House of Commons Scottish Affairs Committee The Referendum on Separation for Scotland Written evidence Only those submissions written specifically for the Committee and accepted by the Committee as evidence for the inquiry into the referendum on separation for Scotland are included. List of written evidence Page 1 Professor Bernard Ryan, Law School, University of Kent 1 2 Francis Tusa, Editor, Defence Analysis 8 3 Professor Jo Shaw, University of Edinburgh 14 4 Dr Phillips O’Brien, Scottish Centre for War Studies, University of Glasgow 21 5 Electoral Commission 24 6 Rt Hon Michael Moore MP, Secretary of State for Scotland 28 7 Ministry of Defence 29 8 Brian Buchan, Chief Executive, Scottish Engineering 46 9 Babcock 47 Written evidence from Professor Bernard Ryan, Law School, University of Kent Introduction If Scotland were to become independent, its relationship with the United Kingdom would have to be defined in the fields of nationality law and immigration law and policy. This note offers a summary of the relationship between the Irish state1 and the United Kingdom in those fields, and some thoughts on possible implications for Scottish independence. 1. Nationality Law 1.1 The Irish case A new nationality The nationality law of a new state must necessarily provide for two matters: an initial population of nationals on the date of independence, and the acquisition and loss of nationality on an ongoing basis. In the case of the Irish state, the initial population was defined by Article 3 of the Irish Free State Constitution of 1922. Article 3 conferred Irish Free State citizenship upon a person if they were domiciled in the “area of the jurisdiction of the Irish Free State” on the date the state was founded (6 December 1922), provided (a) they had been resident in that area for the previous seven years, or (b) they or one of their parents had been born in “Ireland”.2 A full framework of nationality law, covering all aspects of acquisition and loss of nationality, was not then adopted until the Irish Nationality and Citizenship Act 1935. The reason for delay was a disagreement between the London and Dublin Governments concerning the nature of the new citizenship.3 The British Government conceived of Irish Free State citizenship as a local citizenship, within a wider international status of British subject. The Irish state authorities preferred instead to consider Irish Free State citizenship as autonomous from British subject status, and to be capable of being relied upon internationally. Nationality legislation was eventually adopted in 1935, before a resolution of this fundamental question. Irish nationality law and Northern Ireland 1 The official name of the state is ‘Ireland’. To avoid confusion, the term ‘Irish state’ is preferred here, unless the context permits ‘Irish Free State’ or ‘Republic of Ireland’ to be used. 2 There was an exception for persons who held the citizenship of another state, who could elect not to become Irish Free State citizens. 3 See Mary Daly, ‘Irish nationality and citizenship since 1922’ (2001) 32 Irish Historical Studies 377, 377-384. 1 The treatment of Northern Ireland within Irish nationality law has historically been a controversial issue.4 Initially, special provision for Northern Ireland within Irish nationality law was primarily a consequence of the Irish state’s claim to the whole island of Ireland. Latterly – especially since the Belfast Agreement of 1998 – special provision has reflected the Irish state’s wish to uphold the Irish identity of a minority in Northern Ireland. In the early years of the Irish Free State, its authorities took the view that Article 3 citizenship applied to those who were domiciled and resident in Northern Ireland on 6 December 1922. That was based on the theory that, on that date, the “area of jurisdiction” of the Free State was the whole island of Ireland, as Northern Ireland did not exercise its right to opt-out of the new state until the following day. The United Kingdom Government would later acquiesce in this theory, when it neutralised its effects in British nationality law.5 The Irish Nationality and Citizenship Act 1956 went further, and provided that a person born in Northern Ireland would automatically acquire Irish citizenship if either of their parents was an Irish citizen. That was unlike the position for births elsewhere in the world, where registration was a precondition to the acquisition of Irish citizenship for the second and subsequent generations. For persons born in Northern Ireland, but who did not have an Irish citizen parent, there was an entitlement to Irish citizenship, which the individual could freely take up. More recent developments began with the recognition by the Belfast Agreement of 1998 of “the birthright of all the people of Northern Ireland to identify themselves, and be accepted as Irish or British, or both, as they may so choose …”6 That statement legitimised the application of Irish nationality law to Northern Ireland, but also implied that it should be based upon individual choice, rather than arising automatically. The Irish Nationality and Citizenship Act 2001 then introduced an apparent element of choice into Irish nationality law for persons born in Northern Ireland. All those born in either part of the island of Ireland continued to be entitled to Irish nationality by virtue of their place of birth. The acquisition of Irish citizenship was automatic for those who were entitled to Irish citizenship alone. In other cases - including persons born in Northern Ireland who became British citizens - Irish citizenship would be acquired only if positively asserted. The rules as regards citizenship by descent remained unaltered, however, so that a child born in Northern Ireland to an Irish citizen continued to acquire Irish citizenship automatically. That had the effect of removing much of the element of choice introduced into the provisions concerning the acquisition of citizenship through place of birth. The scheme set out by the 2001 Act remained unaltered by the Irish Nationality and Citizenship Act 2004, which introduced a parental pre-condition to entitlement to Irish 4 For a detailed account, see Bernard Ryan, ‘The Ian Paisley Question: Irish Citizenship and Northern Ireland’ (2003) 25 Dublin University Law Journal 116-147. 5 See Ireland Act 1949, section 5. 6 In the British-Irish Agreement reached as part of the Belfast Agreement, the two Governments set out their “understanding” that, for this purpose, “The term ‘the people of Northern Ireland’ … means … all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.” 2 citizenship by birth. Children born on the island of Ireland since 1 January 2005 have been eligible for Irish citizenship by virtue of their place of birth only if, on the date of the birth, at least one parent is an Irish citizen (or entitled to become one), is a British citizen, is entitled to reside in a permanent basis in either Northern Ireland or the Republic, or has been lawfully resident on the island of Ireland for three of the previous four years. British nationality law and Irish citizens The possibility of continued access to forms of British nationality by Irish citizens arose as a result of the overhaul of British nationality law by the British Nationality Act 1948. Previously, British subject status had primarily been conferred on persons born in any British territory, including dominions such as the Irish state. Under the 1948 Act, British subject status was based instead upon possession of the nationality of a Commonwealth state. In recognition of the Irish state’s lack of enthusiasm for membership of the Commonwealth by this time, the 1948 Act excluded the Irish state from the list of states covered by the new principle.7 Instead, Irish citizens who had been British subjects prior to the coming into force of the 1948 Act were permitted to give notice that they wished to retain that status on the grounds of an association with the United Kingdom.8 Irish citizens were not however given a general entitlement to the separate citizenship of the United Kingdom and colonies (‘CUKC’) introduced by the 1948 Act, which was the forerunner to today’s British citizenship. 1.2 Implications for Scotland Were Scotland to become independent, parallels to a number of the questions posed in the case of Irish nationality might arise. The following are speculative examples of such possible questions. A new nationality In general terms, an independent Scotland would presumably be free to define both its original population of citizens and the rules on the acquisition and loss of nationality. That would not however preclude specific agreements on the content of its nationality law with the United Kingdom, either before or after independence. In defining Scotland’s initial population of nationals, a key question would be whether prior possession of British citizenship, or eligibility for it, was to be a precondition. In both the 1922 Constitution and the 1935 Act, the Irish Free State defined its nationality law without reference to British subject status. While that approach would be one option for an independent Scotland, it would equally be possible for Scottish nationality to be limited to a 7 In 1936, the Irish Free State unilaterally re-defined its relationship to the Commonwealth as one of ‘external association’, rather than membership. That re-definition was not however accepted by the United Kingdom at the time. The Irish state would proclaim a republic, and definitively leave the Commonwealth, in 1949. That new constitutional position was recognised by the United Kingdom through its Ireland Act 1949, which nevertheless declared that “the Republic of Ireland is not a foreign country for the purposes of any law in force.” 8 British Nationality Act 1948, section 2, and now British Nationality Act 1981, section 31.