Memorandum by Frederick H. Boland on a discussion with Norman Archer

After consultations with the Attorney General and Mr. O'Donoghue¹ on the 11th February and again (in company with the Legal Adviser) on the 12th February, and having discussed the matter with the Taoiseach, I took advantage of Mr. Archer's visit yesterday about another matter to speak to him about the British Nationality Bill.

I told Mr. Archer that an official reply to the memorandum which he had handed me was on its way. Its terms remained to be settled finally, but its general effect would be to express satisfaction as regards the two points on which our representations had been met, and, for the rest, to repeat and reaffirm the views which we had expressed from the beginning. I went on to say that I was anxious not to leave him under any misapprehension as to the reception which the Bill was likely to receive in this country. It would do little to abate the resentment which has always been felt here about the British law on nationality, and, in several respects, it would greatly exacerbate it. The provision making people in the Six Counties citizens of the United Kingdom would be particularly grievous to public opinion here. After that, the worst provision in the Bill was Section 3(1), which seemed to us to nullify completely any good effect which the preceding provisions of the Bill might otherwise have had. In fact, Section 3(1) made the position worse than it had ever been. It was bad enough that Irish citizens had been regarded as coming within the scope of British statutes of long standing applying to British subjects. But the re-enactment of that position, as proposed in Section 3(1), was nothing short of a provocation.

I pointed out to Mr. Archer that what I was saying to him was nothing new. It had all been said in the official correspondence that had passed. I was anxious, however, not to leave him under any illusion as to the extent to which the position was made worse by the drafting of Section 3(1) of the Bill. It was difficult to imagine how his authorities, having made the decision to omit Irish citizens from the statutory definition of British subjects, should contemplate a provision which went completely back, not only on that decision, but on what had been said in the official correspondence which preceded the conference in London last year. As an example, I reminded Mr. Archer of what had been said in that correspondence on the subject of allegiance and pointed out to him - using the example of the man in Cahirciveen - how Section 3(1) departed from the position which they had officially accepted.

Mr. Archer argued that we were giving Article 3(1) a character which it had not got at all. It was not intended to say what the rights and obligations of Irish citizens were to be in future. It was only intended to prevent the vacuum which would result if Irish citizens were taken out of the category of British subjects without further provision. For example, the title of Irish owners of ships registered in Britain would become invalid, and wills made by Irish citizens before British Consuls would be null and void. He thought we would admit that some provision was necessary and, short of a complete review of all the existing legislation, which it was quite impossible to make in the time available, he could not see how Section 3(1) could take other than its present form.

I told Mr. Archer that one alternative form it might take had been indicated in the correspondence. The clause might have been limited in its application to British territory or to people under British jurisdiction. If that had been done, much of the criticism which the position was bound to evoke might have been obviated in advance. The same effect might have been achieved by a proviso to the effect that nothing in the clause would operate to impose obligations on Irish citizens contrary to their allegiance as such. From our point of view, the latter limitation would have been even better. Speaking with emphasis, I told Mr. Archer that clause 3(1) without either of these limitations was, in our view, likely to become the source of considerable friction in the relations between the two countries.

Mr. Archer said that he would certainly report this at once to his authorities, but he could hold out no hope that the clause could be changed at this stage. He had a feeling, too, that the changes we proposed would operate to deprive Irish citizens of rights which they at present possessed under British law. I told Mr. Archer that that was our concern and that we were prepared to face any risk of that kind which the changes might involve.

I went on to say that I did not want to leave him under the impression that Section 3(1) of the Bill - apart from its other provisions - would be acceptable to opinion here. It was bound, in any case, to be argued that Section 3(1) operated to deprive the preceding provisions of the Bill of any practical effect. No matter what was done, that view would certainly be taken here, but unnecessary misunderstanding might be prevented if the British Minister introducing the Bill emphasised clearly the point that the British Government accepted fully the position that Irish citizens were not British subjects but had an entirely different allegiance, and that Section 3(1) was not intended to derogate in any way from that acceptance but merely to cover the transitional period which must elapse until the practical consequence of the change from the point of view of other legislation was determined. Mr. Archer said that it was intended to get out a White Paper in connection with the Bill and there would be paragraphs in that dealing with the Irish position. They would be purely factual, but he hoped they would cover the point we had in mind. We would be given an opportunity of seeing them beforehand.

On taking leave, Mr. Archer said that he would report the conversation to London at once, but he was by no means optimistic as to the chances of Section 3(1) being changed at this stage.