Would the President say what is the explanation of the difference in the phrase used in Section 1 as compared with Section 2? Section 1 provides that diplomatic representatives shall be appointed on the authority of the Executive Council as if that were an important function which ought to be exercised only by the Executive Council. In Section 2, it is provided that certain international agreements shall be concluded by or on the authority of the Executive Council. Would the President say who, it is intended, shall execute these international agreements on the authority of the Executive Council? Why is it possible that somebody other than the Executive Council can execute them?
Executive Authority (External Relations) Bill, 1936—Committee Stage.
Section 1 agreed to.
SECTION 2.
Question proposed: "That Section 2 stand part of the Bill."
When speaking on the Second Reading of the Bill, I made clear portion of the difficulty which apparently Deputy Norton has. In this Bill it is made clear, as far as we are concerned, where authority lies. It is the authority. That is a very different thing, in my opinion, from advice or anything of that sort. We are making it clear that there is authority somewhere, and that the authority lies with the Executive Council. In the case of diplomatic representatives, some Deputies may not be aware of what the custom is, and perhaps it would be no harm if I were to explain what it is. Suppose, let us say, we want to appoint a diplomatic representative in Washington. The Minister for External Affairs draws up a certain letter of credence for our Minister to the head of the State in Washington, that is the President of the United States. That is sent for signature to the King. The appointment is made in the sense that it is on the authority of the Executive Council. According to this, that is the basis of the appointment. The source of the authority of the appointment—the instrument itself, the document, is signed by the King—of the person that is the representative is provided for here in this final section. That is why you have "appointed on the authority of". If it were "appointed by", then it would appear on the face of it appointed by the King. That is why you have here not the word "by" but "on the authority of". Sub-section (2) of Section 1 provides that the consular representatives of Saorstát Eireann in other countries shall be appointed by or on the authority of the Executive Council. There are two methods by which that can be done. They can be appointed in the same way as diplomatic representatives are appointed when, more or less, the same instrument is used, based on the same authority, or there can be direct appointment from the Executive Council without any reference to the King at all.
Now, the next has reference to international agreements. Certain international agreements are signed, and will be signed again. They are concluded on behalf of the State and they are executed on the authority of the Executive Council. That is, in effect, that the Executive Council will select and name and instruct the plenipotentiaries, but their authority would actually be signed by the President. That is provided for in the sections where it was set out that they would be signed by the King. As regards the words "shall be concluded by or on the authority of", there are clearly two sorts, one of the class I have indicated and another class which have been very frequently made use of; those are direct governmental agreements, in which the King would not appear at all.
Are we on Section 1 or Section 2?
On Section 2. Section 1 has been agreed to.
It was agreed to before I heard of it. However, the same point arises on this section as would have arisen on Section 1. I would like to know from the President if he will agree with me that the procedure we are laying down now in Section 2, and the procedure which we have laid down in Section 1, is the identical procedure which has existed for some years past in this country, with the possible exception that we are providing that the appointment which shall be made on the authority of the Executive Council used, I think, be done on the authority of the Minister for External Affairs. With that possible exception, we are merely declaring what has been the existing practice for many years. I would like to know if the President will agree with that statement.
If the Deputy is anxious to refer to Section 1, the Chair will not raise any technical objection.
Thank you, Sir, but the same point arises on Section 2 and that will suffice.
In answer to the Deputy, I will say that, in so far as I know, the procedure was similar, but it was on the advice of the Executive Council all the time. Now what we are making clear is this. There are questions about authority and the sorts of authority, and it is now made quite clear where the authority really lies. We are getting rid of certain constitutional fictions here by making it clear.
There is no fiction about authority.
I cannot see much distinction between the use of the words "advice" and "authority." We never recognised, when the King acted on the advice of either the Executive Council or the Minister for External Affairs in reference to international matters, that he was exercising any authority other than the authority of the Irish people. I do not know that there was any residue of doubt about that position from the time this matter was taken up in 1926, when the whole question of international procedure was very fully gone into and settled. I think the practice was as is declared in Sections 1 and 2. I deduce from what the President stated that the only distinction is that he wants to make clear that the authority comes from the Executive Council and not from the King. So far as the practice was concerned, as laid down and established by a large number of precedents, it was perfectly clear that every authority that came in the matter of appointments and other things was from the Irish people, through the Executive Council or the Minister for External Affairs. I do not think there is any particular distinction in these sections as they are drafted from the practice that existed.
I said already that the main purpose was to make clear, beyond all shadow of doubt, where authority resided. The point is that there was executive authority vested in the King and a number of other things were in the Constitution, but they disappear now. I am making clear that the executive authority resides in the Executive Council definitely, the body elected by the representatives of the people. If the Deputy wants to have it his way, I am not going to argue.
We are each having it the same way—that is my point.
I do not agree, from the point of view of fundamentals. From any knowledge I have, there was quite a different fundamental theory at work; even though in practice it worked out the same, there was a different fundamental theory at the period when the Deputy, as former Attorney-General, was operating, to the theory we are operating here. If the Deputy wants to interpret it as being the same as the old practice, I leave it to him.
I am not particularly interested in theories; I am interested in results. I think the President and myself are in agreement that the same result was achieved without in any way derogating from the functions of the Executive Council or the status of this country. Arising out of what the President has said, that he wishes to have a particular theory of his own made clear on this Bill, I think he might direct his attention to one omission from the Bill, if he wishes to have a new theory formed of the basis or source of authority in these matters. I wonder why has the point about Full Powers been left out of this Bill? We have here the consular and diplomatic representatives and international agreements. International agreements are negotiated through the medium of negotiators. If there is an international agreement to be negotiated between this country and say France, if it is to be a Heads of State agreement, then a document which is known as Full Powers is executed under the hand of the King. That document is left out of this particular statute. It may be that the President has announced his intention that the purpose of this section and the previous section is to make statutory a particular theory of the whole matter. The end he wishes to achieve will, perhaps, be brought into some doubt by the omission of such a very fundamental document as Full Powers, issued to plenipotentiaries.
I hold in my possession the first Full Powers document that was issued by the King in this country. We thought we were great boys when we got it for the first time. It was the first time that Full Powers were issued to a plenipotentiary from this country and they were limited in their operation to this country. The late Kevin O'Higgins and myself got the documents at the same time for the purpose, above all things, of negotiating a naval treaty in Geneva. That was just ten days before he was murdered. It was a remarkable achievement from the point of view of our international status. That practice that was put into operation for the first time in the Naval Conference at Geneva in June, 1927, was followed ever since and it was admitted, when our plenipotentiaries were negotiating a treaty, that Full Powers were issued by the King, acting on the advice of the Executive Council here with the authority of the Irish people, and limited in operation to this country.
Deputies who are not familiar with the technicalities of these matters will perhaps know, or learn from some source, that previous to this practice the idea was to give Full Powers to the British representative and those Full Powers were issued by the King on the advice of the King's Ministers in London and they covered the whole of the Commonwealth of Nations, thereby authorising the representative of Great Britain during the negotiations to act for the whole Commonwealth under the eyes of the other nations with whom the negotiations were taking place. That procedure was stopped as a result of the Conference of 1926 and Full Powers were issued for the first time in 1927 to the late Kevin O'Higgins and myself. Why is that very essential document omitted from this statute if a new theory of the whole business is being issued?
Is it not covered by Section 2 and 3 together?
I regret to say that I do not think it is. The point I am making is that in my view, it would. My view is that Sections 1 and 2 are entirely unnecessary, that you continue the existing practice and that there is no necessity whatever for those sections; but if you want to have a new theory, and if in carrying into effect that theory, and making it statutorily effective, you provide for certain types of functions, that is to say, the appointment of diplomatic representatives and consuls and the concluding of international agreements, and leave out one vital thing like Full Powers, you are casting considerable doubt on your own theory. I am raising the point for the benefit of the President's theory and not for my own benefit, because I think that in practice the matter can go on as before.
Is it not clear that in Section 2 you have the conclusion of international agreements—I daresay that they would have to be concluded by plenipotentiaries who had got full powers—and when you take Section 3 with it, there can be no doubt.
"Concluded," not "negotiated."
I quite agree. They could hardly be concluded before they were negotiated.
"Concluded" is the word in the Bill.
The President is caught out.
There is power to negotiate and conclude, in any case. I have no doubt whatever that the matter is covered. You could set it out explicitly if you wanted to, but it is not necessary.
Would the President consider putting in the word "negotiated" before "concluded"?
It does not seem to be necessary.
It is not necessary and neither is Section 1 or Section 2.
I think Sections 1 and 2 are valuable.
The reason there is no necessity for any great consideration for Sections 1 and 2 is that they do not make any change.
I take it we all feel that Sections 1 and 2 make no change in substance, but until I heard Deputy Costello I felt some nervousness as to whether they might not make a change in form that would be offensive to the people on the other side, and possibly to the King. I should like to have it clear from the experience of the two ex-Ministers for External Affairs on the front Opposition Bench at the moment, and Deputy Costello, whether we can, in their opinion, be confident that these two sections will not cause trouble.
Personally, I had no communication with London last night, so I do not know what happened there. Deputy Norton has asked a question and I do not think he has got a specific answer to it yet. He ought to know, if he does not know already, that there are certain appointments in respect of which the warrant of appointment will start with the word "We," and go on to a royal person who makes the appointment. There are certain other appointments that will not start with the plural of royalty. I do not know whether the Government have adopted the plural "We" for themselves yet—it did not always apply—but these other people will be appointed by a document which will say "I, so and so," and the appointment will be made by an ordinary commoner. That is the distinction between the two types of things put in a concrete way. We are accepting them and we are accepting them without any qualm because it has been the position, and because the position has always been based on the theory that what either of the documents starting with "We" or "I" did was done by the Executive Council.
Question put and agreed to.
SECTION 3.
(1) It is hereby declared and enacted that, so long as Saorstát Eireann is associated with the following nations, and that is to say, Australia, Canada, Great Britain, New Zealand, and South Africa, and so long as the king recognised by those nations as the symbol of their co-operation continues to act on behalf of each of those nations (on the advice of the several Governments thereof) for the purposes of the appointment of diplomatic and consular representatives and the conclusion of international agreements, the king so recognised may, and is hereby authorised to act on behalf of Saorstát Eireann for the like purposes as and when advised by the Executive Council so to do.
(2) The king referred to in the foregoing sub-section of this section shall, for the purposes of that sub-section, be the person who, if His Majesty King Edward the Eighth had died on the 10th day of December, 1936, unmarried, would for the time being be his successor under the law of Saorstát Eireann.
I move my amendment No. 1a. I spoke about the purpose of this amendment last night and to-day——
We have no copies of this amendment.
There could not be copies. I could not get a copy for the Deputy.
I am not asking the Deputy to supply them, but we have not got copies of the amendment which you are asking us to pass judgment upon.
I will read it to the Deputy. My amendment is:
In Section 3, sub-section 1, line 30, to delete the words "their co-operation" and to substitute therefore the words "the free association of the members of the British Commonwealth of Nations."
Sub-section (1) of Section 3 provides:
.... so long as Saorstát Eireann is associated with the following nations, that is to say, Australia, Canada, Great Britain, New Zealand and South Africa, and so long as the King recognised by those nations as the symbol of their co-operation continues to act....
I propose to substitute for the words "their co-operation," the words of the Imperial Conferences and the words that are embodied in the Preamble to the Statute of Westminster, as a result of these Imperial Conferences, so that the sub-section would read:
.... and so long as the King recognised by those nations as the symbol of the free association of the members of the British Commonwealth of Nations continues to act....
I spoke at some length to-day about the effect of those words "symbol of their co-operation" and I drew the attention of the House to my conviction that the members of the British Commonwealth of Nations do not, in fact, and as a fact, accept the Crown as the symbol of their co-operation. The Crown is accepted as the symbol of their freedom and their free association, and was so declared to be at the Imperial Conferences in 1929 and 1930 by agreement between all the States members of the British Commonwealth of Nations. That was the function of the Crown as a link with the family of nations known as the British Commonwealth of Nations. There was never, to my knowledge, any acceptance of the Crown as the symbol of co-operation. There was, as I explained here earlier to-day—and I do not want to go over the ground again—accepted, in agreement between all the States members, the principle of co-operation and consultation substituted for the old dominion and subjection, or, rather, the dominion and control exercised over the old members of the British Empire through the medium of the Imperial Statute and by the instrument of the Dominions Office and British Ministers. They were swept away by the Imperial Conferences and the Statute of Westminster.
The Imperial Parliament has no longer any power to pass laws governing the actions of the States members of the Commonwealth. The Colonial Laws (Validity) Act is repealed and the King, in his relation to each member in so far as he has functions in reference to that member, acts solely on the advice of the Executive Council of each State. In substitution for the old form of dominion exercised by the Imperial Parliament and Ministers—as it was then called the British Empire, before the British Empire was fundamentally changed into the British Commonwealth of Nations by the late Kevin O'Higgins and Deputy McGilligan—the principle of co-operation and consultation was accepted, and that in effect meant that each State member of the British Commonwealth of Nations was free, sovereign and independent and could do what it liked. This Legislature was completely sovereign and could pass any Act of Parliament having extra territorial effect; in other words, this Dáil could pass an Act, if it was so foolish as to do so, providing that English people in England should do certain things. That would be a good thing and a good exercise of their powers; it would be futile and foolish to do it, but it could do it.
They have power, therefore, under the new scheme of things, to do all sorts of acts which might, in the view of a State member of the Commonwealth, affect its rights and interests, and accordingly it was said that as we were in this free association, we ought to have consultation and cooperation—co-operation in matters of common concern and consultation in matters where the rights of one or other of the nations might be affected by action about to be taken. That was an inter-governmental matter, an inter-State matter. It had nothing whatever to do with the Crown. The Crown was declared as a result of the fights, the very strenuous efforts, in 1929 and 1930 to be the symbol of the freedom of the association. That is the symbol which is accepted. The Crown was never accepted as the symbol of co-operation. If this phrase stands in the sub-section as it is drafted at the moment, it will be introducing as a fact something which is not a fact, something which has never been accepted by any of the States members of the Commonwealth of Nations. It will render, in my view, the section futile and it may possibly have serious repercussions in the future on international agreements.
I was just wondering whether we could not get a compromise. The only point of substance I am anxious about in what the Deputy has said is the question whether co-operation might imply possibly a sort of continuous co-operation and not one of voluntary co-operation from time to time as would be decided. Perhaps if we inserted "association" instead of "co-operation," it might satisfy the Deputy.
Why not put in the word "free" also?
Because we do not want to do it.
But it is the phrase which has been accepted by those countries. There is no reaction from this on ourselves.
The President does not appreciate what I have said, that this is the phrase recognised by these other countries.
We are dealing with conditions which we ourselves recognise.
Why try to bind them by something which they have never accepted?
Whatever doubt about its being regarded as a symbol of association——
A symbol of free association.
They have never sanctified any other phrase. What is the objection to the word "free"?
I am not certain that in all cases it is free.
And you propose to define it for these other States?
I do not propose to define it.
Even though they accept that phrase themselves?
It seems to me that if you insert the word "association" it will get over any objection to "co-operation." I think possibly they are associated for the purposes of co-operation in certain regards. I am prepared to substitute the word "association" for "co-operation," but I shall not go any further.
I should like to know, if anybody in South Africa could listen in to the proceedings of this House, what they would think of a statement like that, that their association is not free, but forced.
I have said nothing of the kind.
You have implied it.
I do not propose to accept the President's suggestion, because it would stultify everything we ever did. It would stultify the decisions of all the conferences we ever attended.
I think the President has misunderstood the position. Personally, I would prefer to have the Crown as the symbol of the free association so long as these other States recognised the Crown as the symbol of free association. Whether the President does or does not recognise that association as free, there is the fact that these countries recognised the Crown as the symbol of free association. Personally, I would prefer that form so long as the Crown continues to be recognised as the symbol of free association by these other States. The President says it is not free, but the question is whether these other countries recognise the Crown as the symbol of free association. These countries have solemnly affirmed that they recognise that fact, and the amendment is merely in consonance with that recognition.
May I suggest that the President has constituted himself a considerable menace to this country since he went on the rampage for the last five years to strike the shackles off our limbs, because in striking off the shackles he has succeeded in striking off our limbs also. If he is going now on a rampage around the world to strike the shackles off Canada, New Zealand and other countries and inflict on them the same kind of suffering he has inflicted on this country, I think he will become a world menace. These countries believe themselves to be free. This country knew itself to be free and the net result of the President's operations is that our people have suffered very severely. Let me urge on the President that he should confine his depredations to this country. I would urge him to desist from rampaging around the world like the Four Horsemen of the Apocalypse, because if he does, well may these other countries cry "Lord, defend us from our friends."
May I say that the words which I suggest appear in the preamble to the Statute of Westminster?
I am prepared if there is any danger, or if there is anything implied in "co-operation" which might not be accurate, to accept the word "association." I see no reason why we should go any further.
Is it not apparent to the President that, if he accepts the wording "symbol of their free association" and if anything is ever done to make the association less free, he will be in a position to repudiate the Crown?
We are paralysed because the President does not believe that South Africa is free.
I do not want to say anything about that.
You have implied it. They have themselves sanctified the use of the phrase "symbol of free association." You are asking them to withdraw that.
I am not advocating that in any way whatever. I am not interfering with them in their domestic affairs. I simply say that we shall insert the word "association."
There will have perhaps to be a conference arising out of this series of proposals. How are we going to have anything agreed to by these people when we refuse to accept the phraseology adopted by them? The implication of the word "free" has been dealt with by the President. It is a criticism by the President of the national activities of the people in these countries.
Quite the contrary. I do not want to do anything that would interfere in the domestic affairs of these countries just as there would be objection to their interfering in internal affairs here. I see no reason why I should go out of my way to interfere in that way.
There is no fog in South Africa.
I think there can be no objection whatever to the word "association," if the word "association" is accepted instead of "co-operation."
We will not declare it to be a free association although they have accepted it to be that!
That is not my affair.
It is quite clear that when this phrase was put in the constitutional position was not fully adverted to, because there is a very distinct difference between those matters in reference to which the Commonwealth States co-operate with one another and those matters in which they consult one another. Here you are confining the symbol to the matters in which they co-operate. In fact, the symbol of the Crown is not the symbol of freedom of co-operation. It is the symbol of the free association and was declared to be such at the Imperial Conferences of 1929 and 1930 and in the Statute of Westminster. I beg leave to withdraw the amendment.
I hope that Deputy Costello will press the amendment to a vote.
My only reason for withdrawing it is that I cannot accept the President's suggestion to insert "association" instead of "co-operation."
May I move now to delete the word "co-operation" and to insert instead the word "association"?
Is that in order?
After Deputy Costello's amendment has been disposed of, it will be in order.
At the moment my amendment is not disposed of. I shall put it to a vote.
The Chair gave an undertaking to accept amendments in the course of the discussion. This amendment will be in order after Deputy Costello's amendment has been disposed of.
The President's amendment would not be in order at the moment but it may be subsequently.
Not at the moment. Is the Deputy pressing his amendment?
Yes.
I should like to say, Sir, as against the amendment, that I do not think we ought to import here into our Statute any phrases that are taken from other Statutes which, I think, the Deputies on the opposite benches know, did not run here, and I think, particularly, that we ought to be careful in using any words that might possibly interfere with, or seem to encroach on, domestic politics in any other country.
Sir, I could not possibly let the President's statement pass without saying something about it. I refer to his suggestion that we are importing these words into the Statute because they are in the Statute of Westminster. The Irish Delegation in the Imperial Conferences of 1929 and 1930 were responsible for having these words put in there. They are our words and they were put in there because they were agreed to by all the members of the British Commonwealth of Nations. They are put forward by me, and mentioned by me, as showing that the Dominions themselves accepted them and that we were stating here in this Bill something about the Dominions, the best evidence of which that you could get was to be found in the Statute which the Dominions agreed should be passed in the Imperial Parliament, not as law for them, but as law for Great Britain. The phrase does not derive its origin or its force from the Statute of Westminster.
My answer to that is that there are other phrases in it to which I object and to which, I think, our people will object. We are using a phrase which has no special connotation, which is not related to other phrases. I agree that the word "association" would be better than "co-operation," and we are putting in here the most colourless phrase that we could use in connection with the matter from the point of view of other countries, and we think that that is the best thing to do.
The President brought in a Bill in which he wanted to have imposed on these five Dominions —not on ourselves—a phrase to which they had never assented: "Symbol of co-operation." The President can search all the documents and he will not find any occasion upon which any of these nations, and certainly not the group of nations, recognised the King as the symbol of co-operation. Apparently, he considers it no interference with these countries to put this phrase into our Statute which they never accepted, but it is interference to put in there a phrase that they had got passed and which they did accept in the Statute of Westminster. I cannot understand the President's standpoint, and whatever might be said for putting over the other phrase, without any other explanation than has been given, the idea that we should put in now this phrase of "association," taken with the context of the President's assurance that he is not sure that these other nations are free or freely operating in that association, is surely as big an insult and as big a piece of impudence as any person occupying the position of President of a State could offer.
And every time the Deputy gets to his feet his sole purpose seems to be to make trouble between this State and other States. My statement was put in such terms as not to give offence to any other States, and the Deputy's whole effort seems to be to make it an offence. I say that it is despicable for a Deputy who was formerly Minister for External Affairs to conduct himself in this House in that fashion. What I said here, and what was put in here, was a thing that could cause offence to nobody. What we put here was that, so long as there was co-operation— and undoubtedly there is co-operation —it is regarded as a symbol of their co-operation.
It never has been.
The Deputy is not by any means infallible. He may occasionally stand up here and pontificate, but he is not infallible.
I have the documentation here, and the President has not.
I am not compelled to accept any of these phrases. I am using the phrase to express an idea, an idea which is to be embodied in our own Act, and I do propose afterwards, when, as I hope, this other amendment will be defeated, to insert the word "association," but I will not have the other taken in its particular context.
The President referred to me as a former Minister for External Affairs. He is the present Minister for External Affairs and he referred to my conduct as despicable and low. He is the person whose conduct is despicable and low—and the conduct that I have learned to expect from the President is contained in the application of these two epithets. He says that I have tried to make trouble. Who first used the phrase that this association was not free? I did not. The President did. I have not asserted that the South Africans are in any way lacking in nationalism. I have never said that the South Africans have been forced into this association —an association they did not like. The President has. Which is the despicable person? I have said nothing against these people coming into this association. The President has. If there is any fouling of the international relations as between these peoples, who is responsible for it? The President says that these peoples are not free and that they are living in a compelled association. Is that the way to have good relations? I proposed to put in a phrase that has been accepted and sanctified by international agreement. The President says that I am not infallible. I do not pretend to be infallible, but I have a document here containing the phrase that, with their own consent, was brought forward and sanctified by Act of Parliament. The President can give me no documentation in regard to the use of the phrase he puts forward, but he will pontificate, nevertheless.
I should like to say a few words, Sir, in connection with this proposal—this very reasonable proposal, as it appears to me—of Deputy Costello's—and might I remark, in this connection, that the President himself has pleaded, on several occasions, for a little more co-operation on the part of Deputies. I should like to plead for a little more co-operation in this matter. As a humble member of this House, I think the President's conduct on this occasion is deplorable. What is the difference between accepting Deputy Costello's amendment of "free association" and that of "association" proposed by the President? Is it not a difference between tweedledum and tweedledee. I think it would be well if the President would just take example by the action of the Attorney-General last night, who was man enough to admit that there was something in the point made by Deputy Lavery and who agreed with the views expressed by Deputy Lavery. If the President would take the Attorney-General's example, there would be none of this trouble here to-day at all, and the President's reputation would be enhanced. Undoubtedly, it was stated here publicly in this House that, as far as the Attorney-General is concerned, his reputation has been enhanced by his action, and as far as my personal view is concerned—it may not count for much—I certainly appreciate the action of the Attorney-General last night, and I think the President might very well follow his example here to-day and accept the amendment proposed by Deputy Costello because there is absolutely no difference between his amendment and that proposed by the President. If you want co-operation, it is very easy to get it.
In connection with Deputy Costello's amendment, I am putting the question that the word "their" stand and "co-operation" be deleted.
We do not understand that form of amendment, Sir.
The amendment is that the words "their co-operation" be deleted and that something be substituted therefor. In order to save subsequent amendments, it is usual to put the question in the form proposed. Accordingly, I am putting the question that the word "their" stand.
On a point of order, Sir, may I submit that it is not exactly the same in practice? I submit, with all respect, Sir, that the practice has been that, where an amendment is moved to delete certain words, the Chair, for the reason given by yourself, puts the question, "That the words proposed to be deleted stand." It is not quite the same thing. I suggest that the words of Deputy Costello's amendment should be put in a positive way.
I should like to argue further that in dealing with an amendment of this importance there is very little object in saving time, and it would be more satisfactory if the question were put, "That the words proposed to be deleted stand."
If all the words proposed to be deleted stood, the second amendment could not be moved.
If the word "their" stands, can I move to put in "free association" afterwards?
Is not the phrase in Deputy Costello's amendment?
No. We do not know whether it is "the British Commonwealth of Nations" is the objection, or "the free association."
I shall put the question that the word "their" stand.
Might I submit that if the amendment is put in a positive form we are in the same position as we were in before, and does it not follow that other amendments would be acceptable to you? Deputy Costello proposes to delete more than the word "their."
The amendment is to delete the words "their co-operation" and substitute therefor the words "the free association of the members of the British Commonwealth of Nations." If that is put to the House, and voted on and defeated, are we not then back to the text of the Bill, and cannot other amendments be moved?
The House would have decided to accept the words in the section.
The amendment is to delete the words "their co-operation."
I am putting the question that the word "their" stand.
With all respect, you are putting what is not before the House.
I should like to understand the position.
The word "co-operation" is proposed to be deleted, the word "their" to stand.
And I am suggesting with all respect that the Chair is proposing to do something that is not before the House.
I submit that none of us can have any shred of interest in voting on the question whether the word "their" stands or not. I do not believe that anyone in the House has any interest in whether or not the word "their" should stand, whereas we would all vote with a great deal of interest on the positive proposal that Deputy Costello's words should be substituted. Is it really not feasible to submit to us that proposition, as a positive proposition—that those words should be substituted?
Might I make one appeal to you, Sir? I regard this as of vital importance. In view of that fact I would ask you to put the amendment positively. It will preserve everybody's rights, and give me perhaps some little satisfaction.
Now we know why you want it.
Would the President say how he knows why I want it? I would be very interested to know the mind of the President. It would certainly be something worth putting on the records of this House.
You have just told us.
To satisfy the Deputy I will put the question in the form "that the amendment be made."
Question put.
The Committee divided: Tá, 25; Níl, 69.
Tá
- Anthony, Richard.
- Beckett, James Walter.
- Brennan, Michael.
- Brodrick, Seán.
- Coburn, James.
- Cosgrave, William T.
- Costello, John Aloysius.
- Dillon, James M.
- Doyle, Peadar S.
- Finlay, John.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- MacDermot, Frank.
- McGilligan, Patrick.
- Morrissey, Daniel.
- Mulcahy, Richard.
- O'Higgins, Thomas Francis.
- O'Leary, Daniel.
- O'Mahony, The.
- O'Reilly, John Joseph.
- Reidy, James.
- Rice, Vincent.
- Roddy, Martin.
- Rowlette, Robert James.
- Thrift, William Edward.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Sean.
- Breathnach, Cormac.
- Briscoe, Robert.
- Clery, Mícheál.
- Concannon, Helena.
- Cooney, Eamonn.
- Corbett, Edmond.
- Corkery, Daniel.
- Corry, Martin John.
- Crowley, Fred. Hugh.
- Crowley, Timothy.
- Daly, Denis.
- Derrig, Thomas.
- De Valera, Eamon.
- Doherty, Hugh.
- Donnelly, Eamon.
- Dowdall, Thomas P.
- Flynn, Stephen.
- Murphy, Patrick Stephen.
- Neilan, Martin.
- O'Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Dowd, Patrick.
- O'Grady, Seán.
- O'Reilly, Matthew.
- Pearse, Margaret Mary.
- Rice, Edward.
- Ruttledge, Patrick Joseph.
- Fogarty, Andrew.
- Geoghegan, James.
- Gibbons, Seán.
- Goulding, John.
- Hales, Thomas.
- Harris, Thomas.
- Hayes, Seán.
- Houlihan, Patrick.
- Jordan, Stephen.
- Keely, Séamus P.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kennedy, Michael Joseph.
- Killilea, Mark.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- McEllistrim, Thomas.
- MacEntee, Seán.
- Maguire, Ben.
- Moane, Edward.
- Moore, Séamus.
- Moylan, Seán.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Richard.
- Ward, Francis C.
Tellers—Tá: Deputies Doyle and O'Leary; Níl: Deputies Little and Smith.
Question declared lost.
The next matter is amendment No. 1 on the White Paper.
I am not quite clear about the amendment I have to move. I just want to know. There is a question of a number of amendments. There is one amendment that I told the Chair I did not intend to move. The only amendment I propose to make to Section 3, sub-section (2) is to delete certain words.
Is the President now withdrawing the notice which he gave to the House a few moments ago? He proposed to move an amendment deleting the word "co-operation" and inserting therefore the word "association."
The President did not move the amendment. It was, therefore, not in the possession of the House.
He is not moving it now?
No.
He is not moving it yet. It would cause international trouble.
I am moving amendment No. 1 to Section 3:—
In sub-section (2), page 2, to delete all from the words "The King" in line 37 to the word "eight" in line 40, and substitute the words "Immediately upon the passing of this Act, the instrument of abdication executed by His Majesty King Edward the Eighth on the 10th day of December, 1936 (a copy whereof is set out in the Schedule to this Act), shall have effect according to the tenor thereof and His said Majesty shall, for the purposes of the foregoing sub-section of this section and all other (if any) purposes, cease to be King, and the King for those purposes shall henceforth be the person who, if His said Majesty".
What is the meaning of the words "all other (if any) purposes"?
While Deputy Dillon was absent I spoke on that matter. I indicated that there were certain words raised last night in which there might be some nook or corner which Edward VIII or his disembodied spirit might be hovering around to get possession of. It was to make quite certain that, if there was any such nook or corner, it would be taken possession of, if I might put it that way, not by Edward VIII, but by his successor.
Does it include such a thing as a declaration of war? Is it intended to include such a thing as a declaration of war?
It is intended, as many phrases of that sort are, when you have not been able to get a complete examination in detail of each separate item that if there was any such you can deal with it. It is intended as an omnibus clause.
Is it intended to exclude the declaration of war?
It is intended as an omnibus clause.
Is the President satisfied that this is an omnibus clause and that the doctrine of ejusdem generis would not in fact cut down the scope of the phrase, “all other (if any) purposes”?
In connection with that, has any Government amendment been introduced to the Title of the Bill?
No.
Is there any limitation by reason of the ejusdem generis doctrine?
I said this morning that Deputies will be able to argue these points.
It is not a question of effect, but of intention. The phrase is introduced with an intention. The President may not be able to declare what is the effect that will be found to be produced by these words, but he ought at least to know what he means. I doubt it though.
I have put a question. Is there any answer to it?
What is the intention? Is it the intention to have the words limited by the phrase?
The Attorney-General
These words are really akin to general words in any instrument — in a conveyancing instrument, if I might use that analogy. Many Deputies are familiar with what are called general words that come under that phrase. There is, of course. the doctrine of interpretation known as the ejusdem generis rule—that it has to be read in the context. The general words put in seem appropriate and I must honestly confess that I cannot think of any better form of general words.
To carry everything?
The Attorney-General
The President intimated to-day clearly what the purpose of the words is. I say again that I cannot think of any better form. Although there has been criticism of these words, although there have been sneers at the words, no Deputy has an alternative form. Surely no Deputy of responsibility will suggest that the words are novel in a statute or novel in an instrument. Surely the words are practically common form words.
I suggest leaving out the words "if any."
The Attorney-General
That is a suggestion.
Is it accepted?
No.
The Attorney-General
Deputy MacDermot smiled when making the suggestion. I must say that, unlike the President, I treated the suggestion as jocular, and welcomed it on that account because it was meant in the best vein. Surely he is not serious. What is the Deputy's objection to the words in brackets?
I maintain that there are other purposes. I was anxious to see whether the Government shared that view and I smiled, not because the proposal was jocular, but in anticipation of the Attorney General's reply.
I will give the Attorney-General a concrete proposal. Add after the phrase as it stands there "all other (if any) purposes," the words "whatsoever, whether within the scope of the foregoing purposes or not." Then you get the difficulty of the ejusdem generis doctrine.
The Attorney-General
The Government made this Bill a good deal longer than it was yesterday. It must not be like a concertina, drawn out and out and out. I am afraid I could not advise the Government to accept the formula that Deputy Costello suggests. I think it would be only expressing the same thing in a still greater number of words.
I have not the least interest in whether he accepts the proposal or not. I drew his attention to a difficulty of interpretation that might arise. If he thinks there is no difficulty, that is his responsibility. I think there is. I made a suggestion as to how that difficulty could be got over, but I am not in the least concerned as to whether it is accepted or not. I may on another occasion utilise the situation.
The Attorney-General
I think I have conceded that there is the rule of interpretation that is suggested from the other side, but I do not see any danger lurking in it for the purposes of the section. I have not heard or, if I have heard, I have not appreciated, what is the dangerous effect that lurks in the application of that rule ejusdem generis to the particular words.
Nobody talked of any danger. We have all talked of a desire to know what the position is and what the Government intend the position to be. Suppose the Executive Council were to wish to advise King George VI to confer a peerage on Mr. Donal Buckley on the occasion of his retirement from the office of Governor-General, is it the view of the Government that the King under this Bill would have power to do that?
Let us, at any rate, have an understanding of what we are doing. The clause that is brought in, in the first part of it, is an exclusion clause, and, in the second part, a reinstatement clause. So that whatever is taken away, be it limited or extreme, the same amount is given back. If you want this phrase to be limited, will it not be limited by the application of the ejusdem generis theory or doctrine to this? It will be applied, first of all, in the matters in regard to which the abdication takes place. Then you only reinstate the same powers, whether they be limited or extreme, with regard to the next person. So that if there is limitation on the one hand it will operate when you come to reinstate; if it is wide when you take away, it will be wide when you give back. I am not concerned a great deal with the arguments because I have yet to be disabused of this idea—that irrespective of that phrase, there is vested in the monarchial institution here, as long as it continues, certain powers, and any that are not mentioned as taken away from a certain individual and given to another may remain in the individual whose complete abdication was supposed to be accepted. That would not be a proper situation or a correct one. I, therefore, think, when withdrawing powers in regard to a person who has abdicated, that people should be alert and vigilant to see that everything is extracted, and that no residue is left, because we want to hand over, inside the limitations of the scope of the title, all that but only that to the person who is substituted.
The Attorney-General
I did not treat seriously the two king theory suggested here yesterday and mentioned again to-day. Deputy Costello at one time put forward the suggestion that the legislation introduced was going to create half a king.
Half a Crown was the phrase.
The Attorney-General
That it was going to create half a Crown. Deputy MacDermot more than cancelled out that by demonstrating that it created two Crowns—four half Crowns. I remind the Deputy that there is nothing in any statute relating to the monarchy which would permit the co-existence of two kings. Whether this legislation was carried in by the Treaty, as Deputy Costello suggested to-day, or whether it was carried in by Article 73, if it has been carried in, it does not provide for the co-existence of two kings.
What does?
The Attorney-General
The Act of Settlement.
The Act of Settlement, but you have to add sub-section (2) of this clause.
The Attorney-General
If the Deputy examines it I think he will find, taking this clause and the Act of Settlement together, that he cannot find room for a plurality of kings.
Let me explain it. Last night we had King Edward. To-day we have King Edward——
The Attorney-General
You said "last night."
Is that the Attorney-General's phrase?
The Attorney-General
I was just exciting the thought in your mind.
Without disrespect, it is not very exciting. Last night we had King Edward. This morning we come and say that King Edward is here without this Bill which is going to be an Act. This morning we say:
"Immediately upon the passing of this Act, the instrument of abdication executed by His Majesty, King Edward the Eighth... shall have effect... and his said Majesty shall, for the purposes of the foregoing sub-section and of this section and all other (if any) purposes cease to be King."
The foregoing sub-section refers to appointments and agreements. It has been put here that the general phrase "and all other (if any) purposes" may be limited in application. Supposing that is the case, we have taken from Edward VIII his power for the purposes of diplomatic representation appointments, international agreements and matters of that type, but not others, and we proceed to give these powers to the new King. Suppose there are other powers. We have declared that abdication took place and for the purposes of the sub-section we subtract certain powers from King Edward VIII. If we have not subtracted them all are we in the position in our view-point that he can masquerade as a private citizen with new powers, when we are establishing the newcomer for the purposes of this Act? It is not a joke and is not jocularly suggested. There may be hereafter two royal persons in connection with this country.
The Attorney-General in one view seemed to be mistaken. He appeared to think that there was nothing in the Act of Settlement whether it came to this country via the Treaty or the Constitution to allow plurality.
The Attorney-General
The provision for William and Mary was an express provision for two.
I accept that correction. Subject to that there is no provision in the Act of Settlement for plurality of Kings. The fallacy of the Attorney-General is that in this Statute we are creating a new King. By the form of this Bill which is going through shortly we will create two Kings.
Possibly.
The Attorney-General
The Clause contains the words "cease to be King."
"For the purposes of the foregoing sub-section of this section" he shall cease to be King. That is the net point.
The Attorney-General
These are the words:
"for the purposes of the foregoing sub-section of this section and all other (if any) purposes, cease to be King."
In the application of the ejusdem generis doctrine you must have regard to the whole contents; where you have words such as these, with the sense we all attach to the words “cease to be King,” that shows the intention of the Bill and of the Legislature to be that a certain prince shall cease to be King. In my opinion, and I believe it is a rather good opinion, the ejusdem generis rule would not apply in the face of that phrase.
That is a different stand-point. Previously the Attorney-General told us that no difficulty was apprehended from its application. I assumed that the whole of the ejusdem generis application did apply.
The Attorney-General
I concede the existence of the rule. If you like I will concede the reasonableness of bringing it to mind when looking at the phrase, but once you think of the rule, and look carefully at the words, you will see that this rule of interpretation has nothing whatever to do with the construction of this Clause.
This is a matter that I am going to speak on subject to the weighty authority that may be launched upon me when I venture into it. I understand the ejusdem generis rule comes to this, that general words after particular words are governed in their understanding by those that precede them. I suggest that is a concise statement of what this doctrine is. I want to apply that to the words “His said Majesty shall, for the purposes of the foregoing sub-section” (dealing with diplomatic representatives and international agreements) “of this section and all other (if any) purposes”—if any, of the type of international agreements and the appointment of diplomatic persons. I want to get to a concrete point. Is the declaration of war governed by the purposes of the sub-section, even if enlarged by the phrase “all other (if any) purposes”? If it is, well and good. If not I am arguing on a hypothesis which may be wrong. If declaration of war is not removed would King Edward VIII who, I suggest to the Attorney-General, has only been removed for the purposes set out, on ceasing to be King still apparently retain that power? After leaving him with that power in his hands, of course under advice, we proceed to appoint another person to handle particular duties that the previous monarch had. That situation may arise. Clearly, it was not intended. Instead of saying that Edward VIII should cease to be King, why was it thought desirable to put in the phrase that he should cease to be King for certain purposes. An explicit cessor of Kingly authority in the country could have been produced by a single phrase. We have got that phrase with a limitation.
Is the word "Eight" in or out of this amendment?
It is proposed to delete all the words from the word "King" to the word "Eight." Is that inclusive? It is not in the amendment if that is the intention.
The Attorney-General
The intention is to include the word "Eight" in the deletion.
The amendment does not seek to do that.
The Attorney-General
On a matter of that sort, Deputy McGilligan is very accurate. I thank him for drawing attention to it.
Add the word "inclusive" to the amendment.
Let us not kill the King's English as well as the King.
Amendment amended, as suggested, by the addition of the word "inclusive."
Amendment, as amended, agreed to.
Question put: "That Section 3, as amended, stand part of the Bill."
On the section, it appears from the wording of sub-section (1) that if any single one of the nations there mentioned were to cease to recognise the King as the symbol of their co-operation, he would cease to have any functions as far as we are concerned. Is that what is intended? Is it intended, for example, that if South Africa went republican and severed connection with the Commonwealth, we would automatically do the same?
That is an Act of Parliament. That matter could be dealt with when such an occasion would arise.
What about the intention? Surely it is proper to ask for that.
The intention need not be explained any further than it has been.
Would the President explain it?
The Deputy has read the amendment and he can explain it.
There would not be such a fog about it if I proceeded to give an explanation.
Are we to understand that the President desires us to enact legislation on the understanding that if a country at the other end of the earth happens to take a certain course, we shall find ourselves suspended like Mahomet's coffin, not knowing what is going to happen until the Dáil is summoned by telegram and we are told the nature of the amendment which the President desires to introduce? This preposterous position is adopted so that the feelings of Deputy Moylan or Deputy Smith, of Cavan, will not be unduly ruffled by reference to the King or any suggestion that our allegiance to the King is of a permanent character. I have every sympathy with the President in trying to defer to the irrational prejudices of some of his own followers and in his frantic endeavours to persuade the more gullible of his followers that he is not doing something which he is, in fact, doing. But there are sacrifices which the State ought not be forced to make to soothe the conscience of Deputy Smith, of Cavan, or of Deputy Moylan——
Deputy Dillon should have said "the conscience, if any," of Deputy Smith.
I put it to the President that he should be able to inform us of the situation that would arise in the circumstances envisaged by Deputy MacDermot. Those Deputies who have feelings of delicacy in connection with these matters can go outside while he is talking and make a solemn vow not to read anything to-morrow of what the President said after 5.10 p.m. In the meantime, we can hear about it.
Deputy Dillon will not have the opportunity——
I shall now put the question.
Any contribution by Deputy Corry on external relations should be heard in silence.
Section 3, as amended, ordered to stand part of the Bill.
SECTION 4.
I move amendment No. 2:—
After Section 4, at the end of the Bill, to add a Schedule as follows:—
SCHEDULE.
I, Edward the Eighth, of Great Britain, Ireland, and the British Dominions beyond the Seas, King Emperor of India, do hereby declare My irrevocable determination to renounce the Throne for Myself and for My descendants, and My desire that effect should be given to this Instrument of Abdication immediately.
In token whereof I have hereunto set My hand this tenth day of December, Nineteen hundred and thirty-six, in the presence of the witnesses whose signatures are subscribed.
EDWARD R.I.
Signed at Fort Belvedere in the presence of Albert, Henry, George.
Will the President say how the document referred to in the Schedule was received by the Executive Council? Did the King give any formal intimation to the Executive Council of his intention to abdicate, or was it transmitted from the British Government?
It was done quite formally. We have the document here.
Is not that great? Why not read it?
It is in the Schedule.
There is something more than that. Let us have the covering letter. Whom did the covering letter come from?
Edward VIII to Edward I.
Where did the document come from?
The Deputy knows so much about these things that it is not necessary to answer.
When did it come?
10th December.
Is it signed by the King's own hand?
Yes, and duly witnessed.
Will these documents become part of the records of the House?
Not the actual document. That should, I think, be kept in the ordinary archives in the President's Department. A certified copy, if necessary, can be sent to the Dáil.
Amendment agreed to.
Section 4, as amended, agreed to.
Bill reported with amendments.
Report Stage agreed to.
Question put: "That the Bill do now pass."
The Dáil divided: Tá, 81; Níl, 5.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beckett, James Walter.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Seán.
- Breathnach, Cormac.
- Briscoe, Robert.
- Brodrick, Seán.
- Byrne, Alfred.
- Clery, Mícheál.
- Concannon, Helena.
- Cooney, Eamonn.
- Corbett, Edmond.
- Corry, Martin John.
- Cosgrave, William T.
- Costello, John Aloysius.
- Crowley, Fred. Hugh.
- Crowley, Timothy.
- Daly, Denis.
- Derrig, Thomas.
- De Valera, Eamon.
- Dillon, James M.
- Doherty, Hugh.
- Donnelly, Eamon.
- Doyle, Peadar S.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Flynn, Stephen.
- Fogarty, Andrew.
- Geoghegan, James.
- Gibbons, Seán.
- Goulding, John.
- Harris, Thomas.
- Hayes, Seán.
- Houlihan, Patrick.
- Jordan, Stephen.
- Keely, Séamus P.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kennedy, Michael Joseph.
- Killilea, Mark.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- McEllistrim, Thomas.
- MacEntee, Seán.
- McGilligan, Patrick.
- Maguire, Ben.
- Moore, Séamus.
- Morrissey, Daniel.
- Moylan, Seán.
- Mulcahy, Richard.
- Murphy, Patrick Stephen.
- Neilan, Martin.
- O'Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Dowd, Patrick.
- O'Grady, Seán.
- O'Higgins, Thomas Francis.
- O'Mahony, The.
- O'Reilly, Matthew.
- Pearse, Margaret Mary.
- Rice, Edward.
- Roddy, Martin.
- Rowlette, Robert James.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Martin.
- Sheridan, Michael.
- Smith, Patrick.
- Thrift, William Edward.
- Traynor, Oscar.
- Victory, James.
- Walsh, Richard.
- Ward, Francis C.
Níl
- Everett, James.
- Hogan, Patrick (Clare).
- Keyes, Michael.
- Norton, William.
- Pattison, James P.
Tellers:— Tá: Deputies Little and Smi th; Níl: Deputies Everett and Keyes.
Question declared carried.