Tuesday, 30 November 2004
Dáil Éireann Debate
Mr. Costello: It is a pleasure to see the Minister in the House to take the debate. We had a rather difficult day last week in his absence, particularly in terms of trying to obtain the full and generous response from the Minister of State that we are inclined to expect from the Minister. He is present now, however, so we will expect great things.
Minister for Justice, Equality and Law Reform (Mr. McDowell): It is nice to know the Deputy missed me.
Mr. Costello: As the expression goes “Like a hole in the head”. Amendments Nos. 27, 28 and 29 are to be taken together. My concern is that while the Minister is doing the right thing in reducing the conditions for naturalisation, he is giving a rather narrow interpretation of what the phrase “Irish associations” means. He is limiting the situation relating to naturalisation by investment which was a questionable procedure widespread in the 1980s and 1990s. In some cases it led to questions about the desirability of some of the persons and some of the procedures used. In the process, the Minister is now giving a narrower interpretation to “Irish associations”. It would unduly limit proper associations with Ireland by Irish ancestry, for example.
The Bill refers to citizens who are alive. It defines Irish associations solely in terms of blood relationship affinity and that is a relationship by marriage — I have tabled an amendment relating to partnership — or adoption to an Irish citizen or a person who, if alive, would have been an Irish citizen. This suggests that anybody of Irish descent pre-1922, for instance, the descendants of Robert Emmet, would not be entitled to Irish citizenship except purely at the discretion of the Minister. They are not qualified under the terms of Irish associations. It might be hit or miss whether they would be the beneficiaries of that discretion. This is an unnecessarily narrow interpretation of Irish associations. There was a time when the interpretation of Irish associations was so broad that virtually everybody on the planet would be entitled to apply if they had ever come in contact with an Irish person. This proposal seems to lean too far in the opposite direction.
Any person who has made a significant contribution to the academic, social or cultural life of Ireland, other than a contribution in the nature of an investment, a financial contribution, would have a valid reason for having an Irish association and this is stated in my amendment. Significant numbers of people have made substantial contribution over the years. They have come to Ireland and contributed to academic life and to the literary, cultural, social and sporting life of the nation. Rather than the exceptional case of Jack Charlton applying for Irish citizenship because of his contribution in the sporting arena and being awarded it at the discretion of the Minister for Justice at the time, there should be a more amenable and accessible mechanism to allow a person to argue the case on certain criteria of contribution to Irish society, life and culture. We should have pride in our citizenship. We should be proud that those who contributed to the life of the nation are entitled to an avenue to Irish citizenship which is not solely at the whim of the Minister.
The interpretation is extra narrow. I agree that the Minister is correct to rule out once and for all the idea of naturalisation by financial investment, but he is not correct to narrow the interpretation to such a degree as to exclude the categories of persons to which I referred. I refer the Minister to the list of 2,000 Argentinians which I mentioned on Committee Stage. These Argentinians of Irish descent wrote to the Minister but because their Irish descent was at the degree of their great-grandparents, they were deemed not to be entitled to any criteria that would allow them to establish citizenship. It is a shame that there is not some avenue that could be used for them. Avenues exist for people who have never visited the country and have no intention of visiting it. The Argentinians who wrote to the Minister stated that not only did they wish to visit the country but they also wished to work here. They wished to apply for work permits as the economy in Argentina was in rag order a number of years ago. They may not all have wished to work here but some of them were of bona fide Irish descent and were proud of their Irish origins. There should be some means available by which they could agree to adhere to the criteria laid down and then apply for and be granted citizenship. They may be granted citizenship at the whim of the Minister but that is the height of it. I believe it is too narrow an interpretation and I ask the Minister to revisit the issue.
Mr. J. O’Keeffe: It is very useful to have this debate. I compliment Deputy Costello on tabling these amendments. The first thing that occurs to me regarding citizenship is that there should be clarity in our stance on the issue. There should no longer be room for an approach such as was adopted on Irish associations to allow the introduction of the passports for sale scheme. I will leave the issue of that scheme to one side for the moment as it is the subject of the next amendment. It was introduced by the back door under the guise of being an Irish association. It was considered to be an Irish association if somebody made a major investment in this country. That brought the chickens home to roost in the debate on the original Irish Nationality and Citizenship Bill in the 1950s.
It is agreed that no such scheme will exist in the future, but what will exist? The Minister provides in the Bill that it will be specified that a person is of Irish associations if he is related by blood, affinity or adoption to a person who is, or is entitled to be, an Irish citizen. In many ways Deputy Costello is trying to broaden the definition and I understand his argument. My approach is slightly different. I wish to see more clarity on the issue. The manner in which the Bill is framed shows an absence of clarity. What do the phrases “relationship by blood”, “relationship by affinity” and “relationship by adoption” mean? I do not believe it is useful to leave the wording in that fashion. It may be over-straining the issue to put it as Deputy Costello stated, that it is being left to the whim of the Minister, but there is much truth in his argument. I do not think it appropriate that definitions relating to such a serious matter should be left on the Statute Book without knowing how the provisions will operate in the years ahead.
I understand the issue of the Argentinians raised by Deputy Costello. They probably do not feel too good after last Saturday’s match when Ronan O’Gara did the business in the last 30 seconds. That is a separate issue but it raises the question of the Irish diaspora and descendants of those who went to South America many years ago and who retain their connections and bonds with this country. While I am not sure they were shouting for Ireland on Saturday, I understand the desire of many of them to be able to build on their links to Ireland and, in some circumstances, re-establish that citizenship. What will be the position in this regard under the provisions of this section? Is it a matter for the Minister of the day to make a decision? Clarity is required and the Minister should provide it. What guidelines will apply in the interpretation of this provision?
This underlines a much broader issue that arises on the question of immigration. I have no idea what is the policy on many aspects of immigration and citizenship. They are connected to a degree given that an Irish citizen is entitled to come here at any time and work, whereas a person without citizenship is not so entitled. This is one aspect of our policy or lack of it on the general issue of immigration.
It is incredible and unacceptable that a person who applies for citizenship and submits all the relevant documentation, having lived here for five years, is told that he or she must wait for a further two years before the application is even considered. The law provides that citizenship is available to those who have lived and worked here for five years, abided by the law and so forth. In such circumstances, it is not acceptable that, through administrative neglect, the response from the Minister’s office to such an applicant is that he or she must wait a further two years. There is no provision in law for such a response. Irrespective of whether it arises through incompetence, mismanagement or otherwise, it is not acceptable and must be addressed immediately.
The complexities involved in applications for citizenship are not such that they could not be dealt with much more efficiently. We receive no more than 3,000 applications per annum, which amounts to an average of just 60 applications per week. The general principle is that the law provides that citizenship may be granted after five years’ residence. The Bill does not provide that administrative neglect constitutes a ground for adding a further two years before consideration is given to an application. This practice should not be allowed to happen.
I will listen with interest to the Minister set out his interpretation of the selection of guidelines that will apply to applications made under this section during the short time he has left in his current position.
Mr. J. O’Keeffe: We will consider his application.
Mr. McDowell: It may not be in the Deputy’s gift either.
Mr. Costello: Perhaps the Minister will join a rainbow Government.
Mr. McDowell: All of these matters must be viewed in their statutory context. Part III of the 1956 Act deals with naturalisation. Section 14 of that Act states that Irish citizenship may be conferred on a non-national by means of a certificate of naturalisation granted by the Minister. Section 15 sets out the normal conditions attached to granting naturalisation. It states that upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant meets a number of criteria, which are then listed. I distinguish between my whims, of which, I confess, there are many, and my absolute discretion, which is always exercised in a ministerial manner.
Mr. Costello: Which is subjective?
Mr. McDowell: I distinguish between whim and discretion. Nearly every country of our kind vests a discretion in the executive on these matters and does not grant people who are not citizens legal rights against the express wishes of the Government of the day of the naturalising country.
As I stated, the criteria for the issuance of a certificate are set out in section 15. They include, for instance, that one must be of full age or, if a minor, have been born in the State. In addition, one must be of good character and have spent a period of one year’s residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, had a total residence in the State of four years. Effectively this condition amounts to the five year rule. A further condition is that one must intend in good faith to continue to reside in the State after naturalisation. Deputies would be surprised by the number of applications for naturalisation I receive which were written in England by persons who make clear in their application that they have no intention of residing here. A further condition is that the applicant has made, “either before a Justice of the District Court in open court or in such manner as the Minister, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.” This final condition derives directly from the terms of the Constitution, which states that fidelity to the nation and loyalty to the State are fundamental duties of a citizen. These criteria are termed the conditions for naturalisation.
Section 16 is a power to dispense with conditions of naturalisation in certain cases. It provides that the Minister, at his discretion, may grant an application for a certificate of naturalisation in a specified set of cases when a condition or conditions for naturalisation are not complied with. The first such case is “where the applicant is of Irish descent...” People of Irish descent are, as a matter of law, already entitled to have the conditions set out in section 15 relaxed in their case. That has been the law since 1956.
An application may also be granted where the applicant is of “Irish associations”. The question arose as to what was the meaning of this term. It was always open to a person of Irish descent to apply for citizenship, even though he or she did not comply with the conditions set out in section 15. In 1956 this right related to descent was extended to cover “Irish associations”. Under the passports for sale scheme, citizenship was effectively granted to people who had no connection with this country, except that they were making an investment in an Irish company. Section 16 sets out a number of other cases in which the Minister may waive some or all of the conditions of naturalisation.
In response to Senator Quinn’s Private Members’ Bill in the Seanad which sought by statute to bring an end to the passports for investment scheme, I undertook to narrow the meaning of “Irish associations” to exclude people who had no connection with the Irish State from being granted citizenship on the basis of simple investment. It is proposed to clarify that in section 10(2), which states:
The question has been asked, what is the distinction between blood and affinity. My good friend and former colleague at the practising bar, Mr. Henry Murdoch, has a legal dictionary which I recommend to anyone who can take a recommendation. He defines affinity as relationship by marriage, the relationship between a husband and his wife’s blood relations and between a wife and her husband’s blood relations. He goes on to state that there is no affinity between a person and the relations by marriage of his or her spouse. That is what affinity means.
Let us remember that “descent” means being descended from an Irish citizen, or rather an Irish person, a person who was born in Ireland or was Irish at some stage in their life. “Affinity” means relationship by marriage and is a broader concept than a blood relationship. There is adoption where people can be related who have no blood or affinity type relationship, but are deemed by process of law to be the child of another. They are, therefore, entitled to citizenship by virtue of adoption.
Section 12 of the 1956 Act allows the President, acting on the advice of the Executive, to grant Irish citizenship as a token of honour to a person, or to the child or grandchild of a person, who, in the opinion of the Government, has done signal honour or rendered distinguished service to the nation. It is worthwhile remembering that those people are not honorary citizens in the sense that one is an honorary member of a golf club or an honorary bencher of King's Inns, which is not the real thing. These people are citizens in the real sense, but it is given to them as a token of honour. This is done on the basis that our Constitution does not permit titles of honour or nobility to be conferred on any person by the State, but we can confer citizenship as an honour on a person if that person has done signal honour or rendered distinguished service to the nation. Citizenship could be granted for service to the Irish nation outside Ireland. For example, if one worked among Irish emigrants in Australia or if one enfranchised or emancipated Irish people in some country abroad, that would entitle the State to grant citizenship to such a person.
We had an interesting Committee Stage discussion on this and I referred to a few people who were granted honorary citizenship. Sir Alfred Chester Beatty, of the Chester Beatty Library, was granted citizenship in 1957 under section 12 of the Act. Mr. Tip O’Neill, the speaker of the US House of Representatives, was granted citizenship in 1986, as was his wife. Dr. Tiede Herrema and his wife were granted citizenship in 1975. Sir Alfred and Lady Clementine Beit were granted citizenship under this section in 1993. Jack Charlton and his wife were granted citizenship in 1996. Jean Kennedy Smith was granted citizenship in 1998 and Mr. Derek Hill, the celebrated artist, was granted citizenship in 1999. There is, therefore, a provision in Irish law for honouring people who do acts which are of huge service to the Irish nation. Benefactors to the Irish people at home and abroad have been honoured in this way. They are not merely people who have donated money or assets for the public use. Dr. Herrema was granted citizenship in very different circumstances, as recognition for the wrong that was done to him and for his courage and his positive attitude to Ireland notwithstanding the terrible wrong that was done to him in the 1970s. Jack Charlton and his spouse were granted citizenship, not for money spent in Ireland, but for their commitment to the sporting success of this country. Jean Kennedy Smith was granted citizenship because of her service to the cause of peace in Ireland and to the Irish American interest.
It is not the case that there is nothing that can be done in the Bill under the Irish associations, as it is proposed to amend it, for people who do such things. On the contrary, there is clear evidence from the actual use of section 12 that the State is in a position to recognise people who have done great things for Ireland and for the Irish, wherever they may be, by granting citizenship to them as a token of honour.
I am happy with the proposal that it should be by blood affinity or adoption because one can be a blood relative without being descended from an Irish person. If one’s brother becomes an Irish citizen by naturalisation, one is therefore entitled to be considered of Irish association. If one is the spouse of someone who was granted Irish citizenship, or descended from a spouse or whatever, that is not a blood relationship but it is affinity. I agree with Deputy O’Keeffe that the definition is broad, but by the same token, it is specific. Irish association means that one has some tangible connection, either as a matter of history or as a matter of fact, with someone who is an Irish citizen, or would be an Irish citizen if he or she was alive. The terms of the new subsection (2) intend to be a broad net. Deputy Costello wants to make it more specific. I thought there was consensus on Committee Stage that we wanted some latitude but that we also wanted some definition. I do not believe that the ministerial discretion referred to is particularly broad. It is not as broad as the presidential recognition provided for under section 12 of the 1956 Act. It is narrowed to people who have some connection with the State. It excludes granting of citizenship for bare investment in Ireland. That is not to say that somebody who comes here to establish a second Guinness brewery might not be of Irish descent. Such a person might merit the waiver of some of the conditions of section 15 of the 1956 Act on that account. We do not suggest that that is the case. The bare investment in Ireland should not confer on anyone the right to be a citizen.
I have met the points made by Senator Quinn during the Seanad debate fairly and squarely. I have broadened this section as far as I should, whereas Deputy Costello’s amendments would narrow it too much. When taken with section 12 of the 1956 Act, the Bill is reasonable in its present form. It is not likely to be the subject of abuse or to bring the granting of citizenship into disrepute, as it has been contended that it has been in the past. I do not propose to accept Deputy Costello’s three amendments for those reasons.
Mr. J. O’Keeffe: There have been delays of two years. It is dreadful.
Mr. McDowell: I agree with the Deputy that the delays in question are unfortunate. There were 1,293 applications for naturalisation in 2000, which is not long ago, but there have been 3,800 such applications so far this year. The substantial growth in the number of applications would not cause a significant problem in itself if it were not for the need to process 44,000 asylum applications during the same period. My predecessor and I had to use the human resources available to us to expedite citizenship and naturalisation applications, or to deal with asylum applications. It was necessary to deal with the asylum issue, for obvious reasons. We are now in a better position because the number of asylum applications is much lower and is likely to decline more rapidly in the near future. The House is well acquainted with the reasons for the decline in applications.
I assure Deputy Jim O’Keeffe that the system will change as a number of things happen in the Department of Justice, Equality and Law Reform. I hope to bring forward interesting proposals in the near future about the organisation of the naturalisation and immigration service as a single executive office, in effect. Next year, I will introduce a general immigration and residence Bill, which has been awaited by many Deputies for a long time. All these measures will happen on my watch. Deputy O’Keeffe seems to be worried that they will require an intolerably long period of time to be implemented, but they should all happen in 2005.
Mr. J. O’Keeffe: It will probably be the Minister’s last chance.
Mr. J. O’Keeffe: We will give the Minister another year.
Mr. McDowell: I am confident that a different picture will emerge as a result. The Department of Justice, Equality and Law Reform did not choose to have 44,000 asylum applications descend on it at a time when the number of citizenship applications was doubling or trebling. These things happened in conjunction, but not on a planned basis. Approximately 600 public servants are dealing with these phenomena in one way or another. That is a huge section within the public service.
I accept fully Deputy Jim O’Keeffe’s contention that the periods of time provided for in the Act should be indicative of the outcomes, but I have to accept that they are preconditions when applying for citizenship. One has to apply and the application has to be considered after that. Although it is not done in a restrictive way, it is far from an automatic process. It takes time to establish good character and to assess length of residence in the State. These things cannot be done in ten seconds on a “tick the box” basis, as if one were filling out an application for a driving licence. As it is a matter of discretion, the Minister has to consider, when the files arrive on his or her desk, whether the relevant factors that should be considered when making a discretionary decision have been taken into account. Those who think it can be an automatic operation, like an ATM, are wrong. There is an eight-month delay in the United Kingdom, which has a much larger office to deal with such matters and much more experience of significant volumes of applications for naturalisation. I agree that the delay is three times longer when one has to wait 24 months than it is when one has to wait eight months.
Mr. J. O’Keeffe: Full marks.
Mr. Costello: My amendments do not relate to the cases of those who have applied for citizenship having already resided in this country for the specified five-year period. The Minister has given figures relating to the number of asylum seekers and has outlined that 600 officials in the Department are working on the issue. During the previous Report Stage debate on this Bill, I gave figures for the outstanding cases since the system changed in February 2003. The applications of the parents of just 465 Irish-born citizens have been processed since that date. Some 37 people have been deported following the consideration of such cases and all but 45 of the applications have been refused. As 78 officials are dealing with the cases, approximately six cases per official have been processed over 20 months. If the workload involved in each case is not extraordinarily difficult, it seems that some officials are taking their time to process cases. I did not receive a reply to my comments during the previous debate. Is it true that since the scheme ended in February, following the verdict in the L and O case in January, just 465 applications made by the parents of Irish-born citizens have been processed? Is it true that 78 officials are working on such cases?
I will speak about my amendments. There is a thin line between one’s absolute discretion and one’s whim. If I have the absolute discretion to do what I like, I can do what I like without anybody else interfering or giving advice — nothing impinges on my decision. That sounds like a dictionary definition of one’s whim. I am not trying to make the categories of people who are entitled to naturalisation and citizenship more specific or narrow, but to widen them and to provide certain criteria. It seems to me that the Minister’s actions have narrowed the interpretation of the criteria which can be used for dispensing with the normal conditions for naturalisation. His definition of “affinity” is quite narrow because it relates to marriage alone.
That is not a dictionary definition of “affinity” by any means and I do not know if it is a legal definition of the word. Perhaps the Minister will point out where in the legislation it is defined as such. Why would it not encompass partners? Surely that is affinity.
Mr. J. O’Keeffe: I wish to touch on four issues in the brief time available to me. The first relates to definitions. The Minister said an Irish association can mean a person related by blood. I do not know if his explanation fully covers that point. What does that mean? How far back in generations can one go? There was substantial emigration from Ireland 200 years ago to an island in the Caribbean called Montserrat though such emigration was not voluntary. As I understand it, many of the population there have the surname Kelly or Murphy though on first sight they would not strike one as being of Irish descent. Would they be considered descendants of those people forced to leave Ireland? What would be their position if they wished to apply for citizenship? How far back can a relationship go in order to qualify under this provision?
My second point also relates to affinity. There is much discussion these days about what constitutes affinity in the context of civil partnerships. The Minister in a recent statement to his party colleagues appears to have taken on board the definition of civil partnership as contained in Fine Gael documents. Do people in a same sex relationship constitute an affinity? That is a developing issue in this country and is one about which I am not certain of the answer.
The third issue relates to timing. I am not criticising the public servants trying to cope with the flood of applications from asylum seekers. I understand the Government was not ready for that flood and was in danger of being overwhelmed by it at one stage. The Minister mentioned there are 600 staff dealing with such applications which are decreasing considerably. Yet, the time limit for those awaiting a decision on their application for citizenship is increasing. When I inquired some six or eight months ago of the time limit for the processing of applications I was informed it was 15 months. The last communication I had on the matter indicated that such applications would be looked at within two years but that there is no guarantee they would be finalised within that period. Dealing with inquiries as to a person’s good character and so on is not rocket science. I have no doubt that a standard letter could be sent to the Garda Síochána seeking reports on a person on the day his or her application is lodged. This is a management issue and the Minister is supposed to be the manager. This issue is causing a great deal of hardship for people and with proper management it could be very much improved.
The fourth issue relates to the provision of a helpline. People wishing to make inquiries of the Department of Justice, Equality and Law Reform are unable to get a response. One cannot get a reply to a letter or get through to personnel on the telephone. That is not the way to do business. I suggested some time ago — though I was not wishing to afford special priority to Members of the Oireachtas who represent many people — that an Oireachtas helpline be set up from which Members could ascertain the current state of affairs in relation to particular inquiries. Surely with modern technology it is not beyond the bounds of modern management to provide such a helpline. Once in place, such a helpline could be accessed by members of the public. Currently nobody, including Members of the Oireachtas, can make contact with the Department regarding the position of a particular application. That is no way to run a shop. I suggest to the Minister, from the point of view of providing a better service to the general public, that those issues should be addressed now.
Mr. McDowell: Wolfe Tone, Charles Stewart Parnell, Henry Grattan, Patrick Sarsfield and others would be people whose descendants by blood would be comprehended by this statute. The reference to Charles Stewart Parnell makes me think of the phrase “No man shall attempt to fix a boundary to the concept of Irish descent.” We should not attempt to put the ne plus ultra in terms of the longevity of a line of descent and we never shall.
The figures used by Deputy Costello are misplaced. It is not true to say that 78 staff in the immigration division have been engaged in the activity in question since February 2003. That is the number of people involved as of October 2004. Formal notice of proposals to deport have been issued in the cases of 3,239 parents to date. In many cases, those notices generated comprehensive representations as to why, on humanitarian grounds, the person should not be deported and in each case staff were required to study carefully the circumstances of the case by reference to the L&O case and the 11 different statutory grounds set out in the Immigration Act 1999. As a result of those considerations, I signed 345 deportation orders and decided that 45 persons should be granted leave to remain. A further 206 cases were found to involve parents who became citizens of the European Union on 1 May 2004 and no further action was required in that regard. Approximately 2,000 cases processed to the point of decision to deport or grant leave to remain can now be made, a decision which falls to be, and will be, made by me following enactment of this legislation.
As I pointed out during the course of the debate, such decisions are not easy and cannot be made on a broad brush basis. They comprise a wide variety of sets of circumstances. There are cases where relatively recent arrivals have two Irish born children and others where three of four children of the family in question have been looked after by relatives in their country of origin for a number of years. There are other cases where the families have told blatant lies, adding to the complexity and expense of dealing with their cases. Also, there are more than 100 cases before the High Court in the context of the judicial review proceedings and they require an enhanced level of consideration and tracking in terms of responding to the exigencies of litigation.
I do not accept the proposition that there has been under-performance in this area. It is a complex area. In the context of the passage of this legislation, I will adopt a pragmatic, generous and decent approach to those people currently in a form of limbo.
Mr. Costello: I do not disbelieve the Minister. Am I right in saying that of the 11,943 cases outstanding — the figure given to us by the Minister on the last day — one third have now been processed and the Minister will soon make a decision on the remaining 2,000 cases made since the
Mr. McDowell: I am not allowed to reply.
Mr. McDowell: I did not say that.
Mr. Costello: Perhaps it was the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, who said it. It was a figure I took down during a discussion. The Department has no idea of the full numbers but these were the ones identified.
Mr. J. O’Keeffe: He was speeding through legislation at the time.
Mr. Costello: The figures may have been a touch exaggerated.
There is a lack of clarity on the issue as Deputy O’Keeffe said. It would be better if we could have criteria that could be established. When one looks at the figures for persons outside that narrow remit, less than a dozen have been granted presidential citizenship. I am not sure if any had been granted it before Tip O’Neill and Chester Beatty who are exceptional people like Derek Hill and Jack Charlton. However, it is an exceptional matter that involves the President. If that is the total figure under this category, those who have made a contribution and been closely associated with Ireland, it seems the Minister is narrowing the interpretation.
Mr. Costello: I move amendment No. 28:
Mr. Costello: I move amendment No. 29:
Mr. J. O’Keeffe: I move amendment No. 30:
By common consent, the passports for sale arrangement is being closed off and will be buried by this Bill. There are no dissenting voices. However, it will be done, as I said on Second Stage, without a proper inquest into the scheme. We do not know the details of what happened under it. That is not the proper way to finish such a scheme.
The papers relating to the scheme were sent to the Moriarty tribunal seven years ago. However, I have no idea what has happened since or what will happen. In the absence of clarity on the issue from the tribunal, I want to ensure a full report on the operation of the scheme will be made available. My concerns would be put at rest if the tribunal investigated the operation of the scheme and produced a report thereon. However, I am not positive about this.
Why is such a report necessary? It is necessary because the operation of the scheme, particularly in its early days, left much to be desired in propriety and legality. We should not be a party to burying this merely by closing off the scheme and forgetting about it. That is not the proper way to do business in a democratic state.
The scheme was proposed in good faith in 1986 by my Fine Gael Party colleague, Deputy John Bruton, to encourage foreign direct investment when there was little such investment. It was a system used in other countries at the time. While the idea was floated by Deputy Bruton, it was not adopted by the then Government. I was a Minister of State at the time. However, it was introduced in 1988 by the subsequent Government. Problems arose because it was not placed on a statutory basis but introduced by the back door through the Irish association reference.
Even by the broad provisions laid down by the then Cabinet, it is obvious the guidelines were not followed; the paperwork was usually defective and those responsible for the scheme at political level did not operate it in a way that could stand up to scrutiny. This occurred under the watch of the then Minister for Justice, Mr. Raphael Burke, and his successor Mr. Pádraig Flynn. However, the scheme was largely under the stewardship of the then Taoiseach, Mr. Charles J. Haughey.
I am not pointing the finger at anybody. Let the tribunals do this, if they so decide. I simply want a proper historical record about what happened with the scheme and whether there was compliance with the law. What are the consequences in the instances where it was not? If there was a minor defect in the paperwork in the naturalisation of an individual, we cannot glibly say we must revoke his or her passport. I am only too aware of the consequences of so doing. I am also aware that in some cases a considerable investment was made in the State. Those who did so, did it as part of a quid pro quo bargain with the State. I am not looking for glib solutions, just the facts of the case. Only then can we decide what is proper and appropriate.
I am not raising issues about legitimate judgments made, claiming they can now be considered mistakes in hindsight. I am concerned that up to the establishment of proper administrative procedures, which I date to Ms Geoghegan-Quinn’s tenure as Minister for Justice, there was a free booter approach to the issue of passports. Proper procedures were not in place; guidelines, if any, were not followed and, in some cases, the law was not followed.
In hindsight, there are issues to raise about Máire Geoghegan-Quinn’s term of office and the watches of subsequent Ministers. If knowledge which has become available subsequently had been available then, other decisions might have been made. However, that is not my concern. One is not entitled to use 20:20 vision in hindsight to question people’s past decisions. My concern is that inappropriate processes were followed, especially in the early days of the operation of the scheme. We should not bury the scheme through legislation without ordering a full and clear report on it. If we do, there is a danger that we in this Parliament will be accused of a performing a whitewash, ignoring the facts and failing to do our duty as legislators.
I have tried to get to the bottom of this carry on by way of parliamentary questions. During the term of office of the Minister’s predecessor, Deputy O’Donoghue, his reaction to Dáil questions was akin to the approach of General “Stonewall” Jackson during the American Civil War. He was not interested and did not want to involve himself in an open examination of the issues or a process of accountability and transparency. This is my last opportunity as a parliamentarian to raise the matter in the House and to highlight the need to compile a proper report on the operation of the passports for sale scheme before we consign it to history. For this reason, I have moved my amendment.
Mr. Costello: I agree fully with the wording of the amendment proposed by Deputy Jim O’Keeffe. It is important to deal finally with the propriety of the operation of the passports for sale scheme in the State. It is a matter of substantial public concern and matters of public concern have, over the years, become the subjects of tribunals. As the Minister has said, the files in this case have been passed to the Moriarty tribunal.
Reports on the issue were compiled by Máire Geogheghan-Quinn when she was Minister and by the current Secretary General of the Department of Justice, Equality and Law Reform. The case files have been sent to the Moriarty tribunal, over which hangs a question mark as to its future conduct of all the modules which may come before it. While the Minister cannot approach the Moriarty tribunal and tell it what to do, there is nothing to stop him compiling a report and presenting it to the House to show us what happened.
There is a question mark over events. There has been a certain amount of scandal. There is a question as to why a previous Minister retained unprecedentedly the communications portfolio on becoming Minister for Justice, Equality and Law Reform. Why can we not have all the information on those who received passports under the investment-based naturalisation process, including the approval criteria, full biographical details at the time of application and where they are now? My later amendment proposes powers of revocation where a person has failed to adhere to the requirements of fidelity, loyalty and propriety in the process on which they were allowed to embark to become Irish citizens.
These are serious matters of public concern and there is a danger that if they are not dealt with by the Moriarty tribunal, there will be no further examination of them. I envisage no other opportunity or avenue to return to them if the Moriarty tribunal is not in a position to deal with them owing to the current strictures on its operation. Once legal fees are limited, one can bet one’s life that the schedule of the tribunal will not be as expansive and questioning not as intense. The House has already passed a motion to limit the schedule of the tribunal. It would be most appropriate to deal with these matters now and for the Minister to arrange to provide a report to the House.
Mr. McDowell: The effect of Deputy Jim O’Keeffe’s amendment would be to oblige me to order a report on the manner in which the investment-based naturalisation scheme was operated and to lay it before both Houses of the Oireachtas. I would be required to make the report available within three months. On a drafting point, the Deputy asks me in his amendment to detail “the propriety in the operation of the passports-for-sale scheme”. I think he wants me to deal with the improprieties rather than the proprieties.
Mr. McDowell: If I were to produce a report to the House within three months as requested, I have no doubt that it would contain the following. It would detail my long-held opposition to the principle which informed the scheme and my serious misgivings as to its legal propriety, even if the highest standards of procedural nicety were observed in every case. The report would document that, with the exception of my immediate predecessor, every Minister to hold my office since 1989 gave a wide latitude to the term “Irish associations” which enabled applications to be made under the scheme. The departmental files for a significant number of cases in the 1988 to 1994 period fail to evidence compliance with all the rules of the scheme as set out in what was then known as the statement of intent. I am able to speculate on the conclusions I would draw because they represent a synthesis of what I have said in this or the other House since my appointment or are contained in the 38-page report of the review group on investment-based naturalisation. I published the report and placed it in the Oireachtas Library shortly after assuming office.
Lest it be said that I have not been clear about this issue, the House should note the following. I was asked by the Taoiseach in the context of a controversy which arose in 2002 to examine the appropriateness of a naturalisation decision by Raphael Burke. The particular file on the decision is with the Moriarty tribunal. The tribunal sought all the passports for investment files in respect of persons naturalised under the scheme prior to 1997. Copies of the files were left in my Department, but I compared them with the originals to ensure they were complete. I found that they were. My examination, about which I informed the House, confirmed that 11 passports and naturalisations were granted in a manner which was, even by the lax standards which had frequently characterised the operation of the scheme in question, irregular and unusual, to use the words with which I spoke to the House in October 2002. I informed the House that, in short, the passports and naturalisations in question appeared to be effected in a manner which bypassed usual formalities and ignored failures by applicants to comply with elementary documentary requirements. It appears the passports in question were prepared in advance of the completion of the applications for naturalisation and it has been reported that they were handed over to the applicants by the then Taoiseach at a lunch hosted by them in a Dublin hotel.
As I pointed out to the House in October 2002 and before that, no departmental file is likely to carry any explicit evidence of gross impropriety or corruption on the part of any member of Government. Nonetheless, in the light of what we now know from the proceedings and reports of intervening tribunals, it would be fair to say that serious questions concerning the role of the then Taoiseach, Mr. Charles Haughey, would be raised in the minds of anybody examining the file with the benefit of hindsight. I am not in a position to supply any explanation from the contents of the file, which I have examined, for his apparent interest in having the case processed with such unusual haste. These may be matters on which the Moriarty tribunal may be able to cast useful light.
The file showed that the former Deputy Geoghegan-Quinn, as Minister for Justice, in the context of ongoing controversy about the scheme and in the context of parliamentary questions about the 11 passports in question, was sufficiently concerned by the contents to commission a report by a senior departmental official. She subsequently drew her concerns about the scheme to the attention of the then Tánaiste and now Taoiseach in November 1994 and, at his request, furnished him with a memorandum summarising the basis for those concerns. Both she and the then Taoiseach resigned their respective offices shortly thereafter and the rainbow coalition Government took office, although this had nothing to do with the particular case. The inquiry ordered by Minister Geoghegan-Quinn proceeded under her successor, Nora Owen. An interim report was completed during Minister Owen’s term of office and a copy of that interim report subsequently came into the possession of The Irish Times in September 1997, and was published in large measure by The Irish Times after Minister Owen had left office.
That file has been in the public domain from 1997 to now. The report I put before the House is before the House. The only questioning remaining is whether I could do in a three month period, without any statutory powers, what Mr. Justice Moriarty has been asked by this House to do with full statutory powers of investigation. I could not, within three months, attempt to unearth anything useful other than what I have already said to the House.
Mr. Costello: Of course the Minister could.
Mr. McDowell: I have absolute confidence in the Moriarty tribunal to visit this issue and to carefully examine it because it has the powers to do so and the legal terms of reference authorising it to do so. I have no doubt that it will do its job. Like Deputy O’Keeffe, I would like to know the full circumstances of the transaction in question involving the 11 passports. Simple curiosity and, I suppose, political partisanship on the part of any Member of this House would force us to seek the disclosure of the full facts but there is only one method I know of by which that can be done, and that is by a tribunal of inquiry which is given all the statutory powers to achieve that end.
There is no question of me whitewashing this issue. I have given every co-operation to the Moriarty tribunal to enable it get to the bottom of this matter. It may well be that it faces difficulties. I do not know, but it would be wrong of me to contact that tribunal and ask it to discharge its function in a particular way or to expedite its inquiry into that particular matter simply because I am closing off this loophole now.
I do not believe that the ending of the passports for investment scheme brings down the curtain in some irreversible way on this issue. If, at some stage in the future, there is any basis for believing that a different inquiry from the Moriarty tribunal would yield better results, that is a matter for this House to address at that later point. I have been as concise and clear as any Minister or Member of this House could be on the basis of the material that was furnished to me. I have had access to the same material Minister Owen, Minister Geoghegan-Quinn, the departmental official who provided the report, the Moriarty tribunal and the inter-departmental committee which prepared the report I put before this House had access to. I do not have any more brilliant insight or more extensive powers than all of those institutions to come to conclusions which would be an advance on those we already have and which will be drawn, if appropriate, by the Moriarty tribunal.
In those circumstances, I cannot accept this amendment, tempting though it would be to accept a three month mandate to second-guess the Moriarty tribunal in this way. There are other functions I have to do for the next three months, as the Deputies opposite will be keen to remind me if I take three months off to conduct this inquiry.
Mr. Costello: Was that on this issue?
Mr. McDowell: In regard to the files delivered to us, yes. It is not a dead issue. I apprehend from Deputy O’Keeffe’s attitude that he believes this issue is being allowed to slip into the slumber of history. It is not. It is being fully investigated by a tribunal with full powers of investigation and terms of reference which authorise that investigation. I cannot prejudge the outcome of that investigation but I can say that whatever investigation is happening in the Moriarty tribunal is doubtless much more effective than anything that I, without any statutory powers, could attempt to do unaided.
Mr. J. O’Keeffe: First, I want to make it clear that I do not want to interfere in any way with the operations of the Moriarty tribunal or any tribunal. My concern is that, in many ways, we are asking the tribunals to wind up their business. That is the general message that is being sent to the tribunals and we are doing that in a situation where I have had no evidence that the Moriarty tribunal has focused on this aspect of its inquiry. That is my problem in respect of the Moriarty tribunal. If we set up a tribunal in the future, I want to give notice that I will insist on and, if necessary, table an amendment to the effect that we must get a report from it on what is happening every six months. We do not know that and it is in that absence of knowledge that I am trying to find a way to ensure we get the full facts before we consign the passports for sale issue to history.
Mr. McDowell: I would be curious.
Mr. Costello: Would the Minister’s comrades be curious?
Mr. J. O’Keeffe: Having taken an interest in this issue I have made it clear that when proper procedures were put in place they were put in place by a Fianna Fáil Minister for Justice, the former Deputy Geoghegan-Quinn, and I give her due credit for doing that at the time.
Mr. McDowell: It was only a joke.
Mr. J. O’Keeffe: ——where he believes I would not be open to allowing a period longer than the three months. I take his point that the word “impropriety” might be more appropriate than the word “propriety”. I am open to that from the point of view of making my amendment more acceptable.
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