Content uploaded by Randall Hansen
Author content
All content in this area was uploaded by Randall Hansen on Apr 12, 2016
Content may be subject to copyright.
RANDALL HANSEN
Christ
Church,
Oxford
The Politics of Citizenship in
1940s Britain: The British
Nationality Act*
Abstract
The article examines the enactment of the British Nationality Act, 1948. The
legislation created a legal status—Citizenship of the UK and Colonies—that
included Britons and 'colonial' British subjects under a single definition of British
citizenship, and entrenched their right to enter the UK. Between 1948 and 1962,
some 500,000 non-white British subjects entered under the legislation, despite
documented evidence of elite suspicion of non-white Commonwealth migration.
The article argues that this apparent contradiction can only be understood by
examining the legislation in the context of past migration patterns and Britain's
international position in 1948. The legislation was only marginally related to
migration; it was rather an attempt to maintain a uniform definition of
subjecthood in the face of Canada's unilateral introduction of its own citizenship,
and it was an affirmation of Britain's place as head of a Commonwealth structure
founded on the relationship between the UK and the Old Dominions.
The British Nationality Act,
1948,
removed the status of 'subject of the King' as
the basis of British Nationality, and substituted for allegiance to the Crown the
concept of a number . . . [of] separate citizenships combined together by
statute. The British Nationality Act, 1948, thus brought about an immense
constitutional revolution, an entire alteration of the basis of our subjecthood
and nationality, and since the fact of allegiance to the Crown was the uniting
element of the whole Empire and Commonwealth it brought about a corres-
ponding revolution in the nature of the unity of Her Majesty's dominions.
Enoch Powell, House of Commons, 3 March 1953.
* For comments on earlier drafts, I owe my thanks to John Dorvvin, Katie Goebs, Iain
McLean, and Desmond King.
Twentieth
Century
British
History,
Vol.
10,
No.
1,1999,
pp.
67-95
© OUP1999
68 RANDALL A. HANSEN
In 1948, Clement Attlee's Labour government adopted a piece of
legislation entrenching the right of all British subjects to enter the United
Kingdom and enjoy all the social, political, and economic benefits of full
citizenship. Between that year and 1962, approximately 500,000 new
Commonwealth immigrants
(i.e.
immigrants of colour) entered the United
Kingdom.
1
These individuals, and their spouses and dependants who
joined them in the 1960s and 1970s, constitute the bulk of the United
Kingdom's approximately 2.6 million members of ethnic minorities.
2
The
British Nationality Act
(BNA),
a largely misinterpreted piece of legislation,
was the legal foundation for the transformation of Britain into a multi-
ethnic society, an almost exclusively postwar phenomenon.
3
The migration was one for which few demonstrated enthusiasm. The
earliest measurement of the public mood demonstrated hostility to new
Commonwealth immigration,
4
and both Labour and Conservative
governments gave serious consideration to the possibility of restricting it.
During the BNA's passage through Parliament in 1948, the arrival of 500
Jamaicans surprised the government, and the Minister of Labour, George
Isaacs, told Parliament that he hoped '... no encouragement will be given
to others to follow their example'.
5
Two years later, when Britain's
immigrant population stood at no more than
30,000,
the Cabinet set up a
special committee of ministers to explore the means that might be adopted
to check 'coloured immigration' into the country.
6
The Cabinet ultimately
recommended against immediate restrictions, but it stated that 'serious
difficulties' would result if colonial immigration continued, and controls
would likely be necessary.
7
In
1954,
Churchill's Cabinet invited the Home
Secretary (Lloyd-George) and the Colonial Secretary (Lennox-Boyd) to
prepare a draft bill restricting immigration,
8
and Eden seriously considered
placing it before Parliament.
9
1
The terms 'new' and 'old' Commonwealth refer to the countries' dates of independence.
2
T.
Jones,
Britain's Ethnic Minorities
(London,
1993),
p.
12.
3
There had, of course, been people of colour in the United Kingdom for centuries. Their
presence was, however, small (estimated at 20,000-30,000 in 1950), and it was not until the
1950s
that substantial numbers arrived.
4
Gallup first measured attitudes
to
immigration in September
1958.
Almost two-thirds of
respondents supported restrictions on immigration. See
Attitudes Towards Coloured People
in
Great
Britain,
1958-1982
(London, 1982).
5
Parliamentary Debates (Commons),
(8
June
1948),
col.
1851.
6
For the report, see
PRO,
CAB
129/144, 'Immigration of British Subjects into the United
Kingdom: report by a Committee of Ministers',
12
February
1951.
' PRO, CAB 128/17, CM (50) 13th Conclusions, 20 March 1950. The Cabinet expressed
concern about future increases in immigration from the new Commonwealth and the potential
for Britain's
relatively
generous social services to attract surplus population from
this
area.
See
PRO,
CAB
128/17,
CM
(50)
37th
Conclusions,
19 June 1950.
'
PRO,
CAB
128/27,
CC (54)
82nd
Conclusions,
6
December
1954.
9
PRO,
PREM11
/824,
Draft
Bill to
restrict entry of certain British subjects, British Protected
Persons, and citizens of the Irish Republic, and for deportation of such subjects and persons,
23
October
1955.
THE POLITICS OF CITIZENSHIP 69
A series of revisionist analyses have used these and other deliberations
to argue that both governments were motivated by a racist desire to
exclude immigrants from British society.
10
The question these scholars fail
to pose, however,
is
why the Conservative and Labour parties co-operated
in constructing a liberal system of nationality law from which they so
quickly distanced themselves.
This article focuses on this question. The BNA has been profoundly
misunderstood because it has been analysed in isolation from the political
aims and realites of the late
1940s.
The
1948
Act has been examined within
the framework of immigration, because its consequences have manifested
themselves in this area. For those who drafted and endorsed the
legislation, however, immigration was tangential to the fundamental con-
stitutional issue: the need to ensure the uniformity of British subjecthood,
the possession of identical rights and privileges by all British subjects in
the Commonwealth and Empire, which had been undermined by
Canadian legislation in
1946.
The BNA was a direct response to Canada's
action,
but it was also a reflection of
the
political landscape in the late 1940s.
It was enacted during a period of profound cross-party enthusiasm for the
Commonwealth, at a time when the Commonwealth signified its three
white Dominions. These political conditions were ephemeral, but they are
fundamental to understanding the British Nationality Act of
1948.
Intra-Imperial Migration and the Canadian Citizenship Act
The impetus for the BNA originated in Canada. In 1945, the Canadian
Prime Minister, Mackenzie King, announced his government's intention to
introduce in 1946 a citizenship Act that would define Canadian citizenship
through statute and declare that all such citizens would henceforth possess
British subject status in consequence of their possession of Canadian
citizenship. Although such legislation hardly appears to be the basis of a
constitutional revolution, it marked the end of a centuries-old definition of
British subjecthood. In
1608,
the English courts had heard
a
case brought on
behalf of a Scottish child, Robert Calvin, over the Scottish possession of
English lands. Central to the argument was the question of subjecthood:
before 1608, Scots were aliens in England, whether they were born before
10
See
B.
Carter et a/., The 1951-1955 Conservative Government and the Racialization of
Black Immigration',
Immigrants and
Minorities,
7/3 (1987), pp. 335-47, p.
336,
and p. 345 and
J.
Solomos,
Race and Racism
in
Contemporary Britain
(London,
1989),
pp.
46-51.
The thesis has
been accepted by S. Brooke, The Conservative Party, Immigration, and National Identity,
1948-1968', in
I.
Zweiniger-Bargielowska
et
al.
(eds),
77K
Conservative Party and British Society
(Cardiff,
1996)
and
K.
Lunn, The British State and Immigration,
1945-1951:
New Light on the
Empire
Windrush',
in
T.
Kushner and
K.
Lunn
(eds),
The Politics
of
Marginality:
Race,
the Radical
Right and Minorities
in
Twentieth Century Britain
(London,
1990),
p.
172.1
should like to thank
Stephen Brooke for allowing me to view a copy of
his
paper in advance of publication.
70 RANDALL A. HANSEN
or after King James I (previously King James VI of Scotland) became King
of Great Britain in
1604.
The courts (apparently under the influence of the
Commons, which sought Scottish legal observance and Scottish taxes)
ruled that Calvin was not an alien; all Scots born within King
James'
realm
were English subjects, while those born before were not.
11
Calvin's case is recognized by constitutional historians to be the origin
of allegiance as a cornerstone of English common law.
12
'Allegiance'
implies two
conditions:
first, the bond is a direct, unmeditated relationship
between King and subject and, second, any privileges attached to one's
status as subject are granted by the sovereign and are exercised at his
pleasure; they are not claimed by the subject against his sovereign. These
features distinguish a 'subject' from a 'citizen'; the latter enjoys his status
through membership in a community enjoying the same status and makes
claims against the state based on this membership.
The essentially feudal concept—everything within the realm of the Lord
belongs to the Lord—remained unaltered as Britain entered the imperial
age.
13
All those born within the sovereign's Empire were deemed British
subjects and enjoyed, in theory, all privileges accruing thereto. The only
precedent for such a conception of membership is, to my knowledge, the
Roman. As the Empire expanded, Roman citizenship was conferred on
peoples in the occupied territories. Roman citizenship, like the British,
recognized no borders within the Empire.
14
The comparison was not lost on
British statesmen, who often invoked
Civis Britannicus sum
as a sentimental
expression and defence of subjecthood's indivisibility. In 1954, Henry
Hopkins (Colonial Secretary) told the House of Commons that 'In a world
in which restrictions on personal movement and immigration have
increased we can still take pride in the fact that a man can say Civis
Britannicus
sum whatever his colour may be, and we take pride in the fact
that he wants and can come to the Mother country.'
15
11
Those born in Scotland while Queen Elizabeth ruled England were not under the
obedience of King James and were, therefore, aliens. See
A.
Dummett and A. Nicol,
Subjects,
Citizens, Aliens and Others: Nationality and Immigration Law (London, 1990), pp.
59-63.
12
See J. Mervyn
Jones,
British Nationality Law (Oxford, 1956), p.
51;
and
C.
Parry, Nationality
and Citizenship Laws
of
the Commonwealth and
of
the Republic
of
Ireland
(London, 1957).
13
This is something of an oversimplification. The question of distinctions between British
subjects (in addition to the fundamental distinction between subjects and citizens) continued
to be a matter of controversy into the seventeenth and eighteenth centuries (for example, the
status of subjects in Ireland and in Hanover), and the principle of jus
soli
operated with jus
sanguinis
(at times British subjects had to be born within the sovereign's realm to be a British
subject, while persons born to a subject, but outside the sovereign's territory, continued to be
British subjects; see Parry, Nationality and Citizenship Laws of
the
Commonwealth, pp. 47-65.) The
important point
is
that the principle behind Calvin justified the grant of British subjecthood to
persons in the dependent territories.
" On this, see W. H. Hadow,
Citizenship
(Oxford, 1923), chapter 7
('Citizenship
and
Empire').
a
Parliamentary Debate (Commons),
(5
November
1954),
col.
827.
THE POLITICS OF CITIZENSHIP 71
A fundamental feature of allegiance is indivisibility; all subjects enjoy
precisely the same relationship with the monarch and no distinction can
be made between them. One logical corollary of this definition was that
free movement should have been guaranteed throughout the Empire
and Commonwealth. Within the Commonwealth, this was relatively
unproblematic. The maintenance of free movement did exist, and the chief
beneficiaries of this system were, as one would expect, Britons.
16
The Dominions were less enraptured with the idea of a common
status throughout the British Empire and Commonwealth. Their status as
Dominions created a tension in nationality law: because their members
enjoyed their privileges through a direct 'grant' from the Crown without
mediation by local citizenship, they lacked a clear constitutional basis for
distinguishing between their members and other British subjects; yet their
status as Dominions, which entailed autonomy in most domestic matters,
implied precisely this distinction and the ability
to
control the movement
of
persons through their territories. This tension manifested itself in the
nineteenth century, when the migration of Indian labour throughout the
Empire was obstructed by the Dominions' restrictionist policies on entry.
17
The issue was addressed by the British government at the imperial
conference of 1911, which had among its aims the preservation of the
migratory system by harmonizing the process of imperial naturalization.
18
By establishing identical conditions for naturalization in all parts of the
Empire and Commonwealth, the conference hoped to reconcile Dominion
autonomy in matters of population movement with the principle of
non-distinction between British subjects. The result was the British
Nationality and Status of Aliens Act of 1914, which defined as a
British subject anyone who was a person, or a descendent in the male line
of a person, '. . . born within His Majesty's dominions and allegiance'
19
(i.e.
within the old Commonwealth or Empire). Since the doctrine of
" Non-European British subjects in the colonies theoretically enjoyed the right of free
movement within the Empire but few had the resources to avail themselves of it. From the
nineteenth century, this right became increasingly restricted as various colonial immigration
laws created, for the purposes of immigration control, distinctions between British subjects.
See Dummett and
Nicol,
Subjects,
Citizens,
Aliens and
Others,
pp. 123-4.
17
N. Deakin,
"The
British Nationality Acf,
Race,
11/1
(1969),
pp.
77-83,
p.
78.
Australia and
Canada also enacted
restrictions
on Chinese immigrant labour. At the Conference of Australian
Colonies in
1881,
the Australian Premiers decided to fine shipowners landing
in
Australia with
an immigrant/ tonnage ratio higher than 1:100 and charged a landing fee for all immigrants.
In
1885,
Ottawa enacted the Chinese Immigration
Act,
which adopted a similar immigrant to
tonnage ratio and imposed
a
'head-tax' of
$50
on Chinese
immigrants.
This
was raised
to $100
in
1900
and a crippling
$500
in
1903.
On
this,
see Dummett and Nicol,
Subjects,
Citizens,
Aliens
and Others, p. 117.
" Dummett and Nicol,
Citizens,
p.
122.
" British Nationality and Status of Aliens Act
(The
Law Reports,
Vol.
UL1914), Section
1(1).
The Act also granted the status to anyone whose father was a British subject or who was
'... born on board a British ship whether in foreign territorial water or nof.
72 RANDALL A. HANSEN
indivisibility was maintained, the statutory definition of subjecthood
should have, in principle, been reaffirmed and strengthened. The Act,
however, also conceded Dominion demands and gave statutory recog-
nition to the practice of distinguishing between British subjects.
20
This
provision contradicted the principle underlying subjecthood—that all
subjects have identical
rights,
obligations, and status due to their allegiance
to the Crown—and the British government sought to temper it by securing
informal agreement between the Dominions to a 'common code' of British
nationality. This amounted to an undertaking by the Dominions to
maintain closely similar nationality laws and to respect
the
convention that
substantial amendments to the common code were '. . . matters for prior
consultation and agreement between members of the Commonwealth'.
21
No Dominion, in principle, should have unilaterally altered the common
status possessed by all British subjects.
22
Like much legislation concerned with the Commonwealth, the 1914
Nationality Act broke no new ground; rather, it attempted to reconcile in
statute extant Dominion practices with past imperial doctrine. Like much
imperial legislation, it was soon called into question by new Dominion
initiatives. The 1914 Act implied a distinction between the common status
(to which all Dominions were to subscribe) and its local manifestation
(which allowed immigration control).
23
In 1918, the UK further agreed
that each Dominion government should have complete control over
immigration, subject to the proviso that British subjects, once admitted,
would enjoy reciprocal rights in all territories under the Crown.
24
The
imperial conference of 1921 further affirmed Dominion autonomy in
nationality questions by conceding that each old Commonwealth country
could settle its citizenship, but it expressed the hope that any deviation
from the common code would be insignificant and exceptional.
25
Canada
passed legislation in 1921 that came close to violating the agreement to
prior consultation, and South Africa followed suit in 1927.
26
Those
20
The
British Nationality and Status of Aliens Act
(1914),
Section
26 (1)
stated that 'Nothing
in
this Act shall take away or abridge any power vested
in,
or exercisable
by,
the Legislature or
Government of any British Possession, or affect the operation of any law at present in force
which has been passed in the exercise of such a
power,
or
prevent any Legislature or Government
from
treating
differently different classes
of
British
subjects'
(emphasis added).
21
PRO,
PREM
8/851,
'Statement on the considerations involved in the proposed change in
the British Nationality Law', Appendix to a Joint Memorandum by the Home Secretary and
the Secretary of State for Dominion Affairs, 29 July 1946.
22
Deakin, 'The British Nationality Act of
1948',
p.
78.
23
Parry, Nationality
and Citizenship Laws
of
the
Commonwealth,
p.
85.
24
Deakin,
"The
British Nationality Act of
1948',
p.
78.
25
Patrick Gordon
Walker,
The Commonwealth
(London,
1962),
pp.
166-9.
26
Both Acts made local nationality a subdivision of British Nationality ('a small circle
within a larger') and therefore maintained the primacy of
allegiance.
The 1946 Act departed
from this and Canada repealed its statute corresponding to the British Nationality and Status
THE POLITICS OF CITIZENSHIP 73
Dominions that respected the code did so only by delaying or abandoning
much-needed reform.
27
Ireland took the most assertive action in
1935.
The
Irish Nationality and Citizenship Act of that year defined Irish citizens and
classified all others, including British subjects, as aliens.
28
This initiative
could nevertheless be dismissed as the impetuosity of a reluctant and not
entirely loyal member of the Commonwealth, while all previous decisions
could be said to fit, however uncomfortably, within the broad framework
of the common code. All subjects possessed their privileges through a
direct grant from the Crown, and these privileges, although not identical
throughout the Empire and Commonwealth, were at least equal in the
United Kingdom. This balance could no longer be supported after
Canada's introduction of the Canadian Citizenship Act.
The Act defined Canadian
citizens,
declared that 'a Canadian citizen
is
a
British subject'
**
and recognized as a British subject under Canadian law
any person who had that status under the laws of any country within the
Commonwealth.
30
The relationship between the sovereign and British
subjects in Canada was, for the first time, mediated through citizenship.
Instead of emanating from a direct relationship between individuals and
the King, those individuals could now only attain subject status through
Canadian citizenship. British subjecthood was relegated to a status
derivative of citizenship.
The Canadian initiative was regarded by British policy-makers as the
first fundamental breach of the doctrine of the indivisibility of subjecthood
throughout the Empire and Commonwealth.
31
It could not be argued that
the change was an exceptional one affecting only Canadians, and that the
common code could be maintained between all the nations except Canada,
which would have a unique relationship with the Crown whereby
allegiance derived from local citizenship. In theory, this was impossible
because the binding capacity of the common code stemmed from its appli-
cation to all members of the Commonwealth. The Canadian Citizenship
Act affected '. . . the whole Commonwealth and thereby destroys the
existing bond of union and substitutes a purely statutory connection'.
32
In
of Aliens Act, 1914. PRO, HO 213/410, 'British Nationality Bill. Mr. Ede. Clause 1.
Supplementary Note', undated.
27
PRO,
PREM
8/851,
'Statement on the considerations involved
in
the proposed change in
the British Nationality Law', Appendix to a Joint Memorandum by the Home Secretary and
Secretary of State for Dominion Affairs, 29 July 1946.
25
Ireland left the Commonwealth altogether in
1949,
shortly after the passage of the British
Nationality Act.
29
Canadian Citizenship Act (Statutes of Canada,
1946),
Section
26.
30
Canadian Citizenship
Act,
Section
28.
31
Gordon Walker,
The
Commonwealth,
p.
167.
52
The Private Papers of Lord Simon, the Bodleian Library, Oxford,
MS
Simon
97,
'British
Nationality
Bill
1948',
Note by Secretariat, undated.
74 RANDALL A. HANSEN
practice, such a violation of the code had already occurred as a result of
Ireland's Nationality Act. The Irish decision could, however, be dismissed
as an exception on the margins of the Commonwealth. Canada, by
contrast, was a country at its centre, one 'whose devotion to the Crown
[was] above question'.
33
According to Patrick Gordon
Walker,
it w a s ' . . . a
revolutionary departure for a country fully in the Commonwealth to
define its own citizens in terms that differentiated them from all British
subjects'.
34
The consequences of Canada's action were threefold. Since citizenship
was defined without reference to the common code, individuals could
be British subjects in Canada without being so in other parts of the
Commonwealth. Were Canada to recognize as Canadian citizens a certain
class of women who did not have subject status conferred via the old
'direct-grant' system, they would be British subjects in Canada but not in
the United Kingdom. Uniformity could only be re-established if all
members of the Commonwealth were to recognize all British subjects in
Canada as British subjects throughout the Commonwealth. This was
unlikely because Canada repealed its statute corresponding to the British
Nationality and Status of Aliens Act, 1914, on which the common code
rested.
35
Furthermore, in those instances when Canada's citizenship laws
denied British subject status to a particular class of persons which retained
that status under the direct-grant system, Britain would be maintaining
its status against the wishes of the Canadian Parliament. This, as Labour
recognized, would be '. . . tantamount to saying that [Britain] knew
better than the other countries concerned what persons belonging to
those countries ought to be British subjects and would go perilously near
to a claim by this Parliament to legislate on a matter affecting another
self-governing country of
the
Commonwealth, irrespective of
the
wishes
of
its government and Parliament..
Z.
36
In making subjecthood derivative of
citizenship, and by failing to link citizenship to the common
code,
Canada
opened a Pandora's box of legal inconsistency.
37
33
The Private Papers of Lord Simon, 'British'.
31
Gordon Walker,
The
Commonwealth,
p.
167.
35
The Dominions had incorporated the provisions of the 1914 British Nationality and
Status of Aliens Act into their statutes. See Parry,
Nationality
and
Citizenship Laws
of
the
Commonwealth,
p.
84.
36
PRO,
HO
213/410,
untitled memorandum, undated. Such
a
claim would be offensive to
the Dominions, and it would have violated the
1931
Statute of Westminster.
37
Inconsistency had, to some extent, existed before the Canadian Citizenship Act. The
uniformity of subjecthood applied only to the
UK's
treatment of
all
British subjects, not to the
Dominions' treatment of them. South Africa, for example, recognized British subjects of
German descent who were not so recognized
in
the United
Kingdom.
The anomalies, however,
were numerically insignificant, and the basic principle of allegiance—that privileges enjoyed
(at least in the United Kingdom) derived from a direct, unmediated relationship between
sovereign and subject—was formally maintained until
1946.
For
a
discussion that emphasizes
these anomalies, see Parry,
Nationality and Citizenship Laws
of
the
Commonwealth,
chapter
2.
THE POLITICS OF CITIZENSHIP 75
As the Act broke the centuries-old bond between subject status and the
British Crown, it also became possible for Canada, and any Dominion that
followed its lead, to grant citizenship (and therefore British subject status)
to its citizens while repudiating the attachment of those same citizens to
the Crown.
38
These individuals could enjoy full rights within the United
Kingdom without recognizing the legitimacy or authority of the Crown.
Although Britain would soon reconcile itself to the constitutional oddity
of
an Indian Republic within the Commonwealth, such a notion was viewed
with dismay, not to say horror, in 1945.
These were the constitutional issues at stake when the Labour govern-
ment was informed of the Canadian decision in late 1945, and they were
taken extremely seriously within both the Cabinet and Whitehall. There
was,
in addition, a broader political concern voiced in London: Labour
detected in the Canadian decision the rumblings of Dominion nationalism.
These were not without precedent. Since the end of the First World War,
Canada, Australia, and South Africa had asserted their independence
and autonomy in foreign affairs. They took a series of initiatives, such as
negotiating independent treaties with the United States and appointing
legations to non-Commonwealth countries without the consent of the
Foreign Office, which highlighted the fact that the Dominions were emer-
ging as nations with interests separate from Britain.
39
When the Canadian
government informed Britain of its intention to pass a citizenship bill, the
Home Secretary, Chuter Ede, rightly believed that Canada's decision
reflected a broader dissatisfaction in the Dominions with the slight to their
sovereignty implied in the old
system.
40
.
The Dominions' impatience was
highlighted by Canada's failure to consult the United Kingdom before
unilaterally undermining the common code, an action that led the
Dominion Secretary, Viscount Addison, to support its reform.
41
Labour
38
The Private Papers of Lord Simon,
MS
Simon
97,
'British Nationality Bill
1948',
Note by
the Conservative Parliamentary Secretariat, undated.
39
In
1928,
South Africa negotiated
a
convention with Mozambique without consulting the
Foreign Office, and the Dominion made a South African-German trade treaty which
threatened
to
undermine the principle of imperial preference. Canada, against British protests,
appointed a Minister
to
Japan,
and in
1930
unsuccessfully attempted to respond to
a
Chinese
request for
a
Canadian Legation. These developments, and the Dominions' opposition to any
system of imperial preferences which threatened their economic interest or autonomy,
demonstrated a growing Dominion resolve to assert their status as autonomous nations. See
R.
F.
Holland, Britain and the Commonwealth Alliance 1918-1939 (London, 1981), pp. 77-82.
40
PRO, PREM 8/851, 'Changes in British Nationality Law: Joint Memorandum by the
Home Secretary and the Secretary of
State
for Dominion Affairs',
29
July 1946.
"
PRO,
PREM
8/851,
'Canadian Citizenship
Bill:
CP
(45)
287,
Note from Norman Brook to
Attlee,
21
November
1945'.
The Home Secretary (Chuter Ede) and the Secretary of State for
Dominion Affairs (Viscount Addison) stated that '[t]he fact that the Canadian Government
failed to take the prior step of consultation and agreement before introducing
a
Bill involving
such fundamental changes in the common code is itself of some significance as an indication
of a breakdown in the working of the principles underlying the present system'. PRO, DO
76 RANDALL A. HANSEN
believed that were the common status not reconstituted on a new basis,
there existed '. . . a danger that one or more of the Dominions may in the
future be disposed to drop the common status altogether and give way to
demands from within for completely separate nationhood'.
42
Australia
indicated shortly after the Canadian initiative that similar legislation
would
be
introduced,
43
and Labour thought that South Africa would follow
the same course.
44
Canada's action marked a further step toward constitutional dis-
engagement from the United Kingdom, and it served as a warning to the
British government of things to come. In light of what we know about
the expansion and fragmentation of the Commonwealth in the 1950s and
1960s, any effort to retain Dominion loyalty through a system of subject-
hood appears misplaced, and the motivation for doing so unclear. In 1945,
however, the old Dominions were central to British foreign and economic
policy, and the British political elite viewed them with great affection.
Contemporary imperial nostalgia recalls the exoticism and romanticism
of
the Empire, especially that of its Indian Jewel. For policy-makers in the
1940s, however, the old Dominions—Canada, New Zealand, Australia,
and South Africa—were the centre of the Commonwealth.
45
They had been
loyal during the war; they were home to
the
bulk of Britain's emigrants, its
'kith and kin'; and they were central to its foreign policy.
British policy-makers' commitment to the Dominions was underlined
by the continuation of sponsored emigration to these countries. From 1945
through the 1950s, British governments negotiated a series of emigration
schemes with Australia and South Africa (1945), New Zealand (1947),
and Canada (1951), as well as a more limited arrangement with Southern
Rhodesia (1947).
46
Emigration served a number of goals. For the Dom-
inions themselves, British immigration increased their sparse populations
and allowed them to exclude South European, East European, and Third
World migration. Like the United States at the time, the Dominions based
their immigration policies on ethnicity and national origin, seeking to
preserve their British/white character. For Britain, the maintenance of a
British presence in the Dominions promised to orient their populations'
35/1384, 'Statement of the considerations involved in the Proposed Changes in British
Nationality Law', Annex to 'Changes in British Nationality
Law:
Memorandum by the Home
Secretary and the Secretary of State for Dominion Affairs', undated.
42
PREM, 8/851, 'British Nationality Law: Memorandum by the Secretary of State for the
Home Department',
30
August 1946.
43
PRO,
DO
35
/1384,
'Statement of the considerations involved
in
the Proposed Changes in
British Nationality Law', Annex to 'Changes in British Nationality
Law:
Memorandum by the
Home Secretary and the Secretary of State for Dominion Affairs', undated.
44
PRO,
DO
35/1384,
'Statement
7
.
45
A
conversation with John Darwin clarified this point.
44
See K. Paul, Whitewashing Britain: Race and Citizenship in the Postwar Era (Ithaca, 1997),
chapter
2.
THE POLITICS OF CITIZENSHIP 77
sentiment and their leaders' policy towards the UK. Such support would
temper Dominion nationalism, encourage international support for the
UK, and strengthen Britain's international position as holder of an empire
and as first among equals in the Commonwealth. As Kathleen Paul has
recently argued, British policy rested on the ' . . . conviction that the right
policies could contain dominion nationalism within the rubric of British
subjecthood'.
47
It was the relationship between Britain and the old Dominions, given
institutional expression in the doctrine of subjecthood, which was to be
preserved in the face of Canadian unilateralism and Dominion
nationalism. The Canadian initiative's potential for encouraging such
aspirations made it of paramount importance that a common status be
created for all British subjects.
48
On
16
November
1945,
the
Cabinet considered Chuter Ede's proposal for
a meeting of experts from Commonwealth countries
to
assess
the
Canadian
Bill's implications.
49
The Cabinet approved the proposal the following
week, and over the next eight months the Dominion governments agreed
to amend British nationality law. The British government convened a
conference of Commonwealth experts in London in February 1947.
50
They formulated a United Kingdom and colonies' citizenship that would
confer British subject status through British legislation.
51
In defining the
principles, the Cabinet followed Canada's lead: a reconstructed common
status was to be based on a citizenship system in which a 'citizenship of
the United Kingdom and Colonies' (CUKC) would be the 'gateway'
through which individuals would achieve subject
status.
52
The direct bond
between sovereign and subject was abandoned at a stroke.
" Paul, Whitewashing Britain, p. 26.
48
PRO,
DO
35/1384,
'Statement of the considerations involved in the Proposed Changes in
British Nationality Law', Annex to 'Changes in British Nationality
Law:
Memorandum by the
Home Secretary and the Secretary of
State
for Dominion Affairs', undated.
"
PRO,
PREM
8/851,
'Cabinet.
Changes
in
the British Nationality Law. Joint Memorandum
by the Home Secretary and the Secretary of
State
for Dominion Affairs', 29 July 1946.
50
PRO,
PREM
8/851,
CM
(46)
80th Conclusions,
9
September 1946.
51
PRO, PREM 8/851, CM (46) 80th Conclusions, 9 September 1946. Old Dominions'
representatives and British civil servants participated in the deliberations.
a
The other principles were (1) the inclusion of Indian, Burmese, and Newfoundland
(which joined Canada in
1949)
representatives,
(2)
these countries should be treated
as
nations
with the right to enact citizenship legislation, (3) the need to create provisions which ensure
the preservation of British subjects' status in Ireland should
Eire leave
the Commonwealth, and
(4)
all Irish
citizens,
on the condition of reciprocity, should enjoy
all
the rights of CUKCs when
in the UK. On the terminology, there was in 1945 pressure from India to find a legislative
alternative to the term 'British
subjecf,
which it viewed as anachronistic and reminiscent of
previous patterns of domination. Ceylon supported this change, Southern Rhodesia strongly
opposed it, and the old Dominions were of mixed (and less strident)
opinions.
See
PRO,
PREM,
8/851,
'Commonwealth Citizen', Memorandum prepared for the Prime Minister, Home
Secretary, Chancellor of the Exchequer, and Lord Chancellor,
1
May
1948.
Section 1(2) of the
Act equated the term 'British subjecf with 'Commonwealth citizen'.
78 RANDALL A. HANSEN
The British Nationality Act
The
Bill
was based on six categories of
citizenship.
These were:
(a) Citizenship of the United Kingdom and Colonies: for the United
Kingdom and non-independent countries;
(b) Citizenship of independent Commonwealth countries;
(c) British subjects in Ireland: although Eire chose not to participate in the
1948 scheme on the same terms as the independent Commonwealth
countries (category
b),
citizens of Eire would not become aliens follow-
ing the passage of BNA if they had previously been British
subjects.
The
Irish could retain their status as British subjects by making a written
request to the Secretary of State;
(d) British subjects without
citizenship:
for old Dominions without citizen-
ship laws;
(e) British Protected Persons: BPPs emerged in the late 1880s. Their status
and the nature of their connection with the UK were dealt with not by
the BNA, but rather by the British Protectorates, Protected States and
Protected Persons Order in Council 1949. While BNA did not classify
BPPs,
they were treated as aliens by the Act; (and)
(0 Aliens: all those not coming under categories (a-e).
The foundation of the scheme was the distinction between
Citizens
of
the
United Kingdom and
Colonies
(CUKCs) and Citizens of the
Independent
Commonwealth Countries
(CICCs); the vast majority of British subjects were
to fit into either of these categories. Citizens of the United Kingdom and
British subjects within the dependent colonies were defined, in a rather
unwieldy manner, as
CUKCs.
Their pre-1949 status as British subjects was
subsumed under this designation.
The category of CICC included all British subjects who were citizens
of an independent Commonwealth country. When the Bill was drafted,
it referred only to Canada, but was intended to apply eventually to
Australia, New Zealand, the Union of South Africa, Newfoundland, India,
Pakistan, Southern Rhodesia, Ceylon, and any other colonies achieving
independence. Anyone who became a citizen of any of these countries
would have the status of British subject granted to them as 'Citizens of an
independent Commonwealth country'. The conditions of this citizenship
were defined exclusively by the national legislature. Until these countries
passed citizenship laws, BNA granted them the status of
potential
citizens
of the independent Commonwealth countries and deemed them 'British
subjects without citizenship'. This transitional category ensured that the
members of Australia, the Union of South Africa, Newfoundland, India,
THE POLITICS OF CITIZENSHIP 79
Pakistan, and Southern Rhodesia would continue to enjoy the status of
British subject until such laws were passed.
53
Individuals falling into the Bill's two main categories enjoyed identical
rights. Their status as British subjects allowed them freely to enter the
United Kingdom, to secure employment immediately, and (in the case of
CICCs)
to
naturalize without difficulty.
54
British subjects in the colonies and
the Dominions were entitled to stand for Parliament, to vote in elections,
and to work for His Majesty's Government. The privileges of colonial
subjects were the most extensive; they were, in statute and in practice,
British citizens.
British Protected Persons were discussed by the Act but not granted
British subject
status.
55
The 'British subjects without citizenship' status was
a catch-all designed to ensure that those who were without citizenship
retained British subject
status.
Although the archival evidence provides no
justification for this clause, it was likely designed to ensure that British
settlers who found themselves without either United Kingdom or indepen-
dent Commonwealth citizenship
(because,
for
example,
of
a
hostile African
nation's actions) would remain British subjects with the right to return to
the United Kingdom; it was not widely believed that the process of
independence would leave large numbers of people stateless.
56
The Bill was underwritten by two premises. First, all persons who
were British subjects before BNA would retain that status by being either
citizens of an independent Commonwealth country or
CUKCs.
Second, the
status of subject would be widened by reinstating it for all those who
would have been British subjects
but
for previous legislation.
57
Those who,
55
Fransman,
British Nationality
Law,
p.
64.
Citizenship laws were passed by Australia and
New Zealand in
1948,
by South Africa in
1949,
by Ceylon in
1950,
by Pakistan in
1951,
and by
India in
1955.
M
The difference between the three main classes of subjects—within the UK, the old
Dominions (Canada, Australia), and the colonies (West
Indies,
Kenya)—was
marginal.
Indeed,
to the extent that differentiation crept
in,
it was between
CUKCs
and the old Commonwealth
and was to the advantage of the former. CUKCs were 'naturalized' before they landed in
Britain, as they were indistinguishable from people born in the UK. Citizens of the old
Dominions,
by contrast, had to reside in the
UK
for twelve months or obtain permission from
the Secretary of
State.
This distinction
was
none the
less
a nominal
one,
and
all
British subjects
enjoyed the fullest range of privileges within the United Kingdom.
B
'British Protected Persons' was a miscellaneous category comprising, for example,
descendants of British subjects who no longer enjoyed that status under jus
sanguinis
and
persons
in
territories where the British government enjoyed executive power but not territorial
sovereignty. The extent to which they could claim, and Britain could offer, protection (against
a third state, for example) was a matter of
debate.
See Parry,
Nationality and Citizenship Laws of
the
Commonwealth,
pp.
89-91.
K
Interview with Lord Merlyn
Rees.
57
For example, under the British Nationality and Status of Aliens Act
(1914),
where
a
parent
ceased to be a British subject through naturalization in another country, the children would
under certain circumstances automatically lose their British subject
status;
under Section
16 of
80 RANDALL A. HANSEN
because of their position as wives or minors, had lost their subject status as
long ago as 1870 found that status restored. In all of these provisions, the
Act both entrenched subject status and extended its application.
The final category of the Bill concerned the Irish. As the Irish issue
greatly complicated the drafting of the legislation, and as it was material to
nationality and immigration policy more generally, it is worth devoting a
few words to it. From a scholarly point of view, there were two aspects to
the 'Irish question' in 1948. First, the legislation had to grapple with the
nationality status of Irish (Republic) citizens, British subjects in Northern
Ireland, and British subjects born in Ireland before 1922 (when it was part
of the UK). Second, the 1948 legislation formed part of a broader policy
that gave Irish citizens a place of privilege in the administration of immig-
ration and nationality legislation. Although the latter has occasioned
greater controversy, the first aspect was more important to the drafting
and implementation of the legislation. Greater attention is consequently
accorded to it.
To the drafters of the legislation, the Irish element presented a multi-
faceted policy problem. As Ireland had been a constituent part of the UK
before 1922, the task of separating British subjects from non-subjects in
1948
was particularly complicated. It was further complicated by the status
of Northern Ireland. Both Britain and Eire laid claim to it, and both used
nationality law as a mechanism for legitimating that claim. The general
result was that, although Irish citizenship did not automatically confer
British subjecthood, many Irish citizens were also subjects.
The simplest cases concerned Irish citizens born in
the
UK or born in Eire
of a father born in the
UK;
in both instances, they would
be
unambiguously
CUKCs.
58
The complex case concerned Northern Ireland. Both Irish
legislation and British legislation granted citizenship only to individuals
born within (or born of a father born within) the country's respective
borders.
These borders had been settled
as a
matter of law (if not
as a
matter
of intention) by the Northern Irish referendum in favour of remaining part
of the UK. For Irish nationality purposes, however, 'Eire' was defined to
include the twenty-six countries of the Republic plus Northern Ireland.
BNA, individuals who would have been CUKCs or British subjects without citizenship
(defined below) but for Section 12(1) of the 1914 Act could acquire the appropriate status by
declaring 'an intention to resume British Nationality'. Under Sections 14 and 15 of BNA,
women who had married foreign nationals (and therefore lost subject status) and children who
had failed to register could retrieve their status as British subjects. Anyone who had been, or
who would have been, married to a deceased British subject was granted the status. Finally,
should anyone fail to become
a
citizen of an independent Commonwealth country under local
nationality
laws,
he
or she would be protected from
loss
of subject status by becoming a CUKC
under Section
13(2).
See Fransman,
British Nationality
Law,
pp.
61-4.
a
According to
BNA
(1948),
Part
II,
Sections 4-6.
THE POLITICS OF CITIZENSHIP 81
Article
3
of the 1922 Irish constitution states that
Every person, without distinction of sex, domiciled in the area of the juris-
diction of the Irish Free State at the time of the coming into operation of this
Constitution, who was born in Ireland or who has been ordinarily
resident
in
the area of
the
jurisdiction of
the
Irish
Free State
for not
less
than seven years is
a citizen of
the
Irish
Free
State ...
Adopting an eccentric reading of Articles 11 and 12 of the treaty estab-
lishing the Free State, an Irish Court and the Irish government held that
'the jurisdiction of the Irish Free State' applied to Ireland as it existed
between 6 December 1922 (when the Irish Free State Constitution came
into effect) and 7 December 1922 (when the Northern Irish Parliament
declared that it remained part of the UK).
59
In other words, the Northern
Irish were Irish citizens.
If this interpretation had gone unchallenged by the British government,
it would have technically meant that some British subjects in Northern
Ireland would have lost that status; the challenge to British sovereignty
thrown up by the Irish interpretation of its nationality law would have
taken effect. The British Nationality Act, 1948 holds that those who were
British subjects before the Act took effect, and who did not become CUKCs
when it took effect, would be considered such
unless
they were citizens of
Eire.
60
If the Irish interpretation had been respected, then considerable
numbers of British subjects in Northern Ireland would have lost that status
through becoming Irish citizens. This situation led the British government
to insert Clause
5
in the
1949
Ireland
Act,
which effectively defined 'Eire' as
the twenty-six counties only.
61
The 1948 Act also includes a further section granting individuals who
had been British subjects before 1948, but who lost this status as a result
of the legislation, the opportunity to reclaim it by writing to the Home
Secretary.
62
Although such individuals had to fulfil one of several criteria
(Crown service, associations of descent, holder of
a
British passport), these
were not verified. It is doubtful that the BNA stripped anyone in Ireland of
British subject status.
63
The British government's willingness, even enthusiasm, for granting
privileges to the Irish regardless of their repudiation of the Crown is a
common feature of the postwar experience. In
1961,
when the Common-
wealth Immigrants Act finally restricted Commonwealth immigration, the
M
J.
Megaw, 'British Subjects and
Eire
Citizens',
Northern Ireland Legal
Quarterly,
3/8 (1949),
129-39,134-5.
M
Section
12 (4)
(a).
" Megaw, 'British Subjects',
p.
136.
a
Sections
63
Parry, Nationality and Citizenship Laws of
the
Commonwealth and of The Republic of
Ireland,
p.
225.
82 RANDALL A. HANSEN
exemption, in practice, of the Irish led to a backbench Conservative revolt
that threatened to scuttle the
Bill.
64
The reasons for the generous treatment
of Ireland remain a matter of
debate,
but it is clear that a number of factors
were important. Perhaps most importantly, the government wished to
ensure that no one in Northern Ireland would lose British subject status
through the combined effect of British and Irish legislation. As this area is
an integral part of the UK, such a concern is of no surprise. More broadly,
the government and many Conservative MPs were keen to encourage ties
between Irish citizens and the UK, partly reflecting lingering regret that
Ireland had left the Union. The government had hoped that Ireland would
remain within the Commonwealth,
65
and Conservative members, notably
Salisbury, strongly opposed any diminution of the privileges enjoyed by
Irish British subjects.
66
There was also, naturally, a concern to ensure access for Irish workers,
who had traditionally enjoyed a significant presence in the British labour
market.
67
Ensuring easy access for such workers did not, however, have to
be negotiated through nationality. Following Ireland's departure from the
Commonwealth, the Irish and British governments agreed on the recip-
rocal grant of citizenship rights to nationals of one of the States resident in
the other.
68
The British Nationality Act in Parliament
Andrew Roberts has criticized the 1948 Act as a 'cumbersome' piece of
legislation riddled with 'loopholes' that allowed hundreds of thousands, if
not millions, of British subjects to claim without justification a right to
enter the United Kingdom.
69
This
argument cannot
be
supported. Given its
formidable task—ensuring that millions of subjects across the globe enjoy
the same status and rights in the UK regardless of citizenship—the Act is
elegant in its simplicity. The six categories covered all British subjects in
1948,
and their fluidity ensured that any change in citizenship status,
including its loss, would not affect British subjecthood. The
Bill,
moreover,
contains not a single 'loophole'. British legislators' main aim was to ensure
that no British subjects lost their status through the evolution from the
M
Interview with a Home Office official, December
1995.
PRO, CO 1032/308, 'Common-
wealth Immigrants Bill: The Irish Problem', undated, PRO, PREM 11/3238, Letter from
Macleod to Macmillan,
17
November
1961.
65
PRO,
PREM
8/851,
CM
(46)
80th
Conclusions,
9
September 1946.
66
Parliamentary Debates (Lords),
(21
June
1948),
cols
1046-7.
Attention is
also
given to the
importance of Irish migration to the British economy.
a
R. Swift and S. Gilley
(eds),
The Irish
in
Britain:
1815-1939
(London,
1989);
L.
H.
Lees,
Exiles
of
Erin:
Irish Migrants in
Victorian
London (Manchester, 1979).
68
See Paul, Whitewashing Britain, chapter 4.
" A. Roberts, Eminent
Churchillians
(London, 1994), pp. 215-16.
THE POLITICS OF CITIZENSHIP 83
'direct-grant' to the 'gateway' system;
70
Roberts' loopholes were in fact
carefully chosen tools designed to realize this aim.
A more important question is why policy-makers sought with such
diligence to ensure the widest application of subject status. The answer
concerns the experience of non-Irish migration before 1948 and the
enduring attachment of politicians to the United Kingdom's central place
within this system. The Act was reactive, and it was designed to retain as
much as was possible of the pre-1949 system of British subjecthood. There
was never any suggestion, in either public or private deliberations, that the
content of British subjecthood should in any sense be altered. The BNA
was enacted during a time of cross-party consensus on the importance of
the privileges which had traditionally accrued to British subjects and
on the necessity of a common link between them. To explore this point, I
turn to the Bill's passage through Parliament.
On
11
May
1948,
the Lord Chancellor (Jowitt) moved the second reading
of the British Nationality Bill in the House of
Lords.
The Bill received con-
siderable criticism, most of which centred on its potential for introducing
distinctions between British subjects. The former Governor of Kenya, Lord
Altrincham was among those who detected in the distinction between
CUKCs and citizens of independent Commonwealth countries an avenue
for differentiation:
. . . we on these benches would lament any tendency to differentiate between
different types of British subjects in the United
Kingdom.
Hitherto, it has been
our proud boast that all British subjects have equal rights in the United
Kingdom. Whatever you may say at the outset, if you create a distinctive
citizenship it
is
bound
to
set
up
a tendency towards differentiation.
71
Altrincham's arguments were reiterated by others.
72
The Lord Chancellor
tried to reassure the Opposition that
The Bill does not differentiate between British subjects. It is within the com-
petence
of
this
Parliament and
it is
within
the
competence of
any
self-governing
Parliament to differentiate.
We
can say that people who come from one part
of
the British
Empire
should not
be
allowed in and people from another part shall
be allowed in, but in this great metropolitan centre of the Empire I hope we
never shall
say
such
a
thing.
73
70
See deliberations in
PRO,
HO
213/410,
British Nationality
Bill,
Committee
Stage,
House
of Commons.
71
Parliamentary Debates (Lords), (21 June 1948), col. 998. Also see Lord Altrincham in
Parliamentary Debates (Lords),
(11
May
1948),
cols
780-9.
71
See Lord Simon in Parliamentary Debates (Lords),
(11
May
1948),
cols
763-71.
n
Parliamentary Debates
(Lords),
(21
June
1948),
cols 1006-7.
84 RANDALL A. HANSEN
The House was unconvinced, and the Bill was opposed by a coalition of
people who feared differentiation between subjects,
74
who felt that citizen-
ship was alien to the British tradition,
75
and (a smaller number) who feared
the Bill's effects on the old Commonwealth. In the last, Viscount Simon
objected to the fact that citizens of independent Commonwealth countries
would have to live in the United Kingdom for twelve months before
becoming CUKCs, whereas those born in the colonies enjoyed that status
at birth.
76
When the House moved into committee on 21 June, an
amendment, put forth by Lord Altrincham and carried by seventy-five
votes to twenty-one, substituted the word 'subject' for 'citizen'.
77
Whereas
Section 1(1) of the government's draft read, 'Every person who under this
Act is a citizen of the United Kingdom and Colonies . . .', the House of
Lords inserted, 'Every person who under this Act is a British subject of the
United Kingdom and Colonies . . .'. Among those who supported the
amendment were the Marquess of Salisbury and Viscount Swinton (both of
whom served as Commonwealth Secretary in the
1950s).
In the Commons,
it met with the sympathy of a number of powerful figures in the Conser-
vative
Party:
Sir
David Maxwell Fyfe (Conservative
MP
for Liverpool, West
Derby division), John Boyd-Carpenter (Conservative MP for Kingston
upon Thames), and Kenneth Pickthorn (Conservative MP for Cambridge
University).
78
Maxwell Fyfe was among the leaders of
the
post-1945 reform
of the Conservative Party and later became Home Secretary; Swinton was
Commonwealth Secretary for much of the 1950s. Swinton and Maxwell
Fyfe were both confronted with rising Commonwealth immigration, and
both were heavily involved in Conservative governments' agonized
debates over immigration control.
79
As citizenship was the foundation of the Bill, the amendment under-
mined its whole purpose. The government was then defeated a second
time when Salisbury, who argued that the
Bill
discriminated against British
subjects in Eire,
80
successfully moved to add a subsection providing that
'[njothing in this Act shall affect the status by British law of
a
citizen of Eire
in respect of his right to be regarded as a British subject'.
81
The Bill was then introduced into the House of Commons by the Home
Secretary, Chuter
Ede.
He
began in a fashion similar to the Lord Chancellor,
74
This fear appeared
to be
shared by some sections of the
Press.
See Private Papers of Lord
Simon, MS Simon, Letter from H.
V.
Hodson,
Sunday
Times,
to Viscount Simon, 28 February
1948.
75
See
Viscount Swinton in Parliamentary Debates (Lords),
(21
June
1948),
cols 1014-16.
" See Parliamentary Debates (Lords),
(11
May
1948),
col.
766.
77
Parliamentary Debates
(Lords),
(21
June
1948),
col.
992.
78
PRO,
HO
213/410,
'British Nationality
Bill',
undated.
79
See,
for example,
PRO,
CAB
128/27,
CC,
54,6 December
1954.
™
Parliamentary Debates
(Lords),
(21
June
1948),
cols 1046-7.
" Parliamentary Debates
(Lords),
col.
1033.
THE POLITICS OF CITIZENSHIP 85
setting the Bill within colonial discourse. "The maintenance of the British
Commonwealth of Nations', he argued,'. . . is one of the duties that this
generation owes to the world and to the generations to come.'
K
During
the course of the debate, the opposition articulated two related sets of
criticisms. The first set of arguments repeated those made in the House
of Lords and attacked CUKC status as a possible source of distinction
between British subjects. Sir David Maxwell Fyfe, later Home Secretary
under Churchill, voiced this concern and declared his opposition to the Bill
because ' . . . we deprecate any tendency to differentiate between different
types of British subjects in the United Kingdom... If we create a distinctive
citizenship for Britain and the
Colonies,
inevitably such differentiation will
creep in'.
83
Britain, he continued'... must maintain
[its]
great metropolitan
tradition of hospitality to everyone from every part of our Empire'.
84
The second argument focused on the refounding of allegiance on a
citizenship basis. As British subjecthood was no longer the primary iden-
tity of individuals within the Empire and Commonwealth (as it derived
from citizenship), allegiance appeared to be marginalized and devalued.
Similar variants of this argument were presented by Viscount Hinching-
brooke (Conservative MP for Dorset, Southern), Kenneth Pickthorn, and
John Foster (Conservative MP for Cheshire, Northwich division), all of
whom opposed the
BNA
because,
they argued, it weakened the principle
of allegiance to the Crown.
85
The BNA passed from the Commons to a committee which addressed
the amendments carried in the Houses. The committee stated that the fun-
damental goal of the Bill was to maintain the 'vital link', '. . . the
common status possessed by all those who owe allegiance to the King, no
matter to what country within the Commonwealth they belong, hitherto
known by the term "British subject"'.
86
The committee rejected Fyfe's
argument that the citizenship provisions would differentiate between
British subjects by placing the old Dominions in a disadvantageous
position vis a vis citizens in the colonies; citizenship, it argued, was
merely a mechanism for guaranteeing subjecthood.
87
The committee also
defended the citizenship provisions against Foster's critique. He argued
that CUKC status differentiated between British subjects by extending
advantages to colonials over old Dominion citizens and forced the status
° Parliamentary Debates (Commons), (7 July
1948),
col.
397.
" Commons (7 July
1948),
coL
411.
54
Commons (7 July
1948),
coL
411.
* See (Commons), (7 July 1948), cols. 418-19 (Hinchingbrooke), cols 459-63 (Pickthom),
and
cols 466-77
(Foster).
M
PRO,
HO
213/410,
untitled memorandum, undated.
" See
PRO,
HO
213/410,
'Supplementary Note on objections raised by Sir Maxwell Fyfe to
the term "Citizenship of the United Kingdom and Colonies'", undated.
86 RANDALL A. HANSEN
on people all over the world against their wishes.
88
The only alternative to
this would be to claim that no meaning attached to the status of citizenship,
that it
is
wholly superfluous, a 'distinction without a difference'.
89
To
avoid
this confusion, '[t]he sensible thing to do . . . is for the United Kingdom
to regard all British subjects, that is, all citizens of other parts of the
Dominions, as British subjects, enjoying the fullest rights in this country'.
90
The committee defended the citizenship clause as necessary to ensure
that
all
British subjects and their children retained that
status.
For although
the British government could legislate for its own citizens abroad, in the
absence of these provisions, it could not legislate for their children.
91
Without the 'catch-all' provisions criticized by Foster, all existing British
subjects who did not become citizens of some part of the Commonwealth
would lose their ability to transmit British subject status to their descen-
dants born abroad.
92
The primary concern of the committee was to ensure
that no British subjects lost their status or any privileges accruing to it.
The committee recommended the restoration of 'citizenship'. The status
of British subject would after 1 January 1949 be secured through local
citizenship laws. The House of Lords accepted the restoration of the
Bill
on
22 July, and the British Nationality Act was given royal assent on
31
July
1948.
While the defeats in the Lords received some attention,
93
the basic
structure of British subjecthood was altered in 1948 with little subsequent
comment, scholarly or journalistic.
94
The Press noted with approval the
Act's removal of a longstanding injustice against British women. An 1870
88
Parliamentary Debates (Commons), (7 July
1948),
cols 466-7.
89
(Commons) (7 July
1948),
col.
467.
90
(Commons) (7 July
1948),
col.
467.
"
PRO,
HO
213/410,
'Notes on Arguments Used by
Mr.
Foster', undated.
Also see
'British
Nationality
Bill.
Mr.
Ede.
Clause
1.
Supplementary Note', undated. The committee argued in
favour of these expansive provisions because '[ujntil the other parts of the Commonwealth
enact citizenship laws, their status would not
be
British subjects under our
law.
Further there
will be many British subjects who will not become citizens of any Commonwealth country, and
when the common code has been replaced by citizenship codes these persons will no longer
be part of the Commonwealth'.
PRO,
HO
213/410,
'Notes on Arguments Used by
Mr.
Foster',
undated.
92
Quoting the
committee:
'In Clause
4
[which grants
CUKC
status by
birth],
Parliament can
only legislate for the descendants of
our
citizens. It would not be proper for it to legislate for
the descendants of
Canadians.
It follows that unless a British subject is made our citizen, his
children born abroad will not benefit from Clause
4'.
PRO,
HO
213/410,
'Notes'.
" See the editorial in
The
Times,
'Nationality and Citizenship', 22 June 1948.
"
K.
O.
Morgan's Labour
in
Power,
1945-1951
(Oxford,
1986)
does not mention the Act, while
Peter Hennessy's Never
Again,
Britain 1945-1951
(London,
1993)
accords it passing mention in
a brief discussion of postwar immigration. The Act is only considered at length in legal texts
(see L. Fransman,
Fransman's
British
Nationality
Law (London, 1989) and V. Bevan, The
Development
of
British Nationality Law
(London, 1986)), which explore the provisions without
examining the origins, and in contemporary studies, which mention it as a precursor to current
policy.
THE POLITICS OF CITIZENSHIP 87
statute had declared that any British woman who married an alien would
lose her British subject status, while men who married aliens retained this
status and extended it to their wives. The statute was patently discrim-
inatory, and the wartime coalition government had been under pressure to
amend
it.
95
Under Section
16
of the
BNA,
individuals who would have been
CUKCs or British subjects without citizenship
but
for previous legislation
could acquire the appropriate status by declaring 'an intention to resume
British Nationality'. The reform was considered long overdue,
96
and it was
welcomed by women's groups who had lobbied for the change.
97
Understanding the British Nationality Act
The lack of debate occasioned by the enactment of the BNA can be
explained by a cross-party consensus on both the meaning and intention
of
the
Act.
First, politicians were agreed on the importance of maintaining the
substance of the pre-1947 arrangement, including the right of all British
subjects to enter the United Kingdom. The vast majority of politicians—
including Chuter Ede, Maxwell Fyfe, Viscount Simon, and Kenneth
Pickthorn—embraced the same aims of ensuring that no British subjects
lost their status through the legislation and that no distinction between
British subjects would be justified with reference to it. They were equally
agreed on the practical implications of this status: when it was suggested
that Britain's unique position did not imply freedom of entry, members
from all parts of both Houses defended this traditional right.
98
Second,
politicians agreed that these rights would only be exercised on
a
limited scale. The BNA was never intended to sanction a mass migration
of new Commonwealth citizens to the United Kingdom. Nowhere in
parliamentary debate, the Press, or private papers was the possibility that
substantial numbers could exercise their right to reside permanently in
the UK discussed. In defending the citizenship provisions as necessary to
maintain a common status among British subjects, the Lord Chancellor
argued that its importance was not material but symbolic or, in Jowitt's
words,
'mystical'.
99
There was almost
no
mention of
the
material advantages
" See
PRO,
DO
35/1385,
DO
35/1386 and
DO
35/1387.
*
77K
Times,
'British Nationality',
19
February
1948.
97
See The Private Papers of Lord Simon,
MS
Simon
97,
Letter from Florence Barry, Hon.
Secretary, Nationality of Married Women Committee to Chuter Ede and Lord Simon, 23
February 1948.
" Deakin, 'British Nationality Act of
1948',
p.
79.
" Quoting the Lord Chancellor: The conception of an all-pervading common status or
nationality is not primarily, not mainly, important because of its material advantages. It
is,
if
you like, rather mystical. But none of
us,
I suggest, is any the worse for a little mysticism in
our life. It is the mark of something which differentiates the family from mere friends.'
Parliamentary Debate (Lords),
11
May
1948),
col.
762.
For the Press reaction to this statement,
see
The
Times,
'British Nationality
Bill:
Commonwealth Citizenship',
12
May
1948.
To
be sure,
88 RANDALL A. HANSEN
that might be achieved through mass migration from the colonies to the
United Kingdom; no one, including the Prime Minister
himself,
imagined
such a movement possible. Reflecting back on this cross-party belief
twenty years later, Quintin Hogg told the House of Commons that'. . .
neither [Clement Attlee] nor I had the smallest conception in 1948 of what
we no