Seanad Éireann - Volume 161 - 08 December, 1999

Irish Nationality and Citizenship Bill, 1999: Second Stage.

Question proposed: “That the Bill be now read a Second Time.”

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): It is an honour for me to bring before the Seanad this Bill dealing with the consequences for Irish citizenship of the historic changes in our Constitution agreed by the people on 22 May last year.

That day saw the people of this island, North and South, vote on and give the package of measures, known as the Good Friday Agreement, their support. The Good Friday Agreement was the culmination of an arduous process of negotiation between parties representing a complex of seemingly irreconcilable points of view and was by any standards a remarkable drawing together of those points of view. It mapped out a way forward for the various strands of tradition and political opinion on this island.

Neither Good Friday nor the May 1998 plebiscites marked the end of the process. Neither do the significant constitutional and institutional developments of the last week which saw the establishment of devolved, power-sharing Government in the North and the bringing into effect of the new Articles 2 and 3 of the Constitution in this jurisdiction. These historic dates are important milestones on a journey that is continuing for the people of this island and in particular for the communities in Northern Ireland, a journey away from the dark days of 30 years of violence and the traduction of human rights and dignity towards a situation where we can all, North and South, no matter what our political or religious persuasion, to paraphrase the new Article 3 of the Constitution, unite in harmony and friendship all the people who share the territory of this island in all the diversity of our identities and traditions.

What we must now do, and I am glad to have the opportunity to reiterate this today, is to offer the men and women of the Northern Assembly, and in particular those who have recently been given ministerial responsibilities in the Executive, our full support in whatever form we can in the task which lies ahead of them in establishing the norms of society by which all sides can live and contribute to the peace and well-being of the people of Northern Ireland. No doubt Senators will have reflected upon the fact that two former distinguished members of this House – Séamus Mallon and Bríd Rogers – are now members of the Northern Executive. I take this opportunity to wish them well in their endeavours in office.

The Irish Nationality and Citizenship Act, 1956 was drafted against the backdrop of the constitutional position obtaining up to last week. It contains a definition of “Ireland” based on the former Article 2 definition and at section 7 quotes the opening words of the former Article 3. At a minimum, the new dispensation obliges us to ensure that statute law does not perpetuate lang[979] uage or substance which the people have decided should no longer be in our Constitution. This Bill does that but it goes well beyond making mere drafting amendments. The territorial definition of Ireland is, of course, not reproduced in the new Article 2. The language used in that Article refers to the people of “the island of Ireland which includes its islands and seas”. In amending the Citizenship Acts, the Bill takes on board that language by providing, at section 2, that the expression “the island of Ireland” is to be construed as including its islands and seas and by making other changes throughout the Citizenship Acts replacing references to “Ireland” with references to the island of Ireland or to the State, as appropriate in the context of each occurrence.

The package of measures that constitute the Good Friday Agreement includes a significant east-west dimension embodied in the British-Irish Agreement. That Agreement sets out the roles of the Dublin and Westminster Governments in establishing and ensuring the durability of the framework for last week's events. Article 1 of the Agreement contains important declarations of agreed positions between the two sovereign States. Of particular relevance in the context of citizenship is paragraph (vi) of that Article, by which the two Governments recognise:

The birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

In order to ensure that our citizenship law reflects the new constitutional position and respects the right of those born in Northern Ireland to regard themselves as Irish or British or both, as they so choose, I have not confined myself to making mere drafting changes in the Citizenship Acts. Rather, I have undertaken an extensive re-examination of the law as it relates to Irish citizenship deriving from birth in the island of Ireland so as to ensure that both of those interlocking parameters will be met by our statute law. The most significant change is that Irish law will no longer make the overt declaration contained in the present section 6 of the 1956 Act that, “every person born in Ireland is an Irish citizen from birth.” Instead, the Bill starts out, as it must, from the premise that every person born in the island of Ireland, which includes its islands and seas, is entitled to be an Irish citizen. This entitlement, at the new section 6(1) of the 1956 Act – in section 3 of the Bill – is a new concept in Irish citizenship law. It reflects the entitlement and birthright, set out in the new Article 2 of the Constitution, for every person born in the island of Ireland to be “part of the Irish nation”. By taking this approach, we ensure respect for the position of those who do not wish to exercise that entitle[980] ment. At the same time, those who do wish to assert their Irish citizenship are free to do so.

The remaining subsections of the new section 6 go on to deal with the exercise of the entitlement to Irish citizenship arising out of birth on the island of Ireland. Subsections (2) and (3) are essentially evidential provisions. The effect of subsection (2)(a) is that a person born in the island of Ireland, who does an act which only an Irish citizen is entitled to do, thereby demonstrates that the entitlement to Irish citizenship is being exercised. Such an act might be, for instance, applying for an Irish passport or to have one's name entered on the register of electors as eligible to vote in presidential elections, but the fact that a person born on the island has not done any such act cannot be taken to mean that the person is not an Irish citizen or is a citizen of any other country.

Some examples may illustrate this. If I was born in Belfast I am entitled to be an Irish citizen. The new provision says so, but does not say definitively whether I am an Irish citizen or not. If I obtain a UK passport, I am still entitled to be an Irish citizen, and the provision is still silent as to whether I am an Irish citizen or not; I may or may not be, and it is my entitlement to perceive myself as British, Irish or both. I can still apply for an Irish passport; and as soon as I do, the law will recognise that I am exercising my entitlement to be an Irish citizen. Furthermore, if I am applying for an Irish passport, all I must do is produce the birth certificate which shows that I was born in the island of Ireland – in this example, in Belfast. This contrasts with the procedural requirement for those born in Northern Ireland under the present section 7(1) of the 1956 Act, a requirement which does not apply to those born in the State. That requirement is that a person born in the North, wishing to assert Irish citizenship, must either make a declaration of Irish citizenship or else show – usually by producing the birth certificates of parents and grandparents – that that person is anyway an Irish citizen. This somewhat anomalous provision – expressed to be “pending the reunification of the national territory”, in the words of the former Article 3 of the Constitution – has been regarded by those in the North who see themselves as Irish citizens as being discriminatory as against Irish citizens born in the State. Section 3 of this Bill gets rid of that procedure as well as the now outdated quotation from the old Article 3.

As I have said, the new provision is in general silent as to whether the entitlement to Irish citizenship is being exercised in the case of any particular person born in the island of Ireland. That silence could be regarded as giving rise to uncertainty as to the citizenship status of any particular person. A feature of citizenship provisions in many countries throughout the world, and one reflected in a number of international instruments on the subject of nationality and citizenship, is the importance of avoiding situations where a person might be deemed to be stateless.

[981] In order to deal with that concern and reduce the scope for potential uncertainty, subsection (3) of the new section 6 provides that any person born in the island of Ireland who is not entitled to citizenship of another country is an Irish citizen from birth. That is not to say that a person born in the island of Ireland who has an entitlement to citizenship of another country is not entitled to Irish citizenship; this subsection simply puts the matter out of the realm of uncertainty for those who have no such entitlement. As with subsection (2), this is primarily an evidential provision.

Up to now, the statutory position – by virtue of the present section 6(1) of the 1956 Act – has been that, subject to some exceptions which I will detail in a moment, any person born in the island of Ireland is an Irish citizen. The new provisions regarding citizenship by birth in the island of Ireland, at the proposed section 6 of the 1956 Act, will not operate to deprive anyone who, by operation of the 1956 Act as it stands, is already an Irish citizen. Article 2 of the Constitution declares the entitlement of everyone, without exception, born in the island of Ireland to be part of the Irish nation. It is necessary for this legislation, therefore, to ensure that the exceptions in the 1956 Act, which would be inconsistent with Article 2, are removed; and that is achieved by subsection (4) of the new section 6.

The exceptions at present relate to children born here of foreign diplomats, and to children born to non-national parents in a foreign aircraft or vessel in Irish airspace or waters. Such children are not Irish citizens under present law. Subsection (4) of the new section 6 provides a means whereby persons born in either of those circumstances can exercise their right to be Irish citizens by making a declaration to that effect, or having it made on their behalf if they are under age.

There is one circumstance where there will be certainty that a person born in the island of Ireland is not an Irish citizen and that is where the person has made a declaration of alienage under section 21 of the 1956 Act, renouncing Irish citizenship. Even then, however, there remains the constitutional entitlement and birthright to be part of the Irish nation, an entitlement which cannot be renounced. Accordingly, subsection (5) of the new section 6 provides that a person who had made a declaration of alienage can resume Irish citizenship by making a declaration to that effect. Citizenship in that case dates from the date of the declaration.

The present sections 6 and 7 of the 1956 Act deal with citizenship by birth in Ireland and by descent in an intertwined way. As a matter of drafting style, we have chosen at section 3 of the Bill to separate the two strands of citizenship so that the new section 6 deals with citizenship by birth on the island of Ireland alone, and the new section 7 is a restatement of the existing law on citizenship by descent.

One feature of interest in the new section 7 is the clarifying provision at subsection (2) which ensures that the fact that a person born in Ireland [982] may not have done an act demonstrating that the entitlement to Irish citizenship was being asserted does not of itself cut off the next generation from Irish citizenship.

It is important to emphasise that the new sections 6 and 7 of the 1956 Act at section 3 are designed to have effect as and from 2 December 1999, the historic day on which the Government marked the coming into full effect of the Good Friday Agreement by making the declaration which brought the new Articles 2 and 3 of the Constitution into effect. Section 9(3) of the Bill makes that clear. In order to underline that, and so that the text of the Bill when enacted will contain complete information for the reader in years to come, I propose to bring forward at Committee Stage an amendment which will insert the actual date in that subsection. The amendment will also comprehend section 2 of the Bill – the amendment dealing with interpretation – as being effective from that date.

The new Articles 2 and 3 dictated that there be consequential changes in the Citizenship Acts. In making the changes proposed at sections 2 and 3 of the Bill, I have taken the opportunity to undertake a root and branch examination of the question of citizenship by birth in the island of Ireland, and I am satisfied that the approach taken to that question is inclusive, pro-active and considerate of the full spectrum of views on this island regarding an individual's own identification with one State or another, or both.

I have also taken the opportunity to look at other aspects of the Irish Nationality and Citizenship Acts. As a result of that examination, I have included in the Bill other changes – some technical, some of a substantive nature – which are necessary or desirable.

In relation to the acquisition of Irish citizenship by non-nationals who marry Irish citizens, we have moved on from the 1950s when women who married Irishmen could declare – even before marriage – that they were assuming the citizenship of their husbands on marriage. The Irish Nationality and Citizenship Act, 1986, removed that sex discrimination by enabling the husbands, as well as wives, of Irish citizens – other than naturalised citizens – to make declarations of post-nuptial citizenship.

As a measure intended to reduce the scope for abuse of this process, a number of restrictions were introduced at that time which are still in place. First, a declaration cannot be made until three years has elapsed since the marriage. Second, it is necessary for the marriage to be lawful and subsisting. Finally, the parties must be living together as husband and wife, with an affidavit provided by the Irish citizen to that effect.

Sadly, evidence of abuse of this procedure continues to emerge. Senators will, no doubt, be aware of reports of some Irish citizens in London and other cities who have been persuaded to undergo marriage ceremonies for money with nationals of non-EU states. The immediate aim of such ceremonies is to secure a right of resi[983] dence in an EU state based on the EU Treaty rights of residence for non-national spouses of EU citizens. The longer-term aim is to secure that most sought after of commodities, a passport of an EU state.

Comparing the citizenship laws of other countries throughout the world, it is possible to discern a general pattern as regards the acquisition of citizenship for non-national spouses. Among our colleagues in the European Union and the rest of Europe, the situation is varied. Many European countries have a requirement of residence for a minimum period as an absolute precondition to naturalisation, whether or not the applicant for naturalisation is married to a national of the country, and also apply other conditions such as good character, intention to remain in the state and language competence, for, example Greece, Denmark, Estonia. Canada is a common law jurisdiction with a similar absolute requirement. Some countries have such absolute requirements, but with a shorter minimum residence period for spouses of nationals than for other applicants for naturalisation, for example, France, Germany, the United Kingdom. The USA is a common law jurisdiction with similar more favourable residence requirements for spouses. A small number of European states – Austria, Belgium, and Italy – permit the naturalisation of a spouse after a certain period of marriage without regard to residence in the state in question, but reduce the marriage period required if the spouse is resident in the state. Ireland is one of a small number of Council of Europe states – along with, for example, Turkey, Cyprus and Portugal – where the only consideration for naturalisation of a spouse is marriage, for a greater or lesser period.

Having given the matter considerable thought, my view, shared by the Government, is that we should move to a system which involves closer links between the spouse and the island of Ireland. Accordingly, sections 4 and 5 of the Bill repeal the provisions dealing with post-nuptial declarations of citizenship, and put in their place a special system of naturalisation for the non-national spouses of Irish citizens. This system is modelled on the normal requirements for naturalisation, which are set out in section 15 of the 1956 Act, but has special, more favourable residence conditions.

The normal naturalisation process requires residence in the State for a total of five out of the previous nine years, of which the most recent year's residence must be continuous. The applicant must also have an intention to continue to reside in the State after naturalisation. The revised system will, instead, require the shorter residence period of three out of the previous five years, again with continuous residence during the most recent year. That period of residence is not confined to the State but can be anywhere in the island of Ireland. An applicant spouse must have [984] the intention to continue to reside in the island of Ireland after naturalisation.

This revised system will be available to non-national spouses who are in a valid subsisting marriage to an Irish citizen for at least three years, where the couple are living together as husband and wife, as for the present system of post-nuptial declarations of citizenship. The usual conditions for naturalisation regarding age, good conduct and so forth will apply in these cases as they do to other applicants for naturalisation. There is discretion to waive the residence and duration of marriage conditions in special circumstances where the liberty or bodily integrity of the spouse would otherwise be at risk.

I might add that for non-national spouses who have married Irish citizens in the recent past or who do so between now and the passing of this Bill, there is a built-in three year period of grace, at section 4(2), within which post-nuptial declarations of citizenship can continue to be made.

It has been the general practice of successive Ministers for Justice, when considering the question of compliance with the residence requirement in the context of individual applications for naturalisation, to leave out of the reckoning periods of residence in the State which are undocumented and thus technically illegal or where the permission given to the applicant to remain in the State is for a temporary purpose. Exceptions to this general rule have been made in particular cases. The Citizenship Acts do not define or qualify the concept of residence in the State, and this has led to uncertainty. I am, in section 6 of the Bill, clarifying the law in this area so that applicants for naturalisation will have advance knowledge of what considerations are going to be taken into account when their naturalisation applications are being considered. Exceptions can continue to be made by the Minister through the use of the discretion given to him or her to waive the conditions for naturalisation, or any of them, already provided in section 16 of the 1956 Act, as inserted by the 1986 Act.

Section 7 makes technical changes to the provisions governing the maintenance of foreign births entry books and the foreign births register. At present, all diplomatic and consular missions are required to maintain a foreign births entry book. There is scope for error in the small consular posts which are rarely called upon to make such entries – sometimes years apart. For practical reasons, it is simpler that in such cases the entries can be made direct in the central foreign births register maintained by the Department of Foreign Affairs. The proposal is that, in the interests of efficiency, the Minister for Foreign Affairs will have the flexibility to designate which posts should maintain such books. In addition, the section provides for the making of regulations permitting the correction or deletion of erroneous entries in the foreign births entry books or in the register, with provisions for advance notice to appropriate persons of proposed changes.

[985] Various other drafting changes are being made throughout the Citizenship Acts, including the change from the term “alien” to the more modern expression “non-national”. Senators may recall that I took the same approach in the recently enacted Immigration Act, 1999.

I have endeavoured, in this contribution, to convey in a non-technical way, as far as possible, the content and effect of the main provisions of this Bill and the policy considerations that underlie them. Some of the matters are not straightforward. The explanatory memorandum accompanying the Bill contains a good deal of technical elaboration. I trust that Members, in their perusal of the Bill, will find the memorandum useful by way of further clarification of some of the issues.

This is a balanced and carefully considered legislation. It owes its genesis to the unfolding over the past 18 months or so of a series of historic events, of whose full significance posterity will be the judge. The Bill ensures that our statute law now reflects the entitlement under new Article 2 of the Constitution of all persons born in the island of Ireland to be part of the Irish nation, and it takes the opportunity in a number of other desirable and necessary respects to make changes to the law on citizenship. I commend the Bill to the House.

Mr. Connor: I would like to complain that when the Order of Business was circulated to Members on this side of the House earlier this week we were told that this Bill would not be taken until this afternoon. I had no prior knowledge that it would be taken at this early stage until the Order of Business was revealed to us by the Leader this morning. That is an unsatisfactory situation. I do not know what role, if any, the Cathaoirleach might have had in this. It is rather unfair to spokespersons to be given so little notice of something which I did not have an opportunity of studying.

An Cathaoirleach: The Chair has no role or function in this matter.

Mr. Connor: Nevertheless, I am delighted, Chairman, that you have allowed me the latitude to complain about that because it is simply not satisfactory. Not informing us about these matters falls far short of what we would call “best practice” by the Leader of the House. These matters are important because I needed to consult on this and I had allocated the earlier part of the day to do so. Unfortunately, although I am delighted that the Bill has been initiated in this House and not in the other House, the disadvantage is that one cannot have a look at what was said in the other House or use this as a source of information.

However, I welcome the Minister of State back to the House. We, of course, agree with the contents of this Bill. It is the natural follow-on from the Good Friday Agreement. I come from a political tradition which always saw that a section of [986] the people on the island of Ireland, living in the North of Ireland, would have found offence in Articles 2 and 3. We would often say that and maybe lost votes over it. I am delighted that we have progressed in our thinking and particularly delighted, as the Minister himself has said, that the setting up of the Executive in Northern Ireland took place last week. This is the most important consequence of the Good Friday Agreement. I join with him in congratulating those who hold ministerial office on that executive. I congratulate those two former Members of this House who now find themselves on the Executive in Northern Ireland, Séamus Mallon, with whom I did not serve, and Bríd Rogers, with whom I served for four and a half years in this House in the mid-1980s. We wish them very well.

My only area of complaint concerning this legislation is the opportunity lost by the Minister to deal with the very controversial issue of passports for sale. This country was shaken by scandals concerning revelations about the issuing of passports to non-nationals, for proposed or supposed investment in this country. There were no regulations, it appears, governing the issue of these passports other than the say-so of the Minister, or it would appear, the Taoiseach of the time. The issuing of these passports under these circumstances and for those purposes has been put into abeyance, as I understand it, but no more than that has been done. Surely when we were examining Irish citizenship, which concerns entitlement to an Irish passport, this was the opportunity for the Minister to deal with it. Why has this opportunity been passed over? Will the regulation or the statute that allows it to take place be left in abeyance for the time being, so that, surreptitiously maybe, it can be brought back into effect at some future date? This was the time and the opportunity to put it into statute and beyond doubt that that practice can never be repeated. We should have a statute that outlaws it in all circumstances and provides that the requirements for Irish citizenship and for the entitlement to an Irish passport are those laid down in this legislation and are no more than that.

I do not understand what the Minister means under section 6. He states he is clarifying the situation concerning non-nationals seeking naturalisation, seeking Irish nationality, who are not citizens of any member state of the European Union. The files of the Department of Justice, Equality and Law Reform contain perhaps several thousand applications from people who come from, for example, Norway, Switzerland or the Russian Federation or any country that is not a member of the European Union. Under the common citizenship rules, what applies to members of the European Union is entirely different. This is the most difficult country in the world in which to achieve naturalisation if you are not – if other [987] regulations, that is, European Union regulations—

Mr. Ryan: If one is not white.

Mr. Connor: The Senator is putting it in a way that I would more diplomatically leave out.

Mr. Ryan: If one is rich and white there will be no problem.

Mr. Connor: Certainly if one was rich – this informed the passports for sale business. Maybe the Senator is right but I have constituency experience of many people who are white, citizens of countries such as Norway and Switzerland, who have applied for Irish citizenship, who are model citizens – if I may call them that – who have work permits and have been in this country for eight, nine and ten years. They have applied and have done everything they need to become Irish citizens. This goes all the way up to the Minister. We have tried under the Freedom of Information Act to see if the Garda, for instance, have some problem with them and we found out that everything was proper. Then it went to the Minister, who refused it and we cannot find out under the Freedom of Information Act what was in the Minister's mind when he said no.

Mr. Ryan: I have an idea.

Mr. Connor: All the advice before him was that these people ought to be citizens, that they qualify in every way to be citizens, but he believes that the answer should be no. That is something we cannot find out because the Freedom of Information Act does not cover ministerial decisions or reach into the Minister's mind and its workings when these applications are before him for decision.

I wanted greater clarity on that and there was an opportunity in this Bill. Section 6 is rather abstruse and the Minister was notably reticent when he dealt with this section. He said as little as possible about it or on exactly what it meant but he elaborated on other sections of the Bill. I would like to know what the Minister means or what he has in mind. I am using this opportunity to raise that point because I would like to know, first of all, how many applications for naturalisation are with the Department of Justice, Equality and Law Reform from people living in the State for at least five years. How many of these have been granted in the past five years, for instance? How many are currently there in 1999? When does the Minister make his decisions? Let us know a little more about what the Minister needs to know or what he has in his mind. I will use “he” at all times because I am referring to the current incumbent.

These are the two problems with this legislation. We have not dealt with the passports for sale matter. The Minister stated:

[988] In order to ensure that our citizenship law reflects the new constitutional position and respects the right of those born in Northern Ireland to regard themselves as Irish or British or both, as they so choose, I have not confined myself to making mere drafting changes in the Citizenship Acts. Rather, I have undertaken an extensive re-examination of the law as it relates to Irish citizenship deriving from birth in the island of Ireland, so as to ensure that both of those interlocking parameters will be met by our statute law.

He tells us that he has undertaken this comprehensive review of Irish citizenship, what it means in the law and what is needed to surround it or protect it. Nevertheless, those two major controversies with which we have had to deal in this House, in the other House and in the media, such as the passports for sale, do not get a mention in this legislation. We understand that we cannot pre-empt the Moriarty tribunal but we understand from press reports that there are many more new revelations concerning the so-called passports for sale scandal to come out from the tribunal. They will again be quite shocking and something of another earthquake to the political system, or to a certain section of the political system.

In that light, the Minister has read these reports as well as I have. I am disappointed this issue is not dealt with in the Bill. However, I do not wish to be entirely critical of the Bill and I am pleased with the section on statelessness. It is a positive step. We have all encountered cases of people in that position.

The Minister defined clearly the situation of spouses of either sex who apply for citizenship having married an Irish national. The previous system was long and cumbersome. The issue was partially addressed in the 1986 Act and I remember speaking in that debate in this House. I am delighted that the issue has been clarified and that the time limits have been shortened.

Fine Gael welcomes the general thrust of the Bill which follows on from the Good Friday Agreement. We are delighted that after the tortuous negotiations and all that followed, the House is able to deal with this important element in fulfilment of what was agreed in Belfast on Good Friday 1998. I come from a political tradition which has long advocated the measures in this Bill and lost votes for saying so. We said that if there were to be solutions to the problems on this island we needed to recognise the fact—

Mr. Ryan: That is not the reason the Senator's party lost votes.

Mr. Connor: At certain times atmospheres were created in which we lost many votes by being well before our time on this issue. We cannot cry about that but I draw satisfaction from it at a time such as this.

[989] Mr. O'Donovan: I wish to clarify one of the points made by Senator Connor about the schedule for this week's business. I too was somewhat wrong-footed but, having checked, I discovered that an amended schedule was issued last Friday with a letter.

Mr. Connor: It was not circulated to us.

Mr. O'Donovan: The Stamp Duties Consolidation Bill was due to be taken today but it is not ready. Like Senator Connor, I anticipated an afternoon debate but I must take some of the blame.

I welcome the Bill. I wish to express my appreciation, and that of this side of the House, for the enormous amount of work done by the Minister, Deputy O'Donoghue, on the Good Friday Agreement over the past 18 months or so. He was one of the senior Ministers involved in almost all the discussions and he is due great recognition and credit. The Good Friday Agreement, culminating in the British-Irish Agreement signed last week, is arguably one of the most significant and historic events since 1922. It has created an aura and an atmosphere of peace, hope and stability on this island for which people have yearned for decades, particularly those living in the northern part of the island. The Minister said that several hurdles have been cleared but that all is not yet won. There will be further hurdles to cross but the setting up of the Northern Ireland Executive, the cross-Border bodies and so on is a wonderful step in the right direction.

For many years Fianna Fáil held strong feelings about Articles 2 and 3. These feelings were deeply entrenched since the Civil War and the adoption of Bunreacht na hÉireann in 1937. However, one must acknowledge that the people, North and South, voted overwhelmingly for change in May 1998 and the purpose of this Bill is to bring the Statute Book in line with the new Articles 2 and 3.

I thank the Minister for initiating the Bill in this House. Last week we resumed debate on the role of the Seanad during which I thanked the Minister for initiating nine Bills in this House in the past two years. This is a significant fact which is a reforming factor in the Seanad's system. There are those who have reservations about the importance and the role of the House and I welcome the decision of Ministers to initiate legislation in the Seanad as this creates respect for the House. The Minister for the Environment and Local Government, Deputy Dempsey, also initiated the lengthy Planning and Development Bill in this House which raises the profile of the Seanad and gives us a new dimension. During the debate on the role of the Seanad I said that if we are to reform the House we must have a greater say in European law and directives and we should play a greater role on issues relating to Northern Ireland, to which this Bill is related.

I wish to pay tribute to the Taoiseach, former Taoisigh and Ministers for their efforts over the [990] past three years in bringing about what seemed impossible eight or ten years ago. Sacrifices were made on all sides. Who would have believed a few years ago that we would have a Northern Ireland Executive including loyalists, Ulster Unionists, the DUP, Sinn Féin and the SDLP sitting together and sharing Government? It is a wonderful achievement.

The Bill results from the Good Friday Agreement and subsequent plebiscites involving changes to our Constitution which, by and large, has served the country well. I do not suggest that the Constitution should not be reformed and there is an ongoing debate on this issue. The Constitution belongs to the people and they voted to amend it and to take the huge step from a notional aspiration towards a united Ireland, as set out in Articles 2 and 3, to the new status whereby the people, North and South, will decide the future direction of the country by democratic vote.

Devolved Government, citizenship and North-South unity will play a significant role in a number of fields. They will create much improved North-South co-operation in tourism, one of our most important and rapidly developing industries. I spent one night in the North 20 years ago during my honeymoon. I was welcomed at the Border by soldiers and guns, there were tanks on the streets and Derry was almost blown apart. I have noticed phenomenal changes on recent visits. There is a wonderful atmosphere of reconciliation and peace. We must never underestimate the fact that the North was a war zone and that over 3,000 lost their lives. This is changing and hopefully that trend will continue.

As regards the fishing industry, we are a small island and co-operation between fishermen North and South on quotas, etc., is welcome. Prior to the Good Friday Agreement, Northern Irish fishing organisations and fishermen were willing to co-operate more with their counterparts in west Cork, Kerry and Donegal. This is important and should continue.

Yesterday, Sir Reg Empey met with the Minister for Public Enterprise, Deputy O'Rourke, in Dublin. As a result of the agreement signed last week, Irish electricity costs may be reduced. There will also be greater co-operation in the construction of gas lines and interconnectors, North and South, as well as in wind and hydro-energy. This too is welcome. Who would have thought five years ago that Sir Reg Empey would meet with our Minister for Public Enterprise to discuss such agreements? It is a significant step. All these issues are closely related to nationality and citizenship as outlined in the Bill.

It does not make sense to have two different sets of regulations controlling agricultural output North and South. There is scope for greater co-operation in agriculture, particularly under the new Executive and the cross-Border bodies. The creation of a better road structure throughout the island is important for the environment. In the past, Northern Ireland had a better road structure [991] than the South. Hopefully this will be redressed and co-operation will benefit communities on both sides of the divide.

It is also important to acknowledge the significant role played by our British counterparts in the establishment of the devolved Government, the Good Friday Agreement and negotiations. Credit should be given to the British Prime Minister, Mr. Blair, for his courageous approach to the problems in Northern Ireland and to someone who played a significant role in negotiations but who seems to have been forgotten – Dr. Mo Mowlam. Up to two months ago she played a huge part in the peace process which has now resulted in devolved Government.

For the first time in the history of the State, any person born here has a right to Irish citizenship. Section 6 of the 1956 Act was problematic because it imposed citizenship on a section of the population in Northern Ireland who were loyal to the United Kingdom, which was offensive to them. One could argue it was merely an aspiration under the former Articles 2 and 3 of our Constitution. However, the offence caused to this community was phenomenal. The agreement to change Articles 2 and 3 as part of the overall peace process was a quid pro quo. I have no difficulty with these changes. The people made their decision by plebiscite. This Bill rectifies our Statute Book to bring it into line with our constitutional changes.

My colleague, Senator Connor, referred to the famous passports for sale scheme.

Mr. Connor: Infamous.

Mr. O'Donovan: I understand the Senator's anxiety about such schemes, which have since been dealt with. However, I am not sure the debate on this Bill is the appropriate occasion to discuss such matters.

Mr. Connor: It is.

Mr. O'Donovan: I am not saying they are not important. However, this Bill emanated from the agreement signed last week and the Good Friday Agreement. Discussing the passports for sale anomaly, which is important, would cloud this welcome legislation. This is the wrong time to discuss it, although it is a matter which should be debated and clarified.

Mr. Connor: I raised it in the context of the Minister saying he had gone further into Irish citizenship legislation. He did not need to. I wanted to clarify the matter.

Mr. O'Donovan: Perhaps the Minister or the Minister of State will clarify this in his or her reply, but to raise the passport for sales episode on the discussion of a Bill which is connected—

Mr. Connor: It is embarrassing.

[992] Mr. O'Donovan: It is not, but it would detract from the importance of this legislation which is closely linked to the events of the past 18 months and the peace process. This is the wrong forum to discuss it – it would confuse the issue. Senator Connor is welcome to put down amendments to the Bill if he so wishes.

In conclusion, I welcome this Bill. It is important that it contains an acceptance of new Articles 2 and 3 which, not so long ago, would have stuck in the craw of many a so-called republican. The people voted for change and this Bill amends the Statute Book to give greater credence to their desire. The peace process has overcome many hurdles – we are over Beecher's Brook. We are going in the right direction and I wish the Executive and devolved Government success. I hope cross-Border co-operation and co-operation between Britain, Ireland and Northern Ireland continues. As we approach Christmas, I hope people reflect on these achievements and on the violence of the past three decades and more. There is light at the end of the tunnel, which was dark for many years. I wish the peace process continued success.

Mr. Quinn: I propose to share my time with Senator Norris.

An Leas-Chathaoirleach: Is that agreed? Agreed.

Mr. Quinn: Senators Connor and O'Donovan referred to this as an historic and significant Bill. May I use the word “emotional“? I say this on a personal level as my father came from County Down and my mother from County Armagh. They married in Dublin and my only sister married a Portadown man. I grew up in a household which has strong northern connections. The changes to Articles 2 and 3 are quite emotional for me and for many of my cousins in the North. However, we welcome this change because of the much broader implications. I welcome the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue's imaginative solution to the entitlement. His speech to the Dáil was as follows:

Instead, the Bill starts out, as it must, from the premise that every person born in the island of Ireland, which includes its islands and seas, is entitled to be an Irish citizen…. This is a new concept in Irish citizenship law. It reflects the entitlement and birthright, set out in new Article 2 of the Constitution, for every person born in the island of Ireland to be “part of the Irish nation”. By taking this approach, we ensure respect for the position of those who do not wish to exercise that entitlement. At the same time, those who do wish to assert their Irish citizenship are free to do so.

This is imaginative and will ensure a respect and regard for the Bill which I welcome.

[993] I have great difficulty with those who have not travelled north of the Border understanding that we are part of this northern “thing”. I recall buying a wedding present some time ago. As my colleague and I had decided to buy an Irish made present, I suggested buying linen. He said, “No, we should buy some of our own” – the implication being that the North was not part of Ireland. In my company five or six years ago we put little shamrocks in front of every Irish product. A great number of our employees and customers queried whether some of the items should be marked with shamrocks as they came from north of the Border. It never entered my mind not to regard Counties Antrim, Down and Armagh as part of Ireland. It seems to me that the further one travels from the Border, the more partitionist one becomes. I am pleased, therefore, that this solution is moving in the right direction.

I will give a couple of examples from history which my father related. One was the introduction of the Control of Manufacturers Act, 1934. My father had been living here for some years and his attention was drawn to the fact that the wording originally proposed for the Bill would mean that his friend from County Fermanagh would be excluded and not regarded as Irish. He approached Frank Aiken, the then Minister, and the wording was changed before the Bill was published. It appears that aspects sometimes slip through. This almost happened last year in relation to the George Mitchell Scholarship Bill. The Bill was initiated and passed in the Dáil and it was only when it came to this House it was discovered that it related to scholarship and money spent for study in this State. It was only when this aspect of the Bill was queried in this House that the Minister for Education and Science, Deputy Martin, decided to change the wording to cover the whole island.

Any changes in relation to citizenship are fundamental and need great scrutiny. Changes should never happen by accident and without great openness and transparency. As I listened to Senator Connor speak about passports for sale, I automatically began to sympathise with his point of view. I tabled a Private Members' motion three years ago which I believe was highly influential in ending passports for sale. However, I have some criticism of the Bill. The explanatory and financial memorandum reads:

The Irish Nationality and Citizenship Bill, 1999, makes changes in the Irish Nationality and Citizenship Acts, 1956 to 1994, consequent on the coming into effect of the new Articles 2 and 3 of the Constitution arising out of the package of measures comprising the Good Friday Agreement.

This is exactly what should happen and I welcome it. However, paragraph 4 reads: “Along with the changes necessary as a consequence of the Con[994] stitutional changes, the Bill includes measures…”and it then lists a number measures.

Mr. Connor: That are extraneous to this Bill.

Mr. Quinn: The Bill should not have done this. The Minister explained effectively the purpose of the Bill. However, it should not have been used as an opportunity to make other changes which came to our notice only in the last few days. I am aware the Bill was published last Thursday but I did not see it until yesterday. Therefore, I have not had a chance to scrutinise it or listen to the views of those likely to be affected. Any changes to citizenship are fundamental and, in essence, will be contentious. Therefore, there needs to be openness and transparency. There needs to be lobbyists and a raft of interests expressing their views. For example, in relation to marriage, we are changing from automatic right to citizenship to a naturalisation process which will have a time limit. This may be a good thing but I have not had time to listen to the views of those who may be affected. Therefore, this is the wrong context in which to introduce these measures. There should be openness and transparency in relation to this matter so that everyone can express their points of view. There is a danger that we have not heard the views of the asylum seekers, refugees and others who might have a view. There is also a danger that the Department has not earned the trust and confidence of the nation in this area. It now needs to work hard to establish credibility among those who will be most affected.

Mr. Norris: Hear, hear.

Mr. Quinn: I would prefer if these fundamental changes to our citizenship law were not slipped into a Bill which is effectively taking place as a consequence of the Good Friday Agreement and the agreement last week. I am emotional about the issue and welcome the detail of the entitlement.

I congratulate the Minister and his team on introducing this imaginative solution but I question the introduction of the other changes. I would prefer to have them introduced with much more openness so that we could have identified and queried the pitfalls. We could then say the Bill was scrutinised fully, and that we are happy with it.

Mr. Norris: I thank Senator Quinn for sharing his time and agree with the thrust of what he has said.

I welcome the Minister of State, Deputy Wallace, and her advisers to the House. I welcome the thrust of the Bill which includes many good measures. This is a positive sign which is partly consequent on the alteration to Articles 2 and 3. I have been pressing for these changes over ten years. I recall there was a strong and perhaps natural resistance at the time to this type of transformation in light of the traditions of the principal [995] Government party. However, in light of the more positive developments in Northern Ireland, the Government has now generously embraced this transformation.

The Minister was very gracious in referring to two former Members of the House, Bríd Rodgers and Séamus Mallon, who now occupy distinguished positions in the Administration in Northern Ireland. Séamus Mallon is sometimes undervalued. Although I do not always agree with his views on social matters, Mr. Mallon probably possesses the finest political intellect in Northern Ireland. I welcome the Minister's comments in this regard.

I also welcome the tidying up of the position in respect of the registration of births abroad. This has been an area of difficulty to which I referred on a number of occasions in the House.

I am pleased with the inclusion in section 8 of a subsection which uses more sensitive language than that which was used in the past. Instead of describing people as “aliens”, they are referred to as “non-nationals”. This is a move in the right direction, although I question the use of a negative definition. I have some experience in this regard, having for many years been described as a “non-Catholic”.

Mr. Ryan: Is the Senator a non-Catholic?

Mr. Norris: Yes, but the Senator is a non-Anglican which is significantly worse. My sympathy goes out to him.

Mr. Ryan: It is one of the many blessings in my life.

Mr. Norris: If the Senator counts it as such, I will not attempt to correct his ignorance which I am sure is intransigent and—

Mr. Ryan: Invincible?

Mr. Norris: Yes, the Senator's ignorance is invincible.

Mr. Ryan: That will be the phrase we use from now on.

Mr. Norris: I do not wish to become mired in discussing matters of theology but the redefinition of the term “aliens” is a good development.

I share the reservations expressed by Senator Quinn who hesitantly stated that a provision, which does not necessarily directly relate to the Bill, has been “slipped in”. I refer to the provision governing naturalisation processes and marriage. We are right to show considerable concerns about this matter. Like Senator Quinn, I lead a busy life. We recently spent an arduous week debating the hundreds of amendments tabled on Committee Stage of the Planning and Development Bill. I have only read the Bill before us in a cursory manner but I have dis[996] covered a number of matters which caused me disquiet. I refer, in particular, to sections 4 and 5.

Section 4 deals with the automatic acquisition of citizenship on marriage, a matter which is in a state of constant development. In the past, only a woman could acquire citizenship by marrying an Irish man. However, the position is being altered in order to bring about a situation of equality. In my opinion, sections 4 and 5 will significantly narrow the position. The Minister indicated that

First, a declaration cannot be made until three years has elapsed since the marriage. Second, it is necessary for the marriage to be lawful and subsisting. Finally, the parties must be living together as husband and wife, with an affidavit provided by the Irish citizen to that effect.

However, that is the current position and it already gives rise to problems.

I have dealt with a number of cases in this regard and I wonder if those charged with developing new concepts in respect of it are aware of the position in which people sometimes find themselves. For example, I dealt with a man who was married to an Irish woman for a considerable number of years and who had a number of children. The marriage got into difficulties and the man, who is highly qualified, is still in love with his wife and believes the marriage can be rescued. However, the wife does not share his view and is rather bitter about the entire situation. The man's case was investigated and the marriage, which was certainly lawful, in his view is continuing because there are children involved. However, he was informed by officials that it was not a real marriage. It is a colossal insult when someone invades relationship in that way and says “This is not a continuing relationship, it is not a real marriage.” That is something to be decided jointly by the partners and we ought be sensitive to the very human context of this situation.

I am concerned by the fact that section 5 states that notwithstanding the provisions of section 15 the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse of an Irish citizen if satisfied that the applicant is of full age, of good character, etc., and married to the person for not less than three years. Giving a Minister absolute discretion in this area is highly dangerous. That is not a development many Ministers or members of the public will welcome. It is a sweeping power that is open to arbitrary and capricious use, a fact with which I am not happy. I do not intend to cast aspersions on the current Minister but this is a dangerous power which is far too wide-ranging.

Section 6, which deals with the calculation of the period of residence, inserts section 16A into the 1956 Act. Section 16A (1)(a) is a complex paragraph which contains a constellation of negatives. I have been able to work out what the paragraph means in terms of calculating a period of [997] residence, but it takes a great deal of time to do so. The negative language used here reflects a negative attitude. The provisions in this section reflect a desire to exclude.

One cannot criticise certain aspects of the section. I suppose it is reasonable that a person applying for naturalisation will have been “required to have the permission of the Minister to remain in the State under the Aliens Act, 1935”. We cannot have people entering the country without passing the normal entry tests, lodging here and, simply because they have been on the island illegally for a number of years, automatically gaining citizenship. Nobody could support that. I have no difficulty with this provision.

However, I have considerable difficulty with two other provisions. The first of these states that citizenship will not be granted if a person was here for a period of study “whether or not such study necessitated the employment of the non-national during the whole or part of the period of study”. This is wrong. It is part of a naturally developing process that someone would enter the country to pursue a course of study, obtain employment – which would be of benefit to the State – and then seek to become a citizen. Why should a period of study not be considered part of the naturalisation process? In my opinion, nothing would be more natural. I have dealt with a number of people who came to Ireland, gained entry to a third level institution and took up a teaching post or whatever. In my view their cases are legitimate and deserving of consideration. This provision is disastrously narrow.

The section also states that any period when a person was “seeking to be recognised as a refugee” shall not be used in the calculation. Again, this is a narrow, exclusive and dangerous provision. Why should such a period not be considered? There is no legitimate reason for this, except the defensiveness of the Department of Justice, Equality and Law Reform.

Mr. Ryan: And its xenophobia.

Mr. Norris: I did not use that word because I am being polite today.

These provisions are morally wrong and inexcusable and I do not agree with them. It is regrettable that these extraneous materials were introduced to a Bill which, generally speaking, is good in its conception but which is being used as a kind of carrier missile designed to carry other more dangerous provisions. I will table amendments on Committee Stage in respect of these specific provisions and I will argue strongly against them.

I welcome the Bill in so far as it is a consequence of positive developments in Northern Ireland. However, I am suspicious of what is being done in terms of narrowing the regulations regarding spouses. In that context, I wish to raise a matter to which I neglected to refer earlier.

With regard to the granting of naturalisation to spouses, apparently other laws were reviewed. This was mentioned by the Minister and in some [998] briefing documents supplied by the Department, but it was not reviewed terribly widely in an imaginative or generous sense. It was all negative and it looks as if they were seeking to narrow the focus. There are areas where it could be broadened.

A number of European examples also indicate that partners in same sex relationships are to be considered in this area and that the naturalisation process will be available for persons in such relationships. It is important to signal that because when the laws governing the question of homosexual relationships were introduced by a Fianna Fáil woman Minister in this House, she said she would not permit discrimination against citizens on the basis of their sexual orientation alone unless very good reason were demonstrated for this to be necessary. No such reason has been demonstrated, yet here is a continuing and persistent area of discrimination which causes heartbreak to many citizens. If the intention had been generous, inclusive and, in the deepest sense, Christian, then these areas would have been looked at as well and this legislation not used exclusively to narrow the focus.

Mr. Ryan: I give an enthusiastic welcome to the parts of the Bill that relate to what it is supposed to be about. I had never much of an attachment to Articles 2 and 3 other than the fact that they existed. James Connolly's phrase, “Ireland without its people means nothing to me”, is a cliché but the trouble is that clichés tend to be said very often because they are true and this has been part of my political philosophy for many years.

I was never a great defender of Articles 2 and 3. Anybody who carefully reads them and the Supreme Court judgment in the McGimpsey case will recognise that it is difficult to see what their import in law ever was. They were the most carefully worded attempt by one of the great leaders Ireland has had, Éamon de Valera, to balance contending political pressures as he struggled to lead perhaps 30 or 40% of the people away from their attachment to political violence. He took a difficult and sometimes ambivalent and ambiguous path. His achievement was to decouple Irish republicanism of the mainstream variety from a belief in the use of force to achieve its objectives. Part of that achievement was the language used in Articles 2 and 3 and it should never be underestimated, no more so than the 1937 Constitution, as a defence of the basic rights of the citizen in the 1930s when such rights were far from fashionable all over Europe.

I accept that the majority community in Northern Ireland perceived Article 2 and 3 as offensive, whereas the minority community saw them as one of the few southern assertions of something that had made a significant difference to them. It is out of the Articles that the right of people in Northern Ireland to be citizens of this State grew. The complexities of these issues were often not appreciated by some of my former colleagues on the Independent benches who were forever grab[999] bing headlines with demands to delete them without qualification. Apart from the citizenship implications, it was a silly little one-dimensional response. I recall our former distinguished colleague, John Robb, making the point vigorously that it was silly to attempt to deal with these Articles in isolation from an entire array of problems.

I never had a problem with the Good Friday Agreement. Within two days of its publication I said in an article I wrote for the local evening newspaper in Cork that nobody could justify not supporting it. I directed my remarks in particular at Sinn Féin because of its somewhat uncertain approach at that stage. The definition of “citizenship” in the Bill is correct and is probably less threatening that the previous assertion in citizenship legislation that everybody born on the island was a citizen. There was a degree to which there was a cultural imperialism or claim that Ireland owned people just because they were born here. The Minister has acknowledged that is no longer the case.

If that were all the Bill was about, I could sit down now. However, the problem with it – and it is unfortunately always true of citizenship legislation, which emanates from the Department of Justice, Equality and Law Reform – is that it must be read extremely carefully because the Department has an unfortunate history. Its historical opposition to Jewish immigration is well documented. My experience of its vigilance in preserving the purity of the national stock was its refusal of visas to two 15 year old Asian children from Bradford who wished to travel to Dublin for three days on an educational tour. We kicked up a fuss and they received their visas. The following year, perhaps foolishly, the same college decided to repeat the exercise and send different students, who were mainly Asian given the demographic make-up of Bradford, and yet again two more 15 year old citizens of Britain were refused permission by the Department of Justice to participate in an educational tour here. I suspect the refusal of the visas was the best education they ever received about Ireland. However, this became more ridiculous because, inevitably, the Department changed its mind but the two young people's passports were lodged in the Irish Embassy in London. They ultimately travelled from Bradford and arrived in Ireland without visas and passports and special arrangements had to be made to allow them to enter the country.

I become wary when the Department and its political head begin to examine citizenship. I read carefully, therefore, the section on the rights of anybody born on the island because the Department signalled an unhappiness with the principle that children born to asylum seekers would have a right to citizenship. However, I am assured that particular pursuit has been abandoned and the Department accepts that one of the many fortunate spin-offs of the Good Friday Agreement is [1000] that there is no loophole available to it on this issue.

When it comes to the traditional right of the spouse of an Irish citizen to become a citizen subject to sensible conditions, the Department has introduced in this legislation a fundamental, profound and anti-family change. The 1986 Act, which removed the sex discrimination element of the 1956 Act, states:

A person who is an alien at the date of that person's marriage to a person who is, or who after the marriage becomes, an Irish citizen…shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging, not earlier than three years from the date of the marriage or from the date on which the person last mentioned became an Irish citizen…,whichever is the later, a declaration in the prescribed manner…..

There are a number of provisos, including that the marriage is subsisting; the couple are living together as husband and wife; and the person who lodges a declaration shall be an Irish citizen. However, section 4 deletes that provision and replaces it with the following:

Notwithstanding the provisions of section 15, the Minister may in his or her absolute discretion grant an application for a certificate of naturalisation to the non-national spouse of an Irish citizen.

The previous condition was that the person shall by right become an Irish citizen but this absolute right has been removed and an absolute discretion has been substituted. What is the reason for absolute discretion? I have a letter from the Minister in my file stating that because he has absolute discretion, he does not have to, and it has never been the practice to, give reasons for his decision. A person sought naturalisation and was refused and a Member of the Oireachtas sought clarification in which the Minister quoted that phrase from section 15 of the 1956 Act.

The Minister and the Department have taken away from the spouses of Irish citizens the right to Irish citizenship and substituted an absolute discretion which, as practised by Ministers in the Department, means they will not tell one anything. Since it is an absolute discretion, there is no room for judicial review or questions of natural justice. The Department of Justice, Equality and Law Reform is attempting to subvert the principles of natural justice in this State in the interest of eliminating its view of a conspiracy involving people trying to get into the country.

This is a profound change and there are a number of disturbing aspects to it. The first is that the profundity of the change was not even adverted to in the Minister's speech. If one reads the speech, one would think there was only a little difference, a few extra conditions, some of which one might agree with. However, it is a change from the right of a person who is married to an Irish citizen to become a citizen to the Minister [1001] saying he or she cannot do so and not even having to explain why. There is no more profound change than that. The only further stage one could bring it would be to say that the spouses of Irish citizens did not have the right to apply for naturalisation.

The spouse of an Irish citizen no longer has the right to be an Irish citizen. They only have the right to apply for naturalisation subject to a series of conditions, not all of which may necessarily apply, but we do not know what they will be because the Minister will no longer have to even explain to people why he or she is doing it. There are perhaps one million native born Irish people living abroad. If they married a non-national, up to now he or she had the right to come home with their spouse and be treated as an Irish citizen. However, because of this unpleasant insertion in what should have been a good Bill, none of those non-national spouses now have the right to become an Irish citizen. They only have the right to apply for naturalisation when they get here.

One can imagine the chaos involving our already under-trained and under-sensitive immigration officers when a white Irish man with an Irish passport arrives with his black South African wife who has a South African passport. She now has no right to apply for Irish citizenship until she gets here because that right has been removed. Such applicants must be resident in Ireland. The Bill subverts natural justice and undermines marriages. In addition, our emigrants are being insulted. If they marry somebody who is not an Irish national, there is no guarantee in Irish law that their spouses can ever become Irish citizens.

What a profound, anti-pluralist, intolerant measure to include in a Bill which is supposed to be about pluralism and tolerance. There was no need for it. It was uncalled for and, in my view, it was inserted in an attempt to sneak it through both Houses of the Oireachtas because of the Minister and the Department's obsession with conspiracies that largely do not exist to get Irish citizenship by unlawful means. There are plenty of proper, legal and constitutional ways to do this and this measure is profoundly wrong.

If the Minister exercises his absolute discretion to decide that the spouses of Irish citizens cannot be citizens for the first time in our history, we should remember that in 1956, when Ireland was intolerant and supposed to be a closed society with a hostility to foreigners, anybody regardless of their colour or creed who married an Irish citizen had an absolute right to Irish citizenship, subject to certain reasonable conditions. However, once the conditions were met, the right was absolute. The new provision involves an absolute discretion. It is a demolition of that right.

The spouse of an Irish citizen must prove that he or she is of good conduct. Irish emigrants abroad should check the criminal records of their spouses to be because if there is any bad conduct, he or she may not be allowed to become Irish citizens. They must also prove residence which is [1002] impossible for Irish emigrants because they do not live in Ireland. Perhaps the Department of Justice, Equality and Law Reform did not notice that. They must also make a declaration of fidelity to the nation or loyalty to the State. This is a wonderfully tolerant gesture on the part of spouses of Irish citizens. They did not have to do this in the narrow minded 1950s, but in the great liberal Ireland of the late 20th century the spouses of Irish citizens must swear on a Bible that they will be loyal to Ireland in order to become Irish citizens. This is a wonderful, pluralist gesture.

The marriage must be recognised under the laws of the State. The 1956 Act only states that the couple must be legally married. This is being narrowed. It does not mean that they must be legally married in the state from which they come but in a marriage which is recognised under the laws of this State. It is a catalogue of intolerance and exclusion. It is the worst type of xenophobia, fear that a couple of people might get around our law and, therefore, we must abolish the absolute right which previously existed. It is disgraceful and it is even more disgraceful that it should be slipped in.

It is also disgraceful that the explanatory memorandum, which is allegedly a dispassionate analysis of the Bill, outlines the conditions for the naturalisation of non-national spouses of Irish citizens, but it does not mention that they could meet all the conditions and still be refused citizenship. It is supposed to explain the section, but it attempts to subvert the Houses of the Oireachtas by not telling people what is really at the basis of the section, which is to remove a right and transfer it into a discretionary power on the part of a Minister whose tradition is to explain nothing about that discretion. We should not have any more nonsense from the Minister. As long as he introduces such measures, he is creating the climate in which racism will flourish in Ireland because he is building up yet more barriers of fear about foreigners. It is a disgrace to do it in a Bill which should be about tolerance.

Section 6 is also profoundly offensive because it has nothing to do with the changes to Articles 2 and 3. It has been included because it suited the Department – slide it through and hopefully nobody will notice in the euphoria about Northern Ireland. This is cynical in the extreme. It is not signalled in the explanatory memorandum or the Minister's speech and it only becomes visible when one reads the original Act. This is not the way to do business and the Government should be ashamed of themselves.

Section 6 outlines all the things one cannot use to gain residence status. For example, as Senator Norris said, one cannot use study or the fact that one was here seeking to be recognised as a refugee. What this wonderful, generous State will do is that people, who must wait while the Department of Justice, Equality and Law Reform proceeds at its leisurely pace in evaluating their [1003] status and who are ultimately given refugee status under the convention and can work here, will be told that they cannot apply for Irish citizenship and count the two years when they were here as legitimate refugees. What extraordinary generosity.

This is happening in a country that has a labour shortage. Non-nationals come here to study. Then a multinational, or perhaps the local bakery or local restaurant, discovers they have skills which they cannot get elsewhere. They get permission to stay and settle down. They have studied here and got their qualifications which they use to get themselves a job, which no Irish person could fill because of the labour shortage, yet when they apply for citizenship the Department of Justice, Equality and Law Reform says, even though the skills acquired when studying here are those used in employment, it will not recognise the period of study here for the purposes of naturalisation.

It is the most profound form of cynicism to slip bits of things like that into a Bill which should be a cause for universal celebration. It is cynical, xenophobic and typical of the Department's determination to render itself unaccountable. Everybody knows it resisted the Freedom of Information Act and tried to keep out of it. Now it is including phrases such as “absolute discretion” which render the Minister unaccountable to anybody. This little coterie makes its own decisions about all of us and does not have to explain anything to anybody. What a dreadful thing to put into legislation that should be about openness, transparency, accountability and tolerance. It is an absolute disgrace.

Dr. Henry: I will not attempt to follow the eloquence of Senator Ryan but I have a great many concerns about parts of the Bill, particularly the section regarding citizenship by birth on this island. During the debate on asylum seekers I spoke about my grave concern and that of many other medical practitioners that pregnant women who come here as potential refugees, political asylum seekers are frequently slow to come forward for fear of being deported because of their pregnancy. They know that if a child is born here they will be entitled to stay here. Under the United Nations Convention on the Rights of the Child, the child is entitled to the company and care of its parents. A petitioner took a case to the Supreme Court at one stage which decided the child is entitled to the care and comfort of their family and of siblings. I have many concerns about section 3 which I will raise on Committee Stage.

It is acutely embarrassing for those of us who have to work in the health service with non-EU nationals, who, in some cases, are here many years maintaining the health service outside the major centres, to see how they are treated when they apply for citizenship. I often wonder if many [1004] people here know what goes on. It is shameful, having spent a number of years working with someone, to see how they are treated. I shall query these parts of the Bill on Committee Stage.

Mr. Connor: Section 6 makes it worse for them.

Dr. Henry: As Senator Ryan raised many of my concerns I will not delay the House or the Minister any further.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): I thank Senators for their perceptive and interesting comments on the Bill. I acknowledge the general acceptance by the House of the principal provisions of the Bill and note the reservations expressed in some contributions regarding certain points of detail.

Mr. Ryan: It is the profound change in the law of the land, it is not a detail. I ask the Minister not to trivialise it; it is not a detail.

Acting Chairman (Mr. Farrell): The Minister without interruption, please.

Mr. Ryan: It is a profound change, not a detail. This is play acting again.

Miss M. Wallace: The debate has ranged broadly over the general area of citizenship and touched on matters of particular relevance to the Bill. I could not hope to deal extensively here with all the points raised but I will attempt to deal with some of the more salient points in the closing contribution. No doubt, as Senator Norris said, there will be other points discussed in detail on Committee Stage. Senator Connor raised the question of the investment based citizenship scheme. That scheme was operated by successive Ministers for Justice of all political hues and was, in its time, the subject of representations in support of particular applications from Deputies, Senators and other public representatives across the spectrum of political opinion.

On 20 April 1998 the Government abolished the investment based naturalisation scheme which had commenced in 1989 and in doing so decided that the Minister for Justice, Equality and Law Reform should initiate a review of the Irish Nationality and Citizenship Act, 1956, to see how it might facilitate investment and if, in the course of the review, information emerged which would warrant additional legislative measures he would consider this. To assist him in conducting the review called for by the Government, the Minister established the review group on investment based naturalisation, comprising representatives of his own Department, which chaired the group, the Departments of Finance, Foreign Affairs, Enterprise, Trade and Employment, Enterprise Ireland, IDA Ireland and two experts from outside the public sector, Mr. Desmond Miller, a chartered accountant, and Mr. Diarmuid [1005] McGuinness, SC. The Minister expects the review group to report to him shortly and it is his intention to publish that report. Although the scheme is abolished there are some remaining cases which were in the pipeline and which are being processed to finality.

Mr. Connor: It is in abeyance, in other words.

Miss M. Wallace: I wish to refute entirely the allegations of bias made during the debate in the granting of certificates of naturalisation by the Minister. The records show that such allegations have no basis in fact. A look at the list of those persons granted certificates of naturalisation, and published regularly in Iris Oifigiúil, will show that persons of a variety of backgrounds, nationalities and races are granted Irish citizenship. Names of clearly Arab, Indian, Chinese and African origins predominate.

Mr. Ryan: This Bill will exclude them all.

Miss M. Wallace: While allegations such as those made by Senators are easily made, they are difficult to back up because the evidence points the other way. Senator Connor professed to being somewhat mystified by section 6 and other Senators are concerned. I know there was confusion this morning in terms of the time of the debate. The explanatory memorandum contains details on section 6 and the concerns expressed by Senator Connor. Obviously we can go into more detail on this section on Committee Stage.

Senator Ryan castigates the special naturalisation conditions for spouses on a number of grounds, one of which, at least, appears to be inconsistent with his admiration of the 1937 Constitution. He objected to the condition that requires a declaration of fidelity to the nation and loyalty to the State. He forgets that Article 9 of the Constitution sets out fidelity and loyalty as the duties of a citizen.

Mr. Ryan: Do not engage in play-acting.

Miss M. Wallace: Senators Quinn and Norris expressed concern that there was not enough public debate.

Mr. Ryan: The Minister is trivialising a serious issue.

Acting Chairman: The Minister without interruption, please.

Mr. Ryan: You should not trivialise Members of this House, a Leas-Chathaoirligh.

Acting Chairman: Senator Ryan, in all fairness, the Minister is entitled to her say.

Miss M. Wallace: Thank you. As for Senator Ryan's accusations of trying to slip one over in this Bill, this outburst can only reflect his lack of [1006] confidence in the methods whereby this and the other House scrutinise legislation.

Mr. Ryan: I know the Department as well as the Minister does.

Miss M. Wallace: We can discuss whether there is enough public debate about this Bill. I know Senators Quinn and Norris had some concerns about this but surely Senators have confidence that when a Bill is debated in this august House public debate will ensue as it progresses through this House and the other House. There will be ample opportunity as the Bill goes through both Houses for public debate on this issue.

I wish to refer to the positive comments by Senator Donovan and others and the congratulations offered to the many people, politicians, officials and members of the public, who worked so hard to achieve a lasting arrangement for the development of normal political dialogue and debate in a part of this island where for too long the bomb and bullet tried to rule. I join with the Minister and other Senators in reflecting on and acknowledging the fact that two former Members of this House – Séamus Mallon and Bríd Rogers – are now members of the Northern Ireland Executive. I wish them well and echo the expressions of goodwill and support for the new institutions and those of every political hue appointed to them whose job it is to make peace work.

I thank Senators for their comments. Many Senators alluded to the fact that they wished to go into detail on this Bill and they will be able to do so on Committee Stage.

Mr. Ryan: I am tempted to call a vote. That is the most appalling reply to a fundamental issue that I have ever heard from a Minister. They have deliberately decided not to deal with the issue because they are being caught.

Question put and agreed to.

Acting Chairman: When is it proposed to take Committee Stage?

Mr. T. Fitzgerald: Next Tuesday, subject to the agreement of the Whips.

Committee Stage ordered for Tuesday, 14 December 1999.

Sitting suspended at 12.52 p.m. and resumed at 2 p.m.