HC Deb 12 December 1912 vol 45 cc835-50

Every person who at the date when this Act comes into operation is domiciled in Ireland, and thereby enjoys the status of a citizen and subject of the United Kingdom, shall have the right by notice in writing addressed to the Lord Chancellor of England to renounce such Irish domicile and to elect domicile in Great Britain, and thereby to retain all the rights and privileges (with their corresponding duties and obligations) of British citizenship as distinguished from Irish citizenship for all purposes applicable thereto, including the incidence of Imperial taxation, the right of probate, the law of divorce, and other similar matters, and shall not be subject to the laws passed by the new Irish Parliament except (as regards any real or personal property in Ireland) to the extent and so far only as a British citizen holding such property and having no Trish domicile would be subject.

Motion made, and Question proposed, "That the Clause be read a second time."

Mr. WATSON RUTHERFORD

In connection with this new Clause which I move, there was one subject which when I first heard the Home Rule Bill introduced struck me as being of very vital importance, perhaps a great deal more important than many Members of this Committee may think. What occurred to me was that we were carving out a piece of the United Kingdom, and that the object of the Rill was to float that off, so to speak, as a separate undertaking. And I asked myself, and in fact one or two of my friends who reside in Ireland asked me, what would be the status, the domicile, the citizenship of a man at present residing in Ireland immediately upon this Bill coming into operation. It is some months ago now when the Bill first came out, but I endeavoured to embody my view upon the subject in this Clause, at the time, but I had almost forgotten it, it is so long ago, until it loomed up through the fog of these proceedings, and we have now reached it.

I desire to call the attention of the Committee to the fact that everybody at present resident in Ireland is now a subject of the United Kingdom, and is entitled as of right to the domicile of the United Kingdom. He is entitled of right to enjoy all the incidents; privileges and rights, both at home and abroad, that this citizenship confers upon him and which are attached to it. It will be in the recollection of all Members of the Committee that it was a proud thing for a man to say in ancient times Civis Romanus sum. It was always a very important fact to what particular imperium State or Legislature men owned their allegiance. I asked myself whether, in setting up this new Parliament, which would incidentally deprive these people who to-day are entitled to these rights, have we any right inferentially to deprive them of those rights and privileges? I may be asked, and asked with a good deal of force, what will those rights and privileges really mean. Are they substantial, or are they merely something of a sentimental character? I may explain that the law of domicile is very complicated, while at the same time it is a very important matter. By the law of domicile is construed the validity of a man's will, and perhaps, what is more important than that, the distribution of his estate in case he should die intestate. I take it that the most important incident, and beyond the mere sentimental question of the law of domicile, is the distribution of a man's estate.

The laws on this subject in the United States are different in character from what they are in England; they are certainly different in almost every country in Europe from what they are in England, and also as between one another. The subject is one of the greatest possible difficulty. I am aware of a case which occurred the other day, where a Swiss gentleman resident in Liverpool died, and his estate and effects, notwithstanding his will, became divisible in the most astonishing manner that it was possible to conceive. The lady whom he had been married to, and who, everybody thought, was entitled to his effects in England, turned out to be entitled practically to nothing at all. The meaning of domicile is laid down with very considerable care in the Civil Code. The place of a man's birth is his legal domicile until, or unless, he chooses of himself alone to take another domicile. I will not delay the Committee by describing the cases in which a man can voluntarily alter his domicile, because he can do so by permanently taking up his abode in some foreign country, if he is a person of full age. This Clause affects the political and civil status of every person resident in Ireland. The greatest authority on this subject, and it is a very important subject, if only I can convince the Committee of its importance, namely, Storey, said:— In the British Empire there is only one allegiance, but there are numberless domiciles. There are parts of the Dominion of Canada where, if a man is domiciled and dies without a will, his estate will be divided in one manner, while in another part of Canada, if he died there without a will, his estate would be divided in a different manner. That arises entirely out of his domicile. I wish to put this point: It is conceivably possible that the Irish Parliament might abolish primogeniture. I only give that as an illustration. Supposing the law in that respect were different in Ireland from what it is in England, having passed the law of primogeniture, they might pass a law, as in France, by which a man's estate at his death was to be equally divided among all his children. If the law were different between the two countries, the estate of any man who resides in Ireland to-day would be dealt with in accordance with his domicile at the time of his death. Nothing can deprive a man of his domicile against his will except, according to Storey, sentence of death, exile for life, or outlawry. If the Government do not adopt a Clause of this kind, then by this Act of Parliament we deprive every person now residing in Ireland, by Statute, of the right of domicile, and status as a domiciled citizen of the United Kingdom. The points which entirely depend on this question of domicile are as follows:—The question of majority or minority. For instance, to-day in France a man does not become of age until he is twenty-five; he cannot contract a legal marriage without his parents' consent until he is twenty-five. Therefore, if an Englishman were domiciled in France he could not make a legal marriage under the age of twenty-five without his parents' consent. That is simply an illustration. Then there is competency to marry, that entirely follows the law of domicile; and the law of the guardianship of infants and the question of legitimacy follows domicile. It is conceivable, for instance, that the Irish Parliament might pass an Act under which the children born before marriage could be made legitimate; all questions of intestacy also follow the question of domicile.

7.0 p.m.

I conceive, from reading the Bill, that it never occurred to the Government, in framing it, that there was any necessity to provide for, first, the sentimental point, that it is depriving a man of his citizenship in the United Kingdom; secondly, I do not think it has occurred to them to deal with the question of domicile at all, or to give any person resident in Ireland the right to choose which domicile they would be effected by. If this Bill passes, from the day it comes into operation, every child in Ireland, by the misfortune of its birth—I am speaking from my own point of view—will be domiciled in Ireland as contra-distinguished from England. Of course, that is a misfortune that may happen to any inhabitant in any part of Africa or anywhere else; but the case covered by my Clause is the case of the people, sui juris, who are entitled to the rights and privileges of citizenship by the domicile to which I have referred. All I seek by this Clause is to give each of those people the right by simply sending a notice to the Lord Chancellor to say, "I elect so long as I live, whether resident in Ireland or not, to remain a citizen of the United Kingdom, of which I have been and am a citizen and to be domiciled in the United Kingdom, and I will not accept the citizenship of this separated subordinate country, and I will not accept the domicile which is sought to be forced upon me." I say we cannot legislate for the future, we cannot affect those at present unborn. They must, take their chance as to where they are born, they are not responsible for their parents or the country in which they are born. "What we can do is to deal out an ordinary meed of justice to those who are now residing there, and we can give them at all events the right and option to remain citizens of Great Britain and the United Kingdom, entitled to the domicile with its rights, incidence and privileges. It is in that spirit, and for those reasons I move the insertion of this new Clause.

Mr. BIRRELL

I cannot associate the interesting speech of the hon. Member with the new Clause which he has moved. I do not know whether he has read it, but it involves consequences of a character quite distinct from any point that may arise as to how far the question of domicile ought or ought not to be reserved as a question for the United Kingdom. I may say on the mere question of domicile there was an Amendment down in the name of an hon. Gentleman opposite in the Committee stage which did not come on, and I rather think it is quite likely if it had come on I should have been in a position to accept it. That will remain open to us on Report, therefore I will not go into that question now, and I will simply consider the question of whether it would be possible for us to accept the new Clause. The hon. Member did not seem to me to keep distinct the difference between domicile and nationality. An Irish person born in Dublin or Belfast after the passing of this Bill will not have his nationality affected. He will remain a citizen of the United Kingdom, and he will be able to say, Ciris Romanus sum, whenever he is travelling abroad, and his nationality will not be affected in the least by the fact that a subordinate Legislature has been set up. He will be subject to the laws of that Legislature so far as they touch him in his capacity as a person having a domicile in Ireland. The Scotchman is in exactly the same position who has a Scottish domicile. He is subject to Scottish law, which is as different from English law in spirit and intention as if it were the Code Civil. They have different laws of marriage and illegitimacy, and they have that terrible law which some hon. Members regard with so much horror, namely, that the subsequent marriage of the parents legitimises the offspring born before marriage. The Scotchman is a citizen of the United Kingdom. Therefore I do not think there is anything in this affecting in any way whatsoever the question of nationality. There have always been consequences following domiciles. There used to be, though I am not quite sure if there is now, a law of Anglo-Indian domicile. A person resident in India, serving the Crown, was subject in many ways to a domicile which did affect the distribution of his property and had other consequences. So it is in Ireland, so it is in Scotland, and so it is in England. You have your domicile, and certain consequences follow from it. There really is nothing I can assure the hon. Member to damnify in any single respect in any way citizenship, nationality, or anything of that kind. An Irish subject of the Crown who was born or lives in Ireland after the passing of this Bill——

Mr. J. H. CAMPBELL

Will the right hon. Gentleman say what was the Amendment to which he referred?

Mr. BIRRELL

That of the hon. Member for Durham (Mr. Hills) on Clause 2, I think. I think that requires consideration. The proposal of the hon. Member refers to anybody who, after the passing of this Bill, is domiciled in Ireland, that is to say, who lives in Ireland in such a manner as to give him an Irish domicile. As everybody knows, domicile depends on residence, coupled with intention. I live in Ireland some weeks every year, but I always have the intention of coining back. Therefore I do not imagine that my property, small as it is, will ever be affected by Irish legislation under this Bill, or that it will be divided amongst my legitimate issue, after my death, in accordance with Irish law. Therefore, it is a question of residence coupled with intention. You may reside in a country, and yet in no sense have a domicile. On the other hand, you may have gone to a country, and you may have been there only a week when a foreign Power comes along and takes possession of the country. They may take away your property, if they chose to do so. as being the property of an enemy, although you may have been there only a few days, unless you can show that you had a strong intention of returning. It is a difficult and complicated question, but nevertheless it is a question of fact, coupled with intention.

Here is a person living in Ireland and domiciled in Ireland and the hon. Member proposes that after the passing of this Bill, he should be able to address a letter to the Lord Chancellor saying that although his domicile is in Ireland, he wishes to be treated as if he were not domiciled in Ireland. He lives in Ireland, and has no intention of going anywhere else, but nevertheless he is to be given power to elect to be domiciled in Great Britain. He is not going to live in Great Britain, and is not going to leave Ireland; but nevertheless he wishes to be treated in the future as if he had a domicile in England. Thereupon he is not to be subject, according to this Amendment, to any of the laws passed by the new Irish Parliament. He lives in Ireland, but he is not to be subject to their laws On the other hand, he is to be subject to all the English laws, and thus he will have the satisfaction for the first time in his life for paying Inhabited House Duty, and he will have the satisfaction, if he is an ostentatious person, of paying for armorial bearings, and he will have the satisfaction of paying 7s. 6d. instead of half-a-crown if he keeps a dog; and in the same way, unless he arranges with his wife, he will be entitled to the privilege of domicile in the Divorce Court, and to the privilege of taking proceedings in that most obnoxious Court. I do not see how you could possibly say that a person living in Ireland and actually domiciled in Ireland, would not be subject to the laws passed by the new Irish Parliament.

Mr. WATSON RUTHERFORD

Has the right hon. Gentleman looked at the, last three lines?

Mr. BIRRELL

He is to be free from the obligation of obeying Irish laws, except so far as they do certain things. In other words, he is not to be subjected to the law of the Province of the Empire in which he resides. I think the hon. Member will see that that is an impossible Amendment for me to accept. With regard to the question of domicile, I would like to keep that open without expressing any confident opinion about it now. I might be out of order if I did so, but with regard to reserving the question of domicile for the United Kingdom, I think that is a question which ought properly to be considered, and will be considered on the Report stage of the Bill. That does not meet the case I admit that has been made by the hon. Gentleman, but the case to which I do attach importance is, that of keeping domiciles as a United Kingdom subject so that there should not be differences of law on that point. Otherwise people must stand the racket of living in a country which has the possibility of different laws from England. Scotchmen submit to it with a good grace, and although the law between England and Ireland are not so different in important matters as the laws of England and Scotland are, still there have always been differences. Really there is no extraordinary hardship imposed on any person who is domiciled in Ireland to say he is to be subject to the laws of Ireland, and that he must submit to them. You may say that the Bill is a wrong Bill, and you say you ought not to set up these provincial Parliaments and have any differences of taxation and possibility of different laws, but I think it would be ridiculous to say that anybody who lives, say, in Tipperary, or in Kerry, should be in a position to say, "Although I am in Tipperary or in Kerry, I am subject to English laws and English laws only, and can snap my fingers at Irish laws and can pay English taxes which no Irishman has hitherto paid, and will pay no Irish taxes just as if I lived in London." I do not think that is the way to get over any difficulties there may be in the pure and simple question of domicile. Although there is a nucleus, if I may say so, of sound argument in the proposition of the hon. Member, I think he will agree with me that that would be a hopeless position to adopt.

Mr. BALFOUR

As a layman I approach this subject with every great diffidence, but surely the right hon. Gentleman must see that he has not made out his case because he says what a dreadful thing it would be that one who lived in Ireland should not be subject to Irish laws. I hope a great many Scotchmen and Englishmen will live perhaps many years in Ireland, and if they remain domiciled as they are now as Englishmen or Scotchmen they will exactly be in the position which the right hon. Gentleman says is absolutely intolerable.

Mr. BIRRELL

No, but the intolerable thing is that in the case of a domiciled Irishman you should say he is not domiciled when he is.

Mr. BALFOUR

I was thinking of the practical grievance. Two people may both live exactly the same length of time in Ireland, and it so happens that the one who is domiciled in Ireland is subject to Irish laws and the one who is domiciled in England is subject to English laws, and that can be done now without the smallest embarrassment; and the Englishman's property when he leaves property comes under English law and the Irishman's property under Irish law. There is no practical inconvenience there, as I think everybody must admit. The only question is as to the absurdity which the right hon. Gentleman is so sensitive to, namely, the fact that a man has a particular domicile now and this Statute may make him have another domicile. That is a purely theoretical grievance says the right hon. Gentleman, but I want to know whether this proposition is not an act of equity to people who would cease to be domiciled in Ireland if they had reason to know that Home Rule would be introduced into that country. That is the whole question. The right hon. Gentleman will admit that if there is a change of allegiance it would be only right that people should have the choice as to which power, the old power or the new power, they would be subjects of. There was, for example, in the American war—I mean the war between the Colonies and this country—a choice given to people who were domiciled there, whether they would acknowledge allegiance to the United States or remain with the old Kingdom.

Mr. PRINGLE

They had to leave the United States.

Mr. BALFOUR

At all events, there was something of that kind. This, however, is not a case of allegiance, but when you change the status of a whole community by legislation you ought to give a choice, if there is no practical inconvenience attached to it, to the people concerned to say whether they should be under the old system or the new. I quite agree that if my hon. Friends were proposing an arrangement that would embarrass the Irish Government and impoverish the Irish Government——

Mr. BIRRELL

That is part of the Amendment.

Mr. BALFOUR

I should say that would be only to a very slight extent. I think it is possible they might get more than they would lose.

Mr. BIRRELL

Those who elected to remain with an English domicile would not be liable to pay any taxation to the Irish Parliament under this new Clause. I am not saying that that is inherent.

Mr. BALFOUR

I think that is so, and I really do not know whether on that account it would be better to belong to England rather than to Ireland. It is possible that the taxation would be just as heavy on this side as on the other. It is a very important matter, affecting matrimony, the status of children, and the leaving of property at death. I think the Government should consider at least the existing generation. I do not propose we should go on for ever, but they might consider whether the status of the existing generation should not remain as it is, that they should be subject to no injury, and should have liberty to claim that they should go on as they are.

Mr. WATSON RUTHERFORD

This Clause was drawn up at the time when the Bill was first introduced, and of course a great many things have been put into the Bill which have made it different since that time. I quite agree there is a great deal in the objection of the Chief Secretary to the concluding words of the Clause, and I should be quite content that it should end at the words "British citizenship," having regard to the way in which the Bill is now shaped. What I want to get is this, that any person at present resident in Ireland would be able to elect, just as if he had his domicile in Great Britain, to continue in that position, and would be exactly in the same position as an Englishman who was residing in Dublin temporarily or for two or three years without the intention of taking up a permanent place of abode there. Any Englishman or Scotchman now residing in Ireland without the intention of permanently remaining there, has still got his English or Scotch domicile, and what I ask by the Clause—leaving out the last portion—is that any Irishman—I quite agree it must be cut down to the people who are at present living and residing in Ireland—may be able after the passing of this Act to maintain his present position. I do not seek to affect future generations. I think the people who to-day have status rights and privileges—I am not discussing them at present—as subjects domiciled in Great Britain and Ireland, as distinguished from Ireland alone, should be at liberty to retain that status, that right, and that position which they have now got. I am willing to leave out of the new Clause the reference to taxes and so on and to stop at the word "citizenship." If I do that, may I ask the Chief Secretary if he will favourably consider it, because he was evidently struck with the importance of the question of domicile, which could not be discussed under the Closure arrangement at the time it was reached in Committee? I admit it is a difficult subject, and I do not press the Chief Secretary at the moment, but I hope he will take it into consideration and see whether on the Report stage he could do something to enable the existing inhabitants and residents of Ireland to elect a domicile, and, apart from the simple question of domicile, that the rights they have got to-day should be continued if they so wish. I do not bring forward this in a party spirit or from any desire to wreck the Bill. I have only a sincere desire to give to a large number of people who are resident in Ireland today, and who for sentimental or other reasons do not care about being handed over to the tender mercies of the new Parliament, the right to be placed in the same position as an Englishman who is resident in Ireland temporarily with the ultimate intention of going back to England some years hence, and who has not got an Irish domicile. If you place them in that position, we will be quite satisfied. I make an appeal to the Chief Secretary. I do not ask him to accept the Clause now. I know that would be unreasonable, but I hope he will be able to meet this sentiment in some reasonable and intelligent way.

Mr. CAMPBELL

I think, if the hon. Member will pardon me, there was a little confusion in his mind which is shown in the form of Amendment, because the object he wants to secures which I am in full sympathy with, can be secured in a much simpler way, and in a way which I hope will commend itself to the Chief Secretary, and that is by restraining in future any Parliament that will be set up in Ireland from altering the law of domicile at present existing.

Mr. WATSON RUTHERFORD

No, no.

Mr. CAMPBELL

I think the hon. Gentleman will accomplish his purpose in a less complicated way than the way in which he proposes. What he has forgotten is that every person who is domiciled in Ireland to-day is subject to the particular infirmities, or, if you like, the advantages, attaching to domicile in Ireland.

Mr. WATSON RUTHERFORD

I did not forget anything of the sort.

Mr. CAMPBELL

As a domiciled Irishman to-day I am subject to the Irish law of divorce, to the law affecting marriage relations, and other matters of that kind, which are wholly different in Ireland. I am subject as a domiciled Irishman to different laws in these matters to those to which the hon. Gentleman is subject, although I may claim, as he does, to be a subject and a citizen of the United Kingdom. In Scotland the law is different from the law in Ireland and in England, but Scotsmen all the same are entitled to be citizens and subjects of the United Kingdom. Therefore, the position of the Irishman, whose domicile remains exactly as it was before the passing of this Bill, will remain subject to the existing Irish laws and to the liabilities or privileges which are determined by his domicile. We will remain in Ireland subject, as we were before, to the Irish law. The danger is that legislation might be passed which would impose upon us, by reason of our domicile in Ireland, greater burdens and liabilities as regards our domestic relations and otherwise than we are at present liable to. I was glad to hear from the Chief Secretary that he was prepared to consider favourably the Amendment on Clause 2 upon this subject. If the Irish Parliament was prevented from altering the existing law of domicile as it applied both to Ireland and to England, so that we who are still domiciled in Ireland would have to that extent precisely the same status as we had before, it would go a long way to meet the case. The danger is that the Irish Parliament, for the purposes of taxation, might say in future that any man who was actually living in Ireland was to be considered as a domiciled Irishman. He might spend half his time in Ireland and the other half in Great Britain, and they might say to him, "You claim to be an Englishman, a Scotsman, or a Canadian, but you spend half your time here, and you draw the bulk of your income from here, and we will pass a law that the test of domicile in future is to be residence in Ireland." That would be a grave infringement of the existing rights of Irishmen and Englishmen. I am of opinion that this could be met to a large extent by putting in an Amendment on the Report stage to Clause 2 which would prevent any alteration in the existing law of domicile, and that would leave us in regard to our status precisely as we were before the Bill was passed.

Mr. BIRRELL

I quite agree with the view just put forward by my right hon. and learned Friend. What is wanted, I should think—I am expressing my own opinion—is to secure uniformity of the law in Great Britain and Ireland on the vital and important question of domiicle, and I will therefore consider the introduction of the word "domicile" in its proper place in Clause 2, so as to restrict the Irish Parliament from dealing with or making that a subject matter of legislation. I really think I am almost in perfect, accord with the right hon. and learned Gentleman, although the hon. Member behind him does not seem to be, but I tell him honestly that that is the most he will get out of me. I do not think the right hon. and learned Gentleman would ask me to adopt the Clause as it stands. The hon. Member (Mr. Rutherford) suggests that a person resident in Ireland should be able to reserve his status by writing to the Lord Chancellor. There is no occasion to write to the Lord Chancellor. I hope that he will still remain, that every true Irishman will remain, and for ever will remain a subject and citizen and have all the rights of a citizen of the United Kingdom, and that he will only be subject to the peculiar laws affecting his own domicile. Domicile should remain a subject to be dealt with by the Imperial Parliament, and the way I propose to deal with it is by accepting some such Amendment as that on Clause 2. I think that covers the whole ground and that the hon. Member may go away feeling that he has made out his case.

Lord HUGH CECIL

I do not understand how the suggested Amendment to Clause 2 would secure the object which the hon. Member has in view or would leave everybody's domicile really as it is. If the laws of marriage or other laws which depend upon domicile were changed, one would still suffer an injury. I do not think there is any advantage in the Amendment to which the right hon. and learned Gentleman has referred, and I think the Chief Secretary might try to consider the proposal as it stands. I know it is a difficult matter to deal with, but really the point is that we on this side of the House think that the Irish Parliament and Executive may do oppressive things. It does not really very much matter how you deal with the question of domicile, in view of that danger. I think the matter had better be left as it stands. We should not on this side of the House take the responsibility of furnishing the Government with anything which in unscrupulous hands might be represented as a concession, or as the opportunity of making a concession, or in granting a safeguard which, as a matter of fact, is not a safeguard.

Mr. BIRRELL

In replying, may I say that the suggested Amendment of the hon. Gentleman does not, as has been pointed out, meet the particular case. I hope the Amendment which may be made on the Report stage will answer the case. As to going about saying that we are making concessions, I really never quite understood what sort of speeches are made in the country—though I have made a good many myself—but they are not based upon the lines suggested by the Noble Lord. To take, as the Noble Lord suggested, the opportunity of making a concession—I thought it was a rational proposal—so that some people may run about the country saying, "Although the Chief Secretary made this quite invaluable concession, yet the whole of the opposite side voted against the Third Reading of the Bill"—well, that is not the spirit in which we take this Debate. I therefore shall not avail myself of the opportunity given to me by the Noble Lord's speech to get away from the contract which I partially entered into. With all due deference, I cannot accept what the Noble Lord says. I still think the matter of domicile should be nut right on Report.

Mr. WATSON RUTHERFORD

In order to save time may I just say a word or two? [Laughter.] Yes, because my object in saying this word or two is to shorten the matter and to withdraw the Clause. I think I ought to feel obliged to the Chief Secretary for meeting the question, which is only a part and a very small part of the question, which I raised, in the way he has been good enough to do. I am grateful also to the hon. and learned Gentleman who sits below me for so kindly explaining what the effect of the operation of the Clause would mean. Further, I think if he has made it clear that the law of domicile is the same in Ireland in the future under all circumstances as it is in the United Kingdom, then at all events we shall have gained that much. The Chief Secretary by declining to accept this Clause in any shape whatever has made it clear—I hope that this will be made clear not merely to the Committee but to everybody who takes any interest in this Home Rule question—that from and after the passing of the Home Rule Bill every person resident in Ireland will be automatically deprived of the status and position of a citizen, and of domicile in the United Kingdom: will be compelled to be a citizen and domiciled under that subordinate Parliament in the future, to own allegiance in the first place to the subordinate Parliament of Ireland. I realise it would be hopeless and a waste of time to divide upon the subject. I beg therefore to ask leave to withdraw the Clause.

Clause, by leave, withdrawn.