operation was given by the British parliament. In his memorandum, Hearne contended that nothing in the constitutions of the Dominions imposed any territorial limitation on the operation of any law made by a member of the Commonwealth. When necessary for ‘the peace, order and good government’ of a Dominion, its legislature was able to enact laws with extra-territorial effect. In his view, the words of the Dominion constitutions were wide enough to sanction such operation and, therefore, it followed that an act of the Oireachtas was not necessarily ultra vires if it had extra-territorial effect.108
Hearne’s interpretation, however, was not the main reason why the Irish government asserted the extra-territorial effect of Free State legislation. Rather, it was founded on a deep-seated perception of sovereignty and the consequent rejection of a Dominion status which denied this.109 Hearne articulated opinions informed by such beliefs in a subsequent memorandum, dated 26 August 1929, devoted entirely to the subject.110 He restated the view given in the preliminary memorandum that the right of extra-territorial legislation ‘must be regarded as inherent in the parliament of a Dominion’ and any contrary opinion111 had its origins, according to Hearne, ‘in the arbitrary limit set to the powers of the Dominions by judicial minds steeped in the law-lore of the British colony’.112 He asserted that ‘whatever the parliament of the United Kingdom can do, the parliament of any other of the associated states can do’.113 He advised, with certainty and conviction, on the necessary course of action to be pursued by the Irish delegates at the Conference: ‘The law must become and be this: that a member state of the British Commonwealth is in precisely the same position as is the United Kingdom or any other state in the world.’114
The second limitation on the powers of a Dominion parliament insisted upon by the British government had its basis in the Colonial Laws Validity Act 1865.115 Section two declared that any law made by the legislature of a colony, which was repugnant to any act of the imperial parliament extending to that colony, was, to the extent of the repugnancy, void and inoperative. Successive British governments insisted that the act applied to the Free State, an opinion rejected by the Irish government.116 Nor were the provisions of this act regarded by the latter as an abstract threat. In 1926, the Judicial Committee of the Privy Council used the statute to invalidate a section of the Canadian Criminal Code 1888. This decision had a particular resonance in Ireland, linked as it was to the constitutional position of Canada by the terms of the 1921 Treaty. Many observers on both sides of the Atlantic believed that the Privy Council was sending a message to the Free State, in the parliament of which there had recently been debates on the matter of retaining the right of appeal to the Privy Council from Irish courts.117 The Canadian case confirmed the Irish belief that the act was a direct threat to, and indeed a usurpation of, the attributes of sovereignty of the Free State, since its laws could be declared null and void if found to be repugnant to statutes passed by an external parliament.
In his preliminary memorandum, Hearne rejected the application of the Colonial Laws Validity Act to the Irish state, citing section three of the Irish Free State Constitution Act 1922,118 enacted by the British parliament on 5 December 1922, to give legal effect to the Constitution of the Irish Free State. This section stated that, if the parliament of the Free State made provision to that effect, any act passed before the Constitution Act, which applied to the Dominions, would also apply to the Free State. Hearne submitted that this section was based on the assumption that imperial statutes passed before the act did not apply to the Irish state; they could only do so if adopted by the Oireachtas.119 The Irish parliament had not adopted the Colonial Laws Validity Act.
In another memorandum, dated 3 September 1929, he developed his views on the Colonial Laws Validity Act.120 He was trenchant in his condemnation of it:
What is meant when it is said that the Colonial Laws Validity Act 1865 is repugnant to the legislative independence of the member states of the Commonwealth of Nations? Just this: that, as there is now in fact no supremacy of the British parliament over the parliament of, say, Australia or the Irish Free State, the retention on the British statute book of the Colonial Laws Validity Act is inconsistent with, in the sense of being irreconcilably opposed to, the constitutional fact.121
Its presence on the imperial statute book was contrary to the notion of an association of co-equal states and ‘the whole theme and theory of status and statehood as it exists in the Commonwealth today’.122 As in the case of extra-territorial legislation, Hearne was definite as to the approach the Free State must take at the forthcoming Conference: ‘But we must at least go to the length of seeking a formal repeal of the offending sections of the act of 1865 with something in the nature of a renunciation declaration in the recital of the repealing statute.’123 This suggestion was the least he could make in relation to a law he had forcefully described in figurative terms as ‘the sword of contingent invalidity hanging over Dominion legislation’.124
The essential legal import of Hearne’s submissions contained in the four memoranda regarding the extra-territorial operation of Dominion legislation and the Colonial Laws Validity Act was that ‘there exists no limitation of the legislative power of the Irish Free State arising out of status’.125 This was a powerful statement in the context of a state which was asserting its sovereignty and preparing for a conference which would be critical in relation to its international acceptance.
In terms of the development of the Commonwealth, one of the most complex areas was that of merchant shipping legislation.126 This fact was acknowledged in the report of the 1926 Imperial Conference, when it was observed that ‘it was difficult to reconcile the application, in its present form, of certain provisions of the principal statutes relating to merchant shipping, the Merchant Shipping Act, 1894 … with the constitutional status of the several members of the British Commonwealth of Nations’.127 This fact certainly concerned the Irish delegation, whose main concern was that the Free State should be able to fly its own flag on its ships, and that these be recognised internationally as Irish not British ships, as under existing laws.128 The Conference decided to refer the issue of merchant shipping to a special sub-conference which was to meet at the same time as the committee of experts reviewing Dominion legislation.129
Hearne produced a memorandum on merchant shipping, dated 24 July 1929,130 while also referring to it in his preliminary memorandum. In the former he asserted the power of the Oireachtas to legislate in regard to merchant shipping131 and that any bill so enacted would require all ships registered in the state to fly the national colours.132 He was very aware, however, of the fact that there existed throughout the world an administrative machinery established by the existing Merchant Shipping Act, which was of enormous advantage in the commercial life of the Free State.133 He was of the view, therefore, that Free State legislation would be determined by ‘considerations of expediency and practical convenience’.134 ‘Theoretical exactitude’ in the legal position of the Free State would have to take account of practical realities, Hearne summarising the situation thus: ‘In the event, all our problems may merge into one: the problem of how far the British government will allow us to enjoy the benefits and advantage of their merchant shipping system, while permitting us to depart in important particulars from the theoretical basis around which the system swings.’ In place of the existing system, Hearne envisaged the enactment by members of the Commonwealth of a series of reciprocal statutes to establish a system of merchant shipping laws based on mutual co-operation.135
This idea was developed in a memorandum entitled ‘Proposals for Reciprocity’.136 Merchant shipping laws should be enacted in a series of reciprocal agreements, the enforcement of which should be on the basis of mutual recognition and assistance. The authority of a statute of one member of the Commonwealth should, as far as practicable, bind all or at any rate be enforceable in the courts of all. According to Hearne, ‘merchant shipping laws should be enacted as conventions of the Commonwealth association’.137 The laws of all Commonwealth members should ‘hold good’ in the ports of the United Kingdom and in the ports of other member states.138 It is evident why this suggestion appealed to Hearne – the principle of reciprocity recognised the co-equal status of all Dominions and the consequent right to regulate their own merchant shipping laws, while preserving a mutually beneficial system of administrative
