Dáil Éireann - Volume 647 - 19 February, 2008

Passports Bill 2007: Report Stage.

  An Ceann Comhairle: Amendment No. 1 is in the name of Deputy Ó Snodaigh and amendment No. 19 is related. Amendments Nos. 1 and 19 may be discussed together.

Amendment No. 1 not moved.

  Deputy Kathleen Lynch: I move amendment No. 2:

In page 4, line 11, after “2004” to insert the following:

“or the corresponding provision of any statute repealed by that Act”.

This is a technical amendment. If the corresponding section is not rectified, all birth certificates issued prior to the Civil Registration Act 2004 will be defective. The Minister of State at the Department of Foreign Affairs promised to revisit the issue on Report Stage. This straightforward amendment would avoid problems in the future. The Bill is quite technical, so it is best to resolve difficulties now before people making applications find they do not qualify as a result of flaws in the legislation.

  Deputy Michael P. Kitt: I have been advised by the Office of the Attorney General that amendment No. 2 is unnecessary because section 5 of the Civil Registration Act 2004 deals with the points raised. Section 5 of that Act states that in so far as any certificate issued under an enactment repealed by section 4 of the same Act could have been issued under a corresponding provision of the Act, it shall not be invalidated by the repeals effected by section 4 but shall have effect as if issued under that corresponding provision. Accordingly, it is not necessary to provide a saver in respect of certificates of birth issued under any legislation prior to the 2004 Act. I do not propose to accept the amendment.

[537] Amendment put and declared lost.

  An Ceann Comhairle: Amendments Nos. 3, 26 and 34 are related and may be taken together.

  Deputy Kathleen Lynch: I move amendment No. 3:

In page 5, line 5, after “Act” to insert the following:

”and for the purposes of sections 18(2) to (5), 20 and 26 includes a passport issued by the Minister before the commencement of sections 6 and 7 that has ceased to be valid”.

If we are not absolutely certain on legislation, problems may arise subsequently. I am sure the Minister of State has received advice. This amendment deals with the surrendering of old passports. Problems could arise in respect of lost or mislaid passports or where people are unable to produce them for other reasons. The amendment would make the wording of the section more absolute. There can be flexibility in all other things but legislation should be absolute.

  Deputy Michael P. Kitt: I am grateful to Deputies Higgins and Lynch for drawing attention on Committee Stage to the possibility of a loophole involving passports which have expired prior to the commencement of the Act. I undertook on Committee Stage to consider the matter further and to revert to the House on it. My officials have since consulted the Office of the Director for Public Prosecutions and the Office of Parliamentary Counsel on how best to close the loophole.

Government amendments to this effect are proposed in respect of sections 18, 20 and 21. These amendments are similar to the approach taken in amendment No. 3 and, if adopted, will ensure there is power to prosecute offences involving passports that expired prior to the commencement of the Act. The Office of Parliamentary Counsel has advised that it would be desirable to locate the amendments in the relevant sections later in the Bill rather than in section 2. Accordingly, I ask Deputy Lynch to withdraw her amendment and to agree to the Government amendments.

Amendment, by leave, withdrawn.

Amendments Nos. 4 to 6, inclusive, not moved.

  An Ceann Comhairle: Amendments Nos. 7 to 9, inclusive, are related and may be taken together.

  Deputy Billy Timmins: I move amendment No. 7:

In page 6, line 4, to delete “may” and substitute “shall”.

I raised this issue on Second and Committee Stages. One of the difficulties we witnessed in Chad when children were being exported or transferred to France was that nobody could identify them. I do not infer that such a situation will arise here but I cannot see why we are not issued with a passport at birth, which is the case for birth certificates.

Knowingly or otherwise, my intention was misinterpreted by some speakers on Second Stage. A week-old child can get a passport lasting three or five years. We would be able to track people and it would help to maintain the electoral register because people could automatically be included on it. Adoption of my amendment would bring great administrative benefits. Cattle and even donkeys get passports on birth, yet we will not give them to our children. I ask the [538] Minister of State to consider the issue because I have not heard any good reason for not including my amendment in the Bill.

  An Ceann Comhairle: Would we recognise Deputy Timmins from his infant passport?

  Deputy Kathleen Lynch: He has not changed one bit.

  Deputy Billy Timmins: With the stress inflicted on me by the Ceann Comhairle, I change from day to day.

  Deputy Michael P. Kitt: The Bill permits a citizen to apply for a passport under section 6(1). Similarly, section 6(3) permits the making of an application by a parent or guardian on behalf of a child. Having provided for the right to make an application, section 6(2) requires applications to be made in such form and to be accompanied by such information and documents as may be required. In other words, a citizen can choose whether to apply for a passport. If he or she chooses to do so, the application must satisfy a number of mandatory requirements.

Accepting the proposed amendments could make it mandatory for a citizen or, in the case of a child, the guardian of a citizen to apply for a passport. Citizens have the right to hold passports but are not and should not be obliged to apply for them. I do not propose to accept the amendments.

  Deputy Billy Timmins: The term “mandatory” could give rise to difficulties. However, it is mandatory for farmers to obtain passports for newly born calves so surely it should be possible to have the same apply in respect of children. I will not press the amendment but I foresee that a more enlightened Administration will bring in the measure in time.

Amendment, by leave, withdrawn.

Amendments Nos. 8 to 12, inclusive, not moved.

  Deputy Alan Shatter: I move amendment No. 13:

In page 8, line 24, to delete “may” and substitute “shall”.

I congratulate the Minister for Foreign Affairs on including this provision in the Bill. The provision is important because it recognises reality in this area, particularly for individuals who find themselves in a position of what the Bill refers to as “gender reassignment”. In circumstances where a person has changed gender from male to female or vice versa, the provision confers on the Minister discretion to issue a passport based on the new gender that individual is recognised as possessing.

This is a welcome provision and it shows the Minister for Foreign Affairs recognises that, to date, Ireland has been in breach on the European Convention on Human Rights in respect of this matter. The amendment proposes that instead of his having a discretion to recognise the position of what are known as transgendered persons, the Minister will have an obligation to do so. That is why I propose to substitute the word “shall” for that of “may”. I hope the amendment will be taken on board. In my view it is the intention of the Minister for Foreign Affairs to give to transgendered persons the recognition they are seeking.

It is hugely anomalous that we will be in a position to issue passports to people who may be described as male, while they may only be able to obtain birth certificates which describe them as female or vice versa. Mr. Justice McKechnie, in a case involving Dr. Lydia Foy, handed down a judgment some time ago which stated that, in so far as transgendered persons cannot [539] obtain new certificates of a similar nature to those allowed under the Gender Recognition Act in England, our law is in violation of the European Convention on Human Rights. The Government was invited to indicate that it would address the issue. The matter arose again in the High Court last week, some time after the delivery of the main judgment in which the formal orders were drawn up. For the first time a decision was delivered by the Irish courts — under the legislation which allows them to consider the European Convention on Human Rights — to the effect that the State is in violation of Article 8 of the European Convention on Human Rights.

I welcome the change the Minister for Foreign Affairs is making. However, my opinion is that the provision should be obligatory and not discretionary in nature. The Minister of State, Deputy Michael Kitt, has seisin of the Bill and I suggest to him that those in Cabinet with responsibility for the birth registration laws should ensure that we have compatible legislation in that area. This would allow transgendered persons to obtain new certificates detailing their gender, thereby allowing them to secure identity documents and birth certificates reflecting their new sexual identities. Under the Gender Recognition Act in Britain, this does not affect the original birth certificate or a marriage certificate. However, it allows the state, in its records, to recognise the new reality in respect of individuals living within its borders and it allows them to obtain documentation which reflects that reality.

The Passport Bill is welcome because it reflects the reality to which I refer. However, it will cast a stark light on the peculiar circumstances in which people will themselves be described on their passports as female and in the only certificates they can obtain relating to their births as male, or vice versa.

Will the Minister of State take on board the amendment? In my opinion, it is the intention of the Minister for Foreign Affairs to implement the legislation in the way I have outlined. His doing so will give solace to the small number of people in the transgender community.

Will the Minister of State ask the Minister to draw to the attention of Cabinet members that we will have a major anomaly whereby our passport legislation will recognise reality but where our birth registration laws will be blind to it? This issue was addressed by the introduction of specific legislation in the United Kingdom. In his judgment, Mr. Justice McKechnie invited the Government to bring the State into line with the European convention by introducing similar legislation. The Government has not given priority to introducing such legislation. In the context of the court decision and the Bill before us, we should bring all legislation in this country into alignment with the convention in order to reflect the factual reality of the gender of those who seek services and certification from the State which, for different reasons, they will need as they go through life.

  Deputy Michael P. Kitt: Where an applicant meets the requirements set out in the legislation in respect of identity and citizenship, the Minister will issue a passport. However, the Bill does not make issuing a passport a mandatory requirement. If the amendment were accepted, section 11 would be the only circumstance in which the Bill obliged the Minister to issue a passport. In the interest of ensuring consistency with other sections, it is preferable that the existing wording be retained. I assure the Deputy that when the requirements of section 11 are met, the Minister will issue a passport in the new name and sex of the applicant. I cannot accept the amendment.

  Deputy Alan Shatter: Will the Minister of State respond in respect of the anomaly I mentioned but to which his script may not contain reference? It is anomalous that the Department of Foreign Affairs would recognise someone as being of female gender, while the Department of Health and Children or the HSE may insist that said person is a male. That is quite an odd position for the State to occupy, particularly in light of the High Court judgment handed down [540] before Christmas. As already stated, this matter was again dealt with by the courts last week. In those proceedings, the State was represented by the Office of the Attorney General.

Will the Minister of State shed some light on what, if any, action the State intends to take in respect of this issue? Is the State going to appeal the High Court decision to the Supreme Court? I hope it will not because if it does, it is unlikely to succeed. If it did succeed, the matter would end up before the European Court of Human Rights. They would come to their own conclusion, which I believe would be in line with Mr. Justice McKechnie’s decision.

I welcome what is in the Passports Bill and accept the Minister of State’s explanation for not amending it. It is anomalous that two different Departments might regard the same individual as having a different gender. This goes back in our courts to 2002, when this litigation first came to prominence. I suggest to the Minister of State that the time has come to rectify the matter. What is being done in the Passports Bill is praiseworthy but it highlights the anomaly. It is not unreasonable that the Minister of State should respond to that, even if he does not have a departmental note on it.

  Deputy Michael P. Kitt: I can discuss the matter with other Ministers who would deal more directly with the matter. We are dealing with the administration of the passport system. With regard to the points raised by Deputy Shatter, this was a case prior to the Foy judgment, which recognised the distinction between a travel document and a birth certificate.

  Deputy Alan Shatter: It did not recognise that people would be referred to as having a different gender, depending on the document.

  Deputy Michael P. Kitt: That is the case, which the Deputy knows.

  Deputy Alan Shatter: We should tidy this up.

  Deputy Michael P. Kitt: That has been the long-standing practice of the Passport Office in connection with passport applications by persons who have undergone or are undergoing treatment or procedures to alter their sexual characteristics.

With regard to words like “may” and “shall”, section 11 would be the only circumstance in which the Bill obliges a Minister to issue a passport if we accepted the amendment.

  Deputy Alan Shatter: I accept that.

  Deputy Michael P. Kitt: The word “may” is used in every other positive way and “shall” is used with “shall not” with negative issues.

  Deputy Alan Shatter: I accept all of that. I am asking the Government to address the birth certificate issue, as it has addressed the matter with passports.

  Deputy Michael P. Kitt: I have explained the case of recognising the distinction between travel and birth cert to the Deputy. I can discuss the issue with my colleagues but I cannot give the Deputy a response today in the Dáil.

  Deputy Alan Shatter: Does the Minister of State not believe it illogical that one document issued by the Department of Foreign Affairs describes a person as female and one issued by the Department of Health and Children would describe the person as male? Is it not an anomaly we should address?

[541]   Deputy Michael P. Kitt: I am dealing with the administration of the Passport Office and we have thrashed that out on Second Stage.

  Deputy Alan Shatter: The Minister of State is representing the Government.

Amendment, by leave, withdrawn.

  An Ceann Comhairle: Amendment Nos. 14, 15, and 17 are related and will be discussed together.

  Deputy Alan Shatter: I move amendment No. 14:

In page 9, to delete line 8.

Amendments Nos. 14 and 15 relate to the circumstances under which the Minister can refuse to issue a passport. We dealt with the matter at some length on Committee Stage and I hoped the Minister would return with some amendments to the section.

There are various circumstances under which the Minister can refuse to issue a passport, with the first being blindingly obvious. If the Minister is not satisfied a person is an Irish citizen, a passport will not issue. That is obvious and there is no difficulty with it. If the Minister is not satisfied about a person’s identity, a passport will not issue either, which is common sense.

Under section 12(1)(c), a provision indicates the Minister may not issue a passport if “the person would be likely in the opinion of the Minister, after consultation, where appropriate, with the Minister for Justice, Equality and Law Reform or the Minister for Defence or both, to engage in” various types of conduct.

The first type of conduct which can result in a refusal to grant a passport is if that person “might prejudice national security or the security of another state”. If we believed somebody in Ireland to be a terrorist looking for a passport, and we had sound evidence to suggest that if that person went to another state he or she might blow him or herself up with other people, blow up other people or shoot others, it is reasonable that the State would not issue a passport.

Another provision is if we believe a person “might endanger public safety or order,” a passport will not be issued. That is reasonable in circumstances where if a passport is not issued, there is an appeals system. That was originally absent from the Bill but we have that because of matters raised on Second Stage. It is an imperfect system and I will come back to it.

I am concerned about two other provisions in section 12(1)(c). We can refuse a passport if we believe it “would be contrary to the common good”. I assume this refers to a person being given a passport. I propose we delete the words “would be contrary to the common good”. I ask the Minister of State to give examples of what is meant by that phrase. Will he provide three or four examples of the circumstances in which a passport would be witheld on the basis of a belief it would be contrary to the common good to issue one? It seems to be an extraordinarily wide phrase.

It is reminiscent of the approach taken by the old Soviet Union and still taken in China. If people go abroad and are critical of the state or government there, it would be perceived as being contrary to the common good in those countries. A variety of other countries have a similar view of the world. The Iranians are not too enthusiastic in allowing people go abroad who might be critical of Iran and Syrians do not greet that sort of conduct with great enthusiasm. In Myanmar they do not want people either at home or abroad to be critical.

There is a variety of totalitarian countries that curtail the freedoms of their citizens within their borders and the freedom of citizens to leave the state on the basis that if they leave, those people may make a statement critical of the state, contrary to the common good. I do not know [542] the function of that provision in passport legislation enacted in this republic and I would like the Minister of State to spell out the specific circumstances envisaged.

The first two provisions I referred to were the possibility that a person might prejudice national security or the security of another state or endanger public safety or order, be it in this State or another. I presume the reference to this State might pertain to people going abroad to collect armaments to bring to this State. These provisions appear to cover the broad range of eventualities about which we need express concern.

In five or ten years we may have a Government that is a bit prickly and does not like to be criticised. We could assume representatives of an NGO are going to an international conference to explain why there is so much child poverty in Ireland, or who have a view about whether we are protecting people’s civil rights in particular areas. They may want to go to an international conference relating to the education of autistic children. Deputy Hanafin may be the Minister for Justice, and as she seems incapable of taking criticism on that issue or even constructively responding to it, she may decide it would be contrary to the common good if a person spoke at the conference expressing criticism of the Government of the day.

This particular provision smacks of a danger that could control people’s democratic rights outside Ireland to engage in issues that may make the Government uncomfortable. They may not be issues posing a threat to people’s safety or national security but they may cause general discomfort.

We could presume a pop band performs songs we do not approve of. If members of the band sought passports for a tour around the United States, it may be decided that if the songs are performed there, the country may be deprived of a few extra tourists. The passports may not be issued.

  An Ceann Comhairle: Even Dustin the turkey.

  Deputy Alan Shatter: Even Dustin the turkey. He would be the exception.

  Deputy Kathleen Lynch: That concerns the Department of Agriculture, Fisheries and Food.

  Deputy Alan Shatter: If Dustin the turkey is selected to represent Ireland in the Eurovision song contest, I will be the first person proposing, not just in the interests of the common good but also of public safety, that a passport does not issue. The matter should be treated with great seriousness.

  Deputy Aengus Ó Snodaigh: He should be quarantined.

  Deputy Kathleen Lynch: I will vote for him.

  Deputy Alan Shatter: We could have an exception for Dustin the turkey. Other than that, I cannot see what function this provision has and I suggest it be deleted. There is another oddity in this Bill which I would like the Minister of State to explain. I may have some sympathy with the point but it is wrong-headed. Under section 12(1)(c)(iv) if a person is likely to endanger himself or herself or others a passport can be withheld. Subsection (ii) covers a person who might endanger others and I have no difficulty with the idea of refusing that person a passport. What does the concept of people not endangering themselves mean? Do we withhold passports from a group of climbers who want to climb Mount Everest because someone thinks that is unwise as they might endanger themselves, from someone who wants to run in the New York marathon who we believe is not fit enough to do so, from NGO organisations working in dangerous parts of the world such as Darfur or from individuals who want to engage in other [543] forms of conduct outside Ireland which we all know to be unsafe but which might be beneficial? Human beings are entitled to make choices and I am not sure what benefit there is in that provision.

The Department of Foreign Affairs may wish to stop the sort of conduct we witnessed in the past couple of weeks when an individual, for political reasons, defied the view of the Departments of Justice, Equality and Law Reform and of Foreign Affairs by, apparently illegally, entering Gaza but the Egyptians would not allow the person to return. What people do illegally, what they say, the parts of the world they seek to enter, and the people with whom they engage often gives us more insight into what they believe when they pronounce on other occasions. If someone chooses to go to Gaza, good luck to him or her. Does the Minister for Foreign Affairs intend not to issue a passport to, or remove one from, someone of that sort, bearing in mind that the same criteria apply in both cases? The person might then be permanently, indefinitely or for a specific period deprived of his or her right to travel.

These are important issues and concern not only the issuing of passports but also their removal. If I go abroad and say something that discomfits the Minister will someone in the immigration office in Dublin Airport take my passport from me? Do we want to empower a future Government to do that? Let us assume that there is a Minister for Foreign Affairs or a Minister for Justice, Equality and Law Reform who is somewhat hotheaded, does not think matters through clearly, shoots from the hip——

  An Leas-Cheann Comhairle: That has never happened in the Department of Justice, Equality and Law Reform.

  Deputy Alan Shatter: ——and is publicity-obsessed, and that someone says something abroad that he does not like. It is not so long since there was someone like that in the Department of Justice, Equality and Law Reform. People can form their own views on that point. Under this provision, that Minister would have a role in the removal of an individual’s passport. Let us assume the Minister heard at 11 p.m. that someone was flying into Dublin Airport who had said something distressing to him at 8 p.m. that evening, in another country — could he use this provision to call some forlorn immigration officer in the airport to demand that he or she remove the person’s passport? Could a Minister do this so that he might just get a headline in the newspapers the following morning because, God forbid, he might not otherwise be mentioned that day? It is not so long since there was someone in this House who fitted that category. This is a dangerous provision because it allows not only the refusal, but also the removal, of passports. Will the Minister of State spell out the circumstances in which it is envisaged these two provisions will be used? I formally propose my amendments to the Bill.

  An Leas-Cheann Comhairle: The Minister of State to reply.

  Deputy Michael P. Kitt: Does Deputy Kathleen Lynch wish to speak?

  An Leas-Cheann Comhairle: The Deputy was not indicating so to me but I appreciate the Minister of State’s help.

  Deputy Kathleen Lynch: I think the Minister of State wants a little more time.

  Deputy Michael P. Kitt: Not at all.

  Deputy Kathleen Lynch: I am joking. Would that we had Ministers who were as proactive as Deputy Shatter describes, who listened to international news and were capable of making telephone calls to officials. To find an official in Dublin Airport would be a big achievement.

[544] It is necessary to spell out the basis on which passports could be removed. I understood that we had the right to remove passports in cases of criminal proceedings such that the passport of someone released on bail had to be surrendered. Maybe the criminal justice legislation covers that. What does the Minister of State regard as grounds for removing a passport from someone who is not in that category? I do not want the Minister of State to recite a litany of criminal offences in respect of which a passport could be removed. What lists are there of potential embarrassment abroad and under what circumstances could the Minister remove a passport, apart from the criminal offences of which we are conscious?

  Deputy Michael P. Kitt: In respect of amendment No. 14, it is very unlikely that in practice the Minister would seek to invoke the power to refuse a passport on the basis of the common good. Its inclusion is intended to provide discretion in exceptional cases. It is also included in recognition of the fact that the High Court explicitly cited the common good in the judgment that first identified the unenumerated constitutional right to travel as a limitation on that right.

The power to refuse a passport on the basis of the common good is not unlimited and is subject to several restrictions. The concept is defined and clarified further by reference to the European Convention on Human Rights, ECHR, in particular Protocol 4 to that convention. The Minister is also obliged by the European Convention on Human Rights Act 2003 to perform his functions in accordance with the State’s obligations under the convention and its protocols. Among other implications this means that the restriction must in each case be proportionate and necessary in a democratic society. Furthermore, refusal to issue a passport including a refusal on the basis of the common good may be appealed to the passport appeals officer and is also subject to judicial review. There is value in retaining scope for discretion under the Bill and I am opposed to the amendment seeking its deletion.

In respect of amendment No. 15, it is important to retain scope to refuse a passport to a person likely to engage in conduct that might endanger him or herself. My Department has been involved in a few tragic consular cases involving citizens who inadvertently placed their health or lives at risk by travelling abroad. As with other grounds to refuse, this power would rarely be exercised and would have to be exercised in compliance with the Minister’s obligations under the ECHR, as well as being subject to appeal and judicial review. In such cases the Minister will normally be in receipt of information provided by family members and or medical practitioners. Furthermore, as the Bill provides, when a passport application is refused the Minister will always provide reasons in writing to an individual. In cases of this nature the practice will also be to outline the circumstances in which a passport could be granted. This might, for example, involve the applicant supplying written confirmation from a medical practitioner that he or she is fit to travel. As removing the Minister’s discretion would remove any capacity on the part of the Minister to satisfy the health and welfare of vulnerable citizens, I oppose the amendment.

In respect of amendment No. 17 tabled by Deputy Michael D. Higgins, section 18(6) provides that “an applicant for a passport shall, if ... required by the Minister, surrender a passport issued to him or her (whether or not it is valid) before another passport may be issued to him or her”. Section 6(2)(b) provides that an application shall be “accompanied by such information and documents in relation to the person as the Minister may require under section 7”. The Minister is thus entitled to require an applicant to submit a previous passport as part of an application for a new passport. Furthermore, the Minister may refuse, under section 12(2), to issue a passport if an application does not comply with section 6.

[545] Consequently, while I appreciate the constructive intentions underlying amendment No. 17, there are other provisions in the Bill that permit refusal when an applicant refuses to surrender a previous passport and I do not propose to accept the amendment.

  Deputy Alan Shatter: I am astonished by the Minister of State’s reply. The world must have changed since I departed from this House in 2002.

  An Leas-Cheann Comhairle: I remind the Deputy that he has two minutes to respond on Report Stage——

  Deputy Kathleen Lynch: The world has changed beyond all recognition.

  Deputy Alan Shatter: I am dealing with this.

  An Leas-Cheann Comhairle: —— but he will have a third opportunity. Standing Orders have not changed.

  Deputy Alan Shatter: It now appears that when the House debates Bills on Report Stage, Ministers cannot go off script to respond to questions asked of them. I asked the Minister of State a simple question, namely, whether he could provide four examples of circumstances in which in the common good it might be justified to either not grant a passport or withhold someone’s passport. He told me the Government wishes to retain the provision because it wants discretion in this regard but has not given me a single reason.

His comments on the second issue he has raised were interesting. The Minister of State wishes to be able to withhold or remove passports from people in circumstances in which, in the context of the wording, they might be endangered or might endanger themselves. Is he trying to prevent people in Ireland who may be intent on travelling to another country that permits euthanasia, such as Holland, from leaving Ireland? Is that what this is about? Alternatively, does the Minister intend to create some form of health service in Dublin Airport to carry out cardiac and thrombosis tests on all those over 65 who climb on aeroplanes? Such a health service in Dublin Airport would be better than that which obtains within the general health service.

The Minister stated that passports would be refused or withheld in circumstances indicated by someone’s health. Does this refer to mental, or to physical health? If the former, procedures exist to have people compulsorily admitted to hospital who are psychiatrically unable to take care of themselves. This is a medical, rather than a passport issue. If this pertains to physical health, does that mean that any elderly people who are looking a bit grey on the day they fly may have their passports removed from them? How will this work? This is a Parliament and Members are entitled to ask for concrete examples of the circumstances to which this might apply. Moreover, the Minister of State should clarify whether it will apply in the circumstances I have just described.

  Deputy Kathleen Lynch: Although I did not receive a response to my first contribution, I will refer briefly to Deputy Higgins’s amendment. This point is also related to Deputy Shatter’s amendment. It is unlikely that a better health service will be provided in Dublin Airport than in our hospitals, which is unfortunate. Moreover, it is unlikely that the powers in this Bill will ever be invoked because neither the wit nor the will exists, unless it was for some political purpose, to so do. I refer to the third amendment with which the Minister of State dealt and which he also is not prepared to accept. It is quite likely that a proportion of our citizens would sell their passports on the black market. However, such people can return, re-apply for and receive another passport. I do not accept that the Minister may ask for the original document [546] to be presented because I have two old passports at home. Admittedly the covers are cut in such a fashion as to ensure they cannot be used again but nevertheless, I have never been asked to produce those documents nor have I been asked to produce something that I could have sold in the past, as some people do. Irish passports are highly valuable travel documents and this amendment would put the issue beyond doubt. I do not understand the reason the Minister of State will not accept it. While I accept there are other provisions in the Bill, it is unlikely, like Deputy Shatter’s proposition, that this will ever come to pass and the legislation should put it beyond doubt.

  Deputy Michael P. Kitt: I mentioned earlier to Deputy Shatter that my Department has been involved in a small number of tragic consular cases in which citizens inadvertently placed their health or their lives at risk in travelling abroad. I refer to people in receipt of psychiatric treatment who travel overseas with the resultant discontinuation of their treatment. That constitutes an example. However, I repeat my point that there is a question——

  Deputy Alan Shatter: That is a bad example. If such people already are overseas, the Department will not withdraw their passports to prevent them from coming home.

  Deputy Michael P. Kitt: We have the passport appeals office and people can also avail of judicial review. I made this point earlier.

I take Deputy Lynch’s point that people retain a number of passports. However, in addition to my earlier remarks, I should add that section 18 provides for circumstances in which a passport must be surrendered to the Minister or to the Garda. This is backed up by offences under section 20 regarding failure to surrender a passport when so required. This should provide sufficient deterrent to a refusal to surrender a passport. This is the reason I will not accept amendment No. 17.

  Deputy Alan Shatter: I will press amendment No. 14 on the basis that the Minister of State has been incapable of giving Members a single instance to which it is applicable.

  An Leas-Cheann Comhairle: The Deputy has the right to make a further contribution if he wishes.

  Deputy Alan Shatter: I will do so briefly. While I understand the time available is open-ended, I will not do that to other Members.

This is a serious issue. It is highly disappointing that the Minister of State is unable to provide Members with a single example of what he is talking about. In the context of someone who might endanger himself or herself, he has told us that the consular service has had some involvement on occasion with Irish citizens abroad who are psychiatrically unwell. Sadly, that always will be the case. He has not suggested how that would have been detected by anyone in Dublin Airport before such people departed. He has not suggested what relevance any of that has to the issuing of passports.

Does he suggest that if the Irish consul in Cyprus were to discover that a person on holidays there was in need of mental health services, to make life easy, one simply would withdraw the person’s passport and keep him or her in Cyprus? Alternatively, is he suggesting that when such people return to Ireland, one will take their passports from them instead of getting psychiatric help for them? The Minister of State’s explanation makes absolutely no sense and he has not dealt with the issue I raised.

Some people are genuinely concerned in respect of a form of euthanasia now available in Holland of which some Irish citizens have availed. Is this an issue that could result in the [547] Minister’s intervention? Is this an issue that would result in the withdrawal of someone’s passport because it might endanger that person?

I will suggest another scenario to the Minister of State. Court cases have arisen from the so-called pro-life amendment, some of which were taken by organisations and individuals. Some have related to young teenagers who had become pregnant, were in care and in circumstances in which they were seeking a termination abroad and had a right to travel. Will this provision be invoked or will some of the aforementioned organisations and groups invoke this provision on the theory that pregnant teenagers or pregnant adult Irish women going abroad to terminate a pregnancy should be deprived of a passport because using a passport might result in them endangering themselves? Is the Minister of State opening up a hornets’ nest in a manner that is not understood in the Department of Foreign Affairs? If the Minister of State tells me the Minister, rather than third parties, will have this power, he should realise that some of the groups that have engaged in litigation will not think twice about taking proceedings against him to require him to remove someone’s passport. Is the impact of this unnecessary and careless wording understood? The legislation is opening up issues. That the Minister of State has not been able to cite a single example of the circumstances to which subsections (3) or (4) will apply indicates that the measure has not been thought through properly.

The Minister of State mentioned that the State could refuse the right to travel if it were in the common good. This judgment was first delivered many years ago by Mr. Justice Finlay when he was President of the High Court. I need to make a declaration of interest in that I was representing an unmarried mother who was seeking a passport for her child. It was decided there was a right to travel and it was the first case in which the constitutional right to travel was declared. Wisely, Mr. Justice Finlay did not declare it an absolute right but one that could be constrained in circumstances related to the common good. From my recollection of the judgment, I believe the common good he had in mind was when national security, the security of another state, public safety or the safety of the person or life of others is endangered. He used the phrase “common good” as a generic phrase to cover the circumstances the Minister of State is now spelling out. It was not used as some additional overall discretion to lob in for the hell of it. The Minister of State cannot identify one single instance to which it will apply in refusing or recalling a passport. The provision therefore has no business being in the legislation.

Question, “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

  Deputy Alan Shatter: I move amendment No. 15:

In page 9, line 9, to delete “that person or”.

Arising from the Minister of State’s unwillingness to accept this amendment, can we have his solemn promise that Dustin the turkey will not get a passport?

  Deputy Michael P. Kitt: The Ceann Comhairle’s promise.

Question, “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

  An Leas-Cheann Comhairle: Amendments Nos. 21 and 24 are related to amendment No. 16 and they may be discussed together.

  Deputy Alan Shatter: I move amendment No. 16:

[548] In page 9, between lines 27 and 28, to insert the following:

”(g) the Minister has been notified by the Courts Services that an order has been made to require the surrender of any child’s passport or to require any person to refrain from applying for a passport for any child so long as the order is in force.”.

These amendments are designed to ensure that, where the courts have made an order that requires the surrender of a child’s passport or requires any person to refrain from applying for one for any child, the Minister will comply therewith on notification. The Act does not deal with this problem adequately and it arises frequently in practice in family disputes over children when marriages and extra-marital relationships break down and when it is questioned whether one parent should take a child abroad.

Some aspects of this issue are dealt with in the legislation, but not adequately. My amendment is a constructive one to ensure that they will be dealt with properly. Amendments Nos. 16 and 21 deal with the same issue and relate to different parts of the Bill. Amendment No. 24 seeks to insert, “The Minister is notified by the Courts Services that an order has been made that a passport issued to a child should be cancelled for the purpose of securing the welfare of the child,”.

Over the years, it has been my experience that, in cases of very fraught relationships involving children who are resident with one parent and not the other, all too frequently it is necessary for the courts to make emergency orders, either to stop a parent taking a child abroad, be it permanently or on vacation, without the consent of the other parent, or to stop a parent obtaining a passport when permission has not been granted by the courts. It is very important that the legislation reflect what happens in the family law courts. These amendments are intended to facilitate that and I hope the Minister can take them on board.

  Deputy Kathleen Lynch: Deputy Higgins’ amendments, Nos. 20 and 22, deal with this issue also, probably in a more detailed way. However, I support those of Deputy Shatter. Disputes of the kind in question are rare but, when they occur, they can be quite traumatic. According to the most recent estimate I saw, unless one has approximately €10,000 to engage quickly in court proceedings to decide on an order — they are not always granted — concerning whether a child can be taken out of the country, one is better off proceeding on foot of legislation such as that proposed. The process would be much less expensive and more orderly and one would not be subject to the type of trauma usually associated with a last-minute dash to the courts. Since it is so expensive to go to court, one never sees a lone parent doing so. They simply have not the finance to afford expensive legal advice. It is better to make provision in this regard in the legislation, such that all parties could benefit therefrom.

  Deputy Michael P. Kitt: I have no difficulty with the intention behind these amendments, which are designed to ensure the welfare of children. Securing the welfare of children is central to this Bill and there are many provisions that touch on the matter. In the administration of the passport service, the Minister in the normal way is required to and will comply with orders issued by the courts directing him or her to carry out or refrain from certain actions. This means it is not necessary to make provision for amendment No. 21, which concerns court issuing directions to the Minister. Amendment No. 16, proposed by Deputy Shatter may assist in ensuring greater clarity on orders directing parents or guardians to refrain from applying for a passport for a child and I therefore propose to accept it.

On amendment No. 24, I am assured by the Office of the Chief Parliamentary Counsel that there is sufficient cover for the scenario outlined in existing sections of the Bill. Section 18(1)(a) [549] permits a cancellation where the Minister becomes aware of a fact or circumstance, whether occurring before or after the issuing of passport, that would have permitted a refusal. Section 18(1)(d) further provides explicit authority to cancel a child’s passport where it is necessary to secure the welfare of the child, following the issuing of a passport without the consent of one or more guardians in the exceptional cases set out in sections 14(5) and 14(6). Accordingly, I propose to accept amendment No. 16 and to oppose amendments Nos. 21 and 24.

6 o’clock

  Deputy Alan Shatter: I appreciate the Minister of State’s acceptance of amendment No. 16. Amendments Nos. 21 and 24 set out the position explicitly in a readily understandable manner rather than trying to apply different provisions of the Bill in the circumstances in question. The advantage of that, in the context of the types of court cases I have in mind, is that it would provide a simple and direct provision for the Courts Service and the judges hearing them to know how this matter would be dealt with and the Minister’s approach. I appreciate that the Minister would generally comply with court orders, but as we are enacting passport legislation, we need to comprehensively deal with these issues.

The other two amendments would provide greater certainty and more comprehensive cover in this area than is already provided in the Bill. I appreciate that the Minister of State accepts amendment No. 16. If he will not accept the other amendments, I ask that he give them further consideration for the purpose of the debate on the Bill in the Seanad.

  Deputy Michael P. Kitt: Arising from acceptance of amendment No. 16, I ask the Leas-Ceann Comhairle to request the Clerk to move the word “or” on page 9 from line 25 to line 27. It is a technical change.

  Deputy Alan Shatter: That is agreed.

  An Leas-Cheann Comhairle: That is noted.

Amendment agreed to.

Amendment No. 17 not moved.

  An Leas-Cheann Comhairle: Amendments Nos. 18 arises out of Committee proceedings, amendments Nos. 25, 27, 28 and 32 are related and they can be taken together by agreement.

  Deputy Aengus Ó Snodaigh: I move amendment No. 18:

In page 9, between lines 36 and 37, to insert the following:

“(4) A refusal by the Minister to issue a passport under this section may be appealed to the District Court.”.

Gabhaim leithscéal mar nach raibh mé anseo níos luaithe nuair a moladh na leasuithe.

The rationale for this provision is similar to that for the group of amendments dealt with prior to the last group of amendments. The Bill gives huge discretionary powers to the Minister and in the context of this section, it is the power to refuse to issue a passport. The Minister has the power to cancel or take back a passport under an earlier section but under this section he or she has the power to refuse to issue a passport in the first instance. The constitutionality of this provision is open to question, given that an individual is either a citizen or not a citizen of the State and a citizen should be entitled to a passport. If restrictions are to be placed on the use of the passport issued, well and good, but an individual as a citizen should be entitled to a passport.

[550] I argued this point at length on Committee Stage. What right has a Minister, on the basis of his or her opinion or that of his or her Government colleagues, to deny an Irish citizen a passport and, therefore to deny that citizen the right to leave this State? Other states can refuse to allow an Irish citizen into their jurisdictions in the same way that we can refuse to allow into this jurisdiction an individual who presents himself or herself and who is considered to pose a danger or a threat. However, in this instance, we are denying somebody the right to leave this State and confining him or her to this State. States other than member states of the European Union require a person to have a passport to travel to them and even within the European Union, a person is required to have a national ID. As citizens here do not have a national ID, a passport is the document that establishes their credentials, although a driver’s licence is accepted in some instances.

Under this section, the Minister is depriving an individual of a fundamental liberty. The Minister outlined on Committee Stage that power could be exercised in circumstances where there was a danger to public safety or the issuing of a passport would be contrary to the common good, but I have not heard of an instance that would stand up to a refusal to issue a passport being the right course of action. There are other courses of action that can be taken, other than refusing a passport in the first instance, if a person is considered a threat to the common good or to public safety.

The provisions of this Bill in assigning these powers to the Minister and to a passport appeals officer, a point to which I will return, to cancel or to refuse to issue a passport constitute a judicial function. Does this provision amount to the Minister exercising a judicial function? In the way it is worded, I believe it does. The Minister of State should re-examine this section and perhaps the Minister should be required to apply to the courts to refuse the issuing of a passport, if he or she wishes to go down that route.

The amendments I tabled are direct in stating a person refused a passport has the right to appeal that decision to the District Court. While the Minister of State might say that one can appeal any matter to the District Court or to the other courts, if he is adamant that this is the way to proceed, at least this amendment will ensure it is explicit that a person so refused a passport has the right to appeal that decision to the court.

I read into the record on Committee Stage points of law that are relevant in this regard. Mr. Justice O’Flaherty, in the Keady versus Garda Commissioner in 1992, held that in the exercise of judicial powers, an exercise is judicial in its nature if there is contest between the parties — there would be if the Minister refused to issue a passport — that can result in the infliction of a punishment or liability — supplementary criteria were stipulated in another case — and that the function is of far-reaching effect and importance. In terms of all those points the provisions in this regard are repugnant to the Article 37 of the Constitution and contrary to that judgment made in 1992. There is a contest in this instance, a liability can be imposed because the applicant is denied his or her liberty to travel outside this State and the decision has a far-reaching effect and importance. I urge the Minister of State to re-examine this section. That is the basis of amendment No. 18. Amendment No. 25 is related and it provides for the inclusion of a reference that a cancellation of a passport can be appealed to the District Court.

Amendment No. 32 is the final amendment in this grouping. In regard to the section dealing with appeals, we argued on Committee Stage as to point or purpose of a passport appeals officer structure being set up, when such an officer will have no power. It will represent merely the establishment of another quango. All a passport appeals officer will be able to do is confirm the decision of a Minister or recommend that it be set aside, but such an appeals officer will not have the power to set it aside. Therefore, such a decision will be referred back to the [551] Minister who in the first instance refused to issue the passport. That section should be removed and it should be implicit that appeals should be referred to the court, or otherwise the appeals officer should be given the power to set aside the Minister’s decision in such circumstances. That is the effect of my amendment No. 32.

These are reasonable amendments. I doubt the Minister will take them on board because Ministers tend to want to have all these powers and to face the challenge of having to defend themselves in the Supreme Court at a future day. That would be the effect of this provision. I asked on Committee Stage how many passport applications had been refused to Irish citizens. The Minister of State said it was very few as this was not a power Ministers have exercised. I do not believe it is a power they should have over Irish citizens. This whole section needs to be looked at again and the powers being bestowed on the Minister.

  Deputy Kathleen Lynch: Deputy Michael D. Higgins was very clear on this. Virtually everything can be appealed in this country and we are very lucky in that regard. If one is not granted a taxi licence or a PSV permit, one can appeal to the District Court and if needs be proceed to the Circuit Court. Whatever a citizen is denied, he or she may appeal, and that is as it should be. An appeals mechanism should ultimately be concerned with an independent person looking at the circumstances. That is what we have in the planning process, under criminal law and to a great extent under common law. However, there is no appeals mechanism for passports, the one thing that ensures Irish citizens travel freely around the world.

I agree with the Minister of State to the effect that Ministers interfere very little in the whole process. However, when they do, there should be some mechanism to which an aggrieved person may appeal, even if it is only the courts, to put his or her case. That is important, because no matter what the circumstances, mistakes can be made. We could reel off mistakes of a fairly substantial nature that have been made in this House. This is not something to be sneezed at. How might one feel if refused a passport and then told there was nowhere to go to appeal this decision? Where does one go, especially if one feels wronged and aggrieved? It must be quite devastating when that happens to someone.

The Minister of State said that very few people have ever been refused a passport. Why not put it into the legislation, then? If it is so rare, there must be very good reasons when people are refused and I am sure any independent body would uphold the Minister’s decision in such cases, so why not put it in? We have very sensible people adjudicating every day of the week on far weightier issues than this. I appeal to the Minister of State to rethink his position on this.

  Deputy Michael P. Kitt: This Bill establishes a statutory right in case of refusal or cancellation of passport for such decisions to be appealed to an independent passport appeals officer. The appeals mechanism is set out in some detail in section 19. Further supplementary and ancillary details will be set out in regulations that will be laid before the House. The independent passport appeals officer mechanism provides access to a speedy and inexpensive additional means to challenge the Minister’s decision. If unhappy with the decision of the passport appeals officer, the aggrieved person may seek further recourse through judicial review.

In answer to Deputies Lynch and Ó Snodaigh, I understand that in the past three years one person was refused a passport. As I have said, it is a small number. Amendments Nos. 18 and 25 would make sense if there were no independent appeals mechanism. However, in view of the provision of an appeal under section 19, I do not believe it is necessary to provide for a supplementary right of appeal to the District Court. As regards amendments Nos. 27 and 28, proposed by Deputy Michael D. Higgins, citizenship matters are the responsibility of the Minister for Justice, Equality and Law Reform and the Minister for Foreign Affairs does not have competence to take decisions in that area. In line with existing practice, a person whose pass[552] port is refused or cancelled on the basis of citizenship, may raise the matter with the Minister for Justice, Equality and Law Reform. The Irish nationality and citizenship Acts already establish formal procedures that allow a person claiming to be a citizen to apply to the Minister for Justice, Equality and Law Reform for a certificate of nationality.

On amendment No. 32, proposed by Deputy Aengus Ó Snodaigh, it is not necessary to provide for a further right of appeal to the District Court against the recommendation of the appeals officer. In the event that an appellant is unhappy, following consideration of the matter by the passport appeals officer, he or she can seek judicial review of the Minister’s decision. I therefore oppose the amendments.

  Deputy Aengus Ó Snodaigh: On the last point, the reason amendment No. 32 seeks that a decision of a passport appeals officer may be appealed is that this official basically has no powers. I have already said what the Bill contains. This section was not in the original draft, as far as I can recall, and the only reason it is there now is that the human rights commission said a passport could not be refused unless there was recourse to some type of appeals mechanism. The appeals mechanism was to be welcomed, bar the fact that all it can do is confirm the Minister’s decision rather than set the Minister’s decision aside. An appeals officer should be able to make decisions. However, he or she cannot make decisions or implement them. That is the reasoning behind amendment No. 32. I have already dealt with the other amendments in some detail. Looking at this whole section, it is very strange that an Irish citizen can be refused a passport. Section 6 virtually guarantees the right of an Irish citizen to a passport, yet in section 12 this right is taken away, which is procedurally rather odd in the same Bill.

  Deputy Kathleen Lynch: As regards the Minister of State’s reply, the motions I was speaking to were about citizenship and the fact that there is no clear cut appeal, in that regard. I did not quite understand what the Minister of State had to say as regards the Department of Justice, Equality and Law Reform. Is he saying an appeal could be made to that Department?

  Deputy Michael P. Kitt: If the Deputy is talking about citizenship, one would go to the Department of Justice, Equality and Law Reform.

  Deputy Alan Shatter: I suppose the issues being discussed are all inter-related in the context of revocation of passports and the decisions made. Is it the Minister of State’s view that when this legislation is enacted, there will be statutory powers to revoke passports of individuals with regard to behaviour of such individuals prior to its enactment? The exercise of issuing passports is regarded as one of the sovereign powers of a country. In this context I should like the Minister to clarify that.

I share some of the concerns expressed about circumstances where an appeals officer can make a recommendation that the Minister is not bound by, and perhaps we can come back to that a little later. There are certain individuals who might want to be considered for passport removal. For example, one or two friends of Deputy Ó Snodaigh, who became known as the “Colombia three”, went off to engage with FARC guerillas and mysteriously reappeared in this country, without ever fully having explained what they were doing there. I wonder whether they are candidates for passport revocation. Perhaps the Minister of State might clarify that.

  Deputy Michael P. Kitt: In reply to Deputy Lynch, the passport appeals office is the speedy and inexpensive means of making a challenge to the Minister’s decision. In reply to Deputy Ó Snodaigh, I will give the same answer, the appeals office is the inexpensive route to take rather than going to court. In reply to Deputy Shatter, only one person has been refused in the past [553] three years, according to statistics supplied by my officials. I do not see we would be dealing with the Colombia three either——

  Deputy Alan Shatter: It is the revocation issue. Would they have their passports revoked?

  Deputy Michael P. Kitt: We would need to study that point further. Only one person was refused in the past three years.

  An Leas-Cheann Comhairle: How stands the amendment?

  Deputy Aengus Ó Snodaigh: I will press the amendment. I agree the appeals office is an inexpensive way of proceeding. As there was only one refusal, a passport appeals officer might have absolutely nothing to do and it might not prove to be an inexpensive option. I agree people have the right to a judicial review but the idea is not to jam up the courts in the first instance. The easiest way of dealing with it is that the person selected as a passport appeals officer has the power to set aside the decision of the Minister. At least then, the passport appeals office would have some teeth and some function. The way it is set out at the moment, it is a hearing which can do nothing other than confirm the Minister’s decision. The second part is that it can refer the decision back to the Minister with a recommendation but no guarantee of outcome, especially considering it would then be up to the Minister to admit a mistake had been made. I wonder how many Ministers are willing to admit to such a mistake. I cannot see that office working.

All I have been trying to do in this amendment is ensure that rather than forcing people to opt for a judicial review, they can have a proper hearing at District Court level rather than clog up the High Court or a higher court. The issues can be teased out properly and the Minister can defend himself or herself. The reason behind the refusal to issue a passport to an Irish citizen is what is at issue so I will press the amendment.

Amendment put and declared lost.

  An Leas-Cheann Comhairle: Amendment No. 19 arises out of committee and was to be taken with Amendment No. 1 which was not moved.

  Deputy Aengus Ó Snodaigh: I move amendment No. 19:

In page 9, line 39, to delete “, including biometric data,” and substitute the following:

“, including data comprising of information relating to facial structure,”.

Molaim an leasú seo. An fáth atá leis an leasú ná go bhfuil an iomarca cumhachtaí ag an Aire sa chás seo.

I apologise for not being present earlier; it took longer than I anticipated to walk from Harcourt Road. This amendment deals with the biometric data and the powers of the Minister to change what is currently on a passport and the security and protection of that data. I dealt with this in detail on Committee Stage. I noted the insecure nature of this data and how it might be broken down.

Biometric data consists of fingerprints, retinal patterns, facial structures, iris imaging as well as voice and hand geometry, signature, ear and DNA.

This Bill empowers the Minister at any stage in the future to change the biometric data which is required for passports without recourse to this House. My amendment seeks to limit the data to that which is already contained in passports and that if the Minister wishes to add or subtract in the future, he or she must come back to the House with an amendment to the [554] Passports Act, as it would be. Given the change in data protection, the encryption that can be allowed, the security of the data retained and the international circumstances whereby most countries are using this method and refuse to admit Irish passport-holders, at that stage, the Minister should come back to the House and inform the House of his or her intention to include data such as fingerprints, retinal scan or whatever. This House could then debate whether such a change would be proportional. If somebody steals one’s biometric data, it is the same as stealing one’s identity and it is very difficult to retrieve it. I refer to the significant issues of data protection and data security.

The human rights commission raised concerns about this and referred the Minister to points it had made previously about the retention of data and the need for the Data Protection Commissioner to be informed of what data is being retained by the State. In response to the debacle in England when a significant amount of personal data was lost in transit, not once but twice, by the British equivalent of the Department of Social and Family Affairs, the Data Protection Commissioner said that public information is safe. When the Data Protection Commissioner stated that public information will be safe, he admitted a number of leaks from different Departments.

At international level there is a move towards the maximum amount of data being on passports or on national identity cards and in terms of Big Brother security, there is a logic to it; the more information gathered in, the more can patterns of human behaviour be predicted and people who are a danger to the common good can be tracked. The down side is the danger that those who are intent on putting public safety at risk, those intent on being a challenge to the common good, can access that material and subvert all the data being held by the State.

The European Commission is proposing that all children over the age of six years should be fingerprinted for EU passports and national identity cards. The only reason for not fingerprinting those younger than six years is a technical one; the fingerprints of children younger than six years seem not to be of sufficient quality for a one to one verification of identity.

We should state implicitly that we want to include fingerprints or whatever. I can give the Minister of State recent examples of those who are involved in the research of cryptography which has exposed major flaws in the retention of biometric data and how that data, despite all the guarantees, can be reconverted to allow identity theft. In Belgium a team of cryptography researchers discovered that approximately 750,000 Belgian passports issued between 2004 and 2006 were not even encrypted and that the sensitive material they contained, including people’s signatures and photographs, could be easily read using a commercial chip reader. It did not even need to run the data through the machine. It could be held a short distance away. The team then looked at passports issued after 2006 following the change Belgium introduced, which it was claimed protected the chip in the future. This is the same technology the Government and other governments are considering to retain information on a passport RFID chip. The researchers were easily able to lower the possible combinations for a serial number to 24,000 and using the lowered figure it only took them half an hour to reconvert the identity data.

On Committee Stage I gave the example of the Japanese mathematician who, at a cost of only £20, was able to take a finger, make a cast with a moulding plastic sold in hobby shops, pour some ordinary liquid gelatine, used in food preparation, into the mould and let it harden. If this is stuck over a person’s finger pad, it fools fingerprint detectors approximately 80% of the time. The joy is that once the person has fooled the machine, because the fake fingerprints are made of the same substance as fruit pastilles, they can be eaten. I gave another example of mathematicians who showed they could reconstruct a fingerprint solely from data contained in [555] systems such as that we are proposing to introduce on passports. They printed out the images they made and used them to fool the fingerprint readers thereafter.

There is a danger of identity theft and we need to consider carefully where we are going with this. If the Minister wishes to go down the fingerprint road or even consider it for the future, he should be clear that is where he is going. The Bill allows him to do it by regulation, which is not good enough. It should be limited to what we have at the moment. If at a stage in the future the Minister so wishes then he should introduce it by way of amendment.

Considerable work has been done on this matter in the EU. A working party was established which proposed the EU protection directive. They considered the matter in depth. That needs to be taken on board by the Members of the House when giving the Minister the powers in the future. As currently drafted the Minister would have discretion to extend biometric information to include fingerprints, DNA, retina scans etc. without the scrutiny of the House. We should delete the term “including biometric data” as proposed in my amendment and replace it with “including data comprising information relating to a facial structure”, which is what is there at the moment — a picture. We should limit it to that.

  Deputy Kathleen Lynch: While I had not intended speaking on this amendment, having listened to the argument proposed, it strikes me that there is probably more personal information on a credit card than on a passport. Yet while we have no difficulty with the bank knowing all our details, we have considerable difficulty with governments knowing it. I would be the first person to say that individuals have a right to their privacy. However, bearing in mind the proposed introduction by regulation of biometric details, it strikes me that this is precisely what we should seek for people with responsibility for small children. Recent events should remind us that we should have as much information as possible on small children, particularly if they are to cross borders. I am not sure how that should be done while accommodating the sensitivities of people who clearly have objections, which I do not dismiss. However, we need to think carefully about the matter and keep in mind that a passport is a travel document concerned with ensuring that a citizen travels safely and is protected. If those citizens happen to be vulnerable and there is a way to ensure their further protection, we should put that in place. I am sure there would be major objections to what I am saying. We need to be very measured and sensible about how we do this.

  Deputy Michael P. Kitt: The term “biometric data” is a generic term used to describe the measurement of distinguishing physiological traits of a living person. These data are capable of being used in automated recognition systems. The proposed amendment is too restrictive to allow even for the development of facial recognition technologies. Already technologies are being developed to permit assessment of skin texture and shading to supplement calculations. We need to provide flexibility to allow us keep up with changing technologies.

The amendment would also prevent the Minister from including a second biometric indicator in the passport, which could be required in the future to allow Irish citizens to travel abroad. There are no plans at the moment to add a second biometric indicator to the passport. The Data Commissioner was consulted during the drafting of the Bill. I am not able to accept the amendment.

  An Ceann Comhairle: Is the amendment being pressed?

  Deputy Aengus Ó Snodaigh: This is only my second time to rise——

  An Ceann Comhairle: That is fine.

[556]   Deputy Aengus Ó Snodaigh: —— but it is being pressed. I am not objecting to any of these biometric data being included in the passport. However, this House should have the debate on what biometric data should be included in the future so that we take the decision. Deputy Kathleen Lynch is correct in what she has said about children. We will hand a future Minister the power to demand that whatever biometric data he or she wishes must be included in a passport. If we are to substantially change the way passports are being regulated we might as well get it right now. The Minister of State has said there is no indication from Government that we will include citizens’ fingerprints. However, if he believes that eventuality or other biometric indicators such as skin tone is coming down the track, it should be written in clear English that this is what will be included. If there is insufficient scope in the five or six items I mentioned, including iris images, fingerprints, DNA or whatever, we can always amend it later. I am trying to limit it to what exists at the moment unless someone can outline what we need to introduce in the future and say, for example, we need to introduce fingerprint data because the rest of the European Union has done so and it would restrict our movement and that children’s safety, which is paramount, would be enhanced. It is not intended to include those under six because it does not work with their fingerprints.

If we are to take that route, where biometric data are listed in the Bill it should be clearly outlined exactly what data are involved, namely the physical characteristics concerning the facial structure. I seek to limit it to that but if the Minister so wishes there is nothing to prevent him, at this late stage or in the Seanad, from expanding beyond that to include fingerprints or whatever. At the very least, this House should be informed when that decision is taken. Under the terms of the Bill, however, the Minister can take that decision by himself or herself and we will not have any way of arguing over it in future.

  Deputy Michael P. Kitt: We are seeking flexibility to enable us to keep up with changing technology. The proposed amendments are too restrictive. If, for example, an international body such as the International Civil Aviation Organisation has a proposal to make we will be prevented from making such changes if we do not have that flexibility. That is the reason I will not accept these amendments.

  An Ceann Comhairle: Is the amendment being pressed?

  Deputy Aengus Ó Snodaigh: The amendment is being pressed but on that last point, while I will not delay——

  An Ceann Comhairle: We cannot have a further intervention, in accordance with Standing Orders.

  Deputy Aengus Ó Snodaigh: This is the third intervention and I will be brief. The point is that there is nothing to prevent a Minister from making changes, if so desired. Neither the EU nor an international aviation authority will demand a government to change its passport system overnight given the huge amount of work that would involve. It takes many years to recall and re-issue passports with all this material. There is nothing to prevent the Minister tabling a brief amendment to change the required biometric data. A simple one-line amendment would suffice and it could be rushed through if there was a worldwide emergency. It might take a week or two but it could be done.

  An Ceann Comhairle: Is the amendment being pressed?

  Deputy Aengus Ó Snodaigh: Yes.

Question, “That the words proposed to be deleted stand”, put and declared carried.

[557] Amendment declared lost.

  An Ceann Comhairle: Amendment No. 20 arises out of Committee proceedings. Amendment No. 22 is related and both may be discussed together.

  Deputy Kathleen Lynch: I move amendment No. 20:

In page 10, line 3, after “child” to insert the following:

“and, if father of the child is not a guardian but is named on the birth certificate of the child, such father,”.

Amendment No. 22 states:

In page 11, between lines 10 and 11, to insert the following:

“(10) It shall not be lawful for a parent who is a guardian of a child to remove the child from the State, or retain the child outside the State, without the consent of the other parent, in the absence of an order of a court, provided that the other parent was named on the birth certificate or was exercising any care, access or entitlement in respect of the child during the period of 12 months prior to the removal or retention.”.

My contribution on the last amendment is connected as regards the details of how we can protect vulnerable people. We will probably disagree about what is just or unjust. I could name ten things I think are unjust, while I am sure the Minister of State could name ten things that are completely opposite to what I feel.

One of the things I feel strongly about is the way fathers are treated in respect of their children. Men and women come to me every week concerning relationship breakdown. There is more relationship breakdown now than the standard marriage breakdown. Men and women may not get on as partners but that does not necessarily mean that they are bad fathers or bad mothers. Just because they are not guardians does not mean they should be deprived of their children. Most partners in a relationship would give consent if the mother or father wanted to take their children on holiday, even a prolonged holiday, or take them away for educational reasons, or if the person got a job abroad and intended to stay abroad for three or six months. That would not be a difficulty in a good, trusting relationship.

A difficulty can arise, however, when, if a person assumes a relationship is solid, he or she does not have any say in whether their children can be taken out of the country or retained outside the country. Neither amendment says that this sole right should be given to all non-guardian parents. However, if the father’s name is on the birth certificate there is a clear indication that he wants to be part of the child’s life or the children’s lives. Equally, if one partner decides that he or she wants to go abroad with the children, it is wrong that the non-guardian parent should have no rights in this respect. It should not happen. It should be with the consent of both parents. Although it is highly unusual the non-guardian parent might be the mother. It is wrong that one parent should be allowed to deprive another parent of the company of or access to their children, or an input into their upbringing. There may be very good reasons to deny that, but it is clearly a matter for the family law courts. When it comes to travel and the issuance of passports and taking children abroad it should be with the consent of both parents. If necessary, the courts may intervene and make an order to allow children to be taken abroad, even though a father does not give consent. Alternatively, the courts may prevent children from being taken abroad without the father’s consent. It is probably the most unjust aspect of our law.

[558] The Labour Party is preparing a Bill to deal with this matter but we are now dealing with the Bill before us. As someone who has spent years telling people how unjust the world is to women, in this aspect I feel the law is very unjust when it comes to dealing with fathers’ rights.

  Deputy Michael P. Kitt: Section 14(1) provides that the consent of all guardians must be sought before issuance of a passport to a child or alternatively, as provided for in section 14(3), a court order dispensing with consent must be obtained. Under the Guardianship of Infants Act 1964, married parents are joint guardians of their children. By contrast, the father of a child born outside marriage is not automatically a guardian of his child. Where a father is not a guardian of a child he may apply to the District Court to be appointed guardian, or he may become guardian by making a statutory declaration with the child’s mother agreeing to his appointment as a guardian. These options apply whether or not he is named on the child’s certificate of birth. Where a father is appointed guardian, his consent must be obtained prior to the issue of a passport in the same way as the consent of other guardians must be obtained. Section 14(2) permits the Minister to take account of the circumstances of the case in deciding whether to issue a passport to a child without the consent of a non-guardian parent. This discretion will allow the Minister to consider the views and rights of non-guardian parents in so far as they are known to him or her.

I appreciate the intention of amendment No. 20. However, changing the rights of a non-guardian parent through legislation is a family law matter. This Bill is designed to regulate the passport service and is not an appropriate vehicle to introduce changes in family law. Such matters are best handled by other Departments. Similarly, amendment No. 22, which seeks to incorporate restrictions on the removal of a child from the State, deals with issues outside the remit of the Bill. I understand the Deputy’s intention but it is not appropriate to include such a provision in legislation dealing with the administration of the passport service. I cannot accept its inclusion in the Bill.

  Deputy Kathleen Lynch: I understand fully what the Minister is saying. However, most fathers who are in stable relationships do not apply to become guardians of their children. It is the assumption of all of us when we get married or start living with someone that the relationship is for life. One does not expect one’s relationship to break down. It is only when it starts to go wrong that applications are made to the courts. We do not propose this amendment on the basis that mothers should be prevented from taking their children abroad. That is not the issue. It is a matter of ensuring there is consultation and that the input fathers have into their children’s lives continues. That is all the amendment seeks to ensure. While it is strictly a family law matter, it is not outside the scope of the Bill. It could be included.

Amendment put and declared lost.

Amendments Nos. 21 and 22 not moved.

  Deputy Kathleen Lynch: I move amendment No. 23:

In page 12, line 21, after “duties” to insert the following:

“or for related or other purposes in accordance with generally accepted international practice”.

This amendment relates to an issue that arose on Committee Stage. In his response to a parliamentary question, the Minister for Foreign Affairs confirmed that diplomatic passports are, as a matter of course, given to all previous holders of the office of Minister for Foreign [559] Affairs. However, section 16 provides that diplomatic passports are to be used, as all Members are instructed, only in the course of one’s duty, where one is travelling abroad on the instruction of the Dáil or in pursuance of committee business.

In this context, I am unclear as to the Minister’s meaning. I see a contradiction in that most previous Ministers for Foreign Affairs are no longer Oireachtas Members. Amendment No. 23 proposes the insertion of “or for related or other purposes in accordance with generally accepted international practice” after “duties”. This seems the only way to get around it. It is unacceptable that persons who are no longer elected Members have diplomatic passports while Members are told those passports cannot be used other than for official purposes. This amendment seems to be the only way to clarify the issue.

  Deputy Michael P. Kitt: Section 16 permits the Minister to issue a diplomatic passport to an officer of the Minister of diplomatic rank or, under subsection (1)(b), to a person or one of a class of persons to whom the Minister considers it appropriate to issue such a passport. This permits reasonably broad discretion to designate who should be eligible for a diplomatic passport.

Deputy Lynch’s colleague, Deputy Higgins, indicated his intention on Committee Stage to put forward an amendment in connection with the issuing of diplomatic passports to former Ministers for Foreign Affairs. Diplomatic passports can now be issued to all former Ministers. This section makes clear that such passports are intended to be used in connection with the performance of official duties abroad. This is in line with international practice and is a reasonable requirement. It is not permitted to use a diplomatic passport for travel for unofficial purposes such as personal or holiday travel. Individuals should use their personal passports for those purposes. Holders of diplomatic passports are not required to return them between trips abroad on official business. They are advised and expected to comply with the conditions under which they are issued and, in future, with the requirements of this Bill if enacted.

It is not necessary to extend the purposes for which diplomatic passports may be issued. I do not propose to accept the amendment.

  Deputy Kathleen Lynch: Is the Minister of State saying that all former Ministers now hold diplomatic passports irrespective of whether they are still Members?

  Deputy Michael P. Kitt: All former Ministers may now be issued with diplomatic passports.

  Deputy Kathleen Lynch: Is that the entire scope of this provision or is there another category of people who also hold diplomatic passports?

  Deputy Michael P. Kitt: I refer the Deputy to section 16 (1)(b) which refers to “a person, or one of a class of persons, to whom the Minister considers it appropriate to issue such a passport”. There is broad discretion to designate who should be eligible for a diplomatic passport.

  Deputy Kathleen Lynch: I did not consider the matter of Mr. Turner’s passport to be a cause for great concern. I might be one of the few of that opinion. If he was entitled to a passport, there is nothing more to it. However, this is a different issue. How many diplomatic passports were issued to people other than diplomats and Ministers? Is it a significant quantity and what category of person is involved?

  Deputy Michael P. Kitt: I am told that less than 100 have been issued.

  Deputy Kathleen Lynch: Is that less than 100 out of the categories the Minister of State mentioned?

[560]   Deputy Michael P. Kitt: Yes.

  Deputy Kathleen Lynch: Does that mean 99 were issued? I am serious; 100 is a significant number.

  Deputy Michael P. Kitt: High Court judges, for example, are included in that, so the number would be in the region of 100.

  Deputy Kathleen Lynch: Are business people included in that number?

  Deputy Michael P. Kitt: No, they are not included in the numbers for diplomatic passports.

  Deputy Kathleen Lynch: I will return to this issue at a different time by way of a parliamentary question. I remain of the view that there is an anomaly in that elected Members must abide by certain rules in regard to diplomatic passports while others who hold them are not bound by the same rules.

Amendment, by leave, withdrawn.

Debate adjourned.