of the nature of the constitutional relationship between Ireland and Britain, which the British government believed had been settled.41
John Hearne got an insight into British attitudes at a meeting in London, in July 1932, with Sir Harry Batterbee, the assistant undersecretary at the Dominions Office. The official memorandum recorded that Sir Harry wanted a few minutes’ private conversation with Hearne. The latter agreed and ‘Sir Harry proceeded at once to express his views on the general political situation between the two countries.’
He said that everybody connected with official life in the Dominions Office had been very much hurt by the treatment the British government had received at the hands of the new Irish Free State government. The attitude of ‘declining to discuss’ the oath of allegiance was quite unprovoked and uncalled for. But the real gravamen of the existing situation was not this particular difficulty or that particular difficulty, it was the background of the situation, the fundamental unsettling of things that had been regarded as settled, the tendency behind all the particular points at issue to put an end to the basis of the existing relations between the two countries … One felt the hopelessness of dealing with this or that dispute as long as the main position was not definitely settled … He personally felt that the Irish people themselves would have to decide in one way or the other the fundamental question of the continuance of the Irish Free State in the British Commonwealth. It would be for them to say after experience what their decision was to be. It all came to that in the end.42
The hostile reaction among British politicians to de Valera’s policy raised concerns regarding possible implications for Irish people resident in Britain. A memorandum produced by Hearne examined this matter and probably calmed the fears of Irish ministers.43 The legal adviser explained that the residency of most Irish people in Britain was regulated by the Nationality and Status of Aliens Act 1914, by the terms of which all persons born within His Majesty’s Dominions were deemed to be natural-born British subjects. A change in this law would be necessary to deprive them of this status. Assuming that steps were taken to change this, Irish residents would then be classed as ‘aliens’. This would impact on many of the benefits they enjoyed, such as the right to practise medicine on the same terms as English doctors. Moreover, aliens could be deported on various grounds. Hearne pointed out, however, that a person could not be deported simply because she or he was an alien; such a person had to be adjudged as ‘undesirable’ within the terms of the act, for example on account of a criminal record. Even if their status changed, he concluded that a considerable portion of Irish nationals in Britain might escape the more drastic forms of hardship.
It was against a backdrop of an increasingly toxic climate in Anglo-Irish relations that de Valera introduced the proposed legislation to abolish the oath on 20 April 1932. John Hearne was the civil servant in charge of the bill.44 It contained three sections. The first deleted Article 17 of the Free State Constitution. The second repealed section 2 of the document of the Irish Free State (Saorstát Éireann) Act 1922, which required that the document be construed with reference to the Treaty. Under the last section, Article 50, which governed the amendment procedure, was itself amended by the deletion of the words which stipulated that all amendments had to be ‘within the terms of the scheduled Treaty’. Clearly, the bill did much more than simply abolish the oath.45 It also removed the repugnancy clause, a far more significant provision from a legal perspective because ‘it unlocked the potential to unravel the Treaty settlement’.46 This removal was, in fact, ‘the preliminary step’ to this unravelling and, ‘ultimately, for the enactment of the current 1937 Irish Constitution’.47
It is possible, perhaps, to identify Hearne’s influence on de Valera’s speech to the Dáil during the bill’s second stage on 27 April 1932. The President argued that the oath’s removal was consistent with the Free State’s position as a coequal member of the Commonwealth,48 a theme iterated by Hearne on many occasions. He almost certainly influenced de Valera’s statement that, in cases when the courts were required to interpret municipal law which contradicted treaties, the courts favoured municipal law,49 an opinion consistent with the view expressed in Hearne’s memorandum on the oath, which was noted earlier. The bill passed all stages in the Dáil on 19 May 1932 and was sent to the Seanad, where it was delayed; it finally became law on 3 May 1933.50
The annuities’ controversy
The newly elected Fianna Fáil government also announced its intention to withhold payment to the British Treasury of the land annuities due under various land acts enacted by the imperial parliament. A cornerstone of Fianna Fáil’s refusal to pay them was that the financial agreements between the Free State and Great Britain in 1923 and 1926,51 under which the Irish government agreed to collect the annuities and pay them to the British government, were not binding because they had not been submitted to the Dáil for debate and ratification.52 Hearne prepared two memoranda in response to information sought by de Valera on this aspect of his government’s objection to their payment. The first, dated 11 April 1932, outlined the practice in other countries regarding parliamentary approval of agreements and treaties.53
The second, dated 12 April 1932, considered the authority of the Cosgrave government to bind the state to the payment of the annuities.54 Hearne wrote that he could not give a final opinion until all the relevant facts and documents were before him. He did, however, explain the general principles relating to such an agreement. Having been signed by President Cosgrave, an external government would have no reason to believe that the head of government of the Irish Free State was not entitled to bind at least the government of the Free State by his signature. Furthermore, Cosgrave’s signature had not been repudiated by the government. Lastly, the state had acted on the agreement by paying the annuities. Given the opinions expressed by Hearne, the overall import of this memorandum was not particularly helpful to the position of de Valera’s government.
In retaliation for de Valera’s refusal to pay the annuities the British government imposed special duties on Irish imports in July 1932. The Free State countered by putting duties on English imports. The ‘Economic War’ had begun. The two controversies in Anglo-Irish relations – the oath and annuities – became conflated in the responses and attitudes of British ministers, and the special duties came to be seen as a means of putting pressure on de Valera to capitulate. Thus there was the effective pursuit of a policy of economic sanctions for political ends in response to the abolition of the oath.
As a means of resolving their differences over the annuities, both governments gave consideration to arbitration.55 However, there was a fundamental difference between them: British ministers insisted that the matter be submitted to a Commonwealth tribunal, as described in the report of the 1930 Imperial Conference. This tribunal was to be composed of representatives of member states and was to be resorted to as a means of settling intra-Commonwealth disputes.56 Despite reservations about arbitration, de Valera indicated, in June 1932, that he would accept it in principle, but with the proviso that the arbitral tribunal should not be restricted to Commonwealth personnel.57 The British government insisted on this restriction and so the prospect of arbitration foundered.58
During the July meeting between Hearne and Batterbee, referred to earlier, Hearne had given his views on the question of arbitration. In the memorandum recording the encounter, Hearne was reported as stating that ‘he had no authority to go into the general position or to discuss the particular issues, e.g., the oath or the land annuities’; he was giving ‘a purely personal opinion’.59 This opinion he expressed with his usual trenchant forthrightness:
The government of the Irish Free State had accepted the principle of arbitration as a method of settlement. The two governments were definitely agreed on that; they had not agreed on the method of constituting the arbitral tribunal. But in that state of facts the British government brought in the Import Duties Bill against Irish Free State goods and produce. While discussion of ways and means of arbitration – the principle already accepted – was going on this bill was introduced. It would be difficult to find an instance of mishandling of a difficult situation so extraordinary as that.
In
