Appointment as legal adviser, 1929
In 1929, John Hearne was appointed legal adviser.90 Together with two cadets recruited as a result of the first public competition for the Department of External Affairs, he joined an establishment which had endured many difficulties from its inception, not least the belief that its very existence was unnecessary.91 This department was a completely new institution of government, necessitated by the Free State’s constitutional status as a Dominion, and did not enjoy the advantage of the tradition of other offices in the former British administration, which were transferred into government departments, with comparatively little difficulty, on the setting up of the Irish state. During the Dáil debates in 1923 on the Ministers and Secretaries Act, which gave government departments their formal and legal basis, deputies questioned the need for a foreign ministry.92 The threat hanging over it was its possible absorption into the Department of the President. It was not until 1927 that its civil service head, Joseph Walshe, was given the rank of secretary and, by 1929, the threat to its independent existence had been dispelled with the recruitment of a legal adviser and cadets. These circumstances have prompted Dermot Keogh to write that ‘it was possible to speak for the first time of a Department of External Affairs’.93
Conference on the Operation of Dominion Legislation, 1929: Hearne’s memoranda
The Irish government was anxious to continue and expedite the process of transforming the character of the British Commonwealth. The 1926 Imperial Conference and, in particular, the Balfour Declaration had advanced this objective, but to the outside world it still had the appearance of an association dominated by Britain.94 A momentous step in altering this perception was taken at the Conference on the Operation of Dominion Legislation, which had its origins in the 1926 Conference and which, after some delay, was organised for October 1929. Its terms of reference were comprehensive:
To enquire into, report upon and make recommendations concerning
(i)Existing statutory provisions requiring reservation of Dominion legislation for the assent of His Majesty or authorising the disallowance of such legislation.
(ii)(a) The present position as to the competence of Dominion parliaments to give their legislation extra-territorial operation.
(b) The practicability and most convenient method of giving effect to the principle that each Dominion parliament should have power to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order and good government of the Dominion.
(iii)The principles embodied in or underlying the Colonial Laws Validity Act 1865, and the extent to which any provisions of that act ought to be repealed, amended or modified in the light of the existing relations between the various members of the British Commonwealth of Nations.
In addition to the above, the whole area of merchant shipping was referred to the 1929 Conference in order to ‘consider and report on the principles which should govern, in the general interest, the practice and legislation relating to merchant shipping in the various parts of the Empire, having regard to the change in the constitutional status and general relations which have occurred since existing laws were enacted’.95 The report of the Conference on Dominion Legislation was to be submitted to an Imperial Conference for its consideration.
The purpose and importance of the Conference on Dominion Legislation was explained earlier in 1929 by Patrick McGilligan, Minister for External Affairs, in the course of a Dáil debate on the estimates for his department:
The Commonwealth conception imports no limitation of the internal sovereignty of any of its members, and imposes no restrictions upon the exercise of its external sovereignty by any such member … In the autumn of the present year a committee of experts from every state of the Commonwealth will meet to discuss the formal amendment or modification, or repeal of enactments still on the statute book of the United Kingdom, which are inconsistent with the existing legislative powers of the member states’ parliaments. Our purpose is that whatever remnants there may be of the old order of imperial control will be removed and the last vestiges of the organisation now superseded swept away. The entire legal framework in which the old system of central rule was held together will be taken asunder and will never be put together again. A new legal structure will take its place … The free co-operation which is the basis of the Commonwealth idea … will be clothed in forms which reveal rather than conceal its reality.
McGilligan observed to deputies that ‘the House will realise what an amount of watchful, painstaking and highly technical labour that work involves’.96 John Hearne, as legal adviser at the department, did an immense amount of legal preparation, drawing on what D.W. Harkness has described as ‘his voluminous knowledge of British constitutional history’,97 and his memoranda were to inform, support and summarise the arguments of the Irish delegation at the Conference.
In a preliminary memorandum, dated 15 July 1929,98 Hearne gave an overview of some of the issues facing the Free State’s representatives. He emphasised that the new character of the Commonwealth found expression in the formula ‘freedom and constitutional equality’, thus indicating the freedom of the members to co-operate or act separately and equally in the exercise of every function of government – legislative, judicial and executive.99 The rapid development in the constitutional relations between the Dominions and the British parliament had resulted, however, in a situation in which the laws governing that relationship did not always reflect the new reality.100 Hearne explained this in almost poetic terms:
The statute book of the British parliament is crowded with imposing but antiquated legal structures in the shadows of which the new group of buildings – as it were – erected in the course of world reconstruction are lost to view. The Commonwealth will not appear to the world in its true perspective for the group of constitutional edifices which it is – each unit in the group, although not symmetrical with each other, yet splendidly proportioned to the ends and aims of all – unless and until the shadows cast upon it out of a dead age are lifted. ‘The state’, ‘the Commonwealth’, ‘status’ are spoken words. The written text of the statute law either belies them or gives them legal sanction, life and permanence. Step by step the written law must form up with the advances of the new constitutional doctrines.101
He had the Balfour Declaration in mind when he wrote of ‘momentous developments’ resulting ‘in a constitutional situation in which the United Kingdom as at present constituted is no more than one of the self-governing states of the Commonwealth’.102
Hearne addressed a fundamental issue in terms of the relationship between Commonwealth states and, in particular, their relationship with Britain – the extent of the legislative powers of Dominion parliaments. Regarding the Free State, the matter had to be viewed in the context of the situation resulting from the Treaty of 1921. Citing legal opinion, that of Justice Murnaghan in the High Court in 1925, the effect of Article 1 of that instrument was to create an independent state.103 Therefore, Hearne asserted a fact which ‘needed no emphasis’, that the Treaty was an agreement between two independent nations104 and, in theory, there could be no limitation to the legislative power of an independent state.105 He declaimed the view that ‘to speak of a disability to legislate arising out of the status of “an independent state” seems to do violence to the plain meaning of words’.106 He accepted that British legal theory might not accept his arguments but this was not material to the purpose of his memorandum. Indeed, he realised that the student of British constitutional history was familiar with the long-drawn-out controversy as to the extent of the legislative power of Dominion parliaments.107 He highlighted the two areas of particular contention where the British government insisted on the limitation of the power of these parliaments – the extra-territorial effect of legislation and the application of the Colonial Laws Validity Act 1865.
According to prevailing British legal theory, laws enacted by a Dominion legislature
