No. 189 NAI TSCH/3/S14387/B
Department of External Affairs Memorandum for Government on the preparation of a Bill to repeal the External Relations Act
Dublin, 8 November 1948
- On the 9th September, the Government granted authority for the preparation of a draft Bill repealing the Executive Authority (External Relations) Act, 1936, and providing for the exercise and performance by the President of the powers and functions which, in accordance with that Act, are at present capable of being exercised and performed by the King recognised by the States Members of the British Commonwealth of Nations.
- The Minister for External Affairs now submits for the consideration of the Government the draft of a Bill for this purpose which has been prepared by the Parliamentary Draftsman.
- The Minister desires to draw the specific attention of the Government to the following points, viz.:-
- The powers conferred on the President under Section 1 (1) of the Bill are purely permissive. All constitutional power and authority in connection with the exercise of the Executive Power of the State in its foreign relations remains vested in the Government;
- It is not intended that the enactment of the Bill should involve the re-accredition of foreign representatives here or of Irish diplomatic representatives abroad. The Minister is advised that, as this matter lies within the executive functions of the Government under Article 29 (4) (1) of the Constitution, it is not competent for the Oireachtas to legislate in regard to it. No provision on this point, therefore, is included in the draft Bill;
- Provision on the lines of Section 1 (2) of the Bill is considered necessary and desirable. It is necessary in order to remove doubts which exist as to the exact description to be applied to the State; considerable awkwardness has often been caused as to the nomenclature to be used abroad in cases where it is usual to describe States by reference to their political status. Formal diplomatic documents (Letters of Credence, etc.) frequently refer to this country as the Republic of Ireland or the Irish Republic. Notwithstanding the provisions of Article 4 of the Constitution, this practice is almost certain to become widespread once the new Bill is enacted. Some such provision as that proposed in Section 1 (2) is required to obviate the awkward necessity of having to return formal diplomatic documents in which the State is so described, for amendment. Moreover, the provision is desirable, in the Minister's view, in order to make quite clear, both to foreign powers and to our own people, the character and scope of the constitutional change which the enactment of the Bill will effect. Its omission might be used to suggest some difference between our position and that of India which - although she expects to maintain her existing trade and other arrangements with the Commonwealth - is described in the draft Constitution now under consideration in New Delhi as a 'sovereign, independent Republic'. The provisions of Section 1 (2) are deliberately permissive. The use of mandatory terms might be argued to be an attempt to amend indirectly Article 4 of the Constitution;
- Provision on the lines of Section 3 providing for a commencement date is, in the Minister's view, necessary and desirable. For several reasons, he considers it would be convenient if the 1st January, 1949, were to be appointed for the commencement of the Act, but he will submit a definite proposal to the Government on this point at a later date.
- At the meeting of the Government at which the draft Bill is considered, the Minister will seek the Government's approval of the final text of the draft Bill and its authority to introduce and circulate the measure.
- The Minister considers that the Bill should be introduced if possible on the first day of the new session of the Dáil and passed through all its stages as early as possible.
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