Michael McDowell (Dublin South East, Progressive Democrats)

Senator Terry and Senator Tuffy raised the instance of a family with one child who is an Irish citizen and another who is not. However, that instance occurs as matters stand. There are thousands of families in Ireland where one of the older children is not an Irish citizen while the youngest is a citizen. It does not seem to me to complicate life for those parents. A Nigerian family with one child born in Ireland and another in Manchester would be in the same position, if the referendum is passed, as a family with one child already born here and another in the future. The second child would not be entitled to Irish citizenship as a right, just as the child born in Manchester is not. If the family came to reside in Ireland thereafter, it might be considered odd that the older child was an Irish citizen and the younger was not. However, I do not see any injustice or lack of protection for the younger child consequent upon it.

Senator Jim Walsh does not like the three year period of residence for the child's parents which is a more cautious viewpoint than the Government's. However, one could be more liberal than the Government in arguing that a child is entitled to citizenship if the parents resided here three years after the child's birth. That is not in the Government's current text but one could liberalise or make the conditions stricter. That is a matter of detail and policy that I would be interested in debating when the Bill is introduced.

Anyone who is lawfully present in Ireland for five years — three years if their spouse is an Irish citizen — is entitled to apply for Irish citizenship and nationality. These people are also entitled to have their children made Irish citizens with them. Sometimes, it is done on a rolling basis as it is easier and cheaper to apply for naturalisation of one's children at a later stage. I do not see any problems in this regard.

Senator Terry asked if I could have followed the route of testing legislation. I discussed this on Second Stage but I reiterate that it is simply impossible for me to run a Bill through the Houses believing it to be unconstitutional. The Attorney General would not permit this and, if he was overridden on the issue, he would be forced to resign. It would be a breach of my duty, and that of Cabinet members, as a citizen with loyalty to the State and the Constitution to admit that, although a Bill is wrong, I will still have a go and hope to get lucky with a Supreme Court ruling upholding it. Such a method of operation has never been countenanced by the Government. It would be a great abuse of the presumption of the constitutionality of legislation introduced in the Oireachtas. When I was Attorney General, such a ploy was never suggested. An Attorney General would have to resign if he heard Cabinet deciding such a ploy. The Cabinet would be breaching its duty of loyalty to the State. The State is the State based on the Constitution. We could not possibly have a group of people deciding to have a go at passing a law that was fundamentally unconstitutional. It would breach their fundamental duty of loyalty to the State and its Constitution. What does happen on occasion is that the Attorney General or a member of the Cabinet sees something in a Bill that might be constitutionally suspect, but the Government would not proceed with the Bill if it thought it was constitutionally improper. It could consider an argument against the Bill and decide that the balance of opinion was that it was constitutional and would be proceeded with. That would be a different situation.

There is no method by which the Cabinet can simply come up with a Bill and run it through both Houses in the subjective belief that it violates the Constitution. The Attorney General's advice and the Government's position are clearly right. The second sentence of Article 2 is the key to all of this. It makes it clear that the first sentence is a method by which the entitlement to citizenship is conferred on people and that it cannot be taken away. There is a variety of views in Dáil Éireann and this House about whether, in principle, this is a good or a bad idea, but there are some people in the Dáil and, judging by Senator Tuffy's views, in this House who actually believe it is wrong to change the jus soli absolute rule. Perhaps I am misinterpreting the Senator, but I gathered from her last intervention that she thinks it is wrong to do so.

A Green Party or Sinn Féin Member may believe the present constitutional regime should be left exactly as it is because it guarantees citizenship to everyone born in Ireland in every circumstance, regardless of the length of his or her connection to Ireland. If that Member asked me in the House whether I believed a Bill I was putting forward was consistent with the Constitution and I said "Probably not, but let us see what the Supreme Court says," it would be a resigning matter for me. Likewise, if I said I believed it was constitutional in order to mask my embarrassment and lubricate its passage through the House, I would be engaging in a gross deception of Parliament.

It is not possible to put forward experimental legislation if one has clear advice, with which one agrees, that it would be unconstitutional. It is an attractive idea that this might be possible. It is like throwing a die — one does not think it will come up on six, but if it does that is great. If the world was like that we would have far fewer problems, but the Constitution would mean a lot less if Governments behaved in that way. I must take this relatively seriously. For me to experiment, come up with something I believe is unconstitutional and push it through both Houses in the hope that the Supreme Court will see it from a different angle is subversive and disloyal to the Constitution.

Senator Tuffy referred to Deputy Quinn's letter. I have this letter and accompanying memo. I find it fascinating that for all the debate on this issue, nobody has ever put it into the public domain. One would imagine that if the Labour Party was content to put it in the public domain it would now be plastered all over the newspapers so its members could say "We told you so." This time the usual impulse of politicians has been overcome by the desire not to know what they said because it would be more convenient to have a different view today.