1. The Irish Delegation to the Imperial Conference, 1926, in a memorandum
circulated by them on the subject of Appeals to the Judicial Committee of the
Privy Council put forward the view that:
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'It is an essential incident of the equality of status and the legislative, judicial
and constitutional independence of each member of the British
Commonwealth of Nations that the question of appeals to the Judicial
Committee of the Privy Council should be dealt with upon "principles of
autonomy". In accordance with such principles, it is the right (which
ought to be unquestionable and indisputable) of each individual State of
that Commonwealth to decide, through its legislature, whether or to what
degree and in what circumstances (if any) an appeal should lie from a
decision of its own Courts to any tribunal outside the State. While it is in
strict accordance with such principles that an appeal should lie to the
Judicial Committee from the Courts of any State in the Commonwealth
which desires the continuance of such an appeal, it would be a violation
of such principles to deny the right of a State which desires that finality
on judicial questions should be reached within its own area to determine
that such shall be the case (Secret E.115).' |
2. From the discussions arising out of this memorandum, it became clear, in
the words of the Imperial Conference Report, that 'it was no part of the policy
of His Majesty's Government in Great Britain that questions affecting judicial
appeals should be determined otherwise than in accordance with the wishes
of the part of the Empire primarily affected'. The continuance of appeals to
the Judicial Committee of the Privy Council from the Courts of the Irish Free
State is not in accordance with the wishes of the Irish Free State.
3. The objection of the Irish Free State to the continuance of such appeals is
based upon two considerations, the first constitutional and the second
practical. Constitutionally, it is not in accordance with the definition contained
in the Report of the Imperial Conference, 1926, of the position and
mutual relation of the self-governing communities forming the British
Commonwealth of Nations that the decision of the Supreme Court of one of
those communities should, contrary to the wish of that community, be subject to revision by a tribunal outside that community. It detracts from that
community's autonomous status and implies subordination to an outside
authority in a vital aspect of its domestic affairs. Practically, the maintenance
of this appeal is objectionable because (a) it tends to place litigants of moderate
means at a serious disadvantage in relation to wealthier citizens, and (b) it
removes the authoritative interpretation of Statutes from those best qualified,
by reason of long experience and local knowledge, to appreciate and decide
the intention of the legislature, and places it in the hands of persons whose
experience derives from the administration of laws which now differ and will
increasingly differ from those in force within the territory concerned.
4. In connection with this matter, the position of those persons described as
'Southern Loyalists' has been mentioned. These persons, in so far as they are
resident in the Irish Free State, are subject to the laws of the Irish Free State
and enjoy all the rights and are seized of all the obligations common to such
residents. This position cannot be altered, and the suggestion that the
removal of the appeal to the Judicial Committee would deprive them of a
privileged position is wholly unwarranted.
5. In the first place they have never suffered any discrimination or injustice.
They have been accepted in the fullest sense as fellow-citizens, they have
with the exception of a negligible number of irreconcilables accepted the
position themselves. Many who left in 1921 and early 1922 when conditions
were difficult have already returned. The vast majority are amongst the best
citizens we have.
6. The position of these persons was considered at the time of the Treaty, in
conditions very different from those now obtaining, and certain safeguards
were agreed to. These centred round Article 8 relating to religious disabilities,
round proportional representation and the special constitution of the
first Senate. The Appeal to the Privy Council was not mentioned as one of
these safeguards.
7. The proviso of Article 66 of the Constitution was agreed to in 1922 at the
instance of Mr. Lloyd George's Government. It was agreed to with great
reluctance because we foresaw that it would be a source of trouble. It was not
inserted with advertence to any question of safeguarding Southern loyalists.
8. We have not received any complaints from Southern Loyalists that they
have suffered discrimination. We know there is an irreconcilable element
largely domiciled in Great Britain who have endeavoured without success
to raise this issue. They have received no support from any responsible
individual in Ireland. So far from this being the case, there have been numerous
pronouncements by responsible members of this group expressing satisfaction
with their position.
9. When Article 66 was being discussed in the Provisional Parliament, Mr.
Fitzgibbon (now Supreme Court Judge), then member for Trinity College, as
Mr. O'Higgins pointed out in 1926, said he neither hoped or believed that the
appeal would be a reality.
10. Since this, there have been three occasions on which Acts of Parliament
have been passed in the Irish Free State which, in effect, nullified decisions of
the Appeal Tribunal. If the continuance of this tribunal were regarded as a serious matter, there was here an obvious opportunity for a protest, but none
was made.
11. The proviso is, in any event, valueless as a safeguard. The function of the
Appeal Tribunal is to interpret laws, not to distort them. It has been admitted
that we have found, in the words of Lord Cave, an 'effective and ingenious'
method of preventing the Privy Council from frustrating the intention of our
legislature. We say that safeguards are quite unnecessary, but, if they were,
this appeal does not provide a safeguard.
12. It has been suggested that the Appeal is inherent in the Treaty. We do not
agree. If there is anything in the argument, it can only be suggested that the
Appeal is imported by way of analogy to Canada through the medium of
Article 2. If it were so imported, it was imported with all the disabilities of
the position described 14 years before by Lord Loreburn and subject to the
constitutional changes arising from the development of the Dominions. This
was made very clear in 1926, when His Majesty's Government of the day in
the United Kingdom placed it on record that it was no part of their policy
that appeals should be dealt with otherwise than in accordance with the wish
of the part of the Empire primarily concerned.
