Introduction

In a country like the United Kingdom, one without a single-document, higher order, written constitution, it can be hard to find constitutional rules and principles. To do so, one must rummage among statutes or pan for gold in the silt of common law cases. To answer the question who belongs to the United Kingdom, one might very reasonably turn to Part 1 of the British Nationality Act 1981 (‘the 1981 Act’) to find the principal code setting out who is classified as a British citizen.

However, the answer to the question does not tell you about differences in the way such British citizens are valued and treated, nor the basis for participation in the state institutions found at the apex of British national life. Surprisingly, not all British citizens are treated equally. For example, notoriously, some British citizens, such as those holding the nationality of another state, may be deprived of their citizenship on grounds of conduct even where left stateless, whereas for those whose sole nationality is British citizenship, deprivation of that citizenship is harder if not impossible (s 40, Part 5, BNA 1981).

Moreover, in the past, even during periods of their quiet enjoyment of British nationality, not all British nationals have been treated equally, as will be seen. Further, the question of who belongs to the UK may be both narrower that the class of British nationals in some cases and broader in others. The Act of Settlement 1700/01 provides an illustration. In addition, among other things, that Act provides a statutory root of the current provision as to who is eligible to be a member of the House of Commons today.

The Act of Settlement

Before turning to its British nationality aspects, the importance of the Act of Settlement required brief re-statement. It is widely known for two things. First, it is the Act that determines who is to succeed to the Crown, in other words who is to be King or Queen. King Charles III is King by virtue of being the person identified as the successor to Queen Elizabeth II by interpretation and application of the Act of Settlement. Only those who are heirs of Princess Sophia, Electress of Hannover, being protestants, are eligible; Roman Catholics in particular are excluded.  Further, communion with the Church of England is required to wear the Crown.

Second, as in force on enactment, the Act provided statutory authority for key elements of the principle of the separation of powers. In the absence of an overarching written constitution providing for that principle,  and in the shadow of government attempts to oust the role of the judiciary over a key area of legislative policy – the Safety of Rwanda (Asylum and Immigration) Bill) –  to find some statutory illustration and provision for the separation of powers, helps underpin the case for giving it further effect through amending the Bill or, thereafter, once enacted, challenging its interpretation and application.

The Act of Settlement gave effect to the separation of powers: (i) by specifying that the basis upon which judges were to hold office free of Crown interference, by its method for providing for their remuneration, and by its provision for parliamentary control of the circumstances when a judge could be removed from office, see Senior Courts Act 1981 and the Constitutional Reform Act 2005 for the current provision; and (ii) by prohibiting Crown office holders from being members of the House of Commons. In practice, the latter provision was tempered and modified so that only certain office holders were excluded. In the result, although the Crown (the executive) cannot flood the House of Commons (the principal legislative chamber) with its officers, nonetheless, Ministers of the Crown, although Crown office holders, may be members of the Commons. By such a balancing act, the principle of ministerial accountability as well as the principle of separation of powers is furthered; see the House of Commons Disqualification Act 1975 for the current provision.

However, that is not all the Act does. By reference to who is an English subject and on what basis they are an English subject (the Act’s effect are modified by the later 1707 Act of Union with Scotland, so that for English subject read British subject), it specifies who may participate in and belong to national state institutions. The way in which it does so and the way in which it has been altered since enactment reveals the basis on which British nationality had been constructed and recognised as a matter of common law, the uses to which it has been put by statute, and how the question of who belongs to the state has been further interpreted and applied as political circumstances have changed.

British Nationality and the Act of Settlement

Among other things, as enacted, section 3 of the Act of Settlement provided:

“That from and after the time that the further limitation by this act shall take effect, all matters and things relating to the well governing of this Kingdom, which are properly cognizable in the Privy Council by the laws and customs of this Realm, shall be translated there, and all resolutions taken thereupon shall be signed by such of the Privy Council as shall advise and consent to the same;

That after the said limitation shall take effect as aforesaid, no person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as are born of English parents) shall be capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him;”

A lot of work is being done here. First, the Act recognised the central role of the Privy Council in the executive arm of government. Today a similar central role is played by the Cabinet, whose members are all Privy Councillors. Thereafter, it provided and indeed still provides in modified form that, subject to defined exceptions, no person born out of England, Scotland, Ireland, or the dominions (all considered Crown possessions), could belong to the Privy Council, be a member of Parliament, hold Crown office, or enjoy the property rights specified. Only those considered to belong by virtue of birth could participate in the specified national state institutions or hold those property rights.

Second, those that belong to the Crown are those born in the places where the Crown is sovereign. The mere fact of birth in such a place, coupled with allegiance (which followed place of birth at the time, minor exceptions such as birth to a foreign sovereign aside), made the person a subject of the Crown. The allegiance thus owed by the subject to the Crown was indelible, it arose out of natural law on account of birth within the Crown’s realm and it could not be renounced. Such natural-born subjects belonged to the Crown. Those excluded were aliens (foreigners). The immediate context on enactment was the anticipated succession of the Elector or Electress of the House of Hannover to the Crown (if both King William III and his successor Queen Anne died without issue) and the subsequent possibility of his or her Hanoverian subjects (being aliens to the Crown of England) seeking to participate in English national life. When George I, Elector of Hannover, became King of Great Britain and Ireland in 1714, this situation came to pass. 

Third, children born outside England, Scotland, Ireland, and the dominions, where born to English parents, were re-included by the Act. Thus, provision was made for the specified benefits of subject status to transmit by descent for one generation; such provision being consistent with provision for enjoyment of inheritance rights first made in the statute De natis ultra mare (1350) for those born to English parents outside the realm and thereby outside of allegiance.

Fourth, naturalised subjects and denizens are expressly excluded. Naturalisation, an act of becoming a subject by grant (e.g., by an Act of Parliament), on what might be said to be a contractual basis as opposed to a natural law basis, is not good enough to lift the prohibition on full participation in national life. Thus, true subject status remains that arising as a matter of natural law rather than positive law. Further, also excluded were denizens, those aliens granted by letters patent a certain status short of subject status; though a status that nonetheless variously conferred rights to land ownership and inheritance.

The shift away from indelible allegiance marking who belongs

In the 19^th Century the development of laws regulating naturalisation and alien status led to the disapplication of the prohibition on naturalised British subjects being able to belong to the Privy Council, be a member of Parliament, hold Crown office, and enjoy the property rights specified in the Act of Settlement. That disapplication was confirmed in the 20^th Century when the British Nationality and Status of Aliens Act 1914 removed the prohibition on naturalised British subjects from the Act of Settlement, though the prohibition on denizens, now an obsolete class, remains.

Coupled with the 20^th Century emergence of British nationality and citizenship being provided for on a statutory basis, the removal of the prohibitions on naturalised British subjects demonstrates that British nationality is no longer founded on common law recognition of the relationship of Crown and subject, one of allegiance and rooted in natural law. Rather, it is provided for in positive law and is the expression of people contracting among themselves to provide for their citizenship and in so doing deciding who is to belong to them.  It is on that civic basis that allegiance is now owed by citizens. Such an idea may seem modern but the seed of the idea can be found in Cicero’s writings on the Roman republic in The Laws (Book 2, 5, OUP 1998):

“Marcus: Yes, I maintain that he and all people from small towns have two countries, one by nature and the other by citizenship. By being born in Tusculum Cato was admitted to Roman citizenship. So he was Tusculan by birth and Roman by citizenship, One of his countries was local, the other legal…we think of our country both as our place of birth and as the one that admitted us to citizenship. But the one which takes its name from state as a whole should have first place in our affections….”

Further amendment to the Act of Settlement was made by the British Nationality Act 1948 (‘the 1948 Act’), so that British subjects and citizens of Eire (regardless of whether such persons acquired their status by birth, descent, naturalisation, etc.) were not subject to the prohibitions on being able to belong to the Privy Council, be a member of Parliament, hold Crown office, or enjoy the specified property rights.

In context, relaxation of the prohibition applied not only to Citizens of the United Kingdom and Colonies but also to citizens of independent Commonwealth Countries (such as Australia, South Africa, etc.) and Irish citizens. As regards the former, the aim was to maintain the value of British subject/Commonwealth citizen status as an over-arching status notwithstanding decolonisation and the emergence of independent countries with their own citizenships. As regards the latter, the provision made was consistent with the subsequent Ireland Act 1949 stating that the Republic of Ireland is not a foreign country as regards United Kingdom law; provision made in recognition of the close relationship between the two countries and their peoples.

In the result, the Act of Settlement’s prohibitions extend now only to aliens (foreigners who are not nationals of Commonwealth countries), whereas citizens of independent countries such as Canada, India, Rwanda, and Jamaica (all Commonwealth countries), as well as Irish citizens, are treated as being akin to British citizens as regards who is eligible to be a member of the House of Commons. The root of the difference in treatment between aliens and others lies in the Act of Settlement’s extension of rights to participate in English life to those born in ‘dominions’ (what we would call colonies); the essential modification coming later with the 1948 Act’s provision to maintain that position notwithstanding that the colonies were now becoming independent but usually choosing to remain within the Commonwealth.

Of course, contemporary immigration controls now also regulate the position. Thus, as regards becoming an MP, the Electoral Administration Act 2006 provides that the Act of Settlement’s prohibition does not apply to Irish citizens and qualifying Commonwealth citizens. A ‘qualifying Commonwealth citizen’ is a Commonwealth citizen either who does not require leave to enter or remain in the UK under the Immigration Act 1971 (e.g., a Commonwealth citizen with the right of abode) or who has, or is to be treated as having, indefinite leave (permission) to remain. NB Those Commonwealth citizens who are exempt from immigration control, such as diplomats, are excluded notwithstanding the absence of a temporal restriction on the period for which they may remain.

Conclusion

The distinction between citizens of independent Commonwealth countries and aliens (foreigners) that was made by the 1948 Act, so that the former were and are relieved of the Act of Settlement’s prohibitions, was seen as vital by Parliament when made in 1948 but when viewed from the 21^st Century seems arbitrary other than on grounds of sentiment. That is not to say that non-nationals with UK permanent residence ought not to be able to be members of the House of Commons, merely that such provision should extend to all non-nationals with permanent residence and not be limited to Commonwealth citizens alone. It is to say the least anomalous that a citizen of Cyprus (a Commonwealth country) with Settled Status (indefinite leave) in the UK may be an MP but a citizen of France with the same UK status cannot.

It is admirable that UK permanent residents (modern denizens if you like) can stand to be MPs, on the same basis as British citizens. It recognises the reality of life where a person with a settled UK life may be unwilling for practical reasons to acquire British citizenship and thus to be able to participate – in the country they call home – in the democratic part of national life and the making of laws that govern them. There may be many good reasons why a person may be unwilling to acquire British citizenship, for example where they stand to lose nationality of another state intolerant of multiple nationality, or where it would prejudice family members in another state. However, what is required now is equal treatment for all permanent residents so than all are eligible to be House of Commons members. By such means, all will really belong who are able to call the UK home and who are not subject to a time restriction on the period they may remain.