No. 201  NAI DFA Legal Adviser's Papers

Memorandum by Michael Rynne
'The Conscription of Irish Nationals in Britain A résumé of Events'

DUBLIN, 8 May 1942

  1. The possibility of British conscription laws being applied to Irish citizens in time of war was considered in the Department as early as March, 1936. At that date the first enquiries from Irish citizens residing in England began to come in and there was a question how to deal with them. Eventually, it was decided to avoid replying in writing to such enquiries, whenever possible.

    Only a hypothetical examination of the conscription problem was possible in 1936, but a very good forecast of the actual position was arrived at in the Department as a result of careful study of the British Military Service Acts of the 1914-1918 war. Those Acts contained the chief devices now operating whereby certain classes of so called 'British subjects' may either be caught by the Acts or released from them, depending on whether 'ordinary residence' in Great Britain existed or not in a particular case. 'Ordinary residence' in the last war had not, however, been defined as 'two years or over '.

    The vital factor represented by Britain's non-recognition of the Irish Nationality and Citizenship Act, 1935, was fully anticipated by the Department which realised even in 1936 that this would necessarily affect any ultimate British decision on the 'conscriptibility' of Irish citizens resident in Great Britain during a future war.

  2. On the 26th October, 1938, Deputy Norton asked the Minister for External Affairs whether he had under consideration the position of Irish citizens temporarily resident in Great Britain regarding liability for military service in that country in the event of war; and whether he had made any representations to the British Government in the matter; and, if so, what was the result of such representations1. The Taoiseach replying stated that he was satisfied that Irish citizens temporarily resident in Great Britain would not be liable for military service in that country in the event of conscription being imposed there. No representations, he added, had been made to the British Government in the matter.

    Mr. Norton thereupon enquired about 'Irish citizens permanently resident in Britain, who would be covered in respect of nationality by the Act of 1935'.2 The Taoiseach asked for notice of this question.

  3. On the 2nd November, 1938, Deputy Norton put down his question about the possible liability for British military service of Irish citizens, covered as to their citizenship by the Act of 1935, who would be residing permanently in Great Britain during a time of war.3 Replying, the Taoiseach explained that the Irish law of nationality was a very new code and that, although the Act of 1935 deprived the British nationality laws of their validity in Ireland, those laws still ran in Great Britain in respect of Irish citizens. Consequently, there was a danger of conflict of view between ourselves and the British on the question of any alleged liability of Irish citizens for British compulsory military service. The Taoiseach pointed out, however, that the anomaly involved in this situation was due to the British Government and not to our law which thoroughly conformed to the Hague Convention of 1930,4 etc. He told the House that any law which purported to conscript Irishmen simply on the ground that they were born in Ireland or of Irish parentage would not be consistent with the Hague Convention, 1930, or with internationally recognised principles relating to nationality legislation. Mr. Norton asked if the British Government had been told that we regard Irish citizens as immune from British conscription laws. He was informed that no such step had been taken. Mr. Norton then suggested that the British Government should be appropriately advised. The Taoiseach pointed out that agreement with the British Government on this might be difficult to attain. Mr. Norton answered that he did not wish the British Government to agree; he thought they should be told we regard our people as immune from British conscription laws. The Taoiseach said our position was made clear in 1935 when the Nationality Act was passed. Mr. Norton then asked if the Taoiseach would say Irishmen were immune from British conscription. The Taoiseach replied 'Yes'. Finally, Mr. Norton asked if the Minister would not consider taking the matter up with the British Government on the above indicated basis and received the reply that the Minister would have to think over the matter.
  4. Some days after Mr. Norton's question just mentioned, Mr. M. MacDonald in the British House of Commons was asked for his opinion on the Taoiseach's statement that Irishmen would be immune from British military service. Mr. MacDonald replying said (16th November, 1938) that he considered that 'the eligibility or otherwise of particular classes of persons for inclusion in a scheme of national service could best be considered at the time of the introduction of any such scheme'.

    At that date, no conscription scheme seems to have been actually in draft in Great Britain, although (since the Munich Agreement) the possibility of an early war was generally recognised and it was understood that the French Government were anxious for a measure of compulsory military service in Britain.

  5. Further enquiries concerning their probable position in the event of war continued to come in from Irish citizens resident in Great Britain. Nearly all these were addressed to the High Commissioner's Office in London. It was, accordingly, decided to reply to querists by simply forwarding them the texts of Deputy Norton's question and the Minister's reply of the 2nd November 1938 (omitting supplementary matter) and this was done early in the New Year. Both the Department and the High Commissioner sent out a fairly large number of stencilled copies of the parliamentary question and answer.
  6. On the 26th April, 1939, the High Commissioner phoned the Department to say he had received advance information concerning a compulsory military training measure which it was proposed to introduce in Britain to apply to 'all men between the ages of 20 and 21'5. Very full details of the proposed scheme were given by the High Commissioner. It did not purport to introduce 'conscription' at all, but, on the contrary, pretended to leave the voluntary system as the basis of recruitment for the three British defence services. The High Commissioner understood that provision would be made in the new Bill for the exemption by tribunals of conscientious objectors from military service proper, but he did not appear to have any knowledge of special provisions to exempt Irish citizens, as such, from the operation of the British law.
  7. On the evening of the 26th April, 1939, (that is, the day on which we learned of the proposed Bill) the High Commissioner was instructed by the Taoiseach to see Mr. Chamberlain and to tell him that Mr. de Valera was very perturbed at the possibility of conscription being applied to the Six Counties.6 The text of a written message in this sense to be left with Mr. Chamberlain, was communicated to the High Commissioner on the phone. The message did not advert to the possibility of the proposed British measure being applied to Irish citizens from the twenty-six Counties.
  8. Next day (27th April, 1939) Sir Thomas Inskip, in the British House of Commons, was asked whether the Irish Government recognised its citizens as 'British'. Replying, Inskip referred his questioner to the Irish Nationality and Citizenship Act, 1935, while adding that the British Government held that Irish citizenship did 'not deprive any person of his status as a British subject under United Kingdom law.'
  9. The few days following the Taoiseach's message to Chamberlain were taken up by discussions in London (Dulanty and British Ministers, M.P.s, etc) and Irish-American protest meetings in the United States on the net point of the application of conscription to Northern Ireland. The effect of the proposed measure on Irish people from the rest of Ireland [had] not yet been raised anywhere.

    On the 1st May, 1939, however, we received a summary of the draft Military Training Bill which mentioned that 'every male British subject, not being a person ordinarily resident in a part of His Majesty's Dominions outside the United Kingdom' would be liable to register for six months military training if between 20 and 21 years. The full text of the Draft Bill with an explanatory Memorandum reached us on the 2nd May, 1939. Clause 15 of the draft stated that the proposed Act could be extended by Order to the Isle of Man and Northern Ireland.7

    On the 3rd May, 1939, Mr. Chamberlain told the High Commissioner that the British Cabinet had decided to omit from Clause 15 any reference to Northern Ireland.

  10. Meanwhile, the South African Government had been pressing the British Cabinet for a definition of 'ordinary residence in the United Kingdom' and had suggested a formula which would make such residence depend on the circumstances of each individual case (e.g., persons residing in Britain for educational purposes only were to be exempt) and not to be less than a period of two years in any case. The South African suggestion was favourably received by the British Government and an appropriate draft prepared for insertion in the Bill. We considered this draft in the Department and, on the 9th March, 1939, the Minister was advised (a) that the new clause appeared to solve our immediate practical difficulty because Irishmen between 20 and 21 then in Great Britain were mostly there for less than two years, (b) that our acceptance of the clause without protest would, nevertheless, be equivalent to an admission of the British contention that all Irish citizens are still British subjects, (c) that non- acceptance of the two-year residence rule might only result in our people being treated as aliens in Britain and (d) that, unless it was thought worth while to attempt to have the Bill based on, say 5 years residence and not at all on British nationality, we might best do nothing but await developments, especially in regard to the practical interpretation of the term 'temporary purpose' in the new clause. Having heard the above comments the Minister directed that Sir Thomas Inskip (Secretary of State for the Dominions) be immediately informed that the Irish Government could not regard the new clause as in any way applicable to Irish nationals and that any question concerning the imposition by the British Government of conscription on Irish nationals in Britain, (or by the Irish Government on British nationals in Ireland) must be the subject of a mutual agreement. This message was conveyed by the High Commissioner to Inskip on the 10th May and was followed up by a formal despatch (No. 26) in the same sense on the 13th May, 1939, as soon as it was known that Inskip had refused to consider any argument based on the separate nationality of Irish citizens.

  11. On the 15th May, 1939, the Taoiseach made a statement in the 'Irish Press' to the effect that he had learned of the intention of the British Government to apply conscription to Irishmen ordinarily resident in Great Britain and that he had protested against the assumption that the nationality of Irish citizens could in any way be determined by British law. He added that the British attitude was at variance with international usage and with the Hague Conventions and he recalled his reply to Deputy Norton's question of the 2nd November, 1938.
  12. Our despatch (No. 26), referred to in paragraph 10 above, was replied to on the 17th May, 1939. The British Government stated that the Bill could not be modified so as to allow for a reciprocal arrangement to exempt certain categories of persons in Britain and Ireland respectively from compulsory military training, but that if the Irish Government decided to intro- duce similar legislation in Ireland, the British Government would be prepared to discuss reciprocal exemption later on. The British despatch concluded by denying any intention to determine the nationality of Irish citizens by means of the residence clause in the proposed conscription law, but added that the British Government 'could not contemplate excluding from its scope persons of Irish origin or descent, whether nationals of Éire under the legislation in force in Éire or not, who are permanently established in Great Britain'

    On the day when the British despatch was sent, Inskip wrote the High Commissioner an informal note concerning the probable working of the two year residence rule. He added that there was no immediate intention to make it illegal for Irishmen, desirous of avoiding conscription, to return home.

  13. Sir Thomas Inskip wrote the High Commissioner on the 25th May to say that the Bill (then reaching its final stages) had been improved from our point of view. Whereas the original draft contemplated imposing the liability to register for compulsory military training upon persons residing outside Great Britain, the final version was only to apply to Irishmen when actually residing in Great Britain.
  14. Deputy Norton asked the Minister on the 31st May, 1939, in the Dáil about the position of Irish agricultural labourers in regard to the British Military Training Act, (which had been passed on the 26th May, 1939).8 His question pointed out that such labourers, even when two years in Britain, did not benefit from the British Unemployment Insurance Acts. The Taoiseach in reply explained that the basis of British Unemployment benefit did not coincide with the two-years residence rule laid down in the conscription Bill. That is, the benefit was awarded on the merits of each case, sometimes in cases where less than two years' residence existed. He added, however, that he would be glad to learn of any case where an agricultural labourer was refused benefit but, nevertheless, asked to register. In supplementary questions Deputy Norton suggested bringing the whole matter of Britain's proposed conscription of Irish nationals before a League of Nations tribu- nal. The Taoiseach doubted the possibility of doing this but promised to see if there was any line on which we could proceed to achieve what Deputy Norton desired.
  15. No provision to exempt from compulsory military training priests or members of male religious communities (e.g., Christian Brothers, etc.,) was included in the law of the 26th May, and after that date until the outbreak of War in September, 1939, a certain number of enquiries were received from Irish priests and Orders resident in or having houses in Great Britain. The Department replied to these to the best of its ability, by pointing out that it had learned that the English Bishops were taking up the matter with the British Ministry and by mentioning the protests made by the Irish Government on the general issue, the two-years' residence rule etc., etc.
  16. On the 3rd September, 1939, Britain declared War on Germany and brought into immediate force a previously prepared statute called the National Service (Armed Forces) Act, 1939. It does not appear that we were consulted in advance about this law, which, unlike the Military Training Act, 1939, may be considered to be a real measure of conscription as it compelled all British male subjects between the ages of 18 and 41 to enlist in the armed forces of the Crown, provided they resided (two years) in Great Britain and were not belonging to certain exempted classes. The latter included men 'in holy orders or a regular minister of any religious denomination'.
  17. The position of Irish citizens who might be described as 'temporarily resident in Great Britain' was brought up by Deputy Fitzgerald-Kenney in a Dáil question on the 27th September, 1939.9 The Deputy suggested that Irishmen who went to England to work on building schemes, farm work and so on generally intended to return after a period. He used the term domicile in his question and throughout his subsequent remarks, thereby creating a certain confusion of thought, because the British Acts did not, and do not regard domicile as relevant once a 'British subject' is actually residing in Great Britain. That is, an Irishman's Irish domicile is not in question when he is ordered to register under the Acts. The Order is based entirely on the fact of his two years' residence in England. This the Taoiseach, in replying to Deputy Fitzgerald-Kenney, sufficiently brought out. He recalled to the House his earlier protests against the conscription of Irishmen by Britain in any category of British subjects and gave as his opinion that Irish citizens engaged merely in farm work in Britain would be exempt as temporarily resident under the law. The Taoiseach did not go so far as to suggest that industrial workers resident in Britain for over two years could plead temporary residence only. He told the House, however, that many Irish workers of all trades, numbers of whom had been over two years in England were being allowed to return freely to Ireland.
  18. In the Autumn months of 1939 protests and queries regarding their position were received from Irish workers in Britain by the High Commissioner at London. Early in November, Mr. Dulanty met a deputation from the Connolly Clubs10 in order to reply to a number of questions in the matter. On instructions, the High Commissioner dealt with the questions put to him on the basis of the Taoiseach's parliamentary reply and discussion of the previous September with Deputy Fitzgerald-Kenney. The deputation withdrew after demanding an official statement from the Government as to what the attitude of Irish citizens should be in the event of their being called up. Should such citizens register as conscientious objectors, or refuse to register and go to gaol?
  19. Following his meeting with the Connolly Clubs' deputation, the High Commissioner approached the Dominions Office in the matter, but with no positive result. Several further protests etc., were received from Irish bodies in Great Britain.

    But in 1940, the High Commissioner's constant pressure brought about a notable success in the Dulanty-Eden Agreement of the 5th March, 1940. This arrangement declared that 'In general, no difficulty will be raised over the grant of exit permits to citizens of Éire desiring to return to Éire, notwithstanding that they may be, or are likely shortly to become, liable to military service under the National Service (Armed Forces) Act, on the following conditions:-

    1. In each case the grant of an exit permit is definitely recommended by the High Commissioner for Éire and an assurance is given by him that he is satisfied that the man in question has a home in Éire and belongs there, and that, if an exit permit is granted to this man, the man will not subsequently be given a travel document to permit him to leave Éire for return to this country unless the man is willing to undertake service in the armed forces here.
    2. If the man in question subsequently returns to this country from Éire, a further exit permit will not be granted to him unless he has undertaken service in the armed forces in a unit which was open to him.'
  20. Immediately after the conclusion of the Dulanty-Eden Arrangement, which applied only to Irish citizens from the twenty-six Counties, protests and questions began to come in to Mr. Dulanty's Office from Northern Ireland people resident in Great Britain.

    On the 8th April, 1940, the High Commissioner asked for instructions in this regard. He suggested that he be directed to speak privately to Mr. Eden in the matter. A month later, (8th May, 1940) the High Commissioner reported that Mr. Eden had flatly rejected the idea of extending the Eden- Dulanty Agreement to cover Irish citizens whose homes were within the Six County area.

  21. In May, 1941, after a year without any incident of vital importance to this résumé, conscription for Northern Ireland suddenly came up again in British policy and seemed to be imminent.11 On the Taoiseach's instructions, our representatives at London and Washington were directed to take certain appropriate steps. Cardinal MacRory and the Northern Bishops lent their public support to the Government's stand. Members of the Government held a meeting with members of the Opposition parties and the Taoiseach sent a telegram to the Most Reverend Dr. Mannix in Australia asking him to do anything possible to avert the threat of conscription in the Six Counties.12 Instructions also went to the High Commissioner at Ottawa13 who saw the Canadian Prime Minister in the matter. Mr. MacKenzie King privately approached the British Government on behalf of the Irish view.14

    On the 26th May a special meeting of Dáil Éireann was called to hear a statement from the Taoiseach, in which he pointed out to the British Government the unanimity of the Irish people of all parties, against the revived proposal to conscript the North.15 On the 27th May, Mr. Churchill replying to a question in the House of Commons said that conscription would not be applied to Northern Ireland.

  22. During the last year, from May 1941 to May 1942, the conscription question has given less trouble inasmuch as the Dulanty-Eden Agreement (renewed with Lord Cranborne) has worked well and been extended to cover each class of Irish citizens in England successively affected by new compulsory service measures.

    'National Service' in Britain is now divisible into three categories:- (i) service in the armed forces, (ii) service in the civil defence forces (A.R.P., fire-fighting etc.) and (iii) service in vital industries. Irish citizens, both men and women are prima facie liable for national service in each category.

    As already indicated, no Irish citizen with a home in Ireland in which he or she is prepared to reside till the end of the war, is bound to stay in England and give service there.

    Nevertheless, there have been a few 'test cases' taken by Irish citizens in the Courts with a view to demonstrating that Irish citizens, not being 'British subjects' should not be forced to register under statutes expressly applying only to British subjects. These cases have not resulted favourably, being decided always on the British axiom that persons born in Ireland are subjects of His Britannic Majesty. The most recent of such cases to date was that of Murray v Parkes in which the Lord Chief Justice (Caldecote) decided against the appellants on the ground mentioned above. In regard to that case, the Taoiseach made a statement to the press (2nd April, 1942) in which he again pointed out the injustice of applying British Nationality laws to persons who, under the sovereign law of this State and international principles generally, can only be regarded, wherever they may reside, as Irish citizens.

1 See Dáil Debates, vol. 73, col. 3, 26 Oct. 1938.

2 The Irish Nationality and Citizenship Act (1935).

3 See Dáil Debates, vol. 73, col. 181, 2 Nov. 1938.

4 The Hague Convention on Nationality (1930).

5 See DIFP V, No. 304.

6 See DIFP V, No 306 , 307 , 308 , 309, 310 , 311 and 314, 317 and 318.

7 See DIFP V, Nos 314 and 317.

8 See Dáil Debates, vol. 76, cols 311-2, 31 May 1939.

9 See Dáil Debates, vol. 77, cols 192-4, 27 Sept. 1939.

10 An association of Irish emigrants in Britain formed in 1938 which supported the aims of Irish republicanism and socialism.

11 See Nos 67 , 68, 73, 78, 79, 80.

12 See No.75.

13 Not printed.

14 See Nos 82, 83.

15 See Dáil Debates, vol. 83, cols 970-8, 26 May 1941.

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