I've had a long-standing interest in (and affection for, as it happens), the muddled position of Irish citizens in the UK. Under the Ireland Act 1949 2 (1) (which regularised the relationship between the UK and the new Irish Republic as was), while Ireland is designated an independent state it was not classed as a foreign state. And, given this, as the British Nationality Act 1981 51 (4) has it, "'alien,' in relation to any time after commencement, means a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland."
This has been updated somewhat by the Good Friday Agreement (pdf), allowing for effective dual citizenship for people born in Northern Ireland with at least one British or Irish parent with indefinite leave to remain (the "Irish or British or both" bit being in Article 1 (vi) and the restriction to people born in NI etc being in Annex 2). To the best of my knowledge, previously Irish citizens in NI were given access to Westminster elections through the Ireland and British Nationality Acts. The GFA gives them a status that distinguishes them from Irish citizens born in the ROI.
Anyway, I read Lord Goldsmith's report on citizenship (pdf) last night and it's very interesting indeed. I think the people who, following the BBC and others, have focused on oaths of allegiance are in fact missing what is on the whole a well-considered and provocative document (with a good outline of the Common Travel Area on pages 25-26). Nothing beats reading the real thing...
One interesting element concerns Goldsmith's proposal that the right to vote in Westminster elections be restricted to UK citizens. The whole discussion of voting is on pages 74-76 of the report and is well worth reading in the beginning as a good outline of the normative argument for voting (or 'voting as sacrament' as Harry Brighouse called it on Crooked Timber last week). Essentially, Goldsmith argues that the 'blurring' of rights and duties between citizens and non-citizens has reduced the value of citizenship. Restricting the right to vote in Westminster elections to citizens is one component that will restore the value of British citizenship (all EU states allow other EU nationals to vote in local and European elections. Hence the focus here on Westminster polls).
The second part of the section relates to the unique position of Irish citizens. Goldsmith sets the issue and his proposed solution out in paragraphs 20 and 21, which I quote in full:
there are two particular issues in relation to Irish citizens. First, the Good Friday Agreement confirms the right of the people of Northern Ireland to take either British or Irish citizenship or both. Anyone who exercises their right under the Agreement to identify themselves as Irish and to take up Irish citizenship should not lose their right to vote in Westminster elections as a result of any change made to restrict voting rights to UK citizens. Hence it would be necessary to distinguish this group of Irish citizens from others. I have not been able to examine the different practical means of doing this but this would have to be part of further consideration of the issue. My proposal is dependent on finding a satisfactory means of distinguishing the two categories in a way that did not affect the position of those exercising rights under the Good Friday Agreement.
Secondly, Ireland is of course a member state of the EU as well. This means that Irish citizens would retain the voting rights that other citizens of EU member states have in the UK. Hence the extent of the change that I am proposing as it relates to Irish citizens is to restrict their right to vote in Westminster elections, while retaining their right to vote in European, local and devolved elections. Also, as I have said, the restriction of the right to vote in Westminster elections should be phased, so that no person who is already resident or registered to vote in the UK loses the right to vote.
So Goldsmith proposes phasing in a system where Irish citizens would have their current right to vote in Westminster elections removed. That said, people who exercise their right to identify themselves as Irish under the GFA and who take up Irish citizenship would not have the right to vote removed. At the very least, as Goldsmith says, this poses a practical dilemma. As I read it the question comes down to how one can to distinguish between Irish citizens born in NI and Irish citizens by virtue of ROI statutes without undermining the citizenship privileges of the former.
That is: how, practically speaking, can the distinction be made without placing an undue burden on Irish citizens born in Northern Ireland, by say asking for proof of birthplace? Can this be done without producing a barrier (compared to their fellow voters) on people voting in Westminster elections? Would this be solved if voting required possession of some sort of revamped I.D. card and how would that go down on the Falls? Would the Irish state respond by only allowing (assuming the distinction was possible) British citizens born in Northern Ireland a vote in the Republic?
Second and perhaps less importantly, if the state takes the route of sharpening that boundary between UK citizens and non-citizens, and Irish citizens born in NI are kept inside the UK citizenship fence, how will this emphasis on the UK-ness of the political act of voting sit with the comfort of NI's Irish citizens in taking part in the Westminster vote?
And that's without even thinking of the half a million odd people in the UK who were born in the Irish republic - by some degree the largest cohort born outside the UK. Although Goldsmith envisages a phasing in period so that nobody loses privileges they possess, if the stir caused by the 1981 British Nationality Act (as evidenced by this Seanad discussion) is anything to go by, there's going to be an interesting discussion about the position of the Irish in the UK in the next few years.
Personally, I would be sad to see the blurring between Irish and British nationality disappearing. Unacknowledged as it was for the most part, I thought it was the most accurate appraisal of our cultural and social ties. How strange that, just as the Irish take tentative steps to reconcile themselves with their British past (and present to a degree), the very British citizenship solution is ditched.
Update: I see Mick has more on this on Slugger and on CIF. There's also a few links and a discussion courtesy of Michael here.
Interesting post Ciarán. I
Interesting post Ciarán. I would tend to agree that it would be sad if the blurring you mention became a thing of the past. Of course an ideal solution would be the Republic of Ireland returning to the United Kingdom as a devolved administration. ;-)
There are a few
There are a few misunderstandings in both Lord Goldsmith's report and the above blog.
People in NI have been entitled to Southern Irish citizenship, under Southern Irish law, for at least 50 years: the Belfast Agreement did not change that (it merely restated it).
And - rather obviously - people in NI are UK citizens on the same basis as anyone in any other part of the UK.
Therefore, anyone from NI who considers himself, or is considered, to be a Southern Irish citizen, is still a UK citizen (dual citizenship).
If Southern Irish citizens resident in the UK were to lose their right to vote in Westminster elections, it would not affect people from NI, since they would still be UK citizens.
To say that "The GFA gives [Southern Irish citizens from NI] a status that distinguishes them from Irish citizens born in the ROI" is not true: in Southern Irish law, all citizens are equal. In UK law, UK citizens in NI are equal to UK citizens in GB.
Anyone who exercises their right under the Agreement to identify themselves as Irish and to take up Irish citizenship should not lose their right to vote in Westminster elections as a result of any change made to restrict voting rights to UK citizens.
How would it, since such people would remain UK citizens??
Hence it would be necessary to distinguish this group of Irish citizens from others.
No it wouldn't!
As I read it the question comes down to how one can to distinguish between Irish citizens born in NI and Irish citizens by virtue of ROI statutes without undermining the citizenship privileges of the former.
There is no question - the matter is quite simple.
That is: how, practically speaking, can the distinction be made without placing an undue burden on Irish citizens born in Northern Ireland, by say asking for proof of birthplace?
Why would there be any more need for proof of birthplace from a UK citizen born in NI than from a UK citizen born in GB?
Typical comment from
Typical comment from Willowfield. The Good Friday Agreement gives people born in Northern Ireland the right to be either Irish or British or both by self selection. So you can't simply say they're all British citizens the same as everyone else in the UK so what't the problem. They aren't - Northern Ireland isn't Finchley.
I think the proposal to remove shared voting rights is ludicrous. It's one thing the two countries have as a shared thing and a good thing. And in both countries, the single biggest "foreign" group is each other. We should be developing these things, not cutting them off.
Willowfield, I've no idea
Willowfield, I've no idea whether your comment is typical or not, but you're wrong enough to not get the point of the post. First, the GFA does make Irish citizens who are Irish citizens under the GFA different from Irish citizens who are Irish citizens by virtue of Irish statutes: read the relevant parts. An Irish citizen in NI can choose to become a British citizen or to hold dual citizenship. This option is not open to Irish citizens under ROI statutes who were born after 1949.
The chief problem arises when you try to distinguish between an Irish passport holder born in the UK and one eligible under ROI law (but not born in NI): how do you make the distinction between them? If you place a new burden on them, say the production of proof of place of birth, then you have placed an effective barrier on their joining the register.
In a narrow sense you are correct on dual citizenship in terms of access to many of the rights provided by the British state. But, if you read Goldsmith's report, you'll see that he wants to restrict one of these rights - voting - to people who are explicitly UK citizens, not in the 'access to rights' sense, but in a thicker, holder of a passport, declared an oath of allegiance sense. Hence the problem.
Smasher, British and Irish people are not quite foreign in each state, in the sense that French people or Americans are, but I think I agree with the sentiment as you and Checkov have it.
Willowfield, I've no idea
Willowfield, I've no idea whether your comment is typical or not, but you're wrong enough to not get the point of the post.
I don't think so.
First, the GFA does make Irish citizens in NI different from Irish citizens in the UK: read the relevant parts.
NI is part of the UK, therefore the above statement doesn't make sense. Do you mean Southern Irish citizens in NI are different from Southern Irish citizens in GB?
I don't understand: there is only one class of Southern Irish citizen as far as I know. Where are Southern Irish citizens divided into classes?
An Irish citizen in NI can choose to become a British citizen or to hold dual citizenship. This option is not open to Irish citizens under ROI statutes who were born after 1949.
I think this is where you misunderstand the GFA and, more pertinently Southern Irish and UK citizenship law. A person born in NI (generally speaking) is a UK citizen as of right: he does not "choose" to become one. He may choose to hold dual citizenship by considering himself to be a Southern Irish citizen under the relevant 2001 Southern Irish Act (and prior to 2001, he was able to choose dual citizenship by applying for Southern citizenship under the 1956 Act).
Under Goldsmith's proposals, therefore, Southern Irish citizens in NI would not lose the vote, since they would be entitled to vote as UK citizens. (Just as Southern Irish citizens in GB who held dual citizenship would not lose the vote.) Those people in the UK - both GB and NI - who only held single citizenship of the ROI - would be the only people to lose the vote.
The chief problem arises when you try to distinguish between an Irish passport holder born in the UK and one eligible under ROI law (but not born in NI): how do you make the distinction between them?
Why would there be any need to distinguish between "Irish passport-holders"? If the vote were dependent on UK citizenship, then holding or not holding an "Irish passport" would be completely irrelevant. Voters would presumably need to demonstrate UK citizenship to vote!
But, if you read Goldsmith's report, you'll see that he wants to restrict one of these rights - voting - to people who are explicitly UK citizens ...
Yes, and in making the recommendation Goldsmith misunderstands both the GFA and Southern Irish and UK law, since he raises a completely false problem about distinguishing between different categories of Southern Irish citizen. There are no different categories, but - more to the point - there would be no need to make any distinction.
the above statement doesn't
the above statement doesn't make sense...
Sorry yes: bad drafting. I've changed the comment to clarify that I meant Irish citizens by virtue of the GFA versus Irish citizens by virtue of Irish statutes.
I know that your stance has been pretty much refuted (at least to my satisfaction!) over on Slugger, but I also think you have highlighted that I haven’t been precise enough. So I’ll have another stab: I don’t think you’ll be any happier, but hopefully you’ve done me the favour of getting the dilemma down more coherently. I’ll not keep this brief (something I seem incapable of) but I won’t be saying much new to you either.
First, there is a distinction between Irish citizens under the GFA and Irish citizens under RoI statutes. Of course there is only one class of Irish citizens, but since we’re talking about the view of Irish citizens from the perspective of UK law, I’ve no idea why this is relevant. The GFA/RoI statutes distinction matters under British law and under Goldsmith’s vision of British law, not under Irish law.
Second, your reading of the GFA places the emphasis on the wrong spot. According to the Agreement, the governments
Your interpretation seems to take the first part of the sentence as referring to some sense of subjective self-identification. Then you interpret the second part, referencing citizenship as holding the possibility of dual citizenship open as supplementary to automatic British citizenship. A person born in Northern Ireland, by your interpretation (as you have it here) cannot be solely Irish unless he or she specifically renounces British citizenship.
But this seems strange. That second part of the sentence refers to any ‘future change in the status of Northern Ireland.’ In other words that, no matter what happens to Northern Ireland’s constitutional status, both British and Irish citizenship will be available for people to choose. As far as the first part of the paragraph goes, it must by any sensible interpretation entail people being able to chose Irish or British citizenship, both in the ‘passport holder’ sense and in the sense of their public self-descriptions. Otherwise, how would this paragraph fit in with the general tenor of the Agreement regarding equality of esteem for both traditions in the region?
A second possible part of your interpretation is the automatic British citizenship of people born in Northern Ireland: that they simply are British citizens (presumably in the ‘access to rights and privileges’ sense) whether they like it or not. Well, in the rights and privileges sense this is of course the case. But this is the point that Goldsmith is trying to make clearer than it is at the moment. As things stand, anyone born on the island of Ireland is a British citizen in this sense, once they are within the boundaries of the UK. Goldsmith wants to prevent Irish citizens who are Irish citizens by virtue of Irish statutes from availing of those Westminster voting rights and yet to maintain the right for Irish citizens by virtue of the GFA (remembering that the ROI statutes/GFA distinction is a descriptor of Irish citizenship from a UK perspective) so that his recommendations do not contravene the piece of the GFA cited above.
You think Goldsmith is mistaken because there’s a very simple solution for you: you are British unless you renounce it. If you renounce your British citizenship you won’t vote in Westminster. If you are Irish you won’t vote in Westminster. Problem solved. Well, apart from the fact that Goldsmith’s being one of Britain’s leading legal minds ought to at least give you pause before announcing that his perspective is susceptible to one sentence dismissals, your line is just too simple for two reasons.
The first one has mostly been set out above: you underestimate the declarative extent of the either/or/both citizenships available to people in Northern Ireland. Added to that, you have to bring Goldsmith’s line into the whole context. After all, the discussion is about what happens to Westminster voting rights under Goldsmith’s scheme.
Goldsmith is pursuing a far more declarative conception of citizenship than exists at present. Hence all the talk of being ‘students of citizenship’ and oaths of allegiance etc. All people become British citizens in this declarative through a series of actions. This is why there is a concern over the GFA. As it stands, the GFA prevents the British state from insisting that people born in Northern Ireland who regard themselves as Irish go through the series of declarations that Goldsmith envisages will constitute the journey to British citizenship. So, he has to make an exception for Irish people who are Irish because they were born in Northern Ireland with one or more parents who were Irish or British or both.
Now, here comes the second issue that you underestimate. Given all of the above, Goldsmith’s plan requires distinguishing between those Irish citizens who are Irish citizens under the GFA and people who are Irish citizens under Irish statutes (again, a reminder: this distinction is apparent from a British perspective only). How to do this? As I see it the problem is that no extra burden can be placed on Irish citizens in getting registered for Westminster elections so as to prove that they are Irish citizens (in the declarative sense) because they were born in Northern Ireland to at least on Irish or British parent. Such a burden would represent a bar on registering that would itself be a breach of the above paragraph from the GFA and - by virtue of that - of British election law.
My point in the original post was threefold. First, I wonder if the distinction be made in an effective but fair manner. Second, I think the rendering of (ROI statute) Irish citizens in the UK as aliens and vice versa for British citizens in the ROI would be a terrible pity. Third, Goldsmith’s report is an interesting meditation on how a declarative citizenship might be achieved. I don’t think it’ll happen and I don’t think Goldsmith has proposed particularly laudable innovations. But he’s interestingly wrong which for a report of this nature is the important thing.
Excellent post Ciaran.
Excellent post Ciaran.
I've changed the comment to
I've changed the comment to clarify that I meant Irish citizens by virtue of the GFA versus Irish citizens by virtue of Irish statutes.
But that doesn’t make sense either: there are no such “Irish citizens by virtue of the GFA” – all Southern Irish citizens are citizens by virtue of Southern Irish statutes (viz. Irish Nationality and Citizenship Act 1956 (as amended)).
I know that your stance has been pretty much refuted (at least to my satisfaction!) over on Slugger, but I also think you have highlighted that I haven’t been precise enough.
My “stance” hasn’t been refuted!
First, there is a distinction between Irish citizens under the GFA and Irish citizens under RoI statutes. Of course there is only one class of Irish citizens, but since we’re talking about the view of Irish citizens from the perspective of UK law, I’ve no idea why this is relevant. The GFA/RoI statutes distinction matters under British law and under Goldsmith’s vision of British law, not under Irish law.
You’re looking at this from the wrong angle. It is Southern Irish law which determines Southern Irish citizenship: not British law. British law has nothing to say on the matter (unless you consider the GFA to be part of British law, in which case all the GFA does is “recognise” the fact that Southern Irish law grant citizenship to people born in NI). In terms of Goldsmith’s proposal what would matter is whether someone was a UK citizen: not whether they were a citizen of Southern Ireland or anywhere else.
recognise 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, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.
Your interpretation seems to take the first part of the sentence as referring to some sense of subjective self-identification. Then you interpret the second part, referencing citizenship as holding the possibility of dual citizenship open as supplementary to automatic British citizenship. A person born in Northern Ireland, by your interpretation (as you have it here) cannot be solely Irish unless he or she specifically renounces British citizenship.
That must be the correct interpretation, since the legal position as regards citizenship is as you have described. If it weren’t, then the GFA provision would be contradictory.
But this seems strange. That second part of the sentence refers to any ‘future change in the status of Northern Ireland.’ In other words that, no matter what happens to Northern Ireland’s constitutional status, both British and Irish citizenship will be available for people to choose. As far as the first part of the paragraph goes, it must by any sensible interpretation entail people being able to chose Irish or British citizenship, both in the ‘passport holder’ sense and in the sense of their public self-descriptions. Otherwise, how would this paragraph fit in with the general tenor of the Agreement regarding equality of esteem for both traditions in the region?
The fact that the “right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland” is merely a commitment by the UK government to allow people born in Northern Ireland to continue to be UK citizens in a future “united Ireland”. Presumably they would also, in such circumstances, be ROI citizens as of right – there would be no right to “choose” then as there isn’t now. I don’t see how that is strange. (Whether people born in the former NI after its absorption into the South would be entitled to UK citizenship is not clear.)
As for your point about “equality of esteem”: people born in NI – a part of the UK - being citizens of the UK does not have any bearing on that.
A second possible part of your interpretation is the automatic British citizenship of people born in Northern Ireland: that they simply are British citizens (presumably in the ‘access to rights and privileges’ sense) whether they like it or not. Well, in the rights and privileges sense this is of course the case. But this is the point that Goldsmith is trying to make clearer than it is at the moment. As things stand, anyone born on the island of Ireland is a British citizen in this sense, once they are within the boundaries of the UK. Goldsmith wants to prevent Irish citizens who are Irish citizens by virtue of Irish statutes from availing of those Westminster voting rights and yet to maintain the right for Irish citizens by virtue of the GFA (remembering that the ROI statutes/GFA distinction is a descriptor of Irish citizenship from a UK perspective) so that his recommendations do not contravene the piece of the GFA cited above.
Again – your interpretation is based entirely on a false premise: that there are different classes of Southern Irish citizen (by virtue of Southern Irish statutes, and by virtue of the GFA). One can only be a Southern Irish citizen by virtue of Southern Irish statute: the GFA is merely a high-minded statement of recognition and support by each government of the other’s citizenship laws.
The only problem – from a NI point of view – from Goldsmith’s plan is the fact that many nationalists in NI prefer to pretend that they are not UK citizens and, presumably, would not wish to state on the electoral form that they are UK citizens. I am sure this could be “got round” by framing the question in some clever way that avoids requiring the over-sensitive nationalist to tick a box saying he is British.
In any case, the plan won’t happen and neither will the “swearing allegiance to the Queen” nonsense.
Thanks again Willowfield:
Thanks again Willowfield: this is very interesting. First I agree with you that this is all pretty unlikely to happen. Nonetheless it's provoked a good debate on the nature of British citizenship (not least on Slugger) and that, I suspect, is as much its purpose as actual policy prescription.
I think we can agree to disagree on the possibility of developing non-onerous verification procedures that actually distinguish the eligible from the non-eligible (and that appeal to the over-sensitive nationalist!).
The more interesting issue is that of the GFA and its implications or not for British and Irish citizenship. Your line is that it has no bearing on citizenship beyond guaranteeing access to dual citizenship for people born in NI. I argue that there is more to it than that. Getting something convincing down merits a post on its own (and a bit of reading on my part), so I'll have to leave it until after work. Still: watch this space!
I think we can agree to
I think we can agree to disagree on the possibility of developing non-onerous verification procedures that actually distinguish the eligible from the non-eligible (and that appeal to the over-sensitive nationalist!).
I’m sure we can agree to disagree … but why do you think such procedures are not possible? Remember, for example, that there are other situations in Northern Ireland which being a UK citizen is a requirement, e.g. (I think) civil service employment, where tens of thousands of nationalists are employed.
The more interesting issue is that of the GFA and its implications or not for British and Irish citizenship. Your line is that it has no bearing on citizenship beyond guaranteeing access to dual citizenship for people born in NI.
Well, it did have a not insignificant effect in that the South changed its citizenship law as a result of the GFA in 2001. Prior to 2001, people born in NI were entitled to be Southern Irish citizens, but they weren’t assumed to be so and were expected to apply (presumably applying for a passport was considered to be an application for citizenship). After 2001, the law changed so that there is no such necessity to “apply” to be a citizen: without doing anything, you are “not presumed not to be one” (!).
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