British nationality seems to be, rather than immaterial, something completely material, summed up in the existence of a bit of paper bearing His Majesty’s stamp.
In 1707, following the English Parliament’s Union with Scotland Act (1706) and the Scottish Parliament’s Union with England Act (1707), each nation – legally – ceased to exist. Of course, they remained distinct cultural entities with their own histories, churches, and, in many places, legal doctrines. But, as written in each law, the two Kingdoms were ‘forever after United into One Kingdom by the Name of Great Britain’.
The formation of the United Kingdom of Great Britain was typically (and, at the time, controversially) English – it was the product of a Union of Crowns, but given supremacy through law via an Act of Parliament. Symbolically, this process meant everything; technically, the King of England and the King of Scotland had been one person for over one hundred years (barring the interregnum – a messy legal era), but the Crowns of each Kingdom had remained distinct.
Thus began a two-century long process of trying to make ‘British’ people, which – again, in a characteristically English manner – was done via Acts of Parliament. The ancient and political condition of subjecthood was the basis for membership in a monarchy, and was a specifically direct relationship between Crown and subject. All of a sudden, then, English subjects and Scottish subjects found that they were equal, something that rankled with both.
Nevertheless, there was a fairly clear-cut distinction – His Majesty’s subjects were those over whom he governed. For those who wished to become British – the naturalisation of foreign peoples – such a matter was seen as a matter for the sovereign (by now the King-in-Parliament), though in 1711 this was ended due to the remarkably large numbers of religious minorities fleeing persecution from Catholics in Europe.
The law was not seriously amended for another two hundred years. In 1914, the British Nationality and Status of Aliens Act consolidated the various, unequal and overlapping methods of being a subject of the British Crown by defining ‘natural-born British subjects’, on the basis of being born ‘within His Majesty’s dominions and allegiance’, as well as someone whose father was a subject. Notably, the word ‘citizenship’ appears just three times, and all in relation to other nations. Amended in 1918, 1922, 1933 and 1943, such a law was the clearest expression of who was legally British.
But the condition remained one of subjecthood – a direct relationship between Crown and subject. As a consequence, by the middle of the 20th century, Britain was unique among Western nations in lacking a definition of its own citizenship. Hence the making of the British Nationality Act (1948) which simply transferred subjecthood into citizenship with a legal sleight of hand – ‘any person having the status aforesaid may be known either as a British subject or as a Commonwealth citizen’, making clear those two phrases carried the same meaning.
In effect, Parliament decided – once again – who was a citizen and who was not. The historical weight of empire bore down on the phrasing and the form of the law, but the simple fact that it was a product of law is the essence of the matter; it was Parliament, and nobody else, who decided. A simultaneously very modern and very ancient thing to do.
What followed was a series of amendments that Chris Bayliss, for The Critic, has detailed well, culminating in the British Nationality Act (1981) that finally expunged the word ‘subject’ from the British status of citizenship. It is for the same reason that, as recently as 2006, Roger Scruton pointed out that the English – as a cultural people, rather than as national citizens – remained subjects of Her Late Majesty Queen Elizabeth II; because there had never been a law that clearly defined English citizenship.
But what Parliament giveth, Parliament can taketh away. Not that long ago, Tom Tugendhat MP added his voice to calls to update of Britain’s treason laws that would recognise those ‘British citizens who have served with, or otherwise lent assistance to, groups that UK forces are fighting’. At the time – 2018 – the legal complexity around the decision by then-Home Secretary Sajid Javid to revoke the nationality of Shamima Begum, the Birmingham girl who had left to fight the terror group Islamic State in 2015, was hotly debated.
The decision to revoke Begum’s citizenship was criticised and fought every step of the way by Amnesty International, citing – and this is the crux of the matter – the British Nationality Act (1981). The Act, passed nearly 20 years before the Human Rights Act (HRA) (1998), provides in Section 40 (4) that ‘the Secretary of State may not make an order under subsection (2) [relating to the deprivation of citizenship] if he has satisfied that the order would make a person stateless’.
Javid’s defence – later vindicated by the courts – was that Begum would subsequently become a Bangladeshi citizen, by right of her lineage according to Section 40 (4A) (c). In reality, he should simply have argued that, in line with (b) of the same Section, ‘the person… has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom’.
Let’s not get lost in the weeds of this debate. The fundamental problem is this: Parliament has the absolute power to revoke anyone’s citizenship at any time, provided a) they achieved that citizenship through naturalisation, b) they acted in a way prejudicial to the interests of the country, or c) they retain citizenship elsewhere. The consequences of the revocation of citizenship become moral questions, not legal ones; we regularly deprive people of their liberty if they steal or harm others via prison time. In reality, insofar as the law states very clearly the consequences of crime, it is not the British state that makes someone stateless – it is themselves. The state simply enforces that.
But the high-flown, abstract debates around statelessness are one end of the absurdity regarding Britain’s nationality and citizenship laws. At the other, much lower end, we see judges refusing to deport Pakistani paedophiles on the basis that it would upset their own children. Nowhere in British law does empathy or sympathy become a motivating factor for the exemption of the law; this is derived entirely from the European Convention on Human Rights, that the HRA grafted onto our legal code. Ditto, the refusal to by another judge to deport a Bangladeshi man who murdered his wife, after he claimed to be bisexual. Much ink has been spilled on repealing the HRA – and it must be repealed – but it is clearly not the sole source of our problems. In refusing to put national interest as the highest priority in the British Nationality Act (1981), and only tacitly including it in the exemptions for making someone stateless, we are not being serious about what it means to be British in a legal sense.
Through a revision of our nationality Acts, we can begin to take nationhood seriously once more. Parliament should make a new law on British nationality that concretely anticipates any question regarding statelessness, as well as repealing the HRA and all other associated laws. Just as the formal Union of Crowns in 1707 came via Parliament, so we must reaffirm once more the legal conditions of British citizenship.
Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.
CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.
