Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 20 Nov 1929

Vol. 13 No. 2

Civil Service (Transferred Officers) Compensation Bill, 1929—Second Stage.

Question proposed: "That the Civil Service (Transferred Officers) Compensation Bill, 1929, be read a Second Time."

I take it that we will have some explanation of the purpose and reason for the presentation of this Bill.

I do not know why it is that Senator Johnson is anxious to be informed, because I presume, as far as he is concerned, he is fully informed with regard to the Bill. I think it would be wasting the time of the Seanad if I went into any great details in regard to the history of this Bill, because I am sure the facts are well-known to Senators. As Senators are aware, a certain dispute arose in regard to the award of compensation to civil servants who retired in consequence of the change of Government. Litigation followed, and a decision was ultimately given by the Supreme Court. The civil servants concerned secured permission to appeal to the Privy Council, and an appeal was heard. A decision, or an advice shall we say, was given by the Privy Council which was regarded by the Government of the Saorstát, and by the British Government, as being contrary to the intentions of the signatories to the Treaty, and as, in fact, giving something to the appellants in the case that they were not entitled to. There were negotiations between the two Governments, negotiations which were necessary in order that their views might be brought into accord on the interpretation of the Treaty. As I already stated in the Dáil, we regarded the judgment given by the Supreme Court here as the true interpretation of the particular section of the Treaty which was affected. The British Government, whatever individual members of it might think, were bound, in their position, to regard the view of the Privy Council as giving the true interpretation of that section of the Treaty. That meant that the two Governments were in form, shall I say—rather in form than in fact—in disagreement with regard to the interpretation of the Treaty.

This agreement brings the two Governments into accord once again. As I have already explained, it imposes no burden on the Exchequer or the taxpayers of the Saorstát. The civil servants who gave notice of retirement before the 1st March got compensation on the scale recommended by the Judicial Committee of the Privy Council, but the difference between the amount calculated on that scale and the amount calculated on a scale in accordance with the judgment of the Supreme Court is provided for by the British Government. So far as civil servants retiring after the 1st March are concerned, they get their compensation on the basis of the Supreme Court's judgment. The Bill sets out more clearly certain matters which were contained in the Act of 1920 as carried forward by the Treaty. In these matters of detail the Bill follows the decisions that were already given by the Wylie Committee in cases that came before it.

I suggested that there should be an explanation given of the import and purpose of this Bill, because it seemed to me to be too important a Bill, raising extremely important issues, to be left to the House without an explanation, and I am not sure that even the explanation the Minister has given satisfies the requirements of the case. In my view, the Bill that is before us, and the circumstances out of which it arises, bring to public light in these countries questions that will have repercussions for many years, perhaps generations, and I venture the prophesy that the case of Wigg and Cochrane versus the Attorney-General, will be cited in constitutional history in the future as the turning point in the whole constitutional relationships between Great Britain, the Irish Free State, and the British Dominions.

I think there are at least two very serious issues raised by the presentation of this Bill. The Minister has pointed out that it arises out of a claim made by two persons, representing a large number of other persons, against the Attorney-General, in regard to the compensation that was to be awarded them on their retirement from the service of the Free State Government. The claim was decided in favour of the plaintiffs—the civil servants—in the court presided over by Mr. Justice Meredith. The State appealed to the Supreme Court which decided, first that as civil servants the plaintiffs had no right whatever in court —they had no justiciable right—and second, even if they had, the judgment of Mr. Justice Meredith was faulty, and that the amount they had claimed as compensation could not be calculated in the manner decided by Mr. Justice Meredith. Following that Supreme Court decision the Civil Service transferred officers sought special leave to appeal to the Privy Council. The case was formally against the Attorney-General of the Irish Free State. The Attorney-General resisted that application for leave to appeal to the Privy Council. Leave was granted, nevertheless, and the Attorney-General, on behalf of the Irish Free State, appeared and pleaded the case of the Irish Free State against the appellants, the civil servants, before the Judicial Committee of the Privy Council. It will be remembered that this case, in fact, was cited by the late Minister for Justice, Mr. Kevin O'Higgins, as the kind of case, if any kind of case could be, which might reasonably be appealed to the Privy Council. This was the kind of case that might be so appealed, and as seeming to confirm his opinion expressed in the Dáil, the Irish Free State Government did in fact appear and plead the cause of the Irish Free State before the Privy Council.

The advice of the Privy Council was to confirm the judgment of Mr. Justice Meredith, thereby overruling the decision of the Supreme Court of the Irish Free State. So that what was in fact the law under which the Civil Service transferred officers were living and acting was declared by the Privy Council to be that which had been affirmed by Mr. Justice Meredith. The advice of the Privy Council was subsequently made a rule of court in Mr. Justice Meredith's court. Speaking as a layman, I imagine that meant that the law, as decided by the courts of the Free State, was such as Mr. Justice Meredith had pronounced. The judgment of the Free State court, therefore, was in favour of the plaintiffs, but the Executive Government of the Free State, in almost as many words, stated bluntly, and if one might say so, almost blatantly, that they were not going to obey the judgement of the court. They defied the judgment of the court of the Irish Free State. That was the position for quite a considerable number of months. Though I am not aware of all the facts in regard to who paid and the amount paid, I understand that not until the spring of this year was the judgment of the Irish Free State court against the Executive Council of the Irish Free State obeyed by that Executive Council. It seems to me that is a very serious position for the Executive Council of the country to have taken up. I think it is extremely serious as an example to citizens generally as to how they ought to treat the courts of the Irish Free State. It is no doubt true that the position which the Executive Council has taken has been that the law is as the Supreme Court of the Irish Free State decides. If they had stood by that decision, I think they could have been supported, and I think they would have deserved entire support from all of us, but when they appeared and argued the case before the Privy Council, it seems to me that they, by that fact, accepted the position that whatever the Privy Council decided as the law was to be the law, and that they would obey it.

Therefore I say there has been an issue raised of very great moment indeed, so far as I have stated it. But other issues have been raised possibly even of greater importance, because what I have so far dealt with may be rather formal than actual, and may not have any practically serious consequences, though as an example of how the courts of the Irish Free State ought to be treated, I think it is very serious. A bad example was set by the Executive Council. If any excuse or justification could be made for the action of the Executive Council it could only be, I think, on the assumption that they divined in advance something of the character of the Judicial Committee of the Privy Council in their hearing of the particular case. The Committee of the Privy Council which heard the case and decided in favour of the appellants—that is, of the transferred officers— consisted of the Lord Chancellor of the time, Lord Justice Cave, and two ex-Lord Chancellors, besides one who had been, or was at the time, head of the Scottish Judiciary. They gave their judgment. It was reported, and it was made a rule of court by the Irish courts. A couple of years afterwards during which there had been a considerable amount of controversy and discussion the matter was brought up in the House of Lords and, strange as it may seem, two of the judges who had sat on the Judicial Committee, one of them being ex-Lord Chancellor Viscount Haldane and another Viscount Dunedin who was a Scottish Lord, made a statement to the effect that in coming to their decision they had blundered. Lord Birkenhead, who was Secretary for India at the time, speaking with his authority as a lawyer, supported the case made by Viscount Haldane and Viscount Dunedin by presenting a statement which was alleged to have been made by the presiding judge, the Lord Chancellor, Lord Cave, within 24 hours of his death, in which he also is supposed to have said that a mistake had been made.

It is important I think that the House should be made aware shortly of what actually occurred. Viscount Haldane said that this decision concerned, not only those civil servants who had been transferred to the Irish Service, but also a large body of civil servants here—that is in Great Britain—"and far from it being a question of the pension of individuals it is a question which affects the pensions of the whole body of English civil servants who come within this decision. Consequently"—and I ask the House to bear this in mind—"the English Treasury have bestirred themselves since the case. I only wish we had had the English Treasury before us at the hearing so that we might have had the information which was largely necessary in order to dispose of this question." Because of the fact that the judgment had effects upon the whole body of English civil servants, it was necessary to reconsider the judgment. Lord Haldane said: "It is a question for careful inquiry, because the effect of the conclusions of the judgment in this particular case, if it is taken literally, is to give a vast number of persons, who have no more title to the money than any of your lordships individually have, sums which will be paid some of them out of the English Treasury, some of them out of the Free State Treasury, and others out of the Northern Ireland Treasury." I draw attention specially to the point that the English Treasury bestirred themselves after the judgment was delivered. I do not think anyone going through this discussion in the House of Lords could come to the conclusion that it was because of a sudden knowledge coming upon the individual law-lords that a mistake had been made, but that somebody after the judgment had been delivered intimated to them that probably a mistake had been made—somebody representing or speaking on behalf of the English Treasury—and because of a certain political effect of the judgment those who had decided the case felt bound to come to the House of Lords and declare that a reconsideration of the judgment ought to be made.

Viscount Haldane said that "Viscount Cave, in a most careful and painstaking judgment, applied the broad conclusion of principle and applied it with a knowledge that there was a whole series of Treasury Minutes, but without any clear knowledge of the effect of the whole series of Treasury Minutes, without any clear knowledge of the effect of the Minute of March 20th, 1922, which really applies to this case."

Viscount Dunedin followed and referred to the fact that there was only one judgment given in the Privy Council. "This judgment," he said, "was written by Lord Cave, and it was the duty of those of us who, like my noble and learned friend and myself, had it circulated to us to find out if any mistake had been made. We did not find it out, and I am sorry for it." So that two of the judges came to the House of Lords to confess the fact that they had signed the judgment, which involved considerable sums of money, possibly very large sums of money, without having satisfied themselves on the facts of the case.

Then we have Lord Birkenhead, with the assurance which no doubt his qualifications justify, stating: "I affirm my own opinion, not without experience of such matters, that it was indisputably and unarguably wrong." Further he said: "I have examined this case pretty closely." He went on to say: "The attention of those of their lordships who decided this matter was not directed to a Minute upon which, in my judgment, and in the judgment of those who are advising his Majesty's Government upon such points, that decision depended. Had the attention of their lordships been directed to the existence of that Minute, it is inconceivable that the passage to which reference has been made in the judgement of that most careful judge, Lord Cave, could have been found. There is no trace in the records of the case of that Minute."

I have in my hand a printed copy of the records of the case which the appellants prepared and supplied to the Judicial Committee of the Privy Council, and in those records, though it is alleged there is no appearance of the Minute in question. I find reference to the Minute in many pages and the actual Minute itself, and some comments upon it, occupy twelve pages of this printed book. In the light of the discussion certain rather extraordinary developments took place. While it was allowed that the judgment in respect of two individuals, who though appearing as representatives, nevertheless appeared in their individual capacity as Messrs. Wigg and Cochrane, that the judgment in their case would hold, there was to be a reconsideration of the issues in view of the allegation or the assertion that the judgment in the first case had been faulty, because attention had not been directed to the existence of a particular document. And so a new committee was set up, to which was referred the whole case. The new committee consisted of five very eminent judges. They reconsidered the whole case, no doubt in the light of the discussion in the House of Lords, but certainly having full knowledge of all the documents in the case. Strange as it may seem, in the light of the statement of Lord Birkenhead that no competent lawyer could possibly have come to such a decision, these four eminent judges came to the identical decision of the original Judicial Committee.

The reason why it is necessary to draw attention to these matters is because, as I said earlier, the only possible justification for the action of our Executive Council declaring that they would not take cognisance of the result of the appeal to the Privy Council, is that they must have had foresight, they must have been satisfied beforehand that the court which was to decide such a case was not competent to decide the case, not merely by virtue of constitutional incompetency, but by virtue of, perhaps, the political character of the court. I would remind the Seanad of the very careful statement made by the late Minister for Justice, Mr. Kevin O'Higgins, in which he said: "I ask that we recognise, in the first instance, that this is a court, that we may have to consider whether it is a good court, a useful court, or a necessary court. I submit that it is not one of those three things. It is a bad court, a useless court, and an unnecessary court."

Nothing that I have said gives strength to the statement that it is a useless court or that it is an unnecescourt, but I think the evidence points conclusively to the fact that it is a bad court, and will justify this State and all concerned with this State in restating what has been said by Ministers and others of us, that every legitimate and possible effort should be made to make it impossible that any case affecting the Irish Free State will ever again go to the Judicial Committee of the Privy Council.

I said that, on the confessions of the judges who constituted the court, they have allowed themselves to sign judgments to which they did not give full consideration. I am sure that there are people who know more of what happened behind the scenes, and I am sure that the impression that one would get from the reading of the discussion in the House of Lords could be confirmed —that impression being that some influences, which I state must have been political, were brought to bear upon the judges who formed the court after they had come to the decision. To my mind, those facts justify the statement that it is a bad court, and one which ought not ever again to be invoked in reference to any case in which any citizen of this State is concerned, and that the Executive authority of this State should make it quite clear and incapable of misunderstanding that that authority will not be allowed to be used to give effect to any decision or advice tendered by the Judicial Committee of the Privy Council.

As to the Bill that we are asked to pass, I think it does substantial justice to the claims of the civil servants. It will be impossible after this Bill becomes law to assert that these transferred officers have no justiciable rights. At any rate, the first decision of Mr. Justice Meredith will be confirmed by the passing of this Bill. In the main, it is true to say that the method of calculating compensation which he decided will also be made statutory with certain modifications, which modifications are acceptable to the civil servants who have been transferred. Therefore, I think that the agreement entered into has resulted in the preparation of this Bill should become statutory, and that we should pass the Bill as presented to us. But I think it is necessary that the facts leading up to the presentation of this Bill should be placed on record, and that there should be no possibility in the future that a court outside those established under the authority of the Government and Parliament of the Irish Free State should have jurisdiction over any citizen of the Free State.

I do not propose to go into the legal arguments brought forward by Senator Johnson, but I should like to ask one or two questions as to how this decision and the Bill which we have before us affect us in the way of precedent in future action. One would gather from Senator Johnson's speech that we want to discourage in every way any appeals to the Privy Council. What I should like to know from the Minister is, can we not take adequate steps to prevent a citizen of the Saorstát from making an appeal to the Privy Council, and if such an appeal is made, what line of action the State, as such. should take? Should it be represented there in a defensive attitude or should it refuse to make any defence—in other words, should it refuse to recognise the court and, if so, what steps ought we to take to ensure that the Executive will refuse to recognise the court? There may be difficulties in the way—constitutional difficulties—but I should like some clear definition as to what is in the Executive's mind on that matter. I feel that the big majority of Irish citizens will stand behind them in their attitude to preserve the complete jurisdiction of the courts at home. I want to put it as simply, as concretely, and as directly as possible, and ask if the Minister will be good enough to give us an indication as to what the actual position is at present, and what action the Executive proposes to take in regard to any such future case. With regard to the Bill there are one or two amendments which we may possibly have on the Committee Stage, but these deal more with possible pitfalls in the administration of the Bill itself. But we would like to have an indication from the Minister as to what action he will take in connection with any such appeal made to the Privy Council in future.

I think the Minister's answer should be perfectly simple. It is within the competence of the State to repeal the Article in the Constitution which gives the right of appeal to the Privy Council. Why does not the Senator himself, instead of making the unfortunate speech he has made, in his activities as a legislator, bring in a Bill instead of ad hoc giving the citizen a right with one hand and taking it away with the other, which, I submit, is questionable, if not dishonest. I must say that I felt deeply for the dignity of the House when I heard Senator Johnson speak, especially coming from a person so experienced, so able, and who is generally so fair-minded a Parliamentarian. If it came from some wild man on the hustings, I would not have been surprised. But, here in an Assembly where we should value our sense of fair play, to hear him say that political influences were brought to bear upon the members of the Judicial Committee of the Privy Council and that they did not give their judgment on the evidence, and that they were, in fact, tainted in their judgment——

On a point of explanation. If the Senator heard me correctly he would have noted that I said "after the judgment had been delivered." When I speak of political influences, I mean executive influences which are political.

I am quite satisfied to accept the correction. I put it in this way: that after the judgment had been delivered, Lord Birkenhead made a speech which, as the Senator criticised him, I will say was just as unfortunate as the speech which Senator Johnson has made here. Lord Birkenhead made an unfortunate speech, as the outcome of which, not a further court, but a further committee of inquiry was set up. It was not judicial I submit—it was quasi-judicial, and was to reconsider the whole case and report on the evidence that it heard. Senator Johnson suggests that political influence or executive influence was brought to bear upon these judges or persons so that they should not do their duty. I think that suggestion was unworthy of any member of this House.

I did not refer to any influence brought to bear on the second Judicial Committee of the Privy Council. I said that the discussion in the House of Lords could only lead to one conclusion, and that was, that some influences were brought to bear upon the judges, who had first of all come to a judgment, to bring them into the House of Lords to confess that they had made blunders. I say that again.


It seems to me that we are dealing here with a concrete position arising from one judgment of the Judicial Committee of the Privy Council. To have a debate upon the whole position as to future appeals to the Judicial Committee is, I think, straining the question before us a bit too far. I think we ought to confine ourselves, as much as possible, to the particular decision. I allowed Senator Johnson to go somewhat far, but I think we ought to confine ourselves to the fact that a decision has been given and that this particular Bill is in agreement with that decision and is for the purpose of implementing it.

I accept your ruling, but I hope that you will permit me to question the further remark made by Senator Johnson, that appeals to the Privy Council were unconstitutional. After all, it is an Article of our Constitution which gives the citizen a right to appeal to the Privy Council. On what ground Senator Johnson contends that right cannot be exercised constitutionally I fail to see, unless the Senator stands for playing fast and loose with our own Constitution. As you, sir, do not wish this question—and I am bound to defer to your ruling—of the jurisdiction of the Privy Council taken further I have nothing more to say on the matter.

I do not see how we can pass this Bill and discuss what the Privy Council has done and not be allowed to discuss what it may do in the future.


We are dealing here with a concrete issue arising out of the decision of the Privy Council. Some Senators are trying to import into the debate what the future action should be, as regards the constitutional rights of our citizens, on the question of an appeal to the Privy Council. When that arises they can quote this particular instance as being bad and that would be a reason why further appeals to the Privy Council should not be allowed, but I feel bound to say upon this particular Bill that the wide scope the debate has taken is not necessary in the discussion of this particular issue.

As one who asked some questions in regard to future jurisdiction and contact with the Privy Council, I submit, with all due respect, we are entitled to know how we are affected with regard to appeals to the Privy Council, and, also, what attitude the Executive intends to take in connection with these matters. I think it is necessary in discussing this Bill that such issues as are involved in our contact with the Privy Council should be made clear by the Minister.


If the Minister desires to give an explanation of matters I am quite agreeable, but that is for himself.

If the Minister desires to do that sort of thing, I do not see why I should not be allowed to say something in that direction also.


We will hear what the Senator has to say.

I think what Senator Johnson has said is clearly correct, that the civil servants were thrown over simply because the British Treasury saw that the arrangement come to would have implied high pensions to their own civil servants.


You are quite in order in dealing with that, because you are there dealing with civil servants specifically.

The civil servants were thrown over because the British Government did not want to pay their civil servants such high pensions. I pass from that. It seems to me that the fault of the whole of the proceedings, as Senator Johnson said, was that the Minister attended at the Privy Council at all and implicated this country in the question of the Privy Council. The position constantly stated in this House and agreed to by Ministers was that it ought not to apply. Someone may ask what should be done. My idea of what should be done is not to bring forward appeals of this sort, but to ignore altogether what the Privy Council decides to do, because although there is a clause in the Treaty that people may be allowed to appeal to the Privy Council, there is no means of carrying the result of that out in this country.

Did the Senator say that appeals to the Privy Council were allowed under the Treaty?

I beg pardon. Under the Constitution I should have said. Of course, we could change the Constitution, as Senator Sir John Keane has already said. These things happened before. They happened before the Act of Union, and I say the present condition is very like what existed before the passing of the Act of Union. We have a precedent there for what has been done. Before the Act of Union, when the Irish Parliament was sitting, a case was brought before the English Privy Council, and that body gave certain orders and sent them over to Ireland to be carried out. A certain sheriff did actually attempt to carry out the orders of the Privy Council, and what happened? As far as I can remember, an order was sent to arrest the sheriff for carrying out the orders of the British Privy Council, and he was thrown into prison, and the Irish Parliament passed a resolution prohibiting these things being done in future. That is about the state of affairs we ought to have here. We ought not to be subjected to those decisions in England by English lawyers and judges which were shown, in this case, to be hopelessly wrong in one way or another. I do not care to go into the question. The whole thing was thoroughly muddled up on the other side, but it is quite clear that we ought not to be ruled in that way. In any other cases where constitutional issues may arise we ought to prevent such a thing from happening. I do not think it is worth while going much further. I have given my opinion, and a great many other Senators will be of the same opinion, that we ought not to allow any appeals to the Privy Council at all.

I think that the discussion, whether in order or out of order, has helped to make one matter perfectly clear—that this whole story is a somewhat sorry one, and that if ever there was a case where two Governments should come together and make an agreement, this is a perfectly clear case. It, therefore, seems to me that on the exact issue of the Bill itself a clear case for it, in principle, has been made. You, sir, have ruled that we ought not to discuss the issue as to whether or not appeals to the Privy Council should be allowed. My view on that in public and in private is, I think, well known, and therefore I need not repeat it. To do so, in view of your ruling, would be to risk being ruled out of order. But, I think, according to your ruling, that we can discuss the question whether this particular appeal was or was not a proper one. On that I would point out that, under the wording of the Constitution, one of the difficulties is—I say this with great respect to Senator Sir John Keane—that there is not any absolute right for anybody to have a case heard by the Privy Council. There is a provision which states that the decision of the Supreme Court shall in all cases be final and conclusive, it shall not be reviewed, or be capable of being reviewed, by any other court, provided that nothing shall impair the right of any person to petition his Majesty for special leave to appeal. Now the right to petition for leave is not the right to be heard. The question is, when and how the Privy Council shall and may hear such petitions, or grant leave to have a petition heard. That depends upon constitutional law and usage within the British Commonwealth of Nations. I think it is a perfectly reasonable thing to say that, under the present usage, the number of appeals that can be heard are extremely few and far between. Personally I feel in regard to the Wigg-Cochrane case that it was one of those border-line cases, and consequently was extremely difficult to decide. Most of the cases, to my mind, are clear; that is, the usage has been so established that where the Executive Council of the State concerned objects, appeals from individuals shall not be heard. That has been set out by the Privy Council itself, though later members of the Privy Council have not followed the decision of their own body.

I entirely agree with Senator Sir John Keane that portion of Senator Johnson's remarks were unfortunate. I think Senator Colonel Moore's remarks were more unfortunate still. I do not think that it is dignified for this House, or any member of the House, to discuss in this House matters as to improper conduct in other States. I am quite well aware that in another Parliament, in high places but under effective protest, similar action took place with regard to our Government and our Parliament. But I see no reason why we should follow a bad example set elsewhere. For my part, I think it would be very much better—in this I am expressing my own personal views—if that bad conduct in other Parliaments were left for discussion in the public Press and elsewhere, and not in this House, and that we should protest against discussions elsewhere in any effective way that we can as to matters already discussed in this Parliament, which is a supreme Parliament that no one can legislate over. I know that my view is not held by everybody. The Irish correspondent of a Sunday newspaper protested against the view of the present English Government in which they stated that these matters ought not to be discussed. I hope that in the Parliament of the Irish Free State we will rigidly decline to discuss the actions of Governments elsewhere in relation to our Government as well as our Government's actions with regard to them.

In regard to the point raised by Senator Johnson which, I think, he said himself was formal rather than actual—the neglect of the Executive Council to act on a rule of court made by Mr. Justice Meredith after the first Privy Council trial—we were advised that there were good grounds for an appeal against that ruling making the Privy Council decision a rule of court. It was a ruling that was given by the judge ex parte, the Attorney-General not having been heard. We believe that had we appealed against that ruling we could have got it set aside. We did not take an appeal because that would only have started a circle of litigation, and we had already proposed to deal with the matter in another way. If we did not propose to deal with the matter by legislation, we would have had no alternative but to act either on the ruling made by Mr. Justice Meredith or take steps to have it set aside on appeal. I think that Senator Johnson's own statement that the matter was formal rather than actual, is quite correct. The ruling then made on the books by Mr. Justice Meredith was contrary to the judgment of the Supreme Court, and the fact that we did not proceed to act hurriedly on it was no indication that at any other time there would be undue delay in acting on the ruling of the court. Senator Sir John Keane asked why we did not repeal Section 66 in the Constitution.

The proviso.

That proviso would have been wiped out if we had any certainly that the wiping out of it would dispose of the matter. But I do not think that the wiping out of that proviso would alter the position in the least. The right of appeal to the Privy Council, in so far as it may still exist, has its roots in Article 2 of the Treaty, dealing with the relationship of the Government and Parliament of the Irish Free State to the Crown and of the relation of the Crown to the Irish Free State The Government are anxious to have this matter of appeals completely abolished.

Would it be indiscreet of me to ask the Minister why that proviso was ever put in?

Whatever the reason was, it does not purport to give, nor was it intended to give, something that was not given by the Treaty. As I have said, if it were not a Treaty obligation the thing would have been disposed of altogether. The position is that there has been a constitutional growth since the Treaty.

Might I ask the Minister if it was in the original Treaty that was sent over to the other side of the water, or was it put in on the other side?

There has been a constitutional growth and constitutional development since the time the Treaty was accepted, as well as since the time the Constitution was first enacted. I think that, as a matter of fact, the right of effective appeal to the Privy Council is already dead, and for this reason: that although the Judicial Committee of the Privy Council is, in fact, a court, in form it is an advisory body. The Judicial Committee hears a case and tenders a recommendation to the King. That recommendation is produced at an ordinary meeting of the Privy Council and an executive order is made in accordance with the recommendation. It seems to me that the position that has been reached since the Imperial Conference of 1926 is such that, even if the Judicial Committee of the Privy Council were still to be able to hear appeals, it would be wrong to issue an executive order except on the advice of the Executive Council here. If that is the correct position, there would be no more executive orders issued on any recommendation that might be made by the Judicial Committee.

I think also there is perhaps a good deal in what Senator Colonel Moore said—that is, if an executive order were issued, it is not for any court here to act on that, but to wait for legislation. An appeal to the Privy Council is an anomaly in the present state of development in the British Commonwealth of Nations. It is a complete anomaly. Although it was not possible to dispose of the matter at the last Imperial Conference, I doubt whether, especially after the blunders connected with the Wigg-Cochrane decision, and the discredit into which the Judicial Committee of the Privy Council fell in connection with it, there is anybody who will want to maintain it. I said the other day in the Dáil that for all practical purposes appeal to the Privy Council was dead, and that we only wanted the British to give it a decent burial. There will be no more appeals taken, and if there are, I believe they will produce no results. They will be ineffective, because we have the machinery which we used in the copyright case, and in the Lynham and Butler case, to make them ineffective, apart from the other line or method I have indicated. I think all that remains is to persuade the British that in future there can be and should be no appeal to the Privy Council, that appeal to the Privy Council should be entirely abandoned, and that both sides should agree to any legislation that may be necessary to have the whole appearance of the right of appeal to the Privy Council wiped out.

Senator Connolly asked what steps we would take if there were further appeals. I can say this much, that the Attorney-General of the Irish Free State, or any person representing him, will not again appear before the Judicial Committee of the Privy Council. If the Council should still hear private litigants and decide on the suit of private litigants, and reverse the decisions of the Supreme Court here, we would take whatever steps may be necessary, whether by legislation or otherwise, to make the effort of the Privy Council to reverse the decisions of the Supreme Court here ineffective; that is, pending the time when we can get agreement with the British Government to wipe out the appearance of the right of appeal, and to abolish the whole idea of appeal to the Privy Council. I do not want to say anything about the Board which tried this case, or the Board of the Privy Council to which it was referred again. We might have been satisfied not to fight this question of appeal to the Privy Council if the Judicial Committee had adhered to the lines which were laid down by Lord Haldane in his judgment in the first case that was brought for leave to appeal to the Judicial Committee. We found that we were not in fact going to be treated as, for instance, South Africa was, because appeals have very seldom been granted in the case of South Africa. They should have been refused in cases like the Lynham and Butler case and the Wigg-Cochrane case. They were not refused, and there seems a disposition on the part of members of the Privy Council to allow appeals to be heard freely and frequently from the Irish Free State.

Distance is not a factor that prevents appeals going to the Privy Council from the Irish Free State, as it does in the case of South Africa and Canada. It became clear to us that we would have to take a strong line against appeals to the Privy Council, and that with their disposition to hear appeals, and with the disposition of litigants and members of the legal profession here—distance not interfering—to carry cases a stage further, we would have the Privy Council hearing appeals as a matter of course, just as the House of Lords heard them. There is another factor in our case which is not present in the case of appeals from Canada and South Africa. There are, I think, no anti-Canadian and no anti-South African lawyers on the bench in Great Britain, but there are undoubtedly anti-Irish lawyers on the bench in Great Britain, and I do not think that from a court such as that the Irish Free State could have confidence in getting justice that perhaps other countries might have. For these reasons, and also because of the feelings that were engendered by the proceedings in connection with the Wigg-Cochrane case, and because of the fact that constitutional growth and development were taking place, it has become more and more clear every day that this appeal to the Privy Council is an anomaly. We have for a considerable time decided to take every step that we could to bring it to an end, and while the matter has not yet been formally wound up it is in process of being so. As I said in the Dáil, I do not think that Deputies or Senators need be very greatly troubled about the question of future appeals to the Privy Council.

Question put and agreed to.