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“The Statute of Westminster, 1931: An Irish Perspective”

  • Thomas Mohr

Extract

The enactment of the Statute of Westminster in 1931 represents one of the most significant events in the history of the British Empire. The very name of this historic piece of legislation, with its medieval antecedents, epitomizes a sense of enduring grandeur and dignity. The Statute of Westminster recognized significant advances in the evolution of the self-governing Dominions into fully sovereign states. The term “Dominion” was initially adopted in relation to Canada, but was extended in 1907 to refer to all self-governing colonies of white settlement that had been evolving in the direction of greater autonomy since the middle of the nineteenth century. By the early 1930s, the Dominions included Canada, Australia, New Zealand, South Africa, Newfoundland, and the Irish Free State.

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1. Previous “Statutes of Westminster” had been enacted in 1275, 1285, and 1290.

2. The use of a capital “D” when referring to the “British Dominions” was required by the British government in order to avoid confusion with the wider term “His Majesty's dominions” which referred to the British Empire as a whole. See the National Archives of the United Kingdom (henceforth TNA), HO 45/20030. This article will follow this convention.

3. Lewis, David L., “John Latham and the Statute of Westminster,” Electronic Journal of Australian and New Zealand Historyhttp://www.jcu.edu.au/aff/history/conferences/newcastle/lewis.htm (August 2, 2012). See also National Archives of Ireland (henceforth NAI), Department of Foreign Affairs, 5/3, press statement by Patrick McGilligan on the Statute of Westminster, December 11. 1931.

4. For example, Hansard, House of Commons, vol. 259, col. 1222, November 20, 1931. See also Hudson, Manley O., “Notes on the Statute of Westminster, 1931,” Harvard Law Review 46 (1932): 261289, esp. 262 and 276.

5. Williamson, James A., A Notebook on Commonwealth History (London: Macmillan, 1960), 262.

6. Baker, P.J. Noel, The Present Juridical Status of the British Dominions in International Law (London: Longmans, 1929), 356. This conclusion was echoed by general texts on public international law. The 1924 edition of Hall's International Law concludes “For the general purposes of international law, except for League of Nations proceedings, it is not believed that any one of the self-governing Dominions possesses international personality apart from the whole of the Empire.” Higgins, Pearce, Hall's International Law (Oxford: Clarendon Press, 1924), 34.

7. For example, see Lauterpacht, Hersch (ed.), Oppenheim's International Law (London: Longmans, 1963), 203–5.

8. Cheffins, Ronald I., and Tucker, Ronald N., The Constitutional Process in Canada (Toronto: McGraw-Hill Ryerson, 1976), 12.

9. McMinn, Winston G., A Constitutional History of Australia (Melbourne: Oxford University Press, 1979), 160.

10. Liebenberg, Barend J., “Hertzog in Power,” in Five Hundred Years – A History of South Africa, ed. Muller, Christoffel F. J. (Pretoria: Academica, 1981), 422.

11. McIntyre, W. David, “Imperialism and Nationalism,” in The Oxford History of New Zealand, ed. Rice, Geoffrey W. (Auckland: Oxford University Press), 346. For an opposing view see Hansard, House of Lords, vol. 83, col. 187–88, November 26, 1931. It is not uncommon for historians to interpret the Statute of Westminster as giving legal force to the Balfour declaration of 1926. This recognized that the Dominions were “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 as members of the British Commonwealth of Nations.” command paper 2768, p. 14. For example, see Ward, Russell, A Nation for a Continent – the History of Australia 1901–1975 (Richmond, Victoria: Heinemann Educational, 1981), 199; Gibbons, Peter J., “The Climate of Opinion,” in The Oxford History of New Zealand ed. Rice, Geoffrey W. (Auckland: Oxford University Press), 335; Day, David, Claiming a Continent – A New History of Australia (Sydney: Angus and Robertson, 1997), 251–52; and Barnard, Marjorie, A History of Australia (Sydney: Angus and Robertson, 1980), 543.

12. Under British law, the Irish Free State came into existence on December 6, 1922. The date on which the Irish Free State came into existence cannot be so easily fixed under Irish law. See Mohr, Thomas, “British Imperial Statutes and Irish Law,” The Journal of Legal History 31 (2010): 299321.

13. Nicholas Mansergh explains the relative paucity of attention to the Statute of Westminster in Irish historiography by reference to the reaction of the de Valera government, which took advantage of the concessions granted by this historic piece of legislation while repudiating the authority of British imperial statutes within the Irish Free State. Mansergh argues that historians have understood that Irish nationalism was in a revolutionary phase in the 1930s and stated that “[r]evolutionaries who respect constitutions, conventions and legal precedents are not revolutionaries at all.” Mansergh, Nicholas, Survey of British Commonwealth Affairs: Problems of External Policy, 1931–1939 (London: Oxford University Press, 1952), 26. This conclusion should be treated with caution, given the volume and length of the legal analyses on the constitutional position of the Irish Free State produced and given public expression by the Cosgrave and de Valera administrations. Some works on Commonwealth history do devote significant attention to the relationship between the Irish Free State and the Statute. For example, see Wheare, Kenneth C., The Statute of Westminster and Dominion Status (Oxford: Oxford University Press, 1938, 1942, 1949, and 1953). See also Harkness', David W. important work on the Irish Free State and the Commonwealth, The Restless Dominion (New York: New York University Press, 1970).

14. The terms “Empire” and “Commonwealth” were used interchangeably in the years between the wars. This reality was even reflected in legal documents. The Anglo–Irish Treaty uses both terms without any differentiation between them. The term “British Empire” is used in Article 1 of the Treaty, whereas “British Commonwealth of Nations” is used in the wording of the oath detailed in Article 4. The two terms were also used interchangeably in the “address to their Majesties” passed by the imperial conference of 1926. Cmd. 2768, pp. 54–60.

15. For example, see Hansard, House of Commons, vol. 260, cols. 258 and 295–303, November 24, 1931; and Hansard, House of Lords, vol. 83, cols. 199–201, November 26, 1931.

16. For example, see Hansard, House of Commons, vol. 259, col. 1177, November 20, 1931; vol. 260, cols. 253, 264, and 359–60, November 24, 1931 and Hansard, House of Lords, vol. 83, cols. 210–11, November 26, 1931. The Irish Free State was also used in the context of hypothetical examples. For example, see Hansard, House of Commons, vol. 260, cols. 267–8, and 275, November 24, 1931.

17. For example, see Hansard, House of Commons, vol. 260, cols. 303–55, November 24, 1931; and Hansard, House of Lords, vol. 83, cols. 202–8, November 26, 1931, and House of Lords, vol. 83, cols. 231–45, December 1, 1931.

18. Hansard, House of Commons, vol. 260, col. 342, November 24, 1931.

19. [1977] I.R. 129 at 148.

20. Hall, Hessel Duncan, Commonwealth– A History of the British Commonwealth of Nations (London: Van Nostrand Reinhold, 1971), 683; and Amery, L.S., My Political Life, Vol. 3: The Unforgiving Years, 1929–1940 (London: Hutchinson, 1955), 74f. Gwyer certainly played an important role in the creation of this important piece of legislation. He chaired an important committee at the special imperial conference of 1929 that had recommended the removal of legal constraints imposed upon the legislative powers of the Dominion Parliaments.

21. For example, see Hansard, House of Lords, vol. 83, cols. 185–87, 195–96, and 202, November 26, 1931.

22. For example, see Morgan, John Hartman, “Secession by Innuendo” National Review 106 (1936): 313.

23. The Statute of Westminster of 1290 is also known as Quia Emptores.

24. Hansard, House of Commons, vol. 259, cols. 1242–43, November 20, 1931.

25. Ibid., 1243.

26. Nadan v. R. (1926) A.C. 482 and (1926) 2 D.L.R. 177.

27. For example, see Macleod v. Attorney-General for New South Wales (1891) A.C. 455.

28. See Mohr, Thomas, “The Foundations of Irish Extra-Territorial Legislation”, Irish Jurist 40 (2005) 86110.

29. The British government would later take the view that it was not obliged to automatically accede to such a request. See Twomey, Anne, The Australia Acts 1986 – Australia's Statutes of Independence (Sydney: Federation Press, 2010), 23.

30. Hudson, “Notes on the Statute of Westminster, 1931,” 276.

31. See Cmd. 2768, p. 18.

32. Cmd. 3479, para. 58–61. The special conference that met in London in 1929 was not a full imperial conference. Although this conference was a pivotal event in the history of the British Empire, it defies easy classification. Its official name was the “conference on the operation of Dominion legislation and merchant shipping legislation.”

33. Union Steamship Co v. Commonwealth (1925) 36 C.L.R. 130.

34. Cmd. 3479, para. 110.

35. Statute of Westminster Adoption Act, 1942. The adoption of these provisions of the Statute of Westminster was given retrospective effect from September 3, 1939, the day on which Australia entered the Second World War.

36. Statute of Westminster Adoption Act, 1947.

37. Newfoundland did not send delegates to the Operation of Dominion Legislation Conference in 1929 that created the first draft of the Statute of Westminster. It should be noted that Newfoundland was included in Section 1 of Statute, which provided the definition of a Dominion for the purposes of the Act. However, Section 10 named Newfoundland, along with Australia and New Zealand, as Dominions that would not be affected by key provisions of the Statute, Sections 2–6, until a statute passed by the parliament of the relevant Dominion adopted any or all of these provisions.

38. Section 7(1) of the Statute of Westminster Act, 1931 provided “Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder.”

39. The resolution provided that “the proposed legislation will in no way derogate from the entrenched provisions of the South Africa Act.” Hudson, “Notes on the Statute of Westminster, 1931,” 266. The weakness of this constraint did not become entirely apparent for some time after the enactment of the Statute. In the 1950s, K.C. Wheare could still write “This resolution had no legal force, but it may well become a constitutional convention.” Wheare, The Statute of Westminster and Dominion Status, 5th ed., 242. Soon afterwards, it became clear that the resolution would not prevent the South African Parliament from legislating in a manner incompatible with the entrenched provisions concerning the voting rights of non-white South Africans. See Cowen, Denis V., “The Entrenched Sections of the South Africa Act,” South African Law Journal 70 (1953): 238265; and Griswold, Erwin N., The ‘Coloured Vote Case’ in South Africa,” Harvard Law Review 65 (1952): 13611374.

40. It is important to give this agreement its full, and deliberately ambiguous, title even though it is often referred to as the “Anglo–Irish Treaty” or often as just “the Treaty.” Irish governments in the 1920s and 1930s insisted that this agreement did constitute an international treaty, whereas their British counterparts refused to recognize that the agreement enjoyed this status. British commentators often referred to the agreement as the “Articles of Agreement for a Treaty”, or simply the “Articles of Agreement,” in order to avoid any implication that it enjoyed the status of a treaty. See Harrison, Henry, Ireland and the British Empire, 1937 (London: Robert Hale and Co, 1937), 131170.

41. For example, see Hansard, House of Commons, vol. 260, cols. 303–4, November 24, 1931.

42. For example, see Saorstát Éireann Official Handbook (Dublin: Talbot, 1932), 72.

43. University College Dublin Archives (henceforth UCDA), Costello Papers, P190/106 and McGilligan Papers, P35/184, untitled memorandum, November 2, 1926. See also UCDA, Blythe Papers, P24/217, memorandum on appeals to the Judicial Committee of the Privy Council.

44. TNA, CAB 32/69 D.L. 5th meeting of the 1929 conference on “Dominion Legislation”.

45. TNA, CAB 32/69 D.L. 11.

46. TNA, CO 532/257, Colonial Office memorandum of April 4, 1924; and Library and Archives Canada (henceforth LAC), Oscar Skelton Fonds, MG30 D33, vol. 2, 2–14 Imperial Conference – Notes and Drafts.

47. UCDA, Costello Papers, P190/106; and McGilligan Papers, P35/184, untitled memorandum, November 2, 1926.

48. TNA, DO 117/183.

49. TNA, CAB 32/69 D.L. 2nd Meeting.

50. See also the official report of the operation of Dominion legislation conference, 1929, Cmd. 3479, para. 43.

51. For example see Hansard, House of Commons, vol. 260, col. 297, November 24, 1931.

52. Quoted in Hansard, House of Lords, vol. 83, col. 201, November 26, 1931.

53. John Hartman Morgan, “Secession by Innuendo,” 313. John Hartman Morgan (1876–1955) was a British general, politician, lawyer, and professor of constitutional law at the University of London.

54. TNA, DO 117/182, DO 117/184, and LAC, Oscar Skelton Fonds, MG30 D33, vol. 4, 4–1.

55. TNA, DO 117/184; and NAI, department of the Taoiseach S5340/13, memorandum by McGilligan, October 1929 and Michael McDunphy to Diarmuid O'Hegarty, October 19 1929. Oscar D. Skelton suggested the solution of simply listing possible alternative methods of dealing with such matters as the Crown. This was rejected by the Irish, who wanted the conference report to be a final document. TNA, DO 117/184.

56. LAC, Oscar Skelton Fonds, MG30 D33, vol. 4, 4–1.

57. See the comments of John A. Costello to the Gwyer Committee, November 14, 1929. UCDA, Costello Papers, P190/116.

58. Constitution (Amendment No. 27) Act, 1936; and Executive Authority (External Relations) Act, 1936.

59. TNA, 32/69 D.L. 1st and 5th Meetings.

60. Dáil Debates, vol. 39, cols. 2335–36, July 17, 1931. The Dáil is the lower house of the Irish Parliament.

61. Cmd. 2768, p. 14.

62. Keith, Arthur B., Speeches and Documents on the British Dominions, 1918–1931 (Oxford: Oxford University Press, 1961), 256.

63. Dáil Debates, vol. 39, col. 2297, July 16, 1931 and Seanad Debates, vol. 14, cols. 1652–53, July 23, 1931.

64. Section 1, Statute of Westminster Act, 1931. NAI, department of the Taoiseach, S12046, George Gavan Duffy, “The Treaty and the Statute of Westminster,” March 25, 1932.

65. Articles, 12, 17, 24, 37, 41, 42, 51, 60, 66, 68, and 83, Constitution of the Irish Free State.

66. Article 17, Constitution of the Irish Free State. The oath was generally known as the “Oath of Allegiance” by Irish opponents of the 1921 Treaty.

67. See Mohr, Thomas, “The Colonial Laws Validity Act and the Irish Free State,” Irish Jurist 43 (2008): 2144; and Mohr, “Irish Extra-Territorial Legislation,” 86–110.

68. See Article 66, Constitution of the Irish Free State.

69. Preamble, Irish Free State Constitution Act, 1922. An identical provision appeared in Section 2 of the Constitution of the Irish Free State (Constitution) Act, 1922.

70. The term “repugnancy clause” was introduced by Leo Kohn. Leo Kohn, The Constitution of the Irish Free State (Dublin: Allen and Unwin, 1932), 98.

71. Mohr, Thomas, “The Privy Council Appeal as a Minority Safeguard for the Protestant Community of the Irish Free State, 1922–1935,” Northern Ireland Legal Quarterly 63 (2012): 365–95.

72. See Mohr, Thomas, “Law without Loyalty – The Abolition of the Irish Appeal to the Privy Council,” Irish Jurist 37 (2002): 187226.

73. Ibid.

74. See Thomas Mohr, The Irish Free State and the Legal Implications of Dominion Status, 1922–1937 (2007, unpublished thesis, University College Dublin), ch. 7.

75. TNA, LCO 2/910, memorandum attached to letter from Harry Batterbee to Claude Schuster, April 16, 1931.

76. NAI, Department of Foreign Affairs, 19/6, John Dulanty to Joseph Walshe, November 23, 1931. Harding had received a warning on this point from Claude Schuster. TNA, LCO 2/1190, Schuster to Harding, November 13, 1931.

77. TNA, LCO 2/1190, Schuster to Thomas, November 18, 1931.

78. NAI, Department of Foreign Affairs, 19/6, Dulanty to Walshe, November 23, 1931.

79. First Baron Gretton (1895–1947).

80. TNA, LCO 2/1190, Gretton to Thomas, November 13, 1931.

81. Ibid., Thomas to Gretton, November 16, 1931.

82. See the Times, November 16 and 17, 1931. Edward Carson, Baron Carson, (1854–1935) was a barrister, a judge who rose to the position of lord of appeal and the leader of the Irish Unionist Alliance and Ulster Unionist Party from 1910 to 1921. John Butcher, Baron Danesfort, (1853–1935) was a barrister and Conservative politician. Annesley Ashworth Somerville (1858–1942) was a Conservative politician born in Co. Cork and educated at Queen's College Cork. John Hartman Morgan (1876–1955), see note 53.

83. Hansard, House of Commons, vol. 259, col. 1196, November 20, 1931.

84. Hansard, House of Commons, vol. 260, col. 303, November 24, 1931.

85. Morgan admitted his role as legal adviser to the supporters of Gretton's amendment in Morgan, “Secession by Innuendo,” 313.

86. Hansard, House of Commons, vol. 260, cols. 303–4, November 24, 1931.

87. Sections 7 and 8 of the bill protected the integrity of the Constitutions of Canada, Australia, and New Zealand.

88. James Thomas was convinced that there was a real risk of the government suffering an embarrassing defeat on November 20. NAI, Department of Foreign Affairs, 19/6, John Dulanty to Joseph Walshe, November 23, 1931. This assessment is supported by other sources. For example, see Department of Foreign Affairs, 19/6, John Dulanty to Joseph Walshe, November 23, 1931 and The Times, November 21, 1931.

89. Hansard, House of Commons, vol. 259, col. 1253, November 20, 1931.

90. Thomas later explained to the Irish high commissioner in London that he had only agreed to consider the amendments as part of a strategy of “playing for time.” NAI, Department of Foreign Affairs, 19/6, John Dulanty to Joseph Walshe, November 23, 1931.

91. UCDA, P35/174 McGilligan Papers, P35/174, Statute of Westminster Bill 1931, the Churchill Amendment and the Irish Free State, undated.

92. His official title was the “President of the Executive Council of the Irish Free State.” For the origins of this title, see Mohr, Thomas, “British Involvement in the Creation of the Constitution of the Irish Free State,” Dublin University Law Journal 30 (2008) 166–86.

93. Cumann na nGaedheal was founded as a political party that supported the Anglo– Irish Treaty in 1923. The name is usually translated as “Society of the Gaels.”

94. Fianna Fáil was founded as a political party in 1926. The name is usually translated as “Soldiers of Destiny.”

95. NAI, Department of the Taoiseach, S5340/19, Cosgrave to MacDonald, November 21, 1931.

96. Ibid.

97. TNA, LCO 2/1190, extract from a speech by President Cosgrave on Sunday, November 22 at Charleville Co. Cork; and NAI, Department of the Taoiseach, S5340/19, Cosgrave to MacDonald, November 21, 1931.

98. NAI, Department of the Taoiseach, S5340/19, McGilligan to Thomas, November 21, 1931.

99. NAI, Department of Foreign Affairs, 19/6, Dulanty to Walshe, November 23, 1931.

100. Dáil Debates, vol. 41, col. 595, April 27, 1932.

101. Hansard, House of Commons, vol. 260, col. 311, November 24, 1931.

102. NAI, Department of Foreign Affairs, 19/6, Dulanty to Walshe, November 23, 1931.

103. Ibid., November 25, 1931.

104. Ibid., November 27, 1931 and December 5, 1931; and The Times, November 26, 1931.

105. NAI, Department of Foreign Affairs, 19/6, Dulanty to Walshe, November 25, 1931.

106. Ibid., NAI, Department of Foreign Affairs, 19/6, Dulanty to Walshe, November 26, 1931.

107. For example, see Hansard, House of Commons, vol. 260, cols. 320 and 328–29, November 24, 1931.

108. Ibid., col. 329, November 24, 1931.

109. For example, see Hansard, House of Commons, vol. 259, cols. 1209–10 and 1227–28, November 20, 1931.

110. It would be rash to assume that the arguments on extending the survival of the Cosgrave administration put forward by supporters of the amendment were not sincere. John Dulanty, the Irish high commissioner in London, reported a conversation with Winston Churchill that showed that Churchill was entirely convinced that the proposed amendment represented one of the last opportunities to prevent de Valera and Fianna Fáil from taking power. NAI, Department of Foreign Affairs, 19/6, Dulanty to Walshe, November 26, 1931.

111. TNA, LCO 2/1190, “Reasons why it is impossible to accept the amendment standing in the name of Colonel Gretton and others,” undated.

112. According to K.C. Wheare, the fact that these amendments were moved at all showed that some members of the British Parliament “had failed to grasp or were unwilling to accept the plain implications of the declaration of equality of status” declared at the Imperial Conference 1926, and its elaboration at the conferences of 1929 and 1930. Wheare, The Statute of Westminster and Dominion Status, 5th ed., 255–56.

113. K.C. Wheare argued that if the proposed amendments with respect to the Irish Free State had taken a different form they would have had a better chance of satisfying constitutional convention. Wheare contended that although the Parliament at Westminster could only enact clauses with respect to the Irish Free State that the Irish had requested and consented to, it was not constitutionally bound to enact any and every clause that the Irish had requested and consented to. This approach would have allowed the British Parliament to refuse to enact such clauses unless and until the Irish agreed to key amendments in the Statute of Westminster. Wheare, The Statute of Westminster and Dominion Status, 5th ed., 256–57. This approach was not feasible in 1931 when the provisions of the Statute had already been agreed upon at the Dominion Legislation Conference of 1929 and the Imperial Conference of 1930. British efforts to limit the impact of the proposed Statute of Westminster on the provisions of the 1921 Treaty at these conferences were not successful. See Thomas Mohr, The Irish Free State, ch. 6 and 7.

114. Ibid. See also Hansard, House of Commons, vol. 260, cols. 311–12, November 24, 1931.

115. TNA, LCO 2/910, CP 120(31), “The Irish Free State and Appeals to the Judicial Committee of the Privy Council.”

116. TNA, LCO 2/910, memorandum attached to letter from Batterbee to Schuster, April 16, 1931 and LCO 2/1190 Schuster to Thomas, November 19, 1931.

117. A good example is the confusion and errors that surrounded provisions concerning the application of the Statute of Westminster to the Australian states. Twomey, The Australia Acts 1986, 47–49.

118. This deadline was imposed by the report of the Imperial Conference 1930, Cmd. 3717. The pressures facing the British government in late 1931 ensured that the Statute of Westminster did not receive royal assent until December 11, 1931.

119. TNA, LCO 2/1190, “Statute of Westminster,” November 16, 1931.

120. TNA, LCO 2/1190, “Reasons why it is impossible to accept the amendment standing in the name of Colonel Gretton and others,” undated.

121. Ibid., “Statute of Westminster,” November 16, 1931.

122. Ibid., “Reasons why it is impossible to accept the amendment standing in the name of Colonel Gretton and others,” undated.

123. Hansard records Inskip referring to “Article 50 of the Treaty.” However, it is clear from the context that he intended to refer to Article 50 of the Irish Constitution. Hansard, House of Commons, vol. 260, col. 328, November 24, 1931.

124. Hansard, House of Commons, vol. 260, col. 344, November 24, 1931.

125. This contractual argument was raised at the Imperial Conference of 1930. TNA, CAB 32/79 PM(30)5. It was later raised by Thomas Inskip during the pleadings in Moore v. Attorney General (1935) A.C. 484 at 488–89.

126. Ibid., 345.

127. See note 88.

128. Stanley Baldwin and Philip Snowden also seem to have been involved in lobbying the newspapers on this point. NAI, Department of Foreign Affairs, 19/6, Dulanty to Walshe, December 5, 1931.

129. For example see Hansard, House of Lords, vol. 83, col. 232, December 1, 1931, NAI, Department of Foreign Affairs, 5/3, Dulanty to Walshe, undated and Irish Independent, December 23, 1953.

130. For example, see Lee, John Joseph, Ireland 1912–1985 (Cambridge: Cambridge University Press, 1989), 173.

131. For example, see The Star, May 1931 and UCDA, McGilligan Papers, P35B/108 and NAI, Department of the Taoiseach, S4285B, transcript of radio broadcast of November 9, 1930.

132. Hansard, House of Lords, vol. 83, col. 231, December 1, 1931.

133. Ibid. at 232–33.

134. The Irish government openly questioned whether the Privy Council appeal was really required by the Anglo–Irish Treaty at the Imperial Conference of 1930. TNA, CAB 32/79 PM(30)5 and 27.

135. Ibid. at 232–35.

136. For example, see Hansard, House of Commons, vol. 151, cols. 599–625, March 2, 1922.

137. Hansard, House of Lords, vol. 83, cols. 237–41, December 1, 1931.

138. Ibid. at 244.

139. For example, see NAI, department of the Taoiseach, S4285B, transcript of radio broadcast of November 9, 1930 and Dáil Debates, vol. 39, col. 2360, July 17, 1931.

140. Hansard, House of Lords, vol. 83, col. 243, December 1, 1931.

141. NAI, department of the Taoiseach S6164, Arthur V. Matheson to Michael McDunphy with drafts bills, November 12, 1930.

142. NAI, department of foreign affairs, 5/3, press statement by Patrick McGilligan on the Statute of Westminster, December 11, 1931.

143. Dáil Debates, vol. 39, col. 2290, July 16, 1931 and Seanad Debates, vol. 14, col. 1620, July 23, 1931.

144. Thomas Johnson did, however, propose a resolution in the Seanad that would have commended the minister for external affairs for his efforts in “procuring the full establishment and international recognition of the independence and sovereign status of Saorstát Éireann.” Seanad Debates, vol. 14, col. 1607, July 23, 1931.

145. Dáil Debates, vol. 39, cols. 2309–10, July 16, 1931.

146. Ibid. at 2309.

147. Dáil Debates, vol. 39, col. 2335, July 17, 1931. This remark was later echoed in legal advice against justifying constitutional reform on the basis of the Statute of Westminster given to de Valera by John J. Hearne in 1932. NAI, department of the Taoiseach, S12046, memo by John J. Hearne on “The legal basis of the establishment of the Irish Free State,” March 31, 1932.

148. Dáil Debates, vol. 39, col. 2296 July 16, 1931 and Seanad Debates, vol. 14, col. 1621–22 and 1627, July 23, 1931.

149. Seanad Debates, vol. 14, col. 1627, July 23, 1931.

150. Ibid., col. 1653, July 23, 1931. George Gavan Duffy, a signatory of the 1921 Treaty, future judge of the Irish High Court (1936) and later President of the High Court (1946), advised the de Valera government in 1932 “The Statute of Westminster adds little or nothing to the powers of the Irish Free State or the Oireachtas” (the Irish parliament). NAI, Department of the Taoiseach, S12046, George Gavan Duffy, “The Treaty and the Statute of Westminster,” March 25, 1932.

151. NAI, Department of Foreign Affairs, 5/3, press statement by Patrick McGilligan on the Statute of Westminster, December 11, 1931.

152. For example, see Seanad Debates, vol. 14, col. 1606, July 23, 1931. See also NAI, department of the Taoiseach, S12046, John J. Hearne, “The legal basis of the establishment of the Irish Free State,” March 31, 1932 and George Gavan Duffy, “The Treaty and the Statute of Westminster,” March 25, 1932.

153. Seanad Debates, vol. 14, col. 1652, July 23, 1931.

154. NAI, Department of Foreign Affairs, 5/3, Press release by Patrick McGilligan, December 11, 1931.

155. Ibid.

156. NAI, Department of the Taoiseach, S6164, extract from Cabinet minutes, CAB 5/87, October 20, 1931 with postscripts from December 29, 1931. The Irish government did raise legal arguments that maintained that the appeal could be abolished without the benefit of the Statute of Westminster. Their British counterparts concluded that these were “so fantastic as to appear hardly tenable by responsible lawyers.” TNA, LCO 2/1190, “Statute of Westminster,” November 16, 1931.

157. Dáil Debates, vol. 1, cols. 1742–43, October 19, 1922.

158. Ibid., col. 1743, October 1, 1922. See also Mohr, “Irish Extra-Territorial Legislation,” Irish Jurist 40 (2005) 86110.

159. Re Article 26 and the Criminal Law (Jurisdiction) Bill, 1975 (1977) I.R. 129 at 148.

160. NAI, department of foreign affairs, 5/3, press statement by Patrick McGilligan on the Statute of Westminster, December 11, 1931.

161. Constitution (Removal of Oath) Act, 1933.

162. Constitution (Amendment No. 20) Act, 1933; and Constitution (Amendment No. 21) Act, 1933.

163. Constitution (Amendment No. 22) Act, 1933.

164. Constitution (Amendment No. 27) Act, 1936 and Executive Authority (External Relations) Act, 1936.

165. NAI, Department of the Taoiseach, S12046, John J. Hearne, “The legal basis of the establishment of the Irish Free State,” March 31, 1932.

166. This argument would receive judicial recognition in the judgments of Kennedy CJ and FitzGibbon J in State (Ryan) v. Lennon (1935) I.R. 170, 202–4 and 224–30. See also Mansergh, Nicholas, The Irish Free State – Its Government and Politics (London: Allen and Unwin, 1934), 49 and Mohr, “Law without Loyalty” Irish Jurist 37 (2002): 187226.

167. See note 70.

168. NAI, department of the Taoiseach, S12046, John J. Hearne, “The legal basis of the establishment of the Irish Free State,” March 31, 1932.

169. For example, see Dáil Debates, vol. 41, col. 570, April 27, 1932. De Valera's ambiguous stance illustrates the danger of assuming that Irish historical works that devote attention to Irish participation at the Imperial Conferences of 1926 and 1930 necessarily admit that the Statute of Westminster altered the constitutional position of the Irish Free State.

170. For example, see Dáil Debates, vol. 41, cols. 1090–91, April 29, 1932 and NAI, Department of the Taoiseach, S12046, George Gavan Duffy, “The Treaty and the Statute of Westminster,” March 25, 1932.

171. NAI, Department of Foreign Affairs, 3/1, draft speech for Constitution (Amendment No. 22) Act, 1933; and Dáil Debates, vol. 49, cols. 2115–16, October 4, 1933.

172. (1935) I.R. 472 at 487 and (1935) A.C. 484 at 499.

173. (1935) I.R. 472 at 486–87 and (1935) A.C. 484 at 499. It is interesting to note that Viscount Sankey, who delivered this judgment on behalf of the entire Judicial Committee of the Privy Council, was also responsible for moving the Statute of Westminster through the House of Lords in 1931. See Hansard, House of Lords, vol. 83, cols. 176–228, November 26, 1931. K.C. Wheare criticizes the approach taken by the Privy Council in determining the impact of the Statute on the Irish Free State. Wheare, The Statute of Westminster and Dominion Status, 5th ed., 265–71.

174. (1935) A.C. 484 at 488–89.

175. The judgment of the Privy Council stated “It would be out of place to criticise the legislation enacted by the Irish Free State Legislature. But the Board desire to add that they are expressing no opinion upon any contractual obligation under which, regard being had to the terms of the Treaty, the Irish Free State lay.” (1935) I.R. 472 at 486.

176. Hansard, House of Commons, vol. 304, col. 441, July 10, 1935.

177. Ibid. at 443.

178. Ibid. at 439–47.

179. See notes 8 and 11.

180. The Union flag or Union jack is often called the “Royal Union flag” in Canada. http://www.pch.gc.ca/pgm/ceem-cced/symbl/union-eng.cfm (January 13, 2013).

181. “An Act to remove Doubts as to the Validity of certain Commonwealth Legislation, to obviate Delays occurring in its Passage, and to effect certain related purposes, by adopting certain Sections of the Statute of Westminster, 1931, as from the Commencement of the War between His Majesty the King and Germany.”

182. Section 3, Statute of Westminster Adoption Act, 1942. Retrospective effect was deemed to be necessary as there were doubts as to the validity of parts of the Navigation Act, 1912 and the National Security Act, 1939 on the grounds that they could be considered incompatible with an Imperial statute, the Merchant Shipping Act, 1894. Twomey, The Australia Acts 1986, 22.

183. South Africa Act, 1909, Sections 35 and 152.

184. See note 39.

185. King, Michael, The Penguin History of New Zealand (North Shore: Penguin, 2003), 366–67 and 421–22.

186. Wheare, The Statute of Westminster and Dominion Status, 4n: 1949) 216 h and 324.

187. The New Zealand Parliament passed the Statute of Westminster Adoption Act, 1947, and the New Zealand Constitution (Request and Consent) Act, 1947 received the royal assent on December 10, 1947. The latter measure was supplemented by the New Zealand Constitution (Amendment) Act, 1947 passed at Westminster.

188. Wheare, The Statute of Westminster and Dominion Status, 235–38. Section 2 of the Statute was extended to the Canadian provinces under Section 7(2). No equivalent provision existed with respect to the Australian states. See Twomey, The Australia Acts 1986.

189. For example, see Emlyn Capel Stewart Wade's introduction in Dicey, Albert Venn, Introduction to the Study of the Law of the Constitution (London: Macmillan, 10th edn., 1964), lxxxvii–xcii; Jennings, W. Ivor, The Law and the Constitution (London: University of London Press, 1933), 129–34; and Hart, Herbert Lionel Adolphus, The Concept of Law (Oxford: Clarendon Press, 1961), 148.

190. For example, see Kohn, Leo, The Constitution of the Irish Free State (London: Allen and Unwin, 1932), 377 and 380; and Ward, Alan J., The Irish Constitutional Tradition (Washington D.C: Catholic University Press of America, 1994), 216, 226227.

191. Oppenheim, LassaInternational Law: A Treatise, vol. 1 (London: Longmans, Green and Co., 1912), 110.

192. The Irish Free State finally joined the League of Nations in 1923. Kennedy, Michael, “The Irish Free State and the League of Nations, 1922–32: The Wider Implications,” Irish Studies in International Affairs 3 (1992): 923.

193. Oppenheim, Lassa and Roxburgh, Ronald F., International Law: A Treatise, vol. 1 (London: Longmans, Green and Co., 3rd edn., 1920), 170.

194. Baker, P.J. Noel, The Present Juridical Status of the British Dominions in International Law (London: Longmans, 1929), 356.

195. Shaw, Malcolm N., International Law (Cambridge: Cambridge Unversity Press, 1997), 296–97.

196. Ibid.

197. Oppenheim recognized in 1920 that the Dominions had “silently worked changes, far-reaching but incapable of precise definition, in the Constitution of the Empire, so that the written law inaccurately represents the actual situation.” Oppenheim and Roxburgh, International Law: A Treatise, 1:170.

198. Shaw, International Law, 296–97.

199. The concept of recognition by “tacit order” was robustly criticised by H.L.A. Hart in The Concept of Law, 43–48.

200. A Canadian scholar recognizes this reality by noting “The Statute of Westminster is the one act most often pointed to in deciding when Canada became sovereign.” Mazer, Brian M., “Sovereignty and Canada: An Examination of Canadian Sovereignty from a Legal Perspective,” Saskatchewan Law Review 42 (19771978): 1.

201. The Judicial Committee of the Privy Council once noted that it was necessary “to pass the Statute of Westminster 1931 in order to confer independence and Sovereignty on the six Dominions therein mentioned.” Madzimbamuto v. Lardner-Burke (1969) 1 AC 645 at 722.

202. See note 19.

203. Twomey, The Australia Acts 1986, 47–48.

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Law and History Review
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