It is, I think, proper in introducing this Bill for the consideration of the Seanad, that I should endeavour to present it in its setting and in its perspective, and to that end it will be necessary for me to ask the attention of Senators for a certain amount of matter which might be considered historical. It is necessary in the case of a Bill of this kind to trace, very carefully, for the information of Senators, its origin, and to define quite clearly its purpose. The origin of the Bill may be said to lie as far back as 1922, when the Constitution of this State was the subject of joint consideration between those representing the Provisional Government and members of the British Government. The Constitution was the subject of joint consideration because the Constitution grew from, and was based upon, the Treaty to which there were two parties. And it was the right and the interest of the British Government to satisfy themselves that this Constitution originated from the Treaty and conformed with the Treaty.
Together with the late President Griffith, and the present Chief Justice, I went to London in June, 1922, to discuss with members of the British Government the draft Constitution of this State, and in the course of the discussion there was one article of the Constitution amongst others that came under review. That Article 66 of the Constitution reads as follows:—
"The Supreme Court of the Irish Free State (Saorstát Eireann) shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall, in all cases, be final and conclusive and shall not be reviewed or be capable of being reviewed by any other court, tribunal or authority whatsoever: 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 in Council, or the right of his Majesty to grant such leave."
That article of the Constitution is clear in its terms. It provides that so far as we could effect it the decision of the Supreme Court of this State should be final and not be subject to review by any other court, tribunal or authority whatsoever, and then came the express reservation which was insisted on—what is known as the King's prerogative.
The King's prerogative in this matter is one of the fictions of the British Constitution, which, as we know, is a bundle of fictions, very interesting historically. All of them had their place in the growth and development of that Constitution, and one of the fictions is that the King, or rather the Sovereign, King or Queen, is the very fount and origin of justice. And the Judicial Committee of the Privy Council, which is in fact a court, is, in the language of the fiction, an intervention of the Sovereign to inquire into some matter arising out of the administration of justice. Now it was insisted—and I think they were entitled to insist—by the British Ministers that there should be written into our Constitution an expression saving the express reservation of this prerogative. It exists in the Constitution of the Dominions to which our Constitution is analogous, and must be analogous, within the Treaty. In that connection I would like to make one comment. You will not find the actual Constitution of Canada in the British North America Act, 1867; you will not find the actual Constitution of South Africa in the South African Act, and you will not, in fact, find the actual Constitution of Australia in the Australian Commonwealth Act.
You will find there the written words, the language of the Act which purports to enshrine their Constitution. But there is this interesting fact, that just as the British Constitution is the growth of precedent, practice, usage, evolution, so in the case of the Dominions, no sooner was an attempt made to set down with ink on paper the limits of their Constitution than they began to grow and evolve and depart widely and radically from the written Constitution—that which was set down in the legislation. Canada has vastly outgrown the British North American Act of 1867. There is small resemblance to-day between the law and the fact in respect of the Constitution of Canada, and scarcely as much between the law and the fact in South Africa and Australia. I stress these things because it is necessary to stress them, and because they arose very definitely when it was suggested to the Irish Ministers in 1922 that they should accept, written into their Constitution, the provisions which exist and are written into the Constitutions of the Dominions. Our attitude at the time was that we were not over-much worried about fictions, provided that they remained fictions, and we were not over-much worried about the words written with ink on paper, provided that the usage and the practice would be satisfactory, and provided that it was clear that it was not the law as distinct from the fact in the other Dominions that would be extended towards this Irish Free State that was to come into existence. That arose on many Articles of the Constitution.
It is unnecessary to direct the attention of Senators specifically to all the articles on which that point arose, but it arose also in relation to Article 66. This express reservation of the King's prerogative with ink on paper was one thing, but what the usage would be and what the practice would be was another thing. Frankly, we were more concerned with what the usage and practice would be than with the words that were to be written with ink on paper, and it was with regard to the usage and practice that we sought the guarantees, undertakings and assurances, which we did, in fact, receive. This interesting remnant of a prerogative being under consideration, we were concerned to ask to what extent will it be a reality, to what extent will appeals be brought and admitted in the matter of litigation arising out of the Free State, and we raised the point that the proper analogy would be not the analogy of the non-unitary States, like Canada and Australia, but the analogy of South Africa, the unitary Dominion, a state complete within itself, a non-composite State. Canada and Australia may have, perhaps, a special need for an over-riding tribunal.
Litigation may arise as between one State and another, or as between the State and the central Government, and it may be desirable that in litigation of that kind an appeal should lie outside the actual jurisdiction of the Dominion. It is not so in South Africa, and it is not so in the Irish Free State. We received, then, in the month of June, 1922, from the British Ministers, amongst whom was included the Lord Chancellor of the day, very definite assurances and undertakings that the usage and the practice in this matter in relation to the Irish Free State would be the usage and practice in relation to South Africa, and, to give us a proper conception of the proportions of the matter, it was pointed out that since the Union of South Africa was established not more than seven or eight appeals had been admitted to and heard by the Judicial Committee of the Privy Council. It was on that basis and on that understanding that Article 66 of the Constitution was written in. Elsewhere, I was asked: "Would it not be possible to insert in your Constitution the undertakings and assurances that were given"? It was not possible and not desirable.
Once this prerogative had to be accepted and had to be admitted at all, implicit in that there was a discretion, and what we were most concerned about was the manner in which that discretion would be exercised. It was in respect to that, that the undertakings of which I speak were given. On the general question of appeals to the Judicial Committee of the Privy Council we have our own view, a view which, within the counsels of the British Commonwealth, we will continue to urge. For the moment I simply ask the concurrence of this House with the view of the Dáil that this particular case of Lynham and Butler is one that ought not to have been admitted by the Judicial Committee of the Privy Council; that its admittance to that tribunal is a departure from the undertakings given Irish Ministers in 1922, as a result of which agreement was reached on Article 66 of our Constitution.
It might be, perhaps, of interest to Senators if I read two short extracts from people who are considered to be authorities on the Constitution of this peculiar political entity, now known as the British Commonwealth of Nations. They are writers of eminence, and in reading extracts from their works I simply think it right to remind Senators that the writings and statements of professors, however eminent as constitutional authorities, are not always accepted or recognised by politicians, and that it does happen that their forecasts are sometimes rather long in fulfilment. For what they are worth I will read an extract from "The British Commonwealth of Nations" (Duncan Hall). Referring to the Imperial Conference of 1918, he writes:
"The opinions expressed by the Dominion statesmen in the debate of 1918 showed that this feeling against appeals to an external court is now stronger than ever in the Dominions. Mr. Hughes admitted there was no demand in Australia for an Imperial Court of Appeal. ‘But,' he said, ‘one thing there is a strong demand for, and if a vote on it can be taken it would be carried overwhelmingly ...that there should be no appeal to the Privy Council or to any Imperial Court of Appeal at all.' Sir Robert Borden expressed the view that the tendency in Canada ‘will be to restrict appeals to the Privy Council rather than to increase them,' and one of his colleagues pointed out that there was a growing opinion in Canada ‘that our own courts should be the final authority.' The only representative at the Conference that expressed himself as thoroughly satisfied with the working of the system was the representative of India. The only conclusion which it seems safe to draw from this evidence is that the Dominions will not consent to the creation of an Imperial Court of Appeal, and that Dominion appeals to the Judicial Committee are likely before long to cease altogether. There are weighty reasons for believing such a development would be an advantage rather than a disaster."
The extract from Professor Berriedale Keith is as follows:—
"War Government in the Dominions.—Fresh importance has been attached by the development of the status of the Dominions to the question of the retention of the right to appeal from Dominion Courts to the Judicial Committee of the Privy Council. That body itself has shown no anxiety to extend its jurisdiction. It has, on the contrary, affirmed the principle that only on cases of the highest importance will it hear appeals from the Union of South Africa, so that for practical purposes the appeal from the Union is a matter of mere theoretic interest. It has similarly declined to exercise its technically valued right to hear criminal appeals from Canada, even in so interesting a case as that of the Winnipeg rioters, whose condemnation raised bitter political feelings in the Dominion. It has also shown great reluctance to grant leave to appeal in any Australian case not of the first importance. It may, therefore, be held that the jurisdiction, though still in active exercise, and though still of the highest importance as regards cases on the Canadian Constitution, is in process of obsolescence, and that the way is paved for its extinction unless steps are taken to revise the basis on which it rests."
These extracts may be discounted by some Senators as merely the opinions of professors. I have heard them so discounted. I will ask Senators therefore to pass with me to the year 1923, when the first petitions for leave to appeal from the Irish Free State came before the Judicial Committee of the Privy Council. Before entering on the hearing of these appeals, Viscount Haldane, who presided, made a general statement, a statement of what he regarded as the principle that ought to be applied in relation to petitions of that kind emanating from the Irish Free State. He at least is not a professor. He had been a Lord Chancellor and subsequent to 1923 was again Lord Chancellor. His word on the matter would, perhaps, in the mind of many Senators have more weight than that of the eminent professors I have quoted. He was not Lord Chancellor in 1923, but the Lord Chancellor in 1923 who selected the Court which would hear these petitions from the Irish Free State was the same Lord Chancellor as in 1922 when the assurances and undertakings were given to the members of the Irish Provisional Government. It is interesting to note that the statement made by Lord Haldane in the following year conforms very closely to the general spirit in which Article 66 was finally agreed upon between members of the two Governments. In the course of his statement, which was rather lengthy, Lord Haldane spoke as follows:—
"In Ireland, under the Constitution Act, by Section 66, the prerogative is saved and the prerogative, therefore, exists in Ireland just as it does in Canada, South Africa, India, and right through the Empire, with the single exception that I have mentioned, that it is modified in the case of the Commonwealth of Australia in reference to, but only in reference to, constitutional disputes in Australia. That being so, the Sovereign retains the ancient prerogative of being the supreme Tribunal of Justice. I need not observe that the growth of the Empire and the growth particularly of the Dominions has led to very substantial restriction of the exercise of the prerogative by the Sovereign on the advice of the judicial committee. It is obviously proper that the Dominions should more and more dispose of their own cases, and in criminal cases it has been laid down so strictly that it is only in most exceptional cases that the Sovereign is advised to intervene. 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. It is also necessary to keep a certain discretion, because, when you are dealing with the Dominions, you find that they differ very much. For instance, in States that are not Unitary States, that is to say, States within themselves, questions may arise between the Central Government and the State which, when an appeal is admitted, gives rise very readily to questions which are apparently very small, but which may involve serious consideration, and there leave to appeal is given rather freely. In Canada there are a number of cases in which leave to appeal is granted, because Canada is not a Unitary State, and because it is the desire of Canada itself that the Sovereign should retain the power of exercising his prerogative; but that does not apply to internal disputes not concerned with constitutional questions, but relating to matters of fact. There the rule against giving leave to appeal from the Supreme Court of Canada is strictly observed where no great constitutional question or question of law emerges.
"In the case of South Africa, which is a Unitary State ... the practice has become very strict. We are not at all disposed to advise the Sovereign unless there is some exceptional question, such as the magnitude of the question of law involved, or it is a question of public interest in the Dominion to give leave to appeal. It is obvious that the Dominions may differ in a certain sense among themselves. For instance, in India leave to appeal is more freely given than elsewhere, but the genesis of that is the requirements of India, and the desire of the people of India. In South Africa we take the general sense of that Dominion into account, and restrict the cases in which we advise His Majesty to give leave to appeal. It becomes with the Dominions more and more or less and less, as they please. We go upon the principles of autonomy on this question of exercising the discretion as to granting leave to appeal. It is within the Sovereign's power, but the Sovereign looking at the matter, exercises this discretion.
"We now come to Ireland. From what I have said it is obvious that it is not expedient that we should lay down too rigidly to begin with what the principles are. It will grow with the unwritten Constitution. You have got a Constitution which is partly written in Ireland, but our experience is that all unwritten Constitutions develop flesh and blood within the unwritten bones, and we have to see the sort of flesh and blood you put on as regards the question of how much you dispose completely of your own judicial questions. It may vary in different parts of the Empire, therefore we do not wish to lay down anything further than this. In the olden days the appeal to the House of Lords was as of right, as it is from Northern Ireland to-day, but the appeal to the Privy Council is not as of right. It is an appeal to the King's discretion, and it is founded on a petition that he should exercise his discretion. Well, obviously what is a matter of discretion is a very different thing from what is a matter of right and, accordingly, when you come from a new Dominion, with full Dominion status like the Irish Free State, it is not by any means as of course, even to begin with, that leave to appeal will be given. On the contrary, the Sovereign may be advised to apply the general principle of restriction to which I have alluded. That being so, we shall have to look into these petitions, one by one, and we shall bear in mind that the status of the new Irish Dominion is a status which, although it has been likened to a number of the Dominions in the Treaty Act and in the Treaty, is not strictly analogous to any one of them. For instance, it is not analogous to non-unitary Dominions. Southern Ireland is a Unitary Dominion and is analogous, therefore, to unitary Dominions like South Africa more than it is to non-unitary Dominions like Australia and Canada, that is from the point of view of justice only, because you will observe I have said no words to suggest that there is not a complete analogy established by the terms of the Constitution between Ireland and Canada for other purposes. I am only pointing out when we come to the exercise of a judicial discretion of this kind we must bear in mind the analogy of unitary dominions. I think I have now said enough to show that we shall look somewhat strictly at all applications for leave to appeal, and I think I have said enough to indicate the broad principles upon which we propose to act."
That was the statement of Lord Haldane at the Judicial Committee of the Privy Council on the 25th July, 1923, and I may add that the three petitions then before the Judicial Committee of the Privy Council were dismissed. Leave was not given to appeal in any one of them.
That brings us to the Bill. The Bill, I think, is in the hands of Senators and I hope there is also in the hands of Senators the brief explanatory memorandum issued with it when it was before the Dáil for consideration. This case of Lynham and Butler which we are concerned with in connection with this Bill, arose some little time ago. It was tried before the two courts here. It was tried before the President of the High Court, Mr. Justice Sullivan, who decided in favour of the defendant. On appeal by the plaintiff to the Supreme Court, the Supreme Court held, affirming the decision of Mr. Justice Sullivan, that the date of the passing of the Land Act, 1923 was the crucial date for determining the application of the Act to tenanted land, and that lands which, at the date of the passing of the Act, are comprised in a holding within the operation of the purchase and sale provisions of the Act, do not cease to be within these provisions by the happening of an event such as would, but for the Act, determine the tenancy before the actual vesting of the land in the Land Commission or the appointment of a day for such vesting under the provisions of the Act.
The net point in this case of Lynham and Butler is briefly stated in the concluding portion of paragraph 3 of the memorandum. It was: "That the question for determination in the case was whether, notwithstanding the fact that the holding was, at the date of the passing of the Land Act, 1923, tenanted land within the meaning of that Act, the defendant was deprived of the benefits conferred by the Act on tenants of tenanted land by the expiration of the term for which his tenancy was created before the Land Commission had fixed an ‘appointed day' for the vesting of the lands in the Land Commission." It was decided in a particular way by the High Court here and the Supreme Court here. It is not the kind of case that should have been brought or should have been admitted by the Judicial Committee of the Privy Council. I submit to Senators that it does not fulfil the conditions laid down in Lord Haldane's dictum in 1923. I submit that its admittance past the portals of the Judicial Committee of the Privy Council is a departure from the undertakings given to Irish Ministers in 1922. The date on which our Land Act becomes effective has been decided here by two courts. It may be, and it has been suggested to me, that the equities in this particular case of Lynham and Butler lie very much in one direction. That may be, but let us have a glance at the position, if the law were otherwise than it has been found to be by two of our courts.
A tenant for the lifetime of some person finds himself within the provisions of the Act. Is he to be outside the provisions of the Act, outside the scope and benefits of the Act, by the occurrence of some accidental circumstance between the passing of the Act and the appointed day in relation to his particular estate? I submit that if that were the position you would have an utterly haphazard state of affairs. The question whether a particular tenant would benefit or would not benefit by the Act might turn on such a casual, accidental circumstance as the speed with which the Land Commission managed to reach a particular estate—whether it was taken this week, next week, or the week after. If it were reached and administered one week he would benefit by the Act. Three weeks later the life might have expired, and if the law were otherwise than it was found to be by the High Court and the Supreme Court here, that accidental circumstance would be the deciding factor as to whether or not the tenant came with the provisions of the Land Act of 1923 or not.
I do not propose to devote very much time to a discussion of the net law point involved in this case of Lynham v. Butler. The Seanad no more than the Dáil can try the case of Lynham v. Butler. It is not their function to try it, nor my function to plead the particular aspect of it. But I want to stress this, that the point was a net point, was clearly before the two courts of the Free State, and was determined in the same way by both of these courts; and further, that the case is not one raising a great issue affecting large numbers of people. The case is not one raising issues which transcend the jurisdiction of this State and, consequently, the case, as I submit, is not one which, according to the undertakings given to the Provisional Government in 1922, and according to Lord Haldane's dictum a year later, should be admitted to the jurisdiction of the Judicial Committee of the Privy Council. I would like to read for the Seanad one short extract from the judgment given on the South African case of Whittaker which came before the Judicial Committee of the Privy Council by way of petition for leave to appeal. The appeal was refused, and in the course of the refusal the following occurred:—
"One cannot read Section 106 of the South African Act, 1909, 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. Even the Parliament has power to limit these appeals from South Africa. 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."
There is nothing stated here in that judgment in connection with Section 106 of the South African Act which does not apply with full force and effect to our Constitution and to Article 66 of our Constitution. So far as the intention to get rid of appeals to the King in Council is concerned, except such as are in the strict exercise of the prerogative of his Majesty, there is ample evidence of that in Article 66 of our Constitution. The further point is made as to the power of the South African Parliament to limit the prerogative applies also to our Constitution. For by Section 50 there is express power to amend the Constitution by ordinary legislation for eight years. This Bill is a declaratory Bill. It is a protest, the only effective protest which seems open to us. It declares the state of the law. It declares the law to be as it has been found to be by the High Court and the Supreme Court of this land, and the appeal is introduced to the end that when his Majesty in Council comes to consider the case of Lynham v. Butler there will be but one course open, the course of confirming and endorsing the judgment of the High Court and the Supreme Court of this State.
I do not want to mislead the Senators as to the purpose of the Bill. It is not a Bill for the removal of doubts, there being in our view, no doubts. It is a Bill to declare and confirm that the law is as it has been found to be by the two Irish courts. It is a protest against the admission of this case by the Judicial Committee of the Privy Council. It is in that spirit it was introduced. It is in that spirit that we wish to have it passed, so that it may be clear to the Judicial Committee of the Privy Council that the desire here is that finality should lie with our Supreme Court in litigation arising here. We were assured in 1923 that in the case of the Dominions it shall be more and more or less and less as they please. I ask for substantial and concrete evidence that the desire here is to have it less and less rather than more and more. I ask Senators to share the view of the Government and the view of the Dáil that it is not desirable that litigation arising here should be hawked outside the jurisdiction of our State to an external court. I speak frankly of this court, because, as we know, it is a court. There is no real question here of prerogative. The fiction that the King is intervening personally and directly on the petition of the subject to inquire into some matter arising from the administration of justice is merely a fiction.
The Judicial Committee of the Privy Council is a court, a court with some very peculiar characteristics, a court selected ad hoc by a British politician, selected ad hoc by a member of the British Government. It is the Lord Chancellor who assigns the judges who are to try every and any case that is sought to be brought to the Judicial Committee of the Privy Council, and the Lord Chancellor while a very eminent lawyer is none the less a politician and a member of the Cabinet. That is one feature of the Judicial Committee of the Privy Council. If Senators share my view, the view of the Government, the view of the Dáil, that the case of Lynham v. Butler should not have been admitted to the Judicial Committee of the Privy Council, then its admission constitutes an erosion of our Constitution, and if we throw up no rampart against such erosion, such erosion will continue and we will find ourselves back in the position when appeals will lie, as of course and as of right almost, in Irish litigation, to a court outside Ireland. We will find ourselves back in the old House of Lords position, with the appeal lying as a matter of course. That was not the spirit of 1922; that was not the spirit of the undertakings given in 1922. The analogy of South Africa was guaranteed, the analogy of the unitary State. It has been departed from, and the only effective resistance we can offer to such departure is to pass this declaratory Act, to declare and confirm that the law is as two of our courts have found it to be. For the rest, it lies in the future.
I am simply asking Senators to concentrate on this case of Lynham v. Butler. Our general opposition to and our general distaste for the continuance of this appeal at all is another matter, one that can be raised and threshed out within the Councils of the British Commonwealth. Our view is quite definite. This appeal is an anachronism. It is something that has outlived its utility. It is something that should go with the veto. As long as it survives, and to whatever extent it survives, judicial independence is lacking. We have here, within the Treaty, legislative independence. No one comes to the Dáil or the Seanad to say what legislation they should pass or what legislation they should not pass. We have in this State administrative independence. No one steps between the civil servant and the Executive Council to say what should or what should not be done in administration. To whatever extent you have a survival and a continuance of the appeals to the Judicial Committee of the Privy Council, then, to that extent, judicial independence is lacking. Elsewhere there was comment on the undesirability of retroactive legislation. One can state a general principle which sounds well and which is, in fact, good, and yet find many sets of circumstances in which that fine general principle has to go by the board. We could all agree that retroactive legislation is in general undesirable, but I want to put it to Senators that there are many situations in which retroactive legislation is not merely desirable but necessary, and that that has been found to be the case by other and greater Parliaments than ours.
I could give many precedents of retrospective and retroactive legislation in Westminster. I have a stock with me. I will not weary Senators with many, but I could spend the rest of the evening giving to Senators precedents from the "Mother of Parliaments" of retroactive legislation. Declaratory statutes, statutes declaring the state of the law, are not infrequent. Recently in the British Parliament you had the War Charges (Validity) Act, 1925, a statute rendered necessary because during the European war certain Government Departments had imposed charges or payments in connection with the granting of licences or permits which were issued for the purpose of the control of supplies of certain commodities such as cotton or the import or export of goods such as steel, hops, etc. The validity of these charges was called in question in the courts, and in the case of the Attorney-General v. Wilts United Dairies, Ltd., the Attorney-General sought to recover from the defendants a sum of £15,000 odd, being the amount of 2d. a gallon which they had agreed to pay on milk purchased by them under licence from the Food Controller, who had granted the licence under the Milk (Registration of Dealers) Order, 1918, and the Milk (Distribution) Order, 1918, made in virtue of the Defence of the Realm Act. It was held by the Court of Appeal that the imposition of a charge of 2d. was a levying of money for the use of the Crown without Grant of Parliament and was illegal. This decision was upheld by the House of Lords. Other cases were brought before the Court, and in consequence of adverse decisions against the Crown, the War Charges (Validity) Act of 1925 was passed. That Act provided that the imposition of the various charges which were specified in the Act and the levying of the sums thereby charged, should be and should always be deemed to have been valid in law, and any sum not paid before the commencement of the Act should be recovered as a Crown debt. The Act also made provision for invalidating proceedings taken for the recovery of sums illegally charged before the Act.
Senators will remember the Civil Service bonus legislation which we passed here ourselves. There was a case of McDonald v. Shand in England in which it was held that the word "perquisites" in Rule 4 of the income tax schedule, which were defined in subrule 3, covered specifically profits (derived from offices or employments), which vary and could not in the nature of things be ascertained until the year ran out, while Rule 1 dealt with the case of a fixed salary. The case was concerned with the taxpayer who had a fixed annual salary and a bonus on nett profits. As a result of the case, the great majority of civil servants realised, in so far as they were remunerated by a fixed salary and a bonus, determinable by reference to a variable factor, that the decision in McDonald v. Shand applied to them and notices of appeal were at once served by most of the civil servants in or about the year 1923. The response of the British Government to that, just as the response here in this State, was to hurl a Bill through both Houses—retroactive legislation. Section 4 of the Finance Act of 1924 was hurriedly passed, and its terms are practically identical with a similar section subsequently passed in the British Finance Act of 1924.
The Territorial Waters Jurisdiction Act, 1878, was passed in order to overrule the opinion of the majority of the judges in the Franconia case which dealt with the limits of the British territorial waters. The Preamble to that Act asserts, in defiance of the majority of the judges who heard that case, that
"the right jurisdiction of Her Majesty, her heirs and successors extends and has always extended over the open seas adjacent to the coast of the United Kingdom and of all other parts of Her Majesty's dominions to such a distance as is necessary for the defence and security of such dominions."
Many Senators will remember the case of Bolt versus the Bank of England which gave rise to retroactive legislation bearing upon the collection of income tax. There are, of course, many more that could be quoted. I have, perhaps, quoted sufficient to show that while retroactive legislation may be condemned in the abstract, while the general principle may be laid down of its undesirability, governments have always introduced, and governments always will introduce, retroactive legislation whenever they consider that the state of circumstances warranting that course has arisen. I ask Senators to apply that test. In this case it is not a matter of the prospect of serious financial loss, such as induced the British Government to have recourse to retroactive legislation when there was a possibility of civil servants recovering the income tax that had been charged in respect of their bonuses. In this case it is not a question of financial loss at all. It is a question which, perhaps, Senators might consider of greater import, a question of constitutional encroachment which, if it is to be effectively resisted, must be resisted by retroactive legislation, by a statute which will say what the law is on a particular point, and always has been what it has been found to be by the High Court and by the Supreme Court here. We may leave the general question as to whether this anomaly, this anachronism of an appeal to the Judicial Committee of the Privy Council is to survive or not "on the knees of the gods."
That is something on which we have our view, which we will express and urge within the councils of the British Commonwealth, but it is not something which arises of necessity in this case. To concur with the Government and the Dáil in respect to this Bill merely requires a frame of mind on the part of Senators that they are strongly of opinion that the case of Lynham v. Butler was improperly admitted by the Judicial Committee of the Privy Council; that its admittance was in conflict with the undertaking given to the representatives of the Irish Government in 1922; and that it would not have been admitted had it originated in and emanated from the other unitary dominion—South Africa. If Senators believe that, then the implication of that is that the admission of this case by the Judicial Committee of the Privy Council represents an encroachment on our constitutional position. That is the view of the Government and that view is urged in this Bill. If the Lynham v. Butler case is open to review of the Judicial Committee of the Privy Council then there will have taken place an encroachment of our constitutional position and there will have been set up a precedent that will give rise to further such encroachments.
We hold, and hold strongly, that if Lynham and Butler is to be heard by the Judicial Committee of the Privy Council it must be heard in such a set of circumstances that it will not be an open issue, that there will be only one course available for the Judicial Committee of the Privy Council, and that will be to endorse and confirm the decision of the Irish courts. We ask the Seanad to help to bring about that state of affairs; to help to bring it about as a conscious, deliberate protest against the admission of a case that ought not to have been admitted. There is no advertence to the parties in this case. The case has raised greater issues, issues in the magnitude of which the interests of both Lynham and Butler disappear. We can deal with the parties.
The Minister for Finance expressed his readiness to consider any equitable claims which might arise in connection with the cost of this petition. Provision has frequently been made in retroactive legislation in other Parliaments for the payment of the costs in pending cases, and it is often precisely because they are pending cases that retroactive legislation is introduced. I could quote instances to Senators where in the very Bill itself reference was made to pending costs and where provision was made for payment of the costs in such cases. But this is no longer a case of Lynham v. Butler. It is a case of the Irish Free State resisting and opposing the encroachment by the Judicial Committee of the Privy Council on its Constitution; not on its written Constitution but on its unwritten Constitution —the unwritten Constitution represented by the assurances and undertakings of the British Ministers, including the British Lord Chancellor, in 1922—assurances that the practice and usage here in connection with that particular prerogative would be the practice and usage that obtains in relation to South Africa. That has not been honoured; that has been departed from, and because it has been departed from we have considered it necessary to bring this Bill before the Dáil and before the Seanad.
