Extract from a memorandum on nationality and citizenship prepared by the Department of Justice at the request of the Department of External Affairs for the Conference on the Operation of Dominion Legislation

[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:-

As against this, it may be remarked that:

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

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:

8. CITIZENSHIP

Article 3 of the Constitution relates to Citizenship and reads as follows:-

The following points may be noted as regards this Article viz:-

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.