The purpose of the citizenship amendment to the Constitution could be met by simple legislation and does not require a referendum, writes Colm Mac Eochaidh
The Minister for Justice wants to introduce legislation preventing citizenship being bestowed on children born in the State to recently arrived non-national parents. He says that Article 2 of the Constitution prevents him from doing so and that is why we need a referendum. I believe he is mistaken.
Article 2 says: "It is the entitlement and birthright of every person born in the island of Ireland . . . to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland."
The Minister interprets this as meaning that every person born in the State is automatically a citizen. Even if he correct in his view, and I do not believe he is, the need for a referendum is not established.
The first thing to say about Article 2 is that it is difficult to understand. It addresses the concept of nationality and the separate concept of citizenship. The first sentence seems to be clear - every person born on the island has a right "to be part of the Irish nation".
Whatever this may mean, it does not mean that all those born in Ireland are automatically citizens of the State. The second sentence says that all persons "otherwise qualified" to be citizens are also entitled to be "part of the Irish nation". The difficulty arises from the use of the word "otherwise".
The Supreme Court did not decide what the article meant, and so its precise meaning remains unclear. Stretched to its fullest, it is possible to argue, as the Minister does, that it provides for automatic birth right citizenship. Taking it in its literal sense, it seems to provide that those born in the State are merely qualified to be citizens. However, it may have a much narrower meaning - that persons born here and persons who are citizens (however acquired) are part of the Irish nation.
But, whatever the meaning of Article 2, the Minister appears to forget that it must be read with Article 9.1 which says: "The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law." Even if the Minister is right when he says that Article 2 means that every person born in Ireland is a citizen, the Oireachtas is entitled to make laws saying when a person loses citizenship. Article 9 also says that: "Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens."
It seems to me that the State is entitled to define the circumstances when persons shall lose citizenship (and nationality) by reference to their constitutional obligations to display "fidelity to the nation and loyalty to the State" and by reference to such other criteria as may be consistent with the Constitution. Children, though citizens, are not capable of carrying out the political duties required of all citizens by the Constitution. The courts have stated that the citizenship of children is exercised on their behalf by their parents. A parent who arranges the birth of her child in the State for the sole purpose of acquiring Irish citizenship for the child and EU rights for the family cannot be said to be displaying "fidelity to the nation and loyalty to the State".
The State, in accordance with the Constitution in its present form, is entitled to make laws removing citizenship or declaring that citizenship is lost by reference to the conduct and intentions of the child's parents.
I understand Article 2 to mean that persons born on the island are merely qualified to be citizens, and that the State is entitled to make laws on the circumstances when persons become citizens. Our present law does precisely that.
Section 6 of the Nationalities and Citizenship Act, 1956, says: "Every person born in Ireland is an Irish citizen from birth." If the Minister insists that this provision is being seriously abused, and if he can establish this by reference to relevant data (which he refuses to produce), it is open to him to propose the removal of the right acquired by fortuity of birth. This can be achieved by a simple amendment to the 1956 Act.
If Article 2 merely states who is qualified for citizenship, our legislation can say who shall acquire citizenship under Article 9. There would be nothing unconstitutional about interrupting the progress from qualification for citizenship to acquisition of citizenship, on the basis that a child was born here to non-nationals with no desire or right to remain in the State after the birth.
The Constitution should only be amended where the need to do is clearly and unambiguously established. It should be the last resort of legislators. In this case, it is the Minister's first port of call.
The Government should abandon this opportunistic referendum and ask the All-Party Committee on the Constitution to consider the constitutional provisions on citizenship and nationality and whether any change is needed in the Constitution to prevent persons - whether non-national parents or Irish tax exiles - from using Irish citizenship as a flag of convenience.
Colm Mac Eochaidh is a practising barrister