Thursday, 19 May 1932
Dáil Éireann Debate
The said Constitution shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referred to as the “Scheduled Treaty”) which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty it shall, to the extent only of such repugnancy, be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State (Saorstát Eireann) shall  respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.
It is proposed under Section 2 of the Bill which we are discussing to repeal that section. Before I go on with my amendment I want to call attention to all that that implies. Section 2 of the Constituent Act does a variety of things. First of all it gives the force of law to the Scheduled Treaty and having done that, it says that the Constitution which is annexed to this particular piece of legislation shall be construed with reference to the Scheduled Treaty. Thirdly, it says that if there is any provision either of the Constitution or any amendment thereof or of any law made thereunder that is repugnant to the Scheduled Treaty, it shall to the extent only of such repugnancy be void and inoperative. Then it says, fourthly, that it shall be the duty of the Parliament and the Executive Council to pass this further legislation and do all such other things as may be necessary to implement the Scheduled Treaty. The measure we have before us proposes to take away everything that is done by that section. If, therefore, the section is passed as it stands, the only section which gave the force of law to the Scheduled Treaty will have disappeared. Secondly, the only piece of legislation which said that the Constitution would have to be construed in reference to the Treaty will have disappeared and disappeared in its entirety. Thirdly, the only piece of legislation that we have which called attention to the possibility of repugnancy as between the amendment of the Constitution or any law passed under it, and the Treaty will have disappeared. And lastly, the only piece of legislation which imposes on the Parliament and the Executive of the Irish Free State in the new circumstances the duty of passing such further legislation and doing all such further things “as may be necessary to implement the Scheduled Treaty,” will have entirely disappeared.
I propose to restrict the full force of the repeal of that section by adding  to Section 2 of this Bill which we are discussing the words: “so far as it has application to the amendment of the Constitution by the deletion of Article 17 thereof.” If those words were added the section would read:
Section 2 of the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 (No. 1 of 1922), is hereby repealed so far as it has application to the amendment of the Constitution by the deletion of Article 17 thereof.
If that were accepted and passed the situation would then be that, in so far as anything in the Treaty gave to anything in the Constitution the force of law, or that anything in the Constitution gave to anything in the Treaty the force of law in relation to the single item only of the Oath, then the repeal could take place, but in so far as the repeal of Section 2 operated outside the single matter of the obligation to take the Oath, then the effect of the repeal would be stopped.
I want to keep Section 2 of the Constitution Act for a variety of reasons. I want to keep it because it is the only thing which gives the force of law to the Treaty. And in that connection, I want to refer to Article 18 of the Treaty itself. It says: “This instrument shall be submitted forthwith by His Majesty's Government for the approval of Parliament and by the Irish signatories to a meeting summoned for the purpose of the members elected to sit in the House of Commons of Southern Ireland, and if approved shall be ratified by the necessary legislation.” The last phrase is important. I do not know where the necessary legislation exists in this State by an Act of the Parliament of the State if it is not Section 2 of the Constitution Act. And if Section 2 of the Constitution Act is repealed as far as giving the force of law to the Treaty, I do not know how far it can be argued that Article 18 of the Treaty has been carried out. Article 18 of the Treaty clearly demands, in the last words, that the Treaty if approved of— and it was approved of—should be ratified by the necessary legislation; and I should like to have information on  the point as to where is the necessary ratifying legislation required by Article 18 of the Treaty, if the repeal of Sec tion 2 of the Constitution Act is carried out as effectively as is proposed in the original measure. That is the first thing.
I move:—“That the Constitution (Removal of Oath) Bill, 1932, be now read a second time.” Before the last election there was widely published throughout the area of the Free State a manifesto to the electors, in which the Fianna Fáil Party put forward in very explicit terms, the items of the programme which, if elected in a majority, they would endeavour to put into operation.
The first statement there is that the Fianna Fáil Party had put forward a programme in very explicit terms; and the man who formulated that policy gave us a quotation showing what were the explicit terms. The next sentence in his speech is:—
The first item on that programme was as follows:—“To remove the Article of the Constitution which makes the signing of the Oath of Allegiance obligatory on members entering the Dáil.” The following note was added:—“This Article is not required by the Treaty. It stands in the way of national unity and of willing obedience to law. Government by coercion is the result.”
And then the person who formulated that policy, and stated that it had been expressed in very explicit terms, gave us, presumably, the terms in which that policy had been formulated. He went on to say:—
 The programme as a whole might be divided roughly into two parts, the part which had relation to international matters, the external relations of the State, and the part that had reference directly to domestic matters. In order that there might not be in the minds of the electors any misunderstanding as to the extent of the mandate we were seeking, the following paragraph was put into the manifesto:—“We pledge ourselves that if elected in a majority we shall not, in the field of international relations, exceed the mandate here asked for without again consulting the people.”
There are two pledges there. They say that if elected they will not exceed the mandate asked for. And the statement of the President who, as I say, is the man who formulated this policy, is that a manifesto had been put forward indicating the mandate which the Fianna Fáil Party looked to get. It was framed in very explicit terms, and it was that they were to remove the Article of the Constitution which makes the signing of the Oath of Allegiance obligatory on members entering the Dáil. Where are the explicit terms relating to anything more than the removal of Article 17 of the Constitution? The President himself stated:—
Article 17 was the Article aimed at by that specific pledge, and they stated that that mandate would not be exceeded without a further expression of opinion from the people. And yet we are asked to pass a Bill which contains Section 2. Section 2 of the Bill repeals Section 2 of the Constitution Act, and Section 2 of the Constitution Act gives the force of law to the Treaty, makes the Treaty override the Constitution,  and carries out Article 18 of the Treaty, and requires that in case of repugnancy the Executive Council shall take immediate steps to repair the damage that has been done. Relate that only to the mandate which was asked for and which the President stated in the most explicit terms, and where does the President derive his mandate for doing anything more than removing the Article of the Constitution which makes the signing of the Oath of Allegiance obligatory on members entering the Dáil?
I move my amendment as very much the second or even the third best thing. I prefer not to interfere with the Oath in any way whatever. I prefer to abide by the plain meaning of Article 4 of the Treaty, the non-mandatory character of which has not yet been argued, the mandatory character of which has not been controverted in any way. I prefer to abide by the pledges given by the setting of the signatures to that Treaty, by approval of that Treaty by the Dáil which considered it, and by the passing of the legislation which afterwards took place in accordance with Article 18. I moved, as the second best thing, in doing that, that we would keep in the Constitution the exact formula in the Treaty and that was defeated. I now move forward to the third best thing—that if there is going to be any interference with the Treaty as a document, if there is going to be any interference with the position which the President found, the Treaty ratified by necessary legislation, that piece of legislation making the Treaty a superior document to the Constitution and leaving the Constitution necessarily to be read in subordination to the Treaty—I prefer to leave that as it is—but if it is to be changed, I want to have the change confined to the narrowest possible point and brought as near as possible to the extension of the mandate which the President said he got from the people of this country.
In other words, if there is going to be any interference with the Treaty as a document having legal force in this country, it should only be for the purpose of this Act in relation to the deletion of Article 17 of the Constitution. I have heard no reason, so far,  as to why a person who said he got a mandate only for the removal of an Article of the Constitution and who said afterwards that he had pledged himself not to exceed that mandate without again consulting the people, should endeavour to interfere with the whole Treaty document even though he may use the phrase that he is only taking it away from a particular sphere. He has not explained, when it is taken away from that sphere, where it remains. He has not explained in his legislation the conscience which it can be definitely argued lies behind the removal of the Treaty from the Constitution and from law in this country in a Bill which is described in the Long Title as “an Act to remove the obligation now imposed by law on members of the Oireachtas and Ministers who are not members of the Executive Council to take an Oath, and for that purpose to amend the Constitution and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922. I argue —I have had no demonstration to the contrary—that when people, describing themselves as setting out to remove an obligation now imposed by law, bring into that piece of legislation an amendment of the constituent Act of this State and describe it as being necessary for the purpose of removing an obligation imposed by law, they definitely argue by that that the Treaty imposes an obligation to take an Oath —a contention which they have never upheld before, but which they admit by implication is there.
I could make very damaging statements against this amendment of mine. I am prepared to have it argued that to a certain extent it is not a wise amendment, because if the Treaty is to be broken in one part, it does not to any great degree satisfy the other party to the contract that you only break it in one part instead of being prepared to wipe it out altogether. I do not see how it is going to satisfy the honour of honourable people if you, when you set out to break the thing, restrict the breach of it to what you want immediately, and do not bring into your scope what you feel you will require eventually when  you come to ask the people for a further mandate.
I expressed myself as only satisfied with this amendment as the third best thing. The preferable thing was to keep the Treaty and our obligations under it. The second preferable thing was, if there was doubt as to what a phrase in the Treaty meant, to let it be incorporated in the municipal law and let us have the advantage of a trial before a favourable tribunal as to what that phrase meant. When these two things are taken away, I say it is going to be a test of the bona fides of the people who move this measure to see if they accept the limitation of the removal of the Treaty from the municipal law only to the extent required to enable them to do freely this particular breach of honour—the thing particularised in relation to the Oath of Allegiance.
I do not know whether the analogy with other legislation which was said to be planned in relation to the Privy Council is relevant on this amendment or whether it would be better spoken of on the general section. Is that relevant to this discussion, A Chinn Comhairle?
The President: I oppose the amendment. It is intended to make appear that there are in our proposals the implications which Deputy McGilligan would like to have it thought were in them. The difference between our attitude and the attitude of the Deputies opposite is that we say that what we are doing we are entitled to do under the Treaty itself. So far from the position being what Deputy McGilligan would like to represent it as being—that it has not been proven that the taking of the Oath is not man datory—I contend that what has not been proven is that it is mandatory. I have given in full on more than one occasion during these debates the reasoning by which, to my mind, it is evident the taking of the Oath is not  obligatory unless we, by our domestic legislation, choose to make it obligatory. It can only be obligatory if you contend that Canada, Australia, New Zealand, and Britain itself could not remove their Parliamentary oaths if they chose to remove them. Does Deputy McGilligan hold that we cannot do what Canada can do, what Britain can do, what South Africa can do, and what any one of the other States of the British Commonwealth can do, if they have a mind, with regard to the obligations or tests imposed upon those entering their Parliaments? If he does not hold that, are we supposed to occupy some position of inferiority? The question is: Are we on a level with those countries or are we not? If we are on a level with them, as I contend we are, then the constitutional status of Canada or Australia will permit them to remove these oaths if they choose.
The President: There is no use in arguing with Deputy O'Sullivan on this matter because he has probably given no attention to it. His irrelevant question shows that. By and under the terms of the Treaty, we have advanced to-day to the same constitutional status that Canada and Australia occupy. We have either done that or we have not. Which is it? Are the people who told us that we have advanced going to deny it for a political purpose? Was it a lie all the time? It is either the truth or a lie. If it is the truth we have the right to do exactly what we propose to do here, what they can do in Canada or Australia if for their own internal reasons they think it wise to do it. We have either that status in full with all that it implies in Articles 1, 2, 3 and 4—but particularly in Articles 1 and 2—or we have not. We have co-equality or we have not. If we are co-equal we are doing what they can do.
No one will deny for a moment that, if they chose, Canada and Australia could do this. We have advanced step by step. That is the contention of those who took and supported the Treaty.  It is lawful and constitutionally proper for us to do anything they can do. Nothing in this Treaty restricts our status in that respect. Article 4 does not stand by itself. The words clearly indicate that it was never intended to stand by itself. It does not. Its whole force and the very form of the words indicate that it was meant to supplement an implication in Article 2 and to provide here a difference in the form of oath from that taken in Canada. The more you study the question the more you are satisfied that that is so. If Canada can remove the oath so can we. That is our contention. We want to remove it. It is to our interests to remove it. The people of the Twenty-Six Counties have stated that they want to remove it and we are giving effect to their will as we have a right to do. We propose to do this within the terms of the mandate I read in this House which was asked from the people. We are doing it without any violation whatever of the Treaty.
Deputy McGilligan points to my statement about removing Article 17. We are going to remove that Article from the Constitution. That is the part that has immediate reference to this whole question. We are taking the occasion to do another thing which is equally within our right, without in any way infringing the terms of the Treaty, and that is to put the Treaty where those who considered the whole question after the Treaty was brought over, wished to put it originally, namely, as any other treaty between two countries would be put, not in a position of dominance over domestic legislation, and not in a position where our domestic courts would have to take cognisance of it with regard to any other laws that might be passed and to that extent limiting the competency of the Oireachtas. The Constitutional Committee and Sub-Committees considered the question. There were men on the Committee who were thought good enough to be put into the highest legal positions in the State, and the attitude they took up is revealed clearly from the documents available and from the Constitution that was  sent over. Their attitude was that the proper position for a treaty was the position that it would occupy in other countries and between other States. What position do treaties usually occupy? Are they made part of municipal law as a rule? Not at all. They are put into the proper domain, the international domain. We propose to remove this from the domestic domain and to put it into its proper place in the international domain. We are giving effect to something that the Committee at that time thought was right. Perhaps at that time the status not having been recognised, and the co-equality not having been recognised to the extent that it is recognised to-day, they thought they could not do it. We can do it. I say it is the test whether we have the co-equality that we proclaim or not. We shall know what result there will be when this is passed into law. If there is any interference or protest we shall know whether we have, in fact, that co-equality which we are supposed to have.
The primary purpose of this Bill is to remove this Article which makes the taking of a Parliamentary Test Oath necessary by representatives of the people coming here. But the secondary point is to put the Treaty in its proper place. I have said that the first thing can be done without any violation of the Treaty, in virtue of the position which we are supposed to occupy constitutionally. The other thing can also be done in virtue of the same status and rights. It would not be right that a judge in this country should be put in a position in which he would have to veto domestic legislation. That is not the place where the Treaty ought to be put. Its proper domain is in the domain of international law. Deputy McGilligan blandly tells us to get the advantage of a favourable court. What advantage would it be to us? Would not the very fact that it would be said to be a favourable court be sufficient to damn anything that would emerge from it, any favourable judgment that came from it? At present, we are in this unfortunate position that as long as this question remains as it is, if we get a judgment  from those courts in our favour, it will not be admitted by the opposite Party as of any real value and it will be said that it was a prejudiced and a biassed judgment. If judgment was against us, by any chance, what would be the position? Judges are not all geniuses and might easily be wrong in their views. They might be wrong-minded. There is no doubt about that. Supposing, by chance or otherwise, there was a judge whose view was not the proper and the right view, who got some twist in his judgment with regard to the subject and that judgment was given against you where would you be? If it was right it would be said to be biassed. If it was wrong, it would not matter what you said; it would be met with “Oh, even in your own courts judgment has been given against you.”
Why should we allow ourselves to remain in such an altogether prejudicial position? If we are not fools we will not remain in it, and we propose to do what is done in every country in the world with the exception of one country, where treaties like that are put into part of the fundamental law. I only know of that one exception. We did not do it in regard to other treaties. If the claim that is made by Deputies on the opposite benches that this was a Treaty entered into between two sovereign parties, then they must agree to what we propose and they cannot complain that we are putting that Treaty into the proper place it ought to occupy, namely, removing it from the domain of municipal law and putting it into the international domain.
Supposing that we were in the position in which we were going to admit that appeals to the Privy Council were right, would we be satisfied, for example, that there should be a case taken? I am not saying it is so, I am only using it to show what might happen. Supposing in a question like this that appeals to the Privy Council were admitted and that it was not maintained definitely that the Privy Council had no right to judge as a Supreme Court after our courts had  given their judgment? Suppose the position remained in which the Privy Council was the supreme authority, would we be satisfied, after the last election, that the final judgment on matters of the Treaty was to be left to a British court? No, we would not. It is a matter for interpretation by an international court in the proper sense or between the parties concerned.
The President: The Treaty is to be out of our domestic law in its proper place as a matter to be considered between the parties concerned. Look at the position you would have been in if appeals to the Privy Council were to be considered or admitted. Is it not clear to everybody who has got the interests of this country at heart that the freedom of this country, or of this part of the country, that we should insist that that Treaty be put into its proper place and that matters that are international matters be put into the international domain and removed altogether from the jurisdiction of our municipal or domestic courts? Now that is all that is proposed to be done.
We have shown by pointing out that it is a matter of status that we are not infringing the Treaty. The other side are talking about honour and the rest of it, and they maintain without any proof whatever that we are breaking the Treaty. That was the burthen of Deputy McGilligan's whole speech, that we were breaking the Treaty, that our honour was involved, and that we ought to do what decent people would do and all the rest of it. But the Deputy has not shown where we in this Bill are breaking the Treaty. Those who will break that Treaty are those who will deny the advance that is contained in it, and that we are entitled to according to Article 2. We  are told that there are several things involved in the section of the Constitution Act that we are proposing to repeal. I have pointed out why it is we do not want to have our domestic courts involved in interpreting this Treaty. We do not want to have our courts deciding whether or not certain law which we may pass is or is not repugnant to it. That is not a matter for our courts.
The only point in Deputy McGilligan's speech worth paying any attention to is his question: “Where does it get the force of law?” If you remove this particular section, where do you get the force of law? What legislation gives the Articles of the Treaty the force of law at all if you remove this? That is the only point that I think is worth considering for a moment, and I will admit it is worth considering. A great deal will depend upon the point of view from which you approach this Treaty whether it is or is not necessary. Deputy McGilligan refers us to Article 18 of the Treaty itself. He points out that the last line of that Article states that the Treaty “if approved shall be ratified by the necessary legislation.” The Article reads: “This instrument shall be submitted forthwith by His Majesty's Government for the approval of Parliament and by the Irish signatories to a meeting summoned for the purpose of the members elected to sit in the House of Commons of Southern Ireland, and if approved shall be ratified by the necessary legislation.” What is meant there by necessary legislation? “Ratified by the necessary legislation,” what is that? I have said everything depends upon the way you view this instrument. I have my own view of it. I am not going to say whether my view is fundamentally the right view or not. I have tried to argue this as I might expect those on the opposite benches to argue it, because it is those on the opposite benches who stood for it and put it and tried to advance it so as to make the most out of it according to themselves at any rate.
According to the mandate which we have got, I deem it my duty to try to do the utmost following along that line,  which is the only line I am permitted to follow at the moment, and I have tried as far as it is possible for me to deal with it on the widest lines in accordance with the interpretation which they themselves chose to put upon it. There are three ways of regarding this Treaty. There is the view of it that it is an international instrument on all-fours with any other international document. That is the basis that I tried to argue this case upon. But I am quite willing to admit that something may be said on that particular basis for the contention that this section of the Act is the particular section that gives the force of law to the Treaty. That would be referred to as the ratifying legislation. “Shall be ratified by the necessary legislation.” It is an extraordinary thing that there is no mention in the Act itself that it is the ratifying legislation called for in the Treaty, no mention whatever of it.
There is on that basis a certain plausible case that can be made for the necessity of leaving something which will give the force of law using these words “which would give or purport to give the force of law to the Articles of Agreement.” That is again on the ground that this is strictly in the full sense an international instrument. But I would remind the House that the British have been always trying to deny that. On every possible occasion they have striven to deny it. The particular advantage that is to be gained for this country by holding it as such under present circumstances is not quite clear to me.
The President: It is not particularly clear to me at all, but I put it up to Deputies on the opposite benches to tell us what particular advantage are we to get from it. Is it not significant that the British themselves began to talk of it in the terms of a Treaty only when they thought it was to be a barrier to our further progress? But the time when it was being used as an instrument of progress on every possible occasion the British took advantage to dissent from that view.
The President: In general terms it was this: they said that it was an inter-dominion document. That was what they said, and they said it was not of the type that was being covered by the particular agreement referred to. They did not want it to be registered. At the time they objected to its being registered and regarded as a treaty in the full international sense.
Mr. McGilligan: They said they would never consider that the covenant itself or any convention made at Geneva covered the relations inter se of the Dominions. There was no reference to the Treaty at all.
The President: When the Treaty was being registered what was the objection raised to it? What was the need of putting in this special proviso if it were an international instrument? The fact is they did not want it to be regarded as an international document in the full sense.
The President: We will get them in a very short time, and I agree they should be got. If the Deputy looks the matter up I think he will find that at the very start there was quibbling by the British in regard to the Articles of Agreement. When the Treaty was being discussed in the British House of Commons the same quibbling took place. Finally they regarded it as something sui generis. The second view one could take of the Treaty is that whilst being an international document in a certain sense it is not so in the full international sense. The third view of the Treaty is the one the British have all the time tried to force as their view. Remember that we are in argument at the present time with the British, and there is no reason why, if they are putting up a case, we cannot argue it if necessary. There is no reason why we cannot ask them: “What is your view of it?” and see what they are going to say.
What is the case the British have made up to the present? They are claiming that we are breaking this agreement. According to their own case, if you judge the matter upon that, the force of law is given by quite a  different Act altogether from this Act. They would probably contend, if they were driven to it, that the legislation referred to here was not the legislation passed by Dáil Eireann, was not legislation by the only body that could at the time ratify it as a legal instrument. What they want to confine it to is their own legislation. I would like to hear what the British have to say on that matter.
Mr. Fitzgerald: Deputy McGilligan asked what Act will give the force of law to the Treaty if this section of the Constitution Act is removed. Is the President going to propose removing this section so as to establish the fact that the Treaty has the force of law in this country by virtue of the Free State Constitution Act?
The President: If the Deputy will have a little patience I will deal with that matter presently. As I said at the start, the only case in which I can understand anybody having an objection to removing Article 2 is where a person holds that the Treaty is a full international document. I am going to come back to that. We are arguing with the British at the present time. It is the British who are putting up this claim. They are putting it up now because it will suit their purpose to get it from a point of view which hitherto they have been very careful not to accept.
There are three ways of regarding this Treaty and there is a difference of opinion about them. There is the way of regarding it as an international instrument. There is the way of regarding it as sui generis, a sort of document of a peculiar character that could not be classified as a full international instrument. Then there is the third way which is the way the British have been trying to get the world to believe, and that is to regard it as purely British domestic legislation. It is not now that we looked at this for the first time. If anybody cares to look at the Articles of Agreement he will observe they were very carefully drafted so as to be consistent with that view.
We do not see anything about concurrent legislation. It is legislation open to be interpreted as you please, just the same as that other phrase that is left open: “those who were elected to sit in the House of Commons of Southern Ireland.” They do not speak of a composite body of so many persons in order again that it might be ambiguous and be interpreted as each body might interpret it for its own political or other ends. We are dealing with a document quite full of these ambiguities. We are proposing to treat that document in the way that is right for us to treat it, with a full knowledge of the status that we are supposed to have at the moment. If we cannot do this thing, then that is absolute proof that we have not got any status. If we are not prepared to assert our right to it, then we  are not worthy of the right supposed to be in it.
There are three ways of looking at the Treaty—that it is a Treaty in the full international sense, that it is a peculiar sort of agreement, unique in itself, and that it is a bit of purely domestic British legislation. The British have, all the time, tried to regard it as such. They try to have it the other way because it seems to suit their purpose, and because it is going to be regarded as a barrier to our advance. We are supposed to be held back from attaining to the status and the rights that Canada, Australia and New Zealand have. Are we going to permit that? Are we going to see where we stand? We are going to do this and we have the right to do it.
Let us come back to the point and ask ourselves if it is the Constitution Act that forms the legislation here which gave ratification to the Treaty. Is anybody going to tell us that if an instrument was ratified ten years ago, and has been acted upon since—if it was ratified by the necessary Act at the time—the removal from the Statute Book of some particular form of ratification is going to be regarded as a revocation or a breaking of the Treaty? Nothing of the kind has been suggested. It is a well-admitted principle, and I suggest to Deputy O'Sullivan, before he makes mistakes, he should have the authority looked up—it is a well-recognised rule, that the removal of specific ratification of that sort does not, in itself, invalidate the document or remove it from being a binding document in so far as the force of law is concerned. It has the force of law in so far as we want it to have the force of law as a binding document between the two countries, not as an overriding law here, but as a law between two nations.
We are doing nothing here to remove that. The fact that we change that Article is not going to change it. Deputy McGilligan said on a previous  occasion that we are constantly implementing treaties. Yes, we have implemented them. When we come to deal with Deputy Finlay's amendment later we will have an example of that implementation. We have no objection to anything of that kind, but we have a very strong objection to the case we have here of a law overriding and vetoing the powers of this Oireachtas.
I say that the municipal courts are not the places to try out those issues between us and Britain. That is not where they ought to be tried. It is prejudicial to our interest that they should be tried here, because a successful verdict would not be of any value to us, whereas, on the other hand, a verdict against us would be almost fatal. Consequently, I ask the House to reject this amendment. Its only purpose is to try to put us in the position that we refuse to occupy, in the position in which we are confident, so to speak, our own courts would give judgment against us. That is the clear implication of the amendment. This is a precautionary measure simply in so far as the Oath itself is concerned. It is a wise measure, but for entirely different reasons. Apart from being a precautionary measure, in this case it is a wise measure, because it is clearly wrong that our domestic courts here should pass a veto on Acts of the legislature.
Professor O'Sullivan: We have just listened to what, I think, was a Fifth Reading speech. Certainly, if I may suggest it, the speech had precious little to do with the amendment before the House. Most of the remarks of the President were relevant either to a Second Reading speech or to a Fifth Stage speech, but certainly they had got nothing whatsoever to do with the amendment now before the House. I think the President proved quite clearly that his reason for asking the House to reject the amendment proposed by Deputy McGilligan is that he intends to go beyond the mandate that he explained to this House that he had.
Professor O'Sullivan: I am saying  that followed from the President's speech. The President admitted that for the removal of the Oath—for which he did seek a mandate from the people—that this clause, to the extent in which it now stands in the Bill, was not necessary, and that it was for another reason altogether he was asking the House to reject this amendment. The amendment proposed by Deputy McGilligan would have kept this Bill within the four walls of the mandate that the President said he sought and got from the people, but the President would not accept it. Why? There is no good in Deputies on the opposite benches or Deputies in any part of the House shutting their eyes to this: that the reason is because the President wants to go beyond that mandate. This opens the way for future inroads on the Treaty. Is not that the whole position? Is not that really what the President wants? Why else reject this particular amendment?
The President confesses himself that, so far as the Oath is concerned, the amendment will give him precisely what he wants. Why, then, reject the amendment? Having tried to show that this Bill proposes to carry out the terms of the mandate that he holds he got from the country, he then went on to add: “But we propose to do something else, to do something in addition to that.” What does he propose to do? He proposes to leave the way open so that when he is bursting an international treaty he will at least have the mere trappings of legality about it; and he thinks that he can break an international instrument and do so with impunity. Perhaps so, but the one thing he likes to have at his back is some legalistic kind of cover for doing illegal acts. He wants a kind of legal cover for himself. What I mean is that for acts that are illegal and wrong in their essence he wants legal cover. That is why he wants to reject this amendment.
I will have another opportunity of saying something about the general purposes of this Bill, but, not following the example of the President, I will now confine myself to this particular amendment. Supposing his arguments  were true, supposing that the status argument that he brings forward has any foundation for it, is there not one thing quite clear, that he brings that status argument to bear on clause 4 because he holds that we have advanced in status under the first clause of the Treaty? If that is true, then his status argument must apply with a great deal more force to Articles 1, 2 and 3 than they apply to Article 4. They must apply, for instance, to the Article dealing with the relation to the Crown. If the President's argument is true, there is quite as much dead timber, to use his own favourite phrase, about Article 2 of the Treaty, about the Article that settles our relation with the Crown, as there is about Article 4, which, from his point of view, is dead timber. But what does the President want to do? He wants the way open so that he thinks he can legally break this particular instrument—the Treaty. He wants to argue in the coming period: “We can do it legally now; we can remove the Crown, and in doing so we are not going outside the realm of the law; we are doing it legally; we are not acting in a revolutionary manner.”“We can deal with the Crown,” because this, as he himself has made it quite clear, not to this House but to the people, is the next step. I suppose he will tell us that as we had not a static position in 1921 or 1922, and as we have advanced so much, “You can also remove the Crown and yet you are not breaking the Treaty.” That would be a stronger and certainly would be a more valid argument than the argument he put forward so far as the Oath is concerned.
I was surprised that the President, the leader of the Fianna Fáil Party, of the ultra nationalist Party in this House, did not come out before and base the Irish case on the fact that our status was merely dependent on an Act of Westminster. He tries to get out of it and says that he will not do that. That is only an argument ad hominem against the British, but for the sake of that argument ad hominem he is quite prepared to undermine our whole international  status. That is the patriotism that we may expect from the Fianna Fáil Party.
Professor O'Sullivan: Yes, because I know the extraordinary length to which the President will go. He will sacrifice nationality, and everything else, if he can only say “I was right.” What is this whole thing? Why is he doing this? So that if he fails—it does not matter what happens the country if there are reprisals—he can say “I was right and the Nation was wrong in accepting the Treaty.” And now, for that particular reason, we have the Leader of this House, the leader of the extreme national section, self-styled, in this country, basing our whole position on an Act of the British Parliament and not on the Treaty. That is a situation that this side of the House never accepted, during the ten years in which they were the Government of the country. It remains for that leader of the Irish people, that head of the Executive Council, to put forward that argument.
Those who have followed his extraordinary arguments, again and again, will certainly not be surprised at anything he has done, and I was only surprised, not that he thought that, but that he gave expression to it. After all, I do suggest to those who do value the Treaty in any way whatever, that there is an important principle involved in this particular amendment. You cannot imagine you are pro-Treaty, and then be responsible for the rushing through this House of this Bill; you cannot be pro-Treaty and throw the responsibility on to somebody else. The responsibility is on the shoulders of every person who votes for this Bill, and equally, the responsibility will be on those who vote against this amendment. If they want to say that removing the Oath from this Constitution is not a breach of the Treaty, it is a matter we can discuss afterwards. With that particular attitude we can deal on the next stage, but, at least, there is the  opportunity here for confining the operation of this Bill to the mandate that it was alleged was got from the people. There is the “mandate.” Why has he gone beyond that? Because there is an intention to leave the way open to other, and even more serious, violations of the Treaty. That is the only purpose of this section, and let the House be quite clear about it.
We have talk about putting the Treaty in its proper place. There are certain Articles in this Treaty, and it is quite clear that they must have an influence on our Constitution, or else they are inoperative. No legal quibbling of any kind, and no legal argumentation will get over that fact. There are these Articles in the Treaty, and remember, they are the main Articles in the Treaty in many respects; they are the essence of the Treaty and they are the Articles— because the Treaty was an effort to find a way of co-operation between this country and Great Britain and the other members of the British Commonwealth of Nations—that determine that relation, and they are the essence of the Treaty. Now, the effort is to be made to do away with these Articles, to break them, and this is simply opening the door to that particular goal. As I said, if the argument as to dead timber applied to Article 4 is valid, if the basing of the rejection of Article 4 on Article 12 is valid, then it applies still more to Article 2.
The President can put forward as good, or better, a case for getting rid of the connection with the Crown as he can for the removal of the Oath, and still hold that it does not violate the Treaty. Legality is preserved, and the whole Treaty is gone, in its essential Articles, that deal with the connection between the two countries, and yet, according to this new legal phraseology, this new legal light, the Treaty itself still stands. That is the position we are in. We are asking those who think that the Treaty is of importance, who think that an international document ought to be honoured—we have failed up to the present to persuade these people as to what is at stake, to persuade them of the importance of it from our own country's point of view— to agree that this third-best method, at all events, gives very little excuse to anybody who has any pretence to any reverence whatever for the Treaty for not voting for it.
Mr. Dillon: This amendment, in my opinion, is a most mischievous amendment and a most deplorable amendment, because it is calculated to cloud the minds of the people as to the real significance of Section 2 of this Bill. I have always believed, and I still believe, that President de Valera got a mandate in the last election to remove the obligation imposed by the Constitution on members of this Oireachtas to swear an oath of allegiance and I believe, and I was confirmed in that belief by the Attorney-General, when he spoke here, that President de Valera and the Fianna Fáil Government were entitled to do that by Section 1 and Section 4 of the Bill at present before us. I pointed out, however, on the first day, and I am more convinced now than I was then, that Section 1 is being used as a bandage to blindfold the eyes of our people, while they are being led a great deal further than Section 1 ever would make this country go.
Section 2, into which our people are being led under the guise of a Bill simply to remove the Oath from the Constitution, in accordance with the mandate which President de Valera got, withdraws the force of law from the Treaty, and also definitely does away with our guarantee of good faith to the other high contracting parties to the Treaty: that if they, on the acceptance of the Treaty, accepted it in the spirit as well as in the letter, and packed up and cleared out, lock, stock and barrel, we did not expect them after seven centuries of bitter war between these two peoples to bury all suspicion and all apprehensions with regard to our good faith. We demanded, as a result of the Treaty, that they should clear out, lock, stock and barrel, and leave this country to the Irish people, to be run for the Irish people by the Irish people, and they did it. In accordance with the terms of their agreement, and we, on the other  side, said, so far as I can see: “As a guarantee to you, we are prepared to place in the Bill, which will implement our Constitution, a proviso that, if any Act of the Oireachtas is repugnant to the Treaty, or a breach of the Treaty, then by our own declaration we declare that Act to be void, because unless and until we are prepared to tear up all the Treaty, and revert to the status quo ante of 1921, we will not commit a breach of any Article, of any comma or any word, and if we inadvertently do it, we want to give a pledge here and now, that we do it by inadvertence, and will at the earliest possible opportunity honour our bond, and keep our word, or else say that all contractual agreements are at an end between us, and at an end, from both our points of view.”
A strong case can be made for the position that the Treaty is an international document and should not be brought into the arena of municipal law. It is not a proper instrument for the judges of our courts to be passing judgment on at all. I have no desire to go back to the past, or to investigate the circumstances of the Treaty, or what led up to the Treaty. There it is, and it was accepted by the Irish people, and we have to face the present time in the light of the Treaty. There is our undertaking, and there can be little doubt that in drawing the Constitution the British Government was consulted. It was to be read in the light of the Treaty, and it was to contain, obviously, safeguards to reassure the English people, as they were entitled to be reassured, after a protracted period of strained relations, and, as far as I can see from this document, whether it is a normal or abnormal thing that the judges of this country should pass judgment upon an international instrument, unless they accepted the principle that if there was a difference of opinion as to whether legislation of this Oireachtas was a breach of the Treaty or not, and, if the Irish High Court considered it judicially, and gave a verdict that the legislation of this Oireachtas was not a breach of the Treaty, Great Britain was bound by that verdict.
 The President has asked, if we went to a court that understood our point of view, and that was admittedly sympathetic to our point of view, and got a verdict, what good would it do? The other party would take the view that it was the verdict of a prejudiced court and, therefore, they were not bound by it. Would the Irish people take it as a judgment of a prejudiced court? Have we such a contempt for our own judiciary that we do not believe, if we submit a legal problem to them, they will not consider it dispassionately and give a verdict, whether it be popular or not? I believe not. I believe if our judges were called upon to do that, they would do it as judges bound by a very solemn obligation to do their duty without any thought of popularity or public feeling. If the other party, which I do not believe, poured scorn on that verdict, the Irish people would not pour scorn. The Irish people would support the Irish Government in sustaining the verdict of our judiciary in going forward to implement the people's will in accordance with the Treaty as declared by our judiciary, and I have very little doubt that if any external Power, or any Power joined with us in the Commonwealth of Nations, sought to coerce our people and to throw scorn upon what was an accepted means of arbitration between our Government and the British Government, then the Irish people would not be behindhand in supporting the Irish Government to the fullest possible extent to honour a verdict that the Irish Government had secured in the way they announced they were going to look for it.
The second argument the President put forward is that Section 2 does no more than relegate the Treaty to the sphere to which it ought to belong. He emphasised, and rightly emphasised, that Section 1 is not a breach of the Treaty. Why on earth does he proceed to deal with a very complicated and delicate constitutional question in the same Bill in which he deals with the abolition of the obligation on Deputies to take the Oath of Allegiance? If one is not a  breach of the Treaty, what connection is there between the two things, and why drag them in together? Does he not rob every member of this Oireachtas of his calmness of judgment and absence of passion in examining the other question on its merits? There may be a very good case for altering the status of the Treaty in connection with the Constitution, but it is one which ought to be considered calmly, without any national feeling of violence or anything else, and without any feeling engendered by what a large number of Deputies feel is a bitter injustice on Deputies? Deputies on the Government Benches, if we believe them, and I believe them, feel that they were brought into this House, labouring, from the very first day they were in it down to date, under a bitter sense of injustice. It is to redress that injustice that we are asked to pass this Bill, to remove that obligation which they think is an obligation of perjury on them. Is that the atmosphere to consider a complicated constitutional adjustment? Is that the atmosphere in which to invite the opinion of the country on this most delicate and difficult question? I cannot imagine that it is.
Why I describe this amendment as so mischievous, irresponsible and silly is that it is going to confuse the whole issue in the country. It lays the Opposition open to the suggestion that they accept the principle that if you only knock a little chip off the Treaty it does not matter, but be careful you do not knock a pretty big lump off it. If you knock one portion off the Treaty, then you ought to renounce the whole document. Unless you are prepared to do that, you should not touch a letter or comma in the Treaty. Here you have an amendment standing in the name of the ex-Minister for External Affairs suggesting that we should cling to the Treaty, but that we should pare off whatever little bits we do not like. That is the meaning of the amendment. I have no doubt that the Deputy has the pious intention of voting for his amendment, and then voting against the Bill as he himself has amended it, but I cannot admire  the logic of that procedure. Either he believes in the Treaty, as I do, or he does not. If he does, then that amendment helps him in no way. It is confusing the issue in the country, and, even now, I only wish Deputy McGilligan would withdraw the amendment and let the country know what the true significance of Section 2 is.
I want to say that I consider the action of the Leader of the Opposition in allowing Sections 2 and 3 to pass through Committee by agreement without giving the House ample opportunity of debating them has done incalculable harm, because the vast majority of the people do not know what Section 2 is. All they know is that there is a Bill to remove from the Constitution the obligation to take the Oath, and the vast majority of the people approved that course. And, approving that course, they were vouchsafed no opportunity by the Leader of the Opposition of being informed as to the nature of Section 2 or Section 3. The result is that the people have been given no opportunity of shouldering the full responsibility that they are going to be asked to shoulder if the Bill passes through the Oireachtas.
I saw where a member of the Labour Party referred to that very question down the country and I heard the comment made upon his speech. He reiterated a feeling that many people who are anxious to see the Fianna Fáil Government go ahead and thrive and prosper felt, and that was, that at the beginning of their economic and political policy they were going to do something for which the people would call them strictly to account; and they say this, that they were going to lead the people into legislation that the people do not understand and that the people never bargained for. I say that the Leader of the Opposition has a grave responsibility upon him for not insisting upon the Government giving the House an opportunity of discussing that section fully in Committee and when it was standing alone and could be discussed upon its merits, divorced from the other part of the Bill. It does not belong to the Bill; it ought not to be in the Bill; and it would not  survive debate in this House if it were debated upon its merits, without Section 1 beside it.
In my opinion the attitude of mind that regards it as a horrible crime that a situation might arise in which the legislation of this Oireachtas should prove to be at variance with the Treaty is all wrong. So long as Section 2 of the Constitution Act (No. 1), 1922, stands, that is our pledge of good faith, and if, in passing this Bill, which I believe the vast majority of the people want, we inadvertently do something which is not in accordance with the Treaty, there is nothing dishonourable in that. At the present moment, the French and Swiss nations are at variance about something being done by Switzerland which France alleges is a breach of the treaty obligations between these two countries. The appropriate tribunal, no doubt, will be approached and the matter will be put to arbitration, and if it be that Switzerland has gone beyond what she was entitled to do in the light of her contractual obligations, I do not think any national dishonour will accrue to Switzerland if she mends her policy and alters it in accordance with her treaty obligations, or else denounces the treaty. Here in this House, if we were dealing with Sections 1 and 4 alone, even though we differ with the other high contracting party as to our obligation under the Treaty, I do not think we would be putting the honour of the nation in jeopardy or peril. The Tribunal is there, and if anyone feels that we have gone beyond the limits which we ourselves had set in the Treaty and in the Constitution Act, there is nothing dishonourable, in the face of such a verdict being handed down, in our mending our hand and in President de Valera going back to the people and saying: “I cannot do what you gave me a mandate to do, unless you give me a further mandate to declare a republic and tear up the Treaty.” If he did that, no one could suggest that he had done anything which would tarnish the honour of the nation in the slightest degree.
I regret that by introducing  Section 2 and 3 into this Bill President de Valera has done something which I cannot help but describe as deception of his own people, deception of the Irish people. The Irish people do not know at this hour the implications of Section 2 and 3.
Mr. Dillon: I will. To my mind, Section 2 pledges our honour to the other high contracting party that we would not pass legislation or amend the Constitution of this country in any way which would be repugnant to the Treaty or, if we inadvertently did so, then, so far as that legislation was repugnant to the Treaty it would be null and void. I say that that was our pledge of good faith in exchange for their clearing out, lock, stock, and barrel, as I said a few moments ago. The repeal of Section 2 also withdraws the force of law from the Treaty in this country. I say that if President de Valera announced during the recent election campaign that he proposed in this Dáil to take power to withdraw the force of law from the Treaty—I do not say that he should announce that he was going to pass legislation, but that he was going to take power to pass legislation repugnant to the Treaty—I do not believe he would have got a mandate to do so.
Mr. Dillon: I do not think that it would be appropriate on this occasion for me to venture further with the President than to say that the words of Section 2 of the Constitution Act of 1922 set out what that Act proposed to do. These words, so far as I am aware, are pretty clear. The section says:—
The said Constitution shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referred to as “the Scheduled Treaty”) which are hereby given the force of law...
Now, unless the meaning of the English language has changed since I learned it, if you repeal an Act of Parliament which gives the force of law to a document set out in a Schedule you withdraw the force of law from the document set out in the Schedule. The section goes on to say
and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State (Saorstát Eireann) shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.
I said that if President de Valera had told the people that he sought their mandate, not only to remove an injustice from the elected representatives of the people, but also to withdraw the force of law from the Treaty, and to take powers to pass legislation so as to amend the Constitution in a manner repugnant to the Treaty, I do not believe that President de Valera would have got the mandate he did.
Mr. Dillon: I am not in a position to say categorically he would not. I believe he would not have got it. I believe that the President has repeatedly said that he knows the people in this country are not yet prepared to follow him into a republic out of the Commonwealth of Nations. I agree with him. I should be long sorry to see them come to the resolution that they should take that course of bitter individual nationalism when all the advantages of freedom are to be had in association with other independent nations. But that is beside the issue. The issue is that if President de Valera sought a mandate for a Bill containing Section 2 alone, is there any member of the House who believes he  would have got the mandate he got? I say he would not. I believe he would not, and I say this, well knowing the President's astuteness as a politician, if he thought he would have got a bigger majority he would have put that programme before the people. I say now that so fundamentally different are Sections 1 and 2 that they should never have been brought together in the same Bill. The two things cannot be dispassionately considered when brought together in one Bill. I say the President should have introduced a Bill containing Sections 1 and 4, abolishing the Oath, and no more, in accordance with his mandate. He would then be free, if he thought that the national status of this country required it, to prepare a Bill defining the national status of this country as it has at present developed, and then he might have laid that Bill before this House for full and patient consideration. If he wanted to fight a general election on the declaration of the existing status of this country he could have gone to the people and fought it on that. If he did so, I doubt very much he would have got the verdict that he got in the last general election.
It is because that aspect of the situation is being confused by this irresponsible and silly amendment that I have described it as I do. Such amendments serve no purpose. They do not improve the Bill in the slightest. They simply appear for the purpose of trying to push the President into a difficult position, which is a very worthless and silly purpose. It is none of our business to press the President into a difficult position when engaged in international negotiations.
Mr. Dillon: But our duty is to let him know, and let him know in an unquestionable manner, what we believe the people want, and anyone who fails in that duty now will have to answer for it to the people when he meets them again. There are many things that many of us may not agree with in the Fianna Fáil policy. Some of us believe that for the welfare of the country  Fianna Fáil should have its chance. I was prepared to go a long way to help them in so far as in me lay to have their chance to put their policy into operation and to do their best for the country, but I am not prepared to betray the solemn undertaking that I gave to my constituents, and that was that I would not support President de Valera if his policy was calculated to lead us into actual or economic war with any other nation in the world or amongst ourselves.
If Section 2 is passed, withdrawing the force of law from the Treaty and taking power to pass legislation repugnant to it, I believe that President de Valera will have led this country into grave danger of an economic war with nations that otherwise would be friendly and favourable to this country. I am quite satisfied that there is no danger of actual war, but the ordinary consequences of grave diplomatic difference between two countries will follow. Whether with France, America, Great Britain or any other country, if you flagrantly, in their mind, depart from a solemn undertaking, inevitably consequences will ensue. I am satisfied that in Section 1—and Section 1 of the Bill is the only effective part of the Bill— President de Valera is doing nothing calculated to provoke strained relations between Great Britain and this country. I am equally satisfied that in Section 2, which is as different from Section 1 as chalk is from cheese, President de Valera is doing something which will bring this country into the gravest possible danger of strained relations with Great Britain, that will have economic repercussions upon this country, that will jeopardise the whole plan of social reform and the economic policy of the Fianna Fáil Government. I will not be a party to something which puts the future of the country in jeopardy, and I will not be a party to an amendment drawn up to embarrass President de Valera and calculated only to bamboozle and blindfold the people of the country as to the exact nature of what they are being led into under Section 2 of this Bill by the Fianna Fáil Party.
Mr. Fitzgerald-Kenney: I wish to assure Deputy Dillon that we do not consider it a small thing to knock a chip off the Treaty. We consider that the Treaty should stand, stand in its entirety, stand as a whole. We stand behind the Treaty as a whole, and we stand by every single line of it. We do not condone, and never will condone, knocking off a chip or paring a bit off the Treaty. We stand against this Bill. We stand against the whole of it. We stand against Section 1, Section 2 and Section 3. We stand against Section 1, because Section 1 is a clear violation of the Treaty, a violation of that clear statement in the Treaty that the Oath to be taken shall be in the particular form therein set out. Nothing can be plainer, nothing can be clearer, nothing can be more specific than that. I know that sometimes the minds of certain individuals may be brought by very hard labour to think what they want to think, but I cannot understand how anybody can bring his mind, no matter what tortuous path he may have taught his mind to tread, to believe that you can go straight in the teeth of a specific Article of the Treaty and say that you are not breaking the Treaty. The Article is there perfectly plain, and to violate that Article is to violate the Treaty. There could be nothing plainer than that.
President de Valera talked, as he has been talking before, about the power to remove the Oath and the growth of our status. We have power to remove the Oath. We have power to smash the Treaty. We have that; no one has ever denied it, We can do it. You are within the legal competence of this country in breaking the Treaty, as you are now breaking it by this Bill. No one has ever denied it. You can do it, but to have the power is one thing and to exercise the power rightly is another thing. To have the power to act does not justify you in acting immorally or acting wrongly, nor does it justify you in breaking your pledged word. President de Valera's type of mind seems to be this: he has the type of mind that believes that if he has power he  can exercise that power for any purpose, right or wrong, moral or immoral. He cannot. We have got power under our present position to remove the Oath; but you cannot do that, you cannot remove the Oath without violating the national conscience and attacking and disgracing national honour.
Mr. Fitzgerald-Kenney: I was endeavouring to follow President de Valera's argument. I was coming on to his argument with reference to the powers of Canada which he was allowed to put to the House. He said that Canada has power to take away the Oath. I say she has not.
An Leas-Cheann Comhairle: I am sure that President de Valera was kept within the bounds of order. The only thing of which I would like to remind the Deputy is that what we are discussing is an amendment to Section 2, which has no reference to the Oath.
An Act to remove the obligation now imposed by law on members of the Oireachtas and Ministers who are not members of the Executive Council to take an Oath and for that purpose to amend the Constitution and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922.
An Leas-Cheann Comhairle: Clearly Section 1 specifically sets out one  purpose, the deletion of Article 17, and then Section 2 is by way of an amendment of the Constitution of the Irish Free State Act, 1922. Then to that section there is an amendment to add the words: “So far as it has application to the amendment of the Constitution by the deletion of Article 17 thereof.” That does not discuss whether we have power or have not power to remove the Oath out of the Constitution.
Mr. Fitzgerald-Kenney: I am not disputing your ruling. I never dispute the ruling of the Chair. The only thing was that I was trying to follow the wording of President de Valera's argument as I have taken it down. If I am not entitled, on your ruling, to deal with the arguments he puts forward in support of the section, then of course I accept your ruling, and I must leave most of President de Valera's speech undealt with.
Mr. Fitzgerald-Kenney: The effect of the section as it stands is to invalidate the entire Treaty. About that it seems to me there can be no question. It is stated, as clearly as it could be stated in the Treaty, that the Treaty, if approved, shall be ratified by the necessary legislation. If it were not ratified by the necessary legislation then it ceased to be binding. I quoted here, on the Second Reading, very learned authorities on the well-established principle of law, that if you repeal a Statute you are exactly in the same position as if that Statute had never been passed. If you repeal now this legislation which ratifies the Treaty you are exactly in the same position as if that Statute had never been passed. You are in the position that the Treaty is not ratified by appropriate legislation.  You are taking away that legislation, and you have then nothing in this country which gives to the Treaty the force of law. That is the position into which you are coming. Suppose your deliberate object is to repudiate the Treaty, suppose you had no other object except to repudiate the Treaty, what course would you take? What is the appropriate way of repudiating the Treaty? What is the first and most necessary step to repudiate the whole Treaty? To repeal this one Statute, No. 1 of 1922. Repeal that, and what more do you want? What other step is requisite? That is the Statute which ratifies the Treaty; that is the Statute which gives it the force of law; and there is no other step necessary for you, nor indeed do I know what other step you could take, to repudiate the Treaty except the repeal of that section.
The President: This is very important. I want to ask a question and the question is this: Will Deputy Fitzgerald-Kenney tell me of any British lawyer who would quote that Act as an Act for the ratification of the Treaty by legislation? Will he show  me any single instance of any Act in which the Treaty has been referred to and in which such Act is referred to as an Act for the ratification of the Treaty?
Mr. Fitzgerald-Kenney: It must be ratified by the legislation of both parties. The parties there came to an agreement. That agreement was not valid until not merely the contracting parties but the Parliaments behind them had ratified it, and had passed the necessary legislation. And that is the legislation which you at the present moment are taking away. And, as I say, the step and the only step which it is necessary for you to take to repudiate that Treaty is to repeal that section, which by Section 2 of this Bill now before the House you are seeking to do.
Deputy McGilligan's amendment says: “Do not do that. It is true you are breaking the Treaty in one respect, but do not break it completely, do not fling it to the winds, it is bad, it is terrible, it is wrong to break the Treaty, but it is worse to tear up the whole document and say that the Treaty has no binding force in this country.” And what is the reason against this amendment? What is the objection? President de Valera talked about the judges. He said that it might come before the judges, and that they were wrong-minded judges or judges who would not take a proper view of things. I suppose everybody is wrong-minded who does not completely agree with what that very learned and well-trained lawyer, President de Valera, thinks. I suppose nobody takes a proper point of view unless he takes President de Valera's point of view. I suppose that that is so. But what is the necessity of the attack upon the Irish Bench made by the President? What is the reason of it?
The President: As a personal matter, I did not pass any reflection whatever  on the Irish Bench. What I was talking about was whether as a matter of general principle a treaty should or should not be made part of a domestic law; and I say that as a matter of principle it is not right that an arrangement between States should be decided by domestic judges, inasmuch as it can never be decided fully.
Mr. Fitzgerald-Kenney: Of course, I accept the President's statement that when he spoke about wrong-minded judges and judges who would not take a proper view of things, he was talking of some court outside Ireland, outside the Free State.
Mr. Fitzgerald-Kenney: I see. But the President seems to forget that neither before wrong-minded judges nor right-minded judges unless the amendment is passed, can the question of the Oath ever be brought. That is what the amendment means. That is just the one thing that the amendment does and nothing else. If you pass this Bill as it stands, then the validity of this Statute cannot be tested in the Courts. The one argument that you had put forward in any way relevant to this Bill under Section 2 was this: that it might be tested in the Courts. That is what I understood the President was putting forward, and that the Courts might take a wrong view. If I am not mistaken that is the view that the Attorney-General put forward the other day-that the Courts might take a wrong view, and that was the only argument relevant to the Oath question under which Section 2 comes in at all. If this amendment were accepted you would not have broken or torn up the whole Treaty. You would have broken the Treaty in one very important matter, you would have violated the Treaty, but you would not have torn it up and put it into the scrap heap. And that is what the amendment means. It means that and nothing else. We are standing,  as I say, for the whole Treaty. We do not condone and will not condone—as far as we can we will oppose to the end—any alteration of the Treaty except by the consent of the two high contracting parties. A contract is a contract, a bargain is a bargain, a man's honour is a man's honour, a nation's honour is a nation's honour. And the man who violates his word or the nation that breaks a clear contract are alike—disgraced. And we oppose and we will continue to oppose to the very end a national disgrace. I am utterly opposed to the whole Bill. I am more opposed to Section 2 than even to any other part of the Bill. I do not say with this amendment that Section 2 will be a passable section. I would vote for an amendment against Section 2, and I put it forward for the consideration of Deputies, that Section 2 even as amended will still be left as a disgrace to this country but it will be less disgraceful amended than unamended.
Attorney-General (Mr. C. Maguire): I confess that I have a certain amount of difficulty in dealing with the legal aspect of this question, a difficulty which does not arise from the question involved, but a difficulty in attempting to advance an argument in the atmosphere which has grown up in this House. It seems to me that the Deputies who have spoken have treated this question as if they were lawyers arguing before a competent tribunal. We have a number of amateur constitutional lawyers on the opposite benches who are prepared to lay down the law upon any subject, municipal law, international law or any other kind of law. We have Deputy McGilligan and Deputy Fitzgerald who apparently fancy they know everything that is to be known about the status and rights of this country and the exact implications of the Treaty. They are to be the guides for everybody in the interpretation of these documents. We have in the person of Deputy Dillon a very young lawyer who on the Second Reading delivered himself of the speech, without waiting to listen to the arguments, to which he apparently finds himself tied now. I can only state that it  would seem to me that this is not the proper place for one to enter into elaborate arguments as to why this particular section should stand. As the President said, I find this difficulty, that if we had to argue this matter before an international tribunal with the British arguing against us as to whether this was a breach of the Treaty or not they would not advance the arguments advanced here. I am satisfied that Deputies know that and that Deputy Fitzgerald knows that. As I said on the First Reading, they are not treating the country or the Government properly. They are involving this question in an atmosphere in which it should not be involved. We should have been allowed to deal with this question as one between us and England and not one between the two political Parties in this House. I can only say with regard to Section 2 that I have formed my own opinion that its removal does not in any way violate the Treaty. I am supported in that view by the opinion of every single lawyer that I have consulted— and I consulted a large number of them. Deputy Dillon, fresh from the country, without any training beyond the fact that he has just been called to the Bar, professes to have the sole understanding of the exact position as to the removal of this section.
Deputy Fitzgerald poses as an international lawyer. I would like to ask in the first instance how comes it that Section 2 is in the Constitution at all? Where is the Article in the Treaty that obliges the Dáil to insert or retain that section in the Constitution? Is there a single Article in the Treaty which calls for the insertion of that over-riding provision in the Constituent Act? All we have listened to goes on the basis that in this Article, as Deputy Dillon put it, there is an obligation of honour which is being broken by the removal of this section from the Constituent Act. So far as I can see, the application of the Treaty as an international document stands in exactly the same position when this section is removed from the Constituent Act as when it was there. All that is being done, as the President over and over again  stated, is to remove from the courts the right to interpret the Treaty in the light of this over-riding provision. There were a lot of suggestions that the courts might bring in a wrong verdict on an important question of this kind. Is it not monstrously unfair to the courts to have such a question as this—a question of status—thrashed out in a domestic forum? Is there any parallel to it in any of the other Dominions? Is there any parallel to it in any of the other States forming the British Commonwealth of Nations? Why are we to have such an overriding provision in this Constitution of ours? I suggest that this argument has gone along wholly wrong lines, and that the removal of this section in no way alters the position as between the two countries, and that the suggestion that we are tearing up the Treaty and violating the Treaty is absolute nonsense. I believe it is nonsense to the knowledge of a number of people putting forward that argument here. I repeat that I had the views of eminent constitutional lawyers before this section was put in. I challenge Deputies who criticise us—particularly Deputy McGilligan and Deputy Fitzgerald—to say if the legislation which they proposed to introduce in connection with the Privy Council would not have to contain the same section.
Mr. Maguire: The cat is out of the bag at last. The legal advisers of the late Government proposed to introduce the same section into their Bill to alter the appeal to the Privy Council. Were they tearing up the Treaty? When we hear the fulminations from the opposite benches——
Mr. Maguire: I accept Deputy Blythe's statement that the Cabinet turned it down. What their motive for turning it down was it is not necessary to examine. I would emphasise that apparently the legal advisers framing the Bill to deal with the appeal to the Privy Council considered it appropriate and not violating the Treaty to insert such a section in their draft Bill. That is what I say. This is an unreal fight and I cannot understand the motives behind it.
Mr. Maguire: I cannot understand what the “Hear, hear!” is about. I imagine if a Bill came before the Cabinet for consideration with that section, the Attorney-General must have submitted it as a proper Bill to bring forward.
Mr. Maguire: Deputy Hayes may have misunderstood what I said. I have not said that I am aware of what the advice of the ex-Attorney-General was. All I say is that if a Bill reaches the Cabinet with such a section, I presume such advice has been given. That is all I say. The reasons which would inspire the removal of the section in order to enable the appeal to the Privy Council to be removed would be, I suggest, exactly the same reasons which have been advanced here in support of the Bill to remove Article 17. I do not know whether it is necessary to go into all the pernickety details raised by  Deputy McGilligan. Passing away from the repugnancy question and answering the Deputy as to where the force of law is got for the Articles of Agreement, I say again that the Provisional Parliament which framed this Constitution was constituted under the terms of the Provisional Act. The first section of the Provisional Act gives the force of law to the Treaty. The fact that it gave the force of law to the Treaty is repeated in various places. It is repeated in an agreement which we will consider on Deputy Finlay's amendment. The very position that was necessary to have this Constitution framed depended upon the force of law being given to these Articles. These words “in so far as necessary to give the force of law,” to my mind, are mere surplusage. The force of law is not being taken away by anything we are doing here so far as the force of law is required. If you go back and depend on a British statute the cry will go up that you are making a case which is inconsistent with the case made here.
Again, I say when these people ask us to argue the legal case out in detail here, we must consider that we are being listened to across the water just as we are being listened to on the benches opposite. I do say that the argument advanced here would not be advanced by Mr. Thomas or his advisers.
I go back to Section 2 for a moment. The only reason I can find why Section 2 should have been put into the Constitution in the way in which it is framed is that the framers of the Constitution considered it was not a Treaty. That is the only thing which would necessitate its being put in the dominant overriding position in which it was put in the constituent Act. If the document was a Treaty, carrying international obligations, what was the necessity for inserting it in the Constitution? There is no parallel to it that I know of. In any case, as has been pointed out, even if at that date it had that overriding force and stereotyped our Constitution in a particular way at that time, surely it has been admitted, over and over again, that events have so changed that position that it is  necessary, in order to make the law accord with the now admitted facts, that that section should be removed from the Constituent Act, and that, as the President said, the Treaty should be put in its proper place, or allowed to take its place as an international document, if it is an international document and if it is a Treaty. It will surely have the same binding effect whether or not we take this ineffective and futile section out of the constituent Act. We are merely removing it so that a very absurd position should not continue to obtain—that a matter which this House has decided should be referred to certain judges to pronounce as to whether the decision of the House is contrary to the provisions of an international document or not. That is the sole purpose for which we are taking it out. I do not agree for one moment that taking it out is in any way breaking any obligation created by the Articles of Agreement for a Treaty, or that it is sweeping away, or taking away, the force of law from anything that requires the force of law in these Articles.
Mr. M. Hayes: This is an amendment to Section 2 of this Bill. One wonders why the amendment would not be accepted. One wonders why the people who profess that all they want to do is to remove the obligation which rests upon members of the Oireachtas to take an oath would not accept this amendment. The history of the amendment is interesting. How do we come to move this amendment now? The Bill before us has as its Short Title “The Constitution (Removal of Oath) Bill.” I commented here before on the fact that that is a dishonest, political title, intended, as Deputy Dillon said this evening, to deceive the House and to deceive the people. The Long Title of the Bill is “An Act to remove the obligation now imposed by law on members of the Oireachtas and Ministers who are not members of the Executive Council to take an oath, and for that purpose to amend the Constitution and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922.” We were against the Bill, root and branch. We voted against  the Bill on Second Stage. We voted against the operative sections in Committee. Now that the Bill is on Report, the best thing that can be done is to make it into a Bill which honestly and fairly, on its own face, is what it purports to be and is no more than it purports to be. We want, by amending Section 2, to make the Bill a Bill to remove the Oath, and for that purpose to amend the Constitution and the Constitution Act.
The amendment we are discussing proposes to add at the end of Section 2 of the Bill, which repeals Section 2 of the constituent Act, the words “so far as it has application to the amendment of the Constitution by the deletion of Article 17 thereof.” Why would that amendment not be acceptable? Why cannot the Bill be made, so to speak, into an honest measure— into a measure which removes the Oath and which, by amending in a particular way Section 2 of the constituent Act, removes from the courts of this country—this is the Attorney-General's point—any power to decide whether what we are doing now is contrary to municipal law or not. Why would not Deputies opposite be honest and do that? Why would they not make the Bill into a Removal of Oath Bill instead of being what it is, a Removal of Treaty Bill?
Things have been said here this evening which may be slightly outside the scope of this amendment but I suggest that they are really all part of the one topic. Deputy Dillon spoke of not interfering with the Executive Council when engaged in international negotiations. The President spoke about being in argument with the British and the Attorney-General spoke about our treating this subject here as if it were being argued before an international tribunal. He said that that was quite wrong. I think he was right in saying it was quite wrong—if that was what was being done. He said that the question whether this Bill, in any of its sections, was wrong should be left to the Government. I agree that it should be left to the Government if the Government were going the right  way about it. Nobody should interfere with the Executive Council if the Executive Council were engaged in international negotiations. The President wanted to know why we did not demonstrate that to delete this section from the constituent Act or to delete the Oath from the Constitution would be a breach of the Treaty. I am not at all concerned to demonstrate that or to find arguments for anybody to use against the Government of this State if the Government of this State were entering upon this matter in the proper way——
Mr. Hayes: They ought not to be allowed to judge. Surely the people elected here should be allowed to judge. Surely the fact that the President has been put into office by a small majority vote of this House does not give him the right to break up our international relations, does not give him the right to proceed to do what he pleases with regard to the fundamental document on which this State rests? That is the most extravagant claim which has ever been made from the seat the President now occupies or from a similar seat in any other Parliament. The President owes his position not to a majority consisting solely of his own Party but to a majority resting upon the Labour Party and upon other Deputies, like Deputy Dillon, who made it quite clear that whatever his sympathy is with the economic policy of the Government he has no sympathy with its present political policy. The President now claims that the Government should be the judges.
The President: What I do not understand is the difference that the Deputy makes out between interfering with the Government in negotiation and interfering in this particular case in the way the Deputy wishes to interfere.
Mr. Hayes: I think I can make myself quite clear. I do not know what  remark Deputy Cooney interjected, but I expect that is an advantage both to the Chair and myself. What I say is that if the Government were engaged in international negotiations it would be the business of the Opposition here to be silent while they were so engaged, and if that were what the Government wanted. It would be, further, the principal business of the Opposition and of any skilled persons in the Opposition to assist the Government to make their case in these international negotiations. That, I am sure, would be the attitude of this Party. If the Government were engaged in international negotiations they would have, as they chose and as they might deem most suitable or helpful to them, either silence or assistance, whether given privately or publicly. That is my view of international negotiation.
Surely the doctrine could never be held, and I wonder at the President preaching it, that the Opposition is to be silent while the government, instead of conducting negotiations about an international treaty, proceed to claim that they have the right to interpret the Treaty any way they please. Surely a Labour man who, as most Labour men generally have, has some experience of what happens in the case of disputes, realises the necessity for holding a conference in order to come to some agreement. It is only a little over twelve months ago when a labour dispute arose and some Labour members interested in the dispute came to me and said that it was a matter that could be settled by conference and agreement. It was ultimately so settled, and an agreement was arrived at that if differences of interpretation arose the parties would meet in order to compose those differences.
What is happening in this case is that a difference of interpretation has arisen in regard to a treaty, and this Government refuses to negotiate at all. I do not see why the President should say that he is arguing with the British, because he does not seem to be arguing at all. I think the President is correct in saying that some treaties, at any rate, need not necessarily be part of our municipal law. The difficulty is that he is not treating this document  as a treaty at all. He is taking it out of international law. As far as I can understand from the Attorney-General, although this is a question between two States, it is not being taken up in the manner in which questions between States are usually taken up. This Government is going to take a particular line of its own, so that we are not going to have the Treaty in our municipal law and we are not going to negotiate with the other party at all.
The refusal to accept this amendment makes one thing quite clear. The fact that the Government will not accept it makes it obvious that their purpose is to smash the Treaty. The fact is that they are an anti-State and an anti-Treaty Government, and they have been placed in power by people who have always professed the reverse of that policy—by people who are pro-Treaty. That is the position. The sole aim and purpose of the rejection of this amendment is to enable the Government to be in the position to give some form of legality here to their purpose and intention, which is to break this Treaty and to be able to say to their extremist followers: “Not only have we removed the Oath, but we have made the way plain and smooth for the removal of the Treaty.” That is a procedure which is not treating the people or the House squarely. I merely want to deal with that particular point.
The President stated that the Treaty should not be part of our municipal law; that treaties should be subject to agreement and should come before the international court. There is no arrangement here for an international court—none whatever. There is no talk of agreement here. There can be no doubt that the purpose of this Bill goes much further than its Short Title indicates. The Attorney-General devoted all his arguments to explaining that Section 2 of the Constitution Act is not necessary and ought to be repealed. If it ought to be repealed. it ought to be repealed in a separate Act. The Government should have proceeded by way, first of all, of saying: “We will repeal Section 2 of the Constitution Act,” and having done that they could introduce a series of constitutional  amendments calling them, for example, Anti-Treaty Amendment Number 1; an Act to remove the Oath. That is what they are doing here, and they will not accept the amendment because they do not want to accept a limitation upon their powers. Having got people a certain distance, they want to force them the whole way.
I was rather interested this evening in observing that we have had no contribution at all on this question from the Labour Party. During the past ten years one frequently heard the protestations from the Labour Benches that they accepted no guilt for any kind of strife in this country; it was always somebody else's fault. The members of the Labour Party have an opportunity here of making this Bill honest by restricting it in some way. If they refuse to accept this particular opportunity they will not be able to play the Pontius Pilate any longer. They will not be able to go to the country and to say to the people: “It was not we who did it; it was de Valera.” They are going to do it themselves now. The attitude of the Government in refusing this amendment makes it quite clear that the Bill aims at removing the Treaty, and the purport of all the arguments used to-day by the President, who referred to the Treaty and not to the amendment, proves that his Party are aiming to remove the Treaty entirely, not only from the Constitution, but from the realm of international documents.
Mr. Finlay: Two arguments have been addressed to this House by the President of the Executive Council in support of Section 2 of the Bill before the House. The first argument is based on the relation of Section 2 of the Constitution Act, 1922, to the question of the removal of the Oath. If I may summarise the argument of the President with regard to Section 2 of the Constitution Act in that particular reference it is this: “We do not want the question as to whether the Oath is mandatory or not decided by the judges in this country. They may be wrong-headed.” I do not know the  exact interpretation which the President puts upon the description “wrong-headed,” but apparently his view is that if the judges should take any other view than that expressed by him to this House they would be “wrong-headed.” Other people may have quite different views on that matter. The second argument which he addressed to the House in support of the repeal of Section 2 of the Constitution Act is the argument, which clearly is not within the mandate which the President said he got from the electors of this country, namely, that it is necessary to remove the Treaty from the domain of municipal law. A repeal to effect this purpose is clearly not within the ambit of this Bill and it should properly be brought into a separate Bill, as suggested here by Deputy Hayes; it could and should be brought in a Bill entitled “An Act to remove the Treaty from the domain of municipal law.”
If the President went to the people of this country and if he explained to them the full implications of doing that, and if he were returned to power having asked the people for a mandate to that effect, he would be entitled to come before the House, ask us to give effect to that mandate and to repeal in full Section 2 of the Constitution Act, 1922. What is the effect of Section 2 of the Constitution Act, 1922? On the Second Reading of this Bill I expressed my view of the effect of this section and I invited the legal advisers of the Government to controvert my legal propositions if they were in a position to do so. No proper answer to my propositions has been given here either by the President or by the Attorney-General. I suggest that neither on the Committee Stage nor on this, the Report Stage of the Bill, has the President or the Attorney-General put up any argument controverting the proposition; that Section 2 was in the first instance enacted by the Parliament of this country ratifying the Articles of Agreement for a Treaty of 1921; that, secondly, it gave to the Treaty the force of law here; and, thirdly, and perhaps most important of all, that it set for the country and for the  Oireachtas a headline which was this: that it was a declaration on the part of the Oireachtas that in legislation we would not attempt to break or violate the Treaty entered into between this country and Great Britain on 6th December, 1921.
What is the effect of this amendment? Deputy Dillon complains of the form of the particular amendment which has been introduced here by Deputy McGilligan. Deputy McGilligan has explained that it is only the third-best thing that he could do in the situation, and I agree that it is only the third-best thing that could be done. But it is this: Different views have been expressed in this House as to whether the Oath in the Treaty is mandatory or not. I quote from the Attorney-General, Volume 41, No. 4, column 1010, where he says:—
First, on the question as to whether the Oath is obligatory or not, I admit that there are two views. Any lawyer would be silly, on a difficult question which has been discussed over several years, to lay down positively that his own interpretation of certain things is absolutely the correct one. I admit that there are two views. I say that there are eminent lawyers, men whose eminence would be admitted by every Deputy on the opposite benches, if I mentioned their names, who do hold that the Oath is not obligatory. They hold it for different reasons from the reasons that Deputy Finlay made such amusing play with and which were repeated by Deputy Wolfe and Deputy McGilligan.
There you have the responsible legal adviser to the Government in this House saying that there are two quite genuine legal views as to whether the Oath is mandatory or not. What is the effect of this amendment? It is only the third-best thing we could do, but it is this: We want to put the Government in this position that at least they will say, not alone to the country but to the other contracting party to the Treaty, “We are sincere about this question of the Oath. We do not believe that this is a breach of  the Treaty. We are willing to negotiate and settle on the basis of the Oath alone.” If this amendment of Deputy McGilligan's were accepted it would have this effect, that it would limit any inroad on the Treaty to the immediate question which is before the House, that is as to the removal of the Oath.
But the President of the Executive Council in refusing to accept his amendment goes a great deal further, and I am sure he can tell the people outside this House that he will go a great deal further than the removal of the Oath. He wants to set the headline once and for all that this House should have no regard whatsoever in future legislation to the obligations of the Treaty of 1921. For the purpose of avoiding the issues which are really involved in the repeal of Section 2, the President attempts to suggest that this Treaty or Articles of Agreement for a Treaty of 6th December, 1921, did not constitute a Treaty in the international sense. During the course of this House what has never defined to this House what is a treaty in the international sense.
Neither the Attorney-General nor the President challenged in any way the definition of a treaty in the international sense which I gave on the Second Reading of this Bill here. That is, that it is a contract between two States not depending on its mere form, but depending on its substance, by which the two contracting States are bound. I went further and said that the fact that one of the contracting States at the time the Treaty was entered into was not a recognised Government did not convert the document which they executed into anything but a treaty. I said that you had here in 1921 functioning in this country a de facto Government which claimed international recognition, that they went forward and negotiated this Treaty, and a Treaty it became when approved by the peoples of both countries. That has never been controverted.
What does the President do to-day? He attempts to suggest that the sanction for this Treaty of 1921 comes not  from any legislation passed by this Oireachtas but from the Statute of the British Parliament, the Act known as the Irish Free State Agreement Act, 1922. That Act was passed in March, 1922. What is the effect of that Act? If the President would only look at that Act in conjunction with Article 17 of the Treaty he will see that the sole purpose of that Act was to enable the British Government in the first place to ratify the Treaty on behalf of the British people, and in the second place to enable the necessary transfer of functions to be made from the British Government to the Provisional Government which was set up here as a result of the Treaty. If the President has any doubt as to my view that the only sanction for the Treaty in this country, the only ratification of the Treaty in this country is our own Constitution Act of 1922, let him look to the views of the judges of our own country. These judges have not attempted to filch away our international status and our Treaty position in the manner attempted by the President here to-day. These same judges are the people whom the President has described as people who might give a wrong-headed opinion; but when they got an opportunity of interpreting our Treaty rights they were, unlike him, jealous to safeguard them.
The position as decided here by the judges, to whom the President is afraid to leave the question as to whether the removal of the Oath is a breach of the Treaty or not, is this: They declared that the Treaty took effect from the 6th December, 1921, and that the British Parliament had no power whatsoever to legislate for this country as from the 6th December, 1921. The only sanction which is given in this country for the Treaty is our own Act of 1922. I will go further. Before the President and his Party came into this House this Oireachtas had declared its position with regard to the British Parliament and its power to legislate here subsequent to the 6th December, 1921.
If the President will look at Section 40 of the Finance Act of 1926,  passed by the Oireachtas, he will see that this House in that section recognised there was a doubt that this country would be bound by the British Finance Act of 1922, which was passed prior to the transfer of the functions of the Revenue Department to this Government. There was a declaration by the Oireachtas of this country's international status subsequent to the 6th December, 1921, and the President, in order to support his argument in respect of Section 2, falls back on a line of argument which, if it were accepted by the people, might have great reactions on them in the future with regard to our Treaty rights. That argument is to the effect that the sanction of the Treaty comes from the British Act of 1922 and not from our own. Perhaps the President is out to prove something which he has not mentioned at all. Perhaps it is an attempt on his part to prove that the Irish people never ratified the Treaty. If that is what he is out to prove, I can assure him that the Irish people ratified it in 1922.
What did the Attorney-General tell Deputy Davin when he asked him a question? He said that apparently Section 1 of the Constitution Act of 1922 gave the Treaty the force of law here. I will ask Deputy Davin to read this section, which is as follows:
Because the Attorney-General gets up and tells us that it is certainly his view that the sanction and the force of law which is given to the Treaty here is by Section 2 of the Constitution Act of 1922, and I ask the House to pay more attention to the view of the legal adviser of the Government than to the legal view purported to be expressed by the President.
Mr. Finlay: I ask the Attorney-General if he has read the opinions of our own courts as to whether the Treaty was fully effective from the 6th December, 1921; if he has read the opinions expressed by our own judges that the British Parliament had no power to legislate for this country subsequent to the date of the Treaty, viz., the 6th December, 1921, and whether he is prepared to state to this House that he disregards the opinions of the judges expressed in the Supreme Court of this country that the Treaty took effect from the 6th December, 1921? If he is prepared to state that he disregards these opinions, I would listen to his argument that the Treaty got sanction from an Act of the British Parliament, the Irish Free State Agreement Act, 1922, and not from our own statute of 1922? If he is not prepared to state that—I feel sure that he will not state  it—then I say that he has made no case whatever for his argument that the Treaty got sanction from an Act of the British Parliament and not from an Act of our own Parliament. If the Attorney-General believed in the view which has been expressed by him, why has he not advised the Government that to achieve their avowed purpose, namely, to remove the Treaty from the domain of municipal law, it would be necessary to repeal Section 1 of the British statute—the Irish Free State Agreement Act, 1922? What does ratification mean? Surely it is common sense to say that ratification by parties to any document or contract means an act by both of them signifying their consent and approval of it. Unless there is in the document or contract itself a provision that ratification is to be unilateral, and there is no provision in the Treaty of 1921 that it is to be ratified by one party and one party alone, the ordinary meaning of ratification, i.e., the expressing or signifying approval by both parties must apply to the Treaty. It is idle to suggest that the sanction to this document of the 6th December, 1921, so far as this country is concerned, came from any act other than our own Constitution Act, 1922. What case has been made to the country for doing away with the ratification of it, for doing away with the legal effect which is given to it, for cutting away once and for all the headline which we, as an honourable people, should set to ourselves, and that is that in passing legislation we would have regard to our Treaty obligations?
This section, if it is allowed to go through, is simply an inroad on the Treaty position generally. What further does it do? It is going to create a sense of insecurity in the country that nobody knows where legislation is going to lead them. If the Government are sincere in their protestations that they are going to pass this Act first, and then negotiate with Great Britain—and may I say there have been no negotiations whatever up to this—is not their position ten times stronger by accepting this amendment, which at least will have  the effect of saying: “Well, there has been an argument in our own Parliament about whether the Oath is mandatory or not, but in any event we have taken good care to preserve the general Treaty position except in respect of this particular question upon which we are going to negotiate?” They would be able to say that if they accepted this amendment. They are not able to say that now because if they carry the section without amendment it is an express declaration on their part that, irrespective of the question of the Oath, for the future the Treaty is not going to be the headline for our legislation, but is to be disregarded in any legislation that we may want to enact.
Mr. Little: It seems to me that Deputy Finlay has more clearly than anybody else shown that this amendment is a breach of the attitude which the Cumann na nGaedheal Party takes up. It is a breach in this sense: they hold that Section 2 of the Constitution Act is fundamental to the situation, and that any interference with that is an interference with the implementing of the Treaty. Deputy Finlay said that Section 2 ratified the Treaty, that it gives it the force of law and that it is a declaration that we will not violate it by legislation. Then he turns around and he admits that his amendment—the amendment of his Party—is an inroad on the Treaty. It is only a small inroad, he says. Well either it is a breach or it is not a breach. Either this section is essential or it is not essential. If it is essential, any breach of it is a breach of the whole. If it is not essential, then a mere minor breach does not matter, and it would have been a far better thing for the Cumann na nGaedheal Party to have been perfectly frank and to have taken up the attitude in public which they took up in private and have allowed the complete removal of this section.
Mr. Fitzgerald: These arguments are getting more and more complicated because the position of the Government seems to be changing from day to day. On the Friday,  when the President made his long speech he asserted that he would never negotiate with the British Government except on the question of the reunion of this country. On the following Tuesday he said that, as soon as this Bill was passed into law, he was prepared to hear what the British had to say to it. We understand from the President and from the Attorney-General that they are in negotiation with the British Government. The Attorney-General says very strongly that this is not the proper place to argue as to whether this section should or should not stand. he suggests that we are doing grave national harm by making the points that we are making. It seems to me that if any crime has been committed in this matter it has been the crime of the Government in introducing this Bill here. The Government has undoubtedly authority from God and we owe it allegiance and submission. It has brought this Bill in here to be discussed, and it is asking us to participate with itself in an act which is, we believe, directly contrary both to moral principles and to the well being of this country.
They brought this Bill in for Deputies to discuss it but now they turn around and want to gag us. They say that we are actually injuring them in their negotiations with Great Britain. If they are negotiating on some delicate point with Great Britain, then I quite agree that it may be necessary at times to have what is called secret diplomacy. I think diplomacy is generally better without very much of the light of day on it. If that is the position then they had no right whatever to introduce this Bill. Why did they introduce it? The President told us that in a Fianna Fáil manifesto they gave an undertaking to the people that they would remove the Oath, that the Oath was not mandatory and that they would not go beyond that point. Deputy McGilligan in introducing his amendment referred to that attempt at justification on the part of the President for the introduction of this Bill, and pointed out incidentally that Section 18 of the Treaty requires, if approved, that it would be ratified  by the necessary legislation. He asked where the necessary legislation was once this had gone. The President got up and he took a very advantageous point of view. I knew a man one time who used to go about amongst people arguing religion. He always asked what the other person was, and then proceeded to attempt to demolish his point, but he always refused to say what his own religion was. The President, when he gets up and argues, tells us that the argument he is putting forward is the sort of argument that we on this side might make. Then when we ask him what the position is he says that Deputy McGilligan would be quite right if this document is actually a Treaty, but he says there is another way of looking at it, of saying that this document is sui generis. Then he says that the British have never admitted that it was a Treaty. In the end he did not tell us what his point of view was. In introducing this legislation here, what has he in his mind? When he gets up to speak you would expect that he would get up to make known, by means of his voice, what his mind is thinking—of course we know that when he signs his name to a solemn document, he does not consider himself bound by it, but merely regards it as giving his autograph—but it may be that when he makes speeches here and in the country, he merely regards himself as giving a little recitation, and does not intend to be bound by them. We have asked a certain question and he told us that there are three ways of looking at it—the Treaty, sui generis, or the British denying that it was a Treaty— and he sat down without telling us on what basis we were to discuss this matter. He said the British always refused to admit that this was a Treaty, and he referred to the matter of the registration of the Treaty at Geneva. In any discussion as to whether this was a Treaty or not, between us and the British, what was the outcome? What was the outcome as to whether this was a Treaty to be ratified internationally in Geneva, or not? The outcome was that it was ratified.
 The Attorney-General, time and again, seemed to suggest that there is threatening us all the time the British point of view that we inherited a static position. If there was ever any attempt to argue that, on the British side, the British had to run away from it, and every development that has taken place in the last ten years has been a clear admission that no such situation existed. We took this as a Treaty, and every act and every development that has happened since has been in accord with its being a Treaty, and in disaccord with any argument that it was not a Treaty. It has been registered in Geneva, and what the President wants now is, that, having by virtue of this Treaty, as a Treaty, won our side all through—and this Bill to my mind is essentially dishonest, and an attempt, if you like, at dishonesty on the part of the Irish people—having forced the British to agree on every occasion for the last ten years that this was a Treaty, we are now going to turn round and say: “We were fooling you all the time. It was not a Treaty, and we are not going to be bound by anything that would bind us if it were a Treaty.” That is the only way I can see it.
This amendment, I admit, has no great appeal for me. It is perfectly clear to every honest man that the Treaty did make the Oath mandatory, and if anybody has any doubt about that, the one person to convince him is the President. He said here to-day, and he said on a previous occasion, that Article 4 does not make the Oath mandatory, because it was only introduced to provide for a variation of the Oath, as distinct from the Oath in Canada. He knows perfectly well that in the Treaty discussions the whole argument was on Article 4, it being the identical Oath that is taken in Canada. The delegates on behalf of the Irish people argued to have that Article omitted, and the British insisted on having it in. The whole crux of the Treaty argument turned on that, but the British insisted that Article 4 should go in stating specifically that we in this Dáil should take the identical Oath taken in Canada, and President de Valera says:
“Of course, you see that it is quite clear it is not mandatory, because it was only put in to provide for a variation in the form of Oath.” He knows, and nobody knows better than he does, that that is absolutely contrary to truth. He knows that the whole crisis in the Treaty negotiations was based entirely on that Article 4 providing for no variations in the Oath at all, but providing for one thing, that we should, by our Treaty obligations, be bound as a State to see that the members who came into the Dáil to legislate took an oath.
Mr. Fitzgerald: The Attorney-General said something like this, that we were only able to pass the Constitution by virtue of the Treaty, and that is the answer to himself when he asks as to why this Treaty is incorporated in the Constitution. It is the most appropriate place for it. As this State came into existence by virtue of the Treaty, and within the limits and ambit of the Treaty, it was the most appropriate place for it. In some cases, when a treaty is made between two countries, it may have relation to customs preference. In that case, the provision of the treaty is incorporated in municipal law in the Finance Act, because that is the appropriate  way, as the terms of the treaty relate to customs duties. Our Treaty dealt with our status and our existence as an independent State, and our constitutional position, and I do not think it is even denied by the Government that the terms of the Treaty, whatever they may be, or however they are interpreted, are binding on us.
The President said he thought that it would be a most disastrous thing that the judges should be put into the position of vetoing domestic law. Of course, it would, I quite agree. Judges will only be put into the position of vetoing domestic law when we, by our domestic law, attempt to break our international agreements. International agreements are binding as municipal law. If the Government want an instance of it, there is the Constitution of the United States, as I have said before, which prohibits the importation of alcoholic liquor. If a policeman in New York arrests the captain of the “Mauretania” and brings him before the courts, is that captain going to be prosecuted, and the contents of his ship confiscated, according to the Constitution of America? Of course not. International law there is overriding municipal law, and here, also, international agreements are overriding municipal law, and rightly overriding municipal law.
It has been proposed that it be taken out of the realm of municipal law, and relegated to where it belongs, to the realm of international law. The Treaty imposed certain binding things upon us here. How are they going to be made binding here? Have we a special branch of international law binding on the people here? Is there not necessarily some implementation, that when this State has entered into agreements with other countries that affect our internal affairs, and we have agreed to them internationally, as is done in thousands of treaties, they shall actually receive all the legal sanction internally that is necessary for their fulfilment?
It is, to my mind, perfectly clear that this is a constituent Treaty. Its fundamental purpose was to provide for the existence of the Irish Free  State and the terms of its existence. Its existence is primarily directed by its fundamental law, which is its Constitution, and that Constitution should not, nor should any of our law, in any way contravene the terms of it. So that it comes back to the question as to whether what is being proposed here is a violation of the Treaty.
I am quite satisfied myself that the Oath is binding and that the President agrees with me. He knows perfectly well that Article 4 has existed in the Treaty, having no relation whatever to any variation of the Oath. He knows that if it were a fact that the taking of the Oath flowed solely from Articles 1 and 2, then there would have been no need whatever to argue that matter. He was prepared to break with England and face the continuation of previous conditions rather than agree to Article 4 being there. He now turns round and says that it did not matter twopence whether Article 4 was there or not, that it was only providing for a variation in the Oath; if it was not there at all there was going to be the Oath taken in Canada. He was prepared to plunge the country into war, as he did on that very question of Article 4, and now he comes along and says that it does not matter twopence whether it is there or not, because if it were not there we would still have been bound in 1922 to take the Oath that is taken by Canada.
I cannot see that either the Attorney-General or the President has made any case whatever against the amendment. Even if this amendment were carried I am quite satisfied that we would still be breaking the Treaty, and that we would be still destined to national disaster, both from an economic point of view and the point of view of national honour. If the President does believe what he has time and again assured the people, he will at least make it clear to the people and to the British that it is no dishonesty on his part, but only stupidity which is misleading him if he does not accept this amendment. The amendment seeks merely, as has been pointed out by Deputy Finlay, to make the Bill conform with its title, which says that it is to remove the  Oath from the Constitution. He has assured us that the sole purpose of the removal of Section 2 of the Constitution Act is to prevent the question of the Oath coming before the courts. Deputy McGilligan introduced an amendment which actually provides for what the President says he requires and, at the same time, limits it, because the President has not said, for instance, that he wants to have power here and now to remove the King from being a constituent part of the Oireachtas. All that the amendment does is to exclude from the ambit of the Bill these other things which the President assures us he has no intention of doing until he goes before the people again.
I should like to have heard either from the Attorney-General or the President some case made. But the President, as I said earlier, only put up what he said were arguments that ought to be made on this side, and then told us about the things that the British Government might or might not do. He did not tell us on what platform he was taking his stand. The Attorney-General assured us that we ought to have a “hush-hush” policy, that we should not argue the case at all. He expects us to sit down and be parties to passing an Act here which we believe means national dishonour and national disaster rather than to handicap the Government that ought to have negotiated with the British without any argument here, but wanted before negotiating definitely to break the Treaty so that he can go to the British with the accomplished fact, as so many people do, and say, “I have done it now; I cannot go back on it; what else do you want?”
Mr. Norton: I only want to make a very brief contribution to this debate. I think I would be expressing the view of the ordinary man in the street if I said that so far as the plain people of the country are concerned, as distinct from the dialecticians who find a way into this House, they would be very glad if this Bill were passed and removed from the realm of the caustic and recriminatory discussion which has surrounded its passage through the House.
 One is glad to see that there has been a considerable improvement in the tone of the Cumann na nGaedheal utterances to-day. On the last day the Bill was discussed we were told there were going to be economic and financial reprisals and all kinds of impending disaster. To-day, I am glad to notice, there has been a good deal more moderation in the speeches, and Deputy Fitzgerald deserves to be congratulated on the rather moderate speech he delivered, as compared with the speech full of brimstone and fire he delivered on the Second Reading. In my view, both Deputy McGilligan's amendment and Deputy Finlay's amendment have been very astutely worded. I imagine it is more to put the Labour Party in difficulties than to save the Treaty that these amendments have been introduced. I want to assure Deputy McGilligan and Deputy Finlay that the Labour Party are going to be in no difficulty in repect of these amendments.
Mr. Norton: The Labour Party will be in no difficulty in explaining their attitude towards this Bill. They will be in no difficulty in explaining their action on the repugnancy section of the Constitution Act of 1922. Having listened to a few of the speakers on the Cumann na nGaedheal Benches saying that the Bill was a renunciation and a repudiation of the Treaty, we eventually came nearer the truth when Deputy Finlay said that the Bill opened a way for an inroad upon the Treaty. I wonder who is expressing the Cumann na nGaedheal point of view. Is it Deputy Finlay, who says that it opens a way for an inroad on the Treaty, or the other speakers who say that it is an attack on and a repudiation of the Treaty, putting the point of view of the Cumann na nGaedheal Party? Deputy Finlay's speech, I think, answers effectively the allegations made by other Cumann na nGaedheal members, that the Bill is a repudiation of the Treaty. The Bill is no such thing as a repudiation of the Treaty. Let me be quite definite in saying that the  Labour Party do not in any way regard the passage of the Bill as a repudiation of the Treaty or an infraction of the Treaty. Deputy Finlay said it was opening the way to inroads on the Treaty. Perhaps it does. But nobody questions the right of this country, if the country so wishes, to tear up the Treaty. Even Cumann na nGaedheal Deputies admit that we have a perfect right to go out of the Commonwealth and repudiate the Treaty. The question as to whether we will go out of the Commonwealth does not arise on this Bill. Whether we will repudiate the Treaty by passing the Bill likewise does not arise. These must be matters for the future, to be discussed and decided with advertence to the circumstances of the future.
Deputy McGilligan, who was a last-ditch supporter of the Treaty the last day, and would not touch anything that savoured even of breaking it to the slightest extent, has found it possible to march a certain distance now towards breaking the Treaty, because his own amendment, if carried, and related to a statement that the removal of the Oath breaks the Treaty, amounts to this: that Deputy McGilligan is perfectly prepared to give his hall-mark of approval at least to the breaking of portion of the Treaty.
I suggest to Deputy McGilligan that if his amendment is carried it will be the first distinct declaration by this House that it regards the removal of the Oath as the breaking of the Treaty. The Government have not said that the removal of the oath is breaking the Treaty. It is left for Deputy McGilligan to submit an amendment which, if carried, amounts to an inference that the Treaty is broken and that all he wanted was to limit the extent to which the Treaty was broken. The viewpoint strongly suggested from the Cumann na nGaedheal Benches was that there should be negotiations opened up on this matter. Perhaps in normal circumstances there might be negotiation, but one finds it difficult to understand the point of view of Deputy Hayes who now wants negotiations when during the past ten years the Party of which Deputy Hayes was a member had taken no steps to negotiate  upon this important matter. We heard a milk and water shilly-shally explanation as to why the Cumann na nGaedheal Party could not have opened negotiations. If negotiation is the right policy now, it was no less the right policy in the last ten years, and if there were no negotiations in the past ten years responsibility rests with the Cumann na nGaedheal Party, who, we are told so frequently, were the greatest possible friends with the British Government.
The Labour Party's attitude in connection with the Oath is that it is useless and unnecessary and that Britain ought to have no right to insist upon 213 members of the Oireachtas here taking that Oath. The Oath, and the question of whether there is not an Oath is a matter for the domestic legislation of this country. It is not a matter that Britain ought to interfere in, and it is, I think, certainly not a matter to justify Britain using the big stick in the fashion that Mr. Thomas has wielded it in the last few months, and in particular there is no justification for the threatening manner in which he wielded it in the last week. I think Mr. Thomas's declaration last week has done a good deal to blow sky high the co-equality and free association talk we hear so much about from Deputies opposite. Co-equality and free association is the basis of our relation with the other States of the Commonwealth, but Mr. Thomas has put the cat among the Cumann na nGaedheal pigeons when he says: “Co-equality and free association, if I allow you to have them, and you will have just such a Constitution as I permit your State to have.”
Mr. MacDermot: I intervened before to interrupt Deputy Fitzgerald-Kenney and say on the same ground that it seemed to me that we will never get  on to the final reading of this Bill if we are to have second reading speeches on these amendments.
Mr. Norton: Deputy Fitzgerald made up for that and I suggest he was permitted very considerable latitude. Our view of the Oath is that it is a fertile cause of discontent and strife at home, and I think its removal will go a good way to establishing peaceful conditions in this country, and for that reason we are opposed to the Oath and are prepared to vote for this Bill in all its stages.
The question of the repugnancy clause is raised and we are asked to believe that the removal of the repugnancy clause means that the whole Treaty would be invalidated; that it would be no longer a Treaty and would no longer have any value as a Treaty. But during the whole course of the world's history treaties have been negotiated between different nations. I wonder would Deputy McGilligan tell us in what cases these treaties governed the municipal law of the different nations who were parties to them. Does he suggest, for instance, that the Treaty of Versailles governs the relations of Germany to France or of France to Germany? The Treaty of Versailles and every other treaty has a certain standing and value, but it ought to have no value, and really in the world to-day it has no value, so far as governing municipal life or the law of a country is concerned. The Treaty will stand as an international document between the two nations. There is no proposal in this Bill in any way to break any of the clauses of that Treaty which are mandatory as between the two nations. The Treaty consists of articles, some of which may be said to be international articles governing our external relations with Britain and some of them certainly are domestic articles; and in the matter of domestic  articles we have a perfect right to grow with these articles. A nation has a perfect right to put a fair interpretation on the relationship of these domestic articles that concerns its general domestic life. There are other articles of an international character that bind the relationship of the two States. There is no proposal in this Bill in any way to affect any one of the articles in the Treaty which can be described as international. The deletion of the repugnancy clause has this value to me, that it will put the Constitution in a position that the Constitution of this country should occupy, namely, that the Constitution should be the superior document. Our domestic legislation ought not to be governed by the Treaty, which, because of its very character, could never adequately govern our domestic legislation. The deletion of the repugnancy clause will make the Constitution the superior document, and I personally am standing for making the Constitution the superior document rather than making the superior document the Treaty, which, because of its character in the circumstances under which it was negotiated, is quite an unsuitable document for being made a superior document in the matter of our municipal legislation. What we advocate to-day, just the same as we advocated in 1922, is that the Constitution should be the superior document. Ten years have passed and we are pleading to-day the very same point of view as we pleaded in 1922, namely, that the Constitution should be the superior document, and we believe that the deletion of the repugnancy clause will ensure that.
Mr. O'Sullivan: I am not referring to any speech that Deputy Davin made recently, but to a speech he made in this House in 1922, when we were discussing this particular question of the Oath in the Constitution.
Mr. Norton: I want to conclude by expressing the point of view of the Labour Party that the passage of this Bill and the deletion of the repugnancy clause is not an attack upon the Treaty; it is not an infraction of the Treaty, and in no sense justifies the dire forebodings of the Opposition Deputies. The Labour Party takes the view that the issues which the Cumann na nGaedheal Party say are involved in this document are not involved in it. The speeches from the Opposition Benches are an attempt to play on the fears and the nerves of the people. On a previous occasion we had the people threatened with economic and fiscal reprisals.
I think the sooner this Bill is passed —the sooner the Oath is removed and the sooner the Constitution becomes the superior document of the country —the sooner we will have some kind of domestic peace. We can certainly strengthen the constitutional position of the nation and this Legislature can get down to dealing with these economic problems which are of much more vital importance to the people than purely political questions of this character. I want, therefore, to get rid of this Bill, to see it passed at the earliest possible moment so that the Legislature can devote its time to bread and butter questions instead of listening to the dialectics that come from the Cumann na nGaedheal Benches.
Mr. MacDermot: I want to ask a question. I am anxious to make a few remarks on this Bill before it passes from us to another place. These remarks are completely irrelevant to Deputy McGilligan's amendment, but I can see a danger that one may be shut out if Second Reading speeches continue to be made on these two  amendments. What I want to ask is whether I can rely on an opportunity being given for speaking for about five minutes.
|Alton, Ernest Henry.
Beckett, James Walter.
Bennett, George Cecil.
Broderick, William Jos.
Byrne, John Joseph.
Collins-O'Driscoll, Mrs. Margt.
Cosgrave, William T.
Craig, Sir James.
Dillon, James M.
Dockrell, Henry Morgan.
Doyle, Peadar Seán.
Duggan, Edmund John.
Finlay, Thomas A.
Gorey, Denis John.
Hassett, John J.
Hogan, Patrick (Galway).
Minch, Sydney B.
Mongan, Joseph W.
Murphy, James Edward.
Myles, James Sproule.
O'Brien, Eugene P.
O'Donovan, Timothy Joseph.
O'Hanlon, John F.
O'Higgins, Thomas Francis.
O'Reilly, John Joseph.
O'Shaughnessy, John Joseph.
O'Sullivan, John Marcus.
Reynolds, Mrs. Mary.
Shaw, Patrick Walter.
Thrift, William Edward.
Browne, William Frazer.
Corish, Richard. Hogan, Patrick (Clare).
Kelly, James Patrick.
Keyes, Raphael Patrick.
Lemass, Seán F.
Little, Patrick John.
Lynch, James B.
Maguire, Conor Alexander.
Murphy, Patrick Stephen.
Murphy, Timothy Joseph.
|Corry, Martin John.
Crowley, Fred. Hugh.
Curran, Patrick Joseph.
De Valera, Eamon.
Dowdall, Thomas P.
Flinn, Hugo V.
Gorry, Patrick Joseph.
Hayes, Seán. Norton, William.
O'Kelly, Seán Thomas.
O'Reilly, Thomas J.
Powell, Thomas P.
Ruttledge, Patrick J.
Ward, Francis C. (Dr.)
Amendment declared lost.
Mr. Finlay: I move amendment 2:—
In page 1, before Section 3 to insert a new section as follows:—
“Notwithstanding the provisions of Section 2 hereof Article 10 of the Treaty of 1921 shall continue to have the force of law.”
The purpose of the amendment is to preserve for a large number of civil servants certain rights which they acquired under the Treaty.
Article 10 of the Treaty of 1921 provided: “The Government of the Irish Free State agrees to pay fair compensation on terms not less favourable than those accorded by the Act of 1920 to judges, officials, members of police forces and other public servants who are discharged by it or who retire in consequence of the change of government effected in pursuance thereof.”
Those rights were given by Article 10 of the Treaty to civil servants, but it was held in certain cases which came before the courts in this country that those rights were only enforceable or, in fact, justiciable at all in the courts or before any other tribunal by reason of the fact that Article 10 of the Treaty formed part of the municipal law of Saorstát Eireann.
The effect of the repeal of Section 2 of the Constitution Act 1922 is to remove the legislative force given to the whole Treaty, and incidentally to Article 10 by the Act of 1922. If Section 2 be repealed simpliciter as the various stages would show it will be, the effect is that Article 10 of the Treaty will no longer have the force of law or form part of the municipal law of the Saorstát. The position then of a large body of civil servants would be this, that while certain rights were conferred upon them by Article 10 of the Treaty—the right to compensation on certain terms on their discharge, the right of certain terms of compensation on their retirement, and —perhaps the most important right in existing circumstances—the right to retire voluntarily on Article 10 terms if their further tenure —which word “tenure” includes their conditions of pay and emoluments—be in any way infringed. Those rights could not be enforced by them or would not be justiciable by any court or tribunal if Article 10 of the Treaty had no longer the force of law.
In the course of the debate on the last amendment we heard that apparently divergent views prevailed on the Government Benches as to what enactment gave the force of law in this country to Article 10 of the Treaty, and constituted it part of the municipal law of the country. I have said in my remarks on Deputy McGilligan's amendment that it is perfectly clear, to my mind, that the Act which gave legislative force to the Treaty, including Article 10, and which constituted it part of the municipal law, was Section 2 of the Constitution Act, 1922. The alternative suggestion made by  the Attorney-General, and made also by the President of the Executive Council, was that legislative effect was given to the Treaty, including Article 10, by the Statute of the British Parliament, styled the Irish Free State Agreement Act of 1922. To advance that view to the Dáil the Attorney-General has to disregard the expressed views of the Supreme Court in this country. He has to disregard the views expressed by Judges of that Court and he has further to disregard what I suggest is the ordinary rule of interpretation, that you must read the Irish Free State Agreement Act of 1922 in conjunction with Articles 17 and 18 of the Treaty, that that Act constituted ratification by Britain of the Treaty on her part and gave her power to make the Provisional Orders stated in Article 17 of the Treaty, to transfer to the Provisional Government, which was in force in this country in the early part of 1922, the necessary machinery to enable it to carry on Government. It is true that an additional Act was passed in the year 1929 called The Civil Service (Transferred Officers) Act, which was to give effect to an agreement which did not in any way set up as part of the municipal law here Article 10 of the Treaty. It was an agreement purely for the purpose of implementing and supplementing that Article. If we look in the Schedule to the Civil Service (Transferred Officers) Act at the agreement set out therein, the very title of the agreement shows that it does not touch upon the question whether Article 10 of the Treaty has the effect of law here, or whether it forms part of the municipal law. I suggest the very wording of that agreement gave the answer to any argument advanced either by the President or by the Attorney-General that the Treaty generally got the sanction of law from the Irish Free State Agreement Act, 1922. This supplementary Treaty was executed both by England and by this country, and the title of it under their hand says: “Agreement interpreting and supplementing Article 10 of the Articles of Agreement for a Treaty between Great Britain and Ireland to which the force of law was given by  the Irish Free State (Agreement) Act of 1922.” If England were taking up the position that that was what gave the force of law to this, it was unnecessary under their own hands to add the following words: “And by the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922.”
The very title of that agreement, executed by the representatives of the two countries, to my mind, shows clearly that certain legal advisers of both countries at that time, and the countries themselves, accepted that the ratification of the Treaty, so far as England was concerned, was effected by the Irish Free State Agreement Act of 1922, and so far as this country was concerned by the Constitution Act of 1922. Such ratification forms the basis of that agreement, and it is recited that Article 10 of the Treaty has the force of law here by virtue of the Constitution Act, 1922. By virtue of that agreement certain statutory provisions were enacted to enable cases under Article 10 to be brought before a special tribunal. But legal sanction for their being brought before any tribunal, or being enforced in any way, comes entirely from Article 10 of the Treaty having the effect of law, and being part of the municipal law of this country. Once you do away with the force of law from Article 10, once you remove legislative sanction from it, then you do away once and for all with the foundation of this Act of 1929. There is nothing in the Act of 1929 which says that Article 10 of the Treaty shall have the force of law. The only provision in the Act dealing with it is that which states that “the agreement set forth in the First Schedule to this Act, being an agreement interpreting and supplementing Article 10 of the Treaty is hereby confirmed and the Treaty shall have effect accordingly.” The actual sanction for the Treaty having the force of law is Section 2 of the Constitution Act, 1922. If you remove the legislative sanction given by Section 2 then you have undoubtedly an implemented and supplementary Treaty which has the force of law by virtue of Section 2 of the Act, but the substratum  or foundation for the supplementary agreement and for the Act of 1929 is gone. The position is that the Articles under which these people get rights may remain a part of the Treaty, but those rights are not enforceable, not justiciable in our courts. I am putting that forward as my view. I do not know if a different view is held by the Attorney-General or by anyone opposite. If so, they are entitled to their view.
What I say is that the position of the civil servants is such that they should certainly be left under no doubt as to their rights in the matter. They have perfectly clear legal rights at present, rights to go to court and have whatever protection is given them by Article 10 of the Treaty enforced. There should be no doubt whatever cast upon their right to go to the court or the special tribunal. The amendment which I introduced here has simply the effect, as I suggest, of making it abundantly clear to the servants of the State that their position is in no way frittered away under the Treaty, that the rights given them under the Treaty shall remain.
At this moment when, as indicated in other discussions, the Minister for Finance intends to make cuts in the salaries of civil servants, it is all the more necessary for the Government and for the House to make perfectly clear to those civil servants who have given loyal service since this country was taken over and who wish to continue in office until the natural expiration of their periods of office that their Treaty rights are preserved, that they will not have to go into court for an interpretation as to Article 10, that their rights have not been taken away and that they are not left in mid-air with no power or title to enforce their rights.
The President: I am not accepting the amendment. I am advised that it is not at all necessary. In fact, it is quite unnecessary. The rights of civil servants, as a matter of law, would be determined by the Civil Service (Transferred Officers) Compensation Act, 1929. The suggestion of Deputy Finlay that the removal of the Treaty  from the domain of municipal law would interfere with the rights of the Civil Service is, to my mind, altogether unfounded so long as that Act is on the statute book. He suggests that the substratum was taken away. Is he going to suggest that the substratum was taken away because of the repeal of the Act of 1920? Is not that part of the substratum?
Mr. Finlay: It never was. If you look up any decisions, you will find that the only question at issue was a question of analogy.
The President: At any rate are not the words set out definitely: “The agreement set forth in the First Schedule to this Act being an agreement interpreting and supplementing Article 10 of the Treaty is hereby confirmed and the Treaty shall have effect accordingly”? Does the Deputy mean to say that the agreement incorporated in this statute can be completely wiped out? I do not think he will get many lawyers to agree with him. The advice I have got is altogether to the opposite effect. I went to some care in connection with the matter, because it seemed to me that it was a case in which there might be need for municipal enactment. The advice I have got from those who have examined the matter is that this is altogether unnecessary, that as a matter of law the rights of the persons concerned are safeguarded in this Act and that the amendment is altogether unnecessary. Our position with regard to this whole Bill is that we propose to put the Treaty, as a Treaty, in the position where treaties ought to be put. That does not in any way take from the force of law that the Treaty has as an international instrument. As regards municipal law, in the case of the Oath, regarded as a domestic matter, we have the right to amend without contravening the Treaty. Here, as a matter of municipal law, the position is completely safeguarded by the Act in question.
Mr. McMenamin: I am rather diffident about interfering in this discussion, but I think the House, in dealing  with the rights of civil servants, should take care to act dispassionately and honestly and leave no doubt in the minds of the judiciary as to what the legislature intended. We have had two speeches on this amendment— one by the President of the Executive Council, who is not a lawyer, and the other from Deputy Finlay, who is a lawyer. The two opinions are definitely opposed. In justice to the civil servants, who accepted salaries lower than they would otherwise get on the understanding that when they reached an age when they would no longer be able to serve they would receive a pension, the President should accept this amendment as giving added security to the servants of the State. The question should be above party politics. The President bases his case on an Act passed in 1929. That Act contained provisions protecting these people. So far so good. But where did the authority come from for the enactment of that Act? It came from the Article in the Treaty specified by Deputy Finlay. The courts, in interpreting that Act, must, as a matter of law, go back to what it was founded upon. That is Article 10 of the Treaty. That is my view. It is absolutely dispassionate and it is logical, because this whole thing must be read as a code. The judges will be coerced into reading the Treaty, and all the statutes that followed upon the Treaty, as a whole, if they are asked to adjudicate upon this question. I would ask the President, in justice to these people, who accepted a minimum salary on the understanding that they would receive a pension in due course, to accept the amendment. The amendment makes clear the position of the civil servants, and I think it should be accepted by the House.
Mr. Fitzgerald-Kenney: This is a rather interesting case. The President informs us that he has the very best legal advice. I presume that “the very best legal advice” is the advice of the Attorney-General. It seems to me rather strange that the views of the Attorney-General are put forward not by the Attorney-General himself, but by the President of the  Executive Council. I am glad to see that the Attorney-General has now come into his place. I would much prefer to hear the Attorney-General put forward his reasons in the House than that the President should get up and tell us that he was acting on the ipse dixit of an infallible Attorney-General. The President's point, so far as I can gather, is that, under Section 2 of the Civil Service (Transferred Officers) Compensation Act, 1929, this amendment is quite unnecessary. Section 2 is as follows:—
The Agreement set forth in the First Schedule to this Act, being an Agreement interpreting and supplementing Article 10 of the Treaty, is hereby confirmed, and the Treaty shall have effect accordingly.
It is an agreement interpreting and supplementing the Article of the Treaty which you are completely wiping out. That is a Treaty which will have no force of law in the country once this Bill is passed. The President said it has the force of an ordinary international agreement, but I want to know how an ordinary citizen of the State is going to enforce in any court an international agreement? I would like to know how it is to be done? If there is a breach of an international agreement that is a matter between nations. It is not a matter which an individual can bring into court——
The President: I want to say——
Mr. Fitzgerald-Kenney: ——if it is not part of the domestic law of his country.
The President: The Deputy is saying——
Mr. Fitzgerald-Kenney: I am sure the Attorney-General or possibly the President will reply, and the President might allow me to argue my point without interruption. If this Bill becomes law the Treaty has got no legal effect in this country, and in consequence any section or Act which interprets or which supplements a non-existing Article is ineffective, because the Treaty is gone and destroyed and you cannot supplement a thing which is gone. That is the position in which the  civil servants will find themselves. The Treaty has no longer the force of law in this country if this Bill becomes an Act. Because the Treaty will have ceased to be, because the whole Treaty will be repudiated and set aside by this Bill when it becomes law, any section or Act interpreting or supplementing it is non-effective. I have already pointed out this aspect of the matter, and no attempt has been made to answer my argument that if this Bill passes the whole Treaty goes. You cannot rely upon a section which interprets and supplements Article 10 when Article 10 itself is repealed.
Attorney - General (Mr. Conor Maguire): I fail to follow the line of reasoning adopted by Deputy Fitzgerald-Kenney. First of all, I would like to make this point. Under the Free State Agreement Act, Section 1, the force of law was given to the Articles of Agreement. The Provisional Government came into existence. The Provisional Parliament sat as a Constituent Assembly. What further Act was necessary in order to give the force of law to the Articles of Agreement here?
Mr. Fitzgerald-Kenney: Confirmation by legislation set out in the Treaty in Article 18.
Mr. Maguire: I understand that the line of argument now is that on the interpretation of Article 18 of the Treaty there is a requirement for legislation here.
Mr. Fitzgerald-Kenney: Yes.
Mr. Maguire: If Deputy Fitzgerald-Kenney was not so politically minded as he now is I would make bold to say that he would not advance that argument in any competent court and that if he examined this argument as a lawyer purely and simply he would come to the conclusion that no such requirement is contained in Article 18. “This instrument shall be submitted forthwith by His Majesty's Government for the approval of Parliament and by the Irish signatories to a meeting summoned for the purpose of the members elected to sit in the House of Commons  of Southern Ireland and if approved shall be ratified by the necessary legislation.” May I refer the Deputy to Article 11 of the Treaty which says: “Until the expiration of one month from the passing of the Act of Parliament for the ratification of this instrument, the powers of the Parliament and the Government of the Irish Free State shall not be exercisable as respects Northern Ireland and the provisions of the Government of Northern Ireland Act, 1920” and so on. I need not repeat the whole of the Article. There the ratification is by the Act of Parliament. I suggest to the Deputy that it will be straining very far indeed the words of Article 18 to read into them that they make it necessary to have any Act of the Oireachtas giving the Treaty the force of law. If these Articles of Agreement had not the force of law what was the basis of the Constituent Assembly? Has that occurred to the Deputy to consider? What was its basis? How can one conceive that it would be necessary for a body brought into being and created under a certain agreement, the very existence of which depended on the terms of the agreement, to ratify the agreement ex-post facto in order to give it the validity of law? It seems to be perfectly absurd. Apart from that this particular amendment is quite unnecessary by reason of the provisions which I understand have been already referred to, that is the provisions of the Civil Service (Transferred Officers) Compensation Act, 1929. Deputy Finlay and Deputy Fitzgerald-Kenney well know that Article 10 only gives to the transferred officers the right to fair compensation on terms not less favourable than those accorded by the Act of 1920. It only gives such compensation on the discharge by the Free State Government or by retirement in consequence of the change of Government. That Article is obviously vague and really only lays down a loosely defined general principle. The practical application of that Article to actual cases gave rise to numerous questions and disputes and some litigation. After prolonged negotiations between the Free State Government, the British  Government and the representatives of the transferred officers concerned, the draft of the Act was settled to the satisfaction of all three parties. The agreement does not purport to confer a right to compensation. It assumes that that right exists under Article 10.
Mr. Fitzgerald-Kenney: Which the Attorney-General and his Government are taking away.
Mr. Maguire: But the definition of such compensation and of such circumstances is uncertain and incomplete; in other words, it assumes that Article 10 is unworkable unless it is interpreted and supplemented. There is nothing in the said agreement which is inconsistent with Article 10, but on the other hand, there is hardly anything in the said Agreement which is indisputably implicit in Article 10. The rights of the officers are accordingly enshrined in that Act and if it were necessary to give the force and effect of law to Article 10, I do not see how it can be argued that Section 2 does not give it the force and effect of law for the purpose of this Act. I fail to understand how it could be argued otherwise. It may be suggested to me that relying on Section 1 of the Free State Agreement Act, as giving the force of law to the Treaty, only carries you a certain distance. I do not agree that it is necessary to put the thing any further. But on that particular section I suggest to Deputy Fitzgerald-Kenney that if for a moment he will abandon his political attitude and look at it from the lawyer's point of view he will find it is carried over in Section 73 of the Constitution. Does he deny that? If not, the force is gone from his whole case.
Mr. Finlay: Will the Attorney-General say if the civil servants come within Article 78 of the Constitution?
Mr. Maguire: I did not say Article 78 but Article 73.
Mr. Finlay: But would the Attorney-General say if any right to recovery of compensation or pension is given by the Act of 1929 to a civil servant, or is it entirely dependent on Article 10?
Mr. Maguire: I agree that it depends on Article 10, and is there as a basis, that there has been no attempt to remove it, and that it is not removed.
Mr. McGilligan: We get ourselves into an interesting position in law as the evening wears on, and that position is contributed to particularly by the lawyer who asks everybody to deal with this matter not in a politically-minded fashion. We had a description of that particular lawyer given by the present Minister for Industry and Commerce before that lawyer came into this House. The present Minister asked us on one occasion, in reference to a case for the land annuities, to produce our legal authorities for the case we were making. He added these comments: “We would follow with interest the promotion of these people at the hands of Cumann na nGaedheal.” Was he the lawyer who has been promoted? I wonder was it because he always judged everything in a purely legal fashion, or was it not because he rather inclined to look at legal matters occasionally from the political angle?
We are told to take this matter purely in a legal fashion. I want to take this in a legal fashion as it has been argued and compare it with the general arguments on the Oath. On the Oath the general argument runs: “Article 2 implies an Oath; Article 4 states the form.” Once you wipe out Article 2, which implies the taking of an Oath, Article 4 does not matter. When you come to the civil servants the case changes. A particular agreement gives them the rights to compensation. A second agreement interprets that. Wipe out the agreement and you still have the interpretation. I wonder where is the logic or the law? Neither logic nor law, lest it be politically informed, could ever be brought to bear upon such an argument.
We are told again by the President in a somewhat irrelevant way that in regard to this matter as in regard to the last amendment which we discussed his position is that the Treaty should not be part of the municipal law and should not over-ride the municipal law.
 He has not yet explained, although asked a dozen times, why this Bill is drawn and phrased as it is. We are told the object is to remove the obligation imposed by law on members of the Oireachtas to take an Oath. We are told the Oath is not in the Treaty, and yet we are told that for the purpose of removing the obligation imposed by law it is necessary to remove the Treaty from the Constitution. At least whether it is necessary or not it is being done and it is being done in that piece of legislation. The two things are connected by the phrase “and for that purpose.” For what purpose? For the purpose of removing the obligation imposed by law upon people to take a certain Oath. And yet we are told the Treaty does not impose the obligation, but all the same it is necessary for the purpose to remove the Treaty. As I have said, if it is not necessary it is nevertheless being done.
An Ceann Comhairle: Perhaps the Deputy would reserve that line of argument until this amendment has been disposed of.
Mr. McGilligan: I intended to deal with it on the Fifth Stage, but I thought it necessary to counter the President's statement on this particular section. Taking the amendment, we have reached a peculiar position. We are told we have a foundation upon which to build an interpretation. If you remove the foundation the interpretation stands. I do not care whether that is so or not, but I may say that that is not what civil servants want. The civil servants want security; they want the Treaty security.
The President: They have got it.
Mr. McGilligan: Not on the President's interpretation of the Treaty; certainly not upon any interpretation of the Treaty given to it by the President. No civil servant would take office relying upon the interpretation the President would put upon anything. No civil servant would take office relying on a guarantee which would be subscribed to by that man's autograph. No civil servant would accept as secure anything on the oath of a man who  would be prepared to swear that a certain phrase was a mere empty formula. We are told that the civil servants have got to accede to something founded on the Treaty. What will be the position after the Treaty is removed? We are told that the interpretation gives the civil servants all the security they want. I am quite confident that that will not please them. I am quite sure that that is not what the civil servants will agree to, and in the circumstances we are going to press this amendment.
The President: Is it suggested that there is not good faith?
Professor O'Sullivan: Are we on the Report Stage?
An Ceann Comhairle: Yes.
Mr. McGilligan: Second speeches are not allowed on this stage.
The President: Surely I can reply?
Mr. McGilligan: No.
An Ceann Comhairle: Not on an amendment on the Report Stage.
Mr. McGilligan: I observe Deputy Corry in possession and he is quite as good.
Mr. Corry: I think it would be well if we could get away for a few moments from the existing atmosphere in the Dáil. It seems to be all lawyers or would-be judges. Where is that sympathy with the poor about whom we have heard so much? The proposal here is not to protect the poor, not to protect the farming community who we are told are going to get limited prices for their stock when the Oath is removed. Apparently it does not matter what price the farmer will get for his stock when the Oath is removed so long as the judges are well looked after, the men who only the other day refused to permit their fat salaries to be reduced, salaries ranging from £2,500 to £4,000 a year. They are being protected here.
An Ceann Comhairle: The Deputy is quite out of order.
Mr. Corry: I am merely speaking to the amendment.
An Ceann Comhairle: Which has nothing to do with judges' salaries.
Mr. Corry: I heard Deputy Finlay and other Deputies speaking and their arguments were definitely in the direction of protecting certain individuals who have Treaty rights. I am dealing with the positions of these gentlemen who, no matter how poor the population may be, are to be definitely protected. I do not want to see any special section protected when, to use the words of Deputy McGilligan, people may die in this country of starvation.
Mr. McGilligan: On a point of order, the last time that statement was made in this House I was able to show it was a falsehood. I wonder is it going to be allowed again?
An Ceann Comhairle: Deputy Corry must withdraw that statement. As Deputy McGilligan has stated that it is a falsehood, Deputy Corry is not entitled to repeat it.
Mr. Corry: I withdraw it for the present until I produce the Official Report of what the Deputy said.
An Ceann Comhairle: The Deputy must withdraw it unconditionally.
Mr. Corry: I feel myself in a peculiar position here. I read that statement.
An Ceann Comhairle: The Deputy will withdraw that statement unconditionally or resume his seat.
Mr. Corry: All right.
Professor O'Sullivan: Has the Deputy withdrawn the remark?
An Ceann Comhairle: I take it that he has.
Mr. Corry: Is Deputy O'Sullivan satisfied?
Professor O'Sullivan: Quite satisfied.
Mr. Corry: There have been some extraordinary statements made here to-day. Sympathy for the poor has been expressed all over the House, but yet we have Deputies seeking to protect people who, in the face of the crisis in the country, refuse to allow their salaries of £4,000 a year to be reduced.
Mr. Fitzgerald-Kenney: The judges are not civil servants. They have nothing to do with the Civil Service.
An Ceann Comhairle: Deputy Corry has been told that this amendment has no bearing on judges' salaries.
Mr. Corry: The judiciary were definitely alluded to by Deputies McMenamin and Finlay.
Mr. McMenamin: On a point of order I never referred to them.
Mr. Corry: We will call them highly-paid Civil Servants.
Mr. Jordan: You are not a bad judge.
Mr. Corry: It is time that we determined in this country to refuse to permit any section to be protected in the way that certain sections are protected to-day. It is time that certain people realise they must stand or fall by the country. No matter how many people may die of hunger, or how many families may be thrown out on the roadside, and in spite of the lovely picture we had drawn for us during the last two months of the farmers who could not sell their cattle, the labourers who could not get employment—no matter how wretched the condition of affairs in this country, there is only to be one special class to be considered.
Mr. Davin: I put it to you, sir, that this is a serious debate on which we want to hear serious speeches from both sides, and that the speech the Deputy is now making has nothing whatever to do with the merits of the case.
An Ceann Comhairle: The Deputy must deal with the amendment before the House or resume his seat.
Mr. Corry: I am dealing with the arguments put up from the other side.
An Ceann Comhairle: The Deputy is not dealing with the amendment before the House, and if he does not do so he must sit down.
Mr. Corry: I consider that I have said about enough to them.
An Ceann Comhairle: Quite.
Mr. Norton: There is an old saying that doctors differ and patients die.  and, to paraphrase it, one may say that lawyers differ and clients have the privilege of paying. I suppose if one were to hand a brief to Deputy Finlay or to Deputy McGilligan in their legal capacity they could have made a very much stronger case against the point of view they expressed than in favour of that point of view. I do not want to travel through the labyrinthine channels explored by Deputy Finlay and Deputy McGilligan, but I do want to say this: that the whole case made by both Deputies has been built up on the assumption that the Treaty is of no value whatever as between the two nations. Their whole case is built on the assumption that the Treaty has been torn up and deposited in the waste-paper basket, and can now be forgotten as an instrument regulating the external affairs of both nations. That assumption is wholly fallacious, and is quite in accord with some of the arguments we heard on the repugnancy clause and with some of the arguments we had on the Second Reading of the Bill.
The real position of transferred officers is this: I say this as one who has had six years' association with the litigation which led up to the introduction of the Civil Service Transferred Officers Act, 1929, and the passage of the Act—that the rights of transferred officers are definitely enshrined in that Act, just in the same way as the rights of transferred municipal officers from Rathmines and Pembroke Urban Councils are enshrined in the Greater Dublin Act, and in the same way as the rights of railwaymen are enshrined in the Railway Amalgamation Act. Their rights are there. There is a recognition of those rights in Articles 77 and 78 of the Constitution. Deputy Finlay, of course, knows perfectly well, if he would only admit it, that the rights of transferred officers as set out in the Transferred Officers (Compensation) Act, 1929, are safeguarded in a much more definite fashion by this legislation than they are safeguarded under the ordinary meaning, or even by the legal meaning of Article X of the Treaty. We have had a definite  assurance from the President that this is not an attempt to get behind the 1929 Act, and I think the civil servants of the country who want to continue to serve this State would very much prefer to have their rights recognised and guarded by an Act of this Legislature as it now stands than in the contentious way set out in the Treaty. We have got a definite declaration that the rights are safeguarded in the 1929 Act. There is no attempt whatever to interfere with whatever basis the 1929 Act has in relation to Article X of the Treaty.
In any case, Deputy Finlay might have told us, assuming the passage of this Bill removes the force of law from Article X of the Treaty, that the legal people would agree that so long as Article X still had the force of law or was transferred into any subsequent legislation, that the repeal of Article X did not affect the importance or the value of that Article in any subsequent legislation into which the Article might have been embodied. We have had a declaration from the President that the rights of transferred officers are in the 1929 Act. I think they are adequately safeguarded in that Act, and the President has given us an assurance that he recognises that those rights are there. I would like the President to say now definitely if he is not obstructed by the other side, that he has no intention whatever of interfering with the rights set out in that Act.
Mr. Cosgrave: I did not propose to say anything on this matter, but it strikes me as an ordinary citizen of this State that so far as civil servants are concerned before this Bill becomes law, the situation of civil servants after it has become an Act will resolve itself simply into this: In the first place, they are entitled under the courts of this country to contest any interference with the legislation that there is on the statute book of this country: they are entitled to contest any alteration of that in our courts, and they are safeguarded, and amply safeguarded, by the situation as it is in that respect. We have already this evening  proposed to take out the operative Article in the Constitution, which enshrines that position for the civil servants, and assuming, for the moment, that all that has been said by the very learned Attorney-General, by Deputy Corry, by the President of the Executive Council, and by Deputy Norton is correct, the whole position and the whole strength of the civil servants as they stand when this Bill becomes law is enshrined in a simple Statute of this House which can be repealed with impunity by this House at any time or at any moment it so desires. It can be either repealed or amended, according as this House desires, and there is no security whatever for the civil servants. They are at the mercy of the Legislature, which in its direction can alter, amend or repeal that Act of Parliament. That is certainly not their position at this moment. They are at present safeguarded by the fact that the courts and judges of this country would pronounce as invalid any interference with their rights or privileges enshrined in Article 10, and no amount of legal casuistry can alter that fact.
Mr. O'Neill: I did not care to intervene in this debate, particularly as it is amongst lawyers, but I think that Deputy Norton, as a layman like myself, has been too clever with regard to his quotation of Article 77 and Article 78. If he looks at them, he will see that the first Article simply says: “Every existing officer of the Provisional Government shall, etc., become an officer of the Irish Free State and shall hold office by a tenure corresponding to his previous tenure,” and the next Article says that such existing officer shall be entitled to the benefit of Article 10 of the Treaty, but if Article 10 goes or is interfered with in any way or loses the force of law, both Article 77, and particularly Article 78, cease to have any meaning as far as my lay mind can interpret it. Deputy Norton was therefore altogether wrong in saying that their position was preserved by that Article.
Mr. Dillon: I have no desire to be  numbered with the lawyers in my intervention in this debate, either on this amendment or the last amendment. I resist the proposal in respect of which this amendment has been moved because I, in common with every other literate man in the country, can read the King's English, and the King's English said that the Constitution Act of 1922 gave force of law to the Treaty, and I say that President de Valera got no mandate to reverse that. If he extracted Section 2 and Section 3, and went to the country on those sections alone, divorced completely from Section 1, which repeals the Oath, would President de Valera get a verdict from the country? I say that I do not believe there is any appreciable percentage of members on the Government Benches who believe he would, and, therefore, while I disagree with the principle of moving amendments of the kind proposed from the Cumann na nGaedheal Benches, because I think it clouds the issue, I say that, in this amendment, there is a double duty to the nation, part of which is our duty to preserve the security of the civil servants who came over from the old Service, and who have discharged their duties with great credit and honour to this country, in the new circumstances.
It is our duty to express emphatically that we bitterly resent any attempt to imperil their security. They stood to the country when the country badly wanted them, and they have served this country very well. It is our duty now to protect them in any way we can. I still believe, however, that we might have done that quite as effectively, and in a way the people would understand more clearly, if we simply took up the position that we are absolutely opposed to Sections 2 and 3 of this Bill and determined to reject them, if we can, altogether, for the reason that they had no place in this Bill. I certainly do not believe that President de Valera had ever any mandate to introduce them and to force them through this House.
The President: Might I reply to a point made by Deputy Norton?
Mr. McGilligan: Surely there are other occasions.
The President: Seeing that Deputy McGilligan was so anxious to get this on to Report Stage, and not to have it discussed at a time when all amendments are discussed, we should have an opportunity of dealing with an argument——
Mr. McGilligan: Might I suggest that the way to have got it was to recommit the Bill, and then it could have been discussed. That was not done.
The President: There was no motion made.
Mr. McGilligan: Who should have moved it?
Professor O'Sullivan: The Leader of the House.
Mr. McGilligan: If any contentious matter is introduced by the President, I presume we will have the right to reply.
An Ceann Comhairle: The President is being permitted to reply briefly to a definite question asking for information.
Mr. McGilligan: Just one thing.
The President: I may say in preface to what I am going to say that I think it is quite unnecessary for me to say that they are legally safeguarded, but over and above that legal safeguard, that international safeguard, if there is any particular value in my saying it, as President, I say that there is no intention whatever to interfere with  the rights of civil servants in this legislation, none whatever. They are amply safeguarded.
Mr. Finlay: Will the President say, if the rights of the civil servants are safeguarded by reason of the Treaty still having the force of law here, under the Irish Free State Agreement Act, what was the necessity for repealing Section 2 of the Constitution Act of 1922?
The President: The position with regard to it is this: Article 10, as far as it gave them rights, is gone. This is a document, an agreement, which is completely setting aside Article 10, because it gives effect to the intention that is actually in the Bill itself—“for the final determination in accordance with their will.” That is a final document, a new Treaty, if you like. It is an international document safeguarding their rights, and their rights are not dependent on Article 10. This is the document on which their rights depend, and there is no suggestion——
Mr. Cosgrave: Might I ask the President one question? Is it open to the Legislature at any time to repeal, alter, or amend that Act as it stands?
The President: It is not, because it embodied an international document. There was an international agreement.
Mr. Cooney: What about the British Civil Service?
Mr. McGilligan: What about it?
Amendment put: The Dáil divided:
Tá, 69; Níl, 77.
|Alton, Ernest Henry.
Beckett, James Walter.
Bennett, George Cecil.
Broderick, William Jos.
Byrne, John Joseph.
Collins-O'Driscoll, Mrs. Margt.
Cosgrave, William T.
Craig, Sir James.
Desmond, William. Lynch, Finian.
Minch, Sydney B.
Mongan, Joseph W.
Murphy, James Edward.
Myles, James Sproule.
O'Brien, Eugene P.
O'Donovan, Timothy Joseph.
O'Hanlon, John F.
|Dillon, James M.
Dockrell, Henry Morgan.
Doyle, Peadar Seán.
Duggan, Edmund John.
Finlay, Thomas A.
Gorey, Denis John.
Hassett, John J.
Hogan, Patrick (Galway).
Kiersey, John. O'Hara, Patrick.
O'Higgins, Thomas Francis.
O'Reilly, John Joseph.
O'Shaughnessy, John Joseph.
O'Sullivan, John Marcus.
Reynolds, Mrs. Mary.
Shaw, Patrick Walter.
Thrift, William Edward.
Browne, William Frazer.
Corry, Martin John.
Crowley, Fred. Hugh.
Curran, Patrick Joseph.
De Valera, Eamon.
Dowdall, Thomas P.
Flinn, Hugo V.
Gorry, Patrick Joseph.
Hogan, Patrick (Clare).
Kelly, James Patrick.
Keyes, Raphael Patrick.
Lemass, Seán F.
Little, Patrick John.
Lynch, James B.
Maguire, Conor Alexander.
Murphy, Patrick Stephen.
Murphy, Timothy Joseph.
O'Kelly, Seán Thomas.
O'Reilly, Thomas J.
Powell, Thomas P.
Ruttledge, Patrick J.
Ward, Francis C. (Dr.).
Tellers:—Tá: Deputies Duggan and P.S. Doyle; Níl: Deputies G. Boland and Allen.
Amendment declared lost.
Question—“That the Bill be received for final consideration”—put and agreed to.
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