Michael McDowell (Dublin South East, Progressive Democrats)

We discussed this matter at some considerable length yesterday. However, overnight I have had an opportunity to look again at the Government proposals document of April 2004. We can take some heart from the fact that the Parliamentary Counsel retained to translate the Government's intentions into legal effect looked at precisely the same issue as Senator Tuffy and said that, in each case, no one should be disqualified from Irish citizenship if his or her Irish parent deceased during the pregnancy, in other words, if the person who was the Irish parent ceased to be such at the time of birth, under one meaning of the term "parent". The parliamentary draftsman specifically included, under each of the grounds necessary to give effect to the four exceptions that the Government put in place, a paragraph extending the right to Irish citizenship to someone who, when born, was the child of a parent who had been an Irish citizen and who had died during the pregnancy. That goes as far as we can on this, but I do not at all dismiss the argument put forward by Senator Mansergh today and by Senator Maurice Hayes yesterday that, under one view of the term "parent", one's parents do not cease to exist because they die but remain one's parents, since everyone must have two, short of cloning. The identity or nature of people's parents is not transformed by death. On that reading of the Constitution, perhaps what the Parliamentary Counsel is inserting here would not be necessary at all. As Senator Tuffy has conceded, no wording is absolutely certain.

Whichever view is taken let us remember that the whole purpose is to give to this and the other House the right to address all those hard cases and to deal with them in the measured way that is proposed. The second point raised by Senator Tuffy is whether, in the light of the L and O decision, we can attempt to legislate within it. In her view, the L and O case effectively said that coming to Ireland with a view to having a child here presents no problem and the L and O case effectively knocks on the head the notion that parents can stay in Ireland because of their child's Irish citizenship. I reiterate what I said yesterday, that the L and O case is not that meat cleaver type of decision which just hands to the Minister for Justice, Equality and Law Reform the right to despatch people out of Ireland on a whim.

I will quote again what Mr. Justice Hardiman said in his judgment in the L and O case: "It seems to me that the existence of an Irish-born child does not fundamentally transform the rights of the parents, though it requires the specific consideration of the Minister, who must reasonably be satisfied of the existence of a grave and substantial reason favouring deportation."