On 14 October 2019, the Upper Tribunal (UT) handed down judgment in SSHD v De Souza, immediately dividing commentators both in and outside Northern Ireland. Briefly, the UT had heard the Home Secretary’s appeal against the First-tier Tribunal (FTT) decision which had declared that the American claimant (respondent in the UT) was entitled to apply to reside in Northern Ireland under the EU Citizen’s Directive because his wife was permitted to self-identify as an Irish national in accordance with the provisions of the Good Friday Agreement (GFA). British nationality, the FTT declared, could not be “imposed” on her at birth, flying in the face of the British Nationality Act 1981 (BNA), section 1 of which, it was argued, does precisely that. The UT allowed the appeal and overturned the FTT judgment, revealing a tension which goes far beyond immigration law.

Constitutional logic

The claimant’s case involved a particular gloss on a specific provision of the GFA: Article 1(vi) which declares that the Westminster and Dublin governments recognise “the birthright of all people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”. As the UT observed, this clause has never been incorporated into domestic UK legislation by Parliament [32]. The result is that it gives rise to no legal obligations at domestic law. This rule of treaty justiciability is as ancient (see Rustomjee v The Queen (1876) 2 QBD 69) as it is logical: to the sovereign Crown-in-Parliament belongs the duty of enacting domestic laws and so it must determine, through legislation, how any treaty applies domestically. The opposite view would permit a change in domestic law by an executive act (treaty-making), thereby breaching Article 2 of the Bill of Rights 1688.

The claimant also relied on the Northern Ireland Act 1998 (NIA), which was enacted to implement the GFA and accorded constitutional status in Robinson v NI Secretary [2002] UKHL 32, to say that the BNA can be taken to have been amended, at least impliedly, by operation of the NIA itself, given the generous and purposive approach to interpreting the NIA favoured in Robinson. The UT was unable to agree, finding the claimant’s assertions a stretch too far, especially as no part of the NIA even remotely touches on nationality, and so, bears no relation to the BNA [43].

However, another observation about the House’s approach in Robinson would be apposite here: in his oft-quoted speech (Robinson at [11]), Lord Bingham said only that the NIA was effectively a constitutional statute for Northern Ireland, and thus its provisions should be interpreted purposively against the backdrop of the GFA. It is often overlooked that the GFA itself ringfences those of its provisions which are required to be given domestic effect (Annexes A and B of the Multiparty Agreement). Thus, Lord Bingham’s speech was not an invitation for the non-obligatory GFA clauses to be parachuted into domestic law through a judicial backdoor. This is especially important in De Souza given that the birthright clause at Article 1(vi) itself is a non-obligatory clause.

Identity in Northern Ireland

One might wonder why Westminster and Dublin did not require the birthright clause to be domestically incorporated – which lies at the heart of the claim in De Souza. Regardless of the two governments’ reasons in 1998, the non-incorporation is fairly consistent with the superficial attempts to deal with the complex and divisive question of identity in the history of Northern Ireland.

The Government of Ireland Act 1920 for example provided for both Irish legislatures to be elected by proportional representation as a 3-year sunset clause which could be and was swiftly altered by the erstwhile Stormont Parliament in 1929 to return overwhelming Unionist majorities in every election thereafter. Protection from discrimination on religious or political grounds did not explicitly extend to employment until 1976, and that too by an Act of the Westminster Parliament. The precise balance of fairness in religious and political discrimination in Northern Ireland was only recently clarified (albeit with limitations) in Lee v Ashers Bakery Ltd [2018] UKSC 49. The paralysis over the backstop in the ongoing Brexit negotiations, with questions as to where a customs and regulatory border might lie and what form it might take is really a question of identity dressed in wafer-thin economics, swinging like a pendulum between Westminster and Dublin.

Despite the unsettled nature of identity in Northern Ireland law, it is a tangible aspect of quotidian life in the jurisdiction. A recent Commons briefing paper contains the following remark, “Identity in Northern Ireland is itself a complex interaction of political, religious and national affinities” before citing the statistical reality which underlies this statement: a 2014 research paper found around 65% of Protestants identified as British only and around 60% of Catholics identified as Irish only. Clearly, ethno-religious identity, political opinion and religious faith are indissociable from national identity in Northern Ireland. To that end, the controversy in De Souza illustrates a bizarre consequence of the operation of identity in Northern Ireland: UK immigration law privileging Nationalists over Unionists, in that Nationalists renouncing British citizenship would be able to benefit (via their Irish citizenship) from the less restrictive family-reunification provisions under EU law.

Identity and indirect discrimination

The concept of indirect discrimination is predicated on a series of well-trodden criteria: that a facially neutral law purports to treat everyone in the same way, but by applying a requirement or requirements which members of one protected group are much less likely to meet than members of a comparative group (see mutatis mutandis R v Immigration Officer at Prague Airport ex p European Roma Rights Centre [2005] 2 AC 1 at [75] per Baroness Hale). 

The above discussion presents an interesting perspective on De Souza: the renunciation of British citizenship under section 12 of the BNA requires the relevant individual to sign a document which begins with the declaration “I am a [categories of British nationality]”. For those whose Irish national identity is indissociably tied to their ethno-religious identity, the above declaration creates an unbridgeable chasm between the identity they espouse and the renunciation declaration which they are required to sign. Thus, the section 12 declaration, facially neutral in addressing all deemed British nationals, unavoidably compels some deemed British nationals, such as the claimant’s wife in De Souza,to make a statement with which they deeply disagree. This in turn invites consideration of the recent development of compelled speech jurisprudence in the Ashers case (Lady Hale PSC at [54] – [55]). Although the compelled speech considerations in Ashers stemmed from the other legislation, the Supreme Court’s consideration of Article 10 of the ECHR in the context of speech and expression (to include the right to refrain from speaking) would apply with equal force in the case of being compelled to sign a document which fundamentally conflicts with the expression of one’s identity.

However, it is important to appreciate that this is not solely an Article 10 issue, primarily because the notion of compelled speech in this case would rest necessarily on the protected status of the corresponding ethno-religious identity. Ethnic identity has long been recognised as an essential part of an individual’s private life under Article 8 of the ECHR (see e.g. Ciubotaru v Moldova (App. 27138/04) at [53]). Moreover, the long (albeit incremental) history of protecting religious faith and political opinion in the context of Northern Ireland’s history would unquestionably bring these characteristics within the protective cloak of Article 8.

The crucial point here is the way in which Article 8 and Article 10 interact. Expression of one’s identity is a corollary of identity itself, and Article 10 can encompass even controversial such expressions (see Donaldson v UK (2011) 53 EHRR 14 at [28] and [29]). As Article 10 is a  qualified right, the burden then shifts onto the State to show that the renunciation declaration is a permissible interference under Article 10(2) with the rights of an individual to refuse to accept any of the categories of ‘British national’ in the renunciation form, on the basis of the individual’s protected identity.

To be clear, this is not a frontal attack on the language of the BNA itself – it is simply a means to make the renunciation process more responsive to individual needs. On the basis that deeming an individual a British national does not impact upon their daily life until they attempt to avail of a process which conflicts with the designation, the transgression of the designation lies in its acceptance being the condition precedent to remove the conflict (i.e. the choiceless act of signing the renunciation declaration in its current form).

Conclusion

Whether the way suggested here holds any water remains to be seen. Its premise in how a deemed nationality transgresses upon individual identity may even be naïve. However, given the bar on the use of unincorporated treaty provisions to judicially amend parliamentary enactments, I turn elsewhere to unpick what is a present and increasingly pernicious issue affecting Northern Ireland.

Although identity is not readily definable in legally certain terms, let us be absolutely clear that the De Souza case is far from academic. Those of us who recall a time before the GFA know very well that identity was until recently a site of systemic discrimination and incalculable violence. It is against this backdrop that the question of identity and citizenship remains Northern Ireland’s uncut Gordian Knot. 

Anurag Deb, paralegal at KRW LAW LLP and BPTC graduate, The University of Law

(Suggested citation: A. Deb, ‘Identity: Northern Ireland’s Gordian Knot’, U.K. Const. L. Blog (17th Oct. 2019) (available at https://ukconstitutionallaw.org/))