CLAUSE 4.—(Saving.) (Hansard, 28 November 1922)

§ Mr. DAVID REID
I would suggest to the Attorney-General that this Clause should be removed. It is quite unnecessary. Article 12 of the Treaty says The sole and exclusive power of making laws for the peace, order and good government of the Irish State (Saorstát Eireann) is vested in the Oireachtas. But that seems on further reading to be a very wide enactment. As has been pointed out, it must be read in connection with the Treaty, and Article 2 of the Treaty provides: Subject to the provisions hereinafter set out the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State. The Treaty has been given the force of law. Therefore it has already been enacted that the relationship of the Imperial Parliament to the Irish Free State is to 563 be the same as its relationship to the Dominion of Canada. But, that point having been provided for, when we come to this Clause in the Treaty, it is an actual derogation from the Treaty. The effect of the Clause would be to cut down the power of Parliament to make laws. The power of making laws is one thing. The constitutional practice obtaining with regard to the Dominions is another thing. Yesterday we had a lucid speech from the Prime Minister as to the undesirability of embodying the constitutional usage which governs the relations of this country to the Dominions in any Statute law. But this Clause has the effect which the Prime Minister deprecates of bringing the constitutional practice into the Statute.
The Prime Minister and the Leader of the Opposition were at one in saying that it was very undesirable that the constitutional usage governing the relationship of the Dominions to this country should be defined by law. Now this Bill is doing the very thing which they both deprecate. Suppose that this Clause were necessary, it is not a general power of legislation: it is a limited power of legislation, and if a law were passed by the Irish Free State under the provisions of this Clause, and a person were charged with an offence under it, it would be a defence open to that person to say that the Act is not a valid Act, and he would be able to give evidence to show what is the constitutional practice. I would suggest therefore, that if the Clause is to stand, the words in accordance with Constitutional practice should be omitted, because that would leave the power of Parliament to make laws affecting the Irish Free State, where Parliament could make laws affecting the other self-governing Dominions. For these reasons I suggest that this Clause should be removed from the Bill or amended in the way which I indicate.

§ Sir JOHN SIMON
The hon. and learned Gentleman has made a very interesting speech, but his argument docs not carry conviction to the minds of some of us on this side. No doubt he will observe that there are other places in this proposed Constitution in which reference is made to the constitutional 564 practice. Article 60 provides that the Governor-General of the Irish Free State is to be appointed in like manner as the Governor-General of Canada, and in accordance with the practice observed in the making of such appointment. I do not know what view the Attorney-General may take, but I apprehend that probably some confidential conference takes place before an appointment is actually made by His Majesty. But there is a further and more serious reason. In Article 12 of the Constitution, I find those words which, to those interested in constitutional development, are striking words: The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State (Saorstát Eireann.) is vested in the Oireachtas. Therefore I apprehend that it is an Act of considerable importance that we should have an enactment Clause like Clause 4, which says that, whatever the language of the. Constitution, nothing in the Constitution shall prejudice the power of the Imperial Parliament to make laws affecting the Irish Free State in any case where, in accordance with constitutional practice, Parliament-would make laws affecting other self-governing Dominions. I do not think that the hon. and learned Gentleman on considering the arguments would really desire that Clause 4 should be omitted if the result would be to leave Article 12 of the Constitution quite uncovered.

§ Mr. REID
As the hon. Gentleman has addressed himself pointedly to me, I think that I did call attention to the fact that the governing document was the Treaty. The Treaty lays down definitely what is to he the relationship of the Imperial Parliament to the Irish Free State. Therefore on that subject it does not matter what you have in your Constitution. The governing document is the Treaty. The Treaty has been adopted by this House and is now the law, but this decides now the relationship of the Imperial Parliament to the Irish Free State.

§ Sir MALCOLM MACNAGHTEN
I do not think that this Clause is in any way compatible with the Constitutions of the self-governing Dominions. Neither in the British North America Act, constituting the Dominion of Canada, nor 565 the Act constituting the Commonwealth of Australia, nor the South Africa Act will any such Clause as this be found. It is most undesirable to make an innovation in this respect when the effect of this; innovation is to restrict the power of the Imperial Parliament. The right hon. Member for Spen Valley (Sir J. Simon) quoted the words that the sole and exclusive power of making laws for peace, order and good government is vested in the Irish Free State. Those words "sole and exclusive power" do not really matter, because whatever is in the Irish Constitution is governed by the Treaty, and if these words mean what is suggested, that the power of this House is gone, then they are obviously repugnant to the Treaty, which provides for a relationship of this House to the Irish Free State, the same as the relationship between this House and Canada. Therefore if the words "sole and exclusive power" should be construed as my right hon. Friend suggests, that does not matter as the Treaty covers it all, but the Treaty relations between the two Governments and Parliaments must be maintained.