A referendum will restore citizenship law to that before the Good Friday deal, writes Carol Coulter.
The passing of a new Article 2 to the Constitution, guaranteeing the right to Irish citizenship to all those born on the island of Ireland, was part of the complex agreement negotiated to end the conflict in the North.
The "territorial claim" in the original Article 2 was replaced with the sentence: "It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation." This introduced a definition of citizenship into the Constitution for the first time. Previously citizenship was dealt with under Article 9, which states that anyone who was a citizen of Saorstát Éireann when the 1937 Constitution was enacted is a citizen of Ireland. Section 2 of that Article states: "The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law."
Therefore, there was no constitutional right to citizenship prior to 1998 apart from that of those born before 1937. The Constitution left it to the Oireachtas to decide who could become an Irish citizen. The proposed constitutional amendment seeks to restore this situation for non-nationals and their children born in Ireland. Because of the political ramifications of Article 2, and its place in the Good Friday agreement, it would be virtually impossible to amend. The Government has, therefore, taken the alternative route of proposing to amend Article 9.
This seems quite practicable, according to constitutional expert Dr Gerard Whyte, of Trinity College. However, he advocated any such amendment making reference to Article 2 for clarity, so that it would read "notwithstanding the provisions of Article 2", before going on to spell out the powers of the Oireachtas to legislate for the citizenship rights of the children of non-national parents.
The briefing document from the Department of Justice issued on Wednesday did state that the kind of legislation being contemplated would be outlined prior to the referendum on the proposed amendment.
It is open to the Government to propose a constitutional amendment making reference to proposed legislation, as the last government did when proposing the last constitutional amendment on abortion. But, as that experience showed, such a course is fraught with dangers, and makes the debate much more complex and technical than it should be.
It is more likely that the Government will propose a simple amendment stressing the rights of the Oireachtas with regard to legislating for citizenship in the light of Article 2, and then legislate afterwards.
However, none of this will clarify the status of the 1,100 Irish-born children of non-national parents, born before the Supreme Court ruling that removed the automatic right to residency, who now face the threat of deportation. There are no clear procedures to protect their rights, and no transparent criteria for granting, or refusing, residency status to people in this position, many of whom have not lived here for years. Perhaps the promised legislation will include it.