Michael McDowell (Independent) | Oireachtas source

Cormac Ó Braonáin was a relative of my wife and a fine young man. To this day, I feel broken-hearted for his parents and grandmother. His loss was immense not only to his family but also to all of those who knew and admired him. It is fantastic to have in our society young people who are committed to political activity. The activism of young people in politics arose earlier today on the Order of Business. It is hugely important. I sometimes think back to the War of Independence and the circumstances that gave rise to it. We are becoming a somewhat aged society in terms of political participation. This country was founded by people who were half the age of most politicians who are now serving the people as elected representatives.

I want to indicate that I supported Senator Bacik's Bill on Second Stage because I was very happy with the principle of the Houses of the Oireachtas availing of the amendment of the Constitution to recalibrate whenever they saw fit the circumstances in which somebody should become an Irish citizen. In that context, I have a few remarks to make of a more general kind. If Senator Bacik's amendment had been ruled in order, I would be standing here and speaking against it in the most resolute way, but since it is not in order, I do not have to do that.

I should explain a few things that need to be put on the record and that, sadly, have been ignored in this House in recent discourse on this general subject. I was Attorney General of Ireland in 2002 and became Minister for Justice in that year. In the early portion of 2002, it became apparent to the Irish State that a process was in being in England which later became known as the Chen case. The substance of it was that a well-to-do Chinese couple wanted to secure their long-term residence in the United Kingdom. They were legally advised that if they went to Northern Ireland and had the child they were expecting delivered in Belfast, that child would, by virtue of the Irish Constitution as it stood from the implementation of the Good Friday Agreement onwards, become an Irish citizen as of right and constitutional status. There was absolutely no doubt they were advised that by having a child born in Ireland, even though they resided in the United Kingdom and had no intention of residing in Ireland, they would create the circumstance as a matter of European law, because every Irish citizen was also an EU citizen, whereby their child would not be capable of being deported and they, as the parents of an EU citizen child, would accrue the right to live in the United Kingdom with their child. They had no connection whatsoever with Ireland. The law reports are clear on the fact the intention was to avail of the Good Friday Agreement in this particular way, with a view to attracting long-term residence in the United Kingdom.

That case was in progress and a reference to the European Court of Justice was taking place in the early part of 2002.Any analysis of what EU citizenship entailed and what the European Court of Justice was likely to do at the time led those who studied the matter to the conclusion that it was highly probable that the European Court of Justice would eventually rule that a child who was an EU citizen was, naturally speaking, entitled to remain in the EU, and that if such a child were completely dependent on his or her parents, as the child in question was, the parents could remain with that child as of right.

It should be said that, at the time, Ireland was the only member state of the EU that had such an absolute entitlement. Even France, which had a jus soliright of citizenship, did not have an absolute entitlement of that kind. It may surprise some that in my younger days as a barrister, I represented on a pro bonobasis a family — their case, the Fajujonu case, and the fact that I was involved have been reported — in respect of whose case the Supreme Court considered the status of non-national parents of an Irish-born child. The jurisprudence that effectively arose from the Fajujonu case was that the State could deport the parents of an Irish-born child who was an Irish citizen but that, in those circumstances, there would have to be very strong reasons for so doing. The combination of the likely outcome of the Chen case and the Supreme Court's jurisprudence in the Fajujonu case made it almost inevitable that Ireland would be the only member state of the EU with a constitutional rule that guaranteed that people in the position of the Chens would effectively be able to reside anywhere in the EU as long as their child was born anywhere on the island of Ireland, not even within the Twenty-six Counties.

The reason I mention all that is when the Progressive Democrats–Fianna Fáil Government was established in June 2002, one of the terms of its programme for Government was that this issue would be addressed, at either legislative level or constitutional level. It was made very clearly part of the programme for Government at the time. Therefore, anybody who says — I will come to this later, if I may — that there was at the back of this some kind of racist impetus to address the question of Irish citizenship for electoral advantage in the local and European elections of 2004 is wholly and completely wrong. That was never the case. Two years prior to those elections, the question of constitutional change and the issue of consulting all the parties in the Oireachtas on the subject were clearly flagged in the programme for Government. Some people, in a puerile way, chose to describe the exercise of rebalancing the Constitution in the way it was done in Article 9 as a racist referendum. It was no such thing. It is untrue. I will not use the L-word in talking about it. It is untrue and it was never intended to have the effect described. It was purely because, if one puts all the pieces that were beginning to emerge-----