Lords Amendment considered.
Lords Amendment: In page 4, line 39, at end insert New Clause "A" (Provisions as to operation of British Nationality Act, 1948).
(1) A person who—
shall not be deemed to have ceased to be a British subject on the coming into force of that Act unless either—
(2) In relation to persons born before the said sixth day of December in the part of Ireland which now forms the Republic of Ireland, being persons who do not satisfy any of the conditions specified in paragraphs (i), (ii) and (iii) of subsection (1) of this section, sections twelve and thirteen of the said Act (which relate to citizenship of the United Kingdom and Colonies and to British subjects without citizenship) shall have effect and be deemed always to have had effect as if, in paragraph ( a) of subsection (4) of the said section twelve, the words "or a citizen of Eire" and in subsection (1) of the said section thirteen, the words "or of Eire" were omitted.
(3) So much of the said Act as has the effect of providing that a person is, in specified circumstances, to be treated for the purposes of that Act as having been a British subject immediately before the commencement thereof shall apply also for the purposes of this section.
(4) Nothing in this section affects the position of any person who, on the coming into force of the British Nationality Act, 1948, became a citizen of the United Kingdom and Colonies or a British subject without citizenship apart from the provisions of this section.
I beg to move, "That this House doth agree with the Lords in the said Amendment."I notice a great array of legal talent on the other side of the House, and I have read the criticisms expressed in another place on the legal complications of this Clause. I do not propose to give a legalistic argument in support of it, first, because I am incapable of doing so, and secondly, because, in addition to being legalistic, the issue is also Irish. The object of the new Clause is to repair an omission in the British Nationality Act, 1948. The effect of Section 1 of that Act is that a person who was a British subject and a citizen of Eire on 31st December, 1948, and who did not become a United Kingdom citizen on 1st January, 1949, under Section 12 of the Act, ceased to be a British subject on 1st January, 1949, unless he sent a notice to me under Section 2 of the Act. Under the law of the Irish Republic, a person born in Ireland before 6th December, 1922, is a citizen of Eire if, firstly, he was domiciled in the Irish Free State on 6th December, 1922; or secondly, he was on or after 10th April, 1935, permanently resident in Eire; or thirdly, he had registered as a citizen of Eire. The important date to bear in mind there is 6th December, 1922, for that was the date under which, under an Act of this House, the Irish Free State was constituted, and as constituted on 6th December, 1922, it consisted of the 32 counties with the six counties which now form Northern Ireland having the right to vote themselves out. They did so vote themselves out on 7th December, but on 6th December, 1922, the whole of Ireland, the 32 counties, was the Irish Free State and it was not until 7th December, the next day, the six counties having voted themselves out, that the Irish Free State became confined to the 26 counties. Therefore, the Eire law, by inserting the date 6th December, 1922, and attaching to that the domicile, meant that anybody domiciled inside the island of Ireland on 6th December, 1922, was a citizen of Eire. When the British Nationality Act was passed the United Kingdom did not know that a person who was born in Southern Ireland of a Southern Irish father and on 6th December, 1922, was domiciled in Northern Ireland was regarded as a citizen of Eire under Eire law. They therefore considered that such a person became a United Kingdom citizen on 1st January, 1949, under Section 12 (4) of the British Nationality Act. But the Government of the Irish Republic have now stated that they regard the words "domiciled in the Irish Free State on 6th December, 1922" as meaning domiciled anywhere in Ireland including Northern Ireland, and they support this interpretation by a decision of an Eire court in the year 1933. The new Clause makes it clear that whatever may be the position under Eire law, a person who was born in Southern Ireland of a Southern Irish father, but was domiciled in Northern Ireland on 6th December, 1922, and did not acquire Eire citizenship by residing permanently in Southern Ireland on or after 10th April, 1935, or by registering as an Eire citizen, did not cease to be a British subject on 1st January, 1949, and became on that date a United Kingdom citizen unless he was a citizen or potential citizen of some other Commonwealth country. Subsection (1) of the new Clause declares that the person concerned shall not be deemed to have ceased to be a British subject. Strictly it is not necessary to say this, but the subsection has been inserted in order to meet the suggestion of a former Lord Chancellor that the fact that the person did not cease to be a British subject should appear on the face of the Clause. Subsection (2) secures that the person concerned is a United Kingdom citizen if he is neither a citizen nor a potential citizen of some other Commonwealth country. Subsection (3) secures that the person concerned enjoys the benefit of certain other provisions under the British Nationality Act which provide for treating as having been British subjects on 31st December, 1948, persons who were not, in fact, British subjects on that date. For example, it will ensure that a woman born in Dublin of a Dublin father, who was domiciled in Belfast on 6th December, 1922, and not permanently resident in Southern Ireland on or after 10th April, 1935, or registered as an Eire citizen, and who married a German in 1930 and so lost her British nationality, shall be deemed to have been a British subject on 31st December, 1948, under Section 14 of the Act and, therefore, became a United Kingdom citizen on 1st January, 1949. Subsection (4) is designed to ensure that nothing in the new Clause prejudices the position of a person who, on 1st January, 1949, became, under the provisions of the British Nationality Act, a United Kingdom citizen or a British subject without citizenship. Examples are: a person domiciled in Belfast on 6th December, 1922, who was born in Dublin of a father born in England—that person is a United Kingdom citizen by descent under Section 12 (2) of the British Nationality Act; and a person domiciled in Belfast on 6th December, 1922, who was born in Dublin of a Southern Rhodesian father—that person is a potential citizen of Southern Rhodesia—that is, a British subject without citizenship—under Section 13 (1) of the British Nationality Act. It should be borne in mind that the interpretation given by the Eire court to the Irish Free State does not in any way affect the position of persons born in Northern Ireland or born in Dublin of a Northern Ireland father. Such persons are United Kingdom citizens under Section 12 (1 a) and subsection (2) of that Section of the British Nationality Act. In moving that this House doth agree with the Lords in this Amendment, I have endeavoured to put the matter before the House as clearly as I can, but very distinguished lawyers elsewhere, who had the advantage of hearing the exposition of the joint authors of this Clause, expressed some doubts as to the clarity of the exposition. I have done my best. I hope that the House will accept this Amendment, as one dealing with a very intricate subject, in the spirit in which we conducted the Third Reading Debate of the Measure in this House. We do not desire that any person who desires to remain a British subject shall be deprived of that inestimable privilege by any legalistic considerations. We believe that the words which have been put into this Clause succeed in ensuring that and I earnestly commend the Clause to the House.
I am sure that the legal and the non-legal sections of the House heard with great pleasure the right hon. Gentleman's abjuration of any claims to a legalistic exposition, but so clear was the exposition when it came that I have great pleasure in informing the right hon. Gentleman that if, as I hope, he will soon genuinely be seeking work, a very happy and prosperous future awaits him at the Bar if he turns that way. I think the House will agree that, apart from the difficulties, and apart from the last part of the right hon. Gentleman's speech, which reminded me of that almost forgotten sentence of Kipling:
that there is underlying the legal difficulties an important point here. As I see it, it arises from what has been found to be a defect in Section 12 (4) of the British Nationality Act. It does require a little consideration to see how it arose. The governing words there are:"We didn't talk of 'stetrics when the little stranger came,"
Therefore, we have to look, not at our own law, but at the law of Eire in order to discover what is a citizen under that law. Of course, we could have—and if we had had more time at our disposal, we should have—looked at that more closely; but I think the House will forgive the right hon. Gentleman and me if, while attempting to look carefully at all the provisions of our own law, we did not find out every provision of the law of other countries that we had to discuss. Still, the matter has now been carefully considered, and I am sure that the House is grateful to the noble and learned Lords, and especially, if I may say so, to Lord Simon for the careful inquiry he has given to this matter. As I see it, it turns on Article 3 of the Constitution of the Irish Free State, because we are sent back to that by the Irish Nationality and Citizenship Act, 1935. That says:"… unless he is then a citizen of Eire. …"
I think that the right hon. Gentleman and I and anyone, whether he be lawyer or layman, applying common sense might well have concluded from Article 3 that when different words were used in contradistinction to each other, namely "Ireland" and "the jurisdiction of the Irish Free State," they meant different things. Therefore, it did come as a surprise to me that the Government of the Irish Republic were claiming that they had the same verbal content. Because the last thing that we want to do is to have anyone to believe that we are being legalistic, or taking any advantage of the position, we ought to consider carefully what the position was. The right hon. Gentleman has said—as I believe, correctly—that the critical date is 6th December, 1922. It is correct that under the legislation of that time the area of jurisdiction of the Irish Free State was, in a curious and rather Irish way, the whole area of Ireland, but it was subject to two clear points, namely, that the Free State were not to have any power in that area which was outside the 26 counties, and that the Northern Irish Government were to have the right within one month to opt out of that jurisdiction; so one had the conception of jurisdiction without any power at all and the right to opt out, which was in fact exercised the day after on the 7th. If the House will do me the kindness of approaching my arguments in no legalistic sense but merely on the grounds of common sense, when one has this conception of no power exercisable in the area and that area having the right to opt out within a month, which in fact it exercised within a day, I think that the ordinary man could be forgiven if he considered that the jurisdiction was limited to the 26 counties in contradistinction to Ireland, as I have already explained. That is the foundation of the position and the actual fact that we have to deal with is that when someone who has been born in Ireland and at that time was domiciled in Northern Ireland—that is, permanently settled, if I may paraphrase a difficult word—Northern Ireland being either the place where he had assumed his permanent residence or the place where he intended to remain—if in that sense he was there domiciled and permanently resident on 6th December, 1922, then for all practical intents and purposes and for all the surroundings of his working life he was settled in Northern Ireland, and he was entitled to presume that he would continue to be in the same position as other people in Northern Ireland and therefore to remain a British subject when the occasion for delimitation arose. That is the foundation and the necessity of this Amendment and my right hon. and hon. Friends and myself are glad that His Majesty's present advisers have looked at the reality of the situation and have clarified the position for those in Northern Ireland who were in that position and are therefore affected in the way I have stated. I am sorry to have had to re-traverse, I hope as briefly as possible, the ground which the right hon. Gentleman dealt with so clearly, but I think that in an important matter like this it is right that we should state the reasons for our adherence to this Amendment, and for these reasons I venture to support it tonight."Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State … 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 who has been ordinarily resident in the area of jurisdiction of the Irish Free State … for not less than seven years. is a citizen of the Irish Free State …"
I think that the Home Secretary made the excuse for one of the most lucid speeches I have ever heard in this House that he was neither a lawyer nor an Irishman. I can only claim half that excuse, but as an Irishman I would like to express thanks for the great thought that was given in another place to this Amendment. It took two days and very great minds—probably the greatest legal minds in the world were brought to bear upon it—and we are very grateful for that. I read in the Press that in another place a noble Lord expressed the view that the only thing he really apprehended was that one who was arguing the point was reeling under a misunderstanding of the whole thing.I would like to express a word of thanks for all the thought brought to bear on a useful Amendment which has been accepted by the Government. The Home Secretary thought fit to cite Dublin and Belfast, but they are not the only places in Ireland—there are Cork and Cullybackey! I hope we shall end this Debate on the note on which we ended the Third Reading—one of harmony and gratitude for all that has been done.
The hon. and gallant Gentleman the Member for Antrim (Colonel Haughton) is a brighter boy than I am. I could not find a great deal of lucidity in the speech made by the Home Secretary. I must say also that the right hon. and learned Gentleman opposite did not do very much to dispel the almost impenetrable gloom which surrounds me. But we are all in very good company. The Marquess of Salisbury, speaking in another place, said that he thought he understood this Amendment for about two minutes. I think that the noble Lord is about two minutes ahead of me. The second subsection of this Amendment I have not even attempted to decipher. Even such an eminent lawyer as Viscount Simon regards it as a particularly difficult crossword puzzle. At the end of a very hard day in the House of Commons I am in no form for crossword puzzles. The first subsection is more comprehensible, though I do not altogether agree with the Lord Chancellor that it is a plain and simple statement that the ordinary man in the street can read and understand.There is one question I should like to ask. Are there not now some people who are regarded as Irish citizens by the Irish Government and as British citizens by the British Government? For example, take the case of an Irishman who came to this country two or three years ago and has been living here but who did not between 30th July, 1948, and 31st December, 1948, register as a citizen of Eire, as mentioned in subsection (1) (iii). I take it that the Republic of Ireland will still regard that man as one of its own citizens, and according to this Clause we regard him as a British subject. Again, consider the case of a man not covered by the provisions of this Amendment as to Irish birth or Irish domicile, but who is registered as a citizen of Eire due to some claim of parentage under the Irish Citizenship Act, 1935. Here again, he is regarded by the Republic of Ireland as Irish and by the British Government as a subject of this country. Has such a person now a dual nationality? Can he, for example, hold two passports? I hope this question will be answered, perhaps by the Attorney-General. It is all so bewildering for simple people like us. When the right hon. and learned Gentleman does answer, I hope he will give us the reply in plain and simple language, but not in what the Lord Chancellor considers plain and simple language. I hope preferably that he will answer us in monosyllables.
I was sorry to hear the hon. Member for Platting (Mr. Delargy) say that he did not understand this simple Clause, because I took the greatest trouble to explain it to him. I should make it clear at once that I have a very intimate interest in this matter. I am one of those unfortunate people who, so far as I can see, are covered, or perhaps not quite covered, by this Clause; because, unlike the hon. Member for Platting, I am an Irishman, and anyone who listens to the speeches of the hon. Member will know that he is an Englishman, and a Lancashire man at that.The difficulty with regard to this matter has arisen because in the British Nationality Act the words "citizen" and "Eire" were employed, and that meant that, for the first time, to find out the status of one of our own subjects, we had to go to the law of another country, which of course we did not know and did not make, and it had to be interpreted for us. We went rather tardily, I must say, some time after the Act was passed, and we discovered that the law of that country with regard to citizens of Eire was entirely different from what we supposed it to be. We found that they, in fact, had counted as citizens of Eire people who might have been born within the six counties and who, indeed, had never lived in the 26 counties. It is quite understandable, when one reads the decision, how they came to that conclusion. This Amendment, of course, is designed to remedy that. As such we welcome it. I am sure my hon. Friends and myself welcome it. But there are certain matters which I do not think it has made perfectly clear. Perhaps I may, without presumption, take my own case, because I think it is one which applies quite well. I was born in the 26 counties before 6th December, 1922. When that day arrived, my family, like many other Irish people, from deep conviction and passionate feeling, felt that they would have to leave the 26 counties where they had lived for probably most of their lives. That necessitated a great deal of arrangement and leaving the 26 counties to go to Ulster or, in many cases, to Great Britain to start life afresh. That could not be done at once, and in many cases these families did not, as in the case of my own family, leave the 26 counties until after 6th December, 1922, though they had the intention of doing so. That raises an important question, which I have not seen answered, although I have read the Debates in another place, of what is the meaning of the word "domicile." If it is the ordinary English acceptance of the meaning of the word which is so constantly used—and the Attorney-General will be familiar with it—in the Divorce Courts as regards the jurisdiction of the courts, it may be said that a person who had the intention of leaving Eire, as we may conveniently call it, on 6th December, 1922, or immediately before that date, but was not able to leave until after that date, is still a citizen of the United Kingdom and Colonies, although in fact he was at that time still residing in Eire. That seems to me to be an important matter, because if the word merely means domicile in the sense of residing there at that time, then all those people would, like myself, be excluded. So it is important that we should know what that means. As I understand it, that word has been taken from the Irish Act without any attempt at interpretation in our law being made. That is one point. The other matter which I think is important relates to subsection (2). What that subsection says is that in the case of a person who does not satisfy any of the other conditions—that is to say, a person who does not satisfy the conditions set out in subsection (1) who was domiciled in Ireland after 6th December, 1922—sections 12 and 13 of the British Nationality Act, subsection 4 (a), shall have effect as if the words, "or a citizen of Eire" were omitted. When we turn to Section 12 we find that it says:
that is, in any of the Dominions, and the words are added"A person who was a British subject immediately before the date of the commencement of this Act and does not become a citizen of the United Kingdom and Colonies by virtue of any of the foregoing provisions of this section shall on that date become such a citizen unless—
- (a) he is a citizen of any country mentioned in subsection (3) of section one of this Act under a citizenship law having effect in that country …"—
But they are now omitted by this new Clause. Does that mean that it covers such cases as my own? Would a person be a British subject immediately before the passing of the Act who was not a citizen of Eire, because that is something about which I am not clear? I am not clear, of course, whether one is a citizen of Eire in any event, but it seems that that second matter is one which should be considered. If that is the case, then practically everyone in Eire who has not registered as a citizen of Eire, would automatically become a citizen of the United Kingdom and the British Commonwealth, which might be a desirable thing, but might give offence in Eire itself. It is of no benefit for the Attorney-General to say, as he did on a previous occasion, that this can be remedied by a simple application to the Home Secretary. One can understand that that can be done. However, I cannot emphasise too strongly that people who left the 26 Counties at great personal inconvenience at that time, did so, to put it in its mildest form, because of their sincere feelings. They did not wish to remain in that country as it was then, because they were loyal subjects of the Crown and wanted to remain so. To them it is an affront to tell them they have to apply to the right hon. Gentleman. No doubt they would receive a most courteous reply, but they feel that their status should never be in doubt and should never be determined in that way. One may say that that is a foolish and proud attitude, and perhaps an obstinate one, but, human nature being what it is, they feel that this matter should be beyond doubt, and something about which they ought not to have to get a certificate. They say they are British subjects because they were born British subjects, and should not be required to get a piece of paper in order to show that they are such citizens. Apart from these matters which I have raised, I shall certainly support this Clause which goes a long way towards remedying what was an injustice, but I fear it may not go the whole distance which I should like to see it go."or a citizen of Eire."
I think the Home Secretary may unwittingly have given an erroneous impression when he used the term "legalistic." The main matter with which we are concerned, which this new Clause seeks to remedy, is quite easily understood by every man and is of the utmost importance. In fact, the Lords, by sending us this new Clause, have saved us from what would have been a most disastrous position. Without this Clause the effect of the law would simply be that people who have never in their lives lived elsewhere than in the United Kingdom, and have never owed any allegiance except to His Majesty the King, would suddenly find they were no longer British subjects and no longer entitled to obtain a British passport. That really would have been a most disastrous result which, I think, nobody in this House desired. I am perfectly certain that, when the Prime Minister was moving the Second Reading, he had no idea that that could conceivably be the result of this Measure. It would have been the result of the British Nationality Act, 1948, together with this Measure.The first section of the British Nationality Act makes it impossible to be a British subject if you are a citizen of Eire. By the Bill, which we are now passing through Parliament, a citizen of the Republic of Ireland will be in the position of a citizen of Eire. Now, what is a citizen of Eire, depends, as has been stated, I think, by every speaker tonight, on the view taken by the Irish courts of the position in Irish law, and the Home Secretary was quite right in citing to us an important judicial decision. Perhaps I might mention some facts about the case which he cited—that it was there held that a man born in Derry in 1898, who had always lived there, was a citizen of Eire. Well, that does produce a perfectly fantastic result. Now, the practice of our Passport Office, without this Amendment and unless we accept this new Clause, was and will be to say, "In order to find out whether you are a citizen of Eire, go and ask the High Commissioner's Office what they think about it." That again is a very unsatisfactory position. The only possible remedy, as has just been said by my hon. Friend the Member for South Belfast (Mr. Gage), would have been an application under Section 2 of the British Nationality Act, 1948. Now what would that have meant? It would have meant that the citizens of Ulster or many of them would have had to send a letter to the Home Secretary saying, "I, a citizen of Eire, hereby give notice, etc." I think that the whole House will appreciate that, if that course had been taken, two things would have followed. The people of Ulster would not have been very much pleased with the result—and that is putting it mildly—and the Home Secretary's Office, which is doing a good deal of useful work in a good many directions, would have been overwhelmed with hundreds of applications, if the thing was to work at all. Therefore, this Amendment is not some unimportant thing done to satisfy a few extra-particular or fussy people. It is an absolute necessity if the whole machinery of government is not to break down. I agree with one part of the observations of the hon. Member for Platting (Mr. Delargy). I do not agree with his observations on subsection (1) of this new Clause which I think, with one exception, is reasonably clear. A man, by looking at it, can find out whether or not he has ceased to be a British citizen, because he knows where he was born, when he was born, and where he has been living. That will give him the data to find out his position under the first subsection. The exception to that generalisation is the one mentioned by my hon. Friend the Member for South Belfast, which is that in subsection (1, b) (i) the word "domiciled" is used, whereas in subsection (1, b) (ii) "resident" is used. It was assumed in another place, apparently, that the word "domiciled" was used in this statute because it was used in the Irish statute, but would not have the ordinary meaning that it bears in English law. That is a very dangerous assumption, and I should like to hear what the Attorney-General thinks about it. It seems to me that, if we use the word "domiciled" in our statute, it will have all the ordinary connotation which the word "domi- ciled" bears in an English statute. With that exception on which I should like to hear the Attorney-General, subsection (1) is tolerably clear. In subsection (2) the layman is plunged into almost impenetrable darkness. I have never seen such an example of legislation by reference and such an achievement of total obscurity. It is difficult even for a lawyer to find out what it means. I hear a suggestion that the Opposition share the responsibility for the wording, but that is not so. Subsection (1) contains the provision which was modelled on an Opposition Amendment. Subsections (2), (3) and (4) are the drafting—I have no doubt the extremely skilled drafting—of the Government and their legal advisers. I hope very much that these subsections will work out all right, but the hon. Member for Platting was right in saying that, if a layman looks at subsection (2), it is impossible for him to find out what it means. I do not believe that quite such obscurity was necessary. It is unfortunately true that a person looking at subsection (2) cannot by merely reading it derive a glimmering of what it is all about. That obscurity is unnecessary, but, for the very important reasons which I gave earlier, this Clause is an absolute necessity. I am glad that the defect in the Bill was noted in the Lords. We should be grateful to them for sending us this Clause, and I am glad that the House has been asked to accept it.
Does the Attorney-General think that by using the word "domiciled" the Clause has really gone quite far enough? Everybody who was born in the bit of Ireland which now forms the Republic of Ireland and who was domiciled in that part on 6th December, 1922, loses his British nationality. There will be certain classes of people who will lose their nationality under this part of the Clause who ought not to do so. An instance which occurs to me is that of someone who was born in Dublin and at the age of 19 or 20 went to Northern Ireland and has lived there ever since. Being a minor, he could not change his domicile, but I am assuming that 6th December, 1922, came before his 21st birthday. He will have to apply for British citizenship. I should have thought that the reasons given by my hon. Friend the Member for South Belfast (Mr. Gage) would have applied to him and that he would have been reluctant to apply for it.Another instance is someone in the position of my hon. Friend the Member for South Belfast who, on 6th December, 1922, was domiciled in Eire and who left Eire afterwards, changing his domicile, and is still a citizen of Eire, as I think my hon. Friend is, because on 6th December, 1922, he was domiciled there. I should have thought that the wording of the Clause ought to have been more elastic, so as to provide that people who had changed their domicile since 6th December, 1922, should have preserved their nationality. I do not think it makes any difference whether the word "domicile" means residence in the loose sense or in the tight legal sense. Anyone who changed his domicile immediately after that date is still caught by this provision. The Home Secretary did tell us, but I am afraid that I missed it, why sub-paragraph (ii) excludes persons permanently resident before 1935. Perhaps he would repeat his explanation, as I am not clear what is the reason for it. What happens to a person who becomes permanently resident and then un-becomes permanently resident, which is quite possible in law? Does he lose his British nationality?
As one of the few Members here who took part in the Debates on the 1922 Measure, perhaps I may be allowed to say a few words. We have heard a great deal from lawyers and others, but as I remember that Measure—and I have looked it up—it was perfectly clear that we did intend that people of the six counties, if they chose to opt out of Southern Ireland, should remain British citizens. Due to an accident in regard to dates, and due to interpretation of law as far as Eire is concerned, it means, as my hon. Friend the Member for South Belfast (Mr. Gage) has said, that there are hundreds of thousands of people who, by intention of that Parliament, should always have been members of the United Kingdom, but who are now apparently no longer certain of their position, to put it mildly.As far as I understand this new Clause, it is now made as certain as we can make it, using the best brains we have got, that these people who by a mischance may not have been British subjects are now made permanently British subjects. I think it is good that one Member who has had a connection with both these Measures should speak even at this late hour, and should say how deeply grateful we are to the Government for having brought forward this new Clause. May I add how much I appreciate the trouble taken by the Home Secretary to make this rather complicated new Clause, which will be a great relief to many of us, clear to us?
Question put, and agreed to.