We have embodied in that Article the question of appellate jurisdiction which was held by British Ministers, but strictly according to the Treaty we could be bound with the exact Canadian position as regards appellate jurisdiction. The Canadian position is pretty much what the position here was with regard to the House of Lords, that an appeal lay automatically, and even in domestic legislation, and an appeal could be taken to the Judicial Committee of the Privy Council. Now, what is secured in this Article 65 is the most favourable position, i.e., the South African position. I do not know just how many appeals there have been taken from South Africa since the Union was set up, but I believe the number will be found to be very small. An appeal would not lie in the case of ordinary routine domestic legislation, but only in cases where international issues were raised was permission for such special appeal granted, as provided in this Article. There is no express provision laid down in the Canadian Act as to appeals to the Privy Council, by a section which preserves all existing laws, and which preserves this existing appeal in all cases to the Privy Council. Under the Australian Act the prerogative to grant such a right was reserved to the Crown in Council, and it is expressly preserved provided that Parliament may make laws limiting the cases in which such leave may be asked for, but that such a law shall be referred to the Governor-General for Royal assent. In the South African prerogative the Crown can grant such leave to appeal, and the Crown in Council is preserved in the same way as in Australia, but in effect it went further, being bound with provisions analogous to the first part of this Article. Now I propose to read an extract from the work of Professor Keith, who has been quoted before in this Dáil as an authority on constitutional matters. The extract deals with the question of appeals to the Privy Council:—
"Fresh importance has been attached to the development of the status of the Dominions to the question of the retention of the right of appeal from the 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 in 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 similarily declined its technically valid right to hear appeals from Canada, even in so interesting a case as that of the Winnipeg rioters whose condemnation raised bitter political feeling 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 Australian 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. The feeling in Canada in favour of the retention of the appeal is growing weaker, as is evinced by the proposal in 1920 of the Ontario Government to secure the abolition of appeals from the Courts of that Province to the Judicial Committee." There is just one further point in this Article. It is perhaps worthy of note, and it is that no cases of law can be made from appeals of this kind. In the very rare cases in which an appeal can be granted to a particular case it would simply be dealt with on its merits and the Courts in Ireland would not be bound in any way to follow such a decision given in such an appeal. It would not be possible to evade that appeal. I have shown on the strict interpretation of the Treaty, we would have been bound to the Canadian position. We have in effect secured a position very much more favourable than that of Canada.
An amendment "To delete the paragraph beginning `Provided that,' and concluding `such leave,' " stood in the name of Mr. Cathal O'Shannon.
