I move Article 44:—"The Parliament/Oireachtas may provide for the establishment of Functional or Vocational Councils representing branches of the social and economic life of the Nation. A law establishing any such Council shall determine its powers, rights and duties, and its relation to the Government of the Irish Free State/Saorstát Eireann."
DEBATES ON ADJOURNMENT. - ARTICLE 44.
Mr. O'HIGGINS:
Mr. JOHNSON:
I wonder whether the Minister would accept the introduction of the word "shall" instead of "may." I failed to put in an amendment, but I intended to do so. It seems to me if we are satisfied that there is a place in the national life for Functional Councils we ought to lay down now that such councils should be set up rather than make them optional. I suggest it would be desirable to lay it down now as an imperative enactment.
Mr. DARRELL FIGGIS:
I might point out to Deputy Johnson that it does not make much difference in regard to the obligatory sense by using the word "shall" or by saying it "may," because it could still be postponed from Oireachtas to Oireachtas and from Dáil to Dáil, and yet never get attention. I can give Deputy Johnson a list of a large number of cases in Europe where such words have been put into a Constitution; in one case eighty years ago, and the majority of the provisions have not yet been given effect to.
Mr. JOHNSON:
Therefore, there is no harm in putting "shall" into it.
"May" is all right.
Mr. O'HIGGINS:
I am inclined to adhere to the text as it stands. It is to provide for a possible development along these lines. When this Article is inserted, judging by the debate to-day, the whole thing is in a rather immature and half-baked condition, and there does not seem to be any definite crystallised thought or any definite schemes evolved. In the event of such schemes being evolved, this Article clears the way. But to put the definite duty on, say, the first Parliament of the Irish Free State to set up these Functional Councils and define their relations, and so on, is something we did not consider it wise to do, and we stand by the text of the Article.
Mr. DARRELL FIGGIS:
Before I touch on Amendment 23, I wish to state it is my intention to withdraw Amendment 24, which reads:—"To insert after Article 43, and to conclude Section 2, Sub-section (d), the following Article:— ‘The Articles of Agreement between Great Britain and Ireland set out in the schedule hereto annexed (hereinafter referred to as the “Scheduled Treaty”) are hereby given the force of law. Any amendment of or any law made under this Constitution repugnant to any of the provisions to the Scheduled Treaty shall, to the extent only of such repugnancy, be absolutely void and inoperative, and the Parliament and the Executive Council of the Irish Free State shall, respectively, pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty, provided always that the Scheduled Treaty shall be deemed to include any modification or extension thereto by mutual agreement or acceptance since the making of the Treaty, and also any further development or extension of the constitutional status or usage and of the self-governing rights and privileges of the Dominions mentioned in the first Article of the Treaty.’ ” Amendment 23 is as follows.—“To insert after Article 43 the following Article:—‘The laws of the Parliament/Oireachtas shall, save where otherwise provided in any Act, be in force throughout the territory and the territorial waters of the Free State/Saorstát Eireann, and all ships registered in the Free State/Saorstát Eireann; and, save where expressly so provided in any Act. they shall be binding on Irish citizens when beyond the limits of the Free State/Saorstát Eireann, or on any ships not registered in the Free State/Saorstát Eireann.’ ” I suggest that amendment dealing with this new Article should be inserted. I thought at one time of bringing up certain important cases that have occurred in different parts of the Community of Nations dealing with this important question of extra territory. There are few questions of more vital importance. It has practically been taken up amongst the different members of the Community of Nations, and it has been decided in the, terms such as are adopted in this amendment. It might be possible without such a clause, if this Dáil, or any subsequent Dáil, were to pass legislation respecting Irish citizens, to find Irish citizens going across to Holy head and perpetrating acts there, and then coming back to live in Ireland, and taking advantage of the fact that the acts were committed to purchase immunity. My attention was drawn to this matter as being a very grave omission in the original Act. I shall have some hesitation in giving the names in this matter, but I think I will decide to do so. The one person who, I think, knows more about this than possibly any other, and who has just recently dealt with them in the new edition of “Dicey,” and who is known as the chief authority respecting the relationship between one person and the other, is Professor Keith. I have been in correspondence with him, and, at his suggestion, this form was adopted. The form of amendment was, with the exception of one or two changes that I have made, that which he himself suggested, as meeting the case in point and embodying the law on this matter in the Commonwealth of Nations. It is argued that his Article would meet the case as being satisfactory from his point of view to all the co-equal members, and also as being a very necessary Article to embody in the Constitution, if this important question of territorialty is to be dealt with as it certainly and urgently requires to be dealt with.
Professor WM. MAGENNIS:
Does the Act mean an Act of this Parliament? It is very necessary that that should be indicated.
Mr. BLYTHE:
I think there shall be no Act of this Parliament.
Mr. G. GAVAN DUFFY:
I strongly support this amendment. As members know it used to be the theory that you cannot legislate for your own citizens outside your own jurisdiction. This extra territorial jurisdiction they have acquired is one of the things that marks the definite advance of the Dominions again. To-day there can be no dispute as to the right and desirability of a clause like this. I hope the Ministry will see no difficulty in accepting the amendment or similar words.
I would like to know more about it before committing myself to an acceptance. As it is explained there, I do not know what it means. I made enquiries, and was informed that, supposing we had a Vaccination Law here, and we heard that an Irishman in South Africa was not vaccinated, we would extradite him and bring him here to be vaccinated. We are simple people in regard to Constitutions, and I think at least that an amendment of this kind should be explained so that the ordinary man in the street could understand it.
Mr. O'HIGGINS:
If Deputy Figgis would leave that matter over for our careful consideration we would let him know whether in our next reading we would be able to cover the object he aims at here.
Mr. DARRELL FIGGIS:
I am perfectly amenable to that. Of course, Sir, you are aware that I sent you at an earlier stage—and I would like the Minister for Home Affairs to note this—an amendment which dealt with this particular question, extra-territorialty. I withdraw that amendment. I sent it at the time of the postal strike; it was very difficult then to get into communication with people outside in spite of the efficient service that was being maintained. When the postal strike ceased I received a letter from Sir B. Keith, and he suggested this form of wording as meeting the case better and more fully than the form I suggested. I think frankly it is very much better, and I think I will hand over to the Minister a copy of the letter received from him advocating the form of wording and giving a reason for it, if that will assist him in any way. He knows more than any other person about it, because he has studied it.
AN CEANN COMHAIRLE:
Is the amendment withdrawn?
Mr. DARRELL FIGGIS:
No; it is left over for consideration of the Ministers. If the President wants a very excellent, profound and deep work on the subject, I will lend him one. There is some mistake about Amendment 25. It does not apply to 44; it should apply to 46.
Mr. T. JOHNSON:
Is there any explanation why 24 is withdrawn?
Mr. DARRELL FIGGIS:
I want to say that when I handed in this amendment I had not noticed the exact form that the Constitution was taking in this green paper here, and that originally these words had formed part of the introductory wording. I will deal with the matter and withhold it until we get to that introductory wording, where, I think, it would be more conveniently dealt with, and which I think is its proper concern.
AN CEANN COMHAIRLE:
Article 44 is before the Dáil in the form in which it appeared in the Bill.
Motion made and question put: "That Article 44 stand part of the Bill."
Agreed.