Michael McDowell (Dublin South East, Progressive Democrats)
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The Bill before the House today is designed to allow the Oireachtas to address a serious issue that would in other circumstances have been addressed long ago by legislation. That issue is the aspect of Irish law that enables people born in Ireland, whether North or South, to acquire an entitlement to Irish citizenship notwithstanding that neither parent has any substantial connection with Ireland.

It is a serious issue for a number of reasons. The Government does not think that it is right that Ireland's citizenship should be thought of simply in terms of a passport with a harp on the cover, a passport that gives the holder free movement within the common travel area in operation between Ireland and our nearest neighbour and that carries with it an array of European Union treaty rights of free movement and establishment throughout the 15, and from midnight tonight 25 member states of the European Union.

Irish citizenship brings with it all of those things but I know from the debate in this House last October on Senator Quinn's Private Member's Bill that it is a view widely shared by Members on all sides of this House that there is much more to citizenship than simply a casual connection with the State whether based on investment or accident of birth. Senators will recall my support during that debate for the Private Member's Bill, which remains on the Order Paper of this House. It sought to put beyond possibility of revival any scheme of citizenship for investment. My support for that Bill was of a piece with my motivation for putting to Government the proposal that has resulted in the Bill now before the House. The common thread is my firm conviction that Irish citizenship is something to be respected. It carries with it responsibilities to one's fellow citizens and to the entity which bestows the status of nationality and citizenship. Article 2 of the Constitution speaks of people being part of the Irish nation whether they are citizens by virtue of being born in Ireland or otherwise by operation of law. Article 9.2 reminds us that fidelity to the State and loyalty to the nation are fundamental political duties of all citizens. As T.K. Whitaker's seminal Constitution review group report of 1996 points out, the terms "nationality" and "citizenship" are interchangeable and synonymous. Citizenship is not simply a status, it is a relationship with the State and with the other citizens of that State for better or for worse. It is a little like marriage in that respect. A duty is owed when circumstances are bad as well as when they are good. One cannot simply say one will dine À la carte on the benefits of citizenship. If one's country needs one, one must serve it. If one's country enacts laws which impose on one territorial or extra-territorial civil or criminal liability, those laws are binding on one as a citizen of the State.

We are increasingly aware of the phenomenon of women from abroad arriving in Ireland late in pregnancy. While we can argue about it, it remains a fact and is a worrying phenomenon. Obstetricians and others involved in maternity care have expressed grave concerns at the risks for the mothers in question and their children. We know from radio interviews in recent weeks that women are making the journey to Ireland to ensure that their children will be entitled to Irish citizenship at birth. I am not expressing Victorian moral reproof of those people. It is perfectly rational to exploit the circumstances Irish law presents. It is perfectly rational for people to want their children to be EU citizens and to have all the privileges that attach to that status. I do not condemn people for taking advantage of the current circumstances. As we all know, many of those people have very few advantages in life. If they take the course of coming to Ireland to exploit our law in its current state, that is perfectly predictable and it does not cast a moral slur on them. They are probably doing the best they can for their children. It is likely that they are motivated by the instinct of any parent to do the best he or she can for his or her children.

It is no longer the case that this phenomenon involves only people who are seeking to stay in Ireland long-term themselves and who are using the asylum system to gain access to this country. We are aware of women of reasonably substantial means who enter Ireland on holiday visas or otherwise in a manner consistent with our immigration laws or those applying in Northern Ireland, to give birth and collect a birth certificate and passport before leaving Ireland. People are being advised to arrange their affairs in this way. For example, the papers in the European Court of Justice case of Mrs. Chen make no bones about the fact that her lawyer in Cardiff advised her to travel to Belfast for the birth of her child to enable it to acquire Irish citizenship. The issue in that case, which has not yet been decided, is whether Mrs. Chen can be said to be immigration dependent on her EU citizen child and thus obtain a right of residence in the EU.

The parallel with the investment-based citizenship scheme Senator Quinn's Private Members' Bill raised is striking. People are using the resources available to them and arranging their affairs to acquire Irish citizenship, notwithstanding the most tenuous of links with either part of this island. The resources involved are very different; as in the case of passports for sale the people seeking citizenship had very considerable means at their disposal. I do not claim the analogy is by any means a complete one. For a start, the investment-based naturalisation scheme involved a positive act by the authorities at the time for the grant of Irish citizenship under the scheme. I am happy to be able to remind the House that I am the Minister who finally killed off that scheme in a termination process which, in fairness, commenced under my predecessor, Deputy O'Donoghue.

Shortly after resuming office, I published the report of the review group on investment-based naturalisation with a view to informing public debate on the matter. I have no doubt that report formed a useful backdrop to Senator Quinn's legislative initiative. On moving the Bill in this House, I indicated to Senator Quinn that the Government would not oppose its Second Stage reading because I proposed to deal with the issue by way of the forthcoming legislation on the matter. What that report illustrated, and what I believe is fundamental to the proposal before the House today, is that the acquisition of citizenship should never be a means to an ulterior end. It should be a matter of fundamental importance that is an end in itself. Irish citizenship should not be seen only in terms of its passport and international travel rights involving little or no commitment to the concepts of fidelity to the State and loyalty to the nation.

To put some perspective on the scale of the issue we are addressing, I will offer Senators some figures which I have compiled by reference to the 2002 census of population and a nationality breakdown for all births in the Dublin maternity hospitals in 2003. I want to enter a caveat at this point. I believe a considerable number of migrants into Ireland who are in doubt about the legality of their status did not show up in the census figures. I concede immediately that there may have been people in Ireland illegally who for one reason or another decided not to bring to the attention of the authorities their presence. The census figures are not be taken as gospel on this subject.

According to the census, there were 1.8 million Irish national females resident in the State. In 2003, there were 17,000 births to Irish national mothers in the Dublin maternity hospitals, a birth rate of almost 1% of the total female population of Irish nationality. There were 69,000 EU national females resident in the State according to the census. In 2003, there were 970 births to EU national mothers in the Dublin maternity hospitals, a birth rate of 1.4% of the total female population of EU nationality. There were 40,881 non-EU national females resident in the State according to the census. In 2003, there were 4,501 births to non-EU national mothers in the Dublin maternity hospitals, a birth rate of 11% of the total female population of non-EU nationality.

There may be many explanations in that regard. Lest anybody would suggest I am perverting the figures or hyping them up, I ask Senators to take them with some degree of scepticism. If one divides the number of births by the number of all Irish females, one is dividing by a total number of females irrespective of whether they are of child bearing age. It is more likely that the recent pattern of migration will have included young adults rather than children or elderly people. It is also more likely there will be an elevated rate of pregnancy among a migratory population because the women are more likely to be of child bearing age. I accept that criticism of these figures before it is made.

Based on those figures, the fertility rate among non-nationals is eight times the fertility rate of the population as a whole. Commentators have made the point that many of the births could be to work permit holders. That is a good point and I accept it could be one explanation but it is unlikely because the top five countries for the grant and renewal of work permits during 2003 were Poland, Lithuania, Latvia, the Philippines and the Ukraine. Only one of these countries, the Philippines, features in the top five countries for non-EU nationals in the Dublin maternity hospitals. Some 44% of births to non-EU national mothers in Dublin maternity hospitals arise in the case of two nationalities, Nigerian and Romanian, both of which are regarded as causing the most difficulty from the point of view of illegal immigration. It is no coincidence that all the charters organised by the immigration authorities for the return of persons illegally in the State have been to both of those countries.

In 2003, there were 46 births to Polish mothers and 1,515 to Nigerian mothers in the Dublin maternity hospitals. There were 73 births to Lithuanian mothers in the Dublin maternity hospitals in 2003 and there were 469 births to Romanian mothers. It is possible that there are cultural differences and that in Eastern Europe there is a different attitude to fertility. I ask the House to be fair-minded and objective. While it is not mathematical proof of any proposition as cultural issues and demographic issues can be added in, if one is looking for evidence of the trend, there seems to be a strong correlation between certain forms of migration and certain patterns of child bearing in Ireland.

By any reckoning, these figures reveal a disproportion and not just in the simple numbers of births. The figures available for late booked or unbooked deliveries in the National Maternity Hospital for 2003 continue the apparent trend. The National Maternity Hospital had 251 deliveries which had not been booked or which had been booked within the previous ten days. Of those, 70 were to Irish nationals, eight were to EU nationals, 163 were to non-EU nationals and ten were unrecorded. I have seen this figure dismissed as irrelevant on the basis that almost half of the mothers in question were Irish. The figure would be irrelevant if it were the case that around half of the female population of childbearing age as a whole was Irish, but that is patently not the case as the earlier figures show.

I gather that most of the Irish late bookings are mothers transferred from other maternity facilities, usually for medical reasons. I do not have that indication, and there is no reason to believe, that this is the explanation for non-national late bookings. Let us remind ourselves that this is the phenomenon that is of most concern to the managers and practitioners in our maternity services because of the grave risks for the mothers themselves and their children. We are not talking of mere statistics. In every case we are talking about a loving mother and a young child.

I do not in any sense want to reduce this to a debate about statistics. However, I want to contradict the suggestion that I am manufacturing evidence, flying in the face of the evidence, working on pure supposition or effectively trying to conflate an argument based on figures that do not exist. Nobody who has been critical of the figures has given clear explanations for the patterns that exist. I have seen much material, which suggests the explanations are much clearer.

Of asylum-seeking women coming to Ireland of childbearing age, 58% were pregnant at the time they arrived. If anybody is saying that in those circumstances the citizenship arrangements in Ireland are not, as the international organisation on migration study showed, a considerable attraction because uniquely among the European Union member states Ireland has the jus soli concept built into its constitutional law, the evidence seems to contradict that point of view.

I want the House to accept that since my appointment as Minister for Justice, Equality and Law Reform, I have done my level best to pursue a policy in which our immigration law is made effective. On a number of occasions, I have brought legislation before the Houses of the Oireachtas on the basis that not to have an effective immigration law, and worse still to be seen to have a wholly ineffective immigration law, is not simply asking for trouble but playing into the hands of those in Irish society who will use intolerance and racist feelings to engender communal distrust and ultimately hatred and enflame that feeling towards their own political ends. People exist who are quite capable of doing that and in recent days we have seen a number of people who have in the past used this weapon as a way of engendering support for very different political agendas. I will not be more specific than that.

Since becoming Minister for Justice, Equality and Law Reform, I have taken a middle course on these issues. Following the referendum, regardless of the outcome, we will continue to have the most liberal nationality and citizenship regime of the member states of the European Union. We have and will continue to have one of the most accommodating attitudes among the general population to immigration manifest anywhere in the European Union. Some people suggest this country is on the cusp of some racist division which is about to break out. I do not believe that is the case.

It is amazing that Ireland has had a total change from emigration to inward migration. We have had a very considerable influx of nationalities and races of a diversity which we did not experience in the past. We have had to change our mindsets and attitudes from an introverted view of a homogeneous society to a much more extroverted and generous view of a heterogeneous society. We have done all these things over the last five or seven years in circumstances where there has been remarkably little friction, discord or exploitation of the issue by those who could have exploited it. Ireland has not seen an emergence of parties of the far right on this issue such as happened in the Netherlands and Denmark. We have not had Pim Fortuyns suddenly emerging on the political radar screen. We have an electoral system which would be very easily open to people who wanted to come in to the political debate on the issue. We have a generous PR system, yet the Irish people have kept an even keel on the subject and a coherent, generous and good-minded approach to all of this. We have seen a transformation of our society which is ongoing and welcome in circumstances remarkably free from controversy, friction, bitterness or improper attitudes.

We must continue what the Government is doing, that is, steering this steady middle course, having an effective system while at the same time maintaining our generous approach to immigrants, welcoming migratory labour, maintaining our strong view that they should be integrated into Irish society and a willingness to uphold all the principles of international law. If I were to be seen by a section of the Irish public to be weak and ineffectual in making our laws work, nothing would be more potent tinder for a small group of people who would exploit the issue. Nothing could be more damaging to coherence and solidarity in Irish society.

As I said at the outset, in other circumstances this matter would have been addressed by legislative change by now. That would have been possible because prior to 1998, as Article 9.1.2° of the Constitution says, "the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law". If I had to adjust the laws to prevent abuse of the jus soli concept, I could have done it by legislation. I want the House to appreciate that I would have done it by legislation if that were the case. The situation changed on the adoption of the new Articles 2 and 3 which we as a nation adopted arising out of the Good Friday Agreement to replace the former articles which contained the territorial claim on Northern Ireland. The position up to December 1999 was that, under the Irish Nationality and Citizenship Act, every person born on the island of Ireland was an Irish citizen. This was a matter of statute law and was something that could have been changed, tweaked, adjusted or made immune from abuse in a very small way by a small calibration of the statutory mechanisms which were open to us.

The adoption of the new Article 2 removed the question of citizenship arising from birth in Ireland from the statutory level to the constitutional level. It did so by creating an entitlement and birthright for every person born in the island of Ireland to be part of the Irish nation, which is the same as being entitled to be an Irish citizen. The effect is that each person born in Ireland, whether North or South, is entitled to be an Irish citizen. It is not just my view. The strong advice of the Attorney General, based on dicta of the Supreme Court, is that legislation I might try to introduce that sought to limit or even defer the exercise by a person born in Ireland of the entitlement to Irish citizenship would be unconstitutional by reference to Article 2. Thus, the apparently general statement in Article 9.1.2° of the Constitution of the power of the Oireachtas to legislate is, in fact, curtailed as regards the citizenship entitlements of those born in Ireland.

Before the Government can bring forward legislation to address the issue, it must propose this constitutional change. That is what we are about here. We are not about some far reaching constitutional law or alarming new proposal. We are simply saying that in the case of people born on the island of Ireland to parents, neither of whom was an Irish citizen or entitled to be an Irish citizen — that includes the entire Nationalist and Unionist population of Northern Ireland and the great majority of people in the South of Ireland — that in the case of that category of people, the Legislature should have restored to it what it had until December 1999, the right to protect the system from abuse. It is nothing more or nothing less. It is a very simple and modest proposal to make. It is not a far reaching proposal and it is not one that anybody could reasonably describe as racist or playing the race card.

Article 2 puts out of bounds any legislation whatsoever that would limit or defer the exercise by any person born on the island of Ireland on the entitlement to Irish citizenship, but if the Government's proposal is accepted by the people, both Houses of the Oireachtas will have the power to legislate for a narrow class of persons born on the island, namely those born to parents, neither of whom was Irish or entitled to be Irish. In taking that approach, the Government is keenly aware that Article 2, as it now stands, has its genesis in the Good Friday Agreement and that anything we do must be absolutely consistent with that Agreement. The limited change to Article 9 that the Government proposes is consistent with the British-Irish Agreement and the Good Friday Agreement as a whole.

The international dimension of the complex of agreements that we speak of as the Good Friday Agreement or the Belfast Agreement is represented by the British-Irish Agreement. In that agreement, the two Governments acknowledge and confirm the rights and expectations of the people of Northern Ireland, as defined in annexe 2 to that agreement, to identify themselves and be accepted as British, Irish or both as he or she may choose. Those rights and expectations will, under this proposal, continue to be respected to the full in so far as it is within the competence of the Irish State to secure it.

We cannot legislate in this country for the entitlement to British citizenship — that is a matter exclusively for the UK authorities — but the entitlement to Irish citizenship is within the competence and responsibility of the Legislature and to that extent we owe it to our citizens in the North and the South and to our partners in the British-Irish Agreement to ensure that our laws and our Constitution continue to offer that guarantee. That is what the Government's proposal will continue to make available.

In annexe 2 to the British-Irish Agreement, the two Governments declare that it is their joint understanding that the term "the people of Northern Ireland" when used in article 6 of the British-Irish Agreement means:

all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.

The people of Northern Ireland who are being granted this right to have citizenship of one or both countries as they chose were all the people of Northern Ireland who were descended from British nationals, Irish nationals or from long-term residents in Northern Ireland who had neither nationality. Excluded from it was a category of short-term residents, who simply had their children in Northern Ireland on the basis of no long-term residence entitlements.

We can see, therefore, that not everybody born in Northern Ireland is part of the people of Northern Ireland for the purposes of that aspect of the Agreement. A child born there is excluded if his or her parents are permitted to be only temporarily in that jurisdiction, or who have no permission at all. When we look at Article 2 of our Constitution, the text of which was in the multi-party talks Agreement and which is annexe 1 to the Agreement, we see that its effect is that anyone born in Northern Ireland is entitled to be an Irish citizen, even if he or she is not entitled to be a member of the people of Northern Ireland for the purposes of the Agreement.

The Taoiseach spoke about this subject in the Lower House the other day. He said frankly that, at that time, the goal of getting the Good Friday Agreement was paramount in his mind. He said he had not envisaged that this difficulty would materialise to the extent that it has done. The point was made by a number of people then that it could happen, but it was the Taoiseach's view at the time that it was unlikely to happen and unlikely to have any serious consequences. Compared to the project, which was keeping the issues in the referendum simple, the Taoiseach took the political judgment to go on the basis that we would not do what the then leader of the Labour Party, Deputy Ruairí Quinn, suggested we might consider doing, which was to insert a balancing amendment to Article 9 of the Constitution to ensure that the problems that have arisen could have been avoided.

Let us be clear that this was a judgment taken at the time. One can criticise it in retrospect but it was done for the best reasons and in the hope and expectation that the measure would not be abused, that we would not have a problem with it and, therefore, that it would not have a significant effect on our immigration law. It has had an effect, however, and continues to have.

I wish to emphasise another aspect. This is not simply an issue affecting the minds of control freaks in the Department of Justice, Equality and Law Reform, including myself. This is not some kind of academic issue. If a child is born in Ireland to a parent who immediately removes the child, herself and possibly the father back to some other part of the world, that parent leaves Ireland with a birth certificate and passport for the child. The child becomes an Irish citizen and is entitled to confer Irish citizenship by descent, just as one of us would if we were in America, Australia, Nigeria, Romania or anywhere else with our families and begat another child. Such a child is entitled to confer citizenship by descent for two generations.

However, we do not take fingerprints or blood samples from children, and I ask Senators to consider this as a practical problem. If, in 18 years' time, somebody comes to us and states that his or her father was the person mentioned in the birth certificate, we have no real way of knowing whether that is true. We have very few means of checking it either. If we allowed this problem to motor along for the time being at the rate of 4,000 or 5,000 births per annum, and even if one took half those births as being motivated by citizenship considerations, it is not something which will pad along at that subdued level; it will become more complex as time goes by.

One member of the District Court Judiciary is already insisting that where passports are sought, they should be effectively deposited in court for certain purposes so that they cannot be abused by bringing in another child on the basis that it is the child referred to in the passport. We do not have a system of DNA or biometric identification and we are not in a position to do that. In all reasonableness, I do not think anybody could expect us to have put in place a system of that kind. As regards the integrity of our immigration laws, therefore, this is not something that will continue on a subdued basis over the years. It will become more complex and more difficult to deal with as time goes by.

In bringing forward the referendum proposal in this Bill, the Government was conscious of the need for Parliament and the people to know how it is intended that the law should operate and so we arranged for the publication, in its explanatory documentation, of the text of a proposed implementing Bill. That has been circulated widely and is available on my Department's website. The draft implementing Bill is not before us today in any formal sense; it cannot be because it would be unconstitutional to introduce such a Bill until the Constitution accommodated it. The acceptance of it will not have the slightest effect on the way our citizenship laws operate at present. It is only the passage of the subsequent implementing legislation that will bring about that change.

In order that Senators may have a full understanding of the Government's package as a whole at this stage, it is appropriate to summarise our legislative intentions. The draft implementing Bill will address the entitlement to Irish citizenship of persons born in either part of the island of Ireland to parents who are not Irish citizens and who do not have an entitlement to Irish citizenship. The proposal has four features. A person born North or South to non-national parents, either of whom has been lawfully resident in the State for at least three out of the four years preceding the birth, will have an entitlement to Irish citizenship. For non-EEA national parents, periods spent in the State for study purposes or while awaiting the determination of an asylum claim will not count towards calculating that three-year residence period. The above provision is to provide equality of treatment with persons born in similar circumstances in the State. For non-EEA national parents, periods spent in Northern Ireland for study purposes or while awaiting the determination of an asylum claim will not count; this is to make the situation the same North or South.

A person born whether North or South to parents one of whom is a British citizen or has an entitlement to reside in Northern Ireland without any restriction on his or her period of residence will be entitled to Irish citizenship. People have complained about this provision already but it is simply a matter that if a British citizen in Derry goes to Letterkenny General Hospital to have her child, then that child should have just the same rights as a child born in Altnagelvin Hospital in Derry. If we did not say that British citizens who have their children in Irish hospitals should not be accorded that right we would create an artificial distinction between someone who just happened to be south of the Border on the particular day and someone north of the Border, putting the former child in a position disadvantageous to that of a child born to a British citizen in Northern Ireland.

A person born whether North or South to parents, one of whom has an entitlement or permission to reside in the State without any restriction on his or her period of residence, will be entitled to Irish citizenship. That is frequently the case for people to whom refugee status has been granted. They are told they can remain here indefinitely and do not have to go home. In those circumstances their children are entitled to Irish citizenship and that applies North and South.

An essential thread running through these features is equality of treatment for Irish citizenship purposes, that the entitlement to citizenship of persons born in Ireland to non-national parents and the qualifying residence conditions for the parents will be the same whether that residence is North or South and whether the child is born North or South. For implementing legislation in this area not to provide this North-South equality of treatment would give rise to serious questions of legal soundness as well of course as being unacceptable from a policy point of view.

That point was made by Deputy Quinn in his letter to the Taoiseach at the time. He said if one was making what he called a belt and braces change to Article 9 of the Constitution then one should consider making it very clear that there will be no difference in treatment North or South in those circumstances. That is what happened, that is what the Bill is about and that is what the implementing legislation will be about.

Having set out what the Government's proposal will do, I will look briefly at what it will not do. It will not deprive anyone of citizenship, and I emphasise that. We are parties to the UN convention on statelessness, and we already have provision in our statute law for ensuring compliance with our obligations under that convention in section 6(3) of the Irish Nationality and Citizenship Act 1956, as amended in 2001.

Every child born in Ireland is entitled to be a citizen of this State unless that child is entitled to be a citizen of another State. This point has not been emphasised or understood. We are not creating a group of stateless children. As a sovereign State we are party to an international convention that we will always accord citizenship and nationality to any child born in Ireland if that child is not entitled to citizenship of any other State. The practical effect of this legislation, if the amendment to the Constitution is passed, is that it will stop some parents who are short-term residents in Ireland from choosing Irish citizenship for their child where they are already in a position to confer nationality by descent on that child. That is its only effect. People use rhetoric about creating some class of stateless children but that is untrue. The legislation will not act retrospectively and the text makes very clear that no-one will have a situation which has already accrued affected by this. The third point is one that has to be taken head on. I am sorry that if sometimes I am combative, but we must have clarity of thought. If the nature of the beast is to be combative, I am sorry if that appears unappealing but that is the way I am.

Paul Coghlan (Fine Gael)
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I will try the Minister out later.

Michael McDowell (Dublin South East, Progressive Democrats)
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There will be no new category of "non-citizens". Citizenship laws do not create categories of non-citizens; they set out the criteria for the acquisition of citizenship of a particular state by a certain segment of people. The world is full of categories of people who are, by reference to Irish law, non-citizens of Ireland. The world is full of states where citizenship law does not confer citizenship of the state on persons born in the territory of a state. That does not lead to the traducing of the human rights of persons born in their territory and it will not have that effect here. There is no new category of non-citizens being created. The only category of children in Ireland will be children who are Irish citizens and children who are citizens of some other state. That is the case at present.

If one looks around a playground in Ireland, one will see children who have come from different parts of the world. If they come here with their parents, they are not Irish nationals. However, they are entitled to the same primary school education under our Constitution. They are in the Irish State on the same basis as everybody else, subject to the question of whether their parents may be told, in certain circumstances, to go home.

While they are here, and this is a point that must be emphasised, they are entitled to the same degree of protection from Irish courts in respect of their fundamental rights. That is a proposition that is beyond questioning. If it were not so, we would have had many NGOs already saying that foreign children in our playgrounds are second class members of society because the courts will not help them out if their right to life or their right to property or their right to education becomes an issue. If that were the case I would have expected a clamour of people saying, for example, in respect of a Filipino nurse, who comes here to help us in the health system, that her fundamental rights in Irish law were less than those of an Irish nurse.

Brendan Ryan (Labour)
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It is bonded labour. She has no rights.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am talking about her fundamental rights.

Brendan Ryan (Labour)
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Maybe we differ about what are fundamental rights.

Michael McDowell (Dublin South East, Progressive Democrats)
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I will come to the Senator's point in a moment. There is no question and no serious lawyer believes, except lawyers who are intent on creating doubt, that the Irish courts would say——

Brendan Ryan (Labour)
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Why does the Minister not name him?

Michael McDowell (Dublin South East, Progressive Democrats)
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Allow me to finish, please. No serious lawyer contends that any Irish court would say to any person, of whatever nationality before it, that his or her fundamental rights did not apply because he did not see the person's Irish citizenship certificate and ask to be shown the person's passport. That has never been our law and, in fairness, our courts have never gone down that road.

We have accorded the fundamental rights of the Irish Constitution to everyone, regardless of nationality. Nobody has ever made the claim successfully in any Irish court that a foreigner in our midst has a lower right to life, a lower right to their good name, a lower right to their freedom or that their home is not subject to inviolability or constitutional protection. The exact opposite has happened. I read recently that punitive damages were awarded against a landlord who unlawfully evicted a foreign family without going through due process. That was because their rights as humans to have the inviolability of their dwelling respected attracted the protection of Irish law, regardless of their status or nationality.

There are thousands of non-national children resident here. According to the 2002 census of population there were 133,000 EU nationals living and working in Ireland. Do any of them have lesser rights than Irish people? Does a Spanish woman or a Spanish man have more or less right to life or is their dwelling more or less inviolable then mine?

The answer is, clearly not. Many of those comprise families with children who, although EU citizens, are not Irish citizens. There are thousands of families resident in this State on the basis of an Irish citizen child because of the pre-L and O situation. Those non-national children's human rights and the human rights of their parents are of course fully protected by Irish law for as long as they are in the State. The rights of the brothers and sisters of the Irish-born citizen are identical in terms of fundamental rights.

Senator Ryan makes a good point which I accept, that at the moment the work permits system is predicated on a relationship between the migrant and a particular employer. It is easy to characterise it as a form of indentured labour or employer-specific status. I want the House to know that I am examining that issue and hope to bring before Government some form of green card system so that if one is a migrant in Ireland one can move from employment to employment and people are not tied down to one employment, subject to some control on abuse of the system. If somebody comes into Ireland to be a nurse or a psychiatrist, a draughtsman or a software engineer, he or she can go from that employment to some other employment without effectively invalidating their status in Ireland. I regard that as a rational change in our laws. It will be one in which the social partners will have an interest because it will require a number of fairly delicate steps to be taken. I agree with Senator Ryan that we should change and liberalise our laws and that people should not be here on the basis of one relationship with one employer. That is not a proper way to deal with the migration issue.

It should also be stated that eight out of ten people who appear to be different by virtue of their accent, skin colour or whatever, are here as economic migrants and are extremely welcome. They play a vital role, not simply in our economic and cultural well-being, but also in bringing to Ireland innovative outlooks and young blood to work in our society and prevent us from becoming what many other European societies are demographically fated to become, namely an ageing population dependent on a smaller and smaller younger cohort.

Migration is not merely good for Ireland, it is essential. We should not be minimalist in our attitude or in any way hard-hearted or mean-minded; we should embrace migration in a full-blooded manner and welcome it for the change that it brings to our country which, in my view, is a change for the better. It improves Irish society and makes it richer and more culturally diverse. It makes it more complete, more generous-minded and less introverted. I accept all that. I do not really need to have that point drummed home to me. Those are my central core beliefs and I believe the central core beliefs of the great majority of Irish people.

In my constituency in Dublin, which is roughly the area between Clanbrassil Street and Sandymount, there was in the 1920s, 1930s, 1940s and 1950s, but not now in so many numbers, a very substantial Jewish population of between 4,000 and 5,000 people. That population has declined. This country was not generous to those people in terms of its migration policies and it was not generous to them in terms of its social exclusion of the Jewish population. I stood up and apologised at the first Holocaust memorial day for the way in which they were treated, particularly by the Irish State and I believe it was reasonable for me to do that. As far as I am concerned, in all of that time with that very significant population and in circumstances of religious intolerance of a type that no longer exists, there was remarkably little friction, strife, negativity or racism, despite all the social attitudes that drove Ireland in those decades. It was remarkable how well people got along together.

Later on, before the current wave of migration started, there was a significant south Asian — Indian and Pakistani — community in my constituency, centred around the College of Surgeons and other places. Growing up in that area as a child, where I have lived all my life, there were never significant problems. I have no doubt intolerance was shown by individuals from time to time but I have never seen a spark of communal intolerance of the type evident elsewhere in the world. The area elected Jewish Members of Dáil Éireann, for example.

I have never seen the kind of hatred and race-driven politics that have emerged in other states. Sometimes we have to keep what we do in perspective. I do not want to get into a blame game, but in Northern Ireland there are signs that some of the political extremists have exploited the race issue to isolate people in their community and have knocked in windows, burned out cars and so forth. That has never happened to a significant extent in this State so let us not talk ourselves into a situation that does not exist.

Senator Ryan is a man of passionate rhetoric.

John Dardis (Progressive Democrats)
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He is not at all combative.

Michael McDowell (Dublin South East, Progressive Democrats)
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Some people have stated that the proposal is racist.

Brendan Ryan (Labour)
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It panders to racism.

Paddy Burke (Fine Gael)
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Allow the Minister to continue without interruption, please.

Brendan Ryan (Labour)
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If I am named, I will defend myself.

Paddy Burke (Fine Gael)
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The Senator will have an opportunity to do so.

Brendan Ryan (Labour)
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I will have 15 minutes, while the Minister has an hour.

Michael McDowell (Dublin South East, Progressive Democrats)
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The Bill has been described as racist. When law, it will apply to everybody across the board, whether Americans, Norwegians, Aryans, non-Aryans, Semites, non-Semites and people of all skin colours and religions. It is not racist and it is unfair to describe it as such.

The Government is not playing the race card for short-term electoral advantage. I believe passionately that my duty as Minister with responsibility for equality, as well as immigration policy, is to keep a firm hand on the tiller, an even keel, and to ensure that people's respect for the law remains solid in order to prevent phenomena, such as splinter right-wing parties and opportunistic exploitation of the race issue, which have emerged in other European countries. Anybody who examines my record on this matter will see I have been fair-minded, reasonable and straight down the middle. My approach and that of the Government command popular and deserved respect.

Our proposal is that Irish citizenship will not be an inducement to people to come here to have children. If people want to come here for a legitimate reason, citizenship should not enter into it. The proposal will not affect the right of any asylum seeker to come to Ireland and our laws on asylum will remain exactly the same. If one is being persecuted or if one claims one is being persecuted, one has the right to come to this State under international law and have one's status decided by the mechanisms we have put in place. This right is not affected. Whether citizenship is available at the end of that process is irrelevant. If one needs and is entitled to international protection, it will be given in this State.

If, however, the State observes a phenomenon of people coming here in mid and late pregnancy claiming to be asylum seekers and concludes, on reasonable grounds, that much, although not all of it, is driven by a desire to avail of Irish citizenship and, therefore, EU citizenship for the child when born, we have a duty to ensure that our citizenship is not devalued in that way, just as we had a duty to ensure that it was not devalued in order that millionaires could simply buy themselves a passport by having lunch in a hotel with a politician.

Brendan Ryan (Labour)
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Or in order that white South Africans could secure their future.

Michael McDowell (Dublin South East, Progressive Democrats)
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The only people entitled to come to Ireland from South Africa, irrespective of colour, are those who can claim they are entitled to Irish nationality by descent. That is the same basis for people from the Americas and right across the world. It is wrong to identify them by their skin colour. Paul McGrath's grandchildren will be entitled to jus sanguinis just as much as anyone else.

Brendan Ryan (Labour)
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Paul McGrath is not a white South African afraid for his future. That is not the basis for loyalty to the State.

Michael McDowell (Dublin South East, Progressive Democrats)
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I want to return to the subject matter of Senator Quinn's Private Members' Bill. It is my intention in the implementing Bill, which I have not yet published, to address the substance of his proposal.

There is an undoubted link between citizenship policy and immigration policy. Our immigration policies have brought many thousands of non-EU nationals to Ireland and they are very welcome here. They see Ireland as a land of opportunity and they are right. They rightly see it as a place where they can contribute to our economy. They see it as a place where they can begin families and bring up their children as Irish citizens and that, after residing here for the requisite period, they can avail of our extremely liberal nationality and citizenship law. This accords the right to apply for citizenship after five years to anybody who resides in Ireland, unlike the position in Germany, France and other countries. They will continue to come and play their part in Irish society. We want them to be able to share in the prosperity they help us to generate. Some will come for a while, earn what they can and then return to build themselves a new life in their home countries. That is legitimate as well. Others come to Ireland as a place where they see themselves building their new life. Either way, we welcome them wholeheartedly and our aim is to facilitate their participation to the fullest extent in Irish society. As a mark of our high regard for those who have come from abroad to establish themselves in, share in and contribute to Irish society, these proposals will entitle their children born here to be Irish citizens by operation of law. At the same time, the Bill will ensure that Irish citizenship is not regarded simply as a passport to a wider Europe, but means something important to those who hold it: a sense of fidelity to the Irish nation and loyalty to the Irish state. I commend this Bill to the House.

Sheila Terry (Fine Gael)
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I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Seanad Éireann, in accordance with the recommendations of the All-Party Oireachtas Committee on the Constitution's Report for clear and agreed procedures for the holding of referendums on constitutional amendments,

—considering that political parties, north and south, view the proposal for an amendment to Article 9 of the Constitution as impacting on Article 2 and thereby the Good Friday Agreement and the process of its present review, and

—believing that there is a need for an All-Party Oireachtas Committee to consider the Twenty-seventh Amendment of the Constitution Bill 2004, and specifically to evaluate the issues on the basis of the knowledge of experts and the presentations of the insights of groups outside the Houses and to report thereon to both Houses of the Oireachtas before 1 September 2004, declines to give the Bill a second reading.".

Never before have we seen a Bill to amend the Constitution rushed through like this. The Minister's disregard for the integrity of the Constitution, the legislative process and the Opposition parties is palpable. The manner in which he is dealing with this Bill is to be regretted. If the Minister was genuine in his efforts to embark on a process of all party consultation and to secure all party agreement, this Bill may well have passed through the Houses with unanimous support. He has chosen not to travel that route and that is why he is plunging ahead with a referendum on a divisive and a sensitive issue on a day of elections.

Fine Gael agrees that the broad nature of Article 2 has been open to exploitation and has been wholly committed to finding the best resolution to this problem.

If I had the attention of the Minister, I would continue. I want him to hear what I have to say.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am listening carefully.

Sheila Terry (Fine Gael)
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The Minister has greater skills than many if he can listen and speak at the same time. Fine Gael's commitment has not been reciprocated by the Minister. Members of this House first became aware of the proposal to have a referendum to deal with the citizenship issue when the Minister published his information note on the proposal on 12 March. At that time the Minister's justification for holding the referendum was based on the contention that the masters of the maternity hospitals had pleaded with him to change the law. The masters have strongly disputed that, so the Minister has now changed his tack.

It is clear the Minister has taken the American realist approach to our Constitution. He has decided on the result he wants to achieve and is working backwards, grappling at reasons to justify his decision. This is not the way to treat our Constitution. His mantra now is that this referendum is required to protect the integrity of citizenship. He has clearly abandoned the contentious argument about the maternity hospitals for the altogether more abstract desire of protecting the integrity of citizenship. What exactly does this mean? I have never heard him express concerns about the integrity of citizenship. Why is it suddenly an issue? If it is an issue, let us have a debate on it. The integrity of citizenship has never been discussed in this House. If the Minister is serious about protecting the integrity of citizenship, let us talk about our many tax exiles. Are they not undermining the integrity of citizenship?

On the announcement of this proposal, the Minister committed himself to all-party consultation on the matter. My understanding of all-party consultation is that the participants meet with a view to contributing to the shaping of proposals. This clearly did not happen in regard to this Bill. On 7 April, this Bill was presented to our spokesperson on justice as a fait accompli. At no time were we given an opportunity to contribute to its content. Fine Gael wrote to the Taoiseach seeking all-party consultation on the issue. These consultations never took place in a meaningful way and it seems fair to suggest they never took place at all.

It is grossly irresponsible of the Minister to propose that this referendum be held on the same day as the local and European Parliament elections. The debate on this divisive and sensitive issue will be skewed and manipulated by some purely because it is being held at election time. We saw that happen at the last general election in Cork. Purely by choice of timing, the Minister has shown the race card by making citizenship an election issue. In making a decision on the timing of this referendum, the Minister and the Government had a responsibility to ensure it would not be hijacked by people with ulterior motives, but they have failed in that regard. Despite the Minister's failure to admit this and his denials otherwise, political responsibility for the timing of this amendment and any consequences which flow from it rest with him.

I doubt anyone in this House would disagree with me when I say the Constitution is the foundation stone of the State and should only be amended as a last resort. Where a decision is reached to amend it, this should only proceed after careful and considered debate. The lack of time afforded to people to consider the proposed referendum is of grave concern. Bills to amend the Constitution only arise out of a process of discussion and consultation commencing with a Green Paper, followed by a White Paper and culminating in a Bill. In his wisdom, the Minister has chosen to short-circuit all precedence on this issue presumably because he knows best.

The nature of what is being proposed is clearly an amendment to Article 2. The Minister would rather make the proposed amendment by way of Article 2 than Article 9 as he now proposes. Perhaps the Minister will confirm this is the case and that the reason he has chosen to amend Article 9 over an explicit amendment to Article 2 is because an honest amendment to Article 2 would necessitate further and wider consultation than he would like. It seems the less consultation required, the better.

Despite the recent declarations of the Irish and British Governments, the oblique amendment of Article 2 as proposed in this Bill will have implications for the Good Friday Agreement. The concerns of the Human Rights Commission and other parties have not been taken on board. While there is a need to address the problems stemming from the abuse of the rights conferred by Article 2, Fine Gael differs with the Government on how best to resolve the issues involved. Fine Gael has consistently advocated that this matter should be referred to the All-Party Committee on the Constitution where the issues surrounding the proposal could be teased out. The wider question of the integrity of citizenship with which the Minister is concerned could be examined in that context also.

The Minister speaks of the integrity of citizenship while displaying great carelessness towards the integrity of the Constitution. The Constitution should only ever be amended as a last resort. I remain to be convinced that all other avenues have been exhausted or even explored. While the Minister will tell me he has explored the possibility of resolving this issue through legislation alone and that he and the Attorney General do not believe such an approach is feasible, the legislative option should be considered with greater vigour. The problem posed by the exploitation of Article 2 is difficult and requires an innovative solution. The Minister contends that Article 2 of the Constitution prevents him from dealing with this issue by legislation alone, for which reason a referendum is required. The Minister may be mistaken. The courts have never adjudicated on the absolute meaning of Articles 2 and 9. In the absence of knowledge of the true meaning of these articles, it seems most unwise to seek to propose an amendment. The Minister appears to attach great significance to the obiter dicta of judges of the Supreme Court. Are we really to make legislation and amend the Constitution on the basis of the asides and by-the-way remarks of the Judiciary?

Use of the forum of the All-Party Committee on the Constitution would have allowed all aspects of this intensely complex legal matter to be teased out. It is my assessment that while there is no one magic answer to this issue, there is a range of options which has yet to be fully discussed. There is some merit in the argument that we do not require a referendum and that this matter could be dealt with through primary legislation alone. Despite everything the Minister is saying now about the meaning of Article 2, he imposed restrictions and conditions on the right to citizenship in section 6 of the Irish Nationality and Citizenship Act 2001. It is legitimate to ask why we cannot introduce further restrictions without a referendum. Another mooted option involves the publication by the Minister of the draft citizenship Bill, its movement through the Houses and subsequent enactment. The Supreme Court could then decide whether a referendum was required.

I am not advocating a particular option, rather I am outlining some of the avenues the All-Party Committee on the Constitution could have explored. A further option involves the amendment of Article 9.1.2 which would begin with the words "Notwithstanding Article 2". This amendment would have the effect of reinstating the power to regulate citizenship by legislation. As I stated earlier, the Minister is, in effect, amending Article 2. He does so in an oblique and misleading manner. The proposal contained in the Bill represents a back-door amendment to Article 2, which is the source of the problem we face. If this Article is where the problem lies, it should be addressed in an honest and up-front way. Has consideration been given to inserting the text of the proposed amendment to Article 9 into Article 2 instead? Has the Minister considered limiting the currently broad scope of Article 2 by inserting into it the one-parent Irish citizen requirement? Alternatively, has the Minister considered inserting a proviso at the beginning of Article 2 which makes reference to Article 9.1.2? These are just some of the alternative options which could have been discussed by the All-Party Committee on the Constitution.

I do not claim to have a monopoly of wisdom on this issue and there are, no doubt, many other options which could have been discussed in that forum. Regrettably, the Minister has passed up the opportunity to have all avenues explored before settling on one particular option. I wonder if that is because the Minister knows best and has greater wisdom than members of the all-party committee or Members of the Houses of the Oireachtas.

Brendan Ryan (Labour)
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I am glad the Minister is in the House.

Michael McDowell (Dublin South East, Progressive Democrats)
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I wonder if the Senator is telling the truth.

Brendan Ryan (Labour)
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I am. I usually enjoy the Minister's combative nature and suspect that to a degree he may enjoy mine. In that regard, we have sometimes let people down. Some years ago, Mr. Pat Kenny was disappointed when he failed to start a row between us because we ended up agreeing about more than we expected. Mr. Kenny had expected blood under the studio door.

I will not get cross but the Minister's justification for holding a referendum on this issue on 11 June is, to quote an eminent authority, "trite, tendentious and lacking in intellectual integrity". I quote the best authority in that regard.

I teach engineering to students. It is not to my credit that they are very successful. They compete for jobs with American multinationals based in my home city and do so very well. I teach them about problem solving and tell them the first thing a person must do is define a problem otherwise an enormous amount of time, energy and resources can be wasted solving the wrong problem. The first test is to identify if a problem exists, how big it is, if it is getting bigger or smaller and whether it can be quantified. I will return to that point. I also teach my students about the need to order business efficiently. Everybody knows how one goes about ordering a meeting. One gives priority to and deals first with the urgent and important matters. A matter must be important and urgent to get priority.

Let us now look at how this issue has emerged. On 19 February, the Taoiseach told us there were no proposals for a referendum. One has to assume something extraordinary happened between 19 February and 10 March. However, there was no sudden change, nothing happened; there was no organised conspiracy. Both Houses have in the past dealt with legislation in less than one day when the Government satisfied the Leaders of the Opposition that there was an urgent and important issue to be dealt with.

On 10 March, we received a briefing document from which the Minister has at this stage, gracefully or ungracefully, retreated because it contained so much misleading information and near distortions, with an appendix which made vast reference to asylum seekers. We then had the story of the masters' pleading, which, it emerged, was a meeting the Minister had organised and which the masters had attended, and in which I accept the need to deal with some immigration issues was mentioned. However, the masters insist the meeting was about a resource issue. The Minister remembers better than they do because he keeps on saying it.

The famous brief my colleague, Deputy Costello, received on 10 March referred to the fact that many of the non-nationals were late arrivals. The document was wonderfully confusing with non-EU nationals being juxtaposed with non-nationals. We later discovered that the document was referring to non-nationals of the United Kingdom as well. So we were discussing non-EU nationals, non-UK nationals and non-Irish nationals. That document seemed to disappear and we then focused on the late arrivals. I accept there is a genuine humanitarian health care issue concerning late arrivals. However, it then turned out that the late arrivals were a pretty mixed bunch and that some of them, including some of the non-EU nationals, were coming from within the State.

We then moved on to the Minister's seat of the pants estimate of 40% to 50%. This is precisely what I would advise a first-year engineering student not to do. He should not rely on what he believed but should go and establish the facts. Enough mistakes have been made in industry by doing what is believed to be right without testing the assumptions to fill half a dozen textbooks. I would have thought that the extraordinary degree of education that eminent barristers get would have advised them of a similar need to be cautious about personal assumptions.

We now have today's statistics from the Minister, which mention birth rates, etc. While the Minister was speaking, I took the time to investigate. The Minister plays tricks with statistics. He correctly quotes the 1.8 million Irish females and mentions a birth rate of 1%. However, only about half of those females are of childbearing age.

Michael McDowell (Dublin South East, Progressive Democrats)
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I said that myself.

Brendan Ryan (Labour)
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It is not in the Minister's script.

Michael McDowell (Dublin South East, Progressive Democrats)
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However, I said it.

Brendan Ryan (Labour)
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I was away checking the figures while the Minister was adding to his script.

Michael McDowell (Dublin South East, Progressive Democrats)
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The Senator should have come and listened to what I said.

Brendan Ryan (Labour)
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Yes, Minister, to coin a phrase. The non-EU nationals come here to work, come as asylum seekers or come to have their children. They are, therefore, of childbearing age. They also come from cultures where the average family size is considerably bigger than ours.

Michael McDowell (Dublin South East, Progressive Democrats)
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I said that too.

Brendan Ryan (Labour)
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The Minister keeps on saying that he said all these things. However, what his script states is that he attaches significance to the fact that the rate of birth is 11%. They are all of the optimal childbearing age between approximately 18 and 30. I do not know what the Irish figures are for women in that age group. While the Minister may know, he did not tell us. The Minister put into his script a comparison between the birth rate among all Irish women——

Michael McDowell (Dublin South East, Progressive Democrats)
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If the Senator had stayed to listen to me rather than going down to the Library, he would have heard me making all these points at great length just a few minutes ago.

Paddy Burke (Fine Gael)
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Senator Ryan should be allowed to continue without interruption.

Brendan Ryan (Labour)
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I might have been happy if the Minister had not gone on at such great length. Like all the Minister's statistics up to now, once one checks them, one finds that they are utterly trite, tendentious and lacking in intellectual integrity. Perhaps the Minister is correct. I do not know, and that is the point. Everything he has said so far is open to a different interpretation or question. Ultimately, one must decide whether there is a problem, which is the best one can say. We must rely on disputed meetings between the Minister and senior medical people. In some instances, statistics turn out to be different in reality from what he suggested. We had a "seat of the pants" estimate of 40% to 50%, based on nothing he has as yet made known to me, including today's statistics, which he heavily qualified in his live address here.

What we must worry about is how precise is this whole case. To add to the sense of imprecision, when speaking on 7 April on the similarity between the conditions he proposed and those that existed for the spouses of non-Irish citizens, he said that if a non-national marries an Irish citizen, he or she must remain in the State for three years before being entitled as of right to become a citizen. I find this astonishing. The truth is that spouses of Irish nationals do not have a right to become citizens. They have a right to apply to become citizens, and there is written into the law an absolute discretion for the Minister. That may well be what the Minister for Justice, Equality and Law Reform calls a right, but it is not what I would call a right. Is that the sort of right people will have under his future legislation?

I have experienced a problem over the 20 or so years I have been in this House. The response of the Department of Justice, Equality and Law Reform to any abuse of a right appears to be to abolish it. The Minister was eloquent towards the end of his speech about the sensitivity of his Department. I was looking for some information this morning and I was told on the telephone that the immigration and citizenship section only deals with telephone queries between 10 a.m. and 12 noon on Tuesdays and Thursdays, which represents wonderful sensitivity.

I had the experience of having to make representations on behalf of 15 year olds coming on a school tour to Dublin who were refused entry visas by the Department of Justice, Equality and Law Reform, even though they had the legal right to stay in Britain. It happened two years in a row, so it was not an accident. I watched the abolition of the right of citizens. I spoke to a number of people who applied for naturalisation and live in a state of entire frustration. I am supposed to believe that I should entrust the right of citizenship to that sort of attitude. What we have in this referendum is a "Queen of Hearts" or "Alice in Wonderland" scenario, whereby words mean what one says they mean, the same words having changed meaning as we discussed the issue.

There is a situation now whereby the Commission on Human Rights, the SDLP, Sinn Féin, the DUP and the Opposition are wrong. Everyone is wrong on both the issue and the timing. We were and are prepared to be reasonable about the issue. While everyone was wrong, the Taoiseach discovered someone who agreed with him. He referred yesterday in the Dáil to the President of Nigeria who apparently told him it was a problem. The DUP, SDLP, Sinn Féin and everyone else was wrong but the President of Nigeria was right about what was wrong with our citizenship laws. One is scrabbling when one searches that far for allies.

The only conclusion one can draw is that this issue was neither urgent nor properly defined. There was nothing critical and we could have left plenty of time to have it described, quantified and an agreed position reached, including the Northern parties, instead of putting yet another spanner in already difficult works. If the Minister wants to know what this amendment may do, he should listen to the telephone messages that come into the various radio chat shows, where every bigot and racist is queuing up to kick the immigrants and the black people they dislike so much. The Minister may believe they are wrong, but this gives hope and encouragement to the worst element of our society. To do that knowingly, in the middle of an election, is either a sign of extraordinary political incompetence, and I do not believe that is the case, or is a deliberate intent to get the bigoted element to vote in a referendum, because they would see it as a way to get their own back on people they think should not be here. That is fomenting and pandering to the worst type of cynicism in a country where the Opposition has behaved with extraordinary restraint on the issue of immigration. The Government should be grateful that we had, until recently, a consensus on immigration but that has been destroyed. As it has been destroyed, my party will be voting against this Bill in the House and will be campaigning against it in the country.

Jim Walsh (Fianna Fail)
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Go raibh maith agat, a Chathaoirligh. Cuirim fáilte roimh an Aire. Bíonn sé anseo go minic le hábhair tábhachtach a phlé.

I have listened with interest to Members' comments, especially from the Opposition. I disagree strenuously with the last assertion of Senator Ryan that the Opposition has behaved responsibly on the issue. Many comments made during the course of the debate have been far from responsible. It was suggested that the referendum will raise racist tendencies, but I contend that some of the comments in the House inflame that type of thinking and invite that comment, which is regrettable.

People may have preconceived ideas on the facts of the issue, but there is an attempt at political opportunism on the issue. Members have made comments, which the facts belie. The investment that has been made in the implementation of the law is totally at variance with some of the assertions made. Some €120 million is being spent currently by the Department of Justice, Equality and Law Reform on this area. The State has spent——

Brendan Ryan (Labour)
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Is the Senator referring to the area of citizenship?

Jim Walsh (Fianna Fail)
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The cost of asylum seeking——

Brendan Ryan (Labour)
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We are not talking about asylum seeking.

Jim Walsh (Fianna Fail)
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I am.

Rory Kiely (Fianna Fail)
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Allow the Senator to continue without interruption.

Jim Walsh (Fianna Fail)
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On Second Stage, I am entitled to deal with issues I consider pertinent and relevant to this debate. The State spends €340 million. Of the 600 civil servants dealing with immigration, some 420 are dealing with asylum seekers. Anybody who contends that the State is not acting responsibly in this respect is not being factual. The main bone of contention from all Opposition spokespersons I have heard, whether in this House or in the Dáil is that in their opinion this Bill should have been referred to the All-Party Committee on the Constitution. That committee has done tremendous work on complex issues that need to be teased out in order to ensure proper amendments to the Constitution. This particular issue, however, is probably one of the simplest referenda we have had in my time in politics. I have been canvassing on the doorsteps recently and some people have asked me about the referendum. When it is explained to them, they fully accept that it is a simple issue for them to address.

Sheila Terry (Fine Gael)
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There are different ways to deal with this.

Jim Walsh (Fianna Fail)
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I appreciate fully that there are different ways of dealing with it but the Government's job is to govern. Equally, if the Government was seen to be vacillating on an issue which the Opposition felt should be addressed, it would be the first to argue that the Government should deal with it instead of prevaricating. The arguments on this issue are simple and the electorate will have no difficulty in comprehending them, even though I suspect there will be attempts at obfuscation. We have heard some such attempts today and will probably hear them later also.

The timing of this amending legislation has also been criticised. The amendment to the Constitution that has given rise to some of the current difficulties dates back approximately six years. During that period we have had debates on the issue and Members of both Houses have expressed their views as to how it should be tackled. The Supreme Court's decision in January 2003 gave rise to considerable debate not just in the Houses of the Oireachtas but also, as Senator Terry will agree, on the Joint Committee on Justice, Equality, Defence and Women's Rights. At those meetings there was a consensus that the issue needed to be addressed and the Minister is now attempting to do that.

Some of the arguments about timing have maintained that because the referendum is due to be held in conjunction with the European and local elections, it would fuel some sort of racist undercurrents that a small minority might be inclined to display. If the referendum was held separately, however, that likelihood, if it existed at all, would be much more likely to emerge. By combining the referendum with the European and local elections, the matter will be addressed in a responsible way, as the coming months will show.

Much has been made of the comments of one or two people who may have made ill-advised remarks in the past, but that can happen at any time. The last time such remarks were criticised in this House, they concerned an election where no referendum was taking place at the same time. Others have said that the referendum should be held in conjunction with the presidential election but it is not yet clear whether there will be a contest for the presidency. It would be less appropriate to have the referendum on the day of the presidential election than on the day for which it has been scheduled.

Senator Terry inadvertently said that this issue was never discussed in the House, which is wrong. We have discussed it twice recently, once in Private Members' time and also when debating a Private Members' Bill from Senator Quinn. Senator Terry also said that the integrity of citizenship had never been discussed, but that is not the case. All of us as parliamentarians must fully support and advocate the integrity of our citizenship and the Minister pointed out that fidelity to the State and loyalty to the nation are fundamental political duties of all citizens. Dr. T.K. Whitaker's constitutional review group of 1996 stated that the terms were interchangeable and synonymous and that this was not simply the status of the relationship with the State. No Member could disagree with that statement. We should remind ourselves that in many other countries, when people achieve citizenship, they have obligations such as conscription at a certain age. They have to serve in that country's armed forces or defend it if there is a war. Those obligations are not as evident in a neutral country like ours.

The Minister rightly pointed out that no blame attaches to anyone who avails of any loopholes we may have in our legislation in order to achieve citizenship. People are also motivated by the possibility of better opportunities for their children. We value our Irish and EU citizenship and those from less developed areas would also value that citizenship, but there are provisions in our legislation which allow people to apply for citizenship, subject to appropriate qualifications.

This issue comes down to the simple question of whether citizenship should be automatic. Should anyone born here have citizenship conferred on them automatically? There are probably Members who feel that should be the situation and, if so, they should say so. They should not hide behind disingenuous arguments which are opposed to the holding of the referendum.

That is one argument. The other argument is whether the Oireachtas should have the power to determine the entitlement to Irish citizenship and what criteria should apply. That is eminently sensible and the referendum will restore this power to the Oireachtas. All people are being asked to decide is whether the Oireachtas should have that power or whether they wish to continue with the status quo, that anyone born here, regardless of the circumstances, is automatically a citizen. That is a clear choice for the people and it is open to people of all opinions to articulate their views.

A more important point will arise subsequent to polling, assuming there is a positive result, on the shape of the legislation. The Minister has rightly illustrated his intentions in this regard, stating that if either parent of a child is resident in Ireland for three of the previous four years, then citizenship is automatically conferred on that child. There are issues which it attempts to address. We have had the argument about maternity hospitals, to which Senator Ryan referred. The statistics clearly show that of the 5,000 births that took place in the Dublin area in 2003, 20% to 25% were to non-nationals. The report undertaken by the reception and integration agency, in conjunction with the Northern Area Health Board, cited difficulties for the Dublin maternity hospitals in dealing with unpredictable workloads and women, with no medical history in the State, arriving in the late stages of pregnancy. They also have to deal with high levels of HIV and other illnesses. A further difficulty is dealing with people who have little knowledge of English and different cultural practices and issues arise. All of this has been highlighted as creating genuine medical concerns which have to be addressed.

As members of the EU we have many entitlements, but we also have obligations. In a recent debate I set out clearly the regulations governing citizenship in Britain, France, Germany, Denmark, Sweden, Spain, Greece and Italy. We are well out of synch with them. The Minister is correct to bring forward the referendum at this time. It is a simple issue which has to be addressed by the people. They will do as they have done in the past and that may or may not give rise to the Houses thoroughly teasing out legislation to underpin their intentions. That is democracy in practice. The Minister should be commended rather than criticised for taking that route.

Joe O'Toole (Independent)
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I welcome the Minister to the House and I listened to his lengthy justification of the Bill. It struck me that "thou doth protest too much" about what was and was not there. It sounded like another Minister in another place talking about his particular certainties on particular issues. We have heard in the past hour that the e-voting commission has shot electronic voting out of the skies and blown it out of the water. We will come back to that issue later today.

Rory Kiely (Fianna Fail)
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The issue of e-voting is not relevant.

Joe O'Toole (Independent)
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This Bill is following the same pattern. It appears we should be careful. I am absolutely certain that the Minister for Justice, Equality and Law Reform, Deputy McDowell, is not and has no tendency to be racist. I believe that fundamentally and I have defended him on that issue. However, he is completely wrong in what he is trying to do here. The Bill is going through in a manner where it has not received enough consideration.

The Minister's contemptuous dismissal of the Human Rights Commission which he established is unacceptable. I find it amazing that he went through his whole speech without dealing with the issues raised by the Human Rights Commission during the past week. That raises an issue for me. He was able to dismiss what the Human Rights Commission said within an hour before any of us had an opportunity to read it. He described it as weak, tendentious and fanciful and by the following morning he said it lacked intellectual integrity.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am glad the Senator keeps a note of everything I say.

Joe O'Toole (Independent)
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The appropriate use of words is important. I went to the trouble of looking up "fanciful" in the long Oxford Dictionary. I put on the record earlier in the week the various usages by various people in literature over those years.

Paul Coghlan (Fine Gael)
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Skibbereen Eagle syndrome.

Joe O'Toole (Independent)
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I wish to make a few comments on the Minister's speech. His speech is tendentious and I will give the House one clear example. On page four the Minister speaks about the famous 163 and the arguments have been well made by other speakers why this is a sledgehammer to crack a nut in terms of the figures. The Minister states: "The figure would indeed be irrelevant if it were a case that around half the female population of child-bearing age as a whole were Irish." That is a very relevant comment but why is it on page three, when the Department officials were putting together all the comparisons between the Irish females, EU national females and non-EU national females, there was no reference to child-bearing age? I know demography is something which is not accepted by Government as being a very acceptable science but it is one of the more precise ones——

Michael McDowell (Dublin South East, Progressive Democrats)
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I said that in my speech.

Joe O'Toole (Independent)
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Perhaps I was taking a telephone call at the time. The reality is those figures——

Michael McDowell (Dublin South East, Progressive Democrats)
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The Senator was celebrating the e-voting decision.

Joe O'Toole (Independent)
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Yes, I was. I was literally trying to contain myself on that issue. I presume we are looking at an early Cabinet reshuffle.

To make comparisons between the total population of females under those three categories without reference to comparisons of those at child-bearing age——

Michael McDowell (Dublin South East, Progressive Democrats)
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I did not do that.

Joe O'Toole (Independent)
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——is tendentious.

Michael McDowell (Dublin South East, Progressive Democrats)
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I did not do that.

Joe O'Toole (Independent)
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But it is tendentious.

Michael McDowell (Dublin South East, Progressive Democrats)
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I did not do it.

Joe O'Toole (Independent)
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It is written in the Minister's speech.

Michael McDowell (Dublin South East, Progressive Democrats)
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What I said is different.

Joe O'Toole (Independent)
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It is tendentious. What is written in the Minister's speech is tendentious and totally biased, one-sided and partial. To use the Minister's own words when speaking earlier, he said people are committed to creating doubt. That is an example of a tendentious effort to create doubt in people's minds. It is unacceptable and does not become the Minister because he is a man of——

Michael McDowell (Dublin South East, Progressive Democrats)
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I did not make that argument.

Joe O'Toole (Independent)
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I will say no more.

It is important that the Minister would have his views analysed and reciprocated in different ways. I am very bemused at the tone of page seven of the Minister's speech where he states acceptance of the referendum proposition will not have the slightest effect on the way our citizenship laws operate at present. That is a fanciful statement. It may not have the slightest effect on the way our citizenship laws operate but it will certainly have a significant effect on the way our citizenship rights operate. The Bill states: "This section shall not apply to persons born before the date of the enactment of this section." That means from the date of enactment, citizenship rights are changed.

Michael McDowell (Dublin South East, Progressive Democrats)
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That is not so.

Joe O'Toole (Independent)
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I look forward to the Minister's explanation of that point. It may be something I do not understand——

Michael McDowell (Dublin South East, Progressive Democrats)
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The present statute law will continue.

Joe O'Toole (Independent)
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That is what I said. I accept that the laws——

Rory Kiely (Fianna Fail)
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Senator O' Toole should be allowed continue. The Minister will have an opportunity to reply.

Joe O'Toole (Independent)
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This is why it is fanciful of the Minister to tell the House that the citizenship laws will not be changed and he is absolutely right. He then gives the impression to everybody listening that it will not affect citizenship, but it will have a significant and immediate effect on citizenship and the rights of citizenship from the day it is enacted. That is the whole point of it. It is like a ministerial order which requires the approval of the House or one which comes into operation on day one despite anything the House might do afterwards, in other words, the legislation may or may not change things and it might never be passed. We cannot anticipate that it will be or that it will be in the form which is suggested in the Minister's speech.

I have often celebrated with the Minister the impact and influence of his family and his forebears, particularly around the time of 1916. One of the documents produced at that time and in which some of his family may have had a significant input and influence, was the Proclamation of the Constitution. Most politicians read it as being the Constitution and it was quoted as being so on the Order of Business today. It seems that in deference to his family history, the Minister might at least attempt to recognise that he has impinged on that great statement in the Proclamation which successive Governments have ensured never got near the Constitution.