| Mrs.
Taylor-Quinn: Is the Minister sure? Is he sure that
Dr. Ian Paisley is not an Irish citizen? Mr. O'Donoghue: I
am as sure as I can be.
Mrs.
Taylor-Quinn: How sure is the Minister?
Mr.
O'Donoghue: I am as sure as I can be.
Mrs.
Taylor-Quinn: I think there is a question mark there.
Mr.
O'Donoghue: We dealt with the fallibility issue.
Mrs.
Taylor-Quinn: The Minister is not sure. Let us be
honest.
Mr.
O'Donoghue: I am sure as I can be.
Mrs.
Taylor-Quinn: That is not very sure.
Mr.
O'Donoghue: I will tell the Senator why. When I spoke
about the British Act I was referring to an Act, the
effective date of which was the date in 1949 but which
was enacted in 1948. Therefore, I am that sure.
Mrs.
Taylor-Quinn: We declared a republic in which year?
Mr.
O'Donoghue: 1949.
Mrs.
Taylor-Quinn: Before that declaration-----
Mr.
O'Donoghue: Mr. John A. Costello I think was
described as the honest broker in the days of stronger
men.
Mrs.
Taylor-Quinn: In view of that, technically is there
not a case-----
Acting
Chairman (Mr. Finneran): We are moving a good bit
away from section 3 at this stage.
Mrs.
Taylor-Quinn: Is there not a case because of Articles
2 and 3 of the Constitution to say that all people born
before the Republic was declared in 1949 are actually
citizens of Ireland?
Dr. Henry:
I thank the Minister for going into the explanations so
carefully. I think it was worthwhile clarifying this
because it is a very important section. Can I definitely
take it that my hypothetical Latvian lady's baby's rights
are in no way diminished?
Mr.
O'Donoghue: Certainly.
Dr. Henry:
I thank the Minister. I thank him for clearing up section
3. I understand it now.
Mr.
O'Donoghue: To reply to Senator Taylor-Quinn again, I
am-----
Mrs.
Taylor-Quinn: As sure as he can be.
Mr.
O'Donoghue: Yes. I am as sure as I can be. The
important point is interestingly that Articles 2 and 3 in
the 1937 Constitution were diplomatically silent on issue
of citizenship. They referred to the national territory
and they dealt with "land masses" but I do not
think they dealt with mind masses, if the Senator
understands what I am saying, nor masses of minds.
Mrs.
Taylor-Quinn: I thought Fianna Fáil was legislating
for 32 counties all the time.
Mr.
O'Donoghue: Section 6(3) of the 1956 Act, to put this
in perspective, provides that "Every person born in
the island of Ireland is an Irish citizen from
birth" - we will take that as the starting point.
Section 7(1) of that Act provides that
Pending the
re-integration of the national territory, subsection
(1) of section 6 shall not apply to a person, not
otherwise an Irish citizen, [in effect, by descent]
born in Northern Ireland ... after the 6th December,
1922, unless, in the prescribed manner, that person
... declares himself to be an Irish citizen.
It was
necessary, therefore, for the person to make a
declaration to become an Irish citizen. What we have done
here, in accordance with the Good Friday Agreement, as I
have already stated, is to give people an entitlement. I
instanced the ways in which they can be seen to exercise
that entitlement, but the important thing is that the
entitlement is the same for everybody.
Mr. Ryan:
The Minister has been helpful. I have two questions.
First, how does somebody who is underage indicate that he
or she wishes to be an Irish citizen? Second, in
particular, if the person needs somebody of full age to
make the declaration for him or her, what about families
in Northern Ireland where the children want to be Irish
citizens and the parents do not? Must the children wait
until they are 18?
Mr.
O'Donoghue: A person need not be of full age to
obtain Irish citizenship. For example, if the parents
were to make an application on his or her behalf for an
Irish passport, that would mean that the child was an
Irish citizen or they could decide to make a declaration
and the descent rule would then apply. In this respect,
it is important from the perspective of Senator
Taylor-Quinn's questions that I would point out that in
1956, the year in which I was born and the year of the
legislation on which we are speaking there was an
inter-party Government.
Mrs.
Taylor-Quinn: This has obviously impacted hugely on
the Minister.
Mr.
O'Donoghue: The next citizenship Act, about which
Senator Taylor-Quinn is very concerned and about which
she is exercising her mind, was in 1986. I congratulate
the Senators on their conversion to Fianna Fáil's way of
thinking.
Mrs.
Taylor-Quinn: On a less fundamental issue, of course,
than Articles 2 and 3.
Dr. Henry:
Will this affect the Irish football team?
Mr.
O'Donoghue: I sincerely hope that it will have a
beneficial effect, both on the rugby team and the soccer
team.
Mr. Ryan:
The rugby team could do with it.
Mr.
O'Donoghue: I think we should see some beneficial
effects.
Question put
and agreed to.
SECTION 4.
Mr. Ryan:
I move amendment No. 3:
In page 5,
line 22, to delete subsection (1).
This amendment
is part of my continuing opposition to the whole thrust
of what I regard as using a sledgehammer to crack a nut
or, more appropriately, using a JCB to plant a cabbage.
The subsection is entirely out of proportion to the
issue. I have no problem with an amendment either to
section 8 of the 1986 Act or to section 8 as amended by
the insertion of section 3 of the 1986 Act. I have no
problem with any attempt to tighten up those parts of the
Bill. We could debate the precise conditions forever and
it would be a worthwhile debate, but my problem is that
currently an Irish person who marries abroad knows with
certainty that their spouse can become an Irish citizen
subject to certain simple conditions. They know that all
they have to do is meet the conditions. We can argue
forever about what those conditions should be.
I genuinely
have some problems with the idea that if one is intent on
making sure one's spouse becomes an Irish citizen, one
has to check out whether they have a criminal record. The
phrase "good character" is fine, in general,
for applications for naturalisation. Spouses of Irish
citizens are in a unique and different situation,
however, and therefore we cannot attempt to transpose the
conditions that are applicable to naturalisation
generally. It would be helpful if we knew the scale of
the problem, but to take away the certainty from every
Irish citizen who marries a non-national and replace it
ultimately with the Minister's absolute discretion is
wrong. The simple way around this is that section 5(1)
should read:
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-----
It should not
read "may, in his or her absolute discretion",
but "if satisfied that they meet the
conditions". That would leave an Irish citizen who
marries a non-national certain that the spouse could
become an Irish citizen, subject to the conditions that
are laid down in sub-paragraphs (a) to (i).
It would deal
with the issue of abuse, although I am not necessarily
agreeing with all these conditions. If the Minister wants
a middle road, however, it is fair enough to tighten up
the conditions because some of them may be too loose.
Ireland is now an appealing place, for reasons of
prosperity. An Irish passport generally generates
goodwill everywhere. There is a case for tightening up
the conditions, but the Minister has made no case for
eliminating the certainty that already existed. The
conditions can be changed, but there is no reason to
eliminate the certainty. All the Minister needs to do is
dispense with a phrase that was taken over from the
provisions for naturalisation generally and inserted
here, but which is unnecessary.
This is a very
specific case and it is wrong to pretend that
naturalisation or citizenship on grounds of marriage is
in any way similar to naturalisation generally. This is a
very different situation. We have certain rights in our
Constitution concerning marriage and the sanctity of the
family. To put the relationship between husband and wife,
and the certainty that was there-----
Mrs.
Taylor-Quinn: Under strain.
Mr. Ryan:
-----in jeopardy is not justifiable. I do not want to
start using the sort of language again that the
Department of Justice, Equality and Law Reform brings out
in me on a regular basis, but that is the solution to the
Minister's problem. He can put in all the conditions he
wants, but the test has to be separate from his absolute
discretion.
Mrs.
Taylor-Quinn: I agree with what Senator Ryan has said
about this section. Increasingly, Irish people go abroad
to work. Young people, many of whom are graduates, get
jobs all over the world and then come back having married
somebody from another country. That is occurring on an
increasing basis. In addition, many Irish people work
abroad with voluntary organisations, including APSO,
Trócaire and Concern. They do wonderful work in the
Third World and meet people from the host country or from
other countries, who are engaged in similar voluntary
work. They may end up getting married and do so in the
knowledge that there are fairly straightforward rules and
regulations governing the situation relating to their
spouse. It is not commendable to change these rules at
this point. There may be a need to tighten up the rules
because problems have arisen in this regard and, up to a
point, we can see the Minister's position. However, young
Irish people are increasingly going abroad and coming
back to reside here with a wealth of experience. Making
things more difficult for them when they have got married
and are coming back to live here can put a huge strain on
married relationships and make life quite difficult. In
view of the demands and financial pressures on people,
especially when they are relocating from another country,
this section represents an added and unnecessary
pressure. The Minister should review his position on it.
Mr.
O'Donoghue: I have already indicated to the House the
difficulty which presents itself here. There is no
question that there has been abuse of this provision
whereby a person who is married for three years can
automatically be entitled to citizenship of this State.
There is no doubt about that abuse, details of which have
been communicated to my Department by the Department of
Foreign Affairs. I feel obliged to ensure that the abuse
is dealt with. It is important that the State is
protected and that the State's citizenship laws are
respected at home and abroad. I cannot allow that kind of
flagrant abuse to continue under any circumstances.
I do not think
anybody would disagree with me when I say that even the
condition which currently exists might militate against
the person obtaining citizenship. For example, at the
present time the person must be married to the other
person for three years. There are circumstances where
people's marriages break down within that period. It is
not correct to say that the current situation is without
any condition because the three year rule is there. The
present system of post-nuptial citizenship is
unsatisfactory for the reasons I have outlined because it
permits non-nationals to declare themselves to be Irish
citizens when certain conditions are fulfilled. It does
not contain safeguards against abuse, and that is what I
am trying to do. At the present time the marriage must be
subsisting and both persons living together as husband
and wife. If these conditions are fulfilled at the time
of the post-nuptial citizenship declaration, the
declaration is still valid even if they cease to be
fulfilled immediately afterwards. This does happen,
incidentally. In a recent case, the Irish partner
approached my Department and asked that the post nuptial
citizenship declaration not be accepted. However, if the
declaration is validly made we have no option but to
accept it.
It might be
agreed that a major defect of post nuptial citizenship
declarations at present is the absence of a good
character condition. A person of bad character should not
be granted Irish citizenship just because they happen to
marry an Irish citizen. That is a fair assessment.
We need to
exercise control over who is granted the privilege of
citizenship. For this purpose, I respectfully submit to
the House, the Minister must have discretion.
Naturalisation cannot be automatic. However, as I have
said all along, the Minister's discretion must be validly
exercised.
As of now, no
amendment has been tabled in this regard, other than what
Senator Ryan stated in his contribution. I had hoped we
would proceed with the Bill this afternoon but if Senator
Ryan wants to table an amendment I will give him the
opportunity to do so - it would be unfair of me to try to
rush the Bill through the House without providing that
opportunity. However, I must advise that I might not
accede to such an amendment. I will certainly consider
it-----
Mr. Ryan:
Why am I not surprised?
Mr.
O'Donoghue: If an amendment is tabled I will give it
every consideration, but my initial reaction is not to
agree to it. There are a number of reasons for that which
I will not go into now. However, the issue of absolute
discretion, for example, has been upheld by our courts.
The constitutional position is quite clear and was
confirmed in the recent very learned judgment in the
Laurentiu case by the incoming Chief Justice. If he is of
the view that the right of the Minister to discretion
needs to be reinforced or re-emphasised, I do not believe
Senator Ryan or anyone else will argue about its
constitutionality. However, the Senator might argue
clearly and logically that this discretion should not
exist and I am willing to listen to that argument. If he
wants to table an amendment, the Department of Justice,
Equality and Law Reform will give it every possible
consideration.
Mr. Ryan:
What is the legal position of the spouse of an Irish
citizen who would not otherwise have the right to reside
here? Does the fact that such a person is married to an
Irish citizen give him or her any right to reside here?
If I married someone who was not entitled to live here -
for example, someone who was not a resident of the EU or
the European Economic Area - would the fact that she was
married to an Irish citizen give her the right to reside
here?
Mr.
O'Donoghue: Yes.
Mr. Ryan:
I heard the advice from the Minister's official, which
was, "Effectively, yes". Therefore, anyone
married to an Irish citizen can, effectively, reside
here. The question then is about the conditions under
which they get citizenship.
My problem is
that the two situations are extremely different. In one
case, a person is married to an Irish citizen and is,
therefore, part of an Irish family and is, by definition,
in most cases the mother or father of children who are
Irish citizens if they were born here.
I have no
problem dealing with abuse. The engineer in me rebels
against the idea of solving an undefined problem. The
intelligent approach to any problem is to quantify it
first. I spend a month at the beginning of first year
chemical engineering telling my students not to start
solving a problem until they know what it is. The
Minister says he does not know how big the problem is but
he knows it is there.
I have a
constitutional right to freedom of speech, as does every
citizen of this State. There is no doubt that right is
abused. However, the fact that a right is abused is not a
reason to abolish it. That is the fundamental point. If
this were carried through to other areas, the Minister
would have an absolute discretion to decide who could
exercise the right to freedom of speech because people
abuse that right scandalously. The fact that a right is
abused is no justification for abolishing. The right to
trial by jury, the right to silence and the right to use
an alibi are abused but there is no reason to abolish
them. Similarly, the right to citizenship by marriage is
abused. However, I do not believe it is abused on a very
great scale and, even if it is, the entire resources of
the Government of this State cannot, or have not bothered
to, quantify it.
We could deal
with the genuine issue, which is abuse by people outside
the State for the most part, by the conditions the
Minister has inserted. However, the Minister should not
deal with it by the removal, not of the right of the
person to be naturalised but of the right of an Irish
citizen to have his or her spouse treated properly. That
is what is being taken away. We are saying to Irish
citizens who marry non-nationals that, even if they meet
reasonable conditions, we will still not give them any
right to citizenship, just because other non-citizens
living in the State have no absolute right. That
situation is entirely different. There is a reasonable
presumption that people who have been in a subsisting
marriage for three years are here for the long haul.
The fair
balance to deal with the Minister's problem - which he
cannot quantify but which I accept he believes is real -
is to tighten the conditions that must be met but to make
them objective conditions. In other words, while the
Minister must be satisfied, reasons must be given if he
is not satisfied. People can then either appeal that
decision or meet the conditions in a second application.
The Minister is
essentially saying he cannot be certain he has thought up
every possible condition and, therefore, he wants to
reserve this right. The Bill requires an applicant to be
of full age, good character, married for three years, in
a recognised marriage, living together as husband and
wife, have at the time of the application one year's
continuous residence, have during the four years
immediately preceding that period a total of two years
residence, intend in good faith to continue to reside
here etc. Those are enough hoops to put someone who meets
those conditions through.
While one in
every thousand might still abuse the situation, Irish
people's rights are important. An Irish citizen has a
right to be certain that his or her spouse has the right
to become a citizen. For example, if the spouse were
refused citizenship and the Irish citizen died, a person
with no children who had lived in this State for 20 years
could lose the right to reside in this State because his
or her spouse had died. Imagine that prospect for an
Irish citizen. A person could be refused citizenship for
reasons about which we do not know at the Minister's
absolute discretion.
Irish citizens
are entitled to certainty. We can debate the nuances of
that certainty and the degree to which there must be a
tightening up. That would be a useful and interesting
debate, particularly, as I said, if we had some evidence
of the scale of abuse. However, there is no room for
negotiation on the removal of the certainty which Irish
citizens used to have. That is the issue and the reason I
put down my amendment.
Mr.
O'Donoghue: There is no certainty about this matter
because there is provision in our law in regard to the
issue of people being married for three years and living
with one another for three years. Marriages have broken
down within a three year period. Let us be perfectly
frank about it - that happens. Senator Ryan seeks to draw
an analogy between absolute rights and constitutional
rights on the one hand and, on the other, a right which
has its basis in statute which can be removed by statute.
He went on to argue passionately and eloquently about an
amendment which he has not tabled.
a">Mr. Ryan:
The Minister is an intelligent man and can deal with my
verbiage without its being written down. He is a very
capable man; he does not need it to be written down.
There are colleagues of the Minister who might have a
problem, but he does not. He is well able.
Mr.
O'Donoghue: Thank you.
Mr. Ryan:
He is a good lawyer too------
Mr.
O'Donoghue: It is nice of the Senator to say so.
Mr. Ryan:
----- and he has argued on his feet in many court cases
in his time, so he need not play that one with me. That
is just an escape route.
Mr.
O'Donogue: It is not.
Mr. Ryan: We
can deal with this in an atmosphere of goodwill and we
can resolve the
size="2" face="Arial, Helvetica">issue -----
Acting
Chairman: The Minister without interruption.
Mr. Ryan:
----- or we can have a row.
Mr.
O'Donoghue: I accept that but I say genuinely to
Senator Ryan that if he wants to put down an amendment
for me to consider, I will do so. That can be done on
Report Stage. The opportunity is there for Senator Ryan
to put down an amendment if he wishes. I understand the
constraints of time and the pressures under which
Senators operate and so on. I am prepared to discontinue
today and to come back another day to consider Senator
Ryan's amendment on Report Stage. It would be less than
honest of me not to say to the Senator that my initial
reaction would be not to accede to his request, but I
will look at it if he wishes to put down an amendment.
The issue is
that the termination, for example, of the post nuptial
citizenship scheme will not adversely affect the
situation of non-national spouses in terms of their
joining their Irish spouses in this State. Any person who
marries a foreign national is entitled to bring his or
her spouse into this State. I do not seek to impose any
restrictions on them. The person concerned is entitled to
work, for example. There are no immigration limitations
operating which would inhibit non-nationals, who are
spouses of nationals, coming into this country. Present
immigration arrangements recognise the special position
of spouses of Irish nationals and, regardless of their
nationality, they are not required to hold work permits
before entering the employment market.
It is not a
requirement that a non-national spouse must obtain Irish
citizenship before coming here. If it were otherwise, it
would be most unfair. I accept that. Senator Ryan said
the engineer in him advocates not asking people to solve
problems which are not stated or evolved. Was is Lord
Longford who, when questioned about an unsolvable
problem, said that he had the solution to the problem and
that the solution to the problem was that there was no
solution? Life does not, as Senator Ryan will be aware,
conform to the very strict rules of chemical engineering.
If it were otherwise, I would suggest to him the
probability that Wordsworth would never have written Tintern
Abbey and I doubt if Caligula would have made his
horse a senator.
Mr. Ryan:
It is only horses who are senators now but we will not
say too much. The Minister is a very intelligent man.
Mr.
O'Donoghue: That is a good start.
Mrs.
Taylor-Quinn: Has Senator Ryan done an IQ test on the
Minister?
Mr. Ryan:
I would not rely on IQ tests to measure intelligence. The
Minister is playing games. He is perfectly entitled to
come in here, and we can argue the toss about all these
conditions. I have my doubts about the question of good
character - it is a peculiar one. However, he will not
explain why he insists on reserving this absolute
discretion to himself. Of what is the Department afraid?
What has made the Department of Justice, Equality and Law
Reform and the Minister determined to reserve for
themselves an unqualified right to say they do not care
if a person meets all the conditions, they will not get
an Irish passport? That is what it says and it is what
absolute discretion means. It means a person can meet all
the conditions, and the Minister knows there are people
living in this State who have met all the conditions
under section 15 of the 1956 Act and who have been
refused naturalisation at the Minister's absolute
discretion.
If he can do so
there, he can do so here. The trouble with doing it here
is that it is not only the rights of a non-national which
are in question but he is taking away the right to
certainly of an Irish citizen. The Minister is a trained
logician because I understand solicitors do some logic. I
am not talking about certainty about what will happen in
the future but about the certainty of knowing the
conditions which have to be met. The conditions currently
are that a person is legally married and remains married
for three years. The fact that some marriages break up
before three years is not what I am talking about. I am
talking about the fact that two people who are married,
one of whom is an Irish citizen, should know with
absolute certainty that after three years the non-Irish
spouse can make a declaration which makes him or her an
Irish citizen. If the Minister wants to add additional
conditions to that and to say that if he is satisfied
those conditions are met, the person shall be entitled to
be an Irish citizen, I would have no problem with that
because that deals with his issue, which is abuse. He can
then be satisfied that all those conditions are met. If
he is satisfied that the person is not, for instance,
intending in good faith to continue to reside in Ireland
after naturalisation, he can say so and the courts can
sort it out. However, he does not have to say so. He will
not allow himself to be asked to say so. Instead, he is
including absolute discretion. He has removed it from
where the courts have accepted it is reasonable, which is
where people who have no other connection with Irish
people - they are not married to an Irish person and are
applying strictly on the grounds that they are living
here.
Of course,
there are many reasons it might not be refused. This is a
different situation. We are potentially talking about the
father or mother of an Irish child or people who marry
when they are older and who have no children. We are
talking about the fact that they cannot be sure after
meeting any set of conditions that they are guaranteed an
Irish passport. That is not fair.
One can be
certain that citizens of Bulgaria, Romania, Nigeria or
Somalia married to Irish citizens who do not possess
Irish passports and who travel home regularly to visit
their families will encounter difficulties on each
occasion they pass through immigration control in this
country. It is more than likely that these people will be
delayed and obliged to prove their identity. That is the
nature of the system and it would be very difficult for
citizens of those four countries who continue to carry a
passport issued in any of them to re-enter Ireland having
visited their families. These people are entitled to know
the circumstances under which they can escape, if they
wish to do so, from that invidious position. However, the
Minister will not grant them that certainty. He is intent
on imposing on them a series of extra conditions with
which they must comply before they are allowed to apply.
The Minister continues in his desire to retain the power
of absolute discretion without being accountable to
anyone but, as he indicated, according to the principles
of natural justice. His understanding of natural justice
is that he does not have to explain his decisions to
anyone. That is a peculiar concept.
I suggest that
the Minister address the issues raised by inclusion of
the term "his or her absolute discretion",
which is the only major point of disagreement between us.
He indicated that I can table an amendment on Report
Stage which will be taken in the near future. Given that
the Leader of the House wanted to take all Stages today,
I congratulate the Minister on calming him down. However,
the Minister also indicated that he will probably not
accept the amendment if I table it. Will the Minister
inform the House why he feels obliged to retain his power
of absolute discretion. With all the conditions to which
I referred earlier fulfilled, why does he still believe
there is a need for him to retain that power?
Mrs.
Taylor-Quinn: Are we dealing with section 4 or
section 5?
An
Cathaoirleach: We are discussing section 4, amendment
No. 3.
Mrs.
Taylor-Quinn: I want to speak on the issue of
absolute discretion.
An
Cathaoirleach: On the section?
Mrs.
Taylor-Quinn: No, the issue of absolute discretion
arises on section 5 and I was wondering when I should
make my contribution.
Mr. Ryan:
Amendment No. 3 is directly related to section 5 which is
being substituted for the section that is being deleted
and it proposes said section should not be deleted. I do
not know how they can be discussed separately.
Mr.
O'Donoghue: We had a lengthy debate on this matter in
respect of section 1 and it is appropriate that we should
also discuss it in the context of section 4. I do not
doubt that we will also discuss it when we reach section
5.
Mr. Ryan:
We will certainly do so if progress is not made.
Mr.
O'Donoghue: I understand the reasoning behind Senator
Ryan's argument. Nonetheless, I wish to take this
opportunity to tease out what he had to say. It was for
that reason I asked him to table the amendment again on
Report Stage in order that we could consider its merits
and demerits to see whether his way of proceeding is
preferable to mine.
As stated
earlier, my instinct is to decline to accede to the
Senator's request and I explained the constitutional
position and that of the courts. Equally importantly I
have outlined that in exercising his discretion the
Minister for Justice, Equality and Law Reform of the day
will obviously be obliged to adhere to fair procedures
because natural justice must be dispensed. There is no
way around that. The Minister must exercise his
discretion in accordance with those rules and he must act
constitutionally because, as is clear in Irish law, the
High or Supreme Courts can inform him that he may not
proceed if the route he proposes to take is
unconstitutional.
The current
position in America is that if I were to marry an
American citizen I would not automatically obtain US
citizenship and I would be obliged to fulfil the
conditions which are laid down in that country. Even
then, however, the Executive in the United States retains
the discretion to decide whether I should be granted
citizenship. It is true that by virtue of being married
the path towards obtaining citizenship is considerably
less difficult. We propose to follow the American model
in this regard.
American
immigration law has often been quoted in this House and
elsewhere when discussing, for example, the issue of
asylum seekers. However, we are not going to enter into
that debate this evening.
Mr. Ryan:
We will do so later.
Mr.
O'Donoghue: Nonetheless, let it be said that the
legislation, by means of the measures I am proposing in
respect of non-national spouses, mirrors and reflects the
position in the United States of America. I am not saying
that everything the American Government does is correct.
However, I am stating that I agree with it in this
particular instance. The legislation before us reflects
the position which obtains in many countries across the
globe. It is not as if this is unique to Ireland, it is
common practice in many jurisdictions.
I wish to pose
a number of questions. When should the Minister be
satisfied? Is the Minister's satisfaction a subjective or
an objective matter? If it is felt that the Minister's
being satisfied that certain events have taken place is a
subjective viewpoint, could the argument not be made that
he or she exercising his or her discretion is doing
precisely the same thing, making a decision which is
subjective? If that is the position, surely the argument
can be turned on its head and it can be stated that we
are discussing semantics. If, on the other hand, the
argument were to be made that the Minister's being
satisfied was an objective test, his or her satisfaction
- even if the test was objective - would, of necessity,
still contain a degree of subjectivity. If that is the
position-----
Mr. Ryan:
I do not want to remove all of the Minister's powers.
Mr.
O'Donoghue: -----it would appear that the Minister is
still exercising a discretion, albeit subject to the
necessity that he bring on board the conditions.
If the Minister
were not to consider the conditions and exercise his
absolute discretion without doing so or if, for example,
he was to exercise the discretion and have undue regard
to the conditions, in my view he would be acting outside
the laws of natural justice and fair procedures. If a
Minister takes such a course of action, the courts are
there to deal with such an eventuality.
The phrase
"absolute discretion" has been considered by
the courts which held that it is constitutional. The
discretionary powers of the Executive in relation to
immigration laws have been recognised by the courts as
being valid in this respect. There is no easy solution to
the problem but there is no doubt that such a problem
exists. Senator Ryan might address his mathematical mind
to this problem.
I have an
obligation to the people of this country to ensure that
their citizenship laws are not abused by people who are
clearly doing so at present. It would be wrong of me to
exclude entirely Senator Ryan's proposed amendment
without giving it consideration. I ask him to submit his
amendment in writing on Report Stage and I will consider
it. I have told him my initial reaction to his amendment
but it does merit my consideration.
Amendment, by
leave, withdrawn.
Section 4
agreed to.
SECTION 5.
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