Do we really want two classes of children growing up side by side? Yet that would be the effect of the referendum, writes William Binchy.
At this stage in the public debate on the citizenship referendum, two notable facts have emerged. The first is that Mr McDowell has adopted a strategy of denigrating and dismissing opposing arguments rather than addressing them. The second is that the referendum proposal is far more than a simple tidying up of a loophole: important issues of human rights are at stake.
Mr McDowell proposes that in the future children born in Ireland whose parents are not Irish should be denied citizenship. This will have a range of legal effects, such as exposing the children to the possibility of deportation . It will also place the extent of their constitutional protection under a shadow, since a number of the important provisions in the Constitution are expressed to attach to "citizens" or "the citizen" and the Irish judges have yet to agree on what precise protection is afforded to non-citizens.
The law in this area is complex and uncertain. I have described some of the uncertainties in a paper at a recent conference organised by Trinity College's Law School. It may be accessed at http://www.tcd.ie/Law/BinchyCitizenship.html. Rather than try to answer concerns, such as these, Mr McDowell has simply asserted, without legal argumentation, that his proposal will create no such constitutional shadow over the full protection of the rights of these children. Ireland has international human rights responsibilities under a range of covenants and conventions. One of these is the UN Convention on the Rights of the Child, which gives centrality to the best interests of the child.
Mr McDowell's proposal does not deliver on this promise. Instead of seeking to give priority to the welfare of the children, it targets innocent children and denies them civil rights which all children in Ireland in their circumstances have had since Ireland achieved its independence.
The denial of citizenship to children does not necessarily constitute a breach of the convention since a country is always free to discharge its international obligations without resorting to its constitutional framework. The difficulty here is that the Constitution plays a crucial role in the protection of citizens and the proposed amendment subtracts from the framework of this protection for some children. Assume for a moment that Mr Justice Henchy - one of Ireland's foremost constitutional jurists - was right when in Nicolaou's case he held that non-citizens may not avail themselves of the guarantees of equality of citizens and of the protection of the personal rights of citizens contained respectively in Article 40.1 and 40.3 of the Constitution. Where does that leave Ireland's undertaking to protect children and make their best interests a paramount consideration?
At present I am attending the third session of the UN Ad Hoc Committee on the drafting of a convention on the protection of the rights and dignity of people with disabilities. The committee is negotiating a draft text completed last January by a working group. Under Article 4, states parties "undertake to ensure the full realisation of all human rights and fundamental freedoms for all individuals within their jurisdiction without discrimination of any kind on the basis of disability". Note the words "all individuals within their jurisdiction". They are taken from Article 2 of the UN Convention on the Rights of the Child. They embrace citizens and non-citizens.
A counter-proposal from the EU seeks to remove any such specific language. It is not yet clear whether the EU will also try to exclude Article 16, which deals specifically with children with disabilities and involves an undertaking by states parties to ensure that each child with a disability "within their jurisdiction" shall enjoy, without discrimination on the basis of disability, the same rights as other children.
If the disabled child of a Filipino nurse, born in Ireland, is denied full access to education or if the disabled child of an unsuccessful asylum-seeker is deported, what rights can they invoke under the Constitution where they no longer can invoke their status on citizens? Would the convention on the human rights of persons with disabilities be better or worse if they were limited to citizens? Irish constitutional protection has to be seen in the wider perspective of international human rights.
There is a real problem here. Mr McDowell's proposed change would lead us in a direction opposite from that proposed by the Constitution Review Group and the Council of Europe's Commission on Racism and Intolerance Convention, both of which recommended that the Constitution be amended to extend the protection of its fundamental rights provisions to non-citizens.
At a time when international human rights instruments call on us to give priority to the welfare of children and the principle of equal dignity of human beings, Mr McDowell is encouraging us to create a divided society in which children born in Ireland, playing in the same playgrounds, will be separated into citizens and aliens.
That is a mean and unkind social vision which people of goodwill should not endorse.
William Binchy is Regius Professor of Laws, Trinity College Dublin