The Human Rights Commission issued today its observations on the proposed Referendum on Citizenship.
On the 7th April, 2004, the President of the Commission, Dr. Maurice Manning wrote to the Minister for Justice, Equality and Law Reform expressing concern regarding a number of aspects of the proposed referendum. On April 13th, the Commission was requested to consider the draft Irish Nationality and Citizenship (Amendment) Bill, in accordance with the Commission’s function under section 8 (b) of the Human Rights Commission Act. "We welcome the referral by the Minister of the proposed draft legislation. However, we reiterate our initial view that the proposed referendum may in itself raise issues relating to the protection of human rights and on a closer analysis of the detail of the proposed amendment, we believe that initial view to be justified" stated Dr. Manning.
The Commission decided, at that stage, that it would defer consideration of the draft legislation and concentrate instead on the human rights implications of the proposed Referendum on Citizenship as the legislation would only be required should the referendum be passed. On the 27th of April the Commission issued its preliminary observations in view of the tight time-frame prior to the consideration of the referendum in the Houses of the Oireachtas.
The Commission has now had the opportunity to further consider the matter in some detail and to examine some of the points raised at that time. The Commission reiterates its position that, in examining the proposed referendum, it does not perceive its role as being to advocate for or against the proposal and stresses that its aim is to highlight the human rights issues that may arise in the context of the proposed amendment, to seek clarification in relation to those issues and to make recommendations as to how they may be addressed, where that is possible.
The Commission, in its observations, makes the following points, inter alia:
– In the view of the Commission, any proposal for constitutional change should be accompanied by a serious and comprehensive consideration of the potential impact of the proposed change on the enjoyment of constitutional rights. In this regard, the Commission is concerned that the Government chose not to consult with the Human Rights Commission, or indeed the All-Party Committee on the Constitution in advance of publishing the proposed Bill, or in advance of taking the decision to proceed with a referendum on this issue.
– The proposed amendment to the Constitution raises concerns about the future constitutional protection of children born in the State of parents who are not Irish citizens. In particular the Commission is concerned at the potential impact of the proposed amendment on the existing right set out in Article 2 of the Constitution to be part of the Irish Nation and on the fundamental rights set out in Articles 40-44 of the Constitution, particularly those that are explicitly restricted to citizens.
– Under international human rights law, the Government has a clear duty to show that the principle of ‘best interests of the child’ has been fully considered in bringing forward the present proposal. Insufficient evidence has been brought forward to demonstrate that such a consideration has taken place. The Government is also under an obligation to ensure that the proposed initiative will not lead to discrimination in the enjoyment of rights or will not be applied in a discriminatory fashion. On this point the Commission submits that the selection of one particular category of persons for restriction of their rights must be justified on objective evidence and pressing social need.
– In this regard the Commission believes that much of the data so far provided by the Government to justify the proposed amendment has not been adequately researched or analysed and that much of the evidence offered in support of the proposed amendment seems to be vague or anecdotal in nature. Specifically, the Commission believes that the data offered is insufficient to allow anyone to draw inferences as to the motives of non-national parents giving birth in Ireland to the extent argued by the Government. Furthermore, the Commission believes that the Government has not demonstrated that all other means of addressing the matter of public concern identified which would be less detrimental to the rights of children have been exhausted.
– The Commission believes that there is at least an arguable case as to the potential impact of the proposed amendment on the Good Friday Agreement. In view of the complex issues surrounding the interpretation of the Agreement the Commission regrets that the Government did not take the opportunity to refer the matter to the Joint Committee of the two human rights commissions on the island, and/or to the parties of the Northern Ireland Assembly, who have a prescribed role under the Multi-Party Agreement to review material changes to the Agreement or relevant legislation.
Copy of the Human Rights Commission’s submission is attached for your information. A spokesperson from the Commission is available for comment.
For further information, please contact:
Gavin McSpadden
Tel. 01 8589622
Mobile: 087 2286097
Email: gmcspadden@ihrc.ie
Click here to download Observations_on_the_Proposed_Referendum_on_Citizenship.doc (223 KB)