Thursday, 19 October 1922
Dáil Éireann Debate
“The laws of the Parliament/Oireachtas shall, save where otherwise provided in any Act, be in force throughout the territory and the territorial waters of the Free State/Saorstát Eireann, and all ships registered in the Free State/Saorstát Eireann;  and, save where expressly so provided in any Act, they shall be binding on Irish citizens, when beyond the limits of the Free State/Saorstát Eireann, or on ships not registered in the Free State/Saorstát Eireann.”
I had expected that an amendment dealing somewhat with this point, which I first moved when the Bill was in Committee, would have found its way in among the amendments now before us on the Report stage. It was argued against the previous amendment that it was not necessary, inasmuch as its insertion would be redundant, since the subject matter was covered by an earlier amendment. Had I shared that view I would not have proposed the amendment. It certainly cannot be said that the subject matter of this amendment has been met or covered by an earlier amendment; yet I suggest that the subject matter is one that should be embodied in the Constitution. The subject is one that it is not very easy to make clear in such a body as this, inasmuch as it deals with the very vexed aspect of international law. It deals with what is known as extra territoriality, and it is quite possible that that may become a very vexed question. Indeed, it has become a very vexed question in Canada, where Canadian citizens, once they leave Canadian territory, leave the influence and authority of Canadian laws behind them. I have a letter from Professor Berriedale Keith dealing with the matter, and he gives a number of instances where it is proved that Canadian citizens have gone into the United States to evade the Canadian marriage laws, and on returning after a marriage that would have been considered as bigamous, they nevertheless claim the protection of the Canadian law, and receive that protection. This question of extra territorial legislation is a very vexed one, and one that it is not easy to make clear in this Dáil; it is not easy to draft an Article for it at all, as I stated clearly in this Dáil when this Bill was in Committee, and for that reason I asked Professor Berriedale Keith if he would be good enough to help me to draft an Article such as I would be able to propose, and the Article here is one that he himself has drafted. I have his permission to make a quotation from his letter. He says, “The precise wording can be  manipulated to suit the terminology of your draft generally, but you should, I think, make clear the three essential points:—(1) the Laws of the Parliament shall normally throughout the territory of the Irish Free State, include the territorial waters. There has been a good deal of discussion—most of it fruitless, as to the real status of the territorial waters of the Dominions, e.g., Canada, and you should prevent any possibility of doubt in the case of Ireland by mentioning these waters expressly. The extent of these waters you cannot well define as the matter is one for international law to decide. (2) The Laws of the Free State should apply to the full extent to every ship registered in the Free State, wherever that ship may happen to be. Otherwise, the law applicable would probably be held by the British Courts to be English law, though the point is not without doubt. (3) The Parliament should have power when it desires to bind Irish citizens even beyond territorial waters, and when on non-Irish ships. To take a simple example—it should be possible to punish an Irishman who, e.g., marries a second wife in the lifetime of his first wife. Such powers, of course, should be exercised sparingly, both because of considerations of international law and of the disadvantage of imposing penalties on things which may not be criminal by the law of the place where the person acting is resident, but the powers plainly necessary for the discipline forces or aeroplanes beyond the territorial limits of the Free State, and soforth. Irish laws, however, should have such effect only when expressly inactive in this sense.”
All these matters, unless power is taken in the Constitution already, will be excluded. We had the Latin tag quoted yesterday, that if you mention one thing you may exclude another, but if we do not include this in the Constitution, we exclude it, and what happens actually in that case is, that the laws of the Irish Free State will not be binding upon any Irish citizen, except that he is in the territory of Ireland, and the law that will bind him outside Irish territory will be English law and not Irish, and inasmuch we desire that with respect to the legislation of Oireachtas we should hold co-equality with the other nations, it is necessary that the law binding  upon Irish citizens in its full force and effect should be Irish law and not English law.
Mr. THOMAS JOHNSON: I would like to ask some explanation of the position. Say, in the case of a factory owner who was a citizen of the Saorstát, and who was precluded by certain Acts from employing people under certain conditions in the Saorstát Eireann, and if that particular citizen went to Germany, or Russia, or South Africa, or China, and employed the citizens of that particular country under conditions different from those which prevail in Saorstát Eireann, would he be amenable to the laws of Saorstát Eireann? That is the difficulty that strikes me in one clause of that particular Article. The other two I can appreciate fully; but that particular clause which says, “Provided in any Act, they shall be binding on Irish citizens, when beyond the limits of the Free State/Saorstát Eireann.” Perhaps some supporter of this clause will explain that for my benefit.
Mr. KEVIN O'HIGGINS: A good deal of this Article—this proposed amendment—may be regarded as padding for the last sentence—that last sentence which introduces, or attempts to introduce, into this Constitution, as in Canada, the principle of extra territorial jurisdiction. Now, extra territorial jurisdiction has been described by Deputy Figgis as a very vexed question. It has been described by another constitutional authority, Professor Berriedale Keith, as an unsettled point in the Dominions, and we are to set it down here as one of those agreed fundamental principles which properly take their place in their country's Constitution—to set it down with a minimum of critical examination and a minimum of reflection. It seems to me that on the question of jurisdiction you come up against this— that if we had set this down in our Constitution that the laws of the Free State were binding on Irish citizens all over the earth, and that Irish citizens in Canada and Australia and America on anywhere else, refused quite to take that view, you come back always to the point as to whether the Government of the country in which he may happen to be accepts that view, and inamuch as there  may be no such agreement, the whole thing is reduced to futility. Are you going, as the President asked, to extradite a man because he refused to obey your vaccination laws at the end of the earth? And is the Government of that particular country going to fall in with your views and assist you to enforce your law in their territory? That is what it comes to. And to set down here in our Constitution a principle of that kind, with no guarantee whatever that it will be honoured or accepted by any single country on the face of the earth is simply inviting ridicule. I contend, sir, that the reference to territorial waters was unnecessary, and that the reference to ships was unnecessary, and that the reference, the attempt to introduce into this Constitution that very vexed question, that unsettled question of extra territorial jurisdiction, is simply trifling.
Mr. KEVIN O'HIGGINS: I move, in page 9, line 1, of the draft Constitution of Saorstát Eireann Bill, as amended in Committee, to delete the words “Section 11—Legislative Provisions,” and in page 9, line 2, to delete the words “E— Referendum and Initiative.”
Mr. KEVIN O'HIGGINS: I move, in Article 48, in lines 26 and 27, to delete the words “one hundred” and to substitute the words “seventy-five,” and in line 28, to delete the word “twenty,” and to substitute the word “fifteen.” It was suggested here in the Committee stage that 100,000 voters was rather a large number to expect to sign a petition in this matter, and 50,000 was asked as a substitute. Well, on consideration we are prepared to insert there 75,000, and also lower down in the line 28 to substitute 15,000 for 20,000. I note another amendment on the paper in this connection.
Mr. DARRELL FIGGIS: I would be inclined to favour 50,000 simply because in any case the application for a Referendum can do no harm, and when you consider the extraordinary difficulty of getting 50,000 you will agree. I think 75,000 would be almost as difficult as 100,000. I would like to see it lower still than 50,000. The proportion in countries where it is in operation is lower than what is proposed here. Fifty thousand would be low enough, and it will be unwieldy and difficult enough to work, and I think 50,000 will meet the case better than 75,000.
Mr. T. JOHNSON: Leaving out the argument in support of 50 as against 100. I will ask the Minister to accept the proposition to substitute 30,000 for 50,000 in line 34. It would then read: “Any legislation passed by the Parliament providing for such initiation by the people shall provide, first, that such proposals may be initiated on a petition of 30,000 voters on the Register.” That, I think, is reasonable, especially if you are reducing the number 100,000 to 75,000. The request that legislation shall be initiated on a petition by 30,000 instead of 50,000 is not asking too much. I beg to move that part of the amendment.
Mr. KEVIN O'HIGGINS: The Minister for Local Government informs me that there will be about 2,000,000 voters, and this figure of 50,000 is, I think, about 1/40 of that number. To suggest that it is too large a number in view of the importance of the power that is given to them is scarcely tenable. In view of the importance of the power that is given to them, and in view of the elaborate and expensive machinery they can set in motion, we do not consider there is a  case for the reduction of the figure, while, of course, it is open to the Dáil to vote on it.
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