We now come to Article 72, which is :—" 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of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Parliament/Oireachtas." The need for that Article is rather obvious. If, on the passing of the Constitution the existing laws were to lapse we would find ourselves in rather a bad way, pending the enactment—pending the setting up of the first Parliament of the Saorstát. This provides for the continuance in force of the existing laws until they are either repealed or amended by an enactment of the new Parliament.
In Committee on the Constitution of Saorstat Eireann Bill. - ARTICLE 72. TRANSITORY PROVISIONS.
Mr. KEVIN O'HIGGINS
AN LEAS CHEANN COMHAIRLE
There is an amendment to Article 72 standing in the name of Deputy Duggan.
Mr. BLYTHE
I move the amendment in Deputy Duggan's name; it is:—
"Nothing in this Constitution shall affect until the 5th April, 1923, the assessment, levying and collection of taxation as existing immediately prior to the coming into operation of this. Constitution or the financial adjustment consequent thereon."
I take it that the object of this amendment is to prevent the financial confusion which would arise if the arrangements which have been made heretofore were to be upset at once on the passing of the Constitution. These clauses will not bind us to continue these arrangements any further than we choose to, but it would prevent the mere enactment of the Constitution, knocking them to bits before we would have time to make alternative arrangements for carrying on. The date fixed is to allow us to continue until the end of the present financial year. If it were necessary, for instance, at the present moment to end the arrangement in regard to the Customs, we would not have a Customs organised to carry out the collection of the Customs duties here. Goods coming in from England have not paid their Customs dues heretofore or up to the coming into force of the Provisional Government. It would be necessary to continue the present arrangements, and the present arrangements are: that Customs duties on goods imported into the British Islands are collected in Great Britain, and when they are exported from Great Britain to this country that the matter is arranged by book-keeping adjustments.
AN LEAS CHEANN COMHAIRLE
Do I take it that this amendment is agreed to?
The amendment was agreed to.
Mr. DARRELL FIGGIS
Is it not the intention of the Ministry to move that as a new Article?
Mr. BLYTHE
Yes, as a new Article.
Article 72 put and agreed to, and the amendment to Article 72 was put as a new Article (New Article 73), and added to the Bill.
Mr. GAVAN DUFFY
May I ask, A Chinn Chomhairle, before we proceed to the next Article, if you would tell us how far we are going to-night? I understand from the Chairman that the transitory provisions are on the Agenda for to-day.
AN LEAS CHEANN COMHAIRLE
If there is any objection, I cannot proceed further, but we will go into Article 74. If there is any objection, we cannot go on.
Mr. GAVAN DUFFY
I do not raise any objection to Article 74, as long as we know definitely how far we are going.
Mr. O'HIGGINS
There is no amendment other than Government amendments. There are two new Articles proposed instead of Article 75. There is a deletion of Article 75 and a substitution of two new Articles. I suggest that we should go on, at any rate, to Article 74.
Mr. GAVAN DUFFY
That is agreed.
Mr. O'HIGGINS
I beg to move Article 73 in the old draft, or Article 74 now. It is:—"Until Courts have been established for the Irish Free State/ Saorstát Eireann in accordance with this Constitution, the Supreme Court of Judicature, County Courts, Courts of Quarter Sessions and Courts of Summary Jurisdiction, as at present existing, shall for the time being continue to exercise the same jurisdiction as heretofore, and any judge or justice, being a member of any such Court, holding office at the time when this Constitution comes into operation, shall for the time being continue to be a member thereof and hold office by the like tenure and upon the like terms as heretofore, unless, in the case of a judge of the said Supreme Court or of a County Court, he signifies to the Representative of the Crown his desire to resign. Any vacancies in any of the said Courts so continued may be filled by appointment made in like manner as appointments to judgeships in the Courts established under the Constitution."
Mr. GAVAN DUFFY
I think it a great pity that we see nothing in this Article of the Constitution from beginning to end with regard to our own Courts. I agree that there should be unification, but I think we are entitled to expect that there should be, in the Constitution, an equivalent provision to the Judges of the Courts which we established ourselves. Because this motion can only mean that we are not prepared to say that these Courts are legal and proper Courts. I think something should go in there to put those Courts on the same footing as this Article puts the English law courts on.
Mr. O'HIGGINS
At first sight there would seem to be something in that. But, on looking into it, and seeing that this Constitution is to be confirmed or registered or ratified in the British Parliament, and has to pass from the British Parliament as an Act, or embodied in an Act, the explanation is obvious. The British did not recognise the Dáil as such, and from the very nature of their position, they did not, and could not, recognise the existence of those particular Courts, which were the creatures of the Dáil. That was all along the position. I think the Deputy himself knows that that position was taken up and maintained by them throughout the Treaty negotiations. The same was taken up and maintained by them throughout the negotiations with regard to this Constitution. We should ask ourselves, whether there is definite need to insert a provision dealing with these particular Courts, and whether it is really worth the difficulty that it would create to do it.
Mr. GAVAN DUFFY
I quite admit the force of what the Minister says, in respect to the period before the Treaty, but I fail to see any reason why the British should object or have anything to say on the question of our own Dáil Courts functioning side by side with those we have inherited from them since the Treaty was passed.
Mr. GOREY
These courts were outside the Constitution.
Mr. JOHNSON
May we take it that it may be the function of the first session of the new Parliament to take cognizance of these particular Courts and their activities, and if I may come back for a moment to Clause 72, I think we may well, for our own edification read the words "laws in force" as the laws we have seen in force, not merely the British laws but the Irish laws. I think there is a good deal in what the Minister said as to the undesirability of putting in provision in this particular clause, but I hope he will accept their existance and establishment as a fact and right in the early stages of the first Parliament under this Constitution.
Motion made and question put: "That Article 73 (in the draft) be added to the Bill."
Agreed.