Dáil Éireann díospóireacht -
Friday, 18 Jul 1924

Vol. 8 No. 15

COMMITTEE ON FINANCE. - THE ADJOURNMENT—BRITISH JUDICIAL INQUIRY AND BOUNDARY QUESTION.

Mr. MILROY

When I raised this question generally on the last occasion I regret that I was not cognisant of the aspects of it on which I wish to touch to-day. I wish to say, very clearly, that in raising this matter I want to have no misunderstanding and I desire that there shall be no apprehension that I have any desire that the Executive Council of this State should trespass upon matters that do not concern them. I said on a recent occasion that I did not question the competence of the British Government to seek for information in whatever quarter they desired which would elucidate for them what appeared to them to be a constitutional dilemma. I am not questioning the competence of the British Government to invoke the advice of the Judicial Committee of the Privy Council in matters concerning them alone. Why I am raising this question at the moment is because they have invoked the intervention of the Judicial Committee of the Privy Council on a matter which concerns this State more vitally, perhaps, than even the British Government itself. That is my reason for raising the matter. This matter has been brought acutely to my notice by the publication within the past few days of the names of certain distinguished lawyers who are to act as a tribunal in regard to certain aspects of Clause 12 of the Treaty. These gentlemen are called into being as a tribunal under a certain British statute. I want to draw attention to the purpose and the scope and the object of that statute, and to draw attention to and challenge the competence of the Judicial Committee of the Privy Council to adjudicate on this matter at all. This Act, which deals with the constitution of the Judicial Committee of the Privy Council, is an Act of William IV., passed in the year 1833— ninety-one years ago. The President smiles at this weighty to me which I hold before me. I hope this Act is not going to be as heavy upon the Free State as I feel it at the present time. It is an Act which has to be taken seriously. It was passed in this particular year for a certain specific purpose, which is stated in the preamble of the Act, portion of which I will read:—

"... And whereas, by Letters Patent under the Great Seal of Great Britain, certain Persons, Members of His Majesty's Privy Council, together with others, being Judges and Barons of His Majesty's Courts of Record at Westminster, have been from time to time appointed to be His Majesty's Commissioners for receiving, hearing, and determining Appeals from His Majesty's Courts of Admiralty in causes of Prize"— captures at sea.

That is the purpose for which this body was set up. This Statute was enacted that they might consider cases like that, and to make that more emphatic, the concluding clause of this Statute—Section 31—states:—

Provided always, and be it enacted, that nothing herein contained shall be held to impeach or render void any Treaty or Engagement already entered into by or on behalf of His Majesty, or be taken to restrain His Majesty from acceding to any Treaty with any foreign prince, potentate or power in which Treaty it shall be stipulated that any person or persons other than the said Judicial Committee shall hear and finally adjudicate appeals from His Majesty's Court of Admiralty in causes of prize, but that the judgments, decrees and orders of such other person or persons so appointed by Treaty shall be of the same force and effect of which they would respectively have been if this Act had not been passed."

That is the purpose, and the sole and entire purpose of this Act—to consider cases of prizes or captures at sea. I come to another section of that Act. One day last month the London Times had an article on this matter, in which it quoted Section 4 of this Act. I want to make it clear that the wording of this section is not contrary to the assertions I have made. Section 4 says:—

And be it further enacted that it shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit, and such Committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid.

I want the House, and especially the Government, to consider the meaning of these words, and to consider the sections of the Act which I previously quoted; how they indicate the purpose of this Act, and how that purpose is not merely indicated but emphasised and reiterated in the concluding section of the Act. I want the House to remember that this Statute was enacted in 1833—91 years ago. I want the Dáil to put to themselves seriously the question whether an Act passed at a time so remote from the present and having a specific purpose for its objective is to be invoked and construed as having any bearing whatever upon such a grave matter as the construing or meaning of an Article of an International Treaty. If we were to acquiesce in the idea that Section 4 could have a bearing upon this, we would be committing ourselves to something that would have implications of a much more far-reaching character than we at the moment can realise. "It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His Majesty shall think fit.""Matters whatsoever !" Are we going to assent to that? If the interpretation that the British Executive has put upon that section of the Act were true, it would have been quite competent for this Dáil to agree in all seriousness that the dilemma regarding the Liquor Bill should have been referred to the Judicial Committee of the Privy Council for decision. According to those words, "any such other matters whatsoever," the Judicial Committee of the Privy Council might be called upon by His Majesty to decide whether or not members of this House ought to wear straw hats or tall hats.

AN CEANN COMHAIRLE

Certain matters have been referred by the British Government to the Judicial Committee of the Privy Council. The Deputy asked me to allow him to raise on the adjournment a question relating to these matters. My first impulse in connection with the matter was that the actions of the British Government with regard to the Privy Council do not concern us and cannot be raised here. It is not competent for us, and it is very improper for us, to discuss the domestic affairs of any other country. I was hoping that the Deputy was going to put up some argument that the matters referred to the Judicial Committee of the Privy Council could be properly discussed here. He has put up no such argument. He has put up an argument which, it seems to me, should not be put up here at all, with regard to an Act of Parliament of which the British Government have availed, and he seems to me now to be wandering completely away from the subject. He has not proved, to my satisfaction, any relevancy of the matters which he is raising to our business. While I do not want to deny the Deputy any opportunity of raising a question as regards the Treaty or the Boundary Commission, I do want to insist that we shall not discuss a matter which is one only for the British Government and the British Parliament. I feel that the Deputy is now doing that. He has mentioned that the interpretation of the Treaty has been referred to the Judicial Committee of the Privy Council by the British Government under an Act of 1833. If that were the case, there would be something to be discussed here. But it seems to me to be plainly not the case. There is nothing in this reference, which I have before me, about the interpretation of the Treaty. It seems to me to be a reference connected with a doubt the British Government has as to the doing of certain things. That does not concern us in the slightest. It does not concern us any more than a reference by the Executive Council to certain judges as to what we should do with the Liquor Bill of 1923, would concern the British Parliament or the Canadian Parliament or the French Parliament. I want to be very clear on this, because it is an important matter.

Mr. MILROY

I want to be very clear, too. What my argument was leading up to was that the intervention of the Judicial Committee of the Privy Council is founded upon Section 4 of this particular Statute ——

AN CEANN COMHAIRLE

What is the intervention about?

Mr. MILROY

About the question as to whether there is any Constitutional method of bringing the Boundary Commission into existence so long as the Ministry of Northern Ireland refuses to agree.

AN CEANN COMHAIRLE

Is not that a British question? In my opinion it is clearly a British question. I will take an example which is perhaps feasible, perhaps not. If the Minister for Justice decided to ask the High Court or the Supreme Court here a question as to whether there is any constitutional method of preventing the Intoxicating Liquor Bill, 1923, from becoming law that would surely be a question purely for us. I feel sure that in another place the Speaker would not allow any member to raise that question. That is why it seems to me that the Deputy has raised a question that does not concern us. I would not have allowed him to begin except that I thought he had some other point to make.

Mr. MILROY

Surely it is a matter that concerns us vitally, whether or not there is any constitutional method of settling the boundary question?

AN CEANN COMHAIRLE

No. It would concern us vitally if there were an authoritative statement that there was no method of carrying out the Treaty by the other party to the Treaty. There is no such statement that I have ever heard of. That is the important point. An authoritative statement to our Government by another Government that the other Government could not carry out the Treaty would be a matter proper for us to discuss. But this is not such a matter.

Mr. MILROY

With all due deference, I wish to suggest for consideration that we are concerned with whether or not a body is set up which will pre-judge the question that we are vitally concerned with.

AN CEANN COMHAIRLE

What is the question?

Mr. MILROY

Whether or not Article XII of the Treaty can be put into operation.

AN CEANN COMHAIRLE

That question has not been referred to that body.

Mr. MILROY

Am I in order in interrogating the President on these grounds? I most certainly have not the slightest desire to go outside what is the legitimate scope of the powers of review of this Assembly. I certainly have no desire to indulge in what you, sir, accurately describe as the highly improper attitude of intervening in the domestic affairs of any other country. But this is not a domestic affair, in my judgment. It is an international question. A certain factor has been brought in to contribute to some decision. It may be a decision satisfactory to all, or it may be a decision seriously adverse to this State. It is a factor that is introduced without the consent and without the counsel of the responsible Executive of this State.

AN CEANN COMHAIRLE

As to that, I may say that we made a Treaty. We carried it out. Our methods of carrying it out were for themselves, and our decision as to the method of carrying it out, and as to what we did to carry it out, was our own. If the other party to the Treaty takes advice from whom they like, by any method they please, as to what they are to do to carry out the Treaty, that method of taking advice, and the persons from whom the advice is taken, are not matters for discussion here. What would concern us is a decision by the other party to the Treaty not to carry it out, but no such decision has been reached. I fail to see how we can discuss the other parties' operations to come to a conclusion as to what they are to do in a problem which is theirs, namely, the carrying out of their part of the Treaty. The Deputy, I am afraid, is doing something which is not only improper, from the point of view of our proceedings, and from the point of view of our international relations, but he is actually suggesting things which, speaking for the Dáil, I could not allow him to suggest at all, namely, that the Judicial Committee of the Privy Council is deciding something which will be binding upon us. I could not countenance that suggestion.

Mr. MILROY

I will endeavour as well as I can to refrain from doing those things which you so rightly suggest should not be done. All that I am concerned with is that we shall prevent, so far as it is possible, for us to do, a tribunal functioning and giving an adverse decision which may prevent the implementing of a certain clause of the Treaty, and which decision in that respect shall be regarded as authoritative and conclusive, and something which this State must acquiesce in.

AN CEANN COMHAIRLE

No. Really I could not allow the Deputy to go any further on this matter now. There is no question of a tribunal, the decision of which is binding upon this State. There is no such tribunal except the Oireachtas. I could not possibly allow any such discussion to continue. The President is being asked what action he proposes to take to interfere in the proceedings of a tribunal, set up for the purpose of giving the British Government information upon certain points. It is an impossible question to ask the President.

Mr. MILROY

I did not ask the President such a question yet.

AN CEANN COMHAIRLE

That is, I feel, a question which should not be asked.

Mr. MILROY

As a matter of fact, I have not interrogated the President at all. I have made certain premises upon which to base a certain interrogation.

AN CEANN COMHAIRLE

That is what I feel the Deputy has asked the President. I feel I could not allow him to ask the President any such question. There is no such tribunal.

Major COOPER

You said one thing, sir, that might be misunderstood. You said there was no tribunal, and there could be no tribunal, the decision of which would be binding on this State. I take it that when the Boundary Commission is constituted, as we have appealed to it ourselves, and as it is in the Treaty, we shall be bound by its decision?

AN CEANN COMHAIRLE

That is the same as what I have said, because the Treaty is recognised by this Dáil and is law. Otherwise the Boundary Commission could not be constituted.

Major COOPER

Your remark might be misinterpreted.

The PRESIDENT

We shall accept the Boundary Commission's decision.

AN CEANN COMHAIRLE

I am sure the President does not intend to follow Deputy Milroy.

Mr. MILROY

I will ask the President not to speak, as I have not been able to give expression to what I intended to say.

AN CEANN COMHAIRLE

I think Deputy Milroy will realise, as he spoke to me in reference to this matter, that I have given him all the liberty I possibly could. I regret he has not been able to make his point, but the matter is so grave that I felt the line he was taking was one which could not possibly be allowed.

The PRESIDENT

What I have to say will not interfere with any case the Deputy would make either now or any other time, or any interrogations he might care to put. The action of the British Government in submitting certain questions to the Judicial Committee of the Privy Council is a matter solely concerning that Government—a domestic arrangement affecting their own position, and one which does not seem to call for any statement from me. I have already made our attitude in this matter perfectly clear in the reply which I gave on the 6th June to a question put to me in this House:

The British Government is, I understand, seeking advice from the Judicial Committee of the Privy Council as to the steps which they must take to fulfil their obligations under Article 12 of the Treaty in the circumstances that have arisen. The questions which have been submitted for advice appear to arise solely out of the relations between the British Legislature and its subordinate Parliament. The desire of the British Government to obtain such advice is a matter solely concerning them, and does not appear to call for any statement from me. So far as we are concerned, we have made it perfectly clear that we are not parties to the request for advice.

Whatever the outcome of the reference to the Judicial Committee of the Privy Council may be, it will not and cannot alter the Treaty which is binding on this and every British Government, as it is on us. Should any difficulties arise in the way of implementing Article 12 (we are raising none), the getting over of such difficulties and the working out of the procedure to give effect to the Article is a matter for the British Government and the British Legislature. No decision of the Judicial Committee or of any other body can deprive the British Government and the British Legislature of the power to carry out Article 12, or any other Article of the Treaty.

The Dáil adjourned at 4.30 p.m. to Monday, 21st July, 3 p.m.