1. Conversation of 27th November with British Representative.
Sir John Maffey told me on the 27th November that, during his visit to London a few days previously, he had heard that the nationality law in force in Great Britain was likely to be amended, and that consideration was being given to the question of using the opportunity of this amendment to meet our well-known objection to the inclusion of persons born in Ireland within the statutory definition of 'British subject'. The Commonwealth Nationality Conference to be held in January or February would not be primarily concerned with the question of the 'common status', but it might afford a suitable opportunity for discussing, and securing general acceptance of, the change which we wished to see made.
I told Sir John Maffey that we regarded the 'British subject' issue as arising primarily between this country and Britain. It was doubtful whether a Commonwealth Conference would be the best milieu in which to raise and settle it. For the reasons you had often explained, our position in the matter was entirely different to that of Canada, Australia and the other members of the Commonwealth. We got rid of the last traces of the 'British subject' status eleven years ago. Britain and the other members of the Commonwealth would probably want to keep it. There was a radical difference between the two positions. If we went to the Conference, therefore, we would probably be in a minority of one, and there was a danger of our insistence on our view - which, of course, there was no question of our changing - being regarded by others as evidence of a desire to disrupt the relations between Britain and the other members of the Commonwealth, which was no part of our intention. Unless the possibility of an entirely separate arrangement in our case were envisaged ab initio, I wondered whether there would be much good in our going to the Conference.
Sir John Maffey said that he did not think that a separate arrangement was excluded, but he suggested that I should discuss the whole matter in more detail with Mr. Archer with a view to clarifying the question whether or not it would be expedient for us to take part in the Conference.
2. Conversation with Mr. Archer on 20th December.
Mr. Archer and I discussed the matter on 20th December. Mr. Archer said he was going over to London for consultation on the subject early in January, and he was anxious to have our point of view beforehand. In the meantime, he was talking quite informally. He had no authority or instructions. I told Mr. Archer that, although I had hoped to be able to do so, I had not had an opportunity of discussing the matter with you in any detail. So far as I was concerned, therefore, the discussion was also quite unofficial and non-committal. The following is an account of our discussion.
We agreed that it was better to regard the question as arising primarily between this country and Great Britain. Mr. Archer said that the Dominions Office were reasonably confident that the other members of the Commonwealth would follow any arrangement adopted by the British Government.
3. Proposed amendment of British Act of 1914.
Mr. Archer told me that the British authorities had in mind a fairly far-reaching amendment of the British Nationality and Status of Aliens Act, 1914. The new Act would continue to recognize the status of 'British subject' but would not purport, as the 1914 Act does, to confer the status of 'British subject' on persons born elsewhere than in the United Kingdom. (The 1914 Act confers the status of British subject on all persons born 'within His Majesty's dominions and allegiance'). The new Act would probably set up a new category to be called 'United Kingdom nationals'. A United Kingdom national would be a British subject born in the United Kingdom or born abroad of a United Kingdom-born father. Mr. Archer agreed that the proposed statutory definition of United Kingdom nationals might be connected with proposals in Britain for the institution of compulsory military service.
4. Exclusion of Irish-born persons from definition of 'British subject'.
Assuming that the new Act followed this broad outline, the exclusion of persons born in this country from the definition of 'British subject' would automatically follow from a proposed re-definition of the term 'British subject' which would limit it to cover (a) any United Kingdom national, and (b) any citizen of any one of a list of countries contained in a schedule to the Act who is, under the law of that country, a British subject. The list of scheduled countries would contain Canada and Australia and the other members of the Commonwealth, and, in addition, Ireland (or, as the British would probably put it, 'Éire'). In other words instead of the Commonwealth-wide definition contained in the 1914 Act, the new Act would only impose the British-subject status to the extent to which it was already imposed by the law of the other Commonwealth countries concerned; having regard to Section 33 of our Act of 1935, our citizens would no longer be British subjects under the law of the United Kingdom.1
I told Mr. Archer that I thought that, from a strictly legal point of view, a re-definition on the lines he suggested would probably meet the case. I wondered, however, whether, from other points of view, a positively exclusive provision would not be better - 'No person shall be deemed to be a British subject who is not either, etc., etc.'. Mr. Archer said he did not think there was much good discussing actual texts at this stage. I said that that might be so, but that an important consideration to bear in mind was that, if the British Government were prepared to take advantage of this legislation to put an end to the application of the term 'British subject' to persons born in this country, it was obviously desirable that, whatever provision was included for that purpose should be absolutely clear and unambiguous in its terms. It would be a great pity, from everybody's point of view, if the political fruits of a constructive advance were lost by effecting it in a way which left it open to ill-disposed people to argue that there had really been no advance at all. Mr. Archer said he would keep this consideration in mind and impress it on his people.
5. Continuance of exchange of citizenship rights.
We then discussed how the present reciprocal exchange of citizenship rights between this country and Britain was to be maintained if the British Bill took the general form already indicated. I suggested that this might be done by a provision in the British Act to the effect that 'when, under the law of any of the scheduled countries, United Kingdom nationals enjoy rights and privileges equivalent to those enjoyed by citizens of the country concerned, then citizens of that country shall enjoy in the United Kingdom rights and privileges equivalent to those of United Kingdom nationals'. Mr. Archer agreed that something on those lines would be required and he assumed that, once Irish citizens ceased to be British subjects under the law of the United Kingdom, his authorities would be prepared to insert something of this kind to conserve the existing factual position.
It was pointed out that the mutual exchange of citizenship rights could never be completely unrestricted. I referred to our Electoral Act, Jury Act, Control of Manufactures Act, and Civil Service Regulation Acts, which limit rights to persons who are Irish citizens. Whatever provision is made to cover the mutual grant of citizenship rights would naturally include savers to cover cases in which rights will require to be limited to natural-born citizens.
6. Retention of British nationality by persons born in Ireland prior to enactment of new Act.
Mr. Archer went on to say that, if there was to be a repeal of the provision under which persons born in Ireland were British subjects under UK law, a point would arise which was of major consequence from the point of view of his authorities. The British Government could not agree that such a repeal should operate to deprive of British nationality certain classes of persons who are British subjects at present and wish to retain that status. They could not agree, for example, that Lord Montgomery2 and Sir Alexander Cadogan, who derived their British nationality from birth in Ireland, should lose their British nationality under the new Act. The problem was obviously a transitional one and what was involved was nothing more than a saver for 'acquired rights'. The British Government would want some safeguard on the point, however, and they would prefer a safeguard which did not put people to the point of having to make an actual choice or election between the two nationalities.
I told Mr. Archer that this was a point on which I should have to talk to you before expressing any view. The difficulty was to provide the safeguard the British authorities had in mind without thereby appearing to derogate from the general principle to which the new Act was intended to give effect. We discussed whether a solution for the difficulty might not be found in an ancillary provision at the end of the Bill to the effect that 'nothing in this Act shall operate to deprive of British nationality any person who, at the time of its commencement, was a British subject and wishes to retain that status'. Mr. Archer doubted very much whether the lawyers would accept so vague a provision, but thought that, if they would, it would have certain advantages. People would be British subjects only if they themselves wished to be regarded as such.
7. Consequential provisions.
We went on to discuss the consequential changes which the amendment of the British nationality law on the lines suggested would entail - provision for the acquisition of United Kingdom nationality by Irish citizens domiciled in Great Britain and of Irish citizenship by United Kingdom nationals domiciled here, the nationality of children born in Ireland of United Kingdom parents, and so on. We were inclined to think that no serious difficulty would arise as regards these matters if the general principles were once agreed.
8. Our representation at proposed Commonwealth Conference.
Mr. Archer thought that, if ourselves and the British could reach agreement on the broad principles of the special arrangement to be made as regards this country, the British authorities would be inclined to inform the other Commonwealth Governments of their intention to make provision in the Act on the lines agreed and to suggest to those Governments that, as each of them would probably wish to make provisions similar to those made in the British law, it would be desirable that we should be represented at the Conference. I told Mr. Archer that I would probably have a further word with him before he went to London. I hoped to report our conversation to you in the meantime.
9. Further conversation with Mr. Archer on 23rd December.
In a telephone conversation on 23rd December, Mr. Archer emphasised again the personal and unofficial character of what he had said to me on the 20th December. The consideration of the whole question was still in a very preliminary stage in London. No official decisions of any kind had yet been taken.
