Memorandum from Frederick H. Boland to Éamon de Valera (Dublin)

Informal negotiations have been proceeding for some time with the Six County authorities with regard to the execution of the works on Upper and Lower Lough Erne required in connection with our proposed hydro-electric development.¹

2. In accordance with the Government's decision of the 24th August, 1943,² and the 15th February, 1944,³ it was proposed to the Six County authorities that their Office of Public Works should carry out the necessary drainage and compensation work on the Six County side of the Border on an agency basis under arrangements to be agreed between the Six County Ministry of Finance and the Commissioners of Public Works here in Dublin. The Six County authorities agreed to this proposal, and also to a proposal that any legislation required in consequence of the alteration of the levels of Upper and Lower Lough Erne should be of a reciprocal nature.
3. At a meeting which Mr. Browne,⁴ Chairman of the ESB, had with Sir W. D. Scott, Secretary of the Belfast Ministry of Finance, on the 12th June, however, Mr. Browne was informed that there was an obstacle to surmount before the necessary reciprocal legislation could be proceeded with. The difficulty, it was stated, arose under Section 4 (4) of the Government of Ireland Act, 1920. The Attorney General of the Six Counties⁵ had advised that the Six County Government 'has no power to enter into any commitments for work affecting matters outside its area'. To meet this difficulty, Mr. Browne was informed, enabling legislation would be necessary. This would mean a short Bill in Westminster, and some delay, but no serious difficulty, was anticipated. It had proved impossible to shake the Attorney General on the point.
4. We have now been asked by our Department of Finance for any observations we may have to make on this proposed legislation in the British Parliament amending the Government of Ireland Act, 1920. Section 4 of the Government of Ireland Act, 1920, provides that the Six County Government 'shall not have power to make laws except in respect of matters exclusively relating to the portion of Ireland within their jurisdiction', and that, in particular, they shall not have power to make laws in respect of a number of matters which the Section goes on to specify in detail. Sub-Section (4) of Section 4 (the provision which we were told it was proposed to amend) specifies one of those categories of matters as follows:-
   

   'Treaties, or any relation with foreign States, or relations with other parts of His Majesty's dominions, or matters involving the contravention of treaties or agreements with foreign States or any part of His Majesty's dominions, or offences connected with any such treaties or relations, or procedure connected with the extradition of criminals under any treaty, or the return of fugitive offenders from or to any part of His Majesty's dominions'.

5. It seems to me that a great deal would depend, from our point of view, on what precise form the enabling Act is intended to take. It might be an Act merely enabling the Six County authorities to make this particular arrangement with us. It might, on the other hand, be in more general terms - an Act enabling the Six County Government to make treaties or agreements on matters otherwise within their jurisdiction under the Act. From our point of view, the more general form might have certain attractions. It would open up the prospect of our being able to make agreements with the Six County authorities direct without having to go through London. Whatever objections there might be to such dealings on grounds of principle, they might lead to something useful in practice.
6. Possibly, the best course would be that we should tell our Department of Finance simply that we have no objection in principle to the proposed enabling legislation; but that, at the same time, we should speak at once to the British, tell them that we understand that an amendment of the 1920 Act is being suggested in connection with these negotiations between ourselves and the Six County authorities, and explain to them that, in view of the attitude of our public opinion towards the Act of 1920 and the misgivings likely to be raised by the amendment of the Act in the British Parliament at this stage, we would hope that they would keep us closely informed with regard to the drafting of the measure and let us see the terms of the proposed Bill before it is introduced.