No. 312 NAI DT S9433
Memorandum by Attorney General Cearbhall Ó Dálaigh on the External Relations Act and the appointment of consular representatives
(SR 10/44) (669/47)
Dublin, 15 April 1947
- The appointment of consular representatives (among whom, I think, are to be included honorary consuls), if not made by the Government, should, in my opinion, be made on the express authorisation of the Government. Whether that authorisation is given generally or ad hoc from time to time is not material. It suffices that appointments are on the authority of the Government.
- The Act of 1936 (No. 58/1936) in respect of consular representatives requires direct appointment by the Government or, failing that, an appointment on its authority. Is it to be inferred that as of the date of the passing of the Act of 1936 the Government's authority was delegated to or vested in the Minister for External Affairs? I think not. The enumeration of the Minister's functions in section 1 (xi) of the Ministers and Secretaries Act, 1924 (No. 16/1924), cannot be regarded as sufficiently wide to extend to the appointment of consular representatives. The inference therefore is that the Act of 1936 contemplated, if the appointments were not made directly by the Government, that they should be made on its express authority, i.e., by a future delegation of authority.
- Further, it seems to me that resort may not be had to the constitutional doctrine of the collective responsibility of the Government to supply the absence of an express delegation of its powers by the Government to a Minister or some other person. That doctrine does not imply that each Minister has and may exercise all the functions of his colleagues and of the Government: it merely renders the members of the Government collectively answerable not only for such functions as they discharge as a body but also for such functions as they discharge severally. The appointment of consular representatives is a Government function under the Act of 1936 to be exercised either immediately or mediately; and if mediately, to be exercised by such agent as the Government shall designate. Such designation should, in my opinion, be made by the Government expressly and in its corporate capacity.
- With regard to the three considerations advanced on page 2 of the Department's memorandum of 28th ultimo1 I should like to offer the following observations:-
(1) Act of 1936 is an ordinary Act of the Oireachtas and none of its provisions can be dispensed with. No Minister can in himself exercise the powers of the Government; and when, as in section 1 (2) of the Act of 1936, the power of appointing consular representatives is vested in the Government, with a right to delegate that power, the delegation is itself a Government function which can be discharged only by the Government acting in its corporate capacity. Compliance with the provisions of section 1 of the Act is not onerous. First, the section deals only with representatives, diplomatic and consular. The term 'representatives' connotes a limited class. It does not, I suggest, extend beyond those persons in the diplomatic and consular service who on appointment are required to produce their credentials to the Government of the country to which they are posted.
Next, diplomatic representatives are to be appointed on the authority of the Government, while consular representatives are to be appointed by or on the authority of the Government. Every appointment by the Government is an appointment on its authority; but an appointment on the Government's authority is not necessarily an appointment by the Government. The difference in phrasing between subsection (1) and subsection (2) of section 1 of the Act of 1936 is probably to be explained on the ground that it was in mind that diplomatic representatives would normally be appointed by a more exalted constitutional organ than the Government, e.g., the head of the State.
(2) So far as the Act of 1936 is concerned the present practice of seeking the specific authority of the Government for the appointment of the heads of all diplomatic missions is necessary only until such time as the Government thinks fit to delegate its authority in that respect. Likewise, consular representatives should continue to be appointed by the Government until there has been a delegation of the Government's authority. The appointment of diplomatic and consular staffs is an administrative matter which does not fall within the purview of the Act of 1936.
(3) As has been indicated, the Act of 1936 is concerned only with the appointment of representatives, diplomatic and consular, and it is open to the Government to delegate, generally or in particular cases, the powers at present vested in it by the Act.
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