PUBLIC BUSINESS. - LAND BILL, 1926—SECOND STAGE.

In introducing this Bill, I endeavoured to give Deputies, at least in outline, the line of approach of the Executive Council. I endeavoured to show the origin and purpose of the Bill. I recognised that the course which it was proposed to take was an exceptional one, which had to be justified and explained by the particular circumstances that had arisen. I pointed out that in the negotiations which took place in 1922 in connection with Article 66 of the Constitution, assurances were given by British Ministers, including the Lord Chancellor of the day, that the practice and the usage in connection with appeals to the Judicial Committee of the Privy Council in relation to this State would be the practice and the usage which obtain in relation to South Africa. Moving on to 1923, I showed that Lord Haldane, presiding at the Judicial Committee of the Privy Council in July of that year, when certain petitions from this State came for hearing, made a rather full statement as to the general principles that would be observed in dealing with appeals from litigation arising here. I said that, applying those principles to the particular case which has given rise to this Bill, I would ask Deputies to say that the case does not conform to the principles that were laid down in 1923; that it is not a case raising a great issue affecting large numbers of people; that it is not the kind of case arising out of litigation here which ought to pass the portals of the Judicial Committee of the Privy Council.

I do not want it to be read into that line of approach or statement that we are of opinion that there are certain cases which ought to be admitted. We are not. As a Government, we are opposed to this remnant of the Sovereign's prerogative. We think it ought to be allowed lapse by non-user, just as other prerogatives have lapsed. We think it ought to be allowed to go the way of the Veto. We see no case for the continuance of an appeal which dates back to the day when the Parliament and Government of Britain purported to exercise a real control and a real authority over the Dominions which have since become co-equal members of the British Commonwealth of Nations.

I would like to pause here just a few moments and ask Deputies to consider what this Judicial Committee of the Privy Council really is. One hears it spoken of as a prerogative of the Sovereign. That is the constitutional fiction: that the Judicial Committee of the Privy Council is the King in Council, intervening specially and personally, on the petition of a subject to inquire into a matter arising out of the administration of justice, the King being, according to the fiction, the very fount and origin of justice. That is the fiction. I want to compare or contrast that with the fact. This Judicial Committee of the Privy Council is a Court—a Court of Appeal—and these appeals are in no way personal to the Sovereign. The King, as I find it stated here, has no more connection with the administration of justice than he has with the administration of the Post Office. This Committee is a Court. Its decision is a judgment, though it may be framed as a report, and merely announced as an intention to "humbly advise his Majesty as follows." But the judgment is given to the public, is given on the concluding day of a particular trial, and that is the judgment in the case.

I want to stress the fact that this Committee is a Court like any other Court; that its report, for all it may be termed a report, is a judgment; because we can speak about it more frankly and more fully when we recognise that it is in no way a prerogative, that it is in no way personal to the Sovereign, that it is simply a Court. As long ago as 1900 you had Mr. Haldane, as he was then, reminding the members of the House of Commons: "The expression, of which in these debates we have heard so much, `the Queen's prerogative,' is a mere technical phrase, and should be put aside." Let us put it aside; let us talk about this Judicial Committee of the Privy Council for what it is—a Court. And if we agree that it is a Court, we will be able, without any suggestion of irreverence or indelicacy, to ask whether it is a good Court, whether it is a useful Court, whether it is a necessary Court; and, from that, to inquire whether it is the wish and the feeling of the people here, and their representatives, that recourse should be had, largely or frequently, to that Court.

For the purpose of this Bill, and for the purpose of this debate, I secured a verbatim report of the proceedings before the Judicial Committee of the Privy Council on the day on which this particular petition for leave to appeal was granted. Going through it hurriedly, one or two things struck me. The first is that, in the course of the pleadings, statements were made so inaccurate, so wide of the fact, that they could not be made or, at any rate, could not be made successfully, before an Irish Court. Yet, these statements, these pleadings were put in as the very basis on which the petition was raised. For instance, take this from the plaintiff's Counsel, referring to the Land Act of 1923:—"The Act was passed two and-a-half-years ago, and it will be a very, very long time before the tenancy of land that was existing at the date of the passing of the Act will have been vested." What is the position? Six thousand, seven hundred holdings, representing an acreage of 292,000 acres, have been vested or gazetted. I submit that if that statement were made before an Irish Court and if the defendant's counsel failed to take it up, it would be taken up from the Bench, from the knowledge available to the judges themselves. Again, take this: "What is the appointed day?" asks one of the judges. "There has been none in this case; it has not come yet in the case of some tenanted land in Ireland, and it may not come within our generation." The Land Commission, furnishing figures as to the existing position with regard to the purchase and distribution of land, having pointed out that 6,700 tenancies are vested or gazetted, amounting to close on 300,000 acres, and that untenanted land to the extent of 130,000 acres is vested or gazetted goes on to say that: "This percentage represents the results of a little more than eight months actual purchase work, the period since the passing of the Act being employed in the compilation of statistics as to estates, tenancies, tenants' rights, etc., the preparation of rules and regulations, office arrangement and other essential preliminaries. The materials necessary for giving the Act effect being now mostly at hand, proceedings will develop rapidly, and at the expiration of about three years it is anticipated that fully 75 per cent. of the tenanted holdings will be vested, and over 60 per cent. of the available untenanted land will be divided."

That is the forecast of the Land Commission, and I ask the Dáil to contrast that with the statement that the Appointed Day may not come within our generation for many of the estates concerned. I want to put it to Deputies that statements like that could not pass muster before a tribunal here, and that they did pass muster before this Judicial Committee of the Privy Council because the judges sitting in the particular case had absolutely no knowledge of the facts. Lest that should be thought a partial or biased kind of statement, let me take the statement of one of the judges themselves. Lord Dunedin, addressing the leading counsel for the plaintiff, says: "Do you mind explaining this to me? What is the provision of the Irish Land Act, with which, of course, we are not familiar, which enables a person who had merely a right flowing from a life-tenant to keep against the remainder man?""The Irish Land Act; with which, of course, we are not familiar!" I ask Deputies to envisage the scene down there in the Supreme Court if one of the three Judges (Chief Justice Kennedy, Mr. Justice Fitzgibbon, or Mr. Justice Murnaghan) addressed counsel in a particular case and referred to the Irish Land Act of 1923, "with which, of course, we are not familiar."

I think it had better not go out that Mr. Justice Murnaghan was in this case. It was Mr. Justice Johnston.

I am not referring to this particular case but to any case. Of course, the members of the Judicial Committee are not familiar and, of course, they will be increasingly unfamiliar with Irish legislation. That, again, is a weakness. I ask that we recognise, in the first instance, that this is a court and that we may have to consider whether it is a good court, a useful court, or a necessary court. I submit it is not one of those three things; it is a bad court, a useless court, an unnecessary court.

While we are introducing this Bill to bear on a particular case, I want it to be quite clear that our entire feeling is against the continued exercise of that prerogative. Our entire feeling is that it should be allowed to go the road of other prerogatives; that it should be allowed to go the road of the Veto—to become obsolete through non-user. That feeling is widely shared throughout the Commonwealth and, so far as we can, by raising our voice within the counsels of the Commonwealth, we will urge persistently against the continued exercise of that prerogative, it being a prerogative, as we know, only in name.

An explanatory memorandum has been circulated to Deputies. It sets out clearly the point of law that was raised in this case of Lynham and Butler. I may add that counsel for the plaintiff in the case took no exception to its terms, but regards it as, in fact, quite an accurate statement of the point at issue—and the point at issue, fortunately, seeing that I have to comment on it, is not an obscure or technical point. It is simply whether, as from the date of the passing of the Act, tenants to whom the Act applied became tenants for the purpose of the Act, with the right of purchase, regardless of the provisions of their lease. In the cases in which a lease existed, the average tenancy has, we know, been simply a year-to-year tenancy.

It was contended on the one hand that that was not merely the intention but the effect of the Act, and on the other that such an accidental circumstance as the lapsing of a lease between the date of the passing of the Act and the appointed day in the particular case, meant that the tenant was excluded from the scope and provisions of the Act. Now I do not want to go at length into that point beyond simply stating that that clear issue was tried out here before the President of the High Court and before the Supreme Court, and was decided in a particular way. The decision was that the Act was operative as from the date of its passing: that tenants to whom it applied became, as from the date of its passing, tenants for the purposes of the Act, with the right to purchase under the Act, and that that right was not affected by such an accidental circumstance as the lapsing of a lease. In this particular case a person with a life interest made a lease to a third party for the duration of her life, and then, after the passing of the Act but before the appointed day, died. The contention of the landlord was that as a result of the death the tenant was excluded from the provisions of the Act.

Was the landlord consulted at all in connection with the making of the lease by the tenant for life?

The landlord was the remainder man.

I do not know, but I do not think it affects the issue so far as the legal decision goes. I do not think there is any question of the right of the deceased lady to have made the lease for the term of her life, and that would be the only relevancy of that particular point. Now, one could go in detail into the merits of one contention and of the other. One could point out, for instance, that if the landlord's contention is right, then you have this state of affairs, that whether a particular tenant with a lease was to come within the provisions of the Act or not might simply depend on such a casual, haphazard and accidental factor as the speed at which the Land Commission managed to reach a particular estate; whether it happened to be this week or next week or the week after that the inspectors got busy in connection with that particular division of land. While in a particular case it may be suggested that it leads to a lack of equity and so on, it at least gives you uniformity. You have a date, and as from that date the existing tenants to whom the Act applies become tenants for the purposes of the Act. Looking back over the original Act you are struck by Section 20, which provides that as from the date of the passing of the Act the direct relationship between landlord and tenant ceases: rent is no longer paid or payable, but payment in lieu of rent is made by the tenant, not to the landlord as of yore but to the Land Commission. Section 20 of the Land Act of 1923 states:—

In the case of every holding to which this Act applies rent shall not be payable by the tenant in respect of any period after the gale day next preceding the date of the passing of this Act. There shall be payable by the tenants to the Land Commission as from the gale day next preceding the date of the passing of this Act an annual sum in lieu of rent equivalent to 75 per cent. of the annual rent to which the holding was subject at the passing of this Act, which sum is hereinafter referred to as "payment in lieu of rent."

And then sub-section (2) provides:—

Payment in lieu of rent shall be collected by the Land Commission in accordance with the rules made by them.

Sub-section (3) provides:—

Payment in lieu of rent shall continue to be payable up to the appointed day,

the appointed day being the day on which the estate vests in the Land Commission.

I would not wish to go at length into the law point, because I do not think we could try this Lynham v. Butler case here and decide on the merits of the legal arguments. That is not my approach to this Bill. It has not been the approach of the Executive Council, but we take it: here is a small point arising out of domestic legislation, raising no great issue such as has been mentioned as a condition precedent to the admission or hearing of appeals by the Judicial Committee of the Privy Council, such a case as might arise, let us say, under any other Acts which we have passed during the last two or three years, a case such as might arise under the Rent Restriction Act, and yet that case has to be heard by the King in Council. Deputy Heffernan said here the other day—I think I quote him correctly—"I am and always have been opposed to the idea that the Supreme Court should not be the final court in our litigation." That is an excellent sentiment, one which I share fully. But the matter, as the Deputy ought to know but apparently does not, is not just as simple as that. Article 1 of the Constitution recites that "The Irish Free State is a co-equal member of the community of nations forming the British Commonwealth of Nations," and other Articles go on to state that the relationship of the Crown and so on should be the relationship that subsists in the case of other Dominions. At the time that this Constitution was the subject of joint review this appeal to the Judicial Committee of the Privy Council, this so-called prerogative, was still in existence, and being still in existence though obsolescent it seemed necessary to accept it here in the same way and with the same restrictions as exist in other places. There is a strong feeling in all the Dominions, in all the constituent States of the British Commonwealth of Nations against the continued exercise of this prerogative, or, to put it in plain language, against the continued existence of this Court of Appeal, naming it for what it is.

You are asked in this Bill to declare that the law is as it has been found to be by two courts in this State, by the High Court and by the Supreme Court. And if other Deputies, in addition to Deputy Heffernan, wish, in the course of this debate, to express the sentiments that he has expressed, that they are of opinion that the Supreme Court here should be the final court in our litigation, that is so much to the good. It is really for the purpose of expressing and demonstrating that view that this Bill is introduced by the Executive Council.

I was asked, in the course of the discussion, when this Bill was introduced, to give, as it were, the judgment of the Privy Council, when granting leave to appeal in this case. I find that there was nothing at all so formal as a judgment. There was a certain amount of discussion, and the discussion closed as follows: The Lord Chancellor speaking —to whom? Speaking to the leading counsel for the defendant, who had won his case in two courts here—said:

"I can see that you have some substantial point. Of course, the Court would not express any opinion to-day."

"Mr. Jellett—So I understand."

"The Lord Chancellor—But, at the same time, it does appear a point of importance, which may arise in other cases, and their Lordships will advise that leave to appeal shall be granted on the usual terms."

"A point of importance which may arise in other cases"! That is not in consonance with the undertaking given to Irish Ministers in 1922. We were not told that if any point of importance arises that may possibly occur in other cases this special leave to appeal would be granted. On the contrary, we were assured that the analogy would be the analogy of South Africa, and we were told that only three or four appeals had been admitted from there since the establishment of the Union. Underlying all the discussion, there was the idea that we might admit this fiction, just as we admitted the fiction of the veto, with full assurance that it would be a matter of theory rather than a matter of fact or a matter of practice. And having no particular objection to fictions, as long as they remain fictions, Article 66 was written into the Constitution as it now stands. But this case, if allowed to pass unchallenged, opens up a very large vista. It opens up a return to the old House of Lords position, an appeal as of right, as of course, on ordinary matters, on purely domestic matters, on matters raising no issue that transcends the limits of this State's jurisdiction. We feel that that is wrong and that that is dangerous, and that every protest which lies open to us should be resorted to.

This Bill is a protest—a constitutional protest, if you wish. But we hope it will be an effective protest, and we hope that in the course of the discussion in this House and elsewhere that people will make their views and wishes quite clear on a matter as to where finality should lie in our litigation, because, as we have seen from the extracts I read on the First Reading, the matter of the wishes of the Dominions themselves is a very real and a very important factor, and was considered by the Judicial Committee of the Privy Council. Lord Haldane said:—

"In South Africa we take the general sense of the Dominion into account, and restrict the cases in which we advise his Majesty to give leave to appeal. It becomes with that Dominion more and more or less and less, as they please."

In our case we wish it to be "less and less," until it disappears with the veto.

What is to be said for this appeal? Are the judges more competent? The quotation which I have given Deputies is, I think, the answer to that. Counsel is invited to explain "some particular point in the Irish Land Act with which, of course, we are not familiar." As time goes on, the eminent and distinguished judges who act on the Judicial Committee of the Privy Council will be less and less familiar with Irish legislation, and, above all, less and less familiar with the circumstances which lead to the introduction and passage of that legislation, and less and less familiar with the problems it purports to deal with. It is a rich man's appeal. In the past, a rich man getting into grips with his poorer neighbour, threatened: "I will bring you to the House of Lords, and I will break you." Is it to be in the future: "I will bring you to the Judicial Committee of the Privy Council"? Not if we can help it, not if anything we can do, either individually or jointly with the other Dominions, can prevent it. In this case, we have introduced a Bill, and we will invite his Majesty, in one capacity, to be a partner to an Act which his Majesty, in another capacity, when he comes to consider Lynham v. Butler, will rather be a factor.

It may be said, as it has been said to me, that this is a strange and exceptional course. It is a strange and exceptional course, only justified by the circumstances, only justified by the situation. We were asked on the First Reading of this Bill: "Why did you rely on the assurances of British Ministers in 1922? Why did you rely on the statements of the Lord Chancellor of the day?" We could not write them into the Constitution. They were just assurances, but they were assurances given by men in a representative capacity and in positions of authority. We felt that they could be relied upon, and up to 1923 we had no reason to believe otherwise. The statement of Lord Haldane in the "Freeman's Journal" case is in consonance with the undertakings given in 1922. The admission of this case is not. But those assurances, as I say, could not be written into the Constitution; they had to be taken as they were given, in good faith, in the belief that that they would be observed. In the Constitution we had simply to accept it that this peculiar remnant of a prerogative was still in existence. We recognised that it was obsolescent. We believed, and still believe, that it will become obsolete. But while it was there in the Treaty we did not seem to have any real alternative to its acceptance, and we relied on our faith and hope that it would become beautifully less as time went on. I want to be quite clear that anything that we can do to make it become beautifully less will be done. We believe that this is one thing that we can and should do to that end. We believe that if the admission of this case is allowed to pass without a strong and exceptional protest forthcoming from this Government and from this Parliament, the tendency will be that these appeals will not, as one reads here, become less and less, according to the wish of the Dominion itself, but that they will tend to become more and more frequent, until you come to a stereotyped position where they are admitted practically as of course, once it is shown that there is a point of importance in them which may arise in other cases. A Judge other than the Lord Chancellor says:—

"Speaking for myself, I think if this was a case which could never occur again except this old woman having died, then however interesting it might be it is not likely that we would interfere with it. But if, as a member very frankly confessed, this question of the time might arise whenever there was a determination of a tenancy two years before the arrival of the appointed day it rather looks as if it were important."

It may rather look as if it were important, but its importance is a Free State importance, and I quoted the other day from the Whittaker case from South Africa, where you found the following in the judgment:

"One cannot read Section 106 of the South African Act without seeing that the intention was to get rid of appeals to the King in Council except such as, in the strict exercise of the prerogative his Majesty should say that he would allow on some great ground. No doubt the prerogative is not wholly swept away, but it is obviously intended to be exercised in a very restricted sense. As his Majesty has been a partner to the Imperial Act we must bear that in view. In the case of Canada it was held that the words of the Act do not touch the discretion, but in the South African Act, 1909, there is express power given to Parliament to limit the prerogative. That shows an intention that the matter was to be looked at from a South African point of view. I am only looking at Section 106. Their Lordships have taken into account the character of the question which arises here under this Act, and however important it may be it is essentially a local question—a South African question."

We were assured that this is one of the standards which would be applied to petitions emanating from this State. They have not been applied in Lynham and Butler. For the moment we are not complaining about the admission of the Civil Service case of Wekes and Cochrane. We disapprove of any continued exercise of this prerogative, but if it is to eke out an obsolescent existence for some little time longer before it becomes obsolete by the joint protest of the members of the Commonwealth, then Wekes and Cochrane is the kind of case that might be admitted. It has its roots back in the Treaty, and because of the Treaty it cannot be said to be purely a matter of Free State interest or concern. The British, on leaving, made certain terms for those who had constituted their Civil Service here, and an issue arising out of these terms is raised by Wekes and Cochrane. But whatever importance this other case has, it is of Free State, of domestic importance. It raises no issues which transcend the limits of our jurisdiction. It is a case that should not have been admitted, and if Deputies agree with me that it should not have been admitted Deputies will perhaps agree with me in passing this Bill, which declares that the law is what the High Court and the Supreme Court of our State have declared it to be, and Deputies will agree with me in taking a step which will leave the King in Council simply one course when he comes to consider Lynham and Butler— that is, of upholding the decision of the High Court and the Supreme Court of the Free State.

I confess that the presentation of this Bill has left me in a position almost of greater difficulty than any matter that has come my way since the opening of this legislature. I repeat now what I said on the First Reading, and I accept the lead that has been given by the Minister, in expressing my view that the Courts of Saorstát Eireann should be the final Courts of Appeal in any matter affecting the citizens of Saorstát Eireann. But the form of the Bill seems to me to raise a different issue, and one which, so far as the argument has gone, leads me to feel that I cannot support the Second Reading. I am still waiting for guidance on the matter, but so far as the explanation has gone, it seems to me that the method of arriving at the conclusion that the Minister desires is a bad one and should not be followed. The Minister asked us on the First Reading to confine our attention to the issues raised on that First Reading, really constitutional issues, but he has gone some way at least to discuss the merits of the case Lynham v. Butler.

I do not pretend to understand that case, nor do I intend to follow it to any extent. I would perhaps say, fearing lest an unintentional phrase of the Minister might mislead the House, that in this case at any rate it was the poor man made the appeal and not the rich man. The case is not a case of a person against the State. It is a case of two citizens of the Saorstát, and I am very much perturbed by the proposition that we should be asked to intervene to declare that the law is so and so, between two stages of a lawsuit between two citizens. The Land Act of 1923 was passed, and it is presumed that all citizens understand the law. At least I should say it is no excuse, no defence, that a citizen does not understand the law. The Constitution Act was passed in 1922. Whatever the rights and privileges given under the Land Act of 1923 to either tenant or landlord, the Constitution Act gave certain rights and privileges to individual citizens. Now we are asked in this Bill to say that the interpretation as set forth in the judgment of the Supreme Court here is the law, but the assumption behind the Minister's case is that there is no need for the legislature to make any such declaration of what the law is, as he pointed out more than once that this Bill is not a Bill to remove a doubt. The law is as the Supreme Court decided. But we are asked now to say in other words that the law is as the Supreme Court decided. In other words, we are asked to be interpreters of the law as well as the makers of the law. That is not the function, I think, of the legislature. It would be quite competent, probably quite right, for us to say that such and such shall be the law, but I am afraid it is very bad for us to be asked to say that such and such is the law and was the law two or three years ago. We are asked to say: "It is hereby declared and enacted that the Principal Act shall be construed and have effect and be deemed always to have had effect as if the words `which is at the passing of this Act' were inserted therein immediately after the words `means land.' "

In the discussion on the Committee Stage of this Bill an amendment may be proposed to delete the words "which is at the passing of this Act" and insert the words "which is at the appointed day," and the whole issue between these two litigants would require to be discussed. I think that is most undesirable, a very bad precedent, and quite improper, especially in view of the fact that the Bill is introduced between one stage and another stage of law proceedings. It is implied in the Minister's argument that the final stage has been completed, against which there should be no appeal, but the very production of this Bill and the arguments used seem to me to admit that there is a constitutional right of appeal on such a case as this, to the Privy Council. If that is admitted, then by all means no such Bill as this should be brought forward to be retrospective in its action. Litigants were entitled to read the Constitution Act, which contains the proviso in question:

"Nothing shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council."

If there is a right indicated by the Legislature, notwithstanding all the promises, notwithstanding the assumption, notwithstanding all the conventions, all the convictions that such and such a thing would not happen so far as the citizens are concerned, that was present to him, and not the promises of Ministers across the water. It seems to me, if we are admitting, and I contend that the very production of the Bill in that form is admitting, the right of appeal, we ought not to come in as a Legislature between two courts to prejudice the last court by saying that the previous court's judgment was the law.

Supposing we had a different view of what the law is. It is quite conceivable. Supposing the Legislature took the view that Mr. Justice Johnston expressed rather than that of the majority of the court. He said: "I regret I am obliged to take a different view. I am unable to find anything in the Act which affects the right of a person in the position of the plaintiff to recover this land in the interval between the passing of the Act and the appointed day," and he dissents from the decision of the majority. As I say, supposing it were put forward from the Ministerial Bench that the minority judgment was really the law, or should have been the law, or really was what the Oireachtas intended, that it made a mistake in its phraseology, and that they brought forward a Bill of this kind to say that the Principal Act shall be construed and have effect as though it had always been in the terms which the minority judgment decided. We would have been just as wrong as we are in this proposition. I am submitting that the method the Minister is adopting of arriving at the purpose which he wants to arrive at, is utterly wrong, bad from every point of view, and that we should not be asked to take that course.

Well, saying all that, I want to add that, in my view, there is no right of appeal, and further that if the Privy Council issues a judgment, whatever that judgment may be, it should be the position of the Executive in this country to take no notice of it. Now, if it is intended to take a strong line in this matter, and to stand by our contention that the right of appeal to the Privy Council in this kind of case, or in any other class of case, should not prevail, then we ought not to take notice of, or execute the judgment, or the reports or decrees or whatever the term may be, of the Privy Council, and that we ought to affirm, if necessary by a resolution of the Dáil, that the judgments of the Supreme Court are final so far as the Executive Government in Ireland is concerned.

The Dáil might well say: "We will not provide the money to any authority in Ireland to execute the judgment of any court outside of Ireland." A resolution of that kind from the Dáil will be just as effective an estoppel as anything proposed in this Bill, and would be much more dignified, much more in accord with the will of the people as I understand it, and would not be doing an injustice to any citizen; and, further, would not set a precedent as to the method of interfering with the Judiciary. I think it is a most lamentable proposition that the Legislature should be invited, between two stages of a lawsuit, to declare what the law was on a certain date. If we have confidence in our Judiciary we have to trust them to interpret the meaning of an Act of Parliament, or we have to alter the Act of Parliament. We can pass a Bill of this kind to have effect as from the date of its passing. That is perfectly right and perfectly in order. But I think it is very wrong to pass a Bill of that kind, and to say that it shall be deemed to have been always the law, so as to tie the hands of the Supreme Court, because, on the assumption of the Minister, the Privy Council is, in fact, the superior court.

I would like to suggest that the right that is suggested or that is referred to in this proviso has no value and should not excite the anxiety of Ministers, and should not lead to the introduction of a Bill of this kind. The Minister said that, at the time of the conversations between the British Ministers and the Provisional Government respecting the Constitution, this question of the appeal to the Privy Council was dealt with and that the prerogative was still in existence at the time of the discussion of the Constitution provisions. I would like the Minister, later on, to support that statement, if he can, or I would like him to admit what. I think, is more near the truth, that the prerogative did not exist in respect of the citizens of Ireland. On the question of Article 66 itself and against that proviso, I would even put the first Article of the Treaty which is of more importance and which reads:—

"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, with a Parliament having powers to make laws for the peace, order and good government of Ireland, and an Executive responsible to that Parliament, and shall be styled and known as the Irish Free State."

To me, it seems that the Parliament which has powers to make laws for the peace, order and good government, and the Executive responsible to it, is the only authority in this country to decide any question between citizen and citizen. And if it is contended that the Constitutional status of these various Dominions has a bearing upon the powers of a judicial court outside Ireland, then we are immediately confronted with the question as to which of those Dominions, because the judicial question differs in respect of one and the other. I say that that particular reference has only value in respect of what one might call State relations. But there was a long argument stated in an English review by the late Deputy Figgis, inspired, as I believe, by very high legal opinion in 1923. I think it is no harm to invite the attention of the Ministers and of the Dáil to the general lines of that argument because it is of very great weight. Some Deputies here will bear me out when I say that at the time of the discussion on this Article 66 of the Constitution very eminent counsel indeed informed us that so far from impairing a right, there was no right; and therefore it could not be impaired and therefore we need not trouble about the effect of this proviso.

All the assumptions in Lord Haldane's review of the law are that the Free State position is that of a dominion. He calls it a dominion, not a country with the status of a dominion within the British Commonwealth, but as a dominion, and he compares it with South Africa, Canada, Australia and New Zealand, forgetful of the very important fact that the history and development of these countries in relation to Great Britain was very different indeed from that of Ireland. The development from a colony to a dominion naturally and inevitably led to an enlargement of the powers of the courts of those countries. But the whole history of the appeal to the Privy Council in respect of the colonies as they were, has its roots in the fact that they were colonists, people who emanated from Great Britain, and wanted some appeal from, shall I call them, the immature courts of the early colonial days. And they were distinguished by that fact from the rights of citizens of Great Britain who had not an appeal to the Privy Council but appealed to the Court of Parliament, to the House of Lords.

All this legal argument that I am referring to shows, and I think very convincingly, that the position of Ireland in respect of appeals of this kind was identical with the position of England, not with the position of any colony, and therefore not with the position of any dominion; that the highest Court of Appeal was the Court of Parliament, not the Privy Council. There have been, of course, very long and acrimonious, and very violent disputes in days long passed between the Parliament of Ireland and the Parliament of Great Britain on this very question.

I will just quote a case which is very illuminating, especially in view of this discussion; it is an historical case that has had a great deal written about it, and it led to a conflict between the two Parliaments. It was the case of Sherlock and Annesley. Annesley, against whom the House of Lords in Ireland had decided, carried his appeal in 1712 to the English House of Lords. There he won his case and the English House of Lords instructed the Irish Court of Exchequer to put Annesley in possession of the estate he claimed. This also was a land case. But when the court issued its order, Alexander Burrows, Sheriff of County Kildare. stubbornly declined to execute an order contrary to that of the House of Lords of his country. Fined £1,200, he brought his case before the House of Lords in Ireland. Appealed to in this matter, the Irish Lords took the counsel of the judges of the country, who declared that the Irish House of Lords, and the Irish House of Lords alone held the final and conclusive right of judicature for Ireland. So fortified, the Irish Lords declared their rights in a resolution of their House, extolled the Sheriff for his vigour, addressed a strong representation to the King and proceeded to imprison the Barons of the Exchequer.

There was litigation, there was conflict. There was a new Act passed in England to counter and supersede the action of the Irish House of Lords. Then we had the case of Grattan's Parliament deciding that no power outside Ireland had any right to legislate or to administer the law. Then came the Union, and there was no interregnum in which citizens of Ireland had any appeal to the Privy Council; they had appeal only to the High Court of Parliament, the House of Lords. If we are co-equal members of the British Commonwealth we are equal with England even in that respect, and citizens of this State are equally entitled to appeal only to courts within this State. As we have no House of Lords, our final Court of Appeal is our Supreme Court of Justice.

On that showing, and I think it can be defended by other arguments, this proviso which speaks of impairing rights has no effect; no right exists and therefore you cannot impair it. It assumes a right to exist which, in fact, does not exist. I believe the right course for the legislature here to take, the right course for the Government to take, is to assert that there is no such right of appeal as is indicated, except with the consent of the legislature, which will mean, of course, that we will have to define the class of case which may be appealed. I am not suggesting that that should be done, but it is a method of meeting what, notwithstanding the avowals, is implied in this Bill. In my view the very introduction of this Bill, and certainly the passing of it, would mean an agreement that there was a right, even in domestic cases, to appeal to the Privy Council.

I feel that the Bill ought not to be proceeded with. If it is proceeded with I think it would be doing injustice and I think it would be setting a precedent of very great danger. It will mean that at any time when a judgment has been delivered by the High Court a Minister may come along, or an individual Deputy may come along, and endeavour to get passed a Bill declaring that the law was so and so. That, surely, nobody would pretend was justified; yet that is exactly what is happening here. If it is going to be admitted that there is a right to appeal to the Privy Council implied in this Article of the Constitution, then we have to make the most of it and accept the results of our legislation, no matter what promises were made. If this Dáil, or the Constituent Assembly preceding this Dáil, decided that there was a right, or at least decided that nothing should impair the right, if there was a right, then we should confirm it and we ought to take the consequences of that act and proceed to amend the Constitution. That is not being done by this Bill and I feel that unless there is very much more convincing justification made in favour of this method of arriving at a conclusion which I myself approve of very definitely, I cannot support the Second Reading.

I desire to support the general attitude adopted by Deputy Johnson in relation to this Bill. I will not go so far as to say that I agree with all the statements that he has made, either in regard to law or fact, or that I draw the same deductions as he does from those statements. What I do agree with in his statement is that in the first place this is not the proper method of demonstrating, what I am sure every Deputy is anxious to demonstrate, and that is that the decisions of the Supreme Court in this country should be final. The Vice-President has made an exceptionally able and convincing speech on that point. He has shown, in the first place, the desirability of having our courts the final tribunal to settle matters concerning our State, with which we all agree, and he has shown also the incongruity, if not absurdity, of having an outside court to determine matters with which they may not be, as he quoted, quite familiar. With that I am in total agreement, but I say that the proper method to ensure that that state of affairs which we all desire shall be brought about is not by the introduction of this particular measure, which is an ad hoc proposal, but rather by the suggestion let fall by Deputy Johnson in the concluding passages of his speech that we should forthwith proceed to amend the Constitution.

Article 66 of our Constitution states that "the decision of the Supreme Court shall in all cases be final and conclusive and shall not be reviewed or capable of being reviewed by any authority whatsoever," and then gives the proviso: "Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty and Council."

I should like to point out that the proviso does not state that there is a right to appeal. It only states that nothing shall impair the right of any person to petition for special leave to appeal, which is a different thing. When the Vice-President stated at the time of the negotiations and passage of the Constitution that there was what was known as a prerogative in existence, I ventured to agree with him. There is an inherent right of every citizen not to appeal to the Privy Council, but to ask for the special leave of that Council to appeal to that Council. It rests, then, with the Privy Council to decide, on what principles or grounds they please, as to whether they shall grant that leave or not. The Vice-President based his case, if I may say so, not so much for this Bill as for the establishment of the final supremacy of our Courts. I am in agreement with him upon two main grounds —first, upon the assurances, private of course they must have been, written or not, I do not know, and it is of little account whether they were or not, because they would not have been worth the paper they were written on if they had not been given legal sanction; and, secondly, upon what could not be called a judgment. It is important to point out that Lord Haldane's statement was not a judgment but a dictum from one member of the Privy Council, which was made before any of the cases had been even stated to the Privy Council.

With regard to the private assurances I do not think we need pay any attention to them. If these private assurances were not translated into words, and if those words were not put into our Constitution, I say those private assurances counted for nought, and count for nought to-day.

May I remind the Deputy that he is using the word "private" in a special sense? They were assurances come to between two sets of Ministers across a table in Downing Street. The Lord Chancellor of the day was one of the British Ministers concerned.

I do not mean private except that they were not assurances which were translated by legislation into law. They were only undertakings, the legal consequence of which is nought.

They were assurances which could not, by the nature of them, be translated into law, because they were assurances about the usage and practice to be observed in the exercise of a particular thing the existence of which was admitted. They were assurances about usage and practice, not about law, and the Deputy is too well versed in these matters to need to be reminded that law as distinct from fact, as in Canada and in the other States of the Commonwealth, is very different. We stated that there was a difference about the law, and we got a definite assurance as to what the practices and usages are to be.

The Minister has stated that those assurances could never have been translated into law. With all respect to him, I am in entire disagreement. There were assurances given, and perhaps the negotiators on the part of the Free State had reason to believe that these assurances would be kept. I say, with knowledge of the responsibility of what I am saying, that it was the duty of our negotiators at that time to have got those assurances put into law. The Minister has said that might not have been practicable. I want to show him how it might have been practicable. Perhaps I may be allowed to refer to similar Articles to that in our own Constitution which I have read out in the South African Constitution and also in the Constitution of the Commonwealth of Australia. In the South African Constitution, which is contained in the statutes of 1909, section 106 says: "There shall be no appeal from the Supreme Court of South Africa or from any division thereof to the King in Council, but nothing herein contained shall be construed to impair any right which the King in Council may be pleased to exercise to grant special leave to appeal from the Appellate Division to the King in Council." Deputies will recognise that that is practically identical with portion of Article 66 in our Constitution, but then the South African section goes on to say: "Parliament may make laws limiting the matters in respect of which such special leave may be asked, but Bills containing any such limitation shall be reserved by the Governor-General for the signification of His Majesty's pleasure." There, I venture to say, are the assurances which were given to us translated into law in the South African Parliament.

It was on that section that the Whitaker case was decided, and it was because of that portion of the section which says that Parliament may make laws limiting the matters in respect of which special leave may be asked that that case was decided as it was. A similar proviso was put into the Constitution of Australia nine years previously, that is, in 1900. In Section 74 of the Commonwealth of Australia Constitution Act a similar statement is made about the right of petitioning the Privy Council for special leave to appeal. It goes on to say: "Except as provided in this Section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal Prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked." I suggest, and I am not doing this by way of recrimination, as I have no such idea in my head, that, though at the time our negotiators may have placed reliance, and may have had good reason to place reliance, on the assurances given, namely, as I understand that the position of Ireland would be much the same as that of South Africa or Australia in regard to these petitions, they should have seen that these assurances were translated into effect. This was done both in the case of South Africa and Australia. That is as regards the assurances.

Now I come to the second ground, upon which the Minister relies for the introduction of this Bill, and that is the statement made by Lord Haldane. I think it would interest the House to know that that very statement of Lord Haldane has laid it down that there is no such thing as a right of appeal to the Privy Council. The headnote to that statement, contained in the "Irish Law Times," says: "In the Irish Free State, as in Canada, South Africa, India, and right through the Empire, the King's prerogative as the supreme tribunal of justice exists, but an appeal to the Privy Council is not as of right. It is a matter of discretion. Under the new Irish Free State Constitution Finality and supremacy are to be given to the Irish Courts, but there is left over a right to supplicate the Sovereign for leave to appeal in cases involving some great principle or of some very wide public interest."

From the statement we find that Lord Haldane said amongst other things:—"In other cases the practice which has grown up, or the unwritten usage which has grown up, is that the Judicial Committee is to look closely into the nature of the case, and if, in their Lordships' opinion, the question is one that can be best determined on the spot, then the Sovereign is not as a rule advised to intervene nor is he advised to intervene normally—I am not laying down precise rules now, but I am laying down the general principles—unless the case is one involving some great principle or is of some very wide public interest."

These were the principles which Lord Haldane laid down in his dictum, whatever value it has. It was not even a judgment of the Privy Council, but, if we take that dictum to be a true statement of the law on the matter, then I understand the Vice-President's case to be that the admission by the Privy Council of this case of Lynham v. Butler to appeal, in the first place, is not in consonance with the assurances, not translated into law, and, in the second place, not in consonance with the dictum laid down by Lord Haldane. With regard to the first I will say no more, and with regard to the second, I submit that from the judgment, if one might call it so, of the Privy Council, as voiced by the Lord Chancellor, where he says that it does appear to the Court to be a point of importance which may arise in other cases—I say that that in itself brings this case within the four corners of the principles laid down by Lord Haldane. I do not want it to be thought for a moment that I desire that this case should be heard by the Privy Council. Personally I have no interest in the case, and publicly my inclination would be all the other way, but I say that to bring in this Bill, which is a retrospective measure, anad hoc measure, an in personam measure, and, almost, an in terrorem measure, is not the proper way to do it. I shall probably be asked what is my suggestion. My suggestion is that instead of bringing in and passing this retrospective legislation—I agree with everything which Deputy Johnson has said, the dangers of it, the unfairness of it, and, I may say, almost the impropriety of it—I would propose that this matter should be first of all dealt with by the Committee which the Government announced, only the other day, it had set up to deal with any amendments which might be regarded as necessary to our Constitution.

I propose if they think fit, and in the end, if we think fit, that we should amend our Constitution and insert in Article 66 the words I have quoted, which are contained both in the Commonwealth of Australia Act and in the South African Act—namely, "The Parliament may make laws limiting the matters in which such leave may be asked." If we insert these words in our Constitution it would place it beyond all doubt that we were in the same position as Australia or South Africa in regard to appeals to the Privy Council, because if an appeal was subsequently admitted by the Privy Council, and if we came to the conclusion that it should not be admitted, we could then pass an Act saying that special leave should not be granted in that class of case. If that was done we would be acting within our rights and according to the Constitution which we had amended. There would be nothing in the nature of retrospective legislation, and it would be amending the Constitution in a constitutional way, and giving us the desired effect.

Of course there is a proviso to that portion of the South African and Commonwealth of Australia sections, namely—that the Supreme Court, or what would be tantamount to the Supreme Court, in either of these countries may, at any time, by special leave, give permission to appeal to the Privy Council. That could also be inserted in our Act of Parliament. Though I, for one, would not be inclined to do it, especially as the tendency throughout the whole Commonwealth, as the Vice-President properly stated, is to do away with this prerogative altogether, it might be suggested—and there would be no very great argument against it— that a proviso should be inserted, that questions involving great constitutional issues should be excepted. At any rate, that, I think, would be open-handed and above board, and a strictly constitutional manner of dealing with this problem, which we all regret—which might have been avoided, but has not been avoided—and which we are all anxious to see properly solved.

The Bill before the Dáil shows nothing whatever on its face regarding an amendment of the Constitution, or doing away with appeals to the Privy Council. It is probably meant as a gesture to the Privy Council. I do not know whether the Minister has got many more assurances or not, but he might be able to say what attitude the Privy Council will adopt with regard to future appeals if we pass this measure in regard to the present case. There is no doubt that this appeal will only affect this one case of Lynham and Butler. It may actin terrorem, and may frighten people in this country from exercising what cannot be gainsaid is their right under our Constitution—to ask the Privy Council for leave to appeal. It may frighten them from doing that. I seriously suggest that that is not a proper manner in which to amend our Constitution or to do away with these rights.

This Bill is retrospective and is directed, it is true, to an ulterior purpose, but the immediate purpose is directed to one particular individual. The individual in this case is technically known as a landlord. I think he happened at one time to be a member of an organisation with which Deputy Johnson is not altogether unconnected. Be that as it may, he is not what is generally known in this country by the term landlord. He is of the working class. This man happens to be what is known as "a remainder man." There was a life interest in the farm which, for a considerable number of years, he was expecting to fall to him. A lease was given of this interest and the poor old lady who had the life interest could only give the lease for her own life. She has since died, and because she died subsequent to the passing of the Land Act of 1923, and before the "Appointed Day," this man who had this expectation for so many years is to be deprived of his right of coming into the farm now. I think that is a fair enough statement of what the decision in this case will mean.

Perhaps I may be pardoned for digressing a little, as the Minister did, into the merits of the case, when I say it will not be confined to the two parties, Lynham and Butler. There must be other cases. There are other cases in which tenancies, whether tenancies for years or tenancies for lives, determinable by certain events, will be affected by this decision, and I think it was probably because it would affect a considerable number of people, and was a matter of public interest that the case was allowed to be brought before the Privy Council. Is it not harsh, to say the least of it, is it not a bad precedent, and is it not a wrong way of setting about doing the right thing to pass a Bill now which will penalise one man for taking a course which, under our Constitution, we said he had a right to take.

Will the Deputy say how he is penalised?

He will be penalised if the Privy Council reverse the decision of the Supreme Court. Of course, the Privy Council have not yet had the case before them. I put it this way: There is an equal chance of his being penalised or not being penalised. The Privy Council will have to decide one way or another. They will decide that he is either right or wrong. If they were to decide that he is right and would be entitled to this farm, then this legislation would certainly penalise him. The Government showed a very sound and rather courageous attitude the other day in regard to another measure. When they saw general opposition to it from all quarters of the Dáil they had the sense to withdraw that measure. I would submit to them that they should do likewise here. They may have made up their minds that this is the proper way to deal with this question. I say it is not. I say that the proper way to deal with it would be the way it was dealt with in the case of Canada and South Africa; that though it was not put into our Constitution originally we have still the power and the right to alter our Constitution and put it into it. We can still put into words—especially if they are to be words expressing what were at one time assurances—what is contained in the South African and Australian Constitutions. We can thereby limit the matters in which special leave may be asked to appeal to the Privy Council, and that will in no way interfere with past decisions. It will in no way interfere with individuals,inter se, as in this case of Lynham and Butler. It will control the conduct of the Privy Council as far as it can be controlled in the future. Certainly it will be a more distinct and a more definite gesture to the Privy Council as to the wishes of this country than the mere passing of this measure which, on its face, deals with one subject, and one subject alone, and that is the matter in dispute between Lynham and Butler.

If the Government are determined to proceed with this measure, I think that they are ill-advised. If they are determined to go on with it, perhaps they will accept the suggestion of not making it retrospective. If they left out the words which make it retrospective it would not be so obnoxious. Even if they did that, I do not believe it would achieve its purpose, and I think it would be better for all concerned— for the future of this State and for the Government—if they would reconsider pressing this Bill and proceed upon the lines which I have suggested, or any other lines they may think better to achieve the object that I have in view just as much as they have—to assert the final supremacy of our courts in the Saorstát.

If the proposal which the Deputy has outlined were accepted, would he subscribe to the proposition that the Land Act of 1923 should be one of the things upon which the Privy Council would not be entitled to give permission for appeals?

Certainly; I would be delighted to do it.

Not retrospective.

I should like to say that I know nothing of any connection of the plaintiff in the matter with any organisation with which I am associated. The suggestions I have made would not help his particular line of action in this case.

I did not mean to infer that the Deputy was acting for him.

In my view, as distinct from Deputy Johnson, there are certain types of cases in which an appeal to the Judicial Committee of the Privy Council is legitimate. I think that cases arising out of an interpretation of the Treaty and, in particular, cases arising out of Article 16 of the Treaty, that prohibits any religious preference, might reasonably be taken to the Judicial Committee, if it was thought that any petitioner had not received justice in our Courts here. There has been no infringement of that Article, and I do not think there will be any infringement; but if any person thought it was infringed, then it might be right for him to be allowed to go to an absolutely outside Court and get judgment. Another type of case that I think might be taken to the Judicial Committee of the Privy Council is disputes between citizens of the Saorstát and those who are not citizens of the Saorstát. If a New Zealander or a South African came to our courts and felt that he had not received justice here in some important issue affecting a number of his countrymen, then I think it would not be unreasonable that he should be allowed to go to what may be called the High Court of the Commonwealth—the Supreme Court of the Commonwealth—and make his case.

Is that in the Constitution?

I have no knowledge that it is in contemplation. Those seem to me, looking at the question on broad general lines, two cases in which an appeal might be reasonably allowed without injury to our rights. The Minister for Justice does not agree with me. He speaks of the Judicial Committee as a tribunal which is bad, useless and unnecessary. I would quote against him a Daniel come to judgment, only he came to judgment some time ago—the late Mr. Erskine Childers. In his book, "The Framework of Home Rule," he says:—

"Only one provision of any importance is needed, namely, that appeals in the last resort should be to the Judicial Committee of the Privy Council instead of to the House of Lords. The Judicial Committee as the final Court of Appeal for the whole Empire and strengthened by one or more Irish Judges should hear Irish appeals. It is true that the tribunal has been subjected to some criticism lately, especially from Australia. Federal states naturally wish to secure pre-eminent authority for their own Supreme Courts. But the tribunal is on the whole popular with the Colonial democracies, and the argument from distance and expense does not apply to Ireland."

Then after a short omission, which is not relevant, he went on to say:—

"The validity of an Irish Act which has received the Royal Assent will, like that of a Colonial Act, which has received the Royal Assent, be determined in the ordinary course by the Irish Courts with an ultimate appeal to the Judicial Committee, which should be strengthened for the occasion by one or more Irish Judges."

That is fifteen years old. That was the accepted doctrine of the extremist fifteen years ago. We have advanced beyond that.

A Home Ruler.

An extreme Home Ruler, I agree. I will say the majority fifteen years ago. We have advanced beyond that. The Minister now says that this court is bad, useless and unnecessary.

A DEPUTY

And English.

He did not say that. As a matter of fact, in the case referred to, the majority of the judges were Scotch and they might conceivably be Australian, Canadian, or even Indian, not necessarily English. That is taking me off my point. The Minister says this Court is obsolescent. It is not obsolete yet and we have got to recognise facts as they are. While it does continue to be accepted by every dominion in greater or less degree, we have got to decide, not in relation to one particular case, but in relation to things in general, to what extent we will accept its authority. I have laid down for myself at any rate the rules which I think should govern us.

My particular difficulty in regard to this Bill is to see to what extent the case of Lynham v. Butler comes within those rules, whether it should be accepted or whether it should be rejected. Now, in considering that I am afraid I shall have to put aside a considerable portion of the two speeches of the Minister for Justice. The Minister speaks with such weight and authority that we are sometimes tempted to regard his words as the rulings of a judge rather than as the pleadings of an advocate, but on this occasion he was a perfectly fair and very able advocate. He gave us one side of the case, but he did not give us the whole case. He introduced, I think, into his arguments one or two points, in respect of which, in his own words, if defendant's counsel did not object, the judge would be certain to raise some question. He spoke, for instance, of this appeal to the Judicial Committee of the Privy Council as a rich man's appeal.

I was not referring to this appeal. I was speaking of appeals generally.

I am glad to have that admission, but I think the impression made on a good many minds was that this was a rich man's appeal. In this case I do not know the plaintiff. All I know is what I have gathered from a copy of the documents laid before the Privy Council for judgment. I find from these documents that the plaintiff lives in Irishtown, a suburb of Ringsend. Irishtown is in my constituency, and in the constituency of the Minister for Justice, but I do not think that either one or the other of us ever went there to look for plutocrats. I imagine that at an election the first preference votes there would not go either to the Minister or to myself, but rather to Deputy Johnson, and still this is described as the rich man's appeal.

The Minister asked whether the judges on the Judicial Committee of the Privy Council were more competent than our judges. I am not going to discuss the relative competence of judges. A layman who does so, generally lays himself open to a penalty for contempt of court. They may not be more competent, but they are more experienced. One of the judges on the Judicial Committee of the Privy Council who tried this case has had, I think, over twenty years' judicial experience. I think none of our judges can claim that. I say that just in answer to the question the Minister asked. Then, again, we were told that they are less and less familiar with our circumstances here: that in time they will be less and less familiar with the circumstances which lead to the introduction of legislation. I am not a lawyer, but the Minister is. I will accept correction from Deputy Magennis, Deputy Redmond, or Deputy Connor Hogan as to whether the circumstances which lead to the introduction of legislation are a valid argument in court. My impression is that the law is absolute, and that it can only be interpreted in regard to the words of the statute and the rulings of previous judges. I am of opinion that for a court, to take account of parliamentary reports, newspaper reports, or resolutions from Cumann na nGaedheal or the Transport Workers' Union would be altogether out of order. That, of course, is only a layman's view.

Then again the Minister said of the judges that they had absolutely no knowledge of the facts. I find it hard to believe that. One of the judges on the Judicial Committee of the Privy Council who heard this case of Lynham v. Butler was appointed the Chairman of a Commission which sat in this country for over a year inquiring into damage that was done here. I refer to the Shaw Commission, and I cannot believe that anyone who sat here on a Commission for over a year inquiring into the destruction of property, the loss of rights, etc., could do so without getting some knowledge of Irish legislation. I think the Chairman of that Commission was sitting here in this country at the time that the Land Act of 1923 was passed. Of course we know that judges are extraordinarily aloof from the world, but I find it hard to believe that they never read the morning papers and never look at one of Deputy Gorey's speeches. These are all the arguments put up by the Minister, and as I say I cannot accept them, any more than I can accept his statement on the First Reading when he said: "This is not an important point; it is not a great issue affecting large numbers of people, but a mere trumpery exceptional issue arising out of the ordinary, internal, domestic legislation of this State." Towards the end the Minister said: "It is a small, clear issue which has been pronounced upon by two courts." He did not tell us that the small, clear issue occupied the Supreme Court for two months before they could pronounce judgment on it, or that when the judgment was pronounced one of the three members of the Supreme Court dissented from the judgment of the majority.

The judge who dissented was not a member of the Supreme Court.

He was sitting as a member of the Supreme Court.

Yes, because one of the members of the Supreme Court considered himself unsuitable to hear that particular case by reason of antecedent circumstances. The dissentient judge—Mr. Justice Johnston—was not a Supreme Court Judge.

I am in entire agreement with the Minister on the facts, but Mr. Justice Johnston on that occasion was acting as a Supreme Court Judge, and if he had agreed with the findings and rulings of the other two Supreme Court Judges it would have gone as a unanimous finding. As it was, it was not a unanimous finding. As a matter of fact, though not a Supreme Court Judge, Mr. Justice Johnston has had longer experience on the Bench than either of the two judges of the Supreme Court. I am not challenging their findings. I am not a lawyer, and even if I were I should be slow to challenge any ruling or finding of the Chief Justice or Mr. Justice Fitzgibbon. I am only trying to show that the Minister did not give us absolutely the whole case. He did not conceal anything from us. He gave us a perfectly fair statement, but as a layman I am merely stating that he did not give us the whole case. He spoke of this as a simple, clear issue, but, as I say, it took the Supreme Court two months to decide it, and then there was one dissentient. The Minister said, too, that it was not a general case. Deputy Redmond agrees that it is a single case. I am not quite so sure of that. It seems to me, as a layman, that into the interpretation of this case comes the question of the interpretation of what is the appointed day under the Land Act of 1923. Speaking as a layman, that seems to me to open up very many issues and very many difficulties.

The Chief Justice, in his judgment on the case, spoke of the "various blows of the axe" which will fall on the day that the Act comes into force. The appointed day affects a lot of other questions besides this one question. It affects the question of sporting rights. I was under the impression that under the Act the landlord could enjoy his sporting rights over tenanted land until the appointed day, or what is regarded as the appointed day. I am afraid, however, that that is not the case. To illustrate, if the appointed day came two years ago, then, just as the French merchant in Moliere's play said: "I have been speaking prose for forty years without knowing it," so a great many landlords in this country have been poaching for two years without knowing it. I may be wrong on that, but it seems to me that that argument may be extended to cover other points in connection with the appointed day. The Minister spoke of this as a question of domestic importance. I would like to ask him if he thinks it is entirely a question of domestic importance whether every landlord who is affected by the Act is a citizen of the Saorstát. I do not think so. I do not think that by any reading of Article 3 of the Constitution you could say, for instance, that the Duke of Devonshire is a citizen of the Saorstát. He is not ordinarily resident here, and I do not think he was born here, and unless he has sold all his land under previous Land Acts he comes under this Act. It might be argued that this case affects people who are not citizens of the Saorstát, and that seems to me to have been in the minds of the Judicial Committee of the Privy Council when they made this ruling.

My first impression after I had heard the First Reading speech of the Minister for Justice was that I could not understand how three experienced judges could give a ruling so completely out of all accord and out of all harmony with the facts. It was not until I reflected that possibly there was more in it than we had heard and that, like every other question, there was another side to it, that I came to the conclusion that there might possibly be something to be said for the Judicial Committee of the Privy Council. Now those are the doubts in my mind, doubts which may be resolved when the Minister comes to reply. As regards the general purpose of the Bill, apart from its retrospective effect, I am strongly in favour of it. I want, as little as the Minister for Justice or Deputy Johnson, to be looking outside our own borders—to seek scape-goats outside our own borders. I want to settle our own problems, and I want our own Acts to be decided, final Acts, subject to the cases which I laid down at the beginning of my speech. So far as this Bill, and only so far as this Bill is intended to secure that we are the final authority in the interpretation of our own domestic legislation, I am in favour of it, but in so far as it singles out one individual, and in so far as it is retrospective, I am in grave doubt whether I can vote for it.

May I ask the Deputy a question? He put several questions to the Minister. Having listened very carefully to the Deputy's speech it struck me that if I were to interpret it correctly it meant that a person living in Ireland, being an Irish citizen, would not have a right, according to the Deputy's interpretation, to bring this case before the Judicial Committee of the Privy Council, but if he were a citizen of England and a landlord here, he might exercise that right. Am I correct in that interpretation?

I think anyone living in Ireland, having accepted the Saorstát, should accept the Saorstát Courts as the final authority. On the other hand there are people—I do not know that I have any admiration for them—who refuse to accept the Saorstát, and who I think in equity might claim an appeal to the British Courts.

The Deputy, in making a case for an appeal in respect of some particular individual, merged an immense number, other than our own citizens, and would give them a super right. I am not struck or impressed with that particular argument. Am I right in my interpretation of the Deputy's contention?

I am afraid I must ask for notice of that question.

resumed the Chair.

The whole case made for this Bill is to strengthen the Constitution and to assert the supremacy of our High Courts. Although I am prepared to vote for the Bill because it does that, still, in my opinion, the right way is not being taken in dealing with this particular question. Under this particular Act an appeal is sent to the Privy Council. Under the numerous other Acts we passed in this legislature appeals can also be sent to the Privy Council, and it would mean a series of Acts that would have to be passed through this House to prevent a provision in that Constitution from taking effect. As a layman, speaking without any knowledge of what conversations took place across the table when our Ministers went over and conferred with Ministers of the English Parliament, I, as one who was not there, consider that I am entitled as a citizen to take advantage of that provision, if I so desire, and I may perhaps know more than the average man in the country. The average citizen reads the Constitution and the proviso under the impression that it gives full opportunity and right to go to the Privy Council in this connection. Now you tell him, having taken advantage of that plain English for which we are responsible, he is not entitled to go to the Privy Council. I think that is wrong.

I am prepared to support a Bill which will assert, or limit the matters, as Deputy Redmond suggested, on which the Privy Councils should be appealed to. I am prepared to support that, but to make it retrospective, and to do it now to meet a particular case, is all wrong, and will always carry about it an atmosphere of pettiness. The man in the street will say this Act is meant to meet a particular case for a particular individual, and future Acts to meet other appeals that may be lodged in the future will be treated accordingly. I think that is not the right way of going about it. For that reason I suggest to the Minister the advisability of reconsidering the procedure to be adopted to meet our constitutional attitude upon this matter. I understand the case will go to the Privy Council in any event, even if we pass this Bill, and although the merits may not be tried, it will go to the Privy Council in any case in regard to costs, and therefore it finds its way there.

The information has been given by the Minister that one of the judges did not see his way to act at the hearing of this particular appeal in the High Courts, and that was the reason that Judge Johnson came in.

One of the judges of the Supreme Court preferred not to act in the case, because he had some connection with it prior to his becoming a Judge.

I am sorry the same did not apply to the other judges in the Supreme Court who may have had some connection with it before it came into court, inasmuch as the Chief Justice was the legal adviser to the Government during the passage of the Act through the Dáil, and the other judge was also a member of the House.

This question of the judges is a very delicate one. Mr. Justice Murnaghan, as I understand, stated that he had some connection with the particular case to be tried.

My point is that judges are often influenced not by what is actually the wording of the Act, but by the intention when the Act was being passed through. The point I am making is that these lawyers advising the Government when the Act was going through might be influenced by what was the intention as well as by the actual wording of the Act. I say that there should be no appeal from any of the laws we pass here, to the Privy Council. I am prepared to support anything, not in the small way or the petty way in which this Bill is going to deal with it, but rather something in the nature of a general principle and not dealing with a particular case.

I do not think I have very much more to say, except to repeat that the ordinary citizen, exercising his common sense, reading Section 66 of the Constitution and reading the proviso would naturally come to the conclusion that he was as much entitled to apply to the Privy Council as to our own High Court. That is not the fault of our citizens, and a citizen having taken advantage of what is contained in plain English, we have no right to handicap him by intervening in the middle of his case.

Deputy Gorey, as a layman, is of course mistaken in assuming that any court, even the most incompetent court, would consider the intention of the legislature as outweighing what under the rules of interpretation or statutes was the clear force and meaning of the Act of Parliament they were called upon to consider.

I did not read all the judgments, but in one of the judgments I think the question of intention came out very distinctly. I did not quote it,

I regret exceedingly that I had not the advantage of hearing the Minister for Justice, except in the closing portion of his speech, but I accept the account of it given by Deputy Cooper as a very fine and complete statement of the whole matter in dispute and of the intention this Bill seeks to realise. As I understand it, what is really before us is whether or not, in view of a certain situation that has arisen, we shall, as a Legislature, or at any rate the principal House of the Legislature, declare what is and was the force of a certain passage in the Land Act. What has been discussed in the course of the debate was, in effect, whether or not the best way to meet the situation out of which this has arisen is not to do something else. In other words, the larger policy is debated. I take it, not merely by assumption but by actual deduction from all the speeches that have been made, that there is absolute unanimity here, that we wish not merely to declare that the appellate jurisdiction of the Supreme Court is final and conclusive, but that we wish to have that recognised outside the four walls of this State. I think I can appreciate the immediate purpose in view in this Bill, and I do submit that the immediate purpose of this will be lost sight of if we discuss the celebrated case of Sherlockv. Annesley, because that case confuses the issue. There, if I might be permitted to dwell upon Sherlock v. Annesley for a moment, there was a conflict between two kingdoms, a conflict between the legislative authority and the status of the courts of the Kingdom of Ireland, and of the kingdom of Great Britain, and, undoubtedly it was not merely a courageously patriotic action on the part of the sheriff to insist upon obeying the court of his own kingdom, but it was the right thing and the wise thing, as a piece of public policy and as a political demonstration.

This is not a question of the House of Lords as a Court of Appeal. The House of Lords became the court of final appeal from the Irish courts after the Act of Union, and at that period, and for many years later, what are now the Dominions, Commonwealths, and so on, under various designations, but generically Dominions, were merely colonies. I took the view strongly in the Provisional Parliament that any terminology, any phrases, or anything in any Article of the Constitution that seemed to accept for Ireland the history of the rise from a colony into a State should be reprobated and repudiated by us. But once those colonies grew into the higher status the Judicial Committee of the Privy Council—that is really, as it is technically known, the King in Council—became the court of final appeal for them. Therefore there were, and there are, two courts of final appeal existing side by side in England. By that I mean that they are located in England; they exercise their functions in London. Deputy Johnson, and others who were members of the Provisional Government——

Not the Government.

Members of the Provisional Parliament. I acquit him of any guilt—if he considers it guilt—in that respect. He will remember that at that time a Deputy in this House incautiously, and as I believed and believe, unwisely, adopted what was then the favourite idea of Lord Haldane, and that was, inasmuch as the greater weight of machinery, experience and judicial authority was in the House of Lords and that as the Judicial Committee of the Privy Council was frequently weakened by the necessity to withdraw members from it to make a quorum, so to speak, in the House of Lords as a Court of Appeal, the duality should be abolished and that in room of both should be set up a great Imperial Court of Appeal. I think that that is now in Deputy Cooper's mind as a proposal. Those of us who have a national view and look forward to a greater growth are not disposed to advocate further links of Empire and an Imperial Court. In that view we are absolutely supported by the newer, later, healthier opinion that has developed in Australia, in Canada, and in South Africa. Deputy Cooper used an expression which seemed to imply that he was under the impression that the best opinion, that is, of the most representative men, in these three Dominions that I mention, is in favour of an Imperial Court, but declarations have been repeatedly made in recent years all the other way. One of the planks in the platform of the Labour Party of Australia was "No appeal to the Privy Council."

We are in a rather difficult position on this matter, if I may labour it further. Deputy Johnson quoted Article 1 of the Treaty. Article 2 declares that the relation of Ireland— the Free State as it is now—to the Imperial Government and the Imperial Parliament should be that of Canada, and should be governed by the law, practice and constitutional usage of Canada. Our Article 66 in point of expression is slightly worse than the Article in the case of Canada that refers to appeals. There is no mention in the Canadian Constitution of the preservation of a right. There is simply the reservation of the prerogative. That was the difficulty which faced those who had to—shall I call it—submit the proposed Constitution of the Free State in London to analysis and criticism, and who were obliged to accept a Constitution which would be declared inside the terms of the Treaty. The King's prerogative survived. That is to say, though the King's prerogative had become the powers of Parliament by an Act—I am not sure about the date of it; I have faint recollections of it being about the middle of the nineteenth century—the King's prerogative was preserved, and it would have been impossible, as Deputy Redmond, a lawyer, is fully aware, to have put words into our Constitution which would abolish the prerogative; there would have been no Free State Agreement Act passed in the British legislature to ratify the Treaty. Deputy Redmond now says that words ought to have been put in. Well, I was one of those who, at the time, were most anxious to get the last ounce out of the Treaty as regards the character of the Constitution, but I was assured, and I accepted the assurances, the very assurances repeated by the Minister for Justice this evening, that the situation was quite safe, that though the words reserving the prerogative had to appear in Article 66, in point of practice, that is to say, in actual fact, these appeals would not occur, because special leave would have to be applied for as a condition precedent, and that special leave would rarely, if at all, be given.

That was the situation, and personally I am not going to blame any Minister or anyone connected with the Ministers who accepted those assurances at that time, reposing faith in them, and left the Article as it is. It is easy to be wise after the event, but Deputy Redmond is exceedingly innocent if he thinks it is wrong at any time to repose confidence in assurances of the special type described in the specific way that these were described by the Minister for Justice just now. We have the experience of personal and verbal assurances being given to other representatives, representatives of another Government, and carried out to the letter in spite of restrictions and limitations to the contrary in other instruments. In dealing with the power that the Ministers negotiating, if I may call it so, the Constitution where dealing with, written documents, as it has been proved in the sequel, were of just the same value as verbal agreements, and in view of that I am not going to attack those who accepted verbal agreements. But now what is the situation? Suppose leave having been granted, to carry this case before the Privy Council, the Privy Council proceed to deal with it, and suppose they are not interfered with by any Act such as this; they reverse the decision of our Supreme Couret. Then, a matter which is wholly domestic, namely, the regulation of land tenure and the devolution of possessions, and what authority shall collect rents and so on—this purely domestic matter is to be decided for us with final adjudicative authority by an extraneous and external court. What becomes of our epithet "Free State," of our epithet "free"? There are two ways easily thinkable. One is, as has been suggested, to alter our Constitution. Very well. That takes time. That will take a considerable amount of time. We have not been so very successful——

The last time.

We have not been so very successful in these negotiations of late days. Shall we succeed in getting the Constitution altered to the effect of negativing altogether the King's prerogative? Why, that is granting a Republic. It is dissolving the whole Empire straight away. Is that likely to be done at the instance even of the Ministers who have developed such a spirit of fraternity and such a spirit of good comradeship in London? I think not. I do hope, I may say in passing, that the Committee that has been set up to revise the Constitution will make it a better one, but I do know that it would be impossible, while the Free State remains a Dominion in the British Commonwealth of Nations, to have Ireland inside that, negativing the King's prerogative at the same time. These would be contradictory positions, but meanwhile the danger threatens us, and the way to stop it immediately is clear. I regard it as an effort to stop a leak. It is unthinkable that the Judicial Committee of the Privy Council, in face of the declaration of the Irish Legislature that the law on this point is as declared here in this measure, would proceed to declare that it is not. It should have to deny the rights of this Legislature to make a retrospective interpretation. That would be to cut at the roots of our autonomy.

The great test after all of liberty, the great test whether a particular community has risen to the particular stature that it is a State, is: "Does it create its own Judicature? Does it appoint its own judges and do they, without interference, interpret the law?" I am sorry to differ with Deputy Johnson on this point, but I do think, with all respect, that he has not adverted to the true aspect of the position. He looks upon this—and another Deputy used similar language—as if we were doing a hurt to someone. What we are really doing is: we are shutting our eyes to the merits of the case as an individual case, and we are looking merely at the situation in its broad character, to wit, that here is a case decided in a certain fashion—it does not matter what the fashion is—in the court of first instance, decided in the same way by our Supreme Court, that we are going to stand over our Supreme Court, and that we are going to declare that the law is as the Supreme Court has declared it to be. We are not considering the merits of the case. If we were considering the merits of the case and, in virtue of that, reaching the result that we would now declare the law to be so and so, we should be usurping the functions of the law courts and Deputy Johnson would be unquestionably right, but I submit that is not what we are doing. We are simply taking note of the fact, I repeat, that the Supreme Court has declared that such and such is the proper interpretation—in other words, that the law is as it interprets it, and we are taking our stand behind the Supreme Court and saying that the Supreme Court has declared the law as we meant it to be.

That, I hold strongly, closes the door in the face of the Judicial Committee of the Privy Council. They cannot proceed to consider the matter and declare that the law is otherwise without doing the very same thing through the instrumentality of a judicial position that would be done by landing an invading force here and declaring war. It is really a withdrawal from us of the entire status we got through the Treaty. That status has been already diminished, I contend, but, to keep in order, I am not going to allude further to that. At any rate we are not a Dominion; we are an ancient nation curtailed to twenty-six counties, but with the legal and constitutional status in the community of Nations that the other Dominions have. I should not, of course, have said the other Dominions. It is a contradiction of my present argument, but it is a form of speech into which one drops naturally because it is a shorthand way of speaking of the position of the Saorstát, as being one of that Community of Nations and having the same constitutional status.

I do not at all suggest that our Article 66 would not be better if it read as the Act of Edward VII., Chapter 9, Section 106, reads. But then we must take the facts as we find them. Our Constitution does not contain these words. It contains a form of words which, unhappily, put us in a somewhat worse position than Canada is in, except—and it is well not to overlook it— that in Canada it is possible to appeal straight away from what is equivalent to our High Court, over the heads of the Federal Supreme Court, to the Privy Council. That is not the position in our case. The words which I have quoted and which refer to the Canadian practice and position do not speak, as our Article speaks, in a way that preserves certain rights. It is in that respect that we are in a somewhat anomalous position.

Now, we had assurances that the words of Article 66 were intended to do nothing but to preserve that prerogative which was essential to the position of having the headship of the Community of Nations forming the Commonwealth of Nations what it is. I hold that that is the fact. We must, of course, do everything that we can, by constitutional agitation and constitutional pressure, to get rid of that if we can. Meanwhile it is only practical commonsense to preserve what there is from any danger that threatens it. I do think that if the position were once reached that the Judicial Committee of the Privy Council had reversed our Supreme Court in a matter that is purely domestic, it would be an end to our position altogether. There are cases —I need not quote them—that came from South Africa, in which leave to appeal was refused only because it was so obvious that they had reference to South African affairs.

The practical trouble in respect to the Judicial Committee of the Privy Council arises, first of all, in its formation; and, secondly, out of the growth into domestic sovereignty and quasi-external sovereignty of the Dominions. First let us take it as regards its composition. In the years immediately preceding 1900, or thereabouts, it became the practice to invite distinguished judges from Australia, South Africa, and Canada to membership of the Judicial Committee of the Privy Council. The intention, as I suggested a little while ago, was eventually to make that into an Imperial Council, an Imperial Court of Appeal. That idea for the moment seems to have been dropped. The majority of the Judicial Committee of the Privy Council at the present time are British Judges. No doubt they are men of the very highest eminence. Viscount Haldane, who gives judgment chiefly, is, on all these matters that affect the inter-relations of the various erstwhile Colonies and the Imperial Government, an expert among experts. The majority of these men are experts, and Viscount Haldane is an exceptional case, because most of his work as a lawyer, when he was not lecturing as a metaphysician, was in cases of appeals before the Judicial Committee of the Privy Council. As regards the others, they have an expert knowledge of British Law.

South Africa, Australia, and Canada, like ourselves, are gradually building up Statute Books of their own, with legislation of their own, and there is in the present instance exhibited a case that has given rise to this Bill. The judges who man the Judicial Committee are unacquainted with the nature of the law; they cannot interpret the law in so far as they are not acquainted with concrete facts to which the law was applicable. All this intricacy about a particular case is not within the ordinary knowledge of Lord Haldane or his colleagues, and that is the point of Viscount Haldane's remark that, as time goes on, it will be less and less so, because each of the Dominions is developing on its own lines, and is legislating for conditions that are peculiarly its own. It would be obviously a gross encroachment on the right of control in these Dominions to interfere with the great privilege of choosing their own way of life and obedience, if a tribunal sitting in London— the members of which were practically foreigners to the whole state of life and the quality of mind and circumstances in those countries—were to over-ride the decisions in those other countries—decisions arrived at by men who were peculiarly and intimately acquainted with the circumstances which the legislation to be interpreted was framed to meet.

It is altogether, to my mind, irrelevant that we do not like, and that we never liked, anything in our Constitution that savours of subserviency. The real issue to which we ought to confine ourselves is whether or not a danger threatens us and whether that danger can be staved off by passing this measure. I believe it can, and it is because I take that view of it that I support the Bill.

I want to say that in regard to this matter I have no interest in the case of Lynham and Butler, nor do I think that any Deputy here has. I have no interest in the case except in so far as the case is one which deals with the coming into operation of certain provisions of the Land Act. We think that that should be a matter that should be dealt with finally by our own courts. It is a matter for which there can be no excuse for the intervention of a court like the Judicial Committee of the Privy Council. Whether they gave leave to appeal in a mood of carelessness or sleepiness, or whether they gave leave to appeal by way of deliberate encroachment upon us, I do not know. The difficulty is one that can be easily met by the methods proposed. It is not a matter that can be easily dealt with in any other way. It is easy to say "Amend the Constitution." It is very doubtful whether an amendment of the Constitution would have any effect, because the Article of the Treaty which says that the relationship of the Free State to the Imperial Government shall be the relationship of the Dominion of Canada would probably preserve whatever jurisdiction there is under the Judicial Committee of the Privy Council.

I am extremely doubtful whether this matter of encroachment, if it is a deliberate encroachment, by the Privy Council can be dealt with by an amendment of the Constitution. In any case I think it would not be any great improvement to have the provision of the South African Constitution with the reservation of Bills for the significance of the King's pleasure. So far as we are concerned, all our Bills are taken to the Governor-General and they are signed by him on submission. I certainly do not want to have an arrangement whereby a Bill is submitted to the Governor-General and he says: "I must reserve this for the significance of his Majesty's pleasure." I would prefer to deal with the difficulty even in this somewhat oblique way.

Somebody suggested there might be repeated appeals, that other cases which we would all regard as being cases that the Judicial Committee of the Privy Council should not admit to hearing might be admitted and that we might frequently be up against this difficulty. I do not believe that is so. I believe this Bill will suffice as an intimation to the Privy Council that cases like this—at any rate cases that deal with domestic issues—should not be heard. If the Privy Council were to admit those cases to hearing it would be quite easy for us to devise a form of legislation that would enable the Executive Council, by order, to declare the law to be whatever our Supreme-Court had found it to be.

Do that now.

Why not do it now?

There is no more objection to what we are proposing now than there is to that. It would certainly have the appearance of giving very great power to the Executive Council, and it could only be justified by the fact that it would prevent us coming repeatedly to the Dáil. In this way we do preserve our Supreme Court from being degraded to the position of being practically a minor court. I believe if this appeal were allowed to go through, whether the Judicial Committee confirmed the judgment of the Supreme Court or reversed it, the Supreme Court would be degraded by having a case of this character reheard. I think, as Deputy Magennis put it, it is not a case of Lynham versus Butler, but it is simply a case of saying that as far as we are concerned, and as far as we can possibly make it so, our Supreme Court is the court of final appeal. If it were said that there was any injustice to the individual, that the individual has suffered loss and has a case, I would be prepared to consider that in another way.

I think there is general agreement as to the undesirability of appeals lying from the Supreme Court of the Saorstát to the Privy Council. I desire to be associated with that sentiment. There is, however, very great conflict as to ways and means. I do not propose to enter much into the merits of the case that has given rise to the Bill. The point I make is whether the Bill secures the desired object. Article 66 of the Constitution gives a sort of qualified supremacy to the Saorstát Supreme Court. As Deputy Redmond very rightly pointed out, that Article provides that "nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave." The Constitution is basic law, and any Act that is passed subsequent to the enactment of the Constitution and that is in any respect repugnant to the Constitution, is null and void in so far as it is repugnant.

We have this right to appeal in the Constitution and evidently it is being maintained. This Bill does not deny the right of a person to appeal who feels aggrieved by a decision of the Supreme Court. But the question then arises: What will the function of the Privy Council be: will it be merely one of interpretation—interpreting the Land Act of 1923 according to the rigid letter contained therein—or whether in the wider sense the whole equity of the case should be gone into? That is a question some answer should be given to. No doubt the Government can supply it. If it is a matter merely of interpretation, the Bill so far as it goes safeguards our position; but if the matter is one of equity, if the whole position is reviewed and the equity of the case considered, in my opinion this Bill fails absolutely in its aim to secure the supremacy of the courts of the Saorstát.

Deputy Redmond put a hypothetical case. He said there was a fifty-fifty chance that the Privy Council might decide in favour of the plaintiff. What then is the position? I am afraid a very serious constitutional crisis, perhaps very strained relations with the Empire itself might arise.

Chance that.

It is a dangerous thing to chance. No doubt it is the policy of the Government to resist the power of a court extraneous to our jurisdiction to give an award here and not to give its sanction to that award. That is a very serious position and I do not think it would be met by passing this Bill. The whole question involves an amendment of the Constitution. I am heartily with Deputy Johnson and Deputy Redmond when they insist that words of limitation must be put in the Constitution definitely limiting cases if we agree to allow any appeal at all, which is problematical; perhaps I may say that it is almost an improbability that we would consent to any case going before the Judicial Committee. If an appeal is made it must be under the Constitution.

As I have already pointed out, any Act of the Oireachtas that is in conflict with the Constitution is null and void. Can it be denied in this case, when a man has the right to appeal, that that appeal must be regarded as valid, and we have to put up with the consequences? Any citizen who is dissatisfied with our courts has a right to approach the Judicial Committee of the Privy Council. Another question has struck me—that is, whether, in regard to this question arising out of the Land Act, we have not got the law in our favour. I looked up the Land Law Act of 1881, and in that there was the Land Commission set up. I referred, particularly, to Sections 47 and 48 of that Act. A person could first go before the Civil Court, and if dissatisfied with the decision arrived at there he could apply to the Land Commission. The Land Commission could hear the case itself, and its determination was final. If it so wished it could transfer the case to the jurisdiction of the High Court, and it is specifically enacted in the Act of 1881 that the decision of that court shall be final and conclusive. In other words, there was no appeal whatsoever to the House of Lords, and, in my opinion, I doubt if this provision has been repealed. I am not aware that any specific repealing enactment was introduced. Certainly it was not in this House, and I doubt if it were down to 1922. Therefore, is it not curious to ask us to re-enact this Land Act when we have already got a provision that is absolute? It was the Judicial Commissioner of the Land Commission who dealt with the question, and it is extraordinary to find the right of appeal even from his decision, if we have any regard to the previous Land Act of 1881.

The appeal was not from the decision of Mr. Justice Wylie, because he decided that this came under the terms of the Land Act, namely, that this was tenanted land, and not land for convenience. It had nothing to do with Mr. Justice Wylie's decision.

Do I understand that the case was not determined by the Land Commission?

Has the Deputy read the memorandum?

If Mr. Justice Wylie decided that it did not come within the Act of 1923, there would have been no subsequent proceedings.

No; this is somewhat irrelevant. In my opinion the Government ought to withdraw this Act. In a sense it is limiting their own powers. The Land Commission have certain discretionary powers as to who shall be tenants and who shall not. In other words, it is quite possible that you could hardly draw a very rigid definition. You must always have regard to equity. It enters into every case, and you must have power to exercise that principle. You have it with regard to this section:

"tenanted land did not and shall not cease to be tenanted land by reason of the termination or expiration of the tenancy or the happening of any other event after the passing of the Principal Act whether such event happened before or happens after the passing of this Act;"

I could imagine widows, who had set their land even under a lease or during the minority of their children, persons who were farmers and whose children would become farmers, being debarred from obtaining possession of their holdings. That is a serious position, which we would be reluctant to acquiesce in. If you include those words, I am afraid you are tying the hands of the Land Commission, not to exercise principles of equity where they are applicable. I contend it is on a specific Act we should proceed and not by the measure before us, and I see no option but to vote against it.

If private business is due at seven, I wonder would there be agreement for me to conclude the debate now?

Are there any other Deputies to speak now? If not, the Minister can conclude. It is proposed to finish the debate now and then to take private members' business afterwards. That is agreed.

The course of the discussion is not very easy to deal with in a brief speech, because you had Deputies taking a line of qualified opposition to the Bill for very different reasons. Deputy Johnson, for instance, took his ground on the general statement that there is, in fact, no right of appeal to the Judicial Committee of the Privy Council from the Irish Free State. I would like to believe him, but I do not find his arguments entirely convincing. He said no such right existed at the time of the establishment of the Irish Free State and that Article 66 merely leaves unimpaired whatever right existed at that date. Deputy Johnson says there was no right at that date and there is, therefore, no right now, and we should allow people, foolish enough to do that, to go ahead with their petitions to the Judicial Committee of the Privy Council. We should allow the Privy Council to give judgment there, wise or foolish, right or wrong, but these judgments should be of no effect in this State and should be ignored by the Government. That is an interesting point of view——

——held by very eminent men.

No doubt other eminent men would be found to argue to the contrary, basing their arguments on particular Articles of the Treaty, and so on. Deputy Redmond said that he is whole-heartedly with us in opposition to the idea that finality should lie elsewhere than with the Supreme Court here, but he disapproves of our methods of dealing with this particular position. He is inclined to dwell on the provisions of Section 106 of the South African Constitution and the corresponding provision in the Constitution of the Commonwealth of Australia. Both those sections were the subject of a very acute controversy between those authorised to speak for Australia and South Africa and the representatives of the British Government of the day. You had long discussions, when the Australian Act was being drafted and in course of preparation for introduction, between Mr. Joseph Chamberlain, who was then Secretary for the Colonies, and the Australian delegates, in the course of which you had some rather stinging exchanges. When the argument was put forward that this appeal was a bond and a link and had some sentimental value, the Australian delegates replied that when the Australian fights for the Empire he is inspired by sentiments of consciousness of kinship and of common blood, but no patriotism was ever inspired or sustained by any thought of the Privy Council. Finally, there was no agreement between the Australian delegates and the British Government, and Mr. Chamberlain went ahead and introduced a section after his own heart which he modified somewhat in face of the criticism, not from the Australian delegates, but from the British Parliament, and that section stands as quoted by Deputy Redmond. Personally I do not regard either Section 106 of the South African Act or the corresponding section in the Australian Act as any improvement on Article 66 of our Constitution. I would prefer Article 66 to either of these corresponding Articles in the Constitutions of South Africa and Australia.

May I ask the Minister whether I am right in saying that the decision in the Whittaker case, which he quoted, was largely, if not entirely, based on Article 106 of the South African Constitution?

There was reference to particular portions of the Article. The Deputy knows that there has been no such legislation as that envisaged in the Article.

It is a sword of Damocles hanging over them.

There was no such legislation, possibly because of the provision with regard to reservations. They may have seen little value in getting rid of one prerogative and reviving another.

The provisions of Article 41 deal with reservations in respect to any Bill of ours.

In Article 66 there is no reference to legislation limiting these rights. I would not value any legislation limiting the right of appeal, if attached to it you have what is attached to Section 106 of the South African Act and the corresponding section in the Australian Act. I am glad that the Deputy referred to Article 41 because I intended to refer to it. You have written solidly into that Article a fiction. The British Constitution is, as we know, a bundle of fictions, very interesting. Historically they have their place in the growth and development of that Constitution, and fictions of that kind seem to accord with the genius of the British people. Certain of these fictions arose when our Constitution was under review, and into Article 41 you have this solemn fiction written: "So soon as any Bill shall have been passed or deemed to have been passed by both Houses, the Executive Council shall present the same to the representative of the Crown for the signification by him and so forth." Then it goes on to say: "Provided that the representative of the Crown shall in the withholding of such assent to, or the reservation of, any Bill, act in accordance with the law, practice and constitutional usage governing the like withholding of assent or reservation in the Dominion of Canada." I know, Deputies know, and the British Government know, that any attempt to give life to that section would raise a constitutional issue of the first magnitude which would, in all probability, end in the dissolution of the British Commonwealth of Nations.

Would not the same apply to the reservations in Section 106 of the South African Act?

A reservation means that there is some little cloak or shred of reality given by the fact that the assent is not attached by the Governor-General on the advice of the Cabinet. In much the same way and in the same spirit this question, which Article 66 deals with, arose, and it is understood that, as in Article 41, there could be a very wide gap between a thing written in ink on paper and a thing that would be the fact, practice, and usage. Definite assurances were given as to what the fact, practice and usage would be. Those assurances were that this appeal to the Judicial Committee of the Privy Council would be, at least, as restricted in the case of the Irish Free State as in the case of the other unitary Dominion, South Africa. There is little use in reiterating what I have said, namely, that it is the view, quite strongly and definitely, of the Executive Council that those guarantees and assurances have been departed from. They were not departed from in 1923, and we do not take quite the view that they have been departed from in the Wekes and Cochrane case. We cannot feel that had the case of Lynham and Butler originated in South Africa it would have been admitted.

Because of Section 106.

There is criticism of the method which we are adopting to meet this rather special situation. Deputy Redmond volleyed at us that this was legislationad hoc, legislation in personam, and that it was verging on legislation in terrorem. That is very shocking, but I submit it is very necessary if there is to be any barrier against this process of erosion of our constitutional position. There is a real danger arising from a variety of factors, arising from the geographical propinquity of the two countries, arising from the outlook of individuals who have been unable, or unwilling, to adjust their mental focus to the altered Constitution, and we would get back gradually and not perhaps too slowly to the appeal, as of course in other legislation in which it could be said that an important point had arisen which might arise again. It was not in that spirit that our Constitution was negotiated. It was not in that spirit that Article 66 was agreed on as something which would be submitted by us to the Provisional Parliament. It was in a very definitely different spirit— that only great issues, transcending entirely the limits of our area of jurisdiction, would become the subject of any such appeal. We have to defend ourselves with the methods that are available to us. This is a method. The Dáil and the Seanad are invited to say that the law in this matter is as it was found to be by the Supreme Court. The King will be invited to share in that legislation and later when he, in Council, approaches the case of Lynham v. Butler he will find that that issue has been disposed of. As I say, it is a protest, the strongest within our power at the moment—a constitutional protest which we hope will be effective and the necessity for which one profoundly hopes will not arise again, because it ought to be taken as laid down in the dictum of Lord Haldane that these matters must be more and more or less and less as the Dominion itself chooses. We ought not even to appear to leave it in doubt as to what our will and pleasure is on this particular matter, and that is why I hope that people will lay aside subtle distinctions, finessing of one kind or another, and make the majority for this Bill as large as it can be made. (Deputies: “Hear, hear.”) It is no petty issue; it is no party issue; it is not, as a Deputy who has not taken his place in this House suggested the other day, an electioneering stunt. It is a matter of doing something which should be subject of concern to all parties (“Hear, hear”), protecting the constitutional position which has been won for the people of this State.

Within the limits of the Treaty, within the four corners of the Treaty, there is the fullest and most complete legislative independence. Within the four corners of the Treaty, there is the fullest executive and administrative independence. No one does either of those things; no one attempts to dictate to the Oireachtas as to the legislation they should or should not pass; no one attempts to go between the Executive Council and the civil servant and say what things should or should not be done in administration. There is, therefore, as I say, legislative and executive independence. But, to whatever extent this appeal to the Judicial Committee of the Privy Council becomes a fact and a practice, as distinct from a fiction and a theory, there is an absence of judicial independence.

This appeal is an anachronism. It is something that has outlived its day. It is a remnant of the time when the Government of Britain and the Parliament of Britain did, in fact, purport to exercise some real governmental authority over the countries that have since achieved co-equal status with Britain. It must and will go. But, lest we here should be open to the accusation from the other State members of the British Commonwealth of Nations that we allowed an erosion, that we allowed something that was obsolescent, rapidly obsolescent, to become a fact and a reality and to regain strength because of our propinquity, or because of the outlook of individuals here or in England, whose outlook has not changed with the Treaty, we must pass this Bill. It should not lie in the mouth of a Canadian, or a South African or an Australian to say to us that when the whole trend was towards the disappearance of this anomaly towards the scrapping of this outworn appeal, we allowed it to take on a freshness, a vigour and a reality which it had lost or was rapidly losing.

Just as we have legislative and executive independence, judicial independence must come. It will come the quicker for the passing of this Bill; it will come the slower for the omission to pass this Bill, or perhaps for the passing of this Bill by doubtful majorities, because, then, this domestic issue will have gone as an open matter to the Judicial Committee of the Privy Council to be there decided. It should not so go. When that issue comes to fall for consideration by that august body, there should be one decision, and only one decision, open to them: that of upholding the decision of the two courts here. This is not a question of Lynham and Butler; it is a question of X and Y. We know nothing and care nothing about either of the parties to this litigation. An issue has been raised which transcends the interest of either Lynham or Butler and they must abide by the necessary developments of the raising of that issue, the one no less or no more than the other.

All these things that Deputy Redmond has spoken of are good or bad, according to the circumstances. Retrospective legislation, legislationad hoc or in personam or in terrorem is all good or bad viewed in its perspective, so to speak, viewed in its setting. I submit that you have here a setting which demands the taking of this very exceptional step, which calls for the intervention of the Oireachtas to say that the law is and has been as it has been found to be by two courts here. So that when the Judicial Committee of the Privy Council comes to consider the interesting question raised by Lynham v. Butler they will find that there is no question to consider. Definitely and frankly, that is the position that we wish, that we are making for.

I have given very little time to a discussion of the law point so clearly set out in the memorandum because a bigger issue than the law point has been raised and I prefer to keep my own mind and to keep the mind of Deputies concentrated on that issue. When this case arose and when the piloting of this Bill fell to me there came back to me through the political fogs of years a phrase from the lectures in Constitutional Law which I attended a good many years ago or what seems a good many years ago. I remember the phrase, that it has been said and well said that in England the prerogatives of the Crown had become the privileges of the people in England. That is perfectly and absolutely true. There is no surviving prerogative to-day which is personal to the Sovereign. One by one they have passed into the control of the people or their responsible representatives, who answer to them politically. But if the prerogatives of the Crown have become the privileges of the people in England, what have they become in so far as they survive in relation to the people of Australia, of Canada, of South Africa, and the people of the Irish Free State to-day? Have you then this position: that the prerogatives of the Crown have become the privileges of the English people and their Government in relation to the people and the Governments of the other States, members of the British Commonwealth of Nations? In so far as they survive—and we know to what a very limited extent they have survived—it would appear that that is so, because these prerogatives of the Crown are not exercised by the Sovereign. We have seen that the Judicial Committee of the Privy Council is in fact a court of law—a court of appeal. It is not the direct and personal intervention of the Sovereign to inquire into some matter arising out of the administration of justice. That is the fiction as distinct from the fact.

Lynham and Butler, strangely enough, is the first example that I know; the first thing I can put my finger on representing the intervention by any person outside of this State with the affairs of this State since it was established. That is its importance; that is its significance, and that is why it has been necessary to scan it very closely and to inquire whether it was a justifiable intervention, having regard to the agreements and understandings that were arrived at when our Constitution was under review. I hold that it is not a justifiable intervention; that it is not in accord with the understandings and agreements arrived at in 1922; that it is not in accord with the dictum of 1923 by Viscount Haldane when three petitions from the Irish Free State were rejected; that it is a departure, and a dangerous departure; that it represents an erosion or an attempted erosion of our constitutional position and must be resisted as such.

The Minister spoke of this as being a method of dealing with the situation that has arisen. Could he say if the Government and their legal advisers, having examined other possible methods of dealing with the situation, have come to the conclusion that this is the only method?

I do not want to mislead the Deputy on that. This is a method that meets the situation existinghic et nunc— that means, the immediate danger. Whether steps can be devised to deal more satisfactorily with the general question which this case raises is another matter and one on which I would not like to attempt an immediate reply.

In regard to the specific case, may we take it that the Minister and his advisers have examined alternative methods besides this method of retrospective legislation of dealing with this case; that all the other propositions have been examined in the light of the views now expressed; and that the conclusion is that this is the best and most effective method of dealing with the case.

Question put and agreed to.
Committee Stage ordered for Wednesday, February 11th.
The Dáil went into Committee.