No. 300 NAI DT S5340/13

Letter from Diarmuid O'Hegarty to William T. Cosgrave (Dublin)

London, 12 November 1929


The position here is that sub-Committees dealing with Merchant Shipping, Extra-territorial application of laws, Reservation and Disallowance have reported and in these matters it seems that the results will be rather satisfactory. There has been the usual attempt to introduce into the documents words and phrases of a sapping nature, but we are watching these efforts and hope to be able to prevent them.

Full power to pass laws with extra-territorial effect, the competency of each Dominion to abolish any statutory provisions regarding reservation, and disallowance, and complete control of merchant shipping legislation (including the flag and description) will we believe be secured.

The Colonial Laws Validity Act will be repealed, but in regard to this three definite matters arise and have not yet been settled, viz.,

(a) The nature and form of the reference to the Crown,
(b) The inviolability of the new legislation implementing the decisions at this Conference, and the method of securing this inviolability.
(c) The Commonwealth Court.

The legal difficulty is that with reservation, disallowance and the Colonial Laws Validity Act gone, we could repeal any law of the Imperial Parliament in so far as it relates to us including the laws relating to the Crown and, on the British view that the Treaty has its roots in the confirming British Statute - a view in which we do not concur - even possibly the Treaty. Existing statutes which have their general application based to a greater or less extent upon the supremacy of the Westminster Parliament - and this phrase is used here without adverting to our ex-parte view as to the special legal position of the Irish Free State - have been roughly run into three categories

(1) Those which are fundamental to the maintenance of the Commonwealth (e.g. the succession)
(2) Those where uniformity is for practical reasons eminently desirable (e.g. ownership and safety standards for ships, etc.)
(3) Those where uniformity even if desirable is not necessary.

It has been generally agreed that Category 3 can be disregarded, that the uniformity desirable in category 2 can be achieved by reciprocal agreement confirmed by legislation. There are a few things such as Prize Law which are at the moment hovering between category 1 and category 2, but these are relatively unimportant.

Category 1 is the main snag. There are two proposals at the moment and a third, of which we have no details so far, is expected from Canada tomorrow or the day after. The first of these proposals involves an Imperial Act reciting the main principles set out in the 1926 report and the consent of the Dominions to the passing of the Act, giving effect to a scheduled agreement (later described), repealing the Colonial Laws Validity Act in regard to Dominions, and declaring extra-territorial full powers of Dominion Parliaments. The scheduled agreement to which we should also have to give the force of law includes (1) a provision that any alteration in the law touching the Succession and the Royal Style and Titles (which means George V by the Grace of God etc.) shall require the consent of all the Members of the Commonwealth, (2) a provision that the United Kingdom Parliament will not make laws extending to any Dominion except at the request and with the consent expressly given and declared by the Dominion, (3) that the international law practice whereby armed forces of one member shall be governed as regards internal discipline by their own law even when on the territory of another shall apply as between members of the Commonwealth, (4) that consultation is desirable on matters where uniformity of legislation is desirable, (5) that the Colonial Laws Validity Act shall be repealed as regards Dominions, (6) that this agreement be given force of law and shall remain unaltered save by common consent.

The second proposal is an Imperial enactment in regard to all major matters with a reservation from the repeal of the Colonial Laws Validity Act in favour of that enactment, and safeguarding (as it is described) Dominion Constitutions. The fundamental objection to the second proposal is the reservation, which clearly preserves supremacy to the Imperial Parliament, but it is only true to say that even with alternative (1) the official mind in Great Britain seems to want a similar reservation. We have some hopes, however, that we can get rid of this reservation if we accept the Agreement and we almost certainly can provided we can also go some definite distance in the matter of a Commonwealth Court, but even this latter may be waived. We have not gone very far in the matter of the Court, but our line is a panel from which a tribunal can be selected ad hoc; each disputant to nominate one national and one non-national from the panel, the fifth, not to be a national of either party, to be agreed upon by these four. Only such disputes as would be cognisable by the Hague Court to be open to this Court, i.e. inter-government disputes whether arising directly or indirectly out of private disputes. Lough Foyle would be an example of the latter. Governments only would be entitled to appear before the Court. The existence of the Court would we believe be accepted by the politicians here as replacing the proposal for reservation in the Repeal of the Colonial Laws Validity Act - but this is one of the big issues outstanding.

Clearly the Court can only be referred to in the Report of the Conference; it cannot at this stage be more than explored and left for Governments to decide by next Imperial Conference.

On the question of publication it is believed that it would be impossible to keep the report secret between now and next Imperial Conference, the date of which has not yet been agreed but should be either summer or autumn of 1930.

It will probably be considered desirable when we have got issues more definitely and accurately knit for the Minister to cross over for consultation. Meanwhile the foregoing will prepare the ground.

[signed] Diarmuid Ó hÉigeartaigh

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