Memorandum for Government by the Department of the Taoiseach¹
'Six-County Parliamentary Representatives: Question of attending Dáil and Seanad.'
(S6390)

The Taoiseach desires to bring to the notice of the members of the Government the appended advice which he has received from the Attorney General on the above-mentioned matter.

12 Márta, 1949.

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I am asked to examine the question, whether it is possible under the Constitution to make provision by legislation for the representation of the territory known as Northern Ireland in Dáil Éireann or in the Senate and if not possible under the existing Constitution, what amendments would be required to give effect to the proposal.

A secondary question arises, whether if not possible to give representation, it would be possible to give a right of audience to representatives of Northern Ireland in the Dáil or Senate.

Certain general considerations must first be dealt with.

Article 2 of the Constitution provides that the national territory consists of the whole island of Ireland, its islands and the territorial seas.

Article 1 in which 'the Irish nation' affirms its sovereign right to choose its own form of government, would appear also to speak for the historic Irish nation, inhabiting the whole of Ireland.

'The State' named in Article 4 is again presumably the personification of the entire Irish nation, inhabiting the national territory and named 'Ireland', and the State must, therefore, be considered to embrace the whole nation.

The preamble to the Constitution raises certain difficulties of meaning and construction.

'The people of Éire' speaking in the preamble should mean the people of all Ireland, but in the terms of the preamble, they are the body who adopted and enacted a Constitution for themselves which in fact of course was done only by the people of the 26 counties.

The preamble refers, however, to 'our Nation' which would clearly appear to be the Irish nation.

The fundamental difficulty is, that the Constitution being adopted and enacted only by the 26 counties it is difficult to show in what way it could be binding on the people of the 6 counties.

Nevertheless, it appears clear that the Constitution does in fact claim to be one for the entire nation.

The use of the words 'the people' in the preamble is curious. The same word is used in Article 6 providing that all powers of government derive under God from the people. It is also used in Article 12 (2) dealing with the election of the President, in Article 30 (3) providing that the Attorney General should prosecute criminal offences in the name of the people (with a capital P) and in Article 49 dealing with prerogatives belonging to 'the people'. No doubt the word is used elsewhere, though the word generally used throughout the Constitution in declaring rights etc. is 'citizens'.

The distinction would appear to be, that the people of Ireland is a natural body, whereas 'the citizens' is a body to be determined by positive law.

Article 6 (2) provides that the powers of government are exercisable only by or under the authority of the organs of state established by the Constitution.

These Organs of State would appear to be:-

1. The President.
2. The National Parliament.
3. The Government.
4. Probably before the repeal of the External Relations Act, 1936, His Majesty the King, under Article 29 and the said Act, as 'an organ instrument or method of procedure' which may be availed of or adopted by the Government for the purpose of external relations.
5. The Attorney General.
6. The Council of State.
7. The Comptroller and Auditor-General.
8. The Courts.

I have examined the provisions dealing with these organs and, in my opinion, none of them are restricted in the nature or the exercise of the powers conferred on them to the area of the 26 counties. All are generally empowered to act throughout Ireland without restriction and in the name of Ireland.

The major Organs of State require particular examination. These major Organs are:-

1. The Parliament.
2. The Government.
3. The Courts.

The governing Article is Article 3 which provides that pending the re-integration of the national territory, the laws enacted by the Parliament should have the like area and extent of application as the laws of Saorstát Éireann and the like extra territorial effect, but this limitation is declared to be 'without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory'. I have paraphrased the Article in order to bring out what seems to me to be the true construction that while the normal extent of the operation of laws and executive acts is limited to the area of Saorstát Éireann, the right is declared of the Parliament and Government to exercise jurisdiction over the whole of the national territory. The Article would, therefore, appear to be a declaration that Parliament may make laws and the Government may do executive acts over the whole territory even without the achievement of the re-integration of the national territory.

There is no express limitation of the powers of Parliament or the Government in the Articles setting up those two organs, save of course that the laws ordinarily will only be made for the limited area and the executive powers of the Government will be limited in fact by the operation of the laws which it can enforce.

The Courts established by Articles 34 to 37 would appear to be Courts for the whole of Ireland, but their present jurisdiction is limited by Article 58 (1) (one of the transitory provisions), providing that the Courts shall exercise the same jurisdiction as the Courts of Saorstát Éireann until otherwise determined by law. The jurisdiction of the Courts is also of course limited in fact by the extent of operation of the laws they enforce which, where new legislation is concerned, is limited by Article 3 and in the case of the body of Statute Law and the Common Law is limited by Article 50 which continues the laws in force in Saorstát Éireann, so far as not repugnant to the Constitution.

This general survey leads me to the first conclusion that it is natural and proper that all Ireland should be represented in Parliament and should have a voice in the election, appointment and choice of the other organs.

The objections are in my opinion practical difficulties of procedure and not difficulties in principle. The objections are, of course, serious enough.

The first which occurs to one is that in existing circumstances to give representation to Northern Ireland would involve representation without taxation or responsibility.

Other difficulties are those of election and questions of citizenship.

The position with regard to representation in Dáil Éireann and in the Senate must be considered separately. Under Article 16, only citizens are eligible for membership of Dáil Éireann. Dáil Éireann is to be composed of members representing constituencies determined by law and the number of members is to be fixed from to time by a ratio between the number of members and the population (Article 16 sub-head 2). The members are to be elected on the system of proportional representation, by means of the single transferable vote. So long as these provisions continue, it would, I think, be impossible by law to fix constituencies in the six counties, and certainly impossible to carry out there a system of election by proportional representation.

Persons living in Northern Ireland are not citizens under the Constitution or under the existing law, which is the Irish Nationality and Citizenship Act, 1935.

Article 9 of the Constitution provides that any person who was a citizen of Saorstát Éireann immediately before the coming into operation of the Constitution shall become and be a citizen, and that the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law. This provision refers back to Article 3 of the Constitution of the Irish Free State, which provides that every person domiciled in the area of the jurisdiction of the Irish Free State at the time of the coming into operation of this Constitution born in Ireland or either of whose parents was born in Ireland, or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State for not less than seven years, shall be a citizen.

Section 2 of the Irish Nationality and Citizenship Act, 1935, defines further persons who shall be natural born citizens of Saorstát Éireann. Sub-section 4 provides that every person who is not a citizen of Saorstát Éireann, by virtue of Article 3, but was born before the 6th December, 1922, either in Ireland or of parents of whom at least one was born in Ireland, shall, if such a person is at the passing of this Act or becomes thereafter permanently resident in Saorstát Éireann, be deemed to be a natural born citizen.

It will be seen that only persons born in the area of Northern Ireland before December, 1922, can automatically become citizens, and then only if they were domiciled in the area at the particular time or afterwards take up permanent residence in that area. It will also be seen, however, that there is a recognition that persons born in Ireland or of Irish parents have the fundamental qualification as natural born citizens and to become citizens have only to comply with certain conditions. It would seem a natural and proper thing, having regard to the considerations above set forth as to the nature of the Constitution, that all persons born in Ireland or of Irish parents should, if not given automatic citizenship, be entitled, on application, to be accepted as such.

In any event this question can be dealt with by ordinary legislation.

My conclusion is that without amendment of the Constitution, it is not presently possible to admit persons representing constituencies in Northern Ireland to membership of Dáil Éireann.

Under Article 15 (10) each House of the Oireachtas is to make its own rules and standing orders, and in my opinion the Dáil or the Senate could make a provision giving a right of audience to particular persons or a class of persons, either generally or in relation to particular matters; and in my opinion it would be within the powers of either House to provide that members representing constituencies in Northern Ireland, returned to the Parliament of Northern Ireland, should have the right of audience, either generally or limited.

As regards the Senate, the elected members thereof must be elected by the system of proportional representation, and therefore the same difficulty arises here as in the case of the Dáil. Members of the Senate must also be citizens and the situation, therefore, is again the same as in the Dáil. By Article 18 (3) the Taoiseach is authorized to nominate eleven members of the Senate. There is no restriction of his choice, except that the persons nominated must be citizens.

By Section 5 of the Irish Nationality and Citizenship Act, 1935 the Executive Council (now the Government) may, if they think proper, grant a certificate of naturalization to any person or to a child or grand-child of any persons who in its opinion has done signal honour or rendered distinguished service to the Irish Nation.

I have no doubt that persons representative of Northern Ireland could be found who would satisfy the requirements of this Section and justify a certificate of naturalization being granted to them, apart from any other qualifications.

In my opinion, therefore, the Taoiseach could properly use his power of nomination to secure representation in the Senate of Northern Ireland.

The position with regard to according a right of audience in the Senate is the same as in the Dáil.

Without examining it in detail, I may mention a proposition, perhaps worthy of consideration, namely, that a body should be set up resembling the Council of Ireland, which was established under the Government of Ireland Act, 1920, and representative of the two areas with certain powers of legislation, but with the primary purpose of conferring together on matters of common interest. See Sections 2, 7 and 10 of the Government of Ireland Act, 1920. When this body was finally disposed of, an agreement was made between the Government of Saorstát Éireann, the Government of Northern Ireland and the British Government, providing that the Governments should from time to time meet informally and confer on matters of common interest. See this agreement scheduled to the Treaty (Confirmation of Amending Agreement) Act, 1925.² Such a body with consultative powers only, of course, might be set up unilaterally, or alternatively the Government might nominate on its side a number of persons to represent the Government for the purposes of Clause 5 of the Agreement of the 3rd December, 1925, above referred to, and call on the Northern Government to appoint representatives. However, this is not the proposal before me and I merely mention it lest it might be thought worthy of further consideration.

My conclusions are therefore:-

1. That it is not possible under the Constitution to accord membership of Dáil Éireann to representatives of the North.
2. That it is possible in regard to the Senate to exercise the power of nomination to secure such representation there.
3. That a right of audience can be accorded in either House, possibly under rules of procedure and certainly by legislation.