A Chinn Comhairle, it seems fitting in introducing this Bill to make a somewhat fuller statement than is usual on the first stage of a Bill. There is, for one thing, the anomaly of a Bill entitled "Land Bill, 1926," being introduced otherwise than by the Minister for Agriculture. The fact is that, so far as the origin and purpose of this Bill are concerned, it is very much more a matter affecting our Courts and a matter affecting our Constitution than one simply bearing on agricultural interests.
Deputies may remember that in 1922 and prior to the meeting of the Provisional Parliament in September, certain discussions took place between members of the Provisional Government and members of the British Government of the day on the proposed Constitution of this State. The Constitution was based on and arose from the Treaty, to which there were the two parties—the British Government and those representing the people of Ireland. I was personally associated with those discussions, together with the late President Griffith and the present Chief Justice, in his capacity as legal adviser to the Provisional Government. Certain matters arose for discussion arising out of the Treaty and arising out of the interests, consequent on the Treaty, of the British Government in the draft Constitution, and the particular Article to which I want to direct the attention of Deputies to-day—that is Article 66—and the following specially:—
"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 other Court, Tribunal or Authority whatsoever.
And then the following:
"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."
You have there, Sir, I submit two things. You have as definite and as emphatic a statement as it was in our power to make that the Supreme Court in this country should be the final authority, and you have inserted also an express reservation of the King's prerogative. I want to put the view that there is clear in that Article—as clear as it could be put—the desire of the representatives of the citizens of this State that the Courts here should be the final authority. The only exception to that consists in something which it was not within our power to alter, the bare reservation of the prerogative of the King.
In the discussions which took place at that time with certain British Ministers, including the Lord Chancellor of the day, there were very definite understandings and very definite assurances given that that preservation of the prerogative would be very much more a theory than a fact and a practice, that in so far as the practice was concerned it would be the practice observed in the case of South Africa rather than in the case of certain other Dominions, members of the British Commonwealth of Nations. And this distinction was drawn that this Irish Free State, when it came into formal existence, would be a unitary State, like South Africa, and not at all resembling Canada and Australia, which are not unitary States, and where you have matters of law arising, as between, say, the State of Quebec and the State of Ontario, and so on, which rather call for some overriding tribunal to give its final decision.
Since the establishment of the Union of South Africa there have been admitted to the Judicial Committee of the Privy Council altogether seven or eight cases, none of them small cases, none of them petty cases, none of them cases other than ones raising important issues, affecting large numbers of people, raising issues which could scarcely be termed purely domestic.
As I say, there were clear assurances given that the practice that would be observed in relation to the Irish Free State would be strictly analogous to the practice observed in the case of South Africa rather than in the case of other non-unitary Dominions, Canada and Australia. That principle was rather clearly enunciated by Lord Haldane, in the year 1923, when the first Irish petitions for leave to appeal came before the Judicial Committee of the Privy Council. Lord Haldane was an ex-Lord Chancellor, and has since been Lord Chancellor of the Government of Mr. Ramsay MacDonald. He states that before entering upon the consideration of these petitions from the Irish Free State, it might be well that something should be said about the general principle governing matters of the kind, and he proceeded to lay down what he regarded as being the general lines on which this kind of matter should be considered, and in the course of his statement, 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 his 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. We 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 will 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 the judicial discretion of this kind you 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 statement was made by Lord Haldane, presiding at the Judicial Committee of the Privy Council, on the 25th July, 1923, when Irish petitions for leave to appeal were under consideration, and I direct the attention of Deputies to two points in that statement, the insistence on the reference to the analogy of South Africa as a unitary State, and the insistence with which the wish of the Dominion itself is referred to as a factor, and a factor of very considerable importance. In that connection I would like to read the following extract from a judgment given in a South African case—the Whittaker case—in which there is again a reference to the desire of the Dominion itself:
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.
Now, I submit to Deputies that everything that is said there with reference to that Section 106 of the South African Act of 1909 applies with full force and effect to Article 66 of the Constitution of this State. It was not left in doubt as to what the attitude was, and what the wish of the representatives of the people here was, with regard to the finality of the decisions of our own Courts. Anything which follows the proviso in that Article was inserted at the request of the British Ministers as an express saving of the prerogative, and, having regard to the terms of the Treaty, it was considered that they were entitled to insist on that. But take that portion of the Article which represents our own outlook and our own wish in the matter; the decision of the Supreme Court was in all cases to be final and conclusive and was not to be reviewed or be capable of being reviewed by any other court, tribunal, or authority whatsoever. That portion of the Article represents the desire of the people here, and the desire of their representatives, that matters of litigation arising here would be finally determined by the Supreme Court of the State. And running through the statement of Lord Haldane on that "Freeman's Journal" case of 1923, and running through this extract from the judgment in the South African case, you have it laid down that the desire of the Dominion itself is a factor, a very relevant and a very real factor, in determining the attitude of the Judicial Committee in deciding whether or not they will grant leave to appeal in a particular case.
I now come to the actual purpose of this Bill. A case arising under the Land Act of 1923 some time ago came before the High Court, was heard by the President of the High Court, and decided in a particular way. An appeal was brought to the Supreme Court, which upheld the judgment that had been given by the High Court, and the matter was then carried across to the Judicial Committee of the Privy Council, and special leave to appeal was sought by way of petition. That petition was granted, but in our view that petition ought not to have been granted. In our view the granting of that petition was a very clear and definite departure from the undertakings which were given to Irish Ministers at the time that the draft Constitution of this State was the subject of joint consideration and review.
Perhaps what I have said indicates the purpose of this Bill. It is not a Bill for the removal of doubt, there not being, in our view, any doubt as to the point of law. It is a Bill to declare and confirm that the law is as stated by the Supreme Court of this State. Simply the Dáil is asked, and the Seanad will be asked, to declare and confirm that the interpretation given by our High Court and by our Supreme Court to the Land Act of 1923 is and always has been the correct interpretation. I can agree very often with people who say that, in the abstract, retrospective legislation is undesirable, but there are at times circumstances which alter that abstraction, and I think that the Executive Council is doing rightly in the particular set of circumstances that has now arisen in asking the Dáil to pass such a Bill as this. Deputies should be quite clear in their minds that this is not a Bill to clear up any point that is considered to be obscure; it is not a Bill to remove any doubt. It is a Bill brought in specifically so that the Dáil may assert and declare that the law in this matter is as it has been determined by the High Court and the Supreme Court of our own State system. When this Bill is printed and circulated and when it comes to a Second Reading Deputies will have an opportunity of raising beyond all doubt the question as to what their attitude and their desire is on the matter of where finality should lie in our litigation, on the matter of whether or not it is their desire—and we have seen by the two extracts which I have quoted that the desire of the Dominion itself is a relevant factor before the Judicial Committee of the Privy Council—that appeals should be brought, arising out of the litigation in this State, to this Judicial Committee of the Privy Council, and that those appeals should be there admitted.
I should like to read to the Dáil two further extracts bearing on this particular question. The following is from Professor Berriedale Keith's book, "War Government in the Dominions," and the reference is to pages 285 to 288:
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.
I take the following from "The British Commonwealth of Nations" (Duncan Hall), pages 263 to 270. Writing of the Imperial War Conference held in 1918, and the discussion there on this question of appeal, he goes on:—
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.
In so far as it lies in our power to speed that development, that will be done. There is no desire here either amongst the people or their representatives that there should lie outside of this State an appeal in the litigation which arises here. I even put it to Deputies that more and more as time goes on, that appeal would be an anomaly. You would have men with no knowledge of the circumstances in which legislation came to be introduced and framed, with no knowledge of the problems with which it purported to deal, sitting as the final authority on the construction and interpretation of the legislation that is passed here. I submit that even on grounds of commonsense, apart from any question of status or any question of national sensitiveness, it is not a desideratum that appeals should be admitted outside this State in the litigation which arises here.
I do not want to anticipate the discussion on the actual subject-matter of the Bill, but when the Bill is circulated Deputies will have an opportunity of deciding whether the issue raised in this little trumpery case of Lynham and Butler was an issue which conformed to the standards laid down, say, in the statement of Lord Haldane in 1923, as a necessary condition before a petition of that kind could be seriously considered by the Judicial Committee of the Privy Council. It 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. If that tendency were to continue, and if that line were to be allowed to develop, you simply would get back to the position, to the old House of Lords position, when appeals lay as of right or as of course from Irish litigation.
It is to mark our feeling that any such development is wrong, that any such development is dangerous, this Bill is introduced. It is to give expression to the Government's feeling on that matter, and to enable expression to be given to Deputies' feelings on that matter, that this Land Bill of 1926 is introduced. We rely on the good sense of Deputies to see that discussion on the Bill is confined to that particular issue.