Letter from John J. Hearne to Joseph P. Walshe (Dublin)
(EA 3/1929) (Copy)

Secretary,

The question raised here, namely as to whether a certificate of qualification should be issued under the Civil Service Regulation Acts, 1924 and 1926 to the new Ministers abroad upon their appointment, is a question the answer to which depends upon the answer to another question namely: Who makes the appointment? It would appear from the file of this Department E.A.3 which relates to the appointment of the successor of Professor Smiddy as Minister at Washington that the appointment of a Minister abroad is made directly by the Executive Council. In a minute dated the 15th January, 1929, which appears on the said file and is addressed to you from the Assistant Secretary to the Executive Council, you were informed that the appointment of Mr. MacWhite to Washington, of Count O'Kelly to Paris and of Professor Binchy to Berlin was in each case 'made by the Executive Council'. I shall, therefore, in the first instance assume that the appointments of the new Ministers are Executive Council appointments and, in the light of that assumption, consider the question as to whether certificates of qualification must be issued to them under the Civil Service Regulation Acts, 1924 and 1926.

Certificates of qualification are issued by the Civil Service Commissioners under the Acts referred to only when an appointment is being made to a situation in the Civil Service of the Government of Saorstát Éireann to which those Acts apply. The Civil Service Regulation Act, 1924, enacts by subsection (1) of section 10 that that Act applies

and the Civil Service Commissioners are given power by subsection (2) of the said section 10 under certain circumstances to add by order non-permanent situations to the Schedule and also to withdraw situations from the Schedule. The Schedule refers to certain situations and expressly mentions others. Amongst those expressly mentioned are 'All situations to which the holder is appointed directly by the Executive Council'. It is clear, therefore, from section 10 of the Civil Service Regulation Act, 1924 that the Act does not apply at all to any situation to which the holder is appointed directly by the Executive Council.

The Civil Service Regulation (Amendment) Act, 1926 applies only to those situations to which the Civil Service Regulation Act, 1924 applies for the two Acts must be construed together and by section 5 of the later Act it is enacted that they may be cited together under a collective title.

It follows, of course, that certificates of qualification cannot be issued under the Civil Service Regulation Acts 1924 and 1926 in respect of appointments to situations in the Civil Service which are made directly by the Executive Council. I think, therefore, that if the appointment of new Ministers abroad is, in fact, made by the Executive Council certificates of qualification under the Acts referred to are unnecessary and that furthermore there is no power in the Civil Service Commissioners to issue such a certificate under those Acts in the case of any such appointment.

It appears, however, from your telephone conversation of the 1st instant with Mr. Boland¹ that the Minute on Departmental file No. E.A.3 is not conclusive as to what actually takes place when a Minister abroad is appointed. The practice is that the Minister for External Affairs, with the concurrence of the Minister for Finance, makes a recommendation to the Executive Council that a particular person be appointed a Minister abroad. The Executive Council then consider whether it would be in the public interest that the person so recommended should be appointed to the post in question and if they decide that it would be in the public interest that such person should be so appointed they record that decision. The actual appointment is then made under the Ministers and Secretaries Act, 1924 and the Civil Service Regulation Acts 1924 and 1926.

The practice followed appears to me for the reasons hereinafter stated to be well founded in the relevant provisions of the statutes just referred to.

A Minister abroad is an officer of the Department of External Affairs. As such (and not being the Secretary of the Department who is appointed by the Executive Council) he must be appointed by the Minister for External Affairs with the sanction of the Minister for Finance. His appointment is governed by section 2 of the Ministers and Secretaries Act, 1924. By subsection (2) of the said section 2 it is enacted that the Executive Council shall, on the recommendation of the Minister, appoint the principal officer of each Department of State and that the other officers and servants shall be appointed by the Minister who is head thereof. The subsection contains the further provision that every appointment made thereunder shall be subject to the provisions of the Civil Service Regulation Act, 1923 or of any Act for the time being in force replacing or amending that Act. (It is moreover enacted by subsection (3) of the said section 2 that the terms and conditions of appointments of all officers and servants appointed by any Minister shall be prescribed by the Minister for Finance). The Civil Service Regulation Act, 1923 was repealed by section 12 of the Civil Service Regulation Act, 1924 and is now replaced (within the meaning of the provision referred to in the Ministers and Secretaries Act, 1924) by the Civil Service Regulation Acts, 1924 and 1926. It is clear, therefore, that a Minister abroad being an officer (other than the Secretary) of the Department of External Affairs is appointed by the Minister who is head of that Department. That being so the appointment is one to which the Civil Service Regulation Acts, 1924 to 1926 apply. The new section 6 of the Civil Service Regulation Act, 1924 inserted therein by virtue of section 3 of the Civil Service Regulation Act, 1926 is accordingly properly used when the appointment of a person not previously a civil servant to be a Minister abroad is made. The records of the Secretariat of the Executive Council in this connection are not strictly accurate. The function of the Executive Council when a 'public interest' appointment is being made under subsection (2) of the said section 6 is to determine whether or not the appointment of a particular person to a particular post is in the public interest, not to make the appointment on that ground or at all. The record should simply register the decision made by them under the statute.

The further question raised in our conversation on the 1st June, namely as to whether Ministers abroad being the Envoys of the Government should not be appointed by the Executive Council must be answered by reference to the present intention that Ministers abroad should be members of the permanent civil service established and pensionable. If the appointee to a particular post abroad in the capacity of Minister is to be a civil servant and if the present dearth of suitable persons in the existing service to fill appointments of this kind continues, there would appear to be no course open but to resort to the provisions of the Civil Service Regulation Act, 1924 as amended by the Civil Service Regulation Act, 1926. The method of appointment does not affect the status of the appointee as the Envoy of the Government. His letters of Credence are given by the King on the advice of the Executive Council.

I have to refer, finally, to section 4 of the Civil Service Regulation Act, 1926 which relates to the form of notice of appointments under section 6 of the Civil Service Regulation Act, 1924. The notice in the Iris Oifigiúil of the appointments now to be made should indicate the subsection of section 6 of the Civil Service Regulation Act, 1924 (as amended by the Civil Service Regulation Act, 1926) under which the certificate of qualification is issued.