The Comptroller-General of Customs forwards the following case for advice:

Section 8 of the Customs Tariff 1921—1922 reads:

The rates of duty set out in the Schedule in the column headed ‘British Preferential Tariff’ shall apply to goods the produce or manufacture of the United Kingdom, subject to the condition that the goods have been shipped in the United Kingdom to Australia, and have not been transhipped, or, if transhipped, then only if it is proved to the satisfaction of the Collector that the intended destination of the goods, when originally shipped from the United Kingdom, was Australia.

2. The question has now been raised as to whether under the constitutions of the Irish Free State and of Northern Ireland, goods produced or manufactured in and imported directly from those States can be legally regarded as being produced or manufactured in and imported from the United Kingdom and I should be glad if you would favour me with an opinion on the matter.
3. It will be seen from the wording of Section 8 quoted above that goods imported from British Dominions (e.g. Canada, South Africa, and New Zealand) are not by that Section entitled to entry at the British Preferential Tariff rates. The question therefore resolves itself into whether or not the Irish Free State and Northern Ireland are still within ‘the United Kingdom’.

The question to be determined is the meaning to be attached to the words in section 8 of the Customs Tariff ‘goods the produce or manufacture of the United Kingdom,’ in view of the altered constitutional status of Ireland.

The Acts Interpretation Act 1901 provides (section 18) that in any Act, unless the contrary intention appears ‘The United Kingdom’ shall mean the United Kingdom of Great Britain and Ireland.

The Imperial Acts which need to be considered are:

• The Union with Ireland Act 1800;
• The Government of Ireland Act 1920;
• The Irish Free State Constitution Act 1922 (with its schedules, the Constitution of the Irish Free State and the Articles of Agreement for a Treaty between Great Britain and Ireland);
• The Irish Free State (Consequential Provisions) Act 1922.

By the Union with Ireland Act 1800, the United Kingdom of Great Britain and the Kingdom of Ireland were united into one Kingdom, by the name of ‘the United Kingdom of Great Britain and Ireland’, represented in one and the same Parliament to be styled ‘the Parliament of the United Kingdom of Great Britain and Ireland’.

The Government of Ireland Act 1920 provided that on and after the appointed day there should be a Parliament of Southern Ireland and a Parliament of Northern Ireland, which, subject to certain limitations, had power to make laws for the peace, order and good government of Southern Ireland and Northern Ireland respectively. One of the limitations (sec. 21) was that the local Parliaments were to have no power to impose customs duties or excise duties on articles manufactured and produced.

Nothing in the Act was to affect the supreme authority of the Parliament of the United Kingdom over all previous matters and things in Ireland (secs. 6, 75).

The representation of Ireland in the Parliament of the United Kingdom was retained.

The Irish Free State Constitution Act confirms the Constitution of the Irish Free State enacted by the Constituent Act of Dail Eireann, and also confirms the declaration of Dail Eireann that the Constitution is to be read subject to the Scheduled Treaty. It contains the reservation, however, that ‘nothing in the said Constitution shall be construed as prejudicing the power of Parliament to make laws affecting the Irish Free State in any case where, in accordance with constitutional practice, Parliament would make laws affecting other self-governing Dominions.’

The Constitution declares the Irish Free State to be ‘a co-equal member of the Community of Nations forming the British Commonwealth of Nations’. It declares that all powers of government and all authority in Ireland are derived from the people of Ireland and are to be exercised in the Irish Free State through the organizations established by the Constitution. It establishes a legislature in which it declares that the sole and exclusive power of making laws for the peace order and good government of the Irish Free State is vested.

The Scheduled Treaty declares that ‘Ireland’ shall have the same constitutional status in the Community of Nations known as the British Empire as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa, and shall be styled the Irish Free State; and that with certain qualifications the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada.

The Irish Free State (Consequential Provisions) Act provides that the Government of Ireland Act 1920 shall (with immaterial qualifications) cease to apply to any part of Ireland other than Northern Ireland, and shall (in certain events which have happened) continue to apply to Northern Ireland with certain modifications.

As regards Northern Ireland, therefore, there has been no substantial change in
status since the Customs Tariff 1921 was passed. Northern Ireland is still part of the United Kingdom, and I do not think there can be any doubt that the British Preferential Tariff applies to goods the produce or manufacture of Northern Ireland on importation into Australia.

As regards the Irish Free State the position is different. That State now has ‘Dominion status’, and is apparently, for the future, no more a part of the United Kingdom than Canada or Australia is.

It is true that the Act of the British Parliament which introduces these changes (the Irish Free State Constitution Act 1922) is not very explicit about it. It contains from beginning to end no reference at all to the Union with Ireland Act 1800, or to any change in the Constitution of the Parliament of the United Kingdom. But it is a clear implication from its terms that the Free State, being invested with full Dominion status, is excluded from the British electorate and from that unit of the British ‘Community of Nations’ which is known as ‘the United Kingdom’.

What has to be determined, however, is the interpretation, in relation to what has happened, to be placed on the words ‘the United Kingdom’ in their context in the Customs Tariff of the Commonwealth.

There are two possible alternative interpretations:

1. That the phrase is used in a geographical sense, referring to the part of the British Empire known at the time of the passing of the Act as ‘the United Kingdom’—i.e., Great Britain and Ireland; or
2. In the political sense; that political unit of the British Empire which for the time being is comprised in the United Kingdom.

In favour of the geographical interpretation is the fact that the context—‘goods the produce or manufacture of’ the United Kingdom, suggest the place of production or manufacture, i.e., locality rather than political unity.

On the other hand, that meaning could have been clearly expressed by using geographical words—‘the produce, etc., of Great Britain and Ireland’. The words ‘the United Kingdom’ are purely political words.

And there is a good reason why a political reference should be intended. A tariff preference is a matter of political relationship. The United Kingdom was, when the Customs Tariff was passed, a tariff area, and it is a reasonable assumption that that political status was in the mind of Parliament. The preference was not extended to Dominions outside the British tariff area.

It would appear from the terms of the Irish Free State Constitution Act, that the Free State will ultimately be detached from the British tariff area; but it is not clear that it is yet so.

Section 2 provides, in relation to taxes and duties, so far as leviable outside the Irish Free State, that:

Goods transported during the current financial year from or to the Irish Free State to or from any other part of the United Kingdom or the Isle of Man shall not, except in respect of the forms to be used and the information to be furnished, be treated as goods imported or exported as the case may be.

The current financial year ends on 31st March next, and the above provision may by arrangement be extended to the next ensuing financial year or part thereof.

The resulting position, so long as the above provision operates, seems to be a curious one. As regards trade between England and Ireland, there is no tariff fence. Clearly the Free State has power to frame its own tariff against the outside world; and, apparently, under Article 73 of the Free State Constitution, until it does so the British tariff against overseas imports will continue.

I am inclined to think that when the Free State becomes a completely separate customs area, the British preferential rates of duty under our Customs Tariff will cease to apply; but I have not sufficient information to enable me to advise whether that position has yet been reached.

I am taking steps to obtain the information necessary to enable me to form a definite opinion on this question.⁽¹⁾

[Vol. 19, p. 332]

(1) The opinion was annotated with a hand-written note as follows: ‘After considering further information, A.G. is of opinion that Free State has ceased to be part of United Kingdom to which British preferential rates apply.’