The Ireland Act 1949 (12, 13 & 14 Geo. 6. c. 41) is an act of the Parliament of the United Kingdom intended to deal with the consequences of the Republic of Ireland Act 1948 as passed by the Irish parliament, the Oireachtas.

Background

Following the secession of most of Ireland from the United Kingdom in 1922, the then created Irish Free State remained (for the purposes of British law) a dominion of the British Empire and thus its people remained British subjects with the right to live and work in the United Kingdom and elsewhere in the Empire. The British monarch continued to be head of state. However, by 1936, systematic attempts to remove references to the monarch from Irish constitutional law meant that the only functions remaining to the Crown were:

  • signing Letters of Credence accrediting Irish ambassadors to other states; and
  • signing international treaties on Ireland's behalf.

This status quo remained, with Ireland participating little in the British Commonwealth and Éamon de Valera remarking in 1945 that "we are a republic" in reply to the question if he planned to declare Ireland as a republic. Then somewhat unexpectedly in 1948, during a visit to Canada, Taoiseach John A. Costello announced that Ireland was to be declared a republic. The subsequent Irish legislation, the Republic of Ireland Act 1948, provided for the abolition of the last remaining functions of the King in relation to Ireland and provided that the President of Ireland would exercise these functions in the King's place. When the act came into force on 18 April 1949, it effectively ended Ireland's status as a British dominion. As a consequence of this, it also had the effect of ending Ireland's membership in the British Commonwealth of Nations and the existing basis upon which Ireland and its citizens were treated in the United Kingdom and other Commonwealth countries as "British subjects", not foreigners.

Summary of provisions

The act's long title summarises the act's several purposes:

The effects of the acts various subsections are as follows:

  • s. 1(1) – Declared that the country known in British law as "Éire" ceased to be "part of His Majesty's dominions" (i.e., a member of the Commonwealth) on 18 April 1949 (the date that the Irish Republic of Ireland Act 1948 came into force). The reasons for including this declaration were described in the Working Party Report of the British Cabinet, which noted that "as a matter of law, it [was] arguable, on the terms of the [Statute of Westminster], that some provision by the Parliament at Westminster is required in order to complete the process by which a country ceases to be a member of the Commonwealth." The report remarked that there was hope that the inclusion of the declaration would "forestall any such legal argument" and offer the "additional advantage of excluding, for all purposes of United Kingdom law, any future argument that Eire [sic] ceased to be a member of the Commonwealth, not merely from the date of commencement of the Republic of Ireland Act, but from the entry into force of the new Eire Constitution of 1937."
  • s. 1(2) – Declared that all of Northern Ireland would continue as part of the United Kingdom, and would remain within the Commonwealth, unless the Parliament of Northern Ireland consented otherwise. The working party report noted around this that "it [had] become a matter of first-class strategic importance ... that the North should continue to form part of His Majesty's dominions". The report continued that it indeed seemed "unlikely that Great Britain would ever be able to agree to [Northern Ireland secession] even if the people of Northern Ireland desired it."

The impact of this was that many people in Northern Ireland were in theory deprived of a British citizenship status they would otherwise have enjoyed but for Irish law. This was an unintended consequence of the British Nationality Act.

The Secretary of State also explained the background to the mistake. He reported that under Irish law the question of who was a "citizen of Eire" was in part, dependent on whether a person was "domiciled in the Irish Free State on 6th December, 1922".

  1. was born before 6 December 1922 in what became the Republic of Ireland;
  2. was domiciled outside the Republic of Ireland on 6 December 1922;
  3. was ordinarily resident outside the Republic of Ireland from 1935 to 1948; and
  4. was not registered as an Irish citizen under Irish legislation.

Practical effect for descendants

Under section 5 of the act, a person who was born in the territory of the future Republic of Ireland as a British subject, but who did not receive Irish citizenship under the act's interpretation of either the 1922 Irish constitution or the 1935 Irish Nationality and Citizenship Act (because he or she was no longer domiciled in the Republic on the day the constitution came into force and was not permanently resident there on the day of the 1935 law's enactment and was not otherwise registered as an Irish citizen) was deemed to be a Citizen of the United Kingdom and Colonies.

As such, many of those individuals and some of the descendants in the Irish diaspora of an Irish person who left Ireland before 1922 (and who was also not resident in 1935) may both be registrable for Irish citizenship and be a British citizen, through either:

  • birth to the first generation emigrant,
  • registration of later generation births by the married citizen father at the local British consulate within one year of birth, prior to the British Nationality Act (BNA) 1981 taking effect,
  • by registration, at any time in life, with Form UKF, of birth to an unwed citizen father, or
  • by registration, at any time in life, with Form UKM, of birth to a citizen mother between the BNA 1948 and the BNA 1981 effective dates, under the UK Supreme Court's 2018 Romein principle.

In some cases, British citizenship may be available to these descendants in the Irish diaspora when Irish citizenship registration is not, as in instances of failure of past generations to register in timely manner in a local Irish consulate's Foreign Births Register before the 1986 changes to Irish nationality law and before births of later generations.

Reaction

The act created outrage in Ireland because its provisions guaranteed that partition (i.e. the status of Northern Ireland as a part of the UK) would continue unless the Parliament of Northern Ireland chose otherwise. Because Northern Ireland had a unionist majority, the guarantee that Northern Ireland would remain part of the UK unless the Belfast parliament resolved otherwise copper-fastened the so-called "unionist veto" in British law. The Irish parliament called for a Protest Against Partition as a result. This was the first and last cross-party declaration against partition by the Irish parliament. The revival of an Irish Republican Army in the early 1950s has been attributed by Irish journalist and popular historian Tim Pat Coogan to the strength of popular feeling among nationalists on both sides of the border against the act.

Before the final Act was published, speculation that the legislation would change the name of "Northern Ireland" to "Ulster" was also the subject of adverse reaction from Irish nationalist politicians in Northern Ireland and from the Minister for Foreign Affairs in Ireland, as only six of the nine counties of Ulster are actually in Northern Ireland.

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