the institutions of the state sector, notably the Electricity Supply Board (ESB).51 The draft bill relating to the ESB was described by Matheson as ‘highly technical, very detailed and very lengthy’.52 In an accompanying memorandum to the Attorney General, he wrote that the draft ‘far transcends in magnitude and difficulty anything which was contemplated by you, or in this office (or, I imagine, by the minister) when the work was undertaken two months ago’. He continued:
I am glad to take this opportunity of letting you know that much the larger share of the credit for having produced this draft in the short time and on the meagre instructions available belongs to Mr Hearne; the draft bill as it now stands is not a draft prepared by me with Mr Hearne’s assistance, but is a draft prepared by him under my supervision, a very different thing and one for which he should be given full credit.
Matheson explained, in some detail, the difficulties faced and included a timetable of meetings with various officials.53 He was determined to leave the Attorney General in no doubt as to the problems associated with the drafting of the bill. The skills Hearne learned as a draftsman were to serve him well when working on constitutional matters later in his career.
John Hearne and the Imperial Conference, 1926
In his capacity as assistant parliamentary draftsman, Hearne attended the 1926 Imperial Conference. Between 1922 and 1932 the foreign policy of the Cosgrave government was dominated by the paramount objective of achieving full and unrestricted sovereignty for the Irish Free State.54 This was to be realised by seeking to transform the British Commonwealth into a free partnership of sovereign independent states,55 all equal in terms of constitutional and international status. In practical terms, this meant equality between the United Kingdom and the self-governing Dominions. For Cosgrave and his ministers the international recognition of Irish sovereignty would represent the true measure of independence. The Irish Free State, however, could not be regarded as a full international entity because of the limited sovereignty of the Dominions in foreign relations.56 In fact, the degree of legal sovereignty they enjoyed in terms of international law was a matter of real controversy.
Notwithstanding these obstacles, there was a vital factor that was to work in favour of Irish policy. The Free State had acquired the status of a Dominion at a stage of development of the British Empire when the Dominions, ‘which had long enjoyed unfettered control of their domestic affairs and, more recently, limited treaty-making powers, were moving, if unevenly, towards autonomy generally, including autonomy in their foreign relations’.57 Such a development was viewed favourably and enthusiastically by a government ruling a country where Dominion status had never enjoyed popular support, having been imposed as part of the Treaty settlement.58 In a very real way, therefore, the Free State was never a member of the Commonwealth, in the sense of accepting it freely and warmly;59 and British beliefs that the country would become a Dominion psychologically as well as constitutionally were mistaken.60
The forum in which the Irish state pursued its policy and engaged in controversy with the government of Great Britain was the Imperial Conference, a gathering of the leaders of Dominion governments, held at periodic intervals. It was regarded as ‘the chief buttress of imperial unity and the tangible expression of imperial co-operation’;61 it was to be the stage on which the Dominions advanced towards full equality and sovereignty. The Irish first attended in 1923, but it was the Conference of 1926 where the Irish delegation played a full role. At this and other Conferences, the Free State delegates, in co-operation with other Dominions, notably South Africa and Canada, expanded the meaning of Dominion status.
John Hearne was among five civil servants who attended the 1926 Conference. The others were Diarmuid O’Hegarty, secretary to the Executive Council, Joseph Walshe, acting secretary of the Department of External Affairs, and two typists.62 Apart from the latter, Hearne was the most junior of the officials.63 This did not mean, however, that he was an unimportant member of the group. A small team such as the Free State delegation had no room for a superfluous member; all would have been expected to make a real contribution and were chosen accordingly. His expertise as a draftsman, together with his legal knowledge, were the determining factors in his selection. His presence in London was probably on the recommendation of the Attorney General, John A. Costello, in whose office he worked and who was an adviser to the ministerial delegation comprising Cosgrave, O’Higgins, Desmond FitzGerald, Minister for External Affairs and Patrick McGilligan, Minister for Industry and Commerce. Joseph Walshe prepared the significant documents that formed the basis of the Irish position at the Conference,64 though Hearne did contribute to a memorandum prepared by Costello on the complex area of merchant shipping.65 In addition to his general advisory role, he acted as an adviser to Kevin O’Higgins, the Free State’s representative on a committee dealing with the issue of nationality, and he was also nominated as the representative on a committee on overseas settlement.66
Before the Conference began, the Irish government proposed that the status of the Dominions be discussed and that anachronistic obstacles to the exercise of their sovereignty be removed.67 The Irish contributed to the clarification of the meaning of Dominion status and, according to D.W. Harkness, their major contribution in this regard was contained in what he described as a ‘remarkable memorandum’ drawn up by ministers and officials, the latter almost certainly including Hearne. Dated 2 November 1926, it was written two weeks into the Conference, which had begun on 19 October. Thus it represented an analysis and restatement of Irish aims, informed by the discussions of constitutional and diplomatic issues at the Conference. Entitled ‘Existing Anomalies in the British Commonwealth of Nations’, Harkness has described it as a document
of great breadth and it recognises that matters which affected one Dominion had repercussions upon all. Far from being a list of domestic grievances its aim was to create throughout the whole Commonwealth an atmosphere of co-operation based on the fellowship of equality … It raised questions of a penetrating nature that went to the heart of the imperial structure: questions that required the closest scrutiny at the highest level.68
The memorandum69 was predicated on a central contention of the Irish delegation that ‘the principle of the absolute equality of status and the judicial and constitutional independence of the members of the British Commonwealth of Nations is now admitted beyond controversy’. Accordingly, attention was drawn to the outstanding anomalies and anachronisms which appeared most to detract from that principle. The Free State insisted on the fundamental right of the government of a Dominion to advise the King on all matters relating to its own affairs. In effect, what was being demanded was that a Dominion government should enjoy the kind of constitutional relationship which existed between the monarch and the government in Britain, when the former acted solely on the advice of the latter.
The memorandum identified what it regarded as an anomaly in the role of the Governor-General in each Dominion – he was both representative of the King and the British government. This dual role gave the Governor-General the constitutional right to interfere in the affairs of a Dominion. To remedy this, the memorandum argued he should represent the King alone and act solely on the advice of the Dominion government. Consistent with this view was the insistence that the powers of reservation and disallowance conferred on the Governor-General be abandoned. In keeping with the assertion of the constitutional independence of the Dominions, their legislative enactments should enjoy extra-territorial effect. Finally, the assumption in international treaties that the signature of plenipotentiaries, appointed solely by the British government, was binding on the governments of the Dominions was utterly unacceptable. Rather, the principle should be accepted that no Dominion could bind another; only the signatures of plenipotentiaries appointed by a Dominion government could have the effect of binding it by international agreement.
The 1926 Imperial Conference is famous for the so-called ‘Balfour Declaration’, which described the Commonwealth as founded on the root principle of the equality of status of the Dominions: ‘They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated
