Public Law

Home Secretary Theresa May sparked controversy the other week when she declared that there was no guarantee that Scots in an independent Scotland would be entitled to keep their UK passports. Her comments were a direct response to a remark from SNP MP for Perthshire, Pete Wishart, who told the House of Commons that Scots would have a choice of two passports if Scotland was independent.

The Home Secretary observed that a Yes vote would lead to Scotland being a separate state and that in that event decisions on UK citizenship would be in the gift of the UK government.

This would not of course be the first time that the UK government had to consider dual nationality for a ‘break away’ state. If history is anything to go by, dual citizenship is a gift with which  the UK is relatively generous.

When the Irish Free State was created in 1922, Irish citizens, willingly or not, retained their status as “British subjects”. When Ireland later left the Commonwealth in 1949, Irish citizens were allowed to apply to retain British subject status, although that could not be inherited by their descendants. British subjects could apply for a UK passport.

And when the Canadian Parliament passed a law distinguishing Canadian citizenship from British nationality in 1946, Britain agreed that every member state of the Commonwealth could enact its own citizenship law, while also retaining the common status of British subject.

If the UK government opted to take a different approach to Scotland in the event of a Yes vote, there is at least one group which might find itself in a particularly odd situation: those born in Northern Ireland but living in Scotland. Those individuals would almost certainly be entitled to Irish citizenship, and might be expected to enjoy new Scottish citizenship but might be denied British citizenship.

Christine O'Neill

Partner & Chairman at Brodies LLP
Christine is Chairman of Brodies LLP and leads our Public Law Litigation and Parliamentary team. She has considerable experience of parliamentary and public law work and has a special interest in administrative law, devolution and human rights. Christine has advised variety of clients on legislative procedure in the Scottish Parliament, particularly in relation to alcohol and tobacco regulation.
Christine O'Neill

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