Volume 3. No. 241. NAI DT S5340/1
John J. Hearne (Dublin)
Conference on the Operation of Dominion Legislation
15 July 1929
The question whether Imperial statutes passed prior to the 6th day of December 1922 apply to Saorstát Éireann has not been judicially determined, and it is unlikely that our Courts will be called upon to consider the constitutional issues involved in that question before the date on which the Sub-Conferences called for the present year will assemble.[...]
These statutes are taken as cornerstone legislation in the old Imperial structure; they illustrate the system which is now obsolescent better than any other statutes what we know, and in addition they are amongst the special subjects for consideration at the forthcoming Sub-Conferences.[...]
The principles which representatives of the Irish Free State will be called upon to contend for at those Sub-Conferences are best considered in reference to them.[...]
There is little doubt that whatever advances in constitutional practice and whatever contributions to the new constitutional doctrines are made by or as a result of the forthcoming Sub-Conferences will be made upon the showing of the Irish Free State representatives, that is to say, upon their advocacy of the New Policy forming in the Commonwealth generally as a result of the special constitutional position of the Irish Free State.[...]
The law, practice and constitutional usage governing the relationship of the Crown and of the Imperial Parliament to the Dominion of Canada were to govern their relationship to the Irish Free State.[...]
It is submitted that Imperial statutes passed prior to the 6th day of December 1922 do not apply to the Irish Free State.[...]
That section is based upon the assumption that Imperial Statutes passed before the passing of the Irish Free State Constitution Act, 1922, do not apply to the Irish Free State.[...]
Neither can sections 735 and 736 be regarded as links designedly forged for the purpose of fastening Dominion legislatures more closely to the Imperial Parliament or for strengthening the control of that Parliament over the machinery of administration and Government in the Dominions.[...]
The relationship of the Irish Free State to the Imperial Parliament and Government is defined in Article 2 to be that of the Dominion of Canada 'and' - the Article continues - 'the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State'.[...]
Are any limitations imposed upon legislative powers of the Irish Free State by reason of its constitutional status as defined in Article 1 and of the relationship defined to exist between it and the Imperial Parliament by Article 2 of the Treaty? Is there in the constitutional make-up of the Irish Free State any disability to legislate arising out of status? To speak of a disability to legislate arising out of the status of 'an independent State' seems to do violence to the plain meaning of words.[...]
The character of that controversy has been undergoing a gradual metamorphosis and what began as a legal discussion of status and of principles governing the interpretation of statutes has been continued as a political discussion of practical measures for securing uniformity in administration in matters of common concern to the 'Imperial' Parliament and to the members of the Commonwealth of Nations.[...]
[matter omitted] A rapid succession of developments in the constitutional relationship between the Dominions and the 'Imperial' Parliament has necessarily resulted in a situation in which the theory of the law does not fit the facts and is frequently even after the most ingenious constructional effort incapable of adjustment with them.[...]
The expression 'constitutional practice' invented to denote the category into which prevailing usages (not covered by Imperial statute) in the Dominions were grouped has come to be used in a new acceptation.[...]
So much so that if it be added here that the expression 'constitutional practice' includes in its meaning alike every transgression by the Dominions of the provisions of Imperial statutes applying to them and every trespass by their legislatures beyond the limits sought to be set to their legislative power it becomes clear that practice rather than statute is the only real criterion of actual relationship between the self-governing dominions and the Imperial Parliament.[...]
The first is expressed to be as follows:- The laws of such members - except where extra-territorial operation is given to them by the 'Imperial' Parliament - operate only within the territorial area of such member.[...]
The repugnancy must lie between the colonial law and the provisions of an Act of the 'Imperial' Parliament or an order or regulation made under such Act extending to the colony.[...]
Moreover, it is not enough that the colonial law and the Imperial Act both deal with the same matter and deal with it differently; they must be inconsistent with each other in the sense of being irreconcilably opposed.[...]
The colonial law may indeed go further than the Imperial Act; may, for example, require compliance with more stringent conditions than those under the Imperial Act dealing with the same matter and applying to the Colony; but it is not, therefore, necessarily repugnant.[...]
Furthermore it is not enough that the Imperial Act is worded so generally that it is capable of being construed as applying to the colony or that it is not in express terms limited in its application to the United Kingdom.[...]
One of the Acts which imposed the recognition of the Irish Free State as an independent state upon the people of Great Britain, namely the Irish Free State Constitution Act, 1922, contains an express provision (section 3) to the effect that the Irish Free State could by legislation adopt the provisions of Acts of the 'Imperial' Parliament which applied or could have applied to self-governing Dominions.[...]
That section as has already been remarked in this memorandum appears to have been based on the assumption that the provisions of Imperial Acts referred to do not proprio vigore and automatically apply to the Irish Free State.[...]
It is moreover a section drawn with careful regard to a practice which has grown up since the Colonial Laws Validity Act, 1865, was passed, namely the practice whereby the consent of a Dominion is a condition precedent to the passing by the 'Imperial' Parliament of statutes relating to that Dominion.[...]
Section 3 of the Irish Free State Constitution Act, 1922, is specific in its terms as to the nature of the provisions of Imperial statutes which the Parliament of the Irish Free State is thereby empowered to adopt, and I am unable to discover a ground on which the provisions of the Colonial Laws Validity Act, 1865 - an Imperial statute which in 1922 applied to selfgoverning Dominions - can be shown to stand outside the category of provisions of Imperial statutes so clearly specified in the section.[...]
Article 2 defines the position of the Irish Free State in relation to the 'Imperial' Parliament and Government and otherwise to be that of the Dominion of Canada and adds that the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the 'Imperial' Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State.[...]
It is argued that the law governing the relationship of the 'Imperial' Parliament of the Dominion of Canada includes the Colonial Laws Validity Act, 1865, and that that Act applies to the Irish Free State by virtue of Article 2 of the Treaty.[...]
If that argument is correct where do its advocates draw the line in interpreting Article 2 of the Treaty? If Article 2 applies to the Colonial Laws Validity Act, 1865, does it not also apply the British North America Act, 1867, as being part of the law governing the relationship of the Crown or the representative of the Crown and of the 'Imperial' parliament to the Dominion of Canada? I think that the whole argument is a constructional effort which overloads the sense of Article 2 and becomes heavily embarrassed by the nature of the conclusions to which it leads.[...]
The Colonial Laws Validity Act, 1865, is a statute which is declaratory of the invalidity of certain laws passed by the legislatures of 'Her Majesty's possessions' generally; it is not a statute governing the relationship of the Crown or the representative of the Crown and of the 'Imperial' Parliament to the Dominion of Canada.[...]
It is an Imperial statute applying to Canada as well as to the other self-governing Dominions by express words; but it does not purport to specifically affect the constitutional relationship of Canada to the Crown or the 'Imperial' Parliament.[...]
It applies to Canada like a large number of Imperial statutes in the same way as it applies to the other self-governing Dominions.[...]
These words create no difficulty for the Parliament of the Irish Free State not already in existence for the 'Imperial' Parliament itself.[...]
Furthermore they place no difficulty in the way of the executive enforcement of the laws of the Irish Free State not already found to exist in the case of laws passed by the 'Imperial' Parliament.[...]
The Imperial statute as an instrument of unity has been succeeded by the Imperial Conference as a means of co-operation.[...]
It is unnecessary to advert here to the place which the whole theme of the constitutional status of the States of the Commonwealth has come to occupy in contemporary literature relating to the Commonwealth of Nations and in the pronouncements of statesmen in both Houses of the 'Imperial' Parliament and in the Parliaments of the Commonwealth States themselves.[...]
The repeal of section 735 by the 'Imperial' Parliament would cut the oldest and perhaps the strongest of the cables by which the whole system of Imperial control in shipping matters has been held together, and remove the last remnant of the legal theory upon which the system was founded.[...]
The merchant shipping code of the States of the Commonwealth would then derive the binding force of such of its provisions as apply generally throughout the Commonwealth not from a statute of the 'Imperial' Parliament but from the statutes of those States themselves enacting those provisions as an international convention.[...]
Volume 3. No. 351. NAI DT S6009/1 D. 5829
J.P. Walshe (Dublin) to Diarmuid O'Hegarty (Dublin)
Imperial Conference, 1930
21 February 1930
The following is the text of the Despatch setting out the programme: 'We have had under consideration the economic matters to be brought up for discussion at the Imperial Conference, and it appears to us provisionally that such matters might conveniently be grouped under the headings set out below.[...]
Later, we shall have further suggestions to offer and we shall also be putting forward proposals for sub-Conferences of representatives of Government Departments responsible for research (other than agricultural research) and of statisticians, the former to precede and the latter to follow main conference.[...]
(I) Inter-Imperial trade, including (1) general review of progress of trade of the Empire over a term of years and any matters arising therefrom, including the effect of successive tariff charges in its constituent parts, and also of other factors, e.[...]
(2) the work of and any questions arising in connection with (a) Imperial Economic Committee, (b) Empire Marketing Board, (c) Imperial Institute.[...]
(II) Questions relating to primary production, including under (1) agriculture, such questions as Imperial co-operation in matters of research and the dissemination of intelligence among producers and otherwise including matters relating to the International Institute of Agriculture, (2) forestry, the resolutions of the Empire Forestry Conference, 1928, (3) minerals, the work of Imperial organisations in this field.[...]
(IV) Transport and communications, including (1) detailed recommendations in regard to Merchant Shipping of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, (2) work of Imperial Shipping Committee, (3) Development of civil aviation in the Empire, (4) cables and radio communications including broadcasting.[...]
Volume 3. No. 522. NAI DFA 11/3
Memorandum (Dublin)
General Disarmament Conference
25 February 1931
Conferences on Disarmament, Security, and Arbitration have now been going on since 1919.[...]
Nomination of Representative in Accordance with Previous Policy Information is not at present available as to the circumstances under which they were appointed, but Saorstát Representatives attended the Geneva and London Naval Conferences and the Saorstát, though not in practice affected, ratified the London Naval Treaty.[...]
A Sub-Committee of the Committee of Imperial Defence, constituted much as the present United Kingdom Cabinet Committee, was appointed in December 1929 to consider certain aspects of Disarmament.[...]
The other Dominions will probably nominate their High Commissioners but some of the other Dominions also invariably nominate the High Commissioners in London as one of their delegates to most League of Nations Conferences.[...]
Volume 3. No. 441. NAI DFA LN 4/9 S 9/1/2
Sean Lester (Geneva) to J.P. Walshe (Dublin)
Disarmament Conference
08 September 1930
Volume 3. No. 102. NAI DT S4714B
J.P. Walshe (Geneva) to Diarmuid O'Hegarty (Dublin)
Naval Disarmament Conference
30 June 1927
Lapointe were also anxious that the formula of a 'single British Empire quota' should be modified, if possible, notwithstanding the Imperial Conference discussion of the matter and the practice established at the Washington Conference.[...]
That was clearly the conclusion to be drawn from the Imperial Conference resolution on the separate right of each of the Commonwealth states to advise the King in all matters relating to their own affairs, which received concrete expression in the form of the Full Powers issued to all the delegations of the Commonwealth for the present Conference.[...]
The expression 'British Empire' used in any sense as descriptive of the whole body of the Commonwealth delegations, implying, as it did, a distinct constitutional organism had therefore no place in International Conferences of this kind.[...]
Volume 3. No. 117. ES Box 6 File 38
At the Imperial Conference the Irish Delegation pressed for the removal of all forms and precedents which appeared to derogate from the actual position of the Commonwealth States other than Great Britain.[...]
In future at international Conferences the British full powers will be restricted to Great Britain and her immediate dependencies and the other States of the Commonwealth will hold powers complete and exclusive in themselves, issued on the sole advice of their own Government.[...]
Volume 3. No. 271. S4541 2/20102
Extracts from a memorandum, with covering notes, by the Department of Defence on the Conference on the Operation of Dominion Legislation
01 October 1929
We also suffer from the disadvantage that compared with other countries, a large proportion of our diplomatic activities centre on the League of Nations, with the result that undue importance is attached in the Saorstát, to the activities of disarmament Conferences, and other such bodies, which have in fact achieved no tangible results.[...]
In the Saorstát it would seem to be largely assumed that a considerable increase in the 'constitutional and international status of the Dominions or States of the British Commonwealth is due to developments which took place at the Imperial Conference of 1926' and were embodied in the report of its committee on Inter-Imperial Relations.[...]
This Memorandum while fully recognising the importance of the principles enunciated in the report of the Committee on Inter-Imperial Relations is based on the conviction that the increased status of the Dominions is due to the development of their defence positions both prior to and during the war, and to the magnitude of their war efforts.[...]
This was recognised at the Imperial War Conference of 1917 when it was decided 'that the re-adjustment of the constitutional arrangements of the component parts of the Empire is too important and intricate a subject to be dealt with during the war, and it should form the subject of a special Imperial Conference to be summoned as soon as possible after the cessation of hostilities'.[...]
The present Committee will really consider how the legal theory or de jure position can be reconciled with the practical or de facto position and will really undertake an examination of many of the problems which it was intended the 'special Imperial Conference' mentioned in the 1917 Resolution should undertake.[...]
(A reference to the completed arrangements that exist for the discharge of these functions by the 'Dominions' in wartime, occurs in Memoranda, circulated at one of the Imperial Conferences.[...]
Your representatives at the 1926 Imperial Conference admitted that the Defence of Great Britain and the Saorstát is a question which is to some extent common to and is definitely vital to both countries.[...]
Volume 3. No. 96. UCDA P80 594 466/1927
J.P. Walshe (Dublin)
External Affairs and the Imperial Conference
01 June 1927
5) It participates in international Conferences whether organised by the League of Nations or by individual nations.[...]
6) It keeps in close touch with all the States of the Commonwealth, and it effectively helped at the Imperial Conference to put the relations of those states with each other and with non-Commonwealth States on a more satisfactory basis.[...]
WORK OF THE Imperial CONFERENCE The Imperial Conference of October-November 1926 has one great achievement to its credit.[...]
The other achievements of the Imperial Conference follow from this: 1) Heretofore it was the custom for the British Representative at International Conferences and in international agreements to hold a full power covering all the territories of the Commonwealth.[...]
4) The Government of the United States, acting on the findings of the Imperial Conference, has given formal recognition to the independent status of Canada and the Saorstát by appointing Ministers to Dublin and Ottawa.[...]
But the rectification of these anomalies has been provided for either by further reference to the Imperial Conference or by reference to a special committee appointed by all the states of the group which is to sit early next year.[...]
6) The work of promoting trade within the Commonwealth is being actively pursued by committees such as the Imperial Economic and the Marketing Committees.[...]
CONCLUSION The 1926 Imperial Conference began a new era in the history of the Saorstát and its sister states, and the favourable results are due in no small measure to the work of the Irish Delegation.[...]
Volume 3. No. 546. NAI DT S 2220
Department of External Affairs
Memorandum by the Department of External Affairs on the work of the Department of External Affairs
Undated, 1931
Volume 3. No. 434. NAI DFA 26/95 X 18/1
Sean Lester (Geneva) to J.P. Walshe (Dublin)
Establishment matters, Geneva
29 September 1930
I trust, therefore, that it will be possible to have something done even though the Minister is so preoccupied with the vital questions now before the Imperial Conference.[...]
