The Government claims that the first sentence of Article 2 (as amended
by the elaborate process of the Good Friday Agreement) grants
citizenship rights to every person born on the island, and supports this
reading by pointing to the single word otherwise
in the second
sentence of the same Article. In fact, the first sentence grants
nationality (not citizenship) to people born on the island, both by
birthright and by entitlement. The second sentence grants nationality
to another group of people: those not born on the island but otherwise
qualified
to be citizens. The Government's position is that:
The word
otherwisemeans that the first sentence is conferring the entitlement to citizenship on the category of people born in Ireland.
— Minister for Justice, Equality and Law Reform; Seanad Éireann, May 5, 2004 (Committee Stage, amendment 8).
However, this is an unnecessary, unsupportable, and unauthorised
modification of the text. The use of otherwise
to refer to the
criterion of having been born in the island of Ireland is consistent
with both the literal approach and the schematic/teleological approach
to interpretation of legal provisions. Unless it can be shown to result
in absurdity, the literal approach should not be abandoned.
In an attempt to finesse the primacy of the literal approach, the Government claims that nationality is synonymous with citizenship:
What does entitlement to be a member of the Irish nation mean unless it entitles somebody to Irish citizenship? There was a report by a lawyer in The Irish Times yesterday which disagreed with that point. I will say two things about that: first, the paper merely identified the writer as
a practising barristerbut it failed to state that he is a leading member of and former electoral candidate for Fine Gael; and, second, that I would rather rely on the advice of the Attorney General in this matter. If we want to change the current automatic entitlement to Irish citizenship for those born in Ireland, we must change the Constitution.
— Tim O'Malley TD (Minister of State at Dept of Health and Children); Dáil Éireann, April 21, 2004 (Second Stage).
By virtue of article 17 of the Treaty Establishing the European
Communities, every Irish national is an EU citizen, which does not
supplant Irish citizenship. Therefore, Irish nationality without Irish
citizenship is not a mere shibboleth
but a real entitlement to
enforceable rights. Therefore there is no need to find any other
meaning (e.g. Irish citizenship) for membership of the Irish nation.
Consequently the argument attributed to the Attorney General fails at
the first hurdle.
A similar attempt to conflate nationality and citizenship was grounded on citation of the Constitution Review Group's 1996 report. While that report acknowledged that nationality and citizenship had no apparent distinction in Irish law, it did also reject the notion of joining them into one concept. It also cited the article of EU law which has since been renumbered art 17 TEC (referred to in the preceding paragraph).
Article 2 grants entitlement and birthright of Irish nationality to every person born on the island who wishes to avail of it, and is careful to avoid creating a situation whereby a person is entitled to Irish citizenship but not Irish nationality. There is no attempt to redefine or constrain the laws of citizenship: instead, nationality is expanded to include all citizens.
If we believe that there is a loophole in the text of Article 2, the correct course of action is to change the text to cure the defect. The proposal instead effects amendment of Article 2 by adding a new section (to Article 9) which conflicts with Article 2 and partially supersedes it. The intent is to amend Article 2 by changing its effect but not its text.
This roundabout course was questioned during the passage of the Bill in the Oireachtas. The Government justified it by claiming that:
If we were to alter or amend Article 2, which is part of the Agreement that was decided by the people, we would be re-opening the negotiation of something which does not need to be re-opened.
— Senator Martin Mansergh; Seanad Éireann, May 5, 2004 (Committee Stage, amendment 8).
In other words, there is a worry that a change to Article 2 would cause diplomatic upset by appearing to be a change to the Good Friday Agreement. However, the same speaker soon negatived this justification when he said:
Some concerns were expressed briefly by certain parties in Northern Ireland when this Bill was published, but I note with some satisfaction that after a full explanation of it was given, those concerns were abated. I have no reason to believe that it is now a major concern of any party in Northern Ireland because it has been clearly explained to them that this is ring-fenced from the Good Friday Agreement.
-- Senator Martin Mansergh; Seanad Éireann, May 5, 2004 (Committee Stage, amendment 8).
Therefore, the feared diplomatic upset cannot occur, because the affected parties have understood that the amendment does not violate the Good Friday Agreement. There is then no justifiable reason to avoid textual amendment to Article 2 instead of the present approach of undermining it in Article 9.
Articles 2 and 3 already suffer from lack of clarity; the dispute over whether citizenship is affected by them is already clear, and apparently unforeseen. The proposed amendment would leave the lack of clarity in place when it could easily be fixed.
The proposed amendment introduces new loopholes by a lack of care in its
drafting. The new text begins with Notwithstanding any other provision
of this Constitution
, a stock phrase which is intended to make it clear
that this section overrides Article 2. However, the desire to avoid
drawing attention to the amendment of Article 2 has led to the selection
of Notwithstanding any other provision of this Constitution
over the
more concise Notwithstanding Article 2
. The result is that this new
text is set apart from the rest of the Constitution, and superior to
even the most fundamental rights granted elsewhere in the Constitution,
without a comprehensive survey to see that there are no unintended
consequences of this priority.
The courts have followed a doctrine of harmonious interpretation in
interpreting the Constitution, which is to say that each provision must
be given such an integrated interpretation as will fit it harmoniously
into the general constitutional order
(Henchy J, The People vs. O'Shea,
[1982] IR 384). This ensures that constitutional rights are balanced
against one another, instead of creating a strict hierarchy whereby one
right trumps another regardless of the circumstances, which can lead to
unforeseen injustice. (For example, the Fourteenth Amendment to the
U.S. federal Constitution, by granting the power to intervene in any
matter in which equality could be said to be at stake, effectively
changed the character of the U.S. federal government from one of
enumerated (limited) powers to one of universal powers. The articles
limiting the authority of the government were effectively amended
without a change in their texts, and U.S. courts could not harmoniously
interpret the new provisions along with the old.)
The inclusion of the Notwithstanding
phrase deprives the courts of the
option of harmonious interpretation in any case which pits a right
claimed under the new section against any other right claimed under the
Constitution. This is a bad practice, and it appears to have been done
for the most trivial of reasons.
It is proposed to take No. 23, the Twenty-seventh Amendment of the Constitution Bill 2004 — Order for Report, Report and Final Stages; […] It is proposed, notwithstanding anything in Standing Orders, that: (1) the Report and Final Stages of No. 23 shall be taken today and the proceedings thereon shall, if not previously concluded, be brought to a conclusion at 1 p.m. today by one question which shall be put from the Chair and which shall, in relation to amendments, include only those set down or accepted by the Minister for Justice, Equality and Law Reform;
— An Tánaiste (Mary Harney TD); Dáil Éireann, April 29, 2004 (Order of Business).
It is part of Irish political life that despite the constitutional allocation of legislative authority, legislation is in practice made by the Government in secret, and is then rushed through the Oireachtas without substantive amendment by a loyal majority of each House. As a result, Governments tend to view debate on legislation as little more than an opportunity for the Opposition of the day to insult Ministers.
The formula in the above quote is commonly called the guillotine, and it is used to pass Government legislation before the House considers all amendments before it. It is always approved by the Government's loyal majority, because it turns delaying tactics to their advantage, instead of to the Opposition's advantage. The fact that it allows a Minister's amendments to be accepted and passed into law without any debate does not seem to cause any loss of sleep to members of the majority because, being loyal to the Government, they would have voted for those amendments individually anyway.
While the guillotine is an unfortunate fact of life in making ordinary legislation, it is unacceptable when making an Act to amend the Constitution. It is a constitutional prerequisite that any proposed amendment to the Constitution must have been considered and passed by both Houses of the Oireachtas; it is clear that this proposal has been passed without due consideration.
(There was a similar guillotine imposed on the Seanad when the Bill was considered there, but it was sufficiently generous that Senators completed all stages before the time expired.)
The substantive issue is that non-nationals are giving birth in Ireland in order to parlay the infant's citizenship into EU residency rights for the parents. The Government claims that this gambit cannot be stopped except by passing this constitutional amendment.
However, the Lobe & Osayande case ([2003] IESC 1) establishes that the Irish citizenship of a child is no bar to the deportation of the child's parents, as Michael McDowell TD concedes:
Therefore, to take the Senator's example of two Albanians who have had a child in Ireland who is now an Irish citizen, as matters stand their presence in Ireland falls to be decided in accordance with the principles laid down in the L & O case. Having an Irish citizen child is not an absolute guarantee of a right to remain in Ireland. On the other hand I emphasise the Supreme Court never ruled that the Minister for Justice, Equality and Law Reform could deport people casually and at will notwithstanding that they had a citizen child. The ruling of the Supreme Court was that if there were compelling grounds in the view of the Minister for requiring the parents of the child to leave, it did not constitute an absolute bar on their deportation that the child was an Irish citizen. The Supreme Court never ruled that the Minister could deport anybody he considered inconvenient or whose presence he found undesirable. […] At present more than 9,000 EEA non-nationals have indicated that they have Irish born children and wish to remain in the State on this basis. They constitute the 10,000 we have heard about in discussions. The position regarding these was set out in the dictum of Hardiman J in the Supreme Court in the L & O case. He said:
it seems to me that the existence of an Irish born child does not fundamentally transform the rights of the parents, though it requires the specific consideration of the Minister who must reasonably be satisfied of the existence of a grave and substantial reason favouring deportation.The notion that I was suddenly handed a free-flowing pen with which to authorise the mass deportation of 9,000 people is not grounded in reality. I committed myself to considering the rights of each of them on a case by case basis. It is not true, therefore, that cases involving Irish-born children who are Irish citizens are in some sense a foregone conclusion in administrative terms as a consequence of the L and O cases. That is far from being the case.
— Minister for Justice, Equality and Law Reform; Seanad Éireann, May 5, 2004 (Committee Stage, amendment 8).
The Chen case, currently before the European Court of Justice, is also claimed as an urgent reason to amend our Constitution. The argument is that non-EU nationals can claim residency rights in the EU because of their Irish-born children. This is not the case in Ireland and there is no reason to think that it will be the case in any other EU member state. Member states continue to have liberty to set their own residency laws in respect of persons other than EU citizens. If the Chen case results in Mrs. Chen being given the right to reside in the UK, then either the UK or the EU can change the law. Either way, it is not a matter for the Constitution of Ireland.