Volume #12 - 777.|
RELATIONS AU SEIN DU COMMONWEALTH
Mémorandum du sous secrétaire d'état aux Affaires extérieures|
au Premier ministre
le 19 avril 1946|
RE PROPOSALS FOR A COMMONWEALTH MEETING ON NATIONALITY|
Last fall, and again during the time Mr. Martin and Mr. Read were in London for the meeting of the United Nations assembly, the United Kingdom authorities raised the question as to the possibility of holding a meeting of Commonwealth representatives to give consideration to what they think are aspects of general Commonwealth interest in the new Canadian citizenship Bill. 1 The proposal of last fall was made to me verbally by Mr. Stephen Holmes. I tried to discourage it at that time, and I am attaching a copy of a note that was prepared on our conversation giving the details. The original proposal for a conference has now been somewhat narrowed to a suggestion for a "meeting of legal experts". The essentials of this proposal are contained in the attached dispatch from London.† The idea is to hold the meeting after our Bill passes but before it goes into effect.
In general, the United Kingdom view is that the Canadian Bill represents a departure in principle from the existing scheme of nationality legislation in the countries of the Commonwealth. At present we, the United Kingdom, Australia, New Zealand, South Africa and Newfoundland have legislation that provides virtually identical definitions of "British subject". (Ireland is an exception. Under her 1935 legislation an Irish citizen is not a British subject at all). The general scheme was agreed on in 1914 and common recognition of the status accorded by naturalization in any of the countries was then and has since been based on the community of definition. This basis has proved un-satisfactory, since it meant that there was practically no room for flexibility to suit the peculiar needs of any particular country. In another aspect, the scheme meant that the basic nationality status was that of "British subject", and any nationality definition associated with a particular country could only provide for a subordinate and relatively unimportant status. To avoid this difficulty a different method of approach has been adopted in the new Bill. Instead of having the old common definition of "British subject", we have defined "Canadian citizen" in terms that depend basically on the same factors but which involve certain departures that we thought desirable. We then say that "a Canadian citizen is a British subject", and, on the other hand, we recognize the status of British subject that is accorded by another country of the Commonwealth to one of its citizens, no matter how such status of British subject may be defined by that country. In short, it might be said that the old basis was one of identical definition, while we have adopted a basis that might be called mutual recognition of possibly disparate definitions.
We have sent copies of our Bill to all countries of the Commonwealth (October 12, 1945 and March 23, 1946) and none but the United Kingdom has evinced any particular interest with regard to the question of the status of British subject. It is suggested in the attached dispatch that Australia may follow our example and on April 9 a press dispatch stated that the Australian Cabinet "approved the principles" embodied in our Bill. Mr. Hearne, the Irish High Commissioner, has expressed personal interest in the effect of the Bill on the status of Irish citizens, but there have been no representations from the Irish government. They, of course, have no interest in the status of "British subject".
The United Kingdom suggestion for discussion is based on the conclusions of the Imperial Conferences of 1930 and 1937. The relevant conclusions of the Conference of 1930 were as follows:
That, if any changes are desired in the existing requirements for the common status, provision should be made for the maintenance of the common status, and the changes should only be introduced (in accordance with present practice) after consultation and agreement among the several Members of the Commonwealth.
That it is for each Member of the Commonwealth to define for itself its own nationals, but that, so far as possible, those nationals should be persons possessing the common status, though it is recognized that local conditions or other special circumstances may from time to time necessitate divergences from this general principle.
That the possession of the common status in virtue of the law for the time being in force in any part of the Commonwealth should carry with it the recognition of that status by the law of every other part of the Commonwealth.
At the 1937 Conference the following were the relevant conclusions:
1. It is for each Member of the British Commonwealth to decide which persons have with it that definite connection—which would enable it to recognize them as members of its community. It is desirable, however, to secure as far as possible uniformity in principle ...
... it is recommended that any member contemplating passing a law on the membership of its community, should submit the proposals to the other members of the Commonwealth so as to enable them to offer observations thereon, if they feel so inclined.
We have fully met the latter obligation. We sent an outline of our Bill to all countries of the Commonwealth on September 27, 1945, and copies of the Bill on October 12. We also sent copies of the Bill as revised for its recent introduction on March 23. The British, however, feel that paragraph 2 (above) of the 1930 conclusions requires "consultation and agreement" in this case, since our Bill affects "the existing requirements for the common status". In actual fact the change in the "requirements" under our Bill are very slight and in almost all cases represent a tightening of qualifications. We have pointed to these facts and to the fact that no other country has expressed a desire to hold a meeting. We have not argued the point, but if it seemed desirable as a matter of policy, we might perhaps take the view that the 1937 decisions supersede those of 1930, and that consultation is not strictly necessary.
Acceptance of the United Kingdom suggestion for a discussion might give rise to a number of difficulties. It is clearly impossible to hold a purely "legal" discussion on this matter. Even if our approach were unanimously accepted there would still be questions of political policy that would conflict with strict legal considerations in many Stances. However, the prior question of the entire basis of approach to the nationality question is one of policy and not of law. There is, moreover, possible difficulty in the very fact of holding a conference. It would vitiate the psychological and political value of our proceeding to Canadian nationality through purely national action. Again, if there is disagreement, or attempt to secure amendments from us which we do not wish to make, there is the possibility of raising a domestic controversy on imperial issues—a controversy that has thus far been completely avoided.
On the other side is the 1930 report and also the fact that it is now public knowledge that the U.K. has suggested a Commonwealth discussion. The matter became public on April 9 when Prime Minister Chifley of Australia stated that his Cabinet had approved their being represented "at a British Commonwealth Conference to discuss proposed legislation on one nationality operating generally in British Commonwealth countries".
Apart from these basic problems in the proposal, there are a number of other points to consider:
The position of Ireland. The British apparently contemplate not having Ireland present. Certainly there could be no unanimity if Ireland were there, but it seems undesirable to leave Ireland out of the first technical discussion of a non war question between members of the Commonwealth.
The place of meeting. If a meeting is to be held, New Zealand and South Africa would prefer it to be in London because of transportation considerations. Australia has also suggested that the meeting be held in London
"possibly in June, immediately after the Peace Conference in Paris". The United Kingdom would probably prefer that, but would be willing to come to Ottawa. If London is the locus, a meeting after the consultations with Prime Ministers in May might be relatively obscure and not attract too much attention. A meeting in Ottawa would have the merit of avoiding the appearance of our going to London to have blessing given to the new Bill, but it would attract more attention and might rouse some domestic controversy over imperial and national issues.
The time of meeting. If we are to attend any meeting, it might be well to hold it soon, so as to clear the matter up as quickly as possible. The Bill has had a desirable domestic reaction, and should go into effect fairly soon.
Canadian representation. The meeting sought is a technical one and it would be undesirable to give it the emphasis of representation by a Cabinet minister. Our representatives would have to be aware of the political considerations that are involved in the new Bill, and at the same time fully conversant with the complex details of nationality legislation. Mr. Read would have made an ideal representative, but he is no longer available.
The immediate questions for decision are:
Whether we should agree to a meeting at all.
If we agree to a meeting
whether it should be in London after the Prime Ministers' meetings, or after the Paris discussions; or
whether we should try to have it held in Ottawa, and if so, when.
The United Kingdom had hoped that we would let them have our answer before this, but other problems have been more immediately urgent. In view of the publicity that has been given to the proposal we should, however, try to send an answer at an early date.
N. A. R[OBERTSON]
1Le projet de loi sur la citoyenne, Bill n' 20, fut présenté a la Chambre des communes pour première lecture le 22 octobre 1945. Le Bill fut modifié et présent de nouveau a la Chambre au printemps 1946. Il passa en troisième lecture le 16 mai 1946. Voir loi dans Statuts du Canada, 10 George VI, chapitre 15.