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Dáil Éireann díospóireacht -
Wednesday, 11 Oct 1922

Vol. 1 No. 21

THE DÁIL IN COMMITTEE. - ARTICLE 79.

Mr. O'HIGGINS

Article 79 reads:—

"The passing and adoption of this Constitution by the Constituent Assembly and the British Parliament shall be announced as soon as may be, and not later than the sixth day of December, Nineteen hundred and twenty-two, by Proclamation of His Majesty, and this Constitution shall come into operation on the issue of such Proclamation."

This Article provides for the public announcement of finality as regards this Constitution, its passing and adoption here and its passing and adoption by the British Parliament. Some people see bogies in the fact that the Proclamation has to be by His Majesty. I do not think there is much to be said in favour of that view; it certainly points to a rather thin-skinned temperament. There is a good deal to be said in favour of that definite announcement of renunciation and withdrawal, and as someone called it surrender from that particular quarter. We will have our own method of announcement to our own people. We will have our own publication in "Iris Oifigiúil" eventually but it is highly desirable that there should be that definite Proclamation from the British side to this bargain also. I formally move that Article as it stands.

The following amendment to Article 79 stood in the name of Seoirse Ghabhain Ui Dhubhthaigh:—

"Between the words ‘Constituent Assembly' and the words ‘the British Parliament' to insert the words ‘its registration by.'"

Mr. GAVAN DUFFY

I move an amendment providing that, instead of prescribing that the Constitution shall be passed and adopted by the British Parliament as well as the Irish Parliament, we should use the word "registered" in the case of the British Parliament, and I ask the careful attention of the Ministry and the Dáil to this point, which is clearly an error in drafting. If we pass those words as they stand, we are surrendering the whole National position by doing so, and quite unnecessarily. In the course of this debate on the Constitution we have had to give away a good many things. The Dáil has done many things that were not dignified from the National standpoint, because it felt it had to. In this case there can be no question of such compulsion, because members will recollect that this is part of an international bargain—this is part of the implementing of the Treaty—and if you insert the words "passing and adoption by the British Parliament" in your Constitution, you are implying, if not stating expressly, that you recognise some right in the British Parliament to make changes in this Constitution. I do not believe that the present Ministry would put forward the view that the British Parliament can change a line of this Constitution. Ministers know and Members know that the practice is, when a Treaty has to be ratified, for any party who thinks that some modification is required to make representations as between Government and Government privately in order to secure the necessary adjustment, and that is what should be done here. Let it be noted that this is not a question of Dominion usage. We are not children of Mother England. When these various Dominions decided they wanted to become Dominions, they had to go to England for a British Act of Parliament, which was the very foundation of their new authority. Are we taking the position that the foundation of our authority lies in a British Act of Parliament? Surely not. I have not the slightest objection to seeing not merely the Treaty, but the Constitution, registered by the English Parliament. On the contrary, to register it there is a good thing, because that registration will act at least as a kind of moral estoppal against the day when they decide they want to go back on their previous signatures. But I do object to go further—to give to that performance an air of something which is an ordinary English Act of Parliament. Note that we are not made Dominions by this Treaty; we are put in a status—we are accorded, if you like, the same status—of Dominions, but we are not Dominions. It is surrendering the National position to put down in black and white in our own Constitution, not that this document is to be registered in England—that would be quite right— but that it is to be passed and approved by the English. If there is anything wrong with it, the British Government will make representation to the Irish Government and get whatever is wrong adjusted; but do not let us put down words which undoubtedly go much further than anything we are compelled by the Treaty to put down.

Mr. KEVIN O'HIGGINS

The President says we have surrended 78 times in this Constitution, and that we ought to make a stand on the last Article. Reading that you will see "the passing and adoption of this Constitution by the Constituent Assembly and the British Parliament"—now the word "passing" there must be taken with Constituent Assembly. Deputy Gavan Duffy has pointed out that it would not be in the power of the British Parliament to change this Constitution. It would not be in the power of the British Parliament to change this Constitution. It would be in the power of the British Parliament to refuse to adopt this Constitution if it were not, in their opinion, within the four corners of the Treaty signed last December. If it contained anything inconsistent with or repugnant to that Treaty it would certainly unquestionably be in the power of the British Parliament to refuse to adopt it. The adoption of the Constitution, its embodiment in the British Acts marks the completion of the Treaty negotiations, of the Treaty bargain. There is little use here in inserting a word which is equivalent to a claim that utterly regardless of anything that this Constitution may or may not contain, the function of the British Parliament was simply to register that. It is simply in a small way trailing your coat for trouble at a time when it is not advisable to have trouble, if trouble can be avoided. It is quite a small way. Well, I am convinced that will not be passed beyond, and that conception of the position is not accepted there. It is just as well that we should face that. It is not accepted that any Constitution we might send over there should simply be registered in a mechanical or automatic way by the British Parliament. It is claimed that they have power to examine it in detail, and if they hold it contains anything inconsistent with or repugnant to the Treaty they could refuse to adopt it.

Mr. THOMAS JOHNSON

I think the opening words of the Minister are significant. Perhaps he only meant them in a jocular way, but, with reservations, it might be accepted as quite true that, having surrendered 78, 28, or 13——

Mr. KEVIN O'HIGGINS

On a point of personal explanation, the words were meant entirely in a jocular sense. It meant that we, who were standing for the Bill, had conceded to the critics on almost every clause certain things that we did not consider substantial, but that we intended to make a grim stand on this last Article.

Mr. THOMAS JOHNSON

My point is that it is perfectly true that in many cases the position has been surrendered, and, therefore, to make this stand on this Article is not very important. As a matter of fact, the view that we have come to is that we are really simply accepting some instalment of the freedom that we have been striving for—an enlargement of self-government, an enlargement of liberty—but it is still subject to these limitations which the British Parliament imposes. Now, that is a contradiction of the statement of the President yesterday, and, in my opinion, leaving in all this Article 79 as it stands is merely a recognition of that fact. We are not allowed to make this Constitution in the way we would like to make it; and by saying that the British Parliament have to pass and adopt it we are formally recognising the fact that we have not made this Constitution in the way we would like.

Mr. GAVAN DUFFY

My attempts throughout this Constitution debate have been to save something from the wreck of the Constitution on the rocks of Downing Street. Here we come to the last clause, where I see something, as it seems to me, that can be saved without any further difficulty with Downing Street. The Minister for Home Affairs told us, "after the passing and adoption of the Constitution by the Constituent Assembly and the British Parliament," was intended to mean this: (a) The passing by the Constituent Assembly, (b) the adoption by the British Parliament. I do not consider the word "adoption" to be an appropriate one, but certainly it is much less objectionable than "passing." In view of what the Minister himself has told us, I suggest to him that he might meet me to this extent on the paragraph—"the passing of this Constitution by the Constituent Assembly, and its adoption by the British Parliament." That, he tells us, is what it means. It does not go the whole way to meet my position, but, still, it will make a very considerable improvement in those two lines.

Mr. KEVIN O'HIGGINS

We have noted that request, and, not improbably, we will bring up the Article in that form in the next Reading.

AN CEANN COMHAIRLE

Is Amendment 5 withdrawn?

Mr. GAVAN DUFFY

Postponed. I will bring it up at the next Reading, if necessary.

AN CEANN COMHAIRLE

Then it is withdrawn at this reading.

Mr. GAVAN DUFFY

I ask the Dáil to substitute for the prescription that this document is to be announced by Proclamation of His Majesty, as it says here — meaning His Britannic Majesty, I suppose, the words, "by Proclamation in the Official Gazette/ Iris Oifigiúil." The Minister for Home Affairs, in introducing this Article, spoke of the thin-skinned temperament that would object to His Britannic Majesty announcing to the world that our Constitution was through. I suppose he used that expression in much the same way as he called his own Ministry a knock-kneed Government, the other day. I can set one against the other with equanimity. He said that it was important to us to have a specific act of renunciation by His Britannic Majesty, and that Act of renunciation would be contained in this Proclamation. Personally, I attach very little importance to acts of renunciation, because one knows that they remain in force just as long as it suits the party who made them to let them remain in force. I admit they will have a moral estoppel, but you can get that estoppel in the fact that His Brittanic Majesty has to sign a British Act of Parliament registering this Treaty. However, that should hardly be a reason for requiring him to sign something else approving of the Treaty. So far as the English parties to this Treaty are concerned, it is perfectly right that His Britannic Majesty should announce to them that the Treaty has gone through this Parliament, and that His Britannic Majesty's Government agrees that the Treaty is not infringed by the Constitution going through this Parliament, but, so far as we are concerned, it is not the fact that His Britannic Majesty puts his name to the Proclamation that gives force and effect to the Constitution here. It is a fact that after being passed by this Constituent Assembly of the Irish people, that "Iris Oifigiúil" should announce to the Irish people, that this Constituent Parliament with its Ministry has passed such and such a Constitution. One facet of that message, one aspect of it, is this Provisional Government aspect, but fundamentally it is the Dáil Government, the Dáil Ministry, and what the Irish people will want to know is that the Ministry, and the Irish people to whom they are rsponsible, have passed that Constitution. It would also interest them, no doubt, to know that His Britannic Majesty had no fault to find with the Irish Government, but that is not the issue. That is another issue. Let His Britannic Majesty announce these things to His loyal subjects in England. Very properly. I do not quarrel with that, but I do object to our Constitution having a phrase which does suggest to ourselves and to those who come after us that the final act which gave effect to this Constitution was the signature of His Britannic Majesty. That is not a fact. This thing is an international Treaty, and again we are surrendering the national position by bringing His Majesty in. Now, I take it that this Draft Constitution was taken to London, that John Bull was in a very bad temper, and he decided he would pay out these gentlemen who brought over the Irish Constitution for having dared to bring such a thing to Downing Street, by forcing in the name of His Britannic Majesty wherever he could. Consequently, you have his name in this Proclamation. I ask the Ministers and I ask the Dáil to observe that it has never yet been suggested that this Constitution was a gift from England, and I ask them to observe further, that there is no Dominion precedent for this proposal, none whatever. I have looked through the Dominion Constitutions here, but there is no sign of any such thing in any of them. I ask why should we go out of our way to drag in His Britannic Majesty in cases and in places where there is no compulsion on us to do so?

Mr. KEVIN O'HIGGINS

When we went to Dublin Castle—eight of us—and were greeted there by Lord FitzAlan, in the presence of the heads of the Civil Service, as the Government of Ireland it was not as the Provisional Government. It was not that greeting that made us the Provisional Government. It was the facts arising from the Treaty, and it was certain facts that had been going on here for some years before, that gave rise to that Treaty. But that formal handing over, or that formal greeting, if you will, was the necessary supplementary part of the transfer and the altered position in Ireland. Now, there is nothing particularly to be gained by trying to run away from the facts, and trying to pretend that facts are otherwise than what they are.

Mr. GAVAN DUFFY

Hear, hear.

Mr. O'HIGGINS

And the facts are that since 1800 this country has been governed, or misgoverned if you will, under certain forms, that we had representation in the British Parliament; that we sent Members over there to that Parliament, swearing a very full-blooded oath of allegiance to the English King, and that we were part and parcel of the United Kingdom of Great Britain and Ireland. And then a generation came along that did not particularly like that and it set itself very strenously and very energetically to change it, and to a considerable extent it has succeeded in changing it. But it has not succeeded in changing it as much as it desires, though probably it has succeeded in changing it as much as a good many reasonably hope, and an announcement of that change from the British and by the British is as necessary as that little scene and ceremony in the Castle when eight of us were greeted by the man who was Lord Lieutenant of Ireland. And this proclamation by the British King provides just that formal announcement of the change and just that formal renunciation of the previous position that is necessary. To admit anything else is merely a pretence that we are a country that the British have nothing whatsoever to do with—that we are, in fact, constitutionally thousands of miles away from any connection whatever. And why should this British King issue this proclamation? Now, we have just gone through the Committee stage of the Constitution, which does to a very limited extent, it is true, definitely recognise the existence of that person, and his existence in the future scheme of things under the Treaty and under the Constitution. And having recognised his existence, and realising that since 1800 he had a very definite place in our scheme of things, that an alteration in the position has taken place, and that while not being entirely eliminated—not so entirely as we would have wished—he is yet in our scheme of things in a very different way. Some enunciation from him to that effect is surely a necessary part and parcel of the transition. I have no sympathy with the amendment. I have no sympathy with the type of mind which produced the amendment.

Mr. GAVAN DUFFY

And I have no sympathy with the type of mind that resists the amendment.

AN CEANN COMHAIRLE

There is lack of sympathy all round.

Mr. DARRELL FIGGIS

Imperfect sympathies.

Mr. GAVAN DUFFY

If I may reply to the last observation of the Minister, his Britannic Majesty enunciates his retirement from the place he previously purported to hold in this country by signing the Act of Parliament provided for in the early part of the same clause.

Amendment put and lost.

Mr. T. JOHNSON

On a point of order, A Chinn Chomhairle, will the Minister inform the Dáil what method they intend to adopt for going through the second schedule of this Bill?

AN CEANN COMHAIRLE

We have not passed Article 79 yet.

Motion made and question put:—"That Article 79 stand part of the Bill."

Agreed.

Mr. THOMAS JOHNSON

It will be understood, of course, that as befitted the circumstances we adopted a topsy-turvey method of going through the Schedule before going through the Bill itself; that is, the first Schedule. I would like to know are we to follow the same procedure in connection with the second Schedule; that is, go through it clause by clause? When are we going to do it? I would like the Minister in charge of the Bill to give me some information on that point.

Mr. KEVIN O'HIGGINS

I had intended to move that the Schedule should stand part of the Bill, as a Schedule. As to going through it clause by clause, I think we did that at great length last December, and the general public were rather impatient.

Mr. THOMAS JOHNSON

Are we not allowed to put in amendments?

Mr. KEVIN O'HIGGINS

No. I now move that the Schedule, as a Schedule, stand part of the Bill.

Mr. DARRELL FIGGIS

In moving the big Schedule, do we accept the little Schedule?

Mr. WM. O'BRIEN

I would suggest to the Minister that as there seems to be a difference of opinion he should withdraw it.

Mr. KEVIN O'HIGGINS

If the Deputy will suggest any practical alternative, we will consider it.

LIAM de ROISTE

On a point of information, if this Treaty has been carried in the British Parliament, as it has been, and if it has been carried in the previous Dáil, is there really any necessity for proposing it now as part of this Constitution Act?

AN CEANN COMHAIRLE

Is there any reply to the Deputy's point of information?

Mr. E. BLYTHE

Not at all.

LIAM de ROISTE

It is quite clear to my mind, and I think that if an answer were given it would probably answer Deputy Johnson as well. The matter is quite clear to my mind. The Treaty has been carried by the British Parliament, and has been ratified by the Dáil; is there, therefore, any necessity for attaching the Treaty to the Constitution Act, either in this Assembly or the British Parliament, for further discussion?

As I understand the position, the Dáil approved of the Treaty. It is now embodied as a Schedule to this Constitution, and it is being ratified. That is, I think, a more correct method than was adopted before.

Mr. E. BLYTHE

Article 49 refers to the Scheduled Treaty, so, I presume the matter is closed.

LIAM de ROISTE

If it is part of this Act, I submit we will have again to go over the whole discussion on the Treaty. I do not want to do so, but if it is part of the Act any Deputy is entitled to go over the discussion.

AN CEANN COMHAIRLE

He is not entitled to do so, and shall certainly not be allowed to do so.

Motion made and question put:—
"That the Second Schedule stand part of the Bill."
Agreed.

Mr. DARRELL FIGGIS

On a point of order, in the subsequent procedure is it your intention that we should take the Title before the Act? Presumably it would be the Act before the Title, if I may suggest that with all deference.

Mr. GAVAN DUFFY

It may be opportune to suggest a matter which I intended to move as an amendment, but which I now think will not be necessary to move. In a good many places in the Bill the Irish equivalent is omitted from the English terms; the Dáil could give authority to the Ministry to put in those equivalents before the next meeting, so that we may have that part of the Bill in complete form. I would also suggest that the Irish titles should go first. All through the Bill the English titles come first. I think that matter should be agreed upon.

Mr. DARRELL FIGGIS

There was another matter that arose at an earlier stage that could be answered now; it has reference to Section titles. The Ministry were to let us know, if I recollect rightly, the decision with regard to the deletion of Section and chapter titles throughout. If that is to be adopted, and I suggest it would be adopted, the matter should now be moved before we get to the Preamble.

Mr. KEVIN O'HIGGINS

The Bill in its final form will be cast in Irish and English. In the Irish draft the Irish titles will be placed first and the Irish draft will, I take it, be the Act so far as this Dáil is concerned. I will move the deletion of the titles.

Mr. GAVAN DUFFY

I do not think that should be taken by consent. I disagree with Deputy Figgis on this matter. Look at all the Constitutions of the Dominions and the Constitutions of other countries and you will observe the great utility of having titles clearly expressed throughout. It is quite easy to indicate at the end that these be not taken as part of the Bill.

AN CEANN COMHAIRLE

If you cannot agree on this matter now you need not discuss it; it can come up on the next Reading.

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