I move:—
That Dáil Eireann approves of the Report of the Conference on the operation of Dominion Legislation and Merchant Shipping Legislation, and recommends the Executive Council to take such steps as they may think fit to give effect thereto.
This motion refers to a Report which has been on the Table of the House since about the first week in February, a Report which I should characterise, right at the start, as the most comprehensive constitutional document that Dáil Eireann has had to discuss since the Treaty was itself discussed. I would rather have had to debate this in other circumstances when I could have dealt more adequately with this resolution, regarding it from the point of view of the magnitude of the matters with which it deals and the momentous nature of the recommendations brought forward for discussion. I am going to ask the House to found their decision upon this resolution on the recommendations that are contained in that Report itself. I do that, feeling a vast confidence about the Report, a confidence that is bred in me from my own knowledge of the particular problems that had to be discussed at the 1929 Conference, basing myself, for confidence sake also, upon the method with which the Press generally received the publication of the Report of that Conference as well as upon the silence with which a certain part of the Press greeted it, the fumbling attempts that have been made by another part of the Press to belittle the Report and the recommendations, and the attempts made elsewhere to find imaginative terrors, not sustained or sustainable by any real reason, in the Report, to induce people to go against it. I claim at the beginning that this is the clearest constitutional record that has ever proceeded from any Conference of the States that are associated together in the Commonwealth of Nations, and that it reveals, better than any report hitherto has revealed, the international status and the destiny of the States that comprise the Commonwealth.
I use the word "reveal" as I did when I spoke in this House in June, forecasting what was to come before the Conference and forecasting, as well as I could, the results I expected from it, because, as I then said, although the States that comprise the Commonwealth had to the knowledge of most people become full international units yet the easy processes and gradual changes by which that position was achieved were of a type that rather hid the development than emphasised it and were such as to lead uncritical observers to wrong conclusions as to the particular position that had been reached. That cannot be said of this Report. A slight reference to the historical antccedents both of this State, as it at present stands, and of the older Dominions of the Commonwealth of Nations is necessary. I do not think there is called for at this point any lengthy investigation into the steps by which the older Dominions of the Commonwealth reached a particular stage, but I think one or two sentences will be useful now just in order to get people's minds focussed on the stage of the world's history that had been reached when the Treaty of 1921 was signed.
A big number of new States had come into being. They were, in the main, torn from older States and, however unequal they might be in power and resources they were certainly equal, one with another, in the possession of full international status. Most of these new States had been established by Treaties and into that international situation the Irish Free State came, established also by an international pact which resulted in the recognition of this State as a full international entity. I have on other occasions adverted to the obligations and the rights that we assumed and that we demanded arising from that international position, and it is no part of my duty here to-night to refer to these. On other occasions upon which these matters have been discussed I gave my own view, backing it with evidence as to the part, the persistent, active and honourable part, we had played in international affairs since the establishment of the State. The only thing that falls for consideration in discussing this Report is the relationship that has been definitely established between the members of the British Commonwealth of Nations.
Before going on to discuss the separate parts of the Report, I propose to read again, to refresh Deputies' minds, the terms of reference upon which the Conference was called together. I want further to point out that the method that was adopted is a method that has come to be adopted ordinarily with regard to any matter of international importance. The International Labour Office, dealing with matters of much less importance, has adopted the same technique, whereby matters are brought forward for deliberation for one year, the terms of reference are, to a certain extent, established, and then the debate and the decision upon these matters are postponed for a year or two, so that a better knowledge of the full implications of what is being brought forward can be understood, and so that people can come to the final debate with their minds fully informed and their particular point of view made clear before they come to a decision. In 1926 certain principles were enunciated for the first time. It was realised in 1926, and stated in the 1926 Report, that by reason only of the limited time at our disposal, it was impossible to relate these principles to facts and to get the facts to square with the principles where, in fact, they were at that time found not to be in agreement. The 1929 Conference was to take place over three years after the establishment of the principles, so that the detailed matters referred to in the terms of reference might be considered by the Governments that were going to be called together and so that there would be a chance of agreement in the fullest detail on the matters left over, as established in principle but not in detail in 1926. That was the origin of the 1929 Conference. I spoke in this House in June of 1929, and, referring to the task that was before the Conference of last autumn, I said:—
"In the year 1926 the principles underlying the status of each of the members of the Association of States to which we belong were formulated and declared to the world. The declarations then made did not proclaim a constitutional system suddenly established, but rather collected, co-ordinated and consolidated a body of constitutional principles theretofore gradually accepted, but then for the first time authoritatively interpreted and formally acknowledged. Thereafter, the principles then formulated were to be universally recognised as the governing factors in the relationships of the member-States of the Commonwealth to each other, and the relationships of each member-State to the Commonwealth as a whole. It was made manifest to the world that the new definition of status then declared postulated far-reaching readjustments in the external relations of the member-States with international society at large. Our contribution to the formulation of these constitutional doctrines was positive, persistent, and decisive. The vigilance and diligence which have been exercised in applying them to our routine relations with other States within and without the Commonwealth, in removing anomalous legal forms, in securing the discontinuance of practices that have no place in modern democratic life, and no justification in present constitutional theory, and generally in conforming every aspect of the Commonwealth scheme to the principles on which it rests has been, and must continue to be, the special work of the Department of External Affairs.
"In the autumn of the present year a Committee of Experts from every State in the Commonwealth will meet to discuss the formal amendment or modification, or repeal of enactments still on the Statute Book of the United Kingdom which are inconsistent with the existing legislative powers of the member-State Parliaments. Our purpose is that whatever remnants there may be of the old order of Imperial control will be removed and the last legal vestiges of the organisation swept away. The entire legal framework in which the old system of central rule was held together will be taken asunder and will never be put together again. A new legal structure will take its place, in which no bar or barrier to future constitutional development will be found. The free co-operation which is the basis of the Commonwealth idea, the instrument of its usefulness and the expression of the individual sovereignty of its members will be clothed in forms which reveal rather than conceal its reality."
I want Deputies to examine the Report in the light of those phrases, enveloped, as those phrases are, by the terms of reference before the 1929 Conference and pass judgment after that consideration on the Report; to say whether or not the task that I then set for myself has been properly carried out, whether, in fact, the old legal structure has been changed, whether whatever remnants there may have been of the old order of Imperial control have been removed and the last legal vestige of the organisation now superseded have been swept away— whether, in fine, the entire legal framework of the old system of central rule has been taken asunder.
I say those phrases are bounded by the terms of reference, for there may be anomalies still existing that were not referred to the 1929 Conference, and which could not be discussed at that Conference as not forming part of our terms of reference. Here is what was set before us on page 8 of the Report:
"To inquire into, report upon, and make recommendations concerning—
"(i) Existing statutory provisions requiring reservation of Dominion legislation for the assent of his Majesty or authorising the disallowance of such legislation.
(ii) (a) The present position as to the competence of Dominion Parliaments to give their legislation extra-territorial operation.
(b) The practicability and most convenient method of giving effect to the principle that each Dominion Parliament should have power to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order, and good government of the Dominion.
(iii) The principles embodied in or underlying the Colonial Laws Validity Act, 1865, and the extent to which any provisions of that Act ought to be repealed, amended or modified in the light of the existing relations between the various members of the British Commonwealth of Nations as described in this Report" (i.e., the Report of the Imperial Conference).
A fourth term was added to the latter part of the 1926 Conference Report, referred to at the bottom of page 9 of this Report:
"To consider and report on the principles which should govern in the general interest, the practice and legislation relating to merchant shipping in the various parts of the Empire, having regard to the change in constitutional status and general relations which has occurred since existing laws were enacted."
Before going on to discuss the separate chapter-headings of this Report, four of which deal with the four items that were referred to the Conference, I want to say this about the Report in general: There were present in London at the Conference of last year six States of the Commonwealth of Nations. Of those six it may be said generally that no two agreed in points of detail. All did agree in their view of the constitutional status that had been achieved, but there was great disagreement as to the use that should be made of the particular position that all believed had been achieved. There were differences arising from history; there were differences arising from the constitutions of the different States; there were differences even arising from the relations, close or less close, which the different States wished to have with one another, and we had to find a report and frame recommendations which would get the greatest possible agreement from the six peoples who were there gathered together. The report was framed generally so as to have that agreement. But it is for each member-State of the Commonwealth to take from the report those portions which its particular case calls for, and to frame its own legislation upon those portions, neglecting other portions that have no relation to them. I will make clear as I go along, by reference to one or two points of detail on which there were divergences, the lines that different States of the Commonwealth will take when they come to adopt legislative means to give effect to the findings of the Conference. That is one point. A second point that has to be remembered is this—I have already referred to it in reading the Terms of Reference—that the Conference was limited by the Terms of Reference. It by no means escaped observation that there are still anomalies, or may be still anomalies, which will require re-consideration hereafter. While I say that, I want to add that in 1926 principles were established which were to rule the relationship hereafter of the members of the Commonwealth.
In 1926 certain points of detail were segregated for special consideration, points showing conflict between the constitutional position and the old status. Those special points, when attention had been called to them, were sent off to the 1929 Conference for modification. Other points may arise. If other points do arise, Deputies should bear in mind that the 1926 principles have ruled right through the whole recommendations of the 1929 Conference, and if any anomalous things are hereafter discovered not in agreement with the principles enunciated in 1926, there is no doubt whatever that these anomalies, when discovered, will disappear just in the same way as the anomalies that were discussed in 1929 are now due to disappear. The 1926 Conference was held under the presidency of one Government in Great Britain. The 1929 Conference met under the presidency of a different Government and took up the points of detail referred to it by the previous Government. It took up the principles established by all the Governments of the British Commonwealth in 1926, and these principles have ruled right down to details. Nobody who has any appreciation of what these principles were, and how absolutely the details have been ruled by them, can have any fear that if hereafter further anomalies appear they will not be ruled in exactly the same way.
The third point I want to make, before going into an examination of the detailed points, is that up-to-date, as was natural, attention has been paid more to getting rid of the anomalies than to anything else, to getting what I might call our side, the Irish Free State side, the Dominion side of the Association of the British Commonwealth of Nations, made clear and distinct before everybody. This Report, and two points in the Report in particular, shows where that Association is of great value to citizens of the Irish Free State. It seems to me it is fitting at this time that I should call attention to these as two concrete examples of the value of the Association to us. I would ask Deputies, in considering the Report, while bearing in mind the big constitutional changes made in the framework of the old Empire, also to bear in mind the value of the Association to ourselves. They should begin to let their minds play a little bit more liberally on the advantages to be derived from the Association and consider how these advantages might be increased by some better degree of co-operation with the different units bulked together in the British Commonwealth of Nations.
This Report falls into eight parts. Four of them are really material to the discussion. Parts I and II are introductory and are in common form Part III deals with the first question referred to the Conference. Disallowance and Reservation. Part IV takes up the question of the Extra-Territorial Operation of Dominion legislation. Part V deals with the Colonial Laws Validity Act; Part VI with Merchant Shipping legislation and Colonial Courts of Admiralty Act Part VII with a suggested Tribunal for the determination of disputes, and Part VIII is in conclusion.
I take the first point—disallowance and reservation. We were told "to inquire into, report upon, and make recommendations concerning existing statutory provisions requiring reservation of Dominion legislation for the assent of His Majesty or authorising disallowance of such legislation." The first paragraph of Part III defines the power of disallowance as meaning "the right of the Crown which has hitherto been exercised (when occasion for its exercise has arisen) on the advice of Ministers in the United Kingdom, to annul an Act passed by a Dominion or Colonial Legislature." Here we have the first example of a United Kingdom right, a right which had its place in a scheme that has now passed away, the scheme of a central authority ruling all outside associations or dependencies. It was a right that was from time to time inexorably exercised when it seemed to the Government of Great Britain and the Parliament of Great Britain that the right should be so exercised. It was a right which, when exercised, was exercised on the advice of Ministers in the United Kingdom, and its effect was to annul an Act passed by a Dominion or Colonial Legislature. The Irish Free State Constitution contained no provision for disallowance at the date on which this State was founded as a State. There had been even then a movement beyond the old situation that was described in the first paragraph of this section and our Constitution marked that progress by containing no provision even for disallowance.
Our interest in this section is consequently somewhat academic. There was no power of disallowance as far as our laws were concerned; there was no such constitutional right. But, from the point of view of general Dominion status it had its value for us. I call attention to the findings of the Conference as set out in paragraph 23:—
The Conference agree that the present constitutional position is that the power of disallowance can no longer be exercised in relation to Dominion legislation. Accordingly, those Dominions who possess the power to amend their constitutions in this respect can, by following the prescribed procedure, abolish the legal power of disallowance if they so desire. In the case of those Dominions who do not possess this power, it would be in accordance with constitutional practice that, if so requested by the Dominion concerned, the Government of the United Kingdom should ask Parliament to pass the necessary legislation.
I repeat that our interest in this is academic, as there is no right of disallowance here. Our sole interest was to see that nothing should remain, so far as we could manage it, on the Statute Book which would seem to cast doubt upon full Dominion status.
Connected with disallowance in the terms of reference and in this Report is the matter of reservation. Paragraph 26 defines the position before the Conference:—
Reservation means the withholding of assent by a Governor-General or Governor to a Bill duly passed by the competent legislature in order that His Majesty's pleasure may be taken thereon.
Explanatory matter in the Report points out that there were two types of reservation. Certain Constitutions require certain Acts to be reserved for the signification of the King's pleasure. In most Constitutions, as in ours, there is a clause enabling a Bill to be reserved. We had an interest in this, but it, too, was somewhat academic, because no matter what remained in Statute Books or was enshrined in Constitutions reservation is a thing of the past.
In paragraph 35 the Conference comes to this finding:—
As regards the continued existence of the power of reservation, certain Dominions possess 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.
Paragraph 36 follows, referring to the Canadian and Australian position. This is the first of the points to which I promised to call attention. I have said that this Report had to be so framed as to cover a number of States which differed in a number of ways—in this case in constitutional frame-work. There were unitary and federal States; there were States which had certain control over their Constitutions, and States with a much more limited control over their Constitutions, and recommendations had to be framed to cover all of them. Paragraph 35 is, as far as reservation is concerned, the one with which we are concerned, and the result is that it is open to us to take the prescribed steps to the end of abolishing this power if they so desire.
In the parts of the Report dealing with reservation the history of this Governmental power is briefly given. It is pointed out that reservation used to be a matter for the Governor-General or Governor in relation to Bills which had been duly passed by the competent authority. In the consideration of this question there had to be borne in mind the 1926 statement of the position of the Governor-General in any Dominion. The Governor-General occupies in relation to any Dominion the exact position that the King occupies in relation to the United Kingdom, and is controlled in any duty that he carries out exactly as the King is controlled in relation to the United Kingdom. The King in all matters affecting United Kingdom affairs acts on the advice of British Ministers. The Governor-General in any Dominion acts only on the advice of the Ministers of the Government of that State. Consequently, once the position of the Governor-General had been declared in that way, it was clear that reservation, if it was to be continued as a means of still holding central authority over the Dominion, had to be exercised through some other channel or else had to disappear. The Conference in 1929 had no difficulty in making up its mind as to the steps to be taken. The recommendation I have read and it is conclusive. All these recommendations have to be approved, but if approval is given, this State, as far as reservation is concerned, has the power to abolish it by amending the Constitution.
Part IV of the Report deals with the extra-territorial operations of Dominion legislation, and here in particular the authority of the Dominions is elevated to the highest and fullest point. We were asked in regard to this to report upon—
(1) The present position as to the competence of Dominion Parliaments to give their legislation extra-territorial operation.
(2) The practicability and most convenient method of giving effect to the principle that each Dominion Parliament should have power to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order and good government of the Dominion.
The recommendations from paragraph 40 to the end of the section set out the new position quite clearly:—
We are agreed that the most suitable method of placing the matter beyond possibility of doubt would be by means of a declaratory enactment in the terms set out below, passed, with the consent of all the Dominions, by the Parliament of the United Kingdom.
With regard to the extent of the power so to be declared, we are of opinion that the recognition of the powers of a Dominion to legislation with extra-territorial effect should not be limited either by reference to any particular class of persons (e.g., the citizens of the Dominion) or by any reference to laws "ancillary to provision for the peace, order, and good government of the Dominion" (which is the phrase appearing in the terms of reference to the Conference).
We regard the first limitation as undesirable in principle. With respect to the second, we think that the introduction of a reference to legislation ancillary to peace, order, and good government is unnecessary, would add to the existing confusion on the matter, and might diminish the scope of the powers the existence of which it is desired to recognise.
They recommend a declaratory clause—I emphasise that phrase:—
It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.
On paragraph 43 the query may be put why did we recommend that either a declaration or an enactment should be passed by the Parliament of the United Kingdom. If there is any doubt on that point it can be easily explained. For our own purposes we would only require to pass in this Parliament legislation of a positive type. But in order to avoid conflict of laws, certain of the Dominions desire that the British Parliament which previously had in relation to these Dominions when Colonies a restrictive power should make it clear that that restriction was being taken away. The report having to be framed to meet the wishes of all concerned, although except for the declaratory part of it we were not concerned, we agreed to the recommendation that the clause in the terms set out in paragraph 43 should be passed.
Part V is the critical portion of the report. It deals with the Colonial Laws Validity Act. It recites the history of that enactment, the circumstances under which it came to be passed and its effect, and summarises in Paragraph 49 as follows:—
"The restrictions in the past served a useful purpose in securing uniformity of law and co-operation on various matters of importance: but it follows from the Report of the Imperial Conference of 1926 that this method of securing uniformity based as it was upon the supremacy of the Parliament of the United Kingdom, is no longer constitutionally appropriate in the case of the Dominions, and the next step is to bring the legal position into accord with the constitutional."
The recommendation in paragraph 50 is:—
"We have, therefore, proceeded on the basis that effect can only be given to the principles laid down in the Report of 1926 by repealing the Colonial Laws Validity Act, 1865, in its application to laws made by the Parliament of a Dominion, and the discussions at the Conference were mainly concerned with the manner in which this should be done. Our recommendation is that legislation be enacted declaring in terms that the Act should no longer apply to the laws passed by any Dominion."
That is carried further in paragraph 53:—
"We recommend that effect be given to the proposals in the foregoing paragraphs by means of clauses in the following form:
(1) The Colonial Laws Validity Act, 1865, shall cease to apply to any law made by the Parliament of a Dominion.
(2) No law and no provision of any law hereafter made by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England or to the provisions of any existing or future Act of Parliament or to any order, rule or regulation made thereunder, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion."
The Conference also adverted to the difficulty that is set out in paragraph 54 and indicates the solution:
With regard, lastly, to the problem which arises from the existence of a legal power in the Parliament of the United Kingdom to legislate for the Dominions, we consider that the appropriate method of reconciling the existence of this power with the established constitutional position is to place on record a statement embodying the conventional usage. We therefore recommend that a statement in the following terms should be placed on record in the proceedings of the next Imperial Conference:—
It would be in accord with the established constitutional position of all members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United Kingdom shall extend to any Dominion otherwise than at the request and with the consent of that Dominion.
We further recommend that this Constitutional Convention itself should appear as a formal recital or preamble in the proposed Act of the Parliament of the United Kingdom.
Paragraph 55 is somewhat similar, and in it again there appear the differences in position of those members who were associated with this Conference, differences that arose in this case from constitutional development. The end of this clause is that no law hereafter made by the Parliament of the United Kingdom shall extend to any Dominion otherwise than at the request and with the consent of that Dominion. Certain Dominions believe that, from their point of view, there is value in reposing in the British Parliament the power to pass laws for them at their request and with their consent.
We do not believe that that is right. We believe that it will always be impossible for us, and we know it is unconstitutional at the moment in relation to this State. That paragraph, relating generally to the Dominions, must, in its relation to the Irish Free State, be read in conjunction with Article XII of our Constitution. That Article enacts that the sole and exclusive power of making laws for the Irish Free State is vested in the Oireachtas. It follows that the last two lines of the declaration of paragraph 55 have no application to this State; at least they cannot have any application to this State as long as Article XII remains as it is. It would be quite impossible, as matters now are, that this State should request or consent to the British Parliament passing laws that would hereafter bind this country. The only way in which we could take over for ourselves the provisions of any British laws that we thought were acceptable to the people of this country would be by passing the same provisions as a piece of legislation through this Oireachtas. In that case the legislation derives its authority, not from the fact that an Act had been passed by the Parliament of the United Kingdom, but through the sole fact that the legislation received the assent of the Oireachtas here.
At that part of the Conference's proceedings, it had become clear to everybody that the results, so far, of the Conference could be summed up in the phrase that the powers of the Parliament of any of the Dominions were equal to the powers of the Parliament of the United Kingdom, that they were subject to no limitation which was not upon the Parliament of the United Kingdom.