Seanad Éireann - Volume 162 - 09 February, 2000

Irish Nationality and Citizenship Bill, 1999: Report and Final Stages.

An Cathaoirleach: Before we commence, let me remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Also, on Report Stage, each amendment must be seconded.

Mr. Ryan: I move amendment No. 1:

In page 4, between lines 39 and 40, to insert the following:

“(6)Every person born in the island of Ireland, regardless of citizenship, is entitled to sit in Dáil Éireann.”.

This amendment arises out of an uncertainty that arose on Committee Stage. Bunreacht na hÉireann provides that every citizen of Ireland and any other person as prescribed by law is entitled to be a Member of Dáil Éireann. It further provides that any person who is entitled to be a Member of Dáil Éireann is entitled to be a Member of Seanad Éireann.

The question I raised on Committee Stage relates in particular to two former Senators, Sam McAughtry and John Robb, who would have seen themselves as British citizens, in particular Sam McAughtry. Under the previous constitutional arrangements anybody born in this island was automatically a citizen of Ireland, whether they wished it or not. The new position is that people born in Northern Ireland are entitled to be but are not citizens of Ireland unless they ask to be or do something which makes them so.

My concern is that we should not do anything to inhibit the intermittent but regular practice of nominating to this House people who can speak with the voice of the Unionist community in Northern Ireland or with an understanding of that community. If it is the case that only a citizen of Ireland can be a Member of this House, such people would have to take out Irish citizenship, which they could legitimately refuse to do. Otherwise they would not be eligible for membership of this House. They are not automatically citizens of Ireland any more, quite correctly because it implied a kind of imperial or colonialist claim on them. We should make it clear that people such as my two former colleagues, with one of whom I shared a considerable number of years in this House, will not be precluded from membership [286] of this House because of an unforeseen consequence of the changes to the Constitution, for example, because of the absence of a declaration of citizenship or an implication that they have chosen Irish over British citizenship. We should write into this Bill a statement that every person born on the island of Ireland, regardless of citizenship, is entitled to sit in Dáil Éireann. I put it like that because anybody who is entitled to sit in Dáil Éireann is entitled to sit in Seanad Éireann.

I did not succeed in going through the Electoral Acts, so the Minister might tell me there is something in them. This is not an attempt to be awkward. I am concerned that we might have overlooked the possibility that citizens of Northern Ireland who choose to be British citizens would be excluded by these new provisions. They did not have to give up their British citizenship before because we said they were Irish citizens as well. I ask the Minister to address this issue.

Dr. Henry: I second the amendment. Senator Ryan has done us a service in pointing out an act of omission rather than commission in that we might exclude citizens of Northern Ireland who do not opt for Irish passports from being nominated or elected to Seanad Éireann or Dáil Éireann. The input of those from Northern Ireland who have served in the Seanad has been extremely useful over the past ten years and one hopes it will continue. The current difficulties in Northern Ireland show how important it is to keep open every possible line of communication with all schools of thought there. It would be a pity if this legislation diminished the input which people, particularly from the Unionist tradition, could make to the debate on the affairs of this island. I am sure the Minister does not want that to happen as a result of the introduction of this Bill.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): This amendment raises a matter briefly mentioned by Senator Ryan on Committee Stage, namely, the question in particular of the entitlement of persons from Northern Ireland who hold British passports to be members of the Seanad. He cites the example of two former respected Members of this House, John Robb and Sam McAughtry, and inquired whether by taking a seat in this House they would now in effect be exercising their entitlement, as people born on the island of Ireland, to Irish citizenship under the new section 6(2)(a) of the Act of 1956, inserted by section 3 of the Bill. The concern of Senator Ryan and Senator Henry is that because it appears from Articles 16 and 18 of the Constitution that this is an act which only an Irish citizen can do, certain people from Northern Ireland might be dissuaded from following their footsteps.

The situation did not arise heretofore for the reason that people born on the island of Ireland were effectively fixed with Irish citizenship. Section 6(1) of the 1956 Act makes this clear. It [287] states that “every person born in Ireland is an Irish citizen from birth”. Section 7(1) of the 1956 Act provides that “pending the reintegration of the national territory, subsection (1) of section 6 shall not apply to a person, not otherwise an Irish citizen [this is, in effect, someone who is not a citizen by descent] born in Northern Ireland after 6 December 1922, unless, in the prescribed manner, that person . . . declares himself to be an Irish citizen . . . . .”.

The effect of sections 6(1) and 7(1) as regards persons born in Northern Ireland is that most such people, irrespective of their desires in the matter, are Irish citizens in law. The section 7(1) declaration procedure is required only of a small number of people born there, such as children of United Kingdom nationals who were not from Northern Ireland or children of the small immigrant communities there. Others, being descended from Irish citizens and thus citizens by virtue of section 6(2), are exempt from the requirement. Oddly, the effect of section 7(1) for persons born in Northern Ireland is that if they can show that they are citizens by descent, they are thereby citizens by place of birth. The majority of the populace North and South are citizens both by descent and place of birth.

The changes brought about by new Articles 2 and 3 of the Constitution mean that the overt assertion of section 6(1) of the 1956 Act is replaced with an entitlement to Irish citizenship, and this is provided for in the new section 6(1) inserted by section 3 of the Bill. We have already discussed it in detail on Committee Stage. However, it is worth pointing out that by section 6(2)(b), the exercise of such an entitlement does not exclude one from holding British citizenship or any other citizenship at the same time. This is the concept of dual citizenship.

The crucial difference between the provisions of the 1956 Act and in the Bill is that in the Bill citizenship by birth is, as it must be, by virtue of the new Article 2 of the Constitution, an entitlement. It is not just an entitlement of a statutory nature but it is also a constitutional entitlement because it has been inserted by the people in the Constitution. This would have a higher status than a legislative entitlement. Unless a person who is a member of, to use the term in the British-Irish Agreement, “the people of Northern Ireland”, born on the island of Ireland, does an act which only an Irish citizen can do, or there is something else in this Bill, for example, citizenship derived from parents, it cannot be presumed that that person is British or Irish. They could be either or both. It is like two sides of the same coin.

The point raised by Senator Ryan is whether the taking of a seat in the House is an act contemplated by the new section 6(2)(a), that is, an act which only an Irish citizen is entitled to do. The follow on from that is whether, if this is so, it would dissuade a member of the Unionist community, which Senator Henry mentioned, from [288] taking a seat in the House. Article 18.2 of the Constitution deals with membership of this House. It states: “A person to be eligible for membership of Seanad Éireann must be eligible to become a member of Dáil Éireann.” Membership of the Dáil is covered by Article 16.1.1º of the Constitution. It reads:

Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.

Senator Ryan asked if other people are prescribed by law but there is no other category of people mentioned in the Constitution. He may be confusing that with the issue of citizens and people prescribed by law as having the right to vote, which is a different matter. It is contained in the same Article of the Constitution, so that confusion is understandable.

The requirement to hold Irish citizenship is essential under the Constitution for membership of either House of the Oireachtas. Senator Ryan's amendment is framed in a way which attempts to circumvent that constitutional requirement by stating that birth on the island of Ireland, not citizenship, constitutes an entitlement to sit in both Houses. Such an amendment would require a constitutional amendment as opposed to legislative change. That is because the Constitution specifies that to be a Member of this House or the other House one must be a citizen. We cannot change that by legislation. That is because the constitutional provisions in question, at Articles 16 and 18, are in absolute terms under the 1937 Constitution.

I hope, however, that the people of Northern Ireland who identify themselves and expect to be accepted as British only would not be dissuaded from taking a seat in this House. It has worked well in the past when the constitutional requirements for membership of the House were the same as they are now. I accept that the changed circumstances have the potential to make this an issue. This need not necessarily be the case. The assertion of an entitlement to Irish citizenship does not require a person to disavow British citizenship or any other citizenship. As Senator Ryan pointed out, membership of either House does not require a person to take an oath of allegiance to the State.

While I thank Senator Ryan for raising this issue, and note Senator Henry's interest, I ask him to withdraw the amendment on the basis that the change he seeks can only be achieved by an amendment to the Constitution and not to this Bill. I have taken advice and all the indications are that there is no scope for legislative changes.

Mr. Ryan: This is a disaster. I must have misread the Constitution because I understood that the Constitution did allow for provision by law, in addition to what is in the Constitution, but obviously that is for voting, not for membership. [289] In a genuine and well-intentioned attempt to be more tolerant and liberal in our definition of citizenship and to understand the sensitivities of the Unionist majority in Northern Ireland, we have put into the Constitution a provision which will make it significantly more difficult to encourage people from that community to accept membership of this House. Previously they did not have to be asked about citizenship – the issue could be fudged. They were not asked if they were Irish citizens because there was no question of choice. We effectively compelled them, or purported to compel them, to be Irish citizens, whatever else they wanted. We have now given them a choice, quite correctly, but the consequence of their choice is that either they cannot be nominated by a Taoiseach to this House or, if they are nominated, they must agree that by accepting that nomination they are citizens of this State.

I cannot speak for either of the two people from the Unionist tradition who have been mentioned, but Senator McAughtry, in particular, was quite adamant that he was British. He said he was British and Irish, but the passport he held was British. This is an unintended but quite serious negative consequence of something we all support.

If a constitutional amendment is needed, we ought to have one. Otherwise if we are to engage in any attempt to have some Northern representation in this House, and many have suggested that should be the case, only those from the Nationalist tradition will feel entirely comfortable. Those extreme Unionists in Northern Ireland who would be opposed to it will be able to tell their more benevolent colleagues that these people have accepted citizenship of the Republic of Ireland because they cannot be in the Irish Parliament if they have not. That is a quite significant disaster, which will not bring the edifice down around our shoulders but will exclude an initiative we had begun.

Members of this House, as I was when Senator Robb was here, and as others were when Senator McAughtry was here, will tell you that it was a unique individual voice which gave people an understanding of a community and a tradition which many of us do not understand very well. People who come from that tradition will now have to explicitly accept dual citizenship or to accept that nomination to this House implies the acceptance of dual citizenship. At the very least, that will dramatically narrow the options available to the future Taoisigh to nominate people from Northern Ireland.

There are many liberal Unionists who would probably go along with it, but this makes it difficult for them. People such as Senator Robb and Senator McAughtry who come here and talk to us are criticised for it. That will be further compounded now. The Minister accepts the situation is more difficult. Under the old regime they were citizens whether they wanted to be or not. Now they have to accept that they are citizens – it is their personal choice. The difference is that [290] before there was no choice; now it is their personal choice. In future anybody from that tradition will have to make the personal choice to accept at least dual citizenship. They may not want to and many of them would not dream of it. Everybody negotiated this together, it is nobody's fault, but it is a very serious issue which merits a constitutional amendment, at the earliest opportunity, to state that anybody born on the island of Ireland is entitled to be a Member of the Houses of the Oireachtas.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach: Amendments Nos. 2, 7 and 8 are related and may be discussed together by agreement.

Mr. Ryan: I do not agree. Amendments Nos. 2 and 7 may be related but the issue of ministerial discretion under amendment No. 8 is not related to the other two.

An Leas-Chathaoirleach: Amendments Nos. 2 and 7 may be discussed together.

Mr. Ryan: I am happy with that.

An Leas-Chathaoirleach: Amendments Nos. 2, 7 may be discussed together by agreement and amendment No. 8 may be discussed separately.

Mr. Ryan: I move amendment No. 2:

In page 5, line 34, to delete “may, in his or her absolute discretion,” and substitute “shall”.

Dr. Henry: I second the amendment.

Mr. Ryan: We are back to where we started long ago when this Bill began, on the question of the extraordinary need felt by the Minister to be able to second-guess even the admittedly more stringent conditions he has imposed. He has taken away the simple procedure of a declaration upon being married and staying married for three years, and substituted a list of other conditions, some of which are reasonable, such as of full age, marriage to a citizen, in a subsisting marriage and others. Just to be sure, having said that someone must fulfil all those conditions, he wants to retain for himself and his successors the right to say 'no' for reasons he has never given us, under circumstances he cannot explain to us. Our amendment simply states that where the Minister is satisfied that the conditions in paragraphs (a) to (i)of section 15A(1), with some amendments, are met, he shall grant them citizenship.

That is least an Irish citizen can expect when their spouse is seeking citizenship and they meet the tests set down. Once the Minister is satisfied with those, and they tighten up the legislation considerably over the previous position, then he should not seek absolute discretion to say “no”. Absolute discretion, as interpreted by Ministers [291] for Justice, means that they do no have to indicate why. They can just refuse.

He accepts that he is bound by the rules of natural justice, but the rules of natural justice as interpreted in this case do not mean he has to elaborate on his refusal. A bona fide applicant may meet all those conditions but reasons not known, or information the Minister will not share, will still be used to refuse him. That is not the hallmark of a liberal democracy and it is most assuredly not something consistent with the traditions of a State, half the citizens of which are probably living outside its jurisdiction. That is unique and perhaps one of the reasons that motivated previous Governments to make a quite liberal provision for citizenship by marriage was that so many citizens were living outside the State. Now there are additional complications which are bad enough, but may be necessary. On top of these additional complications there is absolute discretion.

The first of my amendments is to remove the phrase, “may, in his or her absolute discretion,” from line 34 and substitutes “shall” so that the section would read, “Notwithstanding the provisions of section 15 the Minister shall grant an application for a certificate of naturalisation to the non-national spouse of an Irish citizen if satisfied that the applicant—”. That is the provision we wish to make and the basis of my amendment.

Dr. Henry: When we discussed these sections on Committee Stage, I queried the number of cases arising. I was given a ball park figure of 1,000 investigations taking place at any one time. With the aid of my assistant, Eoin Feeney, a student in Trinity College, I managed to get some more information. It was more alarming than I had expected. I did not realise that so many cases involved Irish people living in England. When we are teaching citizenship courses in schools, we should explain to people that getting married is serious, that it means something, whether it takes place in a registry office or not. It is curious that people who claim to be married cannot produce any photographs of the occasion. Someone took at least a snap at most of our weddings.

Perhaps the Department of Education and Science could take some action. The Department of Foreign Affairs has been very helpful in this area but the Minister for Education and Science could insert something about marriage into the school citizenship courses. Some people are entering into this contract in a casual manner. I was disappointed to find the large number of cases involved.

Mr. O'Donoghue: I acknowledge Senator Henry's magnanimity in accepting the situation is serious where abuse of the citizenship process is concerned. The Senator has recognised, as I have, that citizenship is not a right when it is applied for by a non-national; it is a privilege which is conferred on an individual by the State and its [292] Government. As Senator Henry pointed out, there is a degree of abuse in relation to citizenship applications and that is unacceptable. Marriages of convenience are being used in this respect. Senator Henry is correct in stating that marriage is serious. In those circumstances it would do no harm to advise young people just how serious it is.

We have already had a lengthy debate on Committee Stage on the issue of ministerial discretion and, therefore, what I have to say here will be largely familiar ground. I have already emphasised that the principle of ministerial discretion is one which has long been a feature of the exercise of government and has long been recognised by the courts. I remind Senators again that the High and Supreme Courts have pronounced that matters concerning non-nationals are properly for the discretion of the Executive. The most recent judicial pronouncement to this effect was in the Laurentiu case, a landmark judgment, in 1999.

The Executive exercises the powers to deal with non-nationals through the Minister for Justice, Equality and Law Reform. It is, of course, the case that this discretion must be exercised in a fair and responsible manner consistent with the principles of natural justice; no Minister can act on a whim or unreasonably. The courts would not be slow to admonish such capricious action. The powers must be exercised within the framework of legislation which exists, in this case the Irish Nationality and Citizenship Acts. That legislation, very properly in my view, acknowledges the nature of the executive power being dealt with by providing that naturalisation decisions are in the absolute discretion of the Minister.

Senator Ryan spoke on Committee Stage of taking away a right in relation to the provision in the Bill to abolish post-nuptial declarations of citizenship. This right, as was pointed out at the time, was created by statute and its removal does not in any way breach the State's obligations under international law or its human rights commitments, nor does it breach any constitutional right or obligation. The present procedure is vulnerable to abuse, and this Bill replaces that procedure with one which is less vulnerable to abuse. The exercise of absolute discretion has always been a feature of citizenship law as it relates to naturalisation, and this Bill proposes to apply that discretion to a matter which is also a proper subject for that discretion, the new naturalisation provisions for spouses.

The granting of citizenship is a privilege and the exercise of that choice is an executive function. I see no reason why it should not be in the discretion of the Minister to grant an application for naturalisation provided that the Minister exercises that power, as he or she must do, in a way consistent with the principles of natural justice. Regarding amendment No. 7, in circumstances where the Minister is charged with the exercise of his or her discretion, he or she is not obliged to provide reasons but is, of course, required to act in a manner consistent with fair procedures [293] and natural justice. Accordingly, in the context of an application for naturalisation by a spouse of an Irish citizen, the Minister would have to give careful and detailed consideration to the application. Discretion does not allow the Minister to act on a whim.

The thrust of the case law in this area is that a requirement to give reasons would be inconsistent with the nature of the discretion. I draw the attention of Senators to the 1986 High Court case of Pok Sun Shun, in which Mr. Justice Costello had to consider the exercise of this discretion in the context of naturalisation. He concluded that the dictates of natural or constitutional justice did not in general require the Minister to give an applicant a hearing or inform him of the reasons for his decision. Mr. Justice Costello further pointed out that the Minister, having established that all the conditions set out in section 15 of the 1956 Act have been satisfied, might still refuse a certificate of naturalisation on grounds of public policy which had nothing to do with the individual application.

The views of Mr. Justice Costello were referred to with approval in the later High Court judgment of Mr. Justice Kelly in the case of Mishra in 1996, also involving a naturalisation application. In that judgment Justice Kelly went on to say the following:

. . . it must be borne in mind that the award of a certificate of naturalisation is a privilege and not a right. The fact that an applicant may comply with all of the statutory provisions set out in section 15 of the Act does not mean that it automatically follows that he is entitled to citizenship. If such were the case, there would be no discretion at all vested in the Minister. She would become a mere cipher who when satisfied that statutory requirements of section 15 were met would be obliged to grant citizenship. . .

As was said on Committee Stage, the question of conferring citizenship on a non-national is ultimately a matter for the executive arm of Government. The Legislature can quite properly set out guidelines for the exercise of executive discretion. The democratic processes involved in the choosing of the members of the Executive, and the answerability of the Government, both individually and collectively to Parliament, are sufficient to ensure that discretion will be exercised in the interest of the common good. We cannot proceed on the premise that Ministers, duly appointed by the President on the nomination of the Taoiseach, and with the prior approval of Dáil Éireann, whatever party they may represent, have to be bound hand and foot in carrying out statutory functions on the basis that otherwise they could not be trusted to carry them out properly and fairly. Senators would not support such an approach.

Mr. Ryan: Listen to the words – fair, reasonable and according to the principles of natural [294] justice. Some judgments of courts state that the Minister has the right to exercise his discretion in secret without having to give people reasons. That is what the courts stated under the law and the Constitution, but that does not mean it is right and that is the issue which the Minister has not addressed since this debate began. He has consistently run for cover on the question of naturalisation generally and refused to confront the fact that this is a particular sub-set, which is the application for naturalisation of people who are married to Irish citizens. The courts have not ruled on that particular set of circumstances because to date the Minister had no discretion.

What we are talking about here is a spouse of a citizen of Ireland, potentially the father or mother of children who are citizens of Ireland, who applies for naturalisation and to whom the State will say that even if the person's spouse is Irish, the person's children are Irish and the person meets all the conditions which are set down in a tortuous and detailed amendment to the previous legislation, the Minister may still say no and, having said so, he or she need not condescend to explain that to the person. That is a different situation because we are not talking about non-nationals in general but about the spouses of Irish citizens and potentially the mothers or fathers of Irish citizens. The Minister refuses to concede even for a second that that might be different. He quotes, correctly I am sure, previous judgments about entirely different conditions, where the people were not necessarily spouses. These people are all spouses of Irish citizens.

Under the conditions the Minister has set down, they will, if our amendments are not accepted, have had to live in the country for a continuous period of one year's residence, will have had to live in the country for two years of the previous four years and will have to show that he or she intends in good faith to continue to reside in the island. What the Minister is actually saying is that even if the person satisfies these conditions, he will still reserve to himself the right to say ‘no' and the right not to explain why he is saying ‘no'. I find that quite extraordinary.

He will make no concessions to what are Irish families and Irish children which are different from the powers he has which the courts have upheld. Significantly he quotes judgments in which he lost as if he had won in the case of one of the most recent ones. In fact, the court stated that many of the things he was doing were wrong. I must remind him that it was only the courts and not the enlightened view of his Department which got applicants for asylum out of jail while their applications were being processed. The judgments of successive Ministers for Justice in this area are at the very least questionable.

It is a matter of great regret that the control freak instinct, which seems to take over every Minister for Justice, has taken over here yet again and that absolute discretion is being retained. It is a matter of regret that even if the Minister [295] insists on the maybe/possibly but arrangement, he must be able to still say no. He will not even condescend to tell the spouse of an Irish citizen, the mother or father of Irish citizens, why precisely she or he is not allowed Irish citizenship. What a wonderful way to be.

He constantly defends himself on the grounds that he is not intolerant or illiberal but he shows instincts on something like this, where we accept there is some evidence of abuse of a right which used to exist and, because there is some evidence of an abuse of that right, he decides to abolish the right completely. It is a matter of great regret.

He asked me to suggest amendments and I have gone to the considerable difficulty of doing so. I can tell the House what will happen. His colleague, the Tánaiste, will discover in about a year that many Irish people living abroad now discover that their spouses have no certainty of Irish citizenship. They will discover yet another obstacle to persuading the large number of highly skilled Irish people working abroad to come home because they will return to the absolute discretion [296] of the Minister for Justice, Equality and Law Reform about the security and citizenship of their spouses. As I said, what we will have, yet again, is the control freak instinct of the Department of Justice, Equality and Law Reform, the belief that rights are dangerous and that only absolute discretion is safe, and the determination to explain nothing and to use the rhetoric of the liberal, of being fair, reasonable and consistent with the principles of natural justice. That same Department believed that being fair, reasonable and consistent with the principles of natural justice left the victims of Tiananmen Square locked up in Mountjoy Jail for 18 months because it believed those people had no rights. That is the mentality and the culture out of which this has come. I have endeavoured to be reasonable and to put the point to minimise the harm and reduce the uncertainty in the interests particularly of Irish emigrants and I have got precisely nothing. It is a matter of great regret but I am not surprised.

Question put: “That the words proposed to be deleted stand.”

Bohan, Eddie.

Bonner, Enda.

Cassidy, Donie.

Chambers, Frank.

Cox, Margaret.

Cregan, John

Dardis, John.

Farrell, Willie.

Finneran, Michael.

Fitzgerald, Tom.

Fitzpatrick, Dermot.

Gibbons, Jim.

Glynn, Camillus.

Keogh, Helen.

Kett, Tony.

Kiely, Daniel.

Kiely, Rory.

Lanigan, Mick.

Leonard, Ann.

Mooney, Paschal.

Moylan, Pat.

O'Donovan, Denis.

Ó Murchú, Labhrás.

Ormonde, Ann.

Quill, Máirín.

Walsh, Jim.

Níl

Burke, Paddy.

Caffrey, Ernie.

Coghlan, Paul.

Cosgrave, Liam T.

Costello, Joe.

Doyle, Joe.

Hayes, Tom.

Henry, Mary.

Jackman, Mary.

Manning, Maurice.

O'Dowd, Fergus.

O'Meara, Kathleen.

O'Toole, Joe.

Ridge, Thérèse.

Ryan, Brendan.

Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Farrell and Keogh; Níl, Senators O'Meara and Ryan.

Question declared carried.

Amendment declared lost.

Mr. Ryan: I move amendment No. 3:

In page 5, to delete line 38, and substitute the following:

“(b) is not a serious threat to either public order or the common good,”.

One accepts the validity of the Minister's case that what had been a formal declaration – which was perhaps appropriate in another and more innocent age, when the world and its wife did not see the desirability of living in Ireland and when the majority of our citizens tended to take the opposite view and leave the country, leading to extraordinary levels of emigration – needed to be tightened up. However, it would have been possible to do so in language that was, at least, reasonable.

The Bill contains a list of matters the Minister must be satisfied about before he will consider an application for citizenship on the grounds of marriage. The second condition is that the applicant should be of “good character”. One would [297] not argue with that principle in general. However, I am sorry I must keep repeating that we are not talking here about people at large but about the spouses of Irish citizens and, in many cases, the fathers and mothers of Irish citizens. We are saying the Minister must be satisfied they are of “good character”.

I have a different view. I think the Minister should be satisfied they are not of sufficiently bad character to be a threat to the wellbeing of society. The Minister or the Minister of State, Deputy Hanafin, gave the example of Arkan. The Minister is a good lawyer and is well trained. While reductio ad absurdum might be a useful argument, it is not very logical. There are about 100 other provisions of law which could deal with an individual as obnoxious as Arkan if one should come to live on our shores. The other provisions of this section would ensure he would have to be living here before he could apply for citizenship, in which case he could be arrested under about six different international conventions. Therefore, I would not worry about Arkan. However, I would worry about the spouses of Irish citizens with past convictions.

We are suggesting that, instead of this ambiguous and uncertain phrase, the test should be stronger. We suggest deleting the words “is of good character” and that, instead, the Minister should be satisfied that the applicant “is not a serious threat to either public order or the common good”. The amendment contains the word “serious”, at least.

The Minister lays great emphasis on the fact that nobody should be too worried about a Minister for Justice, Equality and Law Reform acting in an arbitrary fashion. Unfortunately, the record of his Department and of previous Ministers has been one of acting in a somewhat arbitrary fashion. As I said, it had to be reprimanded on more than one occasion by the courts for the arbitrariness of its actions in the procedures for detaining asylum seekers and for deportation. Those were just two occasions in the past number of years when the Department was found to be acting in an arbitrary fashion. The record is not great and inserting ambiguities such as “is of good character” invites that record to reassert itself. It would be better to use a form of words to deal with people who we believe should not be in this State in the first place, rather than using petty offences committed in people's youth or minor offences which are technical breaches of the criminal law to say people are not of good character.

The problem with legislation emanating from the Minister's Department is that it always contains a load of hoops for the applicant to go through but, in the end, the Minister retains his absolute discretion. We cannot at this stage get rid of that discretion, which the Minister is determined to hold on to, but we could invite him to explain why the spouses of Irish citizens would not, at least, have to be of some threat to society before they could be refused citizenship, given [298] that the Minister accepts that a spouse would have the right to reside here, almost without qualification.

Dr. Henry: I second the amendment. We do not want drug barons and notorious criminals who marry Irish citizens being able to obtain Irish citizenship if they fulfil the other requirements. However, this amendment would cover such cases and I hope the Minister will accept it.

Mr. O'Donoghue: I do not believe that the proposed substitute for the term “good character” put forward in this amendment adds anything by way of improvement to the new section. On the contrary, I am of the view that it is a considerable disimprovement. It will hinder the understandability of the provision for those seeking naturalisation, and it will leave an unexplained and unnecessary inconsistency between the conditions for naturalisation of a spouse, on the one hand, and of any other applicant for naturalisation on the other.

Good character encompasses a range of circumstances of which the issue of a serious threat to either public order or the common good is only a part. No satisfactory explanation is offered in support of the proposal that the other aspects of a person which are encompassed in the concept of “good character” should be omitted from the reckoning. Is a Minister to naturalise someone on the basis that he or she would pose only a minor threat to public order or the common good? There is the possibility that a person's presence in the State is not so serious a threat to public order or the common good as to warrant deportation – for instance, an active petty criminal who is the parent of an Irish child or has the protection of the State as a refugee – but is quite serious enough not to warrant granting that person Irish citizenship. We can or must tolerate the person's presence in the State, but that does not mean we have to honour that person with the privilege of Irish citizenship.

Is the serious threat to public order or the common good confined to Ireland? It would seem that this is necessarily so. Is it possible, for example, that a minor acolyte or fellow traveller of the notorious Arkan, to whom the Minister of State, Deputy Hanafin, referred, who had indirect involvement in his activities could argue that he or she is not a serious threat to public order or the common good here? I know Senator Ryan is not enamoured by the Arkan example but it serves to illustrate the point that we should be very careful about refining this criteria further beyond good character. The example simply serves to caution that the words in the amendment exclude cases which, by any reasonable consideration, should not be considered as meeting requirements for citizenship.

As Minister, I have to be careful about choosing examples to illustrate points I make in debate. The example of Arkan was chosen because the man is dead and I can thus speak freely about [299] him in a hypothetical way. I deliberately avoid drawing examples from those who are still alive, however internationally notorious they may be, since there exists the possibility – perhaps remote, but a possibility nonetheless – that I, or a successor in my office, may be called on to make decisions in relation to such a person in the future.

I prefer to stay with the concept of good character, which is well understood in the context in which it is used in the Bill and captures the meaning intended, rather than go for the formulation of the amendment which fails to achieve the desired effect and may have unintended ones.

I am at a loss to make out what case, or perhaps combination of cases, Senator Ryan referred to when he spoke of victims of Tiananmen Square being kept in an Irish jail for 18 months. I am aware of one case, that of a Libyan, where the courts found that the asylum procedures and the process leading to the making of a deportation order had been properly gone through and where attempts to enforce the order were proper, even though the conduct of the deportee was such that the order could not be enforced. In that case, the courts found the continued detention of the individual beyond two months could not be sustained. The extreme behaviour of the individual concerned on more than one occasion meant that no airline pilot would take him as a passenger. That case was decided in the mid-1990s and was remote in time from 1989 and the nationality of the individual from Beijing. If Senator Ryan has further information on to this matter, I would only be too delighted to hear it because I am not aware of the case.

In that context, the debate on immigration, whether dealing with this amendment or, indeed, generally, has been peppered with misrepresentations, intentional and unintentional, both inside and outside the House.

Mr. Ryan: Particularly from the Minister's side of the House.

Mr. O'Donoghue: I am not referring specifically to Senator Ryan and I wish he would not make false accusations. Like it or not, the conferring of citizenship is not a right. The conferring of citizenship on a non-national is a privilege and to suggest for a moment that any of the conditions, including this one, being inserted at this point on a non-national spouse are intended to inhibit or frustrate a genuine applicant is, to say the least, mischievous and, at worst, dishonest.

Mr. Ryan: That is not worthy of the Minister.

Mr. O'Donoghue: These conditions and the new procedures are being inserted in order to ensure that there will not be the kind of abuse in regard to applications for Irish citizenship by people who engage in marriages of convenience, which we have had to put up with in the past. It [300] is a reasonable and fair position and is meant to ensure that people cannot abuse the process of Irish citizenship and obtain Irish passports, which are a very valuable commodity, on the basis of abuse. Such a provision exists not only in this jurisdiction, but is common in democratic jurisdictions throughout the world. There is nothing illiberal, conservative or remotely unfair about it. It is about protecting our citizenship laws and ensuring they are not abused.

I have seen a tendency during the course of the debate on immigration – I am not citing Senator Ryan – for people to be demonised by those who profess to be liberals. This demonisation process is because people honestly believe there should and must be controls to prevent abuse. I do not believe it is the mark of any true liberal that demonisation would become the norm or the order of the day just because people are trying to ensure that the fair procedures and procedures of natural justice of the State are adhered to.

In respect of every condition contained in this and any other legislation in which I was involved, I can say honestly, without fear or favour, that at all times a genuine attempt was made to ensure people's human dignity was respected, that there were fair procedures and that there was natural justice. That is precisely what we are doing here. The exercise of discretion by a Minister cannot be contemplated unless there is natural justice and the procedures are fair.

I cannot put it more strongly than that but, no doubt, we will continue to listen to arguments which are spurious, facetious and even false. No doubt, there will be those on the other side of the debate who profess themselves to be liberal and who will reduce themselves to name calling again, but I always say that when one is reduced to name calling, one has lost the argument.

Mr. Ryan: Obviously we touched a few nerves. Let me repeat that when a Minister keeps to himself, even if it is constitutionally permissible, absolute discretion to say “no” without explanation, that is illiberal and is the antithesis of the way we assume we deal with people. The fact people do not have the rights of citizens does not make them subhuman. The fact our Constitution does not give the same protection, because it could not do so, to people who are not citizens of this State does not mean that those to whom our Constitution does not extend those rights are somehow unworthy of equal treatment.

What this Minister is saying, and has said for the past five minutes in his little rant which, among other things, attempted to impugn my honesty, is that because they are not Irish they do not count. Whether they are Irish or not they are entitled to be treated with dignity. When they are the spouses of Irish citizens they are part of an Irish family. The Constitution which this Minister supports, which I support and which his party's founding leader drew up, quite correctly gave a special place to the family in Irish life. What the Minister is now saying is that part of an Irish fam[301] ily does not have rights, because he or she is not an Irish citizen, and he is happy to take away the rights he or she used to have. He is completely wrong.

As regards the story he said was not true, if it is not true – I will check with my sources – I will come to the House and correct it. I have no desire to stand over it. There are, however, many people seeking asylum in this country who are afraid to make their cases public because they believe that if they are critical of the Department of Justice, Equality and Law Reform, it will put their case in jeopardy. If the Minister was prepared to come out from behind his defence of absolute discretion on this and other issues, we would have less fear and uncertainty. The Minister wants to have it both ways. He wants to have the right to do whatever he believes is right under the circumstances and the right not to have to explain it unless somebody brings him to the High Court or the Supreme Court, which people usually cannot do. He would be better off addressing his determination to have it both ways and spending less of his time trying to impugn my motives.

My job here is to address the fact that section 20 of the explanatory memorandum states, “The conditions for naturalisation of the non-national spouse of an Irish citizen are that—”. That is not true. The wording should read, “The conditions for application for naturalisation by a non-national spouse are that—”. The ultimate condition is not among those set out on pages 4 and 5 of the explanatory memorandum. They are the hoops an applicant must jump through before he or she can apply. The Minister must be satisfied the applicant has jumped through the hoops and can then decide at his or her “absolute discretion” whether to accept the application.

If we were to have a wonderful open, liberal governance and observe the democratic and liberal niceties, that section would not be written in that way. The Minister can get up on his sanctimonious high horse as often as he wishes, but he cannot get away from the fact that he said in this House this country will have a huge glut of asylum seekers. That phrase was unworthy of a Minister for Justice, Equality and Law Reform who is responsible for dealing with a delicate issue.

Many of us say things during our careers that we might regret a moment later. My experience over the best part of 20 years of the Minister's Department is one of irrationality concerning individuals, particularly those with dark skins, who are allowed come into this country – their attitude is impossible to explain otherwise. I attended a conference in Dalgan Park in 1992 at which one of the most distinguished development economists from South America was to speak. He was detained for three hours in Dublin Airport by officials of the Minister's Department for the sole reason that his skin was dark.

Anecdote after anecdote is fed back to those of us who want to listen. The anecdotal evidence is overwhelming. Such things happen not at the direction of this Minister but because of an atti[302] tude and a culture that has developed in that Department over many years. So many people have stories and anecdotes to tell about this that we have good reason to be wary of all proposals to give more discretion to Ministers in that Department.

As for the argument about my amendment, I have no idea who writes this stuff for the Minister. The emphasis in my amendment is on serious offences. If the Minister for Justice, Equality and Law Reform does not know the difference between serious and non-serious offences, public order and a serious threat to public order and has not some understanding of what the constitutional term “the common good” means, he should get a new group of advisers to explain those terms to him. The phrase “of good character” is too low a threshold for the spouse of an Irish citizen because we will never know what test the Minister uses, so we are trying to make it a little less generous in regard to the Minister.

Does a conviction for possession of cannabis at the age of 18 constitute a lack of good character on the part of the spouse of an Irish citizen with three children who are Irish citizens who wants to apply for citizenship? The Minister will not tell us the answer because he does not have to and he has no intention of telling us anything about how the mysterious processes of his Department work out these matters because he has absolute discretion and a court decision determined that he could hold on to it. He can hold on to it, but it will not make what he is doing any better. It is an offence to Irish citizens living abroad and takes away from them any degree of legal certainty about the future status of their spouses.

Amendment put and declared lost.

Amendment No. 4 not moved.

Mr. Ryan: I move amendment No. 5:

In page 6, to delete lines 3 to 5.

Let me check where we are at in this ritual. To gain citizenship, the non-national spouse of an Irish citizen must be of full age, of good character, married to a citizen for three years, in a marriage recognised under the laws of the State as subsisting, the couple have to satisfy the Minister by affidavit that they are still married and at the time of application they must have had a period of one year's continuous residence in the island of Ireland, but to be sure, during the four years immediately preceding that period they must have had a total residence in the island of Ireland amounting to two years. This is a Minister who retains absolute discretion about such applications, in spite of all these conditions.

This country is one of the great trading nations of the world. It is trying to encourage its labour force to be flexible. It is trying to attract emigrants home and has people working and travelling abroad. In the case of a couple where an Irish [303] person is married to a non-national, that couple had better plant themselves firmly here. In order for the non-national spouse to gain citizenship, the Minister for Justice, Equality and Law Reform requires that such a couple must have lived here for two of the last four years, even if they have lived here for 12 months continuously. Who is he fooling? This is profound illiberality. Such a requirement is the same as using a JCB to plant a cabbage. Section 15A(1)(g) states, “had, during the 4 years immediately preceding that period, [a period of 12 months continuous residence in Ireland] a total residence in the island of Ireland amounting to 2 years”.

If people are getting married for a few hundred quid to get around the old position, then the Minster has a point, but when he goes from the position we had to requiring that such a couple must have lived here for 12 months and have lived here for two of the previous four years, he is going from one extreme to the other. The other extreme is where this Department likes to be – in a position of total control. It likes to be there because it is a Department run with a control freak culture. It must always have the last word on everything, never mind citizens' rights. This is a classic over-reaction. Such couples could put up with the requirement that they must have lived here for 12 months. We must not forget all the other requirements they must meet and on top of those they must now prove that they resided in the island of Ireland for two of the last four years. That requirement is an over-reaction, it is disproportionate and should not be there.

Dr. Henry: I second the amendment. I will not labour the point. As I said on Committee Stage, there are many people here who work for international firms and, with great ease, are transferred abroad. They can be based abroad for two years, here for a year and abroad for another two years. This criterion would be almost impossible for such people to fulfil. I ask the Minister if this stipulation could be removed.

Mr. Burke: I support the amendment. This criterion is ridiculous. I know of a number of families who moved here to make a living and when the husbands became unemployed, rather than be a burden on the taxpayers of this State, they moved to a different part of this country or to another country to support their families who are settled here.

How does the Minister intend to implement the provision at paragraph (e) that the citizens are living together as husband and wife? Surely a person or a spouse could be away for six or 12 months, as pointed out by various Members. What criteria will he put in place to define that they are living together or how does he define living together?

Mr. O'Donoghue: The deletion of the requirement of paragraph (g) of the proposed new [304] section 15A(1) would reduce to one unbroken year the requirement of residence in Ireland for non-national spouses. The period of residence required for spouses is already greatly reduced compared to the normal naturalisation requirements. There must be some established links based on marriage and residence in Ireland. Three years' residence over the previous five years demonstrates a reasonable commitment to Ireland and is in line with provisions in many other European states. This legislation is not unique to this country. It does not illustrate any xenophobic tendency. I do not intend to make a steel cage out of our national boundaries. This legislation is common across Europe and the free world. The conferring of citizenship on an individual who is a non-national is not a right, it is a privilege bestowed by this State through its elected Executive. I am satisfied that the proposed new section 15A offers a reasonable concessionary discount for spouses as against the normal requirement for naturalisation of five years out of the previous nine and I do not propose to accept any further reduction. As a holder of a Justice or Interior Ministry, I am not exceptional in bringing forward a measure like this.

Senator Ryan referred to the Department of Justice, Equality and Law Reform as if it were, in some way, seeking to trammel people's rights or trampling on the rights of citizens and non-nationals alike. One of the truly great repositories of human rights in this State since its foundation has been the Department of Justice. If Members want the history I will give it to them. The Succession Act, 1965, was widely regarded as one of the finest and most enlightened pieces of legislation of its age and it came from the Department. The Land Acts, which did so much for Irish tenant farmers at the time and afterwards when the fee system was vested also came from the Department. In more recent times and during my time, the Employment Equality Act brought about equality in society and came from the Department. The Equal Status Bill is going through the Houses of the Oireachtas. It expresses the right of travellers and anyone who might have been discriminated against in the past in regard to services and gives them equality of treatment. It also comes from the Department. The Human Rights Commission Bill, 1999, set up a commission here to guarantee people's human rights. That too emanated from the Department in recent times and it is recognised across many groups, not just in this State but across Europe, who have studied it as one of the finest and most enlightened pieces of legislation of its age. In addition, the Status of Children Act, 1987, which was a revolutionary Act of its time, came from the Department.

I am deeply saddened that the Department which has been the champion and repository of human rights in this State has become the target – and I am not citing Senator Ryan – of pseudo liberals across this country who seek to suggest that the protection of the rights of Irish citizens [305] by the Department is something to be frowned upon and regarded as a shame on the nation. I reject all those arguments for what they are. They are spurious nonsense. They are bar room talk. They do not represent common sense nor the views of middle Ireland.

Mr. Ryan: It is a pity we are not on television because there are wonderful histrionics going on. I have frequently cited the experience of young teenage Asians from Shipley College in Bradford. On two occasions they attempted to come here on school tours but they were refused visas by the Department. Notwithstanding the clarion call for human rights no one from that Department, nobody from this bastion of liberalism, has ever offered me a whit of an explanation why 15 year old teenagers could not visit here for three days on a visitor's visa. This happened in two successive years. We do not know why they were refused the first year but I suspect when the second application was made the Department wanted to get its own back because of the trouble caused by the first refusal. It was so embarrassing that there were motions tabled on the Order Paper of the House of Commons criticising the behaviour of the Department of Justice, Equality and Law Reform. That is the truth of it. This is the same Department whose Secretary General would not allow his photograph to appear in the IPA Yearbook until recent years. The Minister, the Chief of Staff and the Garda Commissioner allowed their photographs to be published but the Secretary General could not appear because he was too secret. That is true. Members can try to find his photograph in the IPA Yearbook from five years ago.

Mr. O'Donoghue: There are security considerations.

Mr. Ryan: The Minister has security considerations. He took on the job of Minister and he knew there was a risk involved but he is willing to be identified. The Secretary General at the Department of Defence and all prison governors have security considerations but one person was above being photographed. That is what I do not like about the Department of Justice, Equality and Law Reform no matter how much I like the Minister.

The Minister keeps leaving out of this debate the fact that we are not talking about citizenship applications by non-nationals but about members [306] of Irish families and that is what the spouse of an Irish citizen is. The Minister ducks, weaves and talks of irrelevancies but he will not confront the reality that what we are dealing with here is the position of Irish families.

The second thing he keep on citing is the fact that this is not unique. A number of European countries are similar to us in allowing citizenship by marriage. The Minister mentioned them in his speech on Second Stage, which unfortunately I do not have. At least two of them had one major thing in common with Ireland – they had experienced large-scale emigration. So many of their citizens lived outside the state and that was the practical reason they accepted citizenship by marriage. We are still in that position however, happily, we may have reversed it in recent years. That is why this is different and difficult and will be a further obstacle to persuading Irish people to return home.

As Senator Paddy Burke said, we also come and go. Many of us now work among the world's most successful multinationals. Many of us who work for them are recognised as being particularly good. Therefore, we come from abroad with our spouses from outside Ireland and then we go abroad again with our spouses. We work in successful multinationals generating employment and wealth in this State. However, the Minister for Justice, Equality and Law Reform has stated that even though an Irish emigrant may be contributing enormously to the State, his or her spouse cannot become an Irish citizen unless the couple have lived in this country for three out of the past five years. It does not matter how successful these people are, their spouses cannot obtain citizenship.

The Minister will not confront the fact that he is not dealing with the great mass of applicants, he is dealing with Irish families. Will he explain why Irish families are obliged to put up with such behaviour even before their cases are left at his absolute discretion? Why cannot the Minister make genuine liberal concessions to Irish families living in Ireland? Does he believe there is a conspiracy of such gargantuan proportions that these people will come to Ireland, live here for a year, meet the other conditions, sign affidavits and then bolt or is he just tightening up the law relating to citizenship for foreigners because his Department likes doing so?

Question put: “That the words and figures proposed to be deleted stand.”

Bohan, Eddie.

Bonner, Enda.

Chambers, Frank.

Cox, Margaret.

Cregan, John.

Dardis, John.

Farrell, Willie.

Finneran, Michael.

Fitzgerald, Tom.

Fitzpatrick, Dermot.

Gibbons, Jim.

Glynn, Camillus.

Keogh, Helen.

Kett, Tony.

[307]–continued.

Kiely, Rory.

Leonard, Ann.

Mooney, Paschal.

Moylan, Pat.

O'Donovan, Denis.

[308] Ó Murchú, Labhrás.

Ormonde, Ann.

Quill, Máirín.

Walsh, Jim.

Níl

Burke, Paddy.

Caffrey, Ernie.

Coghlan, Paul.

Costello, Joe.

Hayes, Tom.

Henry, Mary.

Jackman, Mary.

Manning, Maurice.

Norris, David.

O'Dowd, Fergus.

O'Meara, Kathleen.

O'Toole, Joe.

Ryan, Brendan.

Tellers: Tá, Senators Farrell and Keogh; Níl, Senators O'Meara and Ryan.

Question declared carried.

Amendment declared lost.

Amendment No. 6 not moved.

Mr. Ryan: I move amendment No. 7:

In page 6, between lines 12 and 13, to insert the following:

“(2)Where the Minister refuses an application under subsection (1), he/she shall, in a manner to be prescribed by regulation, supply the applicant with a statement of the reason why the application was refused.”

Acting Chairman (Mr. Costello): Is the amendment being seconded?

Dr. Henry: Yes.

Amendment put and declared lost.

Mr. Ryan: I move amendment No. 8:

In page 6, line 13, to delete “in his or her absolute discretion,”.

I wish to explain the context of this amendment. We have been discussing the section of the Bill dealing with the circumstances under which the spouse of an Irish citizen may apply for naturalisation. Section 5(2) contains the provision which is intended to be enlightened whereby, under certain circumstances, the Minister may waive some of the conditions. The section states that the Minister may, in his or her absolute discretion, waive some of the conditions, “if satisfied that the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship”.

Why does the Minister wish to insert the phrase, “in his or her absolute discretion” under circumstances where he is “satisfied that the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship”? Are we seriously suggesting that a Minister for Justice, Equality and Law Reform would refuse to waive the condition even if satisfied that the spouse of an Irish citizen, who wishes to become an Irish citizen, would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted that citizenship? It is not as if the Minister would have to investigate the case and then make a decision. The section says that, even if the Minister is satisfied that the consequences of not granting citizenship would be that someone would suffer physical harm or loss of liberty, he or she might still refuse to waive some of the conditions.

In reasonably precise and unemotional language, I would like to know why it is necessary to include a condition in legislation which states that, even if someone could be hurt or have their liberty impaired, a Minister for Justice, Equality and Law Reform might refuse to expedite an application for citizenship? This amendment seeks to address this situation.

Dr. Henry: I second the amendment. If the consequences of not being granted Irish citizenship would be so serious for an applicant that, for example, his or her bodily integrity or liberty would be affected, it is impossible to consider that any Minister would need to rely on his or her discretion to grant citizenship.

Mr. Burke: I support this amendment.

Mr. O'Donovan: Unfortunately, the Minister is in a no-win situation. He is being castigated on the one hand on the matter of “absolute discretion” and, on the other hand, in relation to the inclusion of an option to waive some of the restrictions in certain limited circumstances. It is an unfortunate situation in which to be. The arguments we have heard are contradictory. In one instance the Minister is being criticised for the inclusion of the phrase, “in his or her absolute discretion”. However, he is also being criticised for including the right to waive certain restrictions or clauses, as outlined in the amendment. He seems to be getting the short end of the stick on both counts.

Mr. O'Donoghue: Amendment No. 8 seeks to remove the words “in his or her absolute discre[309] tion” in subsection (2). Just as it is right that the question of granting naturalisation must be a matter of absolute discretion, and I have cited a considerable amount of very learned legal thought on this, decisions to waive certain of the conditions for naturalisation must also be matters of discretion. To have it otherwise would create an unworkable internal inconsistency in the new section 15A. It would also be inconsistent with its parallel provision at section 16 of the 1956 Act which deals with waiver of the conditions for normal naturalisation.

The two systems of naturalisation would exist side by side. A spouse who does not meet all of the conditions for naturalisation under the new special scheme may, nonetheless, in his or her own right meet the conditions for naturalisation provided for under section 15 of the 1956 Act or may be a suitable candidate for waiver of some of those conditions under section 16 of that Act.

A Minister considering an application for naturalisation in the future will have to consider it against the legislative framework of the totality of the naturalisation provisions, that is, the present sections 15 and 16 and the new section 15A. If some matters are to be matters of discretion, as they properly are at present, and others matters of statutory right, the position arises where no decision can sensibly be made because the conflict between the two is incapable of resolution. That is perfectly logical.

The position is clear. I have outlined it in great detail. I have cited legal opinion from the highest court in the land in support of my contention that absolute discretion is something which is appropriate to the legislation. I have explained in great detail that the exercise of that discretion must be within the parameters of fair procedures and that natural justice has to apply at all times. I have explained as well that these provisions are not the product of a xenophobic Government or people but are broadly similar to those across Europe and are common in the free world outside of Europe. There is no great mystery about them. There is no Pandora's box. The discretion of the Executive, of the Minister in this instance, to grant or not to grant, is by no means unique to this country.

Senator Ryan does not agree with me. He advances the case that it is wrong for the Minister to have discretion. That is something with which I simply do not agree. This legislation is, in broad terms, appropriate to the circumstances as they exist at present. They recognise a problem which exists. There is a difficulty in relation to abuse – there is no question about that. Due to that difficulty, I have been obliged to insert provisions in this legislation to protect Irish citizenship law. That is a reasonable position to take. It is not as if a Minister would act on a whim, unfairly or beyond the parameters of natural justice. I, as Minister for Justice, am entitled to ensure that in granting Irish citizenship there is minimal possibility of abuse of the process. I cannot do that under existing law. That is why I am bringing for[310] ward these provisions. I cannot conceive of circumstances where a Minister would operate unfairly and there is recourse to the courts.

Let me make it absolutely clear that no non-national who is genuinely married to an Irish citizen has anything whatsoever to fear from this legislation. Some of the provisions of this legislation encourage people to come back to this State. I have also made it clear on a number of occasions that there is no barrier to a non-national who is married to an Irish spouse coming to live in this State. There is no barrier to a non-national who is married to an Irish spouse working in this State, irrespective of his or her status in regard to citizenship.

Certain matters are being inserted here because there is an obligation to protect the citizenship laws. I have repeated again and again that the conferring of citizenship on a non-national is not a right but a privilege. That is recognised across international boundaries. It is commonplace. It is the norm in many states I can think of.

I do not for one moment doubt that Senator Ryan has very sincere and deeply-held views on this. However, whether he or I express our views emotionally or unemotionally is beside the point. The point at all times is what is the best direction for this legislation to take. The Senator holds one view. I hold another. As I have said on a number of occasions in the past, a man convinced against his will is of the same opinion still.

Mr. Ryan: At least the Minister's tone has improved. We have a Minister for Justice, Equality and Law Reform insisting on having absolute discretion, in the event of knowing somebody's bodily integrity or liberty is threatened, to ignore that and let it happen rather than change some of the conditions for application for citizenship. The Minister has put up a general defence. I can understand why because what he is doing is largely indefensible and, therefore, he feels the need to go over it again and again.

We are talking about a specific exception that the Minister inserted to deal with a situation where he is satisfied that an applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship. In the case of somebody who wants to become an Irish citizen and who is married to Irish citizen, a member of an Irish family, and the Minister is satisfied that if he does not waive some of the conditions in section 5 the person would suffer serious consequence in respect of bodily integrity or liberty, the Minister, who proclaims liberalism, human rights and all those wonderful phrases, could still say “no” and not even condescend to explain why. That, not the general principle, is what this is about. We lost the vote but we won the argument because of the strange and emotional reaction of the Minister.

We are saying the Minister for Justice, Equality and Law Reform could be satisfied that a member of an Irish family would suffer serious con[311] sequences in respect of bodily integrity or liberty if he or she does not waive some of these conditions, even if he or she is satisfied they want to reserve to themselves the unqualified right to say “no”. That is an extraordinarily illiberal protection demanded by the Minister and an extraordinary level of unaccountability. Without having any obligation to explain anything under the law, a member of an Irish family could be left with their liberty or their bodily integrity in jeopardy. That is profoundly illiberal and another example of the extraordinary “control freak” instinct of the Department of which the Minister is the political head. No other reason exists for this.

How could a Minister for Justice, Equality and Law Reform leave an Irish citizen and a member of an Irish family in jeopardy of either their bodily integrity or their liberty and refuse to allow them to short-circuit the process although they are in trouble? If he could not, why does he want absolute discretion other than to preserve as much latitude for himself as possible when dealing with foreigners?

Mr. O'Donoghue: I have stated my position, but I will look at the specific example cited by the Senator prior to this matter being considered in the Dáil.

Amendment, by leave, withdrawn.

Mr. Ryan: I move amendment No. 9:

In page 6, to delete line 14, and substitute “any or all of the conditions of subsection (1)”.

I will not make an issue of this amendment but perhaps the Minister could explain why he only wants discretion under certain of these conditions and not others. I presume full age would have a different meaning in different countries. There could be people who are not of full age in this country but who are the spouses of Irish citizens. This is the same issue as waiving conditions. Why should it not be possible for the Minister to dispense with that condition in order to facilitate someone who is a member of an Irish family and who is married to an Irish citizen but who is not of full age in the definition of our law – they could be married at 17 – to short-circuit the process where he is satisfied that bodily integrity or liberty are threatened?

I am also concerned about the condition of good character because I know somebody who was granted Irish citizenship under dubious circumstances. Marius Schoon, who is now deceased, had a conviction for planting a car bomb in South Africa, yet he was granted Irish citizenship on compassionate grounds. I do not understand why the Minister cannot dispense with the condition of good character rather than fudging it. Marius Schoon was a terrorist, as he said himself in his wonderful South African accent, under any understanding of the law. Yet he got Irish citizenship and rightly so because he [312] was the victim of state terrorism. The Minister should not exclude the possibility of circumstances where people may not qualify under the condition of normal good character but who would deserve an exception being made. Perhaps the Minister could explain why he chose to dispense with some of these conditions and not others.

Dr. Henry: I second the amendment.

Mr. O'Donoghue: The provisions of subsection (2) are for the purpose of giving the Minister the power to waive certain conditions for the naturalisation of spouses in cases where the spouse would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship. Those conditions which may be waived relate to the requirement to be married for a period of not less than three years at paragraph (c), the residence requirements at paragraphs (f) and (g) and the requirement that the person in good faith intends to remain on the island of Ireland after naturalisation at paragraph (h).

The application of this section is most likely to arise in the context of a spouse who is living abroad and, in the circumstances envisaged by this subsection, it would be reasonable to waive those particular conditions. I do not consider that any of the other conditions of the new section 15A as inserted by section 5 should be waived.

It is essential that a marriage does exist, which is what paragraphs (d) and (e) of the new section 15A seek to establish. If the person is not a spouse, then the proper course for naturalisation is by means of section 15 of the 1956 Act, with the possibility of the waivers of any of the conditions in that section allowed for by section 16. To provide for waiver of these paragraphs in the new section 15A is the equivalent of saying that we have set up this special scheme of naturalisation for spouses but people can apply under it although they are not a spouse and there is already a scheme for naturalisation of non-spouses. That does not make sense.

Mr. Ryan: That is not what it means.

Mr. O'Donoghue: As to paragraph (a) which deals with full age, under Irish law the age of majority is attained at the age of 18 or on earlier marriage. If, however, a marriage has been contracted in a jurisdiction where that age of majority rule does not apply, and the spouse is what is known as a “child bride”, our naturalisation law should not do anything to encourage our citizens to contract such marriages. I cannot conceive of circumstances where waiver of the full age condition can be justified.

For the reasons I have already outlined and as was discussed extensively on Committee Stage, the issue of good character is one which should not be dispensed with. I am aware Senator Ryan was not overly impressed by some of the argu[313] ments put forward about Arkan. Where citizenship is bestowed in these exceptional circumstances, I can see no reason why the person so privileged should not be required to declare fidelity to the nation and loyalty to the State. It is, as has already been pointed out, a provision of our Constitution at Article 9.2 that “fidelity to the nation and loyalty to the State are fundamental political duties of all citizens”.

As I said earlier, the new scheme of naturalisation stands side by side with the present scheme. It is a special scheme with less rigorous conditions as to residence to cater for spouses of Irish citizens in certain circumstances. If a person does not qualify under the new scheme, there remains the present scheme with the possibility of waiver of some or all of the conditions in certain circumstances as set out in section 16 of the Act. It is not widely acknowledged or known that a large number of applications for naturalisation are made to the Department and that a substantial number are granted. We only hear about those which are not granted.

Mr. Ryan: That is the nature of life.

Mr. O'Donoghue: That does not surprise me. Given that the present scheme exists as a fall-back, it is reasonable to reserve the new scheme for the special case of the non-national spouse of the Irish citizen. Accordingly, the narrower scope for waiver in the special scheme is proper.

As regards the scheme of naturalisation, often the Minister of the day, including me, allows people to stay on humanitarian grounds. That is a discretion which is exercised sometimes against the decision of the appeals commissioner for refugees, the matter having been refused in the first instance. These exceptions are made. Nobody is going to highlight them. Senator Ryan is right but nonetheless it is important that it be said.

Mr. Ryan: I am not hung up on this. I am intrigued by the possibility that a member of an Irish family could be stuck in a situation with consequences for bodily integrity or liberty and not be able to become an Irish citizen quickly because they did not get around to making a declaration of fidelity to the nation and loyalty to the State. I thought it would have been possible to delay that to a subsequent time when it was safe and reasonable for the person to do it. I accept much of what the Minister says on the other arguments, particularly if full age is not defined as 18 or whenever the person is married. That is reasonable and I accept it.

Condition (i) should be subject at least to postponement if the circumstances require it. It should not be a pre-condition for somebody who is liable to be killed or locked up that they have to make a declaration of fidelity to the nation and loyalty to the State. That should not be an absolute pre-condition. When people are in jeopardy, it could be postponed. I will not press the amendment.

[314] Amendment, by leave, withdrawn.

Acting Chairman: Amendments Nos. 10 and 11 are related and may be discussed together by agreement.

Mr. Ryan: I move amendment No. 10:

In page 6, line 36, to delete “or”.

Dr. Henry: I second the amendment.

Mr. Ryan: Amendment No. 10 is very simple. Line 36 contains an “or” that is not needed. We do not need to discuss it at length.

Amendment No. 11 concerns mean-minded exclusions of people who have spent a considerable period here. It concerns reckoning a period spent in the State by a non-national for the purposes of applying for citizenship, and states that periods of study cannot be included nor can periods of time “seeking to be recognised as a refugee (within the meaning of the Refugee Act, 1996).”

We discussed this on Committee Stage and the Minister attempted to justify it. It would be better if he left some discretion or suggestion that it should not be always be the case, or that the Minister could rule on it under clearly defined conditions, but it simply states that “When calculating a period of residence in the State for the purposes of an application for a certificate of naturalisation . . . no period shall be reckoned in respect of which the non-national . . . had permission to remain under that Act or any other enactment for the purpose of—”. This involves those who are here with permission.

There are other parts of this section which one would not dispute, particularly concerning those who are here illegally. This involves those who are legally in the State to study, or while their application for refugee status is processed. The Government is saying that never, under any circumstances, can that period of time, however long it might be, ever be reckoned, even in part, as part of the time under which one could qualify for citizenship. That is mean-minded and is excessive and disproportionate. The fact that the Minister was endeavouring to put into law what was the practice in general is no excuse for putting it in this form. It would be reasonable to say that the Minister, to an extent he believes appropriate, can bear in mind the period of study and period of application for refugee status. To simply exclude them carte blanche is extremely unfair and is no great incentive to those who come here to study and perhaps feel they would like to live and work here. Many of them will in the future because, as Senator Henry said, there is a shortage of doctors here. This provides that they can come here and study, that our medical services will need them, but on the matter of citizenship the clock only starts once they go to work and there are no exceptions. The phraseology is entirely wrong and should be deleted.

[315] Dr. Henry: I stressed on Committee Stage, as Senator Ryan did, the unfortunate effect this could have on doctors on whom we depend to run our medical service, particularly outside the major centres. I asked the Minister of State at the Department of Health and Children, Deputy Hanafin, now that the Irish Medical Council has refused to recognise positions in some of the county hospitals for training, if it would be better for non-nationals to apply for those jobs which do not have recognition. They could not be considered places of study. They might be better to apply for those rather than going to hospitals which have good training programmes in place. She said she would find the answer for me.

I am sorry to see this in the legislation because when we depend on people to run our health service and they have put years of work into our country, we should make that period part of the entitlement towards citizenship.

Mr. Burke: I am also disappointed that this is in the legislation and I appeal to the Minister to accept the amendment proposed by Senator Ryan or else give a firm commitment to examining it favourably before he introduces this Bill to the Dáil.

Mr. O'Donovan: I have great sympathy for doctors and student doctors who come to Ireland to work and study, and in many instances, to stay on. My experience is that at this stage 75% of the doctors in Bantry General Hospital are from Asia and other parts of the world. I have had some experience of them. To date the approach taken by the Department of Justice, Equality and Law Reform and by Ministers over time has been quite liberal and understanding.

Dr. Henry: Yes.

Mr. O'Donovan: I am concerned about his point concerning many of these peripheral hospitals outside Dublin or Cork in places such as Cavan, the west, Bantry or in Kerry, remote areas where the top-notch consultants and doctors do not want to live. The Minister should consider facilitating this because some of these very peripheral hospitals would be closed or inoperable were it not for, not so much the student doctors—

Dr. Henry: The graduate doctors.

Mr. O'Donovan: —but the post-graduate doctors. There is a fairly liberal system for work permits and they also must be registered with the Irish Medical Council. I am very concerned about this issue. The Minister should consider this in his reply.

Mr. O'Donoghue: To delete these provisions in the Bill would be to remove two important criteria regarding the period of residence in the State which will count for naturalisation pur[316] poses. The reasoning behind these provisions has already been explained on Committee Stage.

Paragraph (b)(ii) of the new section 16A(1) of the 1956 Act, being inserted by section 6 of the Bill, deals with periods which for certain temporary stay purposes will not reckon as periods for naturalisation. The temporary purposes are: study, whether or not that involves an element of paid work experience, and temporary permission to enter and stay in the State while awaiting a decision on an asylum claim.

There are good reasons why such periods should be excluded. In the case of a person coming to the State to pursue studies, the duration of his or her permission to remain is limited to the length of the study course. The person can have no expectation that by coming to the State for a limited period his or her time here will reckon for naturalisation purposes. A person admitted as a student is, by definition, here for the limited period of duration of the course of study. Such a person can have no legitimate expectation of being able to acquire citizenship on the strength of such a stay or of having that stay reckonable towards qualifying for citizenship. A student comes here for the primary purpose of obtaining a qualification, with perhaps an element of work experience, and then to return home where that qualification can be put to good use in his or her own community. It must be clear on the part of the student that this is so; that is what is stated on his or her student visa application or to the immigration officer or arrival. Nowhere is there any understanding that a student will be entitled as a matter of course to take up full-time employment and live the rest of his or her days in the State. That is an entirely different matter.

I fully accept the point made on Committee Stage that many foreign students pay large fees and that the development of the overseas educational sector of our economy is very important. It is also the case, however, that in return students receive a first-class education which will considerably enhance their life opportunities. We cannot have a situation where every person who wishes to come to the State to pursue a course of studies is to be regarded, or regards himself or herself, as a potential applicant for naturalisation. It would be an unrealistic and unfair expectation to give to the person or to impose on the State.

Periods in the State where a person is seeking refugee status will also not reckon for the purposes of naturalisation. Under section 9(3)(a) of the Refugee Act, 1996, which will soon be implemented—

Mr. Ryan: Praise the Lord.

Mr. O'Donoghue: —an applicant for refugee status is to be given a temporary residence certificate. Under the current arrangements for dealing with asylum seekers, an applicant is allowed to remain in the State on a temporary basis pending the outcome of the application. In either case, the basis for the stay in the State is temporary only [317] and an asylum applicant can have no expectation of being able to acquire citizenship on the basis of that temporary stay.

Until the consideration of the asylum claim has been finally completed, whether under the current UNHCR approved procedures or soon under the Refugee Act, it is not possible to determine what the applicant's status will be. He or she may be recognised as a refugee or may fail to be recognised as a refugee and either be required to leave the State or permitted to remain on other grounds, including grounds which may have no bearing on the asylum claim.

It is important to stress that an asylum applicant is admitted to the State for the purpose of determining whether he or she qualifies for recognition as a refugee, but the fact that a person is admitted for this purpose cannot guarantee the right to reside indefinitely in the State or to seek citizenship of the State. The person's status is determined by the outcome of his or her application. Where a person is recognised as a refugee there is power in the existing citizenship laws to provide a waiver for the normal naturalisation provisions for the person concerned.

Where a person is recognised as a refugee, the Minister may exercise his or her powers under section 16(g) of the Act of 1986 to grant a certificate of naturalisation where all the conditions for naturalisation are not met. In practice this option has often been exercised by my agreeing to accept applications for naturalisation after three years' residence in the State rather than the normal residence requirement of one year's continuous residence in the State immediately prior to the application and four years' residence in the eight years prior to that period. My predecessors have done the same. The three years are reckoned from the date of the application for refugee status rather than from the date on which the person was recognised as a refugee.

On Committee Stage, Senator Henry raised the issue of medical doctors and I asked for the matter to be examined. Those doctors here to pursue postgraduate training in which work experience in a hospital is an essential component are required to obtain temporary registration from the Irish Medical Council. Periods of temporary registration are issued to any doctor for up to 12 months at a time and, in total, for a period of 260 weeks. This is usually sufficient to enable a doctor to complete a postgraduate course. There is a qualifying examination which must be passed unless the doctor can show that he or she meets the requirements for exemption. Senator Henry shakes her head as if she thinks that 260 weeks is inadequate.

Dr. Henry: In some cases the requirements of the Royal College of Surgeons in Ireland and the Royal College of Physicians of Ireland give rise to a need for more time. I know this can be problematic.

[318] Mr. O'Donoghue: I am anxious to facilitate those from other countries who want to do postgraduate courses. They are of considerable benefit to their own countries when they return. If there is a difficulty with the length of time allowed, it should be taken up with the Irish Medical Council. It is the norm for that body to issue to any doctor temporary registration for a period of up to 12 months at a time for a period of 260 weeks in total.

Dr. Henry: I will raise the issue with the Irish Medical Council.

Mr. O'Donoghue: The position of doctors from abroad who seek employment in full-time posts is different. They require full registration with the Irish Medical Council. Presumably the Irish Medical Council, before issuing such registration, would satisfy itself as to the qualifications and competence of the person to practise medicine in the State. The doctor will also, unless a citizen of an EU state or a dependant of such a citizen, require a work permit from the Department of Enterprise, Trade and Employment. If a doctor obtains full registration from the Irish Medical Council, and the prospective employer obtains a work permit from the Department of Enterprise, Trade and Employment, there is generally little or no difficulty with the immigration authorities.

A doctor coming to the State on that basis, rather than for the purpose of study, can have a reasonable expectation that his or her residence on that permanent basis will, in the fullness of time, count towards the requirement for naturalisation. Some people exercise that option and some do not.

Persons with temporary registration who later achieve full registration can change their immigration status and remain in the State to work in a full-time hospital post if a work permit is issued in respect of that post.

Senator Henry will agree that the citizenship laws are not the appropriate vehicle to recruit trainee or full-time doctors and should not be used as a carrot to attract students to the State. It is a matter for the Irish Medical Council to ensure there are sufficient doctors of sufficient calibre to meet the needs of Irish society and naturalisation policy is not a suitable or effective means of regulating that supply. Ireland should feel proud of its record in training doctors, especially for work abroad. It should also be grateful to those who come here to train.

The question of residence in the State is governed by the possibility of discretionary waivers under section 16 of the 1956 Act. Senator Ryan's concerns about the fixed nature of the exclusions in the provisions being debated are addressed in that context. The provision exists to ensure clarity about what is expected. That does not rule out a waiver of the residence conditions.

Mr. Ryan: We are back where we started; we insert all the conditions, the Minister can waive [319] them but no one can ever question him about how he waives them.

Senator Henry tells me that it seems more advantageous for a person applying for citizenship to have had a job without a training aspect because it is not study. If a person gets a job without any training the clock starts ticking for a citizenship qualification. The training undertaken by a person who comes to obtain better qualifications to provide a better service to the people of Bantry will disqualify him or her from citizenship for a few more years.

I am glad there is some discretion in the existing Act. I read it but I missed that, but what I am not sure about is if such discretion exists, what clarity does this give? If the Minister can exempt people from it, what does clarification, as contained in these sections, mean? It seems to mean that the Minister is issuing a signal yet again to people that one should not think, if he or she is a students here and/or gets a job here, that the Minister will consider his or her application for citizenship any more favourably; and one should not think, if he or she comes to Ireland, gets the right to stay here and is granted refugee status, that it will make one's route to citizenship any shorter. What is the point of clarification of this kind if the Minister states that he can ignore it if he wants to do so? What sort of clarification is that? That is just a signal, and it brings one back to what these signals represent.

The Minister was not the least bit convincing. He seems to be concerned about expectations, the feeling that if he allows asylum seekers to [320] work, etc., it creates expectations. These were just slipped in because they were uncertain. They are there as statements to people who come here to study that it makes no difference and to people who come here and apply for refugee status that even though a person gets refugee status, he or she will not get an Irish passport until he or she has been here for X number of years. That is a pity. The Minister has produced no convincing explanation. As Senator Henry says, the Minister is telling people that if they can get into Ireland and get a job – we must begin to let people in because there are labour shortages – then one would be better off not studying while one is here because it only makes it more difficult for an applicant. That is a wonderful disincentive. The Minister will state that of course he can exercise his discretion afterwards, but the truth is that he is saying that to them.

The Minister is also telling people that even if they are recognised here as legitimate refugees, which, one must remember, means people who are escaping from the threat of torture or worse, and even though he recognises that they had an awful life and escaped from a threatening situation, it will not count unless the Minister thinks differently. If the phrase, “unless the Minister thinks differently”, is as central as he says, then there is no clarity. However, if the Minister's discretion means nothing, then this is rigid, there is no greater clarity and the issues to which Senator Henry referred remain unresolved.

Question put: “That the word proposed to be deleted stand.”

Bohan, Eddie.

Bonner, Enda.

Chambers, Frank.

Cox, Margaret.

Cregan, John.

Dardis, John.

Farrell, Willie.

Finneran, Michael.

Fitzgerald, Liam.

Fitzgerald, Tom.

Fitzpatrick, Dermot.

Gibbons, Jim.

Glynn, Camillus.

Keogh, Helen.

Kett, Tony.

Kiely, Rory.

Leonard, Ann.

Mooney, Paschal.

Moylan, Pat.

O'Donovan, Denis.

Ó Murchú, Labhrás.

Ormonde, Ann.

Quill, Máirín.

Walsh, Jim.

Níl

Burke, Paddy.

Caffrey, Ernie.

Coghlan, Paul.

Cosgrave, Liam T.

Costello, Joe.

Hayes, Tom.

Henry, Mary.

Jackman, Mary.

Norris, David.

O'Dowd, Fergus.

O'Meara, Kathleen.

O'Toole, Joe.

Ridge, Thérèse.

Ryan, Brendan.

Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Farrell and Keogh; Níl, Senators Costello and Ryan.

Question declared carried.

Amendment declared lost.

Mr. Dardis: It would be useful if we could dispose of this legislation. I am proposing that we continue with item 1 for 15 minutes and that we [321] extend Private Members' business by a similar amount, by agreement.

An Cathaoirleach: Is that agreed? Agreed.

Amendment No. 11 not moved.

Government amendment No. 12:

In page 8, line 17, after “section 2(a)(iii)” to insert “and (d)”.

Mr. O'Donoghue: This is purely a drafting amendment which is required, appropriately enough, for completeness.

Amendment agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

Mr. Ryan: It is probably impossible to object to the passage of this Bill, given that if one were to succeed in doing so, it would affect a considerable part of the Good Friday Agreement, which we still hope will survive in all its richness. Nevertheless, I want to record that sticking an entirely unconnected provision on to something as important as the Good Friday Agreement is the wrong way to proceed, however worthy and necessary – which we can dispute with the Minister – the amendment to the citizenship of spouses might be. Sticking that into a Bill concerning the wonderful achievement of the Good Friday Agreement was not the way to do business. It besmirches what would not otherwise have been an issue.

We have identified an issue of considerable gravity in the Good Friday Agreement. The taking of a seat in this House as a Taoiseach's nominee by a citizen of Northern Ireland from the Unionist tradition will now involve such a person publicly saying, in effect, that they accept they are citizens of this State. In the past, they were citizens because we claimed them as such. Therefore, they did not have to acknowledge it. They could say they did not agree with it but, legally, they were citizens whether they wanted to be or not. People who were determined to be classified as British only could come here, safe in the knowledge they were doing nothing they disagreed with. Due to the well intentioned changes in Articles 2 and 3, that situation no longer prevails. It is now more difficult and problematic for a citizen of Northern Ireland who is a Unionist to accept a seat in this House. That is a great pity and is worthy of constitutional amendment at the first possible opportunity.

I do not believe the reverse applies to the Northern Ireland Assembly. I am sure there are members of that Assembly who are citizens of this State but who did not have to acknowledge, in any way, that they were citizens of the United [322] Kingdom before they could become members of that Assembly. We have a peculiar situation where citizens of this State are free, without any diminution of their citizenship, to become members of the Northern Ireland Assembly, but citizens of Northern Ireland must at least accept in principle that they are citizens of this State. That is a very serious condition which the Minister ought to address with the Government as a matter of urgency. Otherwise, we will embarrass people from Northern Ireland and make life even more difficult for them. This is a very serious issue.

Mrs. Taylor-Quinn: This Bill has received an extensive airing in the Seanad. Some of us wish that more amendments had been accepted on Committee and Report Stages. The Minister should reflect again on the naturalisation of spouses of Irish citizens before the Bill's passage through the Dáil. I ask him to review the provision for absolute discretion, which is unnecessary. It is unfortunate the Minister had to go to Northern Ireland on important business during Committee Stage, although he was ably represented by the Minister of State, Deputy Hanafin. I hope the views expressed in the Seanad will be considered by him and his officials before the Bill's passage through the Dáil and that he will reconsider his position on a number of the amendments tabled in this House.

Dr. Henry: I thank the Minister for his replies, although he did not accept our amendments. I ask him to make plain in the Dáil to Irish citizens that marriages in English registry offices are valid marriages. I was extremely alarmed to learn from the unofficial information I got that people who contracted marriages in registry offices in England sometimes described themselves as single on their return here. It would be a crime for such people to get married in this State. We need to make this very plain.

There are far more marriages of convenience taking place than I had realised. The Minister will be aware of that from my contribution on Committee Stage. I eventually discovered that information for myself. I am sorry the Department was not able to find out more about it because it seems to be a very serious problem. This problem has grown greatly over the past ten to 15 years and is, apparently, becoming more prevalent in terms of registry office marriages in this State. It is important we make people understand the validity of marriages which take place in English registry offices because some people seem to take a rather casual view of them.

Mr. O'Donovan: I acknowledge the contributions of my colleagues, some of which were made with great sincerity. As Senator Taylor-Quinn said, this Bill has received a great airing and this is the fourth day we have debated it. The Minister did his best to reply to all the matters raised. We had a very comprehensive debate. We [323] must not forget the nub of the issue, which is the Good Friday Agreement and the importance of bringing this Bill into force.

As someone who lived in Great Britain, I am glad Senator Henry acknowledged the problem of frivolous marriages in registry offices, which are very common. One would have to go back 40 or 50 years to find a case of bigamy taken in this State. However, there is a problem and the Minister is correct to endeavour to ensure it does not raise its ugly head here.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I thank Senators for the opportunity to address the House on the conclusion of the Bill. I reject all criticism of the legislation made by Members in their closing addresses, which, I suppose, is to be expected of me. However, I do not accept the legislation has been in any way besmirched by adding in certain sections to deal with the susceptibility and vulnerability of the 1956 Act to abuse. I would be in dereliction of my duty if I did not do so.

Everybody would acknowledge that Senator Henry is not given to wild exaggeration or wild claims. She has confirmed to the House what I said on Committee Stage, and prior to that, about abuse. People are taking advantage of the 1956 Act to obtain Irish citizenship through marriages of convenience, particularly in England. They should recognise, as Senator Henry said, that marriage is a serious business and under no circumstances should they engage in this type of behaviour to circumvent the law on citizenship.

The legislation I have brought forward closes off the loopholes in so far as it is possible to do so. I say very clearly that people who marry in England or elsewhere for the sole purpose of becoming Irish citizens had better realise that this legislation, when it finally passes through the Dáil, will mean that they will not be in a position to obtain Irish citizenship through marriages of convenience. That will be welcomed across most of this country. I have gone into the issue of non-marital spouses and there is no point debating the Bill again as we have debated it for a number of days.

Regarding Senator Ryan's point on the situation of people from the North of Ireland wishing to become Members of this House, it is a constitutional provision that one must be a citizen of this State to become a Member of either the Seanad or the Dáil and only the people could change that. It may not be changed through legislation and would require a constitutional amendment. People would expect those who represent them in this or the other House to be Irish citizens. That was the position before this legislation and it will be the position after it under our Constitution.

It is not as if I am saying to any person from the North of Ireland, irrespective of his or her persuasion, that they must abandon their British citizenship if they become a Member of the [324] Seanad or the Dáil. All I am saying is that if one exercises the option of becoming a Member of the Seanad or the Dáil, then one has to have Irish citizenship. However, that does not mean I am asking them to reject their British citizenship – far from it. They can hold both at the one time. In many ways, that is the unique achievement of our legislative and constitutional provisions.

The position before was that they were regarded as Irish citizens whether they liked it or not. Now one can choose to be an Irish citizen or choose not to be, but if one exercises the right to become a Member of the Seanad or the Dáil, then one becomes an Irish citizen. If one wishes, one can, of course, retain one's British citizenship. I do not see how I could have achieved, within constitutional parameters, any situation other than that which I have achieved.

I warmly thank the main Opposition spokesperson and other contributors, in particular the Independent Senators, who contributed to the debate. It was a most lively and interesting exchange of views to say the least. Some home truths were spoken on all sides and that is something which I always broadly welcome because a day should not pass when one does not learn something. I thank all the contributors to the debate, the Cathaoirleach and the staff of the House for the courtesy and the patience shown throughout.

Question put and agreed to.