No. 164 UCDA P150/2716
Memorandum by Joseph P. Walshe
'The present position of the King in Irish law'
(Personal)
Holy See, July 1946
- The position of the King in Ireland has become so attenuated that in fact and in law he is now nothing more than a symbol of our external association with the nations of the Commonwealth.
- The new Constitution was approved by the Irish Parliament, and enacted by the people, in plebiscite, in 1937. It marked the end of a series of measures abolishing all links with Britain. Before 1932, the year of Mr. de Valera's advent to power, the King was a definite factor in the Irish Constitutional system:
- He was represented by a Governor General (abolished in 1936).
- The Members of Parliament swore an oath of allegiance to him (abolished in 1932).
- In theory, the King was part of Parliament.
- In theory, the Governor General could withhold the King's assent to bills of Parliament.
- In theory, the executive authority of the State was vested in the King.
- The Governor General was appointed by the King on the advice of the Irish Government.
- There was an appeal from the Irish Supreme Court to the King in Council in London (the Privy Council) (abolished in 1933).
- In the Constitution of 1937, the King as such (and of course the Governor General) with all his functions, powers and attributes had disappeared for ever. The King is not mentioned. Article (28) however, dealing with International relations, empowers the Government, on such conditions as may be determined by law, to adopt 'any organ, instrument or method of procedure, used for the like purpose by the members of any group or league of nations with which the State is, or becomes associated for the purpose of international cooperation in matters of common concern.' The position of the King had already, in effect, been determined by the External Relations Act 1936 (on the occasion of the abdication of Edward VIII) which authorised the King (so long as Ireland is associated with the nations of the Commonwealth) when so advised specifically by the Irish Government to act on behalf of that Government for the purpose of the appointment of diplomatic and consular representatives. The law is facultative and the Government is not obliged to use the King for the purpose set out. Moreover, being an Act of Parliament, it can be repealed at any time.
A President of the State was elected directly by the people in 1938. In effect, through the Constitution of 1937, we have become a Republic (as Mr. de Valera has repeatedly stated) which uses an external Monarch as a device and symbol of our cooperation with a certain group of states. No shadow of diplomatic unity with Great Britain or the Commonwealth, in any sense, remains.
- The British Government on its own behalf and on behalf of the Governments of the other nations of the Commonwealth made a public declaration on the 29th December 1937 to the effect that in their view our new position did not affect a fundamental alteration in our membership of the Commonwealth.
- What are the implications in relation to a reply of the Holy See to my Credentials? These Credentials reflect the new position. The King speaks, no longer in his own person, but exclusively, formally and ipsis verbis as the instrument of the Irish Government. The Holy See has never before received such Credentials. They are something absolutely new in international relations, something without precedent. It is a case for the most careful consideration whether the precedent (exclusive to the Holy See) of sending replies to personal Credential Letters of heads of States has any application at all in the present instance. Is there not a very real danger that the Holy See by insisting on replying to this absolutely new form of Credentials should appear to give more substance to the position of the King in the Irish legal and constitutional system than in effect, he possesses? Is there not a danger of clothing with flesh and bone an institution which, in relation to Ireland, has become a mere symbol, a shadow? And so also is there not a real danger of the Holy See appearing to be an active, though unconscious, factor in diminishing the measure of independence so hardly won by the Irish people? The Holy See of all Governments in the world would be held up (when the fact of the reply was made public, as it inevitably would) as the only one ready to run the risk of troubling the good relations as now established between Ireland and Britain, for the sake of a precedent which, as I humbly suggest, has no real application in this case.
There is, at the very least, a case for reconsidering the whole position with regard to the reply. The reply, if sent in its present form,1 might well be one of several factors tending to bring about a demand from the Irish people to break this final, tenuous link, so that the reality of our relations with Britain might become clear beyond possibility of doubt to the one Institution in the world to which it is most essential that they should be clear. Some day the link will doubtless disappear. At present it is a certain help towards the restitution of the occupied area of the six counties.