Michael McDowell (Dublin South East, Progressive Democrats)

Unlike some states, Ireland does not have a general power as part of some kind of quasi-punitive process to strip a native-born Irish person of his or her citizenship. There are places in the world where a person can not only be imprisoned and so on, but also stripped of citizenship as a punishment. We do not allow for that.

There is an exception to the general rule in the case of certificates of naturalisation held by people who are not Irish citizens by operation of law, whether it be jus sanguinis or jus soli, people who, under the particular Act, apply to the Minister for naturalisation. A Minister can revoke a certificate of naturalisation if he or she is satisfied regarding five different grounds, the first being that the issue of the certificate was procured by fraud, misrepresentation, whether innocent or fraudulent, or the concealment of material facts or circumstances.

The second ground is that the person to whom the certificate was granted has, by an overt act, shown himself or herself to have failed in a duty of fidelity to the nation or loyalty to the State. The third ground is that except in cases of a certificate of naturalisation issued to a person of Irish descent or associations — which does not apply to Irish associations in investment-based naturalisation — the person to whom it is granted has been ordinarily resident outside the State for a continuous period of seven years without reasonable excuse, has not annually registered in the prescribed manner his or her name and a declaration of his or her intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister. It is an interesting aspect of our law that except in the case of Irish associations or Irish descent, I can strip someone of citizenship in effect if a person emigrates from Ireland and does not maintain contact by annual registration.

The fourth ground is that the person to whom naturalisation is granted is also, under law of a country at war with the State, a citizen of that country. I can therefore revoke the certificates of belligerent citizens. The fifth ground is that the person to whom naturalisation is granted has by any voluntary act other than marriage acquired another citizenship. That is the ground I was talking about with regard to the Czech national. If it transpires that he applied, for example, for Cayman Islands citizenship after he applied for the Irish passport, that would be a ground for revoking his certificate even if he subsequently failed to get the other citizenship.

In those cases the Minister must give notice to the person of his or her intention and must have an inquiry. There is provision in section 19 for such an inquiry and its procedure. Unfortunately, in the case of Irish associations, it does not apply to people who have emigrated and the matter cannot be dealt with in that way. Therefore, one of the other four criteria would have to be satisfied.

Senator Moylan echoed a point made by other Members today about the possibility of effectively saying "enough is enough" when a passport comes up for renewal. That is a matter for the Department of Foreign Affairs. I cannot revoke passports. The issue must be one judged on the following proposition: is the person an Irish citizen, "yes" or "no"? If the person is an Irish citizen then, prima facie , he or she is entitled to an Irish passport. If the person is not an Irish citizen either because the entire transaction was void in the beginning, which is a possibility, or because one of the five criteria mentioned in section 19 applies, another issue arises. However, I cannot telephone the Department of Foreign Affairs and say it is a somewhat unwise decision to grant citizenship to a certain person and suggest the Department should not issue further passports. One of the prima facie consequences of being a citizen is the right to the protection of the Irish State in the form of a passport when travelling abroad. I do not believe withholding a passport would be legally sustainable unless there were proper legal grounds.

There is also the question of acquiescence if one was going to quash citizenship or whatever. For example, looking at all this, it occurred to me whether it could all be set aside by a judicial review but who has locus standi to set it aside? I do not want to argue against myself here but at the very least, one would imagine that anybody who objected to a quashing order being made would point to the fact that all the relevant facts had been known for many years and that nothing had happened. It is getting a bit late in the day for action in respect of the 11 passports in question.

I do not know whether as successor in title to the Minister for Justice at the time, who was a corporation sole, it would be open to me to seek to quash an order of a predecessor in those circumstances. That is something on which one could a write a book in constitutional law. In one technical sense in legal theory, I and my predecessors are the same legal person. A Minister is a corporate sole and, therefore, whether I am entitled to seek to invalidate a decision made corporately by myself is an issue on which I would not like to express a strong view. It is a matter for the Attorney General to advise but it is by no means self-evident to me that a Minister could say that his or her predecessor should not have done something and that I, as successor, will press a button and extinguish his or her action.