Michael Kitt (Galway East, Fianna Fail)

I thank the Cathaoirleach.

The purpose of the Passports Bill is to provide a comprehensive legislative basis for the regulation and issuance of passports. Passports are currently, and have been for more than 80 years, issued under the general administrative provisions of the Ministers and Secretaries Act 1924. These passports are perfectly valid and the introduction of the Bill does not in any way suggest there are doubts in that regard.

It is now 30 years since the courts established in 1978 the unenumerated constitutional right to travel and by implication the right to hold a passport. It is time that we reflected the constitutional position in legislation. The Passports Bill seeks to do that and for the first time sets out a statutory right for a citizen to a passport.

The judgment in the 'M' case clarified that the right to travel was not an unlimited constitutional right. While refusals to issue a passport to a citizen are very rare, the Bill clarifies the circumstances in which this may occur. I will return to this issue later.

The Ireland of 2008 is very different from the Ireland of 1924. Over the years, various administrative practices have been developed in connection with the passport application process, reflecting the changes in wider Irish society. The Bill therefore addresses matters such as the consent of parents who are living apart and makes provision for the issuance of passports to persons who are undergoing or have undergone changes of gender. It sets out detailed provisions for issuing passports in accordance with the applicant's name on his or her birth certificate, whether in Irish or English, and it deals with the recognition of changes of names whether after marriage or through established usage. By placing these practices on a specific statutory footing, the Bill will promote greater legal certainty and clarity for the public.

In including these provisions in the Bill, the Minister is not seeking to develop social policy, which is the responsibility of relevant Ministers. However, there is an obligation on the Minister and the Department to provide the appropriate arrangements to permit Irish citizens to travel abroad freely and with dignity.

At all times, and particularly in times of heightened security, we must be also cognisant of the need to protect the rights of the individual. With this in mind, the Minister formally referred the draft Bill to the Irish Human Rights Commission under section 8(b)of the Human Rights Commission Act of 2000. This was the first formal referral of a draft Bill to the commission by a Minister other than the Minister for Justice, Equality and Law Reform and I am grateful to the commission for its support and helpful views. Consultations on the Bill were also held with the Office of the Data Protection Commissioner and I greatly appreciate the commissioner's input.

The passport system has undergone a major overhaul in terms of technology and quality of service delivery. Huge growth in demand arising from the increase in travel, advances in technology and changes in security requirements after 11 September 2001 have necessitated this reform. Major innovations have included the introduction of machine readable passports, the establishment of an automated production facility and, most recently, the introduction in 2006 of e-passports. Arising from these improvements, the Irish passport is widely seen as a high quality and very secure document. Enactment of the Passports Bill will complement this technological reform by putting in place a clear and comprehensive framework for decisions made by the Minister, and on his or her behalf by the Passport Office.

Whereas improvements in technology mean that we now have a much more secure passport, the increased security of the document must be matched by strengthening measures to tackle fraudulent applications. Organised criminals have developed increasingly sophisticated methods to carry out their activities. Moreover, crime does not respect borders and greater freedom of movement, especially within the expanded European Union, means that every member state has a responsibility to strengthen efforts to detect and prevent misuse of national travel and identity documents.

The Bill tackles fraud in two ways. First, it clarifies that before issuing a passport the Minister must be satisfied as to an applicant's identity and citizenship. This permits the Minister to require applicants to produce adequate evidence of identity and entitlement to an Irish passport. The normal level of evidence for most applications involves the submission of certificates of birth or a previous passport, and the witnessing of identity by An Garda Síochána. However, in cases of doubt, the Minister will now have a legislative basis for requiring the submission of additional documentation or, if necessary, for requiring an applicant to attend for interview.

Second, the Bill strengthens efforts to combat fraud by providing for a series of offences and penalties relating to fraudulent applications for and misuse of passports. It will also enable prosecution of such offences even where committed outside the State. This section was drafted in close co-operation with the Office of the Director of Public Prosecutions. There was a positive reaction in the Dáil to the Bill and a constructive approach was taken by all parties. Several amendments were accepted and the Bill passed by the Dáil, and which will now be considered by this House, represents an improvement on the draft published last April.

I will now explain in brief the provisions of the Bill and I will focus in particular on issues which were the subject of discussion in the Dáil. Sections 1 to 5 under Part 1 are standard provisions relating respectively to the Short Title and commencement date, definitions, service of notices, provision to make regulations under the legislation and expenses incurred in the administration of the legislation. Section 3 on service of notices was added to the Bill on Committee Stage in the Dáil. This new section drew together provisions which previously had been repeated at a number of points in the Bill. It deals with the manner in which decisions and information are conveyed to passport applicants and holders. Section 6 provides for the right of an Irish citizen to apply for a passport and outlines the application process. Subsections (3) and (4) address issues which may arise in connection with applications in respect of children and persons with a physical or mental incapacity. More detailed provisions regarding consent of parents and-or guardians of children are set out in section 14, to which I shall return later.

Section 7 provides that the Minister must be satisfied as to an applicant's citizenship and identity before issuing a passport. Citizenship may be acquired in various ways: most commonly through birth; by descent through an Irish-born parent or grandparent; or through naturalisation. In some circumstances involving persons born in the State on or after 1 January 2005, it is also necessary for a parent to establish minimum periods of lawful residence in the State. This is a complex area and the nature of the documentation required in passport applications will vary depending on individual circumstances.

Section 8 provides for the processing of personal data, including biometric data, in connection with passport applications. Biometric technology makes use of the unique physiological features we all have. The inclusion of high quality photographs in the Irish passport permits the generation of facial measurements and will, over time, reduce substantially the scope for fraud. It also permits comparison of photographs at border control points to ensure that the person travelling is the real owner of the passport. The Passport Office currently has the facility to compare electronically an applicant's previous and current photographs. In time, this technology will offer scope to simplify the process for persons seeking to renew their passports. It may reduce the need for submission of certificates and for authentication of identity at the time of renewal, while at the same time ensuring a more secure system. The Passport Office is also seeking to upgrade this technology to enhance its capacity to detect and prevent multiple applications by individuals using different names and identities.

There are currently no plans to include a second biometric identifier such as fingerprints or iris patterns on Irish passports. However, it is possible that this may become standard international practice at some point in the future and it cannot be ruled out. Accordingly, subsection (2) makes provision for the possibility of contractual arrangements with a third party to collect this information from applicants at authorised centres around the country or at locations abroad. We have consulted closely with the Office of the Data Protection Commissioner regarding relevant provisions in the Bill, including section 8.

Section 9 deals with periods of validity of passports. Most passports are valid for ten years but passports for children are valid for periods of three or five years depending on the age of the child. These shorter periods of validity are necessary because a child's appearance will change substantially over time. Emergency passports may be issued in circumstances where an applicant is required to travel at short notice but there is not enough time to enable production of a full passport. Such passports are valid for one year and are accepted internationally, including under the visa waiver scheme for the USA. The period of validity for diplomatic or official passports also varies depending, for example, on the likely duration of an officer's assignment to an embassy or consulate overseas. Section 9(2) would also enable passports to be issued for reduced periods of validity in other circumstances, for example, in the case of an applicant who has a history of persistent passport loss.

Section 10 sets out provisions regarding the name in which a passport is issued. Again, this is designed to reflect and underpin existing passport practice. A strict approach is required regarding changes of name to safeguard the integrity of our passport internationally. The general rule is that a passport is issued in the name of an applicant as it appears in his or her birth certificate, whether this is in Irish or English. Where citizenship is acquired other than by birth, for example, through naturalisation, the reference point is the name on the relevant supporting documentation. The section also provides for a change of name after marriage. It also permits a change of name where an applicant produces satisfactory evidence to show that he or she has used that name for a minimum of two years.

Section 11 deals with gender re-assignment and outlines the circumstances where a person who is undergoing treatment or procedures to alter his or her gender, may be issued with a passport in a new gender and/or new name. Supporting evidence must be provided, including medical evidence from a registered medical practitioner. This provision is intended to underpin existing practice of the Passport Office. I mentioned earlier the formal referral of the Bill to the Irish Human Rights Commission, and the commission welcomed in particular the inclusion of this provision.

Section 12 outlines the circumstances where a passport shall not be issued, as well as situations where the Minister has discretion in this regard. I referred earlier to the constitutional right to travel and to hold a passport, and to the way in which the Bill reflects the approach of the courts in so far as it has been held that this right is not unlimited. Section 12 sets out the grounds on which a passport shall be refused. Let me again reiterate that passports are very rarely refused to Irish citizens. There was broad agreement in the Dáil that it was appropriate to provide for an obligation to refuse on the basis that a person has not established his or her identity or citizenship. Similarly, no difficulty was raised with regard to court orders concerning persons subject to bail orders, to cases where false information is provided or in cases where difficulties arise with parental consent.

Queries were raised in the Dáil as to the provision for refusal on the basis of the common good. The inclusion of this provision is intended to provide discretion for exceptional cases. It is also included in recognition of the fact that the common good was explicitly cited by the courts in the M case as a limitation on the right to travel and hold a passport. Furthermore, the power to refuse a passport on the basis of the common good is itself subject to a number of restrictions. The Minister is obliged by the European Convention on Human Rights Act 2003 to perform his functions in accordance with the State's obligations under the European Convention on Human Rights and its protocols. This means that were the Minister to refuse a passport for the common good or on other grounds, that restriction must in each case be proportionate and necessary in a democratic society. In addition, any refusal to issue a passport to a citizen, including a refusal on the basis of the common good, may be the subject of independent appeal and is also subject to judicial review.

Section 13 deals with the inclusion in a passport of information including biometric data, an issue about which I spoke already in connection with section 8. Section 14 deals with the issuing of passports for children. In line with passport practice and existing family law, section 14 gives precedence to the welfare of the child and at the same time safeguards the rights of guardians to take decisions regarding the child's welfare. The overriding requirement is that consent of all guardians must be obtained before a passport can be issued. Where consent is withheld, a passport cannot issue unless the other guardian obtains a court order dispensing with the need for that consent.

In respect of non-guardian parents, the Minister is obliged to take into account all circumstances, in so far as known to him or her, before issuing a passport without the consent of a non-guardian parent. At the same time, it is important to provide for cases where there may be difficulties in obtaining court orders, such as in cases where a child is resident outside the State with a parent or guardian. Subsection (5) therefore provides that in such cases, having regard to all the circumstances, including whether an objection has been made by the other parent or guardian, the Minister may issue a passport where he or she is satisfied that this is required to secure the child's welfare.

Further exceptional circumstances are provided for in subsection (6). This provides that a passport may be issued without the consent of one or more guardians of a child where there is an immediate and serious risk of harm to the child's life, health or safety which requires the child to travel. Finally, subsection (8) provides that the Minister may regard consent once given in writing as remaining in effect unless subsequently revoked by a guardian. The intention behind this provision is to reflect the changing structure of the family where many parents work away from home. Guardians in such situations frequently find it difficult to understand, when they have previously indicated consent to the issuing of a passport, why they have to give consent a second, third, or even fourth time in respect of the same child. Permitting some discretion under this provision will ease the burden on such families when they apply for passports for children.

Section 15 concerns the issuing of emergency travel documents. Emergency passports are usually valid for one year and may be issued in urgent cases where there is insufficient time to arrange the issue of a normal passport. Emergency travel certificates may be issued in cases where travel is urgent but where an applicant is unable to produce documentation to prove beyond doubt his or her entitlement to a passport. The certificate is valid only for a single journey and most such cases relate to an individual travelling abroad whose passport has been lost or stolen and who wishes to return to Ireland.

Section 16 provides for the issuing of diplomatic and official passports. Diplomatic passports are issued to officers of diplomatic rank or to persons or groups of persons designated by the Minister. The majority of diplomatic passports are issued to officers of the Department of Foreign Affairs, to their spouses or dependents when accompanying the officer on a foreign posting, and to members of the Oireachtas. Official passports are issued to Irish public servants who travel abroad on State business, with the principal group in this category being Irish soldiers serving abroad with the United Nations.

Section 17 requires a person who believes that his or her passport has been lost or stolen to notify the Minister and the Garda Síochána. The Minister may inquire into the circumstances of a case and may require the provision of such information as is considered necessary.

Section 18 permits the Minister to cancel a passport in certain circumstances and provides for the surrender of a cancelled passport. Reasons for cancellation must be provided and a decision to cancel a passport may be appealed to the passport appeals officer. In response to comments made on Second Stage in the Dáil, I indicated that it was always my intention to establish an independent appeals mechanism and that I would do so by Government amendment on Committee Stage. There was a broad welcome for this amendment which is now incorporated into the Bill in section 19.

Section 19 provides that a person who is refused a passport or whose passport is to be cancelled will have a right of appeal to an independent passport appeals officer. Before making an appeal, an appellant will have been provided with a statement of reasons for a refusal or cancellation. He or she can then make a case to the passport appeals officer why the decision should be overturned. The appeals officer may confirm a decision or recommend that it be set aside, and he or she shall provide reasons for this determination. Where the Minister does not accept a recommendation, he or she shall inform the appeals officer and the appellant of the reasons for not doing so. While judicial review proceedings remain an option for a disappointed passport applicant, this appeals procedure provides a speedy and inexpensive additional means for a person to challenge a decision of the Minister to refuse or cancel a passport.

I mentioned earlier that the Bill provides for a range of passport specific offences. These are set out in section 20 and include the making of false applications, possession of a false passport and sale or attempted sale of a passport. Section 20 was amended on Report Stage in the Dail to ensure no loophole was left concerning the misuse of an expired passport. The maximum penalties range from five to ten years' imprisonment and-or a substantial fine. Section 20(2) provides for a minor offence which covers situations involving the use of another person's passport to gain admission to a pub or club. The maximum penalty for this offence is a fine of €500.

Sections 21 to 25, inclusive, set out related provisions on definitions, summary trial in the District Court, proceedings outside the State, liability of bodies corporate and an amendment to the Bail Act 1997. Section 26 provides that a passport will remain the property of the Minister at all times. This reflects the long-established practice to print a statement to this effect on all Irish passports.

Section 27 is a standard provision which provides for continued validity of passports issued before the commencement of the Act, while section 28 is a standard provision authorising the levying of fees for passports and other consular services.

That completes my detailed statement on the purpose and main provisions of the Bill. I commend the Bill to the House.