The trail was blazed for this assertion of national authority, in so far as it could be deemed to be such, by the predecessors of the present Government, in their masterly handling of Ireland's interests at the Imperial Conferences to which I have referred. I will go this far and say that if the same spirit had been manifested by the present Government's predecessors in their dealings with these matters as has marked the diplomacy of the present Government in its dealings with Great Britain, it is safe to assume that this Bill, instead of being merely an inconspicuous termination of an anachronism, would be a potential storm centre of controversy, saturated with all the evils of suspicion, distrust and antagonism which, unfortunately, the present Government has succeeded in infusing into any inter-State relations they initiated since they came into office.
The questions I want to ask in connection with this Bill are: Is this Bill adequate for the purpose for which it is ostensibly introduced? Will the provisions which it seeks to remove from the Constitution not remain binding in law, even when this Bill becomes an Act of the Oireachtas? This consideration also applies to the other Bill, the Second Reading of which has just been agreed to. These are certainly matters which want to be clarified and I am intervening in order to give the Minister an opportunity of clarifying them. I call attention first to Article 73 of the Constitution which says:—
"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Eireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."
I ask the Seanad carefully to mark the words of the Article. One of the laws in force when this Constitution came into operation was the Treaty, which, by Section 2 of the Constitution Act, was given the force of law. I direct attention to that section of the Constitution Act which, though repealed by the Constitution (Removal of Oath) Act, has still a vital bearing on the matter I am considering. It says:
"The said Constitution shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referred to as ‘the Scheduled Treaty') which are hereby given the force of law...."
That is as far as it is necessary to quote. This section was repealed but it is important to remember that when enacted it gave the force of law to the Treaty. I want to emphasise that point, that it gave the force of law to the Treaty. A question arises on which I want a clear and explicit answer from the Minister. Did the repeal of Section 2 withdraw from the Treaty the validity and force of law which it had given to it? It seems to me that it is strongly arguable, it did not; that the Treaty still stands in all its provisions with the full force of law in this State. It seems to me very questionable if law can be repealed, either by implication or inference, as would be the case if that Treaty as law was repealed by Section 2 of the Constitution Act. So far as I understand the matter a law must be repealed in specific terms, and so far as the Treaty is law and as this State is concerned that has not yet been done.
Section 2 of the Constitution Act was the instrument by which the Treaty was given the force of law. Did the scrapping of the instrument nullify the function it had discharged before it was scrapped? That is a fundamental question. One might as well argue that because a scaffold around a building was the instrument, so to speak, by which the building was brought into existence, when the scaffold is taken away the edifice ceases to exist. As I understood the argument of the President when presenting his case for the removal of the Oath from the Constitution, his contention was that that Bill in no way affected the Treaty position, that it stood as it was before the introduction of the Bill, with the full force of law according to the authority which had been conferred upon it when the Constitution was enacted. If that is so then by Article 73 of the Constitution the Treaty is one of the laws continuing in full force and effect, having been neither repealed, amended nor removed, except in regard to the Treaty (Confirmation of Supplemental Agreement) Act of 1924 and Treaty (Confirmation of Amending Agreement) Act, 1925, which are not relevant to this point. It has still the force of law if my contention is accurate, and if it is not accurate I want the Minister to prove that I am inaccurate. It is a moot question if Article 17 has not still the force of law in this State.
To deal directly with this Bill, and the amendment which it proposes to make to Article 4 of the Constitution, I refer to my contention that the Treaty still stands with the full force of law and, therefore, is binding as law in this country. I come now to the particular Article of the Treaty which is relevant to this Bill, Article II, which reads:—
"Subject to the provisions hereinafter set out, the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State."
The provision which this Bill proposes to delete or amend was framed in conformity with that Article of the Treaty. The provisions which will throw light on what has been the constitutional practice of the law of Canada are contained in Articles 54, 55 and 56 of the Constitution of Canada. It may be that the law, practice and constitutional usage connected with these have grown obsolete by disuse. The fact remains that they are still the letter of the law set out in the Article of the Treaty and, as this Bill deals primarily, if not entirely, with the letter of the law, it is well to enquire exactly how matters will stand when this Bill passes. Certainly, it appears to me very undesirable that we should retain in our Constitution provisions which perpetuate certain things which our statutes purport to terminate. Therefore, I should like to have from the Minister a clear explanation and answer to three questions: (1) Did the repeal of Section 2 of the Constitution Act repeal the Treaty? (2) If not, is not Article 73 of the Constitution insistent that the Treaty is one of the laws continued in full force and effect at the present time? (3) If so, is not Article 2 of the Treaty still legally binding and is not this Bill, in these circumstances, defective in that it is not adequate in itself to effect what it proposes to do? I hope the Minister will give an explicit answer to these queries. If my argument is not sustainable the Minister should be able to prove that and, in doing so, to clear up certain ambiguities to which I have drawn attention. If my contention is sound, then, obviously, this Bill is defective in the sense in which I have argued.