Extracts from a letter from John J. Hearne to Stephen A. Roche¹ (Dublin)

I send you herewith the draft of heads of a Nationality Bill. The draft is the result of an effort to measure how far the provisions of the several sections of the Nationality and Status of Aliens Act, 1914 to 1922, would, if enacted in substance in a statute of the Oireachtas, meet our immediate internal and international need for legislation on the subject of nationality. It may be useful therefore as a beginning and as a basis of discussion. Perhaps you would be so good as to examine it with a view to determining how far you think the general scheme of the Nationality and Status of Aliens Acts, 1914 to 1922, fits our requirements here. If the general scheme of those Acts - by which I mean e.g. the law enacted therein as to the status of aliens, married women etc., the naturalisation of aliens, the circumstances in which nationality is lost, registration abroad of nationals, and the provisions relating to procedure and evidence - fits the requirements of the Department of Justice, we could leave over the drafting of the sections of the Bill relating to those matters until a later date. The relevant sections of the draft enclosed² would be sufficient as an instruction to our delegates to the London Conference on the general scope of our legislative proposals in that regard.

Several matters of substance fundamental to the policy of the Bill would however require careful consideration. We shall need to consider, for example, the extent of the group or class of persons declared by the first section of the Bill to be natural born citizens of Saorstát Éireann. It may be that we shall be asked at the London Conference to agree in effect not to enact a law declaring persons to be natural-born citizens of Saorstát Éireann who would not have been included in the group created natural born British subjects by virtue of section 1 of the Nationality and Status of Aliens Act, 1914, in its application to Ireland. Discussion will inevitably at some stage centre round the question of the group or class to be enfranchised in the various States of the Commonwealth. You will recollect the paragraphs relating to Nationality in the Report of 1929. The Report says at paragraphs 76, 77 and 78:

Proceeding on the basis of these propositions our idea is that when the group of persons to be enfranchised is determined every person enfranchised here will by reason of such enfranchisement have all the privileges heretofore enjoyed by British subjects. Applying this idea - which we would erect into a rule - to the other States of the Commonwealth we suggest that what it should come to is this: heretofore the law of nationality radiated throughout the Commonwealth from the British Statute Book as its ultimate authority, in future the citizens of each State will look to the law of that State itself for the ultimate legal basis of their status. And that status will, notwithstanding the change in its legal foundation, be the same as heretofore by reason of the nature of the Commonwealth association and the agreements reached.

Mr. Lapointe, Canadian Minister for Justice in the late Mackenzie King Cabinet, in a singularly felicitous illustration given in the course of some remarks at the London Conference of 1929 likened the citizen of a State carrying its passport to a ship flying her national flag. As you are aware it has been suggested in the Report of 1929 that once an agreement is reached within the Commonwealth as to the qualifications for ownership of a ship to govern admission to registration, a ship owned in any part of the Commonwealth within the terms of the agreement will upon being registered in that part be entitled to all the benefits and privileges heretofore accorded to 'British ships' generally. That is the analogy on which we would seek to work out our ideas on nationality. And as section 1 of the Merchant Shipping Act, 1894, has been suggested as the basis for an agreement on the qualification for ownership of ships so an agreed basis of citizenship will have to be worked out. Once the agreed basis is fixed the question of status is solved. That is our reading of the words in paragraph 78 of the Report of 1929:

Natural born citizens

A fundamental term of the agreement would, it is thought, relate to the group or class to be enfranchised as natural born citizens and for that purpose section 1 of the Nationality and Status of Aliens Act, 1914, may be suggested to us as a basis of discussion. Taking that section as it stands what would be the furthest that we could go in accepting its provisions as a term of the proposed agreement? The furthest we could go would, it is submitted, be to agree that the principle of that section would be embodied in our law. To put it in another way we could agree that natural-born citizenship of Saorstát Éireann would be confined to such persons who if born in Saorstát Éireann would have become natural born British subjects by virtue of section 1 of the Nationality and Status of Aliens Act, 1914, if that section were still in force, and also, such persons who, born outside Saorstát Éireann (whether within or without the Commonwealth), would have become natural born British subjects by virtue of the said section 1 if it were still in force. Supposing that the Governments of the other States of the Commonwealth found themselves able to agree to confine the group of persons to be enfranchised by their laws as natural born Canadian citizens, natural born South African citizens etc. to those who by virtue of the operation in Canada, South Africa etc. of the section referred to become at birth British subjects, would not the whole group of natural born British subjects created and being continually increased by the operation of section 1 of the Nationality and Status of Aliens Act, 1914, be covered by the separate nationality laws of the several States of the Commonwealth? I submit that it would. Any anticipated overlapping of the several laws as, for example, in the case of persons born of Irish parents outside Saorstát Éireann but not outside the Commonwealth would create no insuperable difficulty and could be provided against in the new statutes.

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Naturalised citizens

It is assumed that the granting of certificates of naturalisation in Saorstát Éireann will be in accordance with procedure and subject to conditions similar to those laid down in Part II of the Nationality and Status of Aliens Act, 1914. It would not be possible for us to confer a Commonwealth-wide status on persons naturalised under our law unless the conditions to be satisfied and the procedure to be complied with were substantially the same here as elsewhere throughout the Commonwealth. Presumably, however, the form of oath (if any) to be taken by applicants for naturalisation in Saorstát Éireann could not be the form contained in the Second Schedule to the Nationality and Status of Aliens Act, 1914. It is suggested that if any oath is prescribed it will be an oath of fidelity to the Constitution of Saorstát Éireann or of fidelity to Saorstát Éireann. Will you please let us have your views on this matter and also on the residence qualification referred to in section 2 of the Nationality and Status of Aliens Act, 1914.

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British subjects etc. living in Saorstát Éireann

Our law should provide that British subjects and Canadian subjects etc. living in Saorstát Éireann shall have the same status as citizens of Saorstát Éireann. The status of such persons will not depend upon any resort to the naturalisation procedure but rather will be automatic by virtue of a section in our Nationality Act itself declaring the status of those persons to be the same as or of a like character to the status of our own nationals. The draft now sent contains a section to that effect. It is assumed that a residence or other qualification will not be required in cases of this kind by the Department of Justice as a condition precedent of the status referred to. Such a condition would create difficulties. The Department of External Affairs hopes to carry at the forthcoming Conference the contention that by virtue of their citizenship of Saorstát Éireann our nationals will be entitled to the status of British subjects while in London, of Canadian subjects while in Ottawa and of South African citizens while in Pretoria. That status does not, of course, include an automatic right to say municipal franchise or special rights of a like character which the electoral and other laws of the various States of the Commonwealth make to depend on the presence of special qualifications and the fulfilment of special conditions. In each State such special qualifications and conditions must be present and fulfilled respectively before the citizen of any other State of the Commonwealth will become entitled to exercise the particular right in question. But these are matters for internal regulation by the electoral and other laws of each State and must be determined according as internal policies and requirements demand. They form no part of the subject matter of a Nationality Bill, but it might usefully be considered whether some provision will not have to be made.

[matter omitted]

Having a certain status is one thing, exercising certain rights to which status is a condition precedent is quite another thing. It may be considered politic to impose a residence or other condition upon the exercise by British subjects, Canadian citizens etc. in Saorstát Éireann of certain rights, for example, the rights at present reserved to our own citizens. Amongst such rights is that to vote at elections of members of Dáil Éireann (Section 1 Electoral Act, 1923). Our Nationality Bill could contain provisions which leave that course open. By section 9 of the Dominion Elections Act, 1920 (Canada), a person who is a British subject, is of full age, and has resided (a) in Canada for at least twelve months, and (b) in the electoral area wherein such person seeks to vote for at least two months immediately preceding the issue of the writ of election, can vote in the election of a member of the House of Commons of Canada. Our Bill would not of course refer specifically to elections at all (that is a matter for an Electoral Act) but it could in general terms indicate that the persons referred to would be called upon to fulfil certain special conditions. The Bill would not provide for the fulfilment by the persons referred to of special conditions precedent to the exercise by them of any particular franchise or other right (e.g. the right to enter the Civil Service of the Government) but would provide that in relation to all franchises or rights exercisable by citizens of Saorstát Éireann that those franchises and rights would be exercisable by the persons on whom the new 'status' is being conferred only upon fulfilment of the conditions prescribed by the law in that behalf relating to such persons. For example, the section might read as follows:-

'Status etc. of subjects or citizens of other parts of the British Commonwealth.' 'Every person who is by or under the law relating to nationality for the time being in force in any of the States mentioned in the Schedule to this Act a national of that State shall while ordinarily resident or being in Saorstát Éireann have in all respects the same legal status as a citizen of Saorstát Éireann and shall have and, subject to compliance with the conditions imposed by law in relation to such persons, may exercise in the same manner and to the same extent as a citizen of Saorstát Éireann all and every of the franchises, rights and privileges conferred by law on citizens of Saorstát Éireann and shall be subject to the same obligations as such citizens.'

The Schedule could contain an enumeration of the States of the Commonwealth.

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Article 3 of the Constitution

The draft herewith sent contains no section purporting to repeal Article 3 of the Constitution; rather a sub-section is inserted to keep alive the status conferred on the group of persons created citizens of Saorstát Éireann by that Article. With regard to those persons made citizens by Article 3³ by virtue of domicile and seven years residence only we cannot deprive them of the status conferred upon them by that Article. The group is small and dwindling and will in time disappear. What, however, will be the position of their children? Should they be regarded as natural born citizens of Saorstát Éireann if born in Saorstát Éireann or if born outside Saorstát Éireann and the statutory conditions are complied with? If it is considered that they should, and that our Act should make provision accordingly, that I think would involve a clear definition of the words 'Irish parents' in the section of our Bill to be based on section 2 of the draft herewith sent to you.

It will of course be necessary to amend Article 3 of the Constitution by extending the effect of the citizenship thereby created outside the limits of the jurisdiction of Saorstát Éireann. This arises out of the fact that extra-territorial effect is to be given to the laws of the Oireachtas as declared in the Report of 1929. The amendment of Article 3 necessary for the purpose might read as follows:

'Amendment of Article 3 of the Constitution.' 'Article 3 of the Constitution shall be construed as if the words "within the limits of the jurisdiction of the Irish Free State (Saorstát Éireann)." now contained therein were omitted therefrom and the said Article 3 shall have effect and be deemed always to have had effect accordingly.' The status conferred by Article 3 on the persons referred to therein should be kept alive, it is submitted, in the following terms, that is to say:

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Persons born before the passing of the Act

The Nationality and Status of Aliens Act, 1914, made provision for keeping alive naturalisation certificates granted under any Act repealed by that Act. No such provision will be required in our statute but we shall need to provide for the innumerable cases of persons born in Saorstát Éireann or born outside Saorstát Éireann before the passing of our Act who would have been natural-born citizens by virtue of the Act had they been born after the passing thereof. It may be sufficient to define 'natural born citizens' in a section other than the general definitions Section of the Act and leave the matter there with no distinction between persons born before and persons born after the passing of the Act. That course was followed in the Nationality and Status of Aliens Act, 1914, and the relevant section is entitled 'Definition of natural born British subjects.' But provided it is clear that persons born before the Act must be enfranchised the method of writing that decision into the Act is a matter for the Parliamentary Draftsman. There are other drafting matters which will need consideration also, as, for example, whether we could not coin a word to replace the word 'alien' (a word which has shamefully deteriorated by its long association with the negative adjective which usually qualifies it); and whether it is necessary in the second quarter of the twentieth century that an Act of Parliament should bracket married women with lunatics and idiots as being persons under 'disability'. But these matters lie outside the scope of the present memorandum.

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The Nationality Convention 1930

The plenipotentiary of the Irish Free State signed a 'Convention on certain questions relating to the Conflict of Nationality Laws' (in the present memorandum referred to as 'the Convention') at the Hague on the 12th April, 1930. The Convention is subject to ratification and will be ratified as soon as possible after the re-assembly of the Houses of the Oireachtas. It will be necessary that the provisions of our Bill conform to the principles laid down in the Convention. The Convention has been signed by the representatives of thirty-one States and by Article 18 the Parties agree to apply the principles and rules contained in the preceding seventeen Articles in their relations with each other as from the date of the entry into force of the Convention. Three Protocols containing provisions relating to special cases of statelessness etc. were also signed at the Hague by the Irish plenipotentiary and our Nationality Bill must contain nothing which is inconsistent with or contrary to the international obligation by which the State will be bound when these Protocols come into force.

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General

The foregoing observations relate with one or two exceptions to matters which are general to any consideration of the legislation to be passed by the Oireachtas on the subject of nationality at the present time. It is fully understood that considerations of substance relating to the details of the Bill (e.g. administrative machinery etc.) which are within the knowledge and special province of officers of the Department of Justice must ultimately find expression in the measure. It is suggested that a Conference between officers of the Department of Justice and of this Department might be held with a view to collating the principles referred to in this memorandum with those special matters of detail with which the officers of the Department of Justice are best qualified to deal. If such a Conference could be arranged the draft now sent could, as a result of its deliberations, be settled and might form a very definite conspectus of the proposals of the Government for a Nationality Bill.