The Government's proposals for a citizenship referendum are both rational and necessary, writes Michael McDowell.
The Government's proposal to amend the Constitution as it relates to citizenship has engendered a considerable degree of heat but if we shift the spectrum to shed more light on it, we can see clearly that it is a calm and rational response to a real source of abuse of our citizenship laws.
There is undoubtedly a fundamental principle at issue here, though not everybody recognises what that issue is. If we look at the 1937 Constitution, we can see that, by Article 9.1.2, "the future acquisition and loss of Irish citizenship shall be determined in accordance with law".
The Irish Nationality and Citizenship Act 1956, with its amendments in 1986 and 1994, was the manifestation in the Irish statute book of that position.
I have outlined in considerable detail in other places the changes brought about by the adoption of the new Article 2 of the Constitution (which, along with the new Article 3 accepted by the people at the same time, replaced the earlier assertion of a territorial claim on the Six Counties).
In brief, Ireland now confers, by operation of the Constitution rather than of statute law, an entitlement and birthright on anyone born anywhere in Ireland to be part of the Irish nation.
That's not quite what the parties to the British-Irish Agreement had in mind: that was made clear by Annex 2 to the agreement which excluded those born in Northern Ireland neither of whose parents was British or Irish or had an unlimited right of residence in Northern Ireland.
That is the situation which must now be addressed: there is a steady stream of people coming to Ireland, both legally and illegally, so as to ensure that their children avail of our present law so as to secure the entitlement to Irish citizenship.
We've heard the masters of the Dublin maternity hospitals; e-mails on radio from others elsewhere in the country involved in obstetric and neo-natal care; and from some of the mothers themselves, that the attraction of giving birth in Ireland, and thus acquiring Irish citizenship, outweighs in the minds of many mothers the risks to themselves and their children of travelling late in pregnancy and of moving away from hospitals in Britain or elsewhere where excellent services are already available.
It is quite clear that it's not just, or indeed even, the attraction of possibly getting the chance to stay in Ireland that is the draw: it is quite often the case that mothers-to-be arrive late in pregnancy (whether on holiday visas or otherwise), give birth and collect the child's Irish passport before leaving again.
I have no doubt that the attraction of acquiring Irish citizenship for one's child is such that many women, who in other circumstances would see the birth of a healthy child as their overriding priority, are being put under pressure to take the risk of travel to Ireland in late term so as to get these benefits for their children.
We can't address this by legislation alone: if that were possible, this Government would have done it long since. The strong and to my mind compelling advice from the Attorney General is that no legislation brought forward by the Oireachtas which sought to limit, or even defer, the right of any person born in Ireland to Irish citizenship would survive constitutional scrutiny by reference to Article 2.
The Government must now face up to this difficulty, and it is indisputably a serious difficulty; but we can only do so by asking the people to change the Constitution. This change is to the Constitution, however: those who seek to represent it as a change (whether unilateral or otherwise) to either the spirit or the letter of the British-Irish Agreement or the Multi-Party Agreement are well wide of the mark.
What is involved in the Government's proposal is a simple measure to restore to the Oireachtas some of the power that it has had, since 1937, to regulate the acquisition and loss of Irish citizenship. It will do so only as regards children born in Ireland to parents neither of whom is Irish or entitled to be an Irish citizen at the time of the birth.
It won't allow the Oireachtas to deprive Irish citizens in the North, or anyone else who is part of the people of Northern Ireland (as defined in the annex to the British-Irish Agreement) of their entitlement to be Irish citizens.
And, most importantly, it won't deprive children of citizenship per se or leave them stateless. The fact is that most children born in Ireland to non-nationals anyway derive citizenship of their parents' countries of origin by operation of the citizenship laws of those countries.
In any case where this does not happen (whether because the parents are stateless or through some other quirk of the citizenship laws of the parents' countries of origin), we are anyway obliged under the United Nations Convention on the Reduction of Statelessness, to which Ireland is a party, to make Irish citizenship available to any person born in Irish territory who would not otherwise acquire citizenship of some other country.
Section 6(3) of the Irish Nationality and Citizenship Act 1956, as amended in 2001, already provides for that, and will remain unaffected by the implementing proposals.
Nor will anyone who already has an entitlement to Irish citizenship by operation of present law be deprived of that entitlement.
So, in effect, the Government's proposal will only exclude Irish citizenship in cases where the child born in Ireland would be entitled to citizenship by descent of another state.
In such cases, the child, or its parents, will no longer be entitled to elect for Irish citizenship instead of the citizenship coming to the child through its parents.
This is a rational measure which will enhance the standing of Irish citizenship in the eyes of those of us who already hold it and who recognise, as Article 9 of the Constitution requires us to, that fidelity to the State and loyalty to the nation are indeed fundamental political duties of every Irish citizen.
It will also, as the International Organisation for Migration acknowledged in its seminal comparative study on international migration law commissioned by my predecessor and published in April 2002, ensure that Ireland is in a vital respect in a position to manage migration into the State in a sensible and proper fashion.
Michael McDowell TD is the Minister for Justice, Equality and Law Reform.