Seanad Éireann debate -
Wednesday, 18 Oct 1933

Vol. 17 No. 21

Constitution (Amendment No. 21) Bill, 1933—Second Stage.

Question proposed: "That this Bill be now read a Second Time."

Minister for Lands and Fisheries (Mr. Connolly)

This Constitution (Amendment) Bill deals with Article 41 of the Constitution. The amendment to it is that:—

Article 41 of the Constitution shall be and is hereby amended as follows, that is to say, by the deletion therefrom of all words from the words "and such Representative" to the end of the said Article, and the said Article shall be construed and have effect accordingly.

This will mean that Article 41 will then read:—

"So soon as any Bill shall have been passed or deemed to have been passed by both Houses, the Executive Council shall present the same to the Representative of the Crown for the signification by him, in the King's name, of the King's assent."

The object of this Bill is to repeal the provision in Article 41 of the Constitution which conferred on the Governor-General of this country power to withhold assent to Bills passed by the Oireachtas or to reserve Bills. Under the provision of Article 41 of the Constitution, as it stands—the Article now being amended—the Governor-General has the legal power both to withhold assent and to reserve Bills. The Government regard the continued existence of the Governor-General's legal powers as anomalous and out of harmony with the present constitutional position. No Bill has, in fact, ever been reserved by the Governor-General of the Irish Free State, and in no case has assent to a Bill been withheld. Indeed, in accordance with constitutional practice, assent would not be withheld and a Bill would not be reserved save upon the advice of the Executive Council.

This Constitution (Amendment) Bill represents our view of the situation. It is another removal of formalities. We feel that this Bill is in keeping with our policy and with the mind of the country on these matters. We are asking the House, therefore, to pass this as a necessary removal of another formality which should be eliminated from the Constitution.

Mr. Milroy

The same arguments, practically, can be used in regard to both of these Bills, the one to which we have just given a Second Reading and the one now before the House. The reason that I did not intervene in the case of the last Bill was because what I have to say will, I think, come with a greater degree of appropriateness on this particular Bill. First of all, I should like to refer, in passing, to the discovery of Senator Johnson that we are now going to have, in effect, a Royal Irish Republic. He informed us that the last Bill dealt with the demand of a Republican Executive for funds so that when the Republic functions under the headship of the State, which is the Crown—a curious and strange anomaly if it is a correct description of the situation—it must surely call for a further number of Constitution (Amendment) Bills before the situation is in harmony with the views of the Minister who is charge of these Bills to-day. I do not anticipate that there is any likelihood of a hectic disputation in regard to this present Bill which merely implements and gives effect to agreements arrived at at Imperial Conferences held in 1929 and 1930. This Bill removes no existing barriers to our onward march to national freedom. It confers no power which we do not possess at present, and in no way expands the national freedom which the Saorstát enjoys in its relation to something which has grown obsolete by lack of use. Any belief that this Bill or the previous Bill marks an achievement of the Fianna Fáil Government is quite illusory. It is, I think, a case of the Fianna Fáil mountain having been in labour and later on producing a mouse, or shall we say twin mice, of which they cannot prove authentic parentage.

Sir John Keane

Three blind mice.

Mr. Milroy

The trail was blazed for this assertion of national authority, in so far as it could be deemed to be such, by the predecessors of the present Government, in their masterly handling of Ireland's interests at the Imperial Conferences to which I have referred. I will go this far and say that if the same spirit had been manifested by the present Government's predecessors in their dealings with these matters as has marked the diplomacy of the present Government in its dealings with Great Britain, it is safe to assume that this Bill, instead of being merely an inconspicuous termination of an anachronism, would be a potential storm centre of controversy, saturated with all the evils of suspicion, distrust and antagonism which, unfortunately, the present Government has succeeded in infusing into any inter-State relations they initiated since they came into office.

The questions I want to ask in connection with this Bill are: Is this Bill adequate for the purpose for which it is ostensibly introduced? Will the provisions which it seeks to remove from the Constitution not remain binding in law, even when this Bill becomes an Act of the Oireachtas? This consideration also applies to the other Bill, the Second Reading of which has just been agreed to. These are certainly matters which want to be clarified and I am intervening in order to give the Minister an opportunity of clarifying them. I call attention first to Article 73 of the Constitution which says:—

"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Eireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

I ask the Seanad carefully to mark the words of the Article. One of the laws in force when this Constitution came into operation was the Treaty, which, by Section 2 of the Constitution Act, was given the force of law. I direct attention to that section of the Constitution Act which, though repealed by the Constitution (Removal of Oath) Act, has still a vital bearing on the matter I am considering. It says:

"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...."

That is as far as it is necessary to quote. This section was repealed but it is important to remember that when enacted it gave the force of law to the Treaty. I want to emphasise that point, that it gave the force of law to the Treaty. A question arises on which I want a clear and explicit answer from the Minister. Did the repeal of Section 2 withdraw from the Treaty the validity and force of law which it had given to it? It seems to me that it is strongly arguable, it did not; that the Treaty still stands in all its provisions with the full force of law in this State. It seems to me very questionable if law can be repealed, either by implication or inference, as would be the case if that Treaty as law was repealed by Section 2 of the Constitution Act. So far as I understand the matter a law must be repealed in specific terms, and so far as the Treaty is law and as this State is concerned that has not yet been done.

Section 2 of the Constitution Act was the instrument by which the Treaty was given the force of law. Did the scrapping of the instrument nullify the function it had discharged before it was scrapped? That is a fundamental question. One might as well argue that because a scaffold around a building was the instrument, so to speak, by which the building was brought into existence, when the scaffold is taken away the edifice ceases to exist. As I understood the argument of the President when presenting his case for the removal of the Oath from the Constitution, his contention was that that Bill in no way affected the Treaty position, that it stood as it was before the introduction of the Bill, with the full force of law according to the authority which had been conferred upon it when the Constitution was enacted. If that is so then by Article 73 of the Constitution the Treaty is one of the laws continuing in full force and effect, having been neither repealed, amended nor removed, except in regard to the Treaty (Confirmation of Supplemental Agreement) Act of 1924 and Treaty (Confirmation of Amending Agreement) Act, 1925, which are not relevant to this point. It has still the force of law if my contention is accurate, and if it is not accurate I want the Minister to prove that I am inaccurate. It is a moot question if Article 17 has not still the force of law in this State.

To deal directly with this Bill, and the amendment which it proposes to make to Article 4 of the Constitution, I refer to my contention that the Treaty still stands with the full force of law and, therefore, is binding as law in this country. I come now to the particular Article of the Treaty which is relevant to this Bill, Article II, which reads:—

"Subject to the provisions hereinafter set out, the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State."

The provision which this Bill proposes to delete or amend was framed in conformity with that Article of the Treaty. The provisions which will throw light on what has been the constitutional practice of the law of Canada are contained in Articles 54, 55 and 56 of the Constitution of Canada. It may be that the law, practice and constitutional usage connected with these have grown obsolete by disuse. The fact remains that they are still the letter of the law set out in the Article of the Treaty and, as this Bill deals primarily, if not entirely, with the letter of the law, it is well to enquire exactly how matters will stand when this Bill passes. Certainly, it appears to me very undesirable that we should retain in our Constitution provisions which perpetuate certain things which our statutes purport to terminate. Therefore, I should like to have from the Minister a clear explanation and answer to three questions: (1) Did the repeal of Section 2 of the Constitution Act repeal the Treaty? (2) If not, is not Article 73 of the Constitution insistent that the Treaty is one of the laws continued in full force and effect at the present time? (3) If so, is not Article 2 of the Treaty still legally binding and is not this Bill, in these circumstances, defective in that it is not adequate in itself to effect what it proposes to do? I hope the Minister will give an explicit answer to these queries. If my argument is not sustainable the Minister should be able to prove that and, in doing so, to clear up certain ambiguities to which I have drawn attention. If my contention is sound, then, obviously, this Bill is defective in the sense in which I have argued.

Mr. Douglas

I do not propose to follow Senator Milroy in his somewhat difficult line of argument except to say that, as far as I am personally concerned, I am perfectly satisfied that the Treaty has not been repealed and that it is still law. That is my personal opinion. I am not going into the details, but I am of the opinion that Article 2 is still a fact, but I am not of the opinion that Article 2 prevented the deletion of the particular words which it is proposed to delete in this Bill. Speaking generally, this Bill has no effect. Certainly, as far as the ordinary man in the street is concerned, it has no effect. I am not quite sure whether the Government gave as much consideration to the form of this Bill as was desirable and that in making the change they would not have been better advised to make it clearer than it has been made in this Bill.

Senator Milroy is anxious that it should be made clear that the present Government cannot claim any credit for any changes that are being made in the Bill. As I cannot see that any change has been made, the question of credit does not arise and, likewise, it does not arise as far as the late Government are concerned. To the best of my opinion and reading no power to reserve or withhold assent except on the advice of the Executive Council existed at the time the Treaty was made and, as far as constitutional practice is concerned, that there is an absolutely clear position that in the matter of assenting, withholding assent or possible reservation, the function could only be carried out specifically on the advice of the elected Executive. That being the case, I hold that there has been really no change in this particular matter whatsoever since the Treaty was made.

When I read this Bill first I was a little puzzled. I think everybody will agree that it is quite clear that the words which involve power to reserve Bills ought never to have been in the Constitution at all. That practice of reservation, once the power could only be exercised on the advice of the Executive, became an absurdity. No Executive was going to advise the Governor-General to reserve a Bill and, in practice, no such reservation had taken place for a very considerable number of years before the Treaty. Therefore, we may rule that out. There is no question that it should never have been there and that it should certainly go. This Bill purports to remove the power to withhold assent. It is strictly constitutional. It keeps strictly within the Treaty because it still provides what, I think, is essential, that the assent of the Governor-General shall be obtained before Bills become law.

I should like to ask the Minister for his opinion and the Government's opinion as to whether this is intended to provide that under no circumstances could the Governor-General withhold assent even on the advice of the Executive Council. When I read the Bill first I was inclined to think that it had that effect, but on more careful consideration I think it has not that effect. If you wanted to make the matter clear beyond all doubt it would have been much better to add the words that such assent could only be given or withheld on the advice of the Executive Council. You may ask would any Government advise the Governor-General to withhold his assent. My answer is, yes. I can conceive of circumstances in which that might be a useful provision. If you will read the Constitution carefully you will find that if a Bill has been passed by both Houses in the same form the Executive shall present it to the Governor-General. If a Bill had passed both Houses and if then a general election took place before the formal assent had been given, a new Executive might consider it desirable to advise that the Governor-General should withhold his assent. In doing so they would be acting as the representatives of the people and in a strictly democratic manner. I discussed this with a legal friend of mine —I am not referring to Senator Brown —and his attitude was that there was no need to worry about it, that it was quite clear that the Executive Council could still advice the withholding of the assent. Circumstances could arise in which a new Executive could be elected who might wish to stop a Bill. The Seanad could refuse to agree to an amending or repealing Bill, and therefore, if this provision was only for assent, the Government might be left with a law that was against their policy and which they considered undesirable. That is not likely to happen, I know, but, leaving out the question of the Executive form of our Government, the whole function of the assent by the head of the State— whether it be the President of a republican form of government or a king with strictly limited powers, is immaterial—the whole function is to correct errors and not to give either a president or a king a veto. If there is any doubt in the Government's mind that the power to withhold assent still exists, I think it should be remedied.

Miss Browne

I think we understand pretty clearly that these Bills do not affect the matter fundamentally. I have listened with great interest to Senators Milroy and Douglas, but it seems to me that there is something more behind these Bills, just as there was something behind the Bill for the removal of the oath. The Government is in a position like this: They have to keep up delusions in certain people's minds. There are people who like to believe that the Government is advancing gradually, step by step, towards the Republic. These are the expressions we hear and it is in the interest of the Government to encourage that delusion. When a mad bull chases you, you are advised to throw your hat or coat to him so as to divert his attention from the fact that you are trying to escape from him. Satisfy him for the time being—that is the plan. That is the position in which the Government find themselves. The Government have behind them a mad bull in the shape of certain people with guns who are driving them on. The Government have to keep these people in hands and satisfy them. We know that the abolition of the oath of allegiance taken by members of the Oireachtas does not remove the allegiance we owe to the King—not in the least. It is there still. We admit our allegiance every day. The oath was only a form signed when we were coming in here. The removal of the oath does not alter the fact that the allegiance still stands. These are little sops to the people who like to believe that we are advancing to the goal of a Republic. These Bills do not matter much in the long run. We do not worry very much about them and that is the reason we do not offer any great opposition to them. But the object of these proceedings is as I have stated. We may make speeches and try to explain the matter scientifically but, in the long run, that is the object of these Bills.

Mr. Connolly

I do not propose to pay much attention to what the last speaker has said. This Bill is in keeping with the definite policy of the present Government. It is true that it does seek to remove, step by step, those impositions which were put upon this country by the Constitution which was eventually agreed to but which was not, in effect, the Constitution which was originally submitted. If we have taken the line of removing step by step from the Constitution such things as are offensive, such things as have given offence to our people and have been the cause of trouble and disunity, then we are only carrying out what is the logical and desirable thing to do in this country. Whether it is or not, it is the policy on which this Government has been put into power. In so far as that is the case, that policy is going to be carried on. The point mentioned by Senator Douglas with regard to the power to withhold assent is an interesting technical one. What we want to make clear—we are perfectly frank and above-board about it —is that we have a Governor-General inherited from the years of the Treaty —from the Treaty itself—and we do propose, while working within the constitutional and Treaty position, to take constitutional steps to reduce that office to what we think is the negligible factor it ought to be while it has to be there at all. We do not propose to pretend to the Irish people that there is any necessity in the world for a Governor-General, whether he is to have the works and pomps of the Viceregal Lodge, as formerly, or whether he is to be reduced to the terms of living of an ordinary citizen. That is not the point. The point is that it is an anomaly and an anachronism to have a Governor-General in this country. The power in this country properly rests in the Executive Council selected by the people. Within that body only should such power be. It is our purpose to take every step at the earliest opportunity to remove any semblance of authority which is not arising from the people, vested in the Executive Council and carried out by them, without any representative of any external authority.

The points which Senator Milroy raised do not require an explanation within the terms of this particular amending Bill. I do not propose to go into the arguments with regard to the position under Article 2 of the Treaty. I should, however, point out to the Senator and other Senators that we have accepted the position—that our position, like the position of all the other countries of the Commonwealth, is one of gradual growth. So far as we are concerned, we want that gradual growth to be as speedy as possible. I refer the Senator to the reports of the different Commonwealth Conferences that have been held. At the Commonwealth Conference of 1929, the proceedings of which were approved by the Commonwealth Conference of 1930, it was laid down as a recommendation with regard to discretionary reservation:—

As regards the continued existence of the power of reservation, certain Dominions possessed the power, by amending their Constitutions, to abolish the discretionary power and to repeal any provisions requiring reservation of Bills dealing with particular subjects and it is, therefore, open to those Dominions to take the prescribed steps to that end, if they so desire.

It is in the spirit of that recommendation we are immediately acting. I quote that partially as justification for our line of action in bringing in these three amending Bills to-day.

Mr. Milroy

That does not answer my query.

Mr. Connolly

I answer the Senator's question by asking him does he think that we are to be bound by the laws of the British Government as they stood at the time of the Treaty?

Mr. Milroy

I do not want to interrupt and I am not trying to put an embarrassing question. I want to be informed by the Minister whether I am right or wrong in my view that this Bill is not adequate, in itself, to secure effectively in law what the Minister proposes to secure. I want to know whether I am right or wrong on that point. I think that it is very important.

Mr. Connolly

This Bill proposes to do a certain thing and only one thing. It is quite within the competence of this House of the Oireachtas to pass the Bill to do that specific thing. Senator Milroy referred to Article 73 which states:

Subject to this Constitution and to the extent to which they are inconsistent therewith, the laws in force in the Irish Free State (Saorstát Eireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.

I submit that that deals only with the laws as they existed at the time.

Mr. Milroy

Of which the Treaty was one.

Mr. Connolly

The power lies within the Oireachtas to deal with any law which existed—Treaty or otherwise.

Mr. Milroy

It is not——

Cathaoirleach

I shall not allow any further interruptions. The Senator put his question and the Minister is replying to it.

Mr. Connolly

Even Article 73 indicates, by implication, that there is power within the Oireachtas to amend any law whatsoever, because there is no qualification therein. Even under Article 73, we are empowered to do this. But irrespective of whether that Article does stipulate that or not, we have and we mean to maintain the right of the sovereign authority of this Oireachtas and it is for that purpose more than anything else that these amending Bills are here. I do not think there is anything in Senator Milroy's statement. If there were it would be adequately covered if we want to refer to the Statute of Westminster which further confirms the powers within this State to carry out what measures it likes either in regard to constitutional amendments or otherwise, and that is the accepted position everywhere else in every other Dominion.

Mr. Brown

Might I ask the Minister to give me one explanation arising out of what he has stated? He has stated that the policy of the present Government is to get rid entirely of the Governor-General. I will ask him to explain how it is intended to carry on legislation if there is no Governor-General, because the concurrence of the Crown, one member of the Oireachtas, is necessary to the very existence of the Oireachtas.

Mr. Connolly

I do not think I said that we wanted to get rid of the Governor-General. I understood I said that we wanted to get rid of every function of the Governor-General. Let us be quite frank about it. We do look upon the Governor-General as an anomaly and an anachronism in this country. When the question of what will take his place and how the machinery of Government is to be administered without him comes to be considered, that is another day's work.

Mr. Brown

That is what I am anxious the Minister should explain; that is the difficulty that I am asking the Minister to explain.

Mr. Douglas

It is another day's work.

Mr. Brown

It is, and a very hard day's work.

Question—"That the Bill be now read a Second Time"—agreed to.

Committee Stage fixed for Wednesday, 25th October, 1933.