Dear Mr. McDunphy,

re: Privy Council Appeals

As I understand your verbal instructions to me, the Executive Council wishes to have for its consideration the draft of a Bill which will terminate beyond all possibility of argument the right of appeal to the Privy Council, so far as the Oireachtas can validly terminate that right. In order to decide on the form of such a Bill it is necessary to have a clear idea of the legal authority by virtue of which that right of appeal exists or is alleged to exist.

It is clear that the proviso to Article 66 of the Constitution does not confer the right of appeal to the Privy Council; that proviso has no active effect and was obviously inserted to prevent the possibility of misunderstanding; it merely states expressly what without it would necessarily be implied. Therefore the deletion of that proviso from Article 66 will not terminate the right of appeal to the Privy Council; but the deletion of that proviso is a necessary step towards the termination of that right.

As I understand, the right of appeal to the Privy Council, if it exists or ever existed, rests on the provisions in the Treaty to the effect that the Free State is to be in the same position as the Dominion of Canada, from which it is argued that the right of appeal must exist in Saorstát Éireann because it exists in Canada. It is therefore arguable that, as the Constitution is to be read subject to the Treaty and the Treaty gives the right of appeal, the right of appeal would exist even though the Constitution contained no reference to it; it is also arguable that the act of deleting the proviso to Article 66 does not necessarily show an intention to terminate the right of appeal as such deletion might be a preliminary step, a clearing of the ground for a new arrangement with Great Britain in regard to the right of appeal. Therefore something more than the mere deletion of that proviso is necessary.

If the proviso had never been inserted in Article 66 and that Article had ended with the word 'whatsoever', the provision in it that the decisions of the Supreme Court are not to be reviewed 'by any other court, tribunal, or authority whatsoever' would not necessarily have excluded the right of appeal to the Privy Council; no doubt the words 'court, tribunal, or authority whatsoever' would, if they were to be construed without their context, cover His Majesty in Council; but those words must be construed subject to the Treaty, and the Treaty (I assume for the purpose of argument) gives the right of appeal, and therefore those words must be construed as not including His Majesty in Council. Accordingly it is necessary, in addition to deleting the proviso, to insert in the Article some words which will be or amount to an express declaration that decisions of the Supreme Court are not to be subject to review by His Majesty in Council. Whether such amendment of the Constitution would be valid having regard to the Treaty is not a matter on which I am called upon to express an opinion.

When it comes to considering the words to be inserted in Article 66 to exclude expressly an appeal to the Privy Council, it is obvious that there are two possible courses, namely either to mention an appeal to His Majesty in Council specifically by name or to insert words which, while not mentioning His Majesty in Council or the Privy Council, could not mean anything else. Which of those courses should be adopted is a matter for the Executive Council; I have therefore prepared two separate drafts, one mentioning the Privy Council and the other not mentioning it and I send you herewith two copies of each of those drafts. I should add that, once it is decided whether His Majesty in Council is or is not to be mentioned specifically, the drafting of the sections of the Bill presents little difficulty; but, whichever form of Bill is adopted, the drafting of the long title presents considerable difficulty and the titles I have inserted in the drafts sent herewith should be regarded merely as tentative suggestions.