Paddy Burke (Fine Gael)
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Before the House proceeds to consider the Bill, I wish to deal with a procedural matter regarding Bills to amend the Constitution.

The substance of the debate on Committee Stage relates to the wording of the proposed amendment of the Constitution. Alternative texts are contained in the Schedule to the Bill and related amendments. In order to allow for a more ordered debate, I suggest that the House should postpone consideration of sections 1 and 2 until the Schedule has been disposed of. This is the practice in these circumstances and is provided for under Standing Order 107. Is that agreed? Agreed.

Paddy Burke (Fine Gael)
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Amendments Nos. 2 to 6, inclusive, and amendments Nos. 8 to 11, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.

Sheila Terry (Fine Gael)
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Tairgim leasú a 8:

I leathanach 7, roimh an Sceideal, an Sceideal nua seo a leanas a chur isteach:

Paddy Burke (Fine Gael)
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For the information of Members, I point out that amendment No. 2 is consequential on amendment No. 8, amendment No. 3 is consequential on amendment No. 9, amendment No. 4 is consequential on amendment No. 10 and amendment No. 5 is consequential on amendment No. 11. Where the main amendment is not agreed, the consequential amendments cannot be moved.

Martin Mansergh (Fianna Fail)
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This is a matter in which I have a deep interest not least because of its connection to the Good Friday Agreement. I have complete confidence in the way the Minister is going about dealing with this matter. To refer this Bill to the All-Party Oireachtas Committee on the Constitution would be simply a delaying tactic. This is a relatively straightforward and simple change and it addresses two problems. One is the practical consequences in regard to maternity hospitals, but the core principle it addresses is the unintended backdoor access not merely to Irish citizenship, but particularly to EU citizenship, as highlighted in particular by the Chen case.

I would be opposed to any alteration to Article 2. I am not sure whether Senator Terry understands that would involve, effectively, a reopening of the negotiations on part of the Good Friday Agreement. I am not a constitutional lawyer but my understanding of the Constitution is that when it is being judged or a decision is being made in regard to it, the articles are taken together and, therefore, it is perfectly legitimate. When any case is being decided upon, Articles 2 and 9 would be read together. They deal with nationality and citizenship. As the Minister said on a previous occasion, they are synonymous. If we were to alter or amend Article 2, which is part of the Agreement that was decided by the people, we would be re-opening the negotiation of something which does not need to be re-opened.

Article 2 applies to all the people of Northern Ireland as it was intended to apply to them. It does not only state "entitlement", it states "entitlement and birthright". We are talking about entitlement and right. The word "entitlement" is in that article because certain Unionists, such as the leader of the Ulster Unionist Party, might have objected to the notion that he was automatically Irish, an Irish citizen regardless of whether he liked it. The word "entitlement" was a way of getting around that and effectively providing that he or anyone like him has the right to be an Irish citizen if he or she so chooses. This article provides for a birthright and the word "entitlement" is alongside it so that it is not something that is imposed or forced on people against their will.

This amendment, if accepted, would effectively mean that we would have to re-open the negotiation of the Good Friday Agreement for something that has intrinsically nothing to do with it. This matter is to do with people who have no connection with this country and who probably come here for the limited purpose of mainly acquiring EU citizenship rights rather than Irish citizenship rights. The annex to the Good Friday Agreement, inserted by the British Government, clearly defines the people of Northern Ireland. We must not get our wires crossed. We are trying to deal with this practical problem and matter in a self-contained way that precisely does not impinge on the Good Friday Agreement or upset it.

Some concerns were expressed briefly by certain parties in Northern Ireland when this Bill was published, but I note with some satisfaction that after a full explanation of it was given, those concerns were abated. I have no reason to believe that it is now a major concern of any party in Northern Ireland because it has been clearly explained to them that this is ring-fenced from the Good Friday Agreement.

I appeal to Senator Terry whose party, strongly and commendably, has supported the Good Friday Agreement since it was put in place not to press an amendment which would have the effect of re-opening the debate on the Agreement in a way that is entirely unnecessary and redundant.

Joanna Tuffy (Labour)
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Members should all have been presented with copies of the Constitution for the purpose of this debate. I forgot to bring my copy with me. For a debate of this nature, copies of the Constitution should be furnished to Members.

As regards what Senator Terry stated earlier, as I understand it we are changing a right, which exists under the Constitution. In the recent court case relating to the dual mandate, the judge stated that there is a right to run for election to the Dáil. This obviously can be qualified by legislation but it remains a right. I would have thought that the matter we are debating also involves a right. I accept that it can be legislated for but it is still a right. The Minister is interfering with a right. Even if it can be qualified by legislation, that right still exists under the Constitution. If it was not a right and was just an entitlement to apply for a particular right, there would be no need for this constitutional amendment. That is the point Senator Terry was making. The Minister should clarify whether it is a right. If it is not a right, the referendum should not proceed. If a right exists and it must be qualified by legislation, it must be qualified proportionately to one's needs.

My second point relates to Senator Mansergh's comments about Article 2. I do not accept that articles of the Constitution can be kept pure from the amendment. It is as if the Constitution will remain as it stands at present, regardless of whether the amendment is carried in the referendum. There are two different articles in the Constitution, which deal with property rights. If one was amended, both would be affected in terms of the way the courts would interpret them. In this instance, the Minister is effectively amending Article 2.

Senator Mansergh said that the next matter to which I wish to refer has been debated but I do not accept that. However, I accept that it was raised by the Labour Party in the Dáil. We are dealing with something that was part of the agreement reached in the multi-party talks. Although the latter does not form the whole of the Good Friday Agreement, it remains part of it. I refer to the law of treaties in that regard.

This is a complicated issue and we should not be dealing with it in this way. The type of process required for dealing with it would have been similar to that employed by the All-Party Committee on the Constitution. In such a process, different aspects could have been teased out and expert advice obtained. Hearings could have been held, if necessary, and we could have obtained legal and other advice.

I do not know what is the Minister's intention in bringing forward this measure now. I have already been out knocking on people's doors and I am aware that the debate on this matter is being simplified. I hope the discussion around it will evolve during the campaign. People are making simple responses in respect of this matter and they are not considering the complications involved. The Minister stated in the weekend's newspapers that he would like to introduce a green card system. The Labour Party would favour such a system and we, therefore, have some common ground with him. However, people will not appreciate that during the referendum because of the way the issue will be debated.

The referendum will not attract one extra vote for the Progressive Democrats. It will obviously help Fianna Fáil in that regard, which is its intended purpose. I am not stating that was the Minister's intention but it is the reason the Fianna Fáil Party is supporting this measure. The Progressive Democrats will not make even the slightest gain in terms of its support in the elections so I do not understand why that party did not delay this measure and have it dealt with in a much more detailed way.

Martin Mansergh (Fianna Fail)
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On the point of two articles of the Constitution being read together, there is an exact parallel in the Nationality and Citizenship Act 1956. One of the articles in that legislation states that every child born is an Irish citizen, while a separate article states that if a person is born outside the jurisdiction in Northern Ireland he or she must make a declaration to take up citizenship. That is exactly what is being done in the Bill before the House.

Jim Walsh (Fianna Fail)
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I will not rehearse the arguments put forward on Second Stage. What is being sought here is further delay by means of referring this matter to an all-party committee. I have been a Member of the Seanad for seven years and I have not seen a simpler amendment to change the Constitution being put before the House. The Bill merely asks that the people allow the Oireachtas to legislate in respect of the children of non-nationals, which is eminently sensible.

If there are people who are opposed to the substantive issue involved, it would be better if they declared their interests and we could have a debate on that issue. There is a great deal of obfuscation taking place in respect of this matter. I refer more to the comments of Senator Tuffy than those of Senator Terry in that regard. What the people are being asked to do is make a small and clear-cut change to the Constitution. The need for this has arisen because of the changes that emanated from the Good Friday Agreement, which changed the constitutional position in respect of certain articles. As a result, people have been able to exploit a loophole which does not exist in other countries. That is the substantive issue. If people want to debate that matter, I have no difficulty doing so. However, people should emerge from cover and state their position rather than continuing to pursue their current peripheral and insignificant line of attack.

Mary White (Fianna Fail)
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My sister has lived in the United States for 30 years. Last November, while presenting a paper in Milan, she became seriously ill and was rushed to hospital. She had retained her Irish passport and was welcomed into the hospital with open arms because she is an Irish citizen. At present, if a non-national has a baby here he or she are entitled to obtain all the benefits offered by the EU. From that point of view, we are allowing Irish citizenship to be exploited. The point I am trying to make relates to the value of holding Irish citizenship.

Michael McDowell (Dublin South East, Progressive Democrats)
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Senator Terry's amendment suggests that we should actually again tear open the terms of Articles 2 and 3 of the Constitution, consider what they involve and insert new wordings in them. I fully accept that this would be one way to approach this issue. All of the rhetoric I have heard for a long period runs to the effect that we should not touch these articles and that they should be left intact. As Senator Mansergh stated, it was a transient feeling that the articles were somehow being violated in a significant way, which led to a degree of disquiet among certain people who believed they should be consulted on the issue. It is worth looking at Article 2 very carefully. I agree with Senator Tuffy that we should all have our copies of the Constitution in front of us. The first sentence in Article 2 states: "It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation." The second sentence is one on which public debate has not focused, but it is crucial to an understanding of Article 2. It states: "That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland."

The phrase "otherwise qualified in accordance with law to be citizens of Ireland" proves conclusively that the first sentence was intended to bestow the birthright and entitlement of citizenship on everyone born on the island of Ireland, without qualification. The second sentence says the same entitlement and birthright applies to people who are otherwise qualified in law to be citizens of Ireland. The word "otherwise" means that the first sentence is conferring the entitlement to citizenship on the category of people born in Ireland.

I wish to make a point I did not feel I had the latitude to make on Friday because time was pressing. Article 2, in effect, provides that Irish citizenship for people born in Ireland is by self-selection. An entitlement and a birthright are what are conferred on a person. Senator Terry says correctly that citizenship is not automatically conferred by Articles 2 and 3. However, she is wrong, in my respectful submission, when she says that all Article 2 does is give the right to apply for Irish citizenship. It gives something more. It gives the right to have Irish citizenship if one so chooses. It is not a mere right to apply for it where one could be told "no" and to forget it. It is an entitlement to have it if one so chooses. That is the point I tried to make the other day with regard to the argument, slightly plausible but fundamentally misconceived, that the provisions of the 2001 amendment were, in some sense, inconsistent with what is now being argued. Those provisions provide that the son or daughter of a diplomat have the entitlement, because they are born in Ireland, to have Irish citizenship if they so choose, but they make it very clear that it is not an automatic conferral by Irish law on them of citizenship. It is likewise for people born on boats and planes in Irish waters or airspace. Citizenship is an entitlement if they so choose, or, as the language of the statute says, in the case of a child, if the choice is made on its behalf to have Irish citizenship.

The second sentence of Article 2 puts beyond any doubt that the clear meaning of the article was, as the Taoiseach conceded in his correspondence with Deputy Ruairí Quinn at the time, that any person born in Ireland, regardless of circumstances, was henceforth to be entitled to Irish citizenship. Deputy Quinn raised that point in his letter and asked the Taoiseach if he could, on a belt and braces approach, include in Article 9 a qualifying provision, which would maintain the right of the Oireachtas to control the issue. Attached to Deputy Quinn's letter was a prescient memorandum from my good friend Finbarr O'Malley raising the issue and showing how, by amending Article 9, one would not have to reopen what happened in Castle Buildings but could make it clear that citizenship was not an absolute entitlement in every circumstance, regardless of how tenuous or non-existent a child's parents connection with Ireland was.

The Taoiseach conceded fairly in the Dáil the other day that his priority at the time was to have a simple issue before the people and not to open the Pandora's box with which we are now dealing. He decided to keep the issue simple and go for it. He said he thought that was justified because the Belfast Agreement was a simple issue. Although it was passed by an overwhelming majority of the people of the South, it was not the most robust of plants at the time. Some of us will recall that there was quite a deal of agitation in Northern Ireland as to its exact meaning. The Taoiseach, as he said in the Dáil, wanted to keep it simple and at the time he did not foresee that any abuse of it would be of such a dimension or frequency as to cause any problems for the State. He said candidly that this was not a significant issue in his mind and he was going for the simple wording that had been agreed in Castle Buildings and did not want to open the Pandora's box of other considerations.

That was a political judgment at the time with which it is difficult to argue. However, some people, myself included, could see there would be difficulty down the road. I thought it would be an academic difficulty and that, coupled with the Fajujonu case and Supreme Court jurisprudence, it would be difficult to get people out of Ireland. The L & O case had not been decided at that stage. Nobody foresaw that significant numbers of people would be attracted to this country by virtue of being able to acquire EU citizenship by arriving in either part of the island and having a child. That was not foreseen as a significant problem and if people had thought so, I have no doubt that Deputy Quinn's advice might have been taken at the time.

If the issue was of such seriousness that it raised a red flag warning us of serious consequences which outweighed the advantage of simplifying the issue to be put to the people in 1998, which led to the amendment of the Constitution in 1999, a different decision might have been made. Hindsight is 20:20 vision. Then it was a question of looking prospectively at the chances of getting agreement on a simple issue, uncluttered by an immigration issue, which was far from people's minds.

What we have now is that Article 2 empowers people to decide whether they wish to be an Irish citizen. The choice belongs to the person. It is a self selection process based on the clear language of Article 2. That choice cannot be taken away from people. It cannot be taken away on the advice of the Attorney General, even in the sense of saying with regard to a minor that the rights of the minor can be postponed until the minor is 18, by statute as matters stand currently, or that any qualification, such as the connection between the parents and the country, should be of a particular strength or duration. It cannot be qualified in that way.

Where does this leave us with regard to Senator Terry's amendment? I acknowledge, lest she feels I am taking advantage of her, that what she is suggesting is one alternative approach, which would have been considered if the matter had been considered at greater length. That approach was considered. My Department considered carefully whether we should touch the wording of Articles 2 and 3. For all the reasons set out by Senator Mansergh, it became blindingly obvious to us that if there was any alternative route to the top of this mountain, other than up the north face of Articles 2 and 3, we should take it because the revisiting of the wording of those articles was fraught with difficulties of a political and every other nature.

Where does this leave the debate? Deputy Quinn's belt and braces suggestion is the appropriate way forward. It was a thoughtful reflection at the time and is, on thoughtful reflection, the right way forward on the issue now. We must now examine the combined effect of Articles 9 and 2 and address the unintended consequence of the Good Friday Agreement whereby we are vulnerable to unreasonable exploitation and abuse of our citizenship laws.

I agree with Senator Jim Walsh that this is a simple issue. It is not rocket science. We are simply suggesting that we return to the position that obtained before the 1999 amendment of the Constitution and give the Oireachtas the power to intervene in a very narrow way with the general principle, which is that the people of Northern Ireland have a right to citizenship of this State if they so elect. The Oireachtas is free to regard the people of Northern Ireland in the same way as the annex to the British-Irish Agreement regards them, namely, that people who are children of British or Irish citizens or of long-term residents of Northern Ireland are identified by the British and Irish Governments as being worthy recipients of the right to dual citizenship or citizenship of either country as they choose. It is the principle of Article 2, of the British-Irish Agreement and of the annex of the Agreement that a group of people was in contemplation, which we would all colloquially call the people of Northern Ireland, and who are in a state or part of a state which is divided in its loyalty, to whom the two governments, by an international treaty which is now registered atthe United Nations, guarantee the right to citizenship of the United Kingdom, of Ireland or of both states, without limit and absolutely. That is what the two Governments decided. It is that principle I do not want to invade, qualify or change.

It is because of the wording of Article 2 and its susceptibility to exploitation that we have a situation in which the people of Northern Ireland have the same right in respect of both countries, but people with no connection with Northern Ireland have the opportunity to piggy-back on the new terminology of Article 2 to achieve Irish citizenship where they cannot achieve United Kingdom nationality. Mrs. Chen could not by going to Belfast avail of the terms of the British-Irish Agreement to confer British nationality on her child and therefore avoid deportation or whatever she was seeking to avoid. She could not elect in relation to Britain. We therefore have a lack of symmetry and a lack of mutuality. Article 2 as so interpreted goes further than was necessary and creates a difference in the entitlement to citizenship between the two countries because it confers the right to citizenship without qualification on people who have no connection with the island of Ireland North or South in the case of Southern citizenship, but it confers it only on people who have some connection with Northern Ireland or long-term residence there in the case of United Kingdom citizenship. It is that asymmetry with which we are dealing.

To return to Senator Walsh's point, all of this sounds highly theological and highly complicated. However, in essence this proposal could not be simpler. The two Houses of the Oireachtas will have the power in respect of people, neither of whose parents are Irish or British and neither of whose parents are long-term residents of Northern Ireland, to provide that they must have some minimal connection with Ireland in terms of the duration of their stay in Ireland or their entitlement to be in Ireland before the right to Irish and EU citizenship kicks in. I repeat that this does not mean the Government's proposed legislation will be enshrined in the Constitution. It will be open to either House of the Oireachtas thereafter to vary the period from six months to ten years or to make other provisions to vary it in one way or another. This is a perfectly sensible, simple, rational and reasonable change to our Constitution. It does not require immense reflection to arrive at the conclusion that it is the best of the approaches available. If I thought for one minute that changing Articles 2 and 3 of the Constitution was the appropriate way of arriving at the summit at which we all want to arrive, which is a reasonable law, I would take that route. However, I know full well, as Senator Mansergh has said, that it would result in immense complication and confusion and bring down the whole edifice of the Good Friday Agreement in pieces around my head in circumstances where, as was pointed out by Deputy Quinn so long ago, it is unnecessary to take that risk.

I want to deal with the point, which has been canvassed fairly frequently, that this Bill will create a second class of citizen or an underclass in Ireland. That is a profoundly mistaken view. First, as I said here on the last occasion, because Ireland is party to the International Convention against Statelessness, nobody will be deprived of Irish citizenship by this amendment of the Constitution and the laws which will be in place thereafter, unless that person is already entitled to another citizenship by descent. The existing text of our citizenship and nationality law, which reflects that international obligation not to create stateless people will continue to apply. It states very clearly that anybody who would otherwise be stateless shall be an Irish citizen. The reverse side of that coin refers to children whose parents can confer on them nationality of the parents' home state. Therefore only people who will not through their parents be entitled to citizenship of some other state will be affected by the passage of this referendum. Looked at in a different way, that is the same as saying that everyone who has the right to one citizenship will not be entitled to avail of Irish citizenship as a matter of choice if their parents have no real tangible connection with this country. If they are entitled to their parents' citizenship they cannot accrue a right to Irish citizenship as well if their parents have no tangible connection with this State. That is what this proposal is about.

I expect the two Human Rights Commissions will sit down together and visit this territory. I am not trying to get my retaliation in first because I will be accused of being combative and arrogant. However, I fully accept the validity and common sense truth of the two Governments' declarations on this matter, which is that this approach by the Irish Government is entirely consistent with the British-Irish Agreement which has been registered at the United Nations as a treaty, and is entirely in accordance with the joint intentions of the two sovereign powers who are party to that agreement. The point may be made by some that a child who is born in Ireland and has only, say, Nigerian, Romanian, Chinese or French citizenship, will not be in the eyes of Irish law the same as an Irish citizen and will be somehow more vulnerable on that account. I reiterate that if an immigrant family comes to Ireland today, as asylum seekers or as economic migrants who wish to take up work opportunities, the children of that family are citizens of the state in which they were born or the state from which they came with their parents. Nobody who looks at such children playing in an Irish playground or walking down an Irish street will argue, in any plausible scenario, that their fundamental rights in Ireland are inferior to those of children who were born here and who are Irish citizens. I have never heard such an argument convincingly made nor do I see its force.

As I said earlier in the other House, I do not believe that the right to life of a child of a French couple living in Ireland, for example, is less protected than the right to life of a child of an Irish couple living in Ireland. It is not the case that the home of a French couple, neither of whom are Irish citizens, is less protected under the dwellings provision, which nominally attaches to citizens only, than the home of an Irish couple. I am not of the opinion that the good name of foreigners of Ireland is less protected. It is not the case that they cannot sue or that they cannot have access to our courts through judicial review. None of those arguments stands up in practice. Such arguments are contrived.

If the Constitution is interpreted by the courts as affording fundamental rights only to Irish citizens, who are the only people mentioned in the fundamental rights provisions, would we not be in breach of EU law if we were to say that the fundamental rights of EU citizens in Ireland are not protected by the Irish courts? I believe we would be in violation of the European treaties if we were to make such a statement. I regard that argument as a non-point.

I have to say, in advance of the results of the Human Rights Commission's further reflections, that I have not seen any cogent explanation of the argument that the children of non-nationals in Ireland are less protected. If the commission believes that to be the case, why has it not been agitating for the past year for the law to be changed? Why has it not said that a disgraceful distinction in Ireland's fundamental rights means that foreign children in Ireland are unprotected? Why has it not clamoured and knocked down the doors of this House, separately from the debate on the proposed referendum, to say that nothing is being done for many unprotected people? I regard the argument as insubstantial and somewhat contrived.

I wish to be orderly by returning to Senator Terry's point. It would be political folly and unnecessary to pursue the Article 2 route. I fully accept that she has proposed her amendment simply to show that there is another route up the mountain, but the route in question is the most dangerous route. It would result in bodies being carried down the mountain, whereas the route up the back slope is much easier.

Paddy Burke (Fine Gael)
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As it is 5 p.m., I am bound to ask Senator Terry to report progress so that the House can take Private Members' business.

Sheila Terry (Fine Gael)
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We did not start our consideration of Committee Stage of the Bill until 4.15 p.m. Can we continue until 5.15 p.m.?

Paddy Burke (Fine Gael)
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No. Committee Stage of the Bill will resume after 7 p.m.

Sheila Terry (Fine Gael)
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Is it possible for me to respond briefly to the Minister, so that we can conclude our consideration of the amendments before the House?

Paddy Burke (Fine Gael)
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I am bound by the rules of the House.

Sheila Terry (Fine Gael)
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I would like us to sustain our momentum.

Paddy Burke (Fine Gael)
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We have already gone over time by five minutes.

Sheila Terry (Fine Gael)
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We started 15 minutes late.

Paddy Burke (Fine Gael)
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The Order of Business agreed by the House earlier states that Private Members' business will be taken between 5 p.m. and 7 p.m.

Jim Walsh (Fianna Fail)
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I am happy to propose that we continue our Committee Stage consideration of the Bill until 5.15 p.m., with the agreement of the House.

Paddy Burke (Fine Gael)
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Is the Senator proposing an amendment to the Order of Business?

Jim Walsh (Fianna Fail)
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Yes.

Paddy Burke (Fine Gael)
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Does the House agree that we start Private Members' business at 5.15 p.m.?

Mary Henry (Independent)
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No.

Paddy Burke (Fine Gael)
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It is not agreed.

Mary Henry (Independent)
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It is not agreed.

Paddy Burke (Fine Gael)
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The House has agreed that Private Members' business will be taken between 5 p.m. and 7 p.m.

Mary Henry (Independent)
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Unfortunately, an amended Order of Business does not suit my seconder for the next motion.

Martin Mansergh (Fianna Fail)
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If we continue the Committee Stage for another 15 minutes, we can take Private Members' business until 7.15 p.m.

Mary Henry (Independent)
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I do not wish to accept such an amendment.

Paddy Burke (Fine Gael)
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I have to abide by the ruling that was made this morning.

Mary White (Fianna Fail)
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Any amendment to the Order of Business should have been suggested at 4.55 p.m.

Paddy Burke (Fine Gael)
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The Leader is not here. Senator Terry will speak when we resume the Committee Stage debate.

Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.

Progress reported; Committee to sit again.