children of non-nationals in Ireland are less protected. If the commission believes that to be the case, why has it not been agitating for the past year for the law to be changed? Why has it not said that a disgraceful distinction in Ireland's fundamental rights means that foreign children in Ireland are unprotected? Why has it not clamoured and knocked down the doors of this House, separately from the debate on the proposed referendum, to say that nothing is being done for many unprotected people? I regard the argument as insubstantial and somewhat contrived.

I wish to be orderly by returning to Senator Terry's point. It would be political folly and unnecessary to pursue the Article 2 route. I fully accept that she has proposed her amendment simply to show that there is another route up the mountain, but the route in question is the most dangerous route. It would result in bodies being carried down the mountain, whereas the route up the back slope is much easier.