[matter omitted]
[I]f the Irish Free State were an absolutely independent State, in the sense in
which France or Italy is an independent State, all that would be necessary
would be to declare by law (a) what persons are Free State Nationals and (b)
the status of aliens when resident in the Irish Free State.
This brings us to the heart of our present difficulties and to the question
to which this memorandum is really addressed, viz: how are we affected, in
this matter of Nationality, by our past history, our present relations with
Great Britain and our partnership in the British Commonwealth of Nations.
3. POSITION AS ALTERED BY CREATION OF THE IRISH FREE STATE
[matter omitted] Since 1921, however, the position at home has completely
altered. There has come into existence - not into a doubtful and belligerent
existence but into an existence the legality and completeness of which no
Power questions or can reasonably question - an Irish Free State which
makes and administers its own laws and which is represented abroad by its
own representatives. It is desirable, however, before proceeding further, to
recognise fully and candidly that there are still certain points which are held
by the 'Imperial'publicists to differentiate the Irish Free State in international
law from such a nation as France, or, to take a case more analogous from
the British point of view, from the United States of America, which also arose
from the revolt of a British 'colony'but which succeeded in pushing its revolt
to the stage of absolute independence.
These points may be stated thus viz:-
| |
1. The Irish Free State Constitution is considered by the British merely as
a delegation of authority by the British Parliament (or as they sometimes
call it the 'Imperial'Parliament) to a subordinate Parliament: a delegation of the most extensive kind, but not a complete abdication on the part of
the 'Imperial'Parliament, which still retains, in their view, the right to legislate
for the Irish Free State. Section 4 of the British Statute entitled Irish
Free State Constitution Act 1922 reads as follows:- |
| |
|
'Nothing in the said Constitution shall be construed as prejudicing the
power of Parliament to make laws affecting the Irish Free State in any
case when, in accordance with constitutional practice, Parliament
would make laws affecting other self-governing dominions. |
| |
2. The status of the Irish Free State in the 'British Commonwealth of
Nations' is stated by the first Article of the Treaty of 1921 to be the same
as that of Canada: Canada, according to the Imperialist lawyers, is still a
'dependency'. |
| |
3. The oath prescribed by the Constitution to be taken by members of the
Oireachtas pledges fidelity to |
| |
|
'King George V. his heirs and successors by law in virtue of the common
citizenship of Ireland with Great Britain and her adherence to and
membership of the group of nations forming the British
Commonwealth of Nations'. |
| |
4. By the Constitution the executive authority in the Irish Free State is
vested formally in the King. |
| |
5. In International Affairs, the King is still bound according to such writers
as Keith, to take the advice of his 'Imperial'(i.e. British) advisers even
when e.g. appointing a Representative for the Irish Free State abroad. |
As against this, it may be remarked that:
| |
1. Article 1 of the Constitution states that the Irish Free State is a 'co-equal
member of the Community of Nations forming the British Commonwealth
of Nations'.
It is difficult to imagine how a co-equal member can at the same time
be a 'dependency'or be liable to be legislated for by another 'co-equal'
member. |
| |
2. The reference to 'common citizenship'in the Oath means little or nothing.
'Citizenship'is not a term of English law at all. There is not, in fact,
'common citizenship'throughout the British Commonwealth: the Indian
'citizen'is treated by the Australian 'citizen'as an undesirable alien. |
| |
3. By Article 2 of the Constitution
'All powers of government and all authority, legislative, executive and
judicial in Ireland are derived from the people of Ireland'.
No clearer statement of the right to complete independence of action
could be made. |
| |
4. We have, since the Constitution, made our position clearer by becoming
a separate member of the League of Nations and having separate
diplomatic representatives abroad and by the declarations obtained at the
Imperial Conference 1926. |
In practice it is, however, idle to analyse the Treaty, the Constitution, and the
British Acts implementing them, for any final statement of the position. An
armed contest of the most savage and irregular kind was being waged
between the two countries and it was imperative to make an immediate peace: the English were prepared to grant full and unequivocal powers of
self-government: they were not prepared to break all connection formally.
They insisted on such phrases as 'common citizenship', 'British
Commonwealth of Nations'and on the idea of the King as the theoretical
head of the State. The leaders on both sides had to try to conciliate angry and
excited followers. In this frame of mind vague and ambiguous language
which could do no practical harm was used to cover the points upon which
immediate agreement could not be secured and upon which, in fact, the happiness
and prosperity of either side did not immediately depend.
The English Imperialists consoled themselves with the reflection that some
phrases indicating 'unity'and monarchy were inserted in the agreement: the
Irish Nationalists consoled themselves, with more reason, on having achieved
a success which a decade before would have appeared incredible, and they
regarded what was left as ambiguous or unsatisfactory as matters to be
settled at leisure by future negotiation when the atmosphere of anger and
distrust had abated.
It would appear, then, to be the case that when questions arise between
the Irish Free State and Great Britain on any point arising out of the assertion
by the former and the denial by the latter of the former's right to have a
separate Nationality or to do anything which an independent sovereign state
can do, the solution of such questions is to be sought not in a legal debate as
to the precise meaning of certain phrases in the Treaty and the Constitution
and the British Acts implementing these documents (as if these documents
represented some unalterable law of nature or the final decision of a superior
Power) but by negotiation between reasonable men bearing in mind the real
facts of the position and bearing in mind particularly:
On the British side
That an obdurate adhesion to outworn 'Imperial'principles, an attempt to insist
on the supremacy of the Westminster Parliament over the Dublin Oireachtas, an
undue insistence on the 'unity'of the Commonwealth, will (apart from its effect
on the other dominions) be a strong provocation to the less patient of the Irish
to embark on a policy of complete secession, which while it might not profit the
Irish would create a serious problem for the British.
On the Irish side
That before embarking definitely on the policy of reducing our association
with England and the 'Commonwealth'to a minimum and of reducing the
'Commonwealth'to a number of independent States, without any common
bond except such agreements as may be arranged from time to time for
mutual convenience, it is necessary to realise that there are advantages as well
as disadvantages for the Irish Free State in the present arrangement and to be
quite sure that the separation policy does not involve more loss than gain.
[matter omitted]1
In a British Memorandum circulated as a preliminary to the Conference to be
held in October it is stated that this Act of 1914 was passed after consultation
with and in agreement with the Self-Governing Dominions and that it was
anticipated
| |
'that Parts I and III would extend to all those Dominions without reenactment
by the Dominion Legislatures and would be the only general
enactment of the principles and rules governing British nationality. It was
further contemplated that as regards naturalisation (Part II of the Act)
each Dominion would, in pursuance of the power given by Section 9 of
the Act, adopt that Part by a simple statutory enactment.' |
If the intention was, as stated, that Part I of the Act was intended to be an
'Imperial'Statute binding on the Dominions, it is somewhat singular that that
intention should not have been expressly stated in the Act itself. It is of course
possible to argue that Part I is binding on the Dominions by reason of its general
tenor and of the nature of the subject, but on the other hand there is a very
strong presumption that legislation by the Westminster Parliament does not
bind the Dominions unless it expressly purports to do so (this is of course apart
altogether from the constitutional point of how far the Westminster
Parliament should now legislate for the Dominions at all). In this connection
it is to be noted that the present Judge O'Byrne, then Attorney General, in a
minute addressed to the Minister for External Affairs on the 2nd April, 1925
(A.G's. reference 98-25), expressed the opinion that Parts I and III of the 1914
Act do not bind the Dominions. 'They purport', says the Attorney General, 'to
be general in their nature but like any other general enactment their operation
is limited to the area of legislative jurisdiction of the British Parliament'.
Without presuming to throw any doubt upon the correctness of this
opinion (which carries on its face strong evidence of its correctness), it may
be stated that it was probably given at a time when the Attorney General was
not in possession of full information and it immediately follows an observation
- in the same minute - of the Attorney General's to the effect that he
'does not think that the British Government has taken up the position that the
British Parliament has power to make laws binding Self-Governing
Dominions'. It seems probable that the attitude of the British Government on
this point is that the British Parliament has power to make laws binding the
Dominions, but that it would be wrong to do so without first obtaining the
concurrence of the Dominions in any particular case. In this particular case
the British Government assert that the necessary consents were given and
Professor Keith, at least, states explicitly that Parts I and III of the 1914 Act
are binding through the British Commonwealth.
The Dominions, however, either shared our Attorney General's view that
Parts I and III were not binding on them in law, or they thought it expedient
(whether to remove doubts or to assert their independence) not to allow
Parts I and III to operate proprio vigore in their territories, and they proceeded
to enact laws of their own[.]
[matter omitted]
It seems fairly clear from the action taken by the Dominions that there is a
general objection in the Dominions to relying on Imperial Legislation for a definition of the status of Dominion citizens as British subjects.
As regards the operation of the 1914 Act in the Irish Free State, there is of
course no doubt that the Act applied in Ireland (as part of the United
Kingdom) from 1st January 1915 (when it became law) until the setting up of
the Irish Free State, but the question arises as to how far the Act continued to
be operative in the Irish Free State after its establishment. On that point the
then Attorney General in a note to Mr Finlay (then Assistant Secretary to the
Department of Justice) on the 2nd April, 1925, expressed the opinion that Part
I of the Act continued to operate in the Irish Free State. As regards Part II of
the Act, he considered that Sections 8 and 9 did not apply but that Sections 2,
3, 4, 5, 6 and 7 did apply. On this subject, however, see separate Memorandum
on Imperial legislation and its application to self-governing dominions.2
6. PROPOSED AMENDMENTS OF THE 1914 ACT
There is at present, and has been for several years, in contemplation by the
British Government a further Bill to amend the 1914 Act in certain particulars.
Most of these particulars are of no interest to the Irish Free State but one
of them, dealing with the status of female British subjects who marry aliens,
was the subject of a statement by Mr. O'Higgins on behalf of the Irish Free
State at the Imperial Conference in 1926. The proposal in question arose from
the fact that in certain foreign states, e.g. the United States of America,
an alien woman marrying a national of such foreign state does not thereby
acquire automatically her husband's nationality. For example an
Englishwoman who marries a United States'citizen does not immediately
thereby become herself a United States'citizen, but in British law she loses
immediately on her marriage her British Nationality, with the result that
from the time of her marriage until she acquires American nationality (if she
ever does) she has no nationality. In order to avoid placing such women in
this awkward position the British proposed to enact that a British woman
marrying an alien should not lose her British nationality unless and until she
acquired another nationality. The Irish Free State delegation opposed this
proposal but offered the following compromise, viz:
That a woman who is a British subject, upon marriage to an alien shall
become an alien, except that where by the law of her husband's country she
does not acquire his nationality upon marriage she should retain her nationality
until the date of her acquisition of her husband's nationality or until six
months after the expiration of the minimum period within which under the
law of her husband's country she may acquire such nationality, whichever
may be the earlier.
No decision was taken by the Imperial Conference and the matter will
come up again for decision at the forthcoming Conference.
In the meantime the British Government has despatched to the Irish Free
State and has repeatedly asked for the observations of the Irish Free State
Government upon a draft Bill to amend the 1914 Act in certain other respects,
viz:-
arrangement which, if it could be secured, would be entirely to the advantage
of the Irish Free State, but which it is to be feared would not readily be
accepted by the British. That arrangement may be summarised as follows:
| (1) |
Every Dominion to have its separate nationality defined by its own laws,
precisely as if every Dominion were an independent State. |
| (2) |
The expression 'British Subject' either to be dropped altogether or if continued
to be continued as meaning merely a citizen of Great Britain and
Northern Ireland considered as a Dominion. |
| (3) |
An agreement not in law but in practice that (except in special cases - e.g.
coloured immigration to Australia from India) no irritating restrictions
should be placed on citizens of one Dominion entering another Dominion:
that special facilities should be offered to citizens of one Dominion wishing
to be citizens of another Dominion: and that citizens of any Dominion
travelling in a foreign country where such Dominion is not directly
represented should be entitled to receive advice and assistance from any
'British'representative in that country. |
8. CITIZENSHIP
Article 3 of the Constitution relates to Citizenship and reads as follows:-
| |
'Every person, without distinction of sex, domiciled in the area of the
jurisdiction of the Irish Free State (Saorstát Éireann) at the time of the
coming into operation of this Constitution, who was born in Ireland or
either of whose parents was born in Ireland or who has been ordinarily
resident in the area of the jurisdiction of the Irish Free State (Saorstát Éireann) for not less than seven years, is a citizen of the Irish Free State
(Saorstát Éireann) and shall within the limits of the jurisdiction of the
Irish Free State (Saorstát Éireann) enjoy the privileges and be subject to
the obligations of such citizenship. Provided that any such person being
a citizen of another State may elect not to accept the citizenship hereby
conferred; and the conditions governing the future acquisition and termination
of citizenship in the Irish Free State (Saorstát Éireann) shall be
determined by law.' |
The following points may be noted as regards this Article viz:-
| (1) |
The meaning of 'citizenship'is defined only to the extent of saying that
the citizen shall 'within the limits of the jurisdiction of the Irish Free State
enjoy the privileges and be subject to the obligations of such citizenship'.
There appears to be here a suggestion that the status of citizen of the Irish
Free State carries no privileges or obligations outside the jurisdiction of the
Irish Free State: that the Irish Free State citizen when he goes to France has
no 'privileges or obligations'as such. This may not have been intended at
all: on the other hand it may have been deliberately inserted in pursuance
of a British theory that the citizen of any Dominion, once he gets outside
his Dominion, must rely for support on his 'Imperial'status as a 'British
Subject'. The specific rights and obligations of the citizen within the Irish
Free State, are, of course, to be defined by law and many of them have
already been so defined, e.g. under the Constitution itself 'the citizen'is
given certain rights (see for instance Article 7 and 8) which are not given to mere residents: by the Electoral Act 1923 citizens, only, are entitled to the
vote: by the Juries Act 1927 no person who is not a citizen can be a juror. |
| (2) |
Article 3 states that certain existing persons are citizens but it does not
make any provision for the future except to say 'the conditions governing
the future acquisition and termination of citizenship in the Irish Free State
shall be determined by law'. No such law has been passed, nor has any
Bill on the subject been introduced in the Oireachtas. It is, of course,
perfectly clear that every person born in the Irish Free State whose father
was a citizen should be declared by law to be himself or herself a citizen
but even this has not been done. A draft Bill on the subject was discussed
several years ago but was not proceeded with. The delay is of course due
to a reluctance to legislate on the subject of citizenship until the allied
questions of Nationality and the 'British Subject'have been put in a more
satisfactory position, and, in particular, until answers are forthcoming to
such questions as |
| (a) |
Is every Irish Free State Citizen also, automatically, a British Subject (1)
while in the Irish Free State (2) when out of the Irish Free State? |
| (b) |
What is the difference, or the relation, between
(1) Accepting an alien as citizen of the Irish Free State and
(2) Making him a naturalised British subject pursuant to Part II of the 1914 Act. |
| (c) |
What is to be the policy, as regards citizenship, towards the English,
the Canadians, or the Australians? Are they to be admitted to citizenship
here only on the same terms as the French, the Germans, or the
Russians? Or - going to the other extreme - are they to become citizens,
on request, the moment they arrive in the country? Or is there to be a
middle course ... special facilities? |
| (d) |
At present immigration is controlled on the basis of admitting all
'British Subjects'without question, and excluding 'aliens'- that is,
non-British subjects, at pleasure, following the English practice. In
future are citizens only to be admitted without question? |
A contributory cause for the delay has been that there has been no real necessity
in practice, to do anything in a hurry. The present position might continue
for a long time without giving rise to any Departmental difficulties: the
real urge towards change arises from considerations of sentiment or National
dignity.
