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Dáil Éireann - Volume 33 - 19 March, 1930

Public Business. - Operation of Dominion Legislation and Merchant Shipping Legislation—Approval of Conference Report.

Minister for External Affairs (Mr. McGilligan): 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 [2051] 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 [2052] 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 [2053] 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 [2054] 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 [2055] 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 [2056] 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 [2057] 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 [2058] 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 [2059] 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 [2060] 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.

[2061] 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 [2062] 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.

[2063] 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.

[2064] 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 [2065] 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 [2066] 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.

Mr. Lemass: Is that in the Report?

[2067] Mr. McGilligan: Yes. Paragraph 57 states:

If the above recommendations are adopted, the acquisition by the Parliaments of the Dominions of full legislative powers will follow as a necessary consequence.

I do not think it is asserted that any country has more than full legislative powers. Starting, therefore, from that point, we had to discuss whether there were certain matters which States thereafter not bound together by any legal nexus regarded as matters of common concern requiring special attention. Three things emerged, two dealt with immediately, and one which followed from the fourth term of reference. The first was the question of succession to the Throne. The second matter was dealt with under the heading of nationality, and the third was the question of uniformity in all the vast details of legislation of the merchant shipping type. With regard to the first point, we had to try to strike a balance as between the possession of certain powers and the exercise of these powers, particularly when both the possession of the powers and the exercise of them centred on a single item which remained as the solitary tie between the different countries. Paragraph 58 says:

By the removal of all such restrictions upon the legislative powers of the Parliaments of the Dominions and the consequent effective recognition of the equality of these Parliaments with the Parliament of the United Kingdom, the law will be brought into harmony with the root principle of equality governing the free association of the members of the British Commonwealth of Nations.

Paragraph 59 is:

As, however, these freely associated members are united by a common allegiance to the Crown, it is clear that the laws relating to the succession to the Throne and the Royal style and titles are matters of equal concern to all.

[2068] And then paragraph 60 continues the recommendation:—

We think that appropriate recognition would be given to this position by means of a convention similar to that which has in recent years controlled the unfettered powers of the Parliament of the United Kingdom to legislate upon these matters. Such a constitutional convention would be in accord with and would not derogate from and is not intended in any way to derogate from the principles stated by the Imperial Conference of 1926 as underlying the position and mutual relations of the members of the British Commonwealth of Nations. We therefore recommend that this convention should be formally put on record in the following terms:— Inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Title shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.

As stated heretofore the position has been with regard to the succession to the Throne that theoretically power rested in the Parliament of the United Kingdom. That power was in theory uncontrolled by anything or anybody else. In fact, that particular power has been regarded in the last seven or eight years, as a matter of common concern, a matter in which the theoretically uncontrolled power of the British Parliament would not be exercised save after consultation with, and with the consent of, the members of the British Commonwealth of Nations. But when it had been determined that there was no longer any legal nexus between the members of the British Commonwealth of [2069] Nations, this one point was singled out for special mention as being the solitary link between the States that form that Association. The agreed recommendations come to this, that each of us would by constitutional convention impose upon ourselves a control which, while technically absent, was, in fact, always present over the United Kingdom Parliament in relation to the Throne and to the Royal Style and Titles.

A point arises in paragraph 62, to which I am not going to refer fully at the moment. It refers to the acquisition of full legislative powers by the Parliaments of the Dominions possessing federal Constitutions and I refer to it only because it leads to the declaration in paragraph 67 as to the constitutional position here and in South Africa.

I have marked out for mention the question of nationality, which the Report, in paragraph 72, postulates as “clearly a matter of equal interest to all parts of the Commonwealth.” Paragraph 73 indicates the varying connotations of the words “national,” “nationhood,” and “nationality,” and the difficulty of describing the relationship of the members of the British Commonwealth of Nations to one another up to the date of this Conference. Reference is made to the ambiguity which results from the use of these terms in the way in which they have been used.

Paragraph 74 moves quickly to a decision:—

The status of the Dominions in international relations, the fact that the King on the advice of his several Governments, assumes obligations and acquires rights by treaty on behalf of individual members of the Commonwealth, and the position of the members of the Commonwealth in the League of Nations and in relation to the Permanent Court of International Justice, do not merely involve the recognition of these communities as distinct juristic entities, but also compel recognition of a particular [2070] status of membership of those communities for legal and political purposes.

Our deliberations in this matter of nationality come to this—and this is one point in which, as I said, the value of Association comes out clearly —“Nationality,” from this time on, is going to have only one of the two meanings heretofore attached to that word. A national hereafter of this State, if we did pass certain legislation which can be passed at any moment, will mean a person whom we admit to the rights of citizenship in this State under whatever conditions we like to impose. It may be nationality founded upon blood, it may be nationality founded on place of birth, or it may be nationality founded on a mixture of those two. But whatever it is, whatever rights of citizenship are permitted, and whatever people may be given these rights of citizenship will depend entirely upon the wishes of the Oireachtas of this State. Whoever is called a national of this State, under the laws of the Oireachtas, hereafter carries with him all the benefits of that citizenship wherever he goes. The full effects of a nationality recognised and accepted will flow to him, and that nationality will frank his passport along the highways of the world.

We move on to another paragraph under which on terms to be agreed our citizens will get whatever facilities may be got from Consular offices established in any part of the world by any of the members of this Commonwealth of Nations. But there are two different stages and we should be clear as to both. We decide as to our own nationals. We decide the conditions that are precedent to the acquisition of nationality. We decide what are the obligations and rights of our nationals hereafter. We decide what the conditions are resulting from nationality. Apart from that a second condition is envisaged. Up to date there has been a common status recognised through the British Commonwealth of Nations. We may not desire that common status: we [2071] may decide that in order to acquire it we may have to put up with certain disadvantages, and we may decide that these disadvantages may outweigh any facilities or benefits we get from the common status when travelling abroad. In that event we simply decide our own nationality and look for nothing beyond that. But we can get advantages from association with the British Commonwealth of Nations. In paragraph 77 it is explained:—

Under the new position, if any change is made in the requirements established by the existing legislation, reciprocal action will be necessary to attain the same recognition, the importance of which is manifest in view of the desirability of facilitating freedom of intercourse and the mutual granting of privileges among the different parts of the Commonwealth.

Paragraph 78 says:

It is, of course, plain that no member of the Commonwealth either could or would contemplate seeking to confer on any person a status to be operative throughout the Commonwealth save in pursuance of legislation based upon common agreement, and it is fully recognised that this common status is in no way inconsistent with the recognition within and without the Commonwealth of the distinct nationality possessed by the nationals of the individual States of the British Commonwealth.

That means nothing more than this, that if hereafter we desire that there should be special facilities granted by and to those who are nationals of the different States associated with the British Commonwealth of Nations, we will agree to such terms as the conference may suggest for the acquisition of a wider status, something over and beyond nationality, something which will be recognised and valuable throughout the whole Commonwealth. We need not agree unless we are satisfied to agree. We may not agree because we think that the [2072] wider status has its disadvantages. We may refuse to agree to this because of our suspicion that in fact it imports a limitation of status. We may decide to remain suspicious and not move beyond the determination of our own nationality and our national rights. But if we want to use the Association of the British Commonwealth of Nations to the full, if we want to get the full facilities that are desirable for intercourse, then it is laid down here that we should base our legislation upon agreement.

Paragraph 79 points out:

But the practical working out and application of the above principles will not be an easy task, nor is it one which we can attempt to enter upon in this Report. We recommend, however, that steps should be taken as soon as possible by consultation among the various Governments to arrive at a settlement of the problems involved on the basis of these principles.

The last item referred to in the terms of reference is merchant shipping. The section which deals with merchant shipping is long and somewhat involved, but the results are clear. They are stated under the heading of The New Position in paragraphs 91 to 95. Paragraph 91 sets out:

Our general conclusions on the operation of Dominion legislation, including the recommendations regarding extra-territorial effect of Dominion laws, the Colonial Laws Validity Act, 1865, reservation and disallowance, are applicable to the constitutional position of legislation affecting merchant shipping.

Paragraph 92 says:

When these conclusions are given effect to, and the restrictions imposed on Dominion Parliaments by Sections 735 and 736 of the Merchant Shipping Act, 1894, are removed by the Parliament of the United Kingdom, which we recommend should be done, there will no longer be any doubt as to the full and complete power of [2073] any Dominion Parliament to enact legislation in respect of merchant shipping, nor will Dominion laws be liable to be held inoperative on the ground of repugnancy to laws passed by the Parliament of the United Kingdom.

In paragraph 93 it is stated:

The new position will be that each Dominion will, amongst its other powers, have full and complete legislative authority over all ships while within its territorial waters or engaged in its coasting trade; and also over its own registered ships both intra-territorially and extra-territorially. Such extra-territorial legislation will, of course, operate subject to local laws while the ship is within another jurisdiction.

Paragraph 94 says:

The ground is thus cleared for co-operation amongst the members of the British Commonwealth of Nations on an equal basis in those matters in which practical considerations call for concerted action.

Paragraph 95 refers to the fact that shipping is a world-wide interest, and states that there is a strong presumption in favour of concerted action between the members of the British Commonwealth in shipping matters, “but this concerted action must from its nature result from voluntary agreements by the members of the Commonwealth.”

Thus we can see ourselves in the near future arriving at the same point in regard to shipping as that forecasted with regard to nationals. We are to establish shipping of our own and do what we please in that connection with our own shipping. We will establish conditions for ownership, for the acquisition of ships, for the crews that go on board, the conditions under which they serve, and the flag under which they will sail. Everything, as far as the Irish Free State shipping is concerned, will be a matter for this Parliament.

Certain matters are referred to [2074] from paragraph 97 onwards as matters upon which the conference recognises as desirable uniformity of legislation. It does not say that uniformity is essential, but merely points out that it is desirable, and mentions that that uniformity can only arise from the voluntary agreement of the various members of the Commonwealth. The recommendations in this part conclude: “It is not necessary at present to frame a complete list of the shipping questions upon which uniformity is desirable, but certain matters stand out clearly” upon which recommendations are submitted. Most of the points upon which recommendations are submitted are matters that are now ruled almost entirely by international convention. Where they are not ruled by international convention they are tending to become fixed by international convention, and they will become fixed in that way soon. The fact that this group of States agree ahead of other nations to secure uniform legislation may tend to speed up the tendency amongst all the nations of the world to have those things so regulated. It is clear that the points referred to are matters about which the interest of humanity, in the first place, and, in the second place, the interest of the vast amount of property carried on the seas demand that there should be uniform regulations, and that these uniform regulations should be got together and announced as soon as possible.

As far as this House is concerned, and as far as this country is concerned, it has the fullest and completest freedom over all shipping which comes into its power or which it itself establishes. But our freedom should be exercised so as to secure the uniformity declared to be desirable. When the details come to be considered it may be that on the difficult points certain to arise different views may prevail. A decision may be come to not to have uniform legislation in regard to certain matters. There is a diversity now between Canadian and British legislation upon some points and it may be that when an attempt is made [2075] to get agreement later on there will be disagreement and an adherence by each party to its own code. I will not enter into detail upon that part of the Report at this point. I do recommend the consideration of this merchant shipping matter to Deputies for this reason, that it was taken as a separate part of the Conference and somewhat away from the other matters which were more of constitutional value. This matter was taken as one upon which practical considerations ruled. There was agreement amongst the experts as to the practical problems that arose and agreement that uniform legislation was desired. It was possible in this to have the point set out in much more detail than could be given, say, in the question of nationality.

It is really the best example that could be given of the working of the co-operative Commonwealth that at present exists. One can see the detail in which some of these questions must be examined before any attempt at legislation can be made covering the different points of view, and this concrete example is valuable as showing how very definitely the old central government system has disappeared and has been replaced by a system of communities all controlling their own affairs but recognising that there is value in having certain matters of common concern regulated by uniform legislation.

The last point dealt with—by way of suggestion—is a matter that was referred to here at some length in a previous debate. I call attention to one point in relation to Part VII., which deals with the suggested tribunal for the determination of disputes. The second sentence from the end reads: “With regard to the latter, there was general agreement that the jurisdiction should be limited to justiciable issues arising between Governments.” In other words, in so far as any tribunal was suggested or considered it was a tribunal merely for the reconciling of disputes arising between the Governments [2076] of the States, members of the Commonwealth. It was not to be a tribunal to deal with private suitors or to deal with disputes between nationals of a single State. But it is quite clear that when that matter comes to be further discussed some further discrimination must be made, for one can see the possibility of a dispute which arises at first as a dispute between the nationals of a State becoming in the end an interGovernmental dispute.

That was one of the many matters that halted in our consideration of this, made us merely run over the suggestions put before us, and induced us to recommend that this whole subject should be further examined by the Governments.

That is the Report of the Conference. It flows, as I have said, from the Conference Report of 1926. It is established on the principles laid down in the Report of 1926. It went into details on many points but it did not by any means finish the subjects. It finished the task which was set it because it definitely operated on all the Terms of Reference down even to small details of administration, in the different items that were considered. It did not on all points define the details on which uniformity is desirable. That is left over for further agreement and settlement either by conference or exchange of despatches. The details of the work are not finished but the task set before the Conference is finished to this extent, that no detail has been allowed to over-ride principle or allowed to bar the fullest application of the principles stated in 1926. The old unitary system of central government by the old Parliament of the United Kingdom has definitely departed.

As I said in June, the whole legal framework of the system has been taken apart and never again will be put together. It has come to an end. That system, which lasted for many years, was probably the most elaborate legal system of which the history of the government of political communities has any record. I described the Report in the beginning [2077] as a very important constitutional document and in fact said that it was the most important constitutional document which this House has been asked to consider since the Treaty. I am going to leave Deputies to form their own judgment upon it and I only ask, if anybody objects to the phrases which I have used in regard to the meaning of the Conference Report and is going to criticise the Report, that such criticisms will not be based on fears or suspicion but that the items will be pointed out upon which it can be said that central control still remains and about which there is still in the British Parliament control over this House. It may be said in regard to this Conference that it had one big aim. It aimed at making it clear to everybody that the power of the United Kingdom Parliament over Dominion Parliaments has gone. I hold that the Report makes that clear. If anyone holds that it does not, I want him to point out where the opposite can be shown.

Mr. O'Kelly: It is quite natural in the circumstances that the Minister should state that this is a vastly important document, and that it is the most important constitutional document, to quote his words, that has come before this or another House since the Treaty of 1921. I suppose it is a case of the fond father. This is the Minister's own child, and, therefore, he sees untold wonders in it and a magnificent future arising out of it. I hope that the confidence he feels will be borne out by future events. We look upon this Report and the various declarations and recommendations which it contains from a different point of view. I may say that anything that has been done, or can be done, particularly now that we are discussing the declarations and recommendations in this Report, to win further power and to make it more certain that there is no outside authority that has control over even the Twenty-six counties and its Parliament is all to the good. We stand behind anything that has been done in that connection, and we are glad to see it, but, [2078] having said so much, I repeat that we look upon this Imperial Conference and its results from a different point of view.

First of all, we do not start out by recognising the Dominion status that has been forced upon us as satisfactory. Therefore, when any declaration, recommendation, or agreement is come to that brings us closer to other members of the British Commonwealth of Nations or to England, any declaration, recommendation or agreement that makes the working of that Commonwealth, so far as we are concerned, more smooth and that tends in the direction of endeavouring to satisfy our people with Dominion status, we cannot say that we are satisfied to go in that direction. We are not by any means satisfied with the Dominion status of the Irish Free State, nor are we satisfied with the partition of Ireland. What some people might call relatively important, but what we call, in view of the greater problems, relatively minor and unimportant problems, are dealt with in this Report and have been discussed at great length at the recent Imperial Conference. While, however, the problems dealt with are interesting, and while they may have consequences, as the Minister suggested, of a far-reaching nature for the community known as the British Commonwealth of Nations in the future, the major problem, so far as we are concerned, is the problem of winning Ireland's independence, the problem of breaking out of that Commonwealth and of getting Ireland, not the Free State, her proper status in the world.

For us, the great problem is the restoration of the independence and unity of Ireland, and so long as these two big problems face the people of Ireland and as long as they remain to be resolved, matters of the kind dealt with in this Report, though perhaps important in themselves, are, to our mind, relatively minor matters. It is interesting for those who are interested in constitutional law, and the study of constitutional development here or elsewhere, to learn that [2079] legal anomalies are being removed or may be removed. It is not even suggested that they are removed by any recommendation or declaration contained in this Report. I take it that all of these recommendations and declarations are subject to adoption and to legislation not here alone but in the other Parliaments of the British Commonwealth of Nations. It is certainly satisfactory to hear the Minister state that he has been assisting at the removal of the old Imperial control. We are glad that he has been assisting in that direction, and we hope that, whatever success which he has claimed to have, will encourage him to go further and remove control over the Six, as well as the Twenty-Six, Counties and restore to Ireland that unity which he helped to break. Looked at from that point of view, from the Irish as distinct from the Free State point of view, and again bearing in mind the fact that these recommendations are in all cases subject to the passing of legislation in the different Parliaments, it is quite possible that the Minister is cheering a little too soon or shouting before he is out of the wood. All of these recommendations, even those that have reference to this House alone, are only, so far, recommendations or declarations. This House may see fit, and I hope it will, in so far as any powers can be won for Ireland or for any part of Ireland, wring from the Power that had control of her heretofore, so far as they can be got back, further powers for Ireland. We will be glad if that is to be. We hope that the House will implement these declarations. At any rate until that legislation has been passed here or elsewhere these recommendations have no value in law.

One thing particularly struck me in reading over those Reports and it was a thing that the Minister himself might have referred to, in my opinion, because I think if we examine the history of the last nine years from, say, a purely scientific point of view, nobody will claim that the people of Ireland, or this part of [2080] Ireland, of their own free will, joined the British Commonwealth of Nations. Therefore, I say that the Minister might have, and with truth, said in his speech, and might have found a place for reference to it in this Report, that the Irish Free State is in this Commonwealth of Nations not of its absolute free will. Over and over again references are made in the Report to the free association of Members of the Commonwealth. The first reference occurs in paragraph 8 of the Imperial Conference Report of 1926 which states:

They are autonomous communities within the British Empire, equal in status, in no way subordinate one to the other, in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations.

I deny the freedom that is claimed for the association there. We are in this Commonwealth, certainly not by the free will of the Irish people. There is one thing that should be remembered always, and, I think, remembered even by those who at present stand for the Irish Free State as a Dominion within the Commonwealth of Nations and who uphold it. That is, that the governing factor in the signing of the Treaty which brought the Free State into existence, was Mr. Lloyd George's threat of immediate and terrible war if the delegates did not sign. That gives the lie to the statement repeated often in this Report, that we are freely associated as members of the British Commonwealth of Nations. The following occurs in paragraph 15:

These principles of freedom, equality and co-operation have slowly emerged from the experience of self-governing communities, now constituting the most remarkable and successful experiment in co-operation between free democracies which has ever been developed, the British Commonwealth of Nations.

[2081] It seems that it is necessary, even in view of our history, in view of the history that is so recent and so well known, to protest and to make clear, so far as we on this side can, at any rate, that we are not in that Association or Commonwealth by any free will of ourselves. There are similar declarations in other paragraphs suggesting that this is a free Association. These declarations occur in paragraphs 58, 126, and so on, as if all the delegates whose signatures are to this document were anxious to impress upon the world—I take it that is why the term “free Association” is so freely and frequently used—and perhaps impress upon ourselves and by constant repetition to get even the Irish people to believe that we are freely associated. I deny that, and repeat there was no freedom of choice when that Association was forced upon us.

The Minister talked of the value of the Association and the value that we derive out of the Association. It is possible that there might be value for even the Free State to be got out of association with other members of the British Commonwealth of Nations, but if there is any value, nationally speaking, to be got out of it, that true value can only be got if the Association is by the free choice and the free will of the Irish people. That, up to the present, cannot be claimed.

Paragraph 67 has a line or two in it which, I think, is worth calling attention to. Discussing the Constitution of the Union of South Africa and the Irish Free State, it says in the last sentence: “In the case of the Irish Free State they are exercised in accordance with the obligations undertaken by the Articles of Agreement for a Treaty signed at London on the 6th day of December, 1921.” All our powers here are subject to that Treaty, are in accordance with the obligations undertaken in that Treaty, and on account of the frequency with which free will and freedom of choice and free association are referred to in the Report, I say again that, being [2082] subject to the obligations undertaken by the signing of the Articles of Agreement for a Treaty, we are not free and there was no freedom of choice in that matter, and until the Articles of that Agreement are reviewed, until we have liberty to review them and sign a document, pact or treaty, call it what you will, of our own free will, then it is useless, nationally speaking at any rate, to talk of the advantage we derive or may derive out of association with the other members of the British Commonwealth. Viewed from the standpoint of the other Dominions and Colonies of England, particularly Canada, South Africa and Australia, this Report and the recommendations contained in it probably do mean an advance.

Mr. J.J. Byrne: Was there no force applied to South Africa?

Mr. O'Kelly: Certainly there was, and that reminds me that in 1919 —just to show you how the South Africans recognise the force— General Hertzog and five or six of his colleagues now members of the South African Government came to Paris for the Peace Conference. They had to come with British passports. They would not be allowed out of South Africa unless they accepted British passports. But they insisted and succeeded in getting the British to endorse those passports in this way. The man was described “General, or whatever he was. Hertzog, British citizen by conquest.” General Hertzog showed me his passport where he insisted that they should put in these words, “British citizen by conquest.” There was no free will there. He did not recognise that he was a free citizen of the British Commonwealth of Nations.

Mr. T.J. O'Connell: Does he now?

Mr. O'Kelly: You better ask him. I could not say.

Professor O'Sullivan: He says so.

Mr. O'Kelly: In most of these cases at any rate these other Dominions, [2083] Canada, Australia and New Zealand in particular, grew out of the expansion of the British Empire; they are a part and willing to be part and parcel of that Empire. They started as countries colonised from Britain, dominated, owned and controlled originally by Britain. They are in a very different position from Ireland or even the Irish Free State. If they wish to continue in the closest association, working in harmony with Britain, their mother country, that is their own affair. We do not wish to interfere with them. We wish them well. If they arrive at amicable agreements with England in relation to their mutual affairs, powers of legislation and otherwise, that is their business, but we are in an entirely different position. We did not start out by being a colony of England or being colonised by England. I do not think it is necessary to emphasise that, but it is well when people get into the mentality, as some seem to do to-day, some who were formerly Irish nationalists and some formerly Irish Republicans, that they find pleasure and joy in boasting of the Irish Free State's Dominion status to remind them that there are Irish Nationalists still in the country to whom the status of a Dominion in the British Commonwealth brings no pleasure.

I saw a statement quoted in the “Irish Times” of the 15th October of last year, where the Minister for Education, speaking at the Shelbourne Hotel, expressed a strong view against anything like sneering at Dominion status. If that quotation be correct, it bears out what I have in mind. Sneering at Dominion status, of course, may be objectionable to him now, and to others like him, but to those of us who are Irish Nationalists and Irish Republicans not of yesterday, those of us who claim we represent the Irish tradition. Dominion status is certainly more of an insult than anything in which to take pride.

Mr. B. O'Connor: May I ask the Deputy is Document No. 2 Republican?

[2084] Mr. O'Kelly: Would Deputy Batt O'Connor mind telling me what is in Document No. 2 that is against or hostile to that national aspiration of ours?

Professor Tierney: It is a much more serious offence to sneer at Document No. 2 than at Dominion status.

Mr. O'Kelly: I would like to know who has made it so. I have not.

An Ceann Comhairle: Let us keep away from Document No. 2.

Mr. O'Kelly: I have possibly touched a sore point with regard to two of those Deputies; that is what makes them squeal. I can say that for Deputy Batt O'Connor, but I do not know anything about the other gentleman's political history.

An Ceann Comhairle: Do not let us go into the political history of any individual.

Mr. O'Kelly: I will let that alone in reference to any individual, but I do say, speaking from this side of the House, at any rate, that Dominion status is a thing we want to get rid of as soon as we can, and all that it implies, even including the progress that, according to the Minister for External Affairs, has been made in the recommendations and declarations he has secured in this Report. We want to get rid of it as soon as we can, because it consorts ill with a nation with a record and history so full of reasons for pride, for a real Irishman, as ours is.

I do not want to harp too much on this subject, but again paragraph 15, where the principles of freedom, equality and co-operation are referred to, bears out my point as to the denial of Ireland's free will in association with the British Commonwealth of Nations. I ask: Would there have been partition of this country by the free will of the Irish people? There would not. If the people had freedom of choice, they would not have allowed the nation to be partitioned. If we had no other proof that there was no freedom of choice, the very existence of partition would be sufficient. There are [2085] others; they may be symbols, if you like; they may not be matters of very large importance, but as symbols they are of great importance— the symbol of the control of our harbours and the British gunboats in some of them. As symbols of the absence of freedom, they are important and they are additional proof of the lie that is uttered every time the words “freedom of choice” or “free association” are mentioned in this Report. Our reading of this Report is governed by that point of view, that we are not of our own free choice a Dominion, that we are not in association with the British Commonwealth of our own free will, that we do not want to be associated with them on any such terms. That there may, as the Minister for External Affairs has said, be value in association, I do not deny. There may be value in association of near neighbours, but that association, if it is to exist in the future, must be based on the absolute free will of the Irish nation, and that we have not had and have not to-day.

I am not going to go through this Report in detail. I will refer to a few of the points in it. The first one I would like to refer to is paragraph 24, and its relation to the Colonial Stock Act, where it is brought out again that England maintains her right, as I suppose she is entitled to do, to refuse to the Free State liberty to have Free State loans listed as trustee stock unless the Free State will comply with certain regulations that Britain has made. Of course, England is entitled to do that. That is her affair, but England has certain trustee stock in this country, and if such power be refused to the Irish Free State and its Government it would certainly be worth considering why reciprocal action should not be taken. If they refuse us liberty to list our stock as trustee stock, I think it would be worth while for the Minister for Finance to consider what action he could take so as, perhaps, to deal out the same measure of good will to England that she deals out to us in that matter.

[2086] [Professor Thrift took the Chair.]

With regard to the question of disallowance and reservation, referred to in Part III. of the Report, there are one or two lines in paragraph 31 that struck me as interesting. Perhaps the Minister for External Affairs would explain to us what exactly they mean:

“As regards Dominions, it gradually came to be realised that the attainment of the purposes of reservation must be sought in other ways than through the use of powers by the Government of the United Kingdom.”

That matter of reservation is not of very great interest. That is because there was only a very minor power of reservation in the Free State Constitution; there was no power of disallowance. But as that power, shadowy as it may have been, has disappeared, if the Minister be correct, I wonder what the suggestion that is contained in these words is: “The purposes of reservation must be sought in other ways than through the use of powers by the Government of the United Kingdom.” I would like if the Minister would comment on that later; if he could tell us what the “other ways” might possibly mean.

On the question of extra-territoriality, are we to take it that, if legislation be passed as a result of the recommendations, in this House and elsewhere, power will reside in this Parliament in future to legislate extra-territorially? I think it follows, if you read paragraphs 40, 41 and 42, that such power did not reside in the Irish Free State Parliament heretofore. As paragraph 38 states, “the subject is full of obscurity, and there is conflict in legal opinion as expressed in the courts and the writings of jurists,” and so on. It may be that that power has resided here and that no attempt was made to use it, but we maintain that, up to the present, the Free State Parliament has not had that power. It would seem, by inference at any rate, in reading these paragraphs, that the power has not up to the present resided [2087] in the Free State Parliament. If such power is put in its hands in the future, I suppose it is all to the good. Paragraph 39 states it would not seem to be possible in the present state of the authorities to come to definite conclusions regarding the competence of the Dominion Parliaments to give their legislation extra-territorial operation. That, I think, bears out what we have claimed. If, in future, they are to have that power as a result of these recommendations, well and good.

Paragraph 44 says: “In connection with the exercise of extra-territorial legislative powers, we consider that provision should be made for the customary extra-territorial immunities with regard to internal discipline enjoyed by the armed forces of one Government when present in the territory of another Government.” That, I take it, would mean that members of the British Army when on Free State territory would not be subject to Free State laws, that they are outside Irish Free State law, and are subject to British law and British Army authority.

Mr. Esmonde: No.

Mr. O'Kelly: That remains to be seen.

Mr. McGilligan: Read the paragraph.

Mr. O'Kelly: I have read the paragraph: “Such an arrangement would be of mutual advantage and common convenience to all parts of the Commonwealth, and we recommend that provision should be made by each Member of the Commonwealth to give effect to customary extra-territorial immunities within its territory as regards other Members of the Commonwealth.”

Mr. McGilligan: The first part limits it all.

Mr. O'Kelly: “In connection with the exercise of extra-territorial legislative powers, we consider that provisions should be made for the [2088] customary extra-territorial immunities with regard to internal discipline...”

Mr. McGilligan: “With regard to internal discipline.”

Mr. O'Kelly: They are subject to Free State law?

Mr. McGilligan: Except in that regard.

Mr. O'Kelly: They are subject to Free State law except in regard to internal discipline. The Colonial Laws Validity Act has probably given rise to very considerable inconvenience as far as other Members of the British Commonwealth of Nations are concerned. We have not had any big, sensational cases arising out of it so far. If the recommendations are to be adopted, which remains to be seen, and legislation be passed in the British Parliament, all the Dominions, I suppose, will be glad to see that brake on their powers disappear. But, again, it must be remembered that, so far, it is only a promise and that we have yet to see whether Great Britain will finally pass, as recommended here, legislation abolishing the powers contained in that Act. There was one particular matter that I thought the Minister would have sought to raise in a special form at the Conference so as to put into effect the hopes and aspirations of the Minister for Finance, and that is to end the power of the Judicial Committee of the Privy Council to interfere in Free State legislation. There is no reference to that in this Report. There is reference to it partly in the form of the suggested tribunal for the determination of disputes, but, as the Minister explained, that probably does not refer to the type of cases that the Privy Council up to the present has had power to interfere in.

I should be glad to hear the Minister go further and deal in greater detail with that problem. It is one which touches the Irish Free State and its nationals very closely and which has had important bearings on Free State legislation up to the present [2089] and might have more important bearings not alone on Free State legislation, but on Free State nationals in future. If he has any further information to give us, or any explanation as to what is intended in the setting up, if it is ever set up, of this new tribunal and the scope it is intended to have, we would be glad to hear it. We are not particularly anxious that any tribunal of that kind should be set up. We are satisfied with the setting up of the tribunal discussed here a week or two ago when the Optional Clause was before the House for ratification. We think that tribunal would meet all the requirements. If it is intended to set up some tribunal of this kind, we should be very glad to hear more from the Minister as to what he has in mind with regard to it.

Up to the present there has been considerable difficulty in finding out what the exact position of citizenship is so far as people living in or born in the Free State are concerned. If this question of nationality and citizenship is to be cleared up, and if we are to know what is the exact status of such citizens in future as a result of this Report, it will be all to the good. We would like, of course, that there should be one definition of citizenship and nationality, and that is people who are born in Ireland or who adopt Irish citizenship. We took no pleasure in the dual citizenship that existed up till now, the common citizenship with other nationals of the British Empire. Common citizenship did not appeal to us. To our mind, it was a degradation of our Irish citizenship and national status, and if the question of citizenship is to be settled in future, we would rather have it settled on the basis of Irish citizenship dissociated from common citizenship with Great Britain, Australia and any other country. Irish citizenship and Irish nationality is good enough for us.

Mr. Esmonde: Will the Deputy include Archbishop Mannix in that category?

Mr. O'Kelly: I will include every [2090] man, no matter who he is, or what position he occupies, if he accepts Irish as the definition of his nationality. Irish is good enough, or ought to be good enough, for every Irishman. Common citizenship may be satisfying to some people who have expanded their citizenship in recent years in various ways, but we are insular and narrow enough to be satisfied with the title of Irish and Irish nationality.

Mr. T. Sheehy (Cork): I thought we would like to be on terms of friendship with our fellow-countrymen all over the globe.

Mr. O'Kelly: Certainly. I do not want to be on terms of anything else but friendship.

Mr. Sheehy: You want to cut them out altogether.

Mr. O'Kelly: I do not want to be called an Australian-Irishman——

Mr. Sheehy: Nonsense.

Mr. O'Kelly: ——or a Canadian Irishman. I want to be called Irish.

Mr. T. Sheehy: We celebrated the festival of the 17th March all over the world as Irishmen.

Mr. T. O'Kelly: I hope so. I hope you have not changed your coat like so many of your colleagues.

Mr. Sheehy: No, it is the same old coat. When I first knew you you had another coat.

Mr. O'Kelly: You do not want me to wear this one all my life. Would you not give the tailors a chance. There is only one other point that I wish to refer to. On the question of our status there has been recently a good deal of talk and writing in newspapers about a Conference that is being held in London these days to discuss naval disarmament. That Conference is supposed to be a Conference of five great Powers.

Acting-Chairman: Has it any relation to this motion?

[2091] Mr. O'Kelly: In this way, that we have a representative there in the person of the High Commissioner.

Acting-Chairman: That will not connect the subject matter of it.

Mr. O'Kelly: I should like to know exactly what our status is. If we are as the Minister claims, absolutely separate and distinct, free and independent communities associated by our own free will, when the Imperial Parliament joins in conference with other nations and we find the High Commissioner of the Free State attending that Conference, is he attending as representative of the Free State as one of the parties to the Conference or is he part and parcel of Britain for the purpose of that Conference?

Acting-Chairman: I do not think that arises.

Mr. O'Kelly: I think it arises on the question of our status.

Acting-Chairman: I do not think it arises on this resolution.

Mr. O'Kelly: Very well; I shall leave it, but it is very interesting as showing there is not the same absolute freedom and independent status. It appears to me there is some other nexus.

Mr. McGilligan: Why?

Acting-Chairman: I cannot allow the Deputy to bring in this particular subject.

Mr. O'Kelly: If the Acting-Chairman will allow me for one minute.

Acting-Chairman: I do not think the question comes in here.

Mr. O'Kelly: But I am asked by the Minister why.

Acting-Chairman: I think it would be better not to raise the question here.

Mr. O'Kelly: All right; I shall come back to it on another occasion. I have nothing further to say on the details of that Report except again to assert that we are not freely associated and that we hope to make the fullest use of every opportunity that arises to break down, step by step, [2092] if necessary, if we cannot do it in any other way, the connection that does exist until such time as the people here are given an opportunity to declare with absolute freedom what their choice is in this matter of association with the other Dominions of the British Commonwealth of Nations. I have a cutting here that I think I might refer to in this connection. It is from an address delivered by Dr. Binchy in Berlin. This is a cutting from the “Irish Times,” and Mr. Binchy, in talking of this Association, called it a partnership; and he says: “On the contrary, it is just because the Dominions have the right of co-equality that they have not the faintest intention of leaving the Commonwealth.” That, to my mind, is a gross misrepresentation of the aspirations of the common people of the Irish Free State. I would say, on the contrary, the common people of the Irish Free State will seek every opportunity that arises to get away from that Association until such time as they have an opportunity to decide of their own free will, without force of any kind being used to coerce them, one way or another, what their will is in this matter.

I say that a declaration of this kind made by the representative of the Irish Free State that the people here, having reached co-equality, have not the faintest intention of leaving the Commonwealth, is a gross misrepresentation of the position. In that connection, perhaps, the Minister will define for me when he is winding up the debate what the difference is between equality and co-equality. If we are equal we are equal. I do not see how the prefix or qualification “co” makes us any more equal. However, that is an exercise for which the Minister is probably particularly fitted to help us and I shall be glad if he gives a little attention to this matter.

Mr. T. O'Connell: I was disappointed that at the beginning the Minister did not give us some reason why he is asking the House in this [2093] formal way to approve of this Report. It is the first time, as far as I know, that a resolution of this nature has been put down. We have had reports of conferences of this nature before. They were published and laid upon the Table of the House and circulated to Deputies, and opportunities were found for discussing them in this House. But so far as I know this is the first time in which we have been asked formally to record our approval of a report of this nature. The Minister did not give us any reason why that procedure has been taken on this occasion with regard to this particular Report. He said this is a very important document, one of the most important that has been produced since the Treaty. We have had at least two. We have had the Report of the Imperial Conference of 1923, and the Report of the Imperial Conference of 1926. The Minister himself says that in the Report of the Imperial Conference of 1926 general principles were laid down, and that this Report is only showing how practical effect may be given to the principles laid down in 1926. That would seem to me to show that the 1926 document was of greater importance than this, which is only the outcome of it. At any rate we were not asked to give formal approval to the 1926 Report. There was an occasion here on which we discussed it. It came before the House on a motion for the adjournment, and it was discussed fully from both sides of the House, and opinions were expressed regarding various portions of it, but there was no formal decision required. I say it is unwise that we should be asked in this way to give formal sanction and approval to a report of this nature.

There have been numerous conferences in the past, and will be in the future, and they have been beneficial in many ways perhaps, but if it comes to be adopted as a recognised procedure that every time a report of such a conference or such a meeting of Ministers or officials of the various governments is published that each government will go to its respective parliament and get formal [2094] ratification of the report of the conference, I think that would be setting a precedent that it may not be wise to adopt, because there will be a tendency to look upon those Imperial Conferences as something in the nature of super-parliaments.

That will be the tendency. That is not the case at present. But if the Reports come along, and Parliament is asked formally to ratify them, that would be the tendency and they will be looked upon as legislative bodies—as the bodies that are legislating for all the members of the Commonwealth of Nations. I do not say that that is there, but that is the tendency. The Minister has given us no reason why the practice, up to the present, of merely laying the Report upon the Table or bringing the Reports to the notice of the House on an adjournment debate, or discussing these Reports on another Vote, such as the External Affairs Vote, should be departed from. I say that that practice would be a more satisfactory way of dealing with it, that is, for the Minister to take occasion when the External Affairs Vote is being discussed to bring this matter forward, rather than putting down a formal motion asking for ratification in a particular way. The Minister told us that this thing is not done in a hurry, that the practice in this and in other matters like the Labour Conference is first to set out general headings, as it were, giving the matter, as it were, a first reading, and then waiting for a year or more to allow an opportunity for full consideration of the implications in the Report, or in the recommendations of the Conference of everything that may be involved in it. But the Minister comes to the Parliament here with a Report consisting of 44 pages, and he asks the House, inside a fortnight or less, to give a decision on it. He puts down a motion and asks us to give formal ratification to it. I think he is expecting us to express a great act of faith in himself when he asks us to approve of everything that is in this Report without our having an opportunity of reading it, and without [2095] going into it in the detail into which it ought to be gone into if it was necessary to give formal ratification.

The Report consists of a large amount of matter that is merely historical. It is explanatory and sets forth the law, it tells us what the practice has been, what the law has been, and what the history and evolution of these various countries have been. He asks us formally to approve of this. I do not think that is a course that ought to be adopted; there are 13 separate recommendations. He asks us to approve in globo of the lot of them. We might approve of some of them and we might not approve of others. I think if there is to be formal ratification in this way it would be necessary to take these one by one and consider them. I doubt the wisdom of asking formal approval by the Dáil to this Report, and I do not see the necessity for it. The Minister has not attempted to show that there was any necessity for formal ratification. I agree largely with one statement made by Deputy O'Kelly in which he pointed out that while many of these recommendations and the necessity for these recommendations would apply in the case of other members of the Commonwealth of Nations which grew up by certain means from a state of dependency as colonies into Dominions, they are not necessary so far as we are concerned, and we should be careful not to suggest they are, as we would, if we formally asked Britain, as we appear to do in these recommendations, to remove certain anomalies which do not apply to us and which the Minister said did not apply to us. We would be giving the appearance that they did possibly apply to us or that we have been walking in the same way and that we have grown up in the same way as the other members of the Commonwealth. I agree with Deputy O'Kelly that we should do nothing that would create that impression. So far as we here are concerned we have always taken the view that the Treaty and the Constitution give us full equality and that the removal of these anomalies [2096] are not necessary as far as we are concerned. The Minister has himself said that—that they are only of academic interest to us, pratically all of them. I feel that there are many of these recommendations in which we ask Great Britain or the Parliament of Great Britain to do certain things. There is undoubtedly an implication in doing that. The implication is there that it is necessary for our full status that such things should be done by the Parliament of Great Britain.

I raised this point once before, and I asked what effect had the Colonial Laws Validity Act as far as Ireland was concerned. The Minister for Defence pointed out that it had no effect whatsoever. He pointed out that any of these anomalies that had to be removed by this experts committee had no effect so far as we were concerned. They why should we set out to ask in this formal way that they should be removed? Their removal is necessary to make clear and definite what the position of Canada, New Zealand or Australia may be. But we hold that so far as we are concerned they are not necessary. There seems to be in this Report— and the formal adoption of it, for this reason, would be unwise—a tendency to lessen the status which we hitherto, in any case, have maintained as being given to us or obtained by us as a result of the establishment of the Free State.

In paragraph 8 there is reference to status, and it was quoted by Deputy O'Kelly. Let us take that in relation to paragraph 81, which sets out: “and we suggest that the opportunity should be taken of the proposed Act to be passed by the Parliament of the United Kingdom to amend this definition....”— that is the definition of colony— “We have accordingly prepared the following clause:—In this Act and in every Act passed after the commencement of this Act the expression ‘Dominion’ means the Dominion of ... the Irish Free State.” As far as I know, that is the first time the word Dominion has been applied and this will be the first time in [2097] which we will have formally applied that term in any Act to which we have given our assent. I do not believe that in any other formal action of this Oireachtas have we described the Irish Free State as a Dominion. I think we should not take any step here formally, as we are asked to do, that would bind us to the word Dominion. We are asked to do that if we ratify this Report. We would, for the first time, sanction the use by this Oireachtas of the title Dominion. I, like Deputy O'Kelly, do not like that word.

Mr. O'Sullivan: What do you suggest?

Mr. O'Connell: The Irish Free State. A Dominion and the Irish Free State are contradictory; the Free State and the word Dominion appear to me, in any case, to be contradictory. The word Dominion has a historical application. It arose at the time when the British Parliament did, in fact, exercise dominion. In the case of Canada it exercised a certain dominion over the Parliament. If it is the one link that is left—the King's dominion — then Great Britain should be there.

Mr. O'Sullivan: I do not wish to interrupt the Deputy, but I would like to ask him what Dominion does he mean. Does he mean the King's dominion over Canada, or the dominion of Canada over itself? Perhaps the Deputy would disentangle himself.

Mr. O'Connell: Oh no, there is no disentanglement needed as far as I am concerned, if the Deputy will but allow me to continue.

Mr. O'Sullivan: The Deputy referred to certain historical associations, and I think the House would need some explanation.

Mr. O'Connell: If it is a question of the King's dominion, then there is no reason why England—Great Britain—should be left out of this definition of the Dominions. I do not like the word; I think it is a lessening of our status, and we should [2098] not be asked formally to give approval for the first time to the term. Dominion and Free State seem to me to be contradictory. Paragraphs 32 and 33 deal with discretionary and compulsory reservation. In regard to those things they have only, as the Minister said, an academic interest for us. Speaking of reservation, he said that, of course, he did not believe it was right there should be any reservation. In paragraph 32 we have a statement of this kind:

It would not be in accordance with the constitutional practice for advice to be tendered to His Majesty by His Majesty's Government in the United Kingdom against the views of the Government of the Dominion concerned.

In paragraph 33 there is another sentence of the same nature:

It would not be in accordance with constitutional practice for advice to be tendered to His Majesty by His Majesty's Government in the United Kingdom in any matter appertaining to the affairs of a Dominion against the views of the Government of that Dominion.

There is there the idea of the predominant partner; it runs through that that they have the right, as it were, and have special access to His Majesty in order to tender him advice, but of their goodness they are agreeing that they will not exercise the jurisdiction against the wishes of the Dominion. If the Dominion agrees, then they may advise.

Mr. Byrne: They had that right in constitutional law, but now they have not got it.

Mr. O'Connell: If the Deputy gives us a lecture later on constitutional law we will be glad to hear it.

Mr. Davin: We are not all lawyers.

Mr. O'Connell: We are not well up in such matters, and I hope the Deputy will give us the benefit of his advice.

Professor Tierney: What difference would it make if it were in accordance with the wishes of the Dominion?

[2099] Mr. O'Connell: It may be that I am looking at this matter with a greater jealousy than the Deputies on the Ministerial Benches, for the independent status of the Free State. That may be my disability in the matter. There is, to me, in statements of this kind an implication that Britain has some special right of access. Remember that we are co-equal, that there is co-equality. It appears to me there is a special right of access to His Majesty in order to advise him, a right which Britain says it will not now exercise against the wishes of the Dominion; but with the wishes of the Dominion they are free to do it.

Professor Tierney: What difference would it make if it were in accordance with the wishes of the Dominion?

Mr. O'Connell: I am sorry if the Deputy cannot see my point.

Mr. O'Sullivan: Read paragraph 35.

Mr. O'Connell: If the Dominion agrees it can do these things. Will there be reciprocity? Will it be possible under any circumstances for a Dominion to advise the King in regard to Britain, with the consent of Britain? If that would not be possible, then there is no reciprocity and no equality. On the question of extra-territorial rights, Deputy O'Kelly and I are at entirely opposite ends of the pole. Deputy O'Kelly believes that we have no power in our Constitution to have extra-territorial legislation with operation outside the Free State. I hold we have, but I hold also that the Minister is now accepting Deputy O'Kelly's point of view when he is asking us to accept recommendations 16 and 17.

Mr. McGilligan: Paragraph 43.

Mr. O'Connell: Paragraph 43 says:—

It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.

[2100] Is that for the purpose of removing any doubt that may have existed?

Mr. McGilligan: It is declared that the Parliament of a Dominion has full power.

Mr. O'Connell: In paragraph 57 it is stated: “If the above recommendations are adopted, the acquisition by the Parliaments of the Dominions of full legislative powers will follow as a necessary consequence.” The various recommendations are in connection with the Colonial Laws Validity Act, which had only an academic interest for us. The portion of paragraph 57 which I have read is a declaratory portion with regard to extra-territorial power. What is the meaning of the sentence I have quoted? Does it mean that if the recommendations are not adopted, we have no legislative powers?

Mr. McGilligan: No.

Mr. O'Connell: Well then I am afraid that I do not understand the significance of the phrase “full legislative powers will follow as a necessary consequence.” I cannot square that with the Article in our Constitution which says: “all powers of government and all authority, legislative, executive and judicial are derived from the people of Ireland.” Here, it would appear, that the power of extra-territorial legislation will be derived from an Act of the British Parliament.

Mr. McGilligan: No.

Mr. O'Connell: That seems to be the plain implication of the sentence. “If the above recommendations are adopted by the British Parliament the acquisition by the Parliaments of the Dominions of full legislative powers will follow as a necessary consequence.”

Mr. McGilligan: The Parliaments of the Dominions but not the Parliament of the Irish Free State.

Mr. O'Connell: We have defined already a Dominion as the Irish Free State. If the Minister would make [2101] that absolutely clear, and if it were made clear in the Report, my criticism would fall to the ground. That is the basis of my criticism, namely, that while these things are necessary for other Dominions they are not necessary for the Irish Free State. I think the Minister has given away the whole case in that interjection. He has strengthened my argument very much.

Mr. McGilligan: I have not heard any argument from the Deputy which I could strengthen.

Mr. O'Connell: I am sorry for the Minister. “If the above recommendations are adopted by the British Parliament the acquisition by the Parliaments of the Dominions...” He says now that the Irish Free State is not included in that term.

Mr. McGilligan: No, I do not.

Mr. O'Connell: Then I must say again that I misunderstand the Minister. Why did he make the interjection, “Parliaments of the Dominions?” Does that include the Irish Free State Parliament?

Mr. McGilligan: Sometimes and sometimes not. Surely I made the position clear. This Report is meant to govern six communities which are different in their powers at the moment. We want to get a measure which will include them all. Parts of it have no reference to us but other parts have.

Mr. O'Connell: Then why are we asked as a Parliament to ratify a Report which does not concern us?

Mr. McGilligan: Parts of it.

Mr. O'Connell: Why are we being asked to ratify parts which have no concern for us?

Mr. McGilligan: We also have an interest in the general question of Dominion status.

Mr. O'Connell: We should not do anything which would give the appearance of our having a lesser status than that which we have hitherto claimed.