In page 1, line 32, to add at the end of Section 2 the words: "So far as it has application to the amendment of the Constitution by the deletion of Article 17 thereof."
Section 2 of the Bill reads:—
Section 2 of the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 (No. 1 of 1922), is hereby repealed.
Section 2 of the Constitution Act, which Section 2 of this Bill proposes to repeal, is as follows:—
The said Constitution shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referred to as the "Scheduled Treaty") which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty it 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 (Saorstát Eireann) shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.
It is proposed under Section 2 of the Bill which we are discussing to repeal that section. Before I go on with my amendment I want to call attention to all that that implies. Section 2 of the Constituent Act does a variety of things. First of all it gives the force of law to the Scheduled Treaty and having done that, it says that the Constitution which is annexed to this particular piece of legislation shall be construed with reference to the Scheduled Treaty. Thirdly, it says that if there is any provision either of the Constitution or any amendment thereof or of any law made thereunder that is repugnant to the Scheduled Treaty, it shall to the extent only of such repugnancy be void and inoperative. Then it says, fourthly, that it shall be the duty of the Parliament and the Executive Council to pass this further legislation and do all such other things as may be necessary to implement the Scheduled Treaty. The measure we have before us proposes to take away everything that is done by that section. If, therefore, the section is passed as it stands, the only section which gave the force of law to the Scheduled Treaty will have disappeared. Secondly, the only piece of legislation which said that the Constitution would have to be construed in reference to the Treaty will have disappeared and disappeared in its entirety. Thirdly, the only piece of legislation that we have which called attention to the possibility of repugnancy as between the amendment of the Constitution or any law passed under it, and the Treaty will have disappeared. And lastly, the only piece of legislation which imposes on the Parliament and the Executive of the Irish Free State in the new circumstances the duty of passing such further legislation and doing all such further things "as may be necessary to implement the Scheduled Treaty," will have entirely disappeared.
I propose to restrict the full force of the repeal of that section by adding to Section 2 of this Bill which we are discussing the words: "so far as it has application to the amendment of the Constitution by the deletion of Article 17 thereof." If those words were added the section would read:
Section 2 of the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 (No. 1 of 1922), is hereby repealed so far as it has application to the amendment of the Constitution by the deletion of Article 17 thereof.
If that were accepted and passed the situation would then be that, in so far as anything in the Treaty gave to anything in the Constitution the force of law, or that anything in the Constitution gave to anything in the Treaty the force of law in relation to the single item only of the Oath, then the repeal could take place, but in so far as the repeal of Section 2 operated outside the single matter of the obligation to take the Oath, then the effect of the repeal would be stopped.
I want to keep Section 2 of the Constitution Act for a variety of reasons. I want to keep it because it is the only thing which gives the force of law to the Treaty. And in that connection, I want to refer to Article 18 of the Treaty itself. It says: "This instrument shall be submitted forthwith by His Majesty's Government for the approval of Parliament and by the Irish signatories to a meeting summoned for the purpose of the members elected to sit in the House of Commons of Southern Ireland, and if approved shall be ratified by the necessary legislation." The last phrase is important. I do not know where the necessary legislation exists in this State by an Act of the Parliament of the State if it is not Section 2 of the Constitution Act. And if Section 2 of the Constitution Act is repealed as far as giving the force of law to the Treaty, I do not know how far it can be argued that Article 18 of the Treaty has been carried out. Article 18 of the Treaty clearly demands, in the last words, that the Treaty if approved of— and it was approved of—should be ratified by the necessary legislation; and I should like to have information on the point as to where is the necessary ratifying legislation required by Article 18 of the Treaty, if the repeal of Sec tion 2 of the Constitution Act is carried out as effectively as is proposed in the original measure. That is the first thing.
The second thing is this: When the President was moving the second reading of this Bill, he introduced his arguments in this way:
I move:—"That the Constitution (Removal of Oath) Bill, 1932, be now read a second time." Before the last election there was widely published throughout the area of the Free State a manifesto to the electors, in which the Fianna Fáil Party put forward in very explicit terms, the items of the programme which, if elected in a majority, they would endeavour to put into operation.
The first statement there is that the Fianna Fáil Party had put forward a programme in very explicit terms; and the man who formulated that policy gave us a quotation showing what were the explicit terms. The next sentence in his speech is:—
The first item on that programme was as follows:—"To remove the Article of the Constitution which makes the signing of the Oath of Allegiance obligatory on members entering the Dáil." The following note was added:—"This Article is not required by the Treaty. It stands in the way of national unity and of willing obedience to law. Government by coercion is the result."
And then the person who formulated that policy, and stated that it had been expressed in very explicit terms, gave us, presumably, the terms in which that policy had been formulated. He went on to say:—
This Bill, the Second Reading of which I am proposing to the House, is intended to give effect to that first item on the programme.
And then he continued, and it is worth while nothing what the continuation was:—
The programme as a whole might be divided roughly into two parts, the part which had relation to international matters, the external relations of the State, and the part that had reference directly to domestic matters. In order that there might not be in the minds of the electors any misunderstanding as to the extent of the mandate we were seeking, the following paragraph was put into the manifesto:—"We pledge ourselves that if elected in a majority we shall not, in the field of international relations, exceed the mandate here asked for without again consulting the people."
There are two pledges there. They say that if elected they will not exceed the mandate asked for. And the statement of the President who, as I say, is the man who formulated this policy, is that a manifesto had been put forward indicating the mandate which the Fianna Fáil Party looked to get. It was framed in very explicit terms, and it was that they were to remove the Article of the Constitution which makes the signing of the Oath of Allegiance obligatory on members entering the Dáil. Where are the explicit terms relating to anything more than the removal of Article 17 of the Constitution? The President himself stated:—
To remove the Article of the Constitution which makes the signing of the Oath of Allegiance obligatory on members entering the Dáil.
That was followed by the pledge:—
We pledge ourselves that if elected in a majority we shall not in the field of international relations exceed the mandate here asked for without again consulting the people.
Article 17 was the Article aimed at by that specific pledge, and they stated that that mandate would not be exceeded without a further expression of opinion from the people. And yet we are asked to pass a Bill which contains Section 2. Section 2 of the Bill repeals Section 2 of the Constitution Act, and Section 2 of the Constitution Act gives the force of law to the Treaty, makes the Treaty override the Constitution, and carries out Article 18 of the Treaty, and requires that in case of repugnancy the Executive Council shall take immediate steps to repair the damage that has been done. Relate that only to the mandate which was asked for and which the President stated in the most explicit terms, and where does the President derive his mandate for doing anything more than removing the Article of the Constitution which makes the signing of the Oath of Allegiance obligatory on members entering the Dáil?
I move my amendment as very much the second or even the third best thing. I prefer not to interfere with the Oath in any way whatever. I prefer to abide by the plain meaning of Article 4 of the Treaty, the non-mandatory character of which has not yet been argued, the mandatory character of which has not been controverted in any way. I prefer to abide by the pledges given by the setting of the signatures to that Treaty, by approval of that Treaty by the Dáil which considered it, and by the passing of the legislation which afterwards took place in accordance with Article 18. I moved, as the second best thing, in doing that, that we would keep in the Constitution the exact formula in the Treaty and that was defeated. I now move forward to the third best thing—that if there is going to be any interference with the Treaty as a document, if there is going to be any interference with the position which the President found, the Treaty ratified by necessary legislation, that piece of legislation making the Treaty a superior document to the Constitution and leaving the Constitution necessarily to be read in subordination to the Treaty—I prefer to leave that as it is—but if it is to be changed, I want to have the change confined to the narrowest possible point and brought as near as possible to the extension of the mandate which the President said he got from the people of this country.
In other words, if there is going to be any interference with the Treaty as a document having legal force in this country, it should only be for the purpose of this Act in relation to the deletion of Article 17 of the Constitution. I have heard no reason, so far, as to why a person who said he got a mandate only for the removal of an Article of the Constitution and who said afterwards that he had pledged himself not to exceed that mandate without again consulting the people, should endeavour to interfere with the whole Treaty document even though he may use the phrase that he is only taking it away from a particular sphere. He has not explained, when it is taken away from that sphere, where it remains. He has not explained in his legislation the conscience which it can be definitely argued lies behind the removal of the Treaty from the Constitution and from law in this country in a Bill which is described in the Long Title as "an Act to remove the obligation now imposed by law on members of the Oireachtas and Ministers who are not members of the Executive Council to take an Oath, and for that purpose to amend the Constitution and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922. I argue —I have had no demonstration to the contrary—that when people, describing themselves as setting out to remove an obligation now imposed by law, bring into that piece of legislation an amendment of the constituent Act of this State and describe it as being necessary for the purpose of removing an obligation imposed by law, they definitely argue by that that the Treaty imposes an obligation to take an Oath —a contention which they have never upheld before, but which they admit by implication is there.
I could make very damaging statements against this amendment of mine. I am prepared to have it argued that to a certain extent it is not a wise amendment, because if the Treaty is to be broken in one part, it does not to any great degree satisfy the other party to the contract that you only break it in one part instead of being prepared to wipe it out altogether. I do not see how it is going to satisfy the honour of honourable people if you, when you set out to break the thing, restrict the breach of it to what you want immediately, and do not bring into your scope what you feel you will require eventually when you come to ask the people for a further mandate.
I expressed myself as only satisfied with this amendment as the third best thing. The preferable thing was to keep the Treaty and our obligations under it. The second preferable thing was, if there was doubt as to what a phrase in the Treaty meant, to let it be incorporated in the municipal law and let us have the advantage of a trial before a favourable tribunal as to what that phrase meant. When these two things are taken away, I say it is going to be a test of the bona fides of the people who move this measure to see if they accept the limitation of the removal of the Treaty from the municipal law only to the extent required to enable them to do freely this particular breach of honour—the thing particularised in relation to the Oath of Allegiance.
I do not know whether the analogy with other legislation which was said to be planned in relation to the Privy Council is relevant on this amendment or whether it would be better spoken of on the general section. Is that relevant to this discussion, A Chinn Comhairle?