Dermot Nesbitt: The 1981 British Nationality Act is still applicable in Northern Ireland

It related to a case where Emma De Souza claimed she was not a British citizen, though born in the UK.

The letter stated: “The De Souza case is based on the misunderstanding that identity and citizenship are the same, and that being a UK citizen prevents somebody from identifying as ‘Irish only’.”

It added: “The implications of this are significant… implying that the many unionists who identify as Irish are not really Irish at all, unless they choose to become Irish citizens.”

Ms De Souza’s claim seemingly rests on a section in the Belfast/Good Friday Agreement (the agreement) that states: “The participants…will recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments…”

This quotation refers only to ‘citizenship’ rights and is repeated verbatim on one other occasion in the agreement.

Before considering the merits of Ms De Souza’s case, a background analysis of the agreement is required.

‘Identity’ is referred to six times in the agreement.

The main theme regarding these ‘identity’ references is that there should be mutual respect and equality of treatment for the identity of both communities in Northern Ireland.

This is conceptually different to ‘citizenship’ rights.

Also, there was one minimal reference to the Council of Europe’s Framework Convention on National Minorities by merely stating: “(already ratified by the UK)”.

Yet, this is a significant convention and has an important bearing on the meaning of identity, including its relation to citizenship and obligations.

Why such a minimal reference? When the government considered the issue of rights during the negotiations leading to the agreement, it was very sceptical of international conventions claiming that they might contain some elements relevant to Northern Ireland.

Historically, UK governments had a ‘blind spot’ regarding relevant conventions, based on the view that they faced a unique problem in Northern Ireland, a viewpoint not to be overlooked — especially by unionists.

Yet, when considering the dynamics of this convention in the European context, this view is incorrect. And, this convention contains much more detailed provisions on minority identity protection than any other one.

The convention was born out of a long European history of conflict that accepted the protection of the identity of minorities within a state was essential to providing peace and stability, including where a minority shares an ethnic, cultural, linguistic or religious identity with a neighbouring state.

It comes from the Council of Europe (home of the European Convention of Human Rights and the European Court of Human Rights), an important International Human Rights body.

Consequently, while participating in the negotiations leading to the agreement, I challenged the government, combined with pressure via the media, to get it to ratify this convention.

When eventually ratified (15 January 1998), I wrote in this paper (20 January 1998): “The UK government has taken a first step towards following the true European model of reconciliation between different groups within a state.”

This convention is part of international law. The idea behind such law is that certain fundamental rights have a higher status than ordinary laws and should not be subject to bargaining among the parties involved, including governments.

Indeed, the agreement states: “The Westminster Parliament (whose power to make legislation for Northern Ireland would remain unaffected) will…legislate as necessary to ensure the United Kingdom’s international obligations are met in respect of Northern Ireland.”

The convention includes such minority rights as preserving one’s religion, language, traditions, cultural heritage and the right to participate in public affairs.

However, balancing these rights, the convention states that there must in turn be respect for the sovereignty and territorial integrity of the state and no engagement in any activity contrary to these principles.

Today, the government includes Cornish, Irish, Scots and Welsh people in its definition of minorities to be protected.

The convention clarifies the difference between identity aspects requiring protection and obligations regarding the territorial integrity of the state.

Identity protection involves neither the constitutional position of Northern Ireland nor citizenship aspects.

Under international law, territorial integrity is to be respected by a recognised minority. Thus, there is no right regarding a diminution of British citizenship rights presently afforded automatically by statute throughout the United Kingdom.

At the time of the signing of the agreement (April 10 1998) I was content with its aspects related to citizenship and identity, including relevant aspects of international law, since I was clear regarding the then current position.

Namely, I was conscious that someone born in the United Kingdom would automatically be a British citizen — if either parent was a British citizen or resident in the United Kingdom — and also, I was aware that anyone in Northern Ireland could hold Irish citizenship, if born in Northern Ireland. The agreement reflected the then existing position regarding citizenship and the national law.

Considering all of the above, how does this impact on Ms De Souza’s case?

The 1981 British Nationality Act remains applicable to Northern Ireland and, given relevant international law, it should neither be amended nor disapplied regarding Northern Ireland.

In the context of the agreement, ‘citizenship’ is clearly different to ‘identity’. Anyone in Northern Ireland can subscribe to an Irish ‘identity’ while holding British or Irish or both citizenships.

And anyone born in Northern Ireland can renounce the legal right and automatic default position of British citizenship, if they wish to be considered only of Irish citizenship.

It’s simple, there is no case.

• Dermot Nesbitt was an Ulster Unionist Forum Member for South Down at the time of the Belfast Agreement, then an MLA and a junior minister in the Office of the First Minister and Deputy First Minister