Seanad Éireann díospóireacht -
Wednesday, 18 Oct 1933

Vol. 17 No. 21

Constitution (Amendment No. 22) Bill, 1933—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Mr. Connolly

The object of this Bill is to terminate the right of appeal to the Privy Council. The scheme of the Bill is simple. It proposes, first of all, to delete the provision to Article 66 of the Constitution. That proviso is as follows:—

"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."

The Bill further proposes the insertion of a new enactment in Article 66 of the Constitution in lieu of the proviso now to be deleted. The new enactment is as follows:—

"And no appeal shall lie from a decision of the Supreme Court or of any other court in the Irish Free State (Saorstát Eireann) to His Majesty in Council, and it shall not be lawful for any person to petition His Majesty for leave to bring any such appeal."

The House will observe that this new enactment is being made part of the Constitution itself. When this Bill becomes law not only will the proviso to Article 66, which preserves the right of appeal, have disappeared, but there will be enacted in its place a new law of the Constitution expressly providing that no such right of appeal exists and making it unlawful and unconstitutional for any person to apply for leave to bring any such appeal.

In discussing the principle of this Bill I must emphasise, first of all, the constitutional and international necessity of the step we are now taking. It is the policy of the present Government to place the judicial sovereignty of the Irish Free State beyond all question. A fully organised modern State contains within itself all the institutions of government, the Legislature, the Executive and the Judiciary. A State, from the decisions of whose courts an appeal lies to any court of tribunal or authority outside itself, cannot be said to possess judicial sovereignty in the fullest sense. Can any Senator visualise an arrangement between, say, France and Germany, whereby an appeal from the tribunals of supreme jurisdiction in one of those countries should lie to some authority in the other? I think the House will agree that the continued existence of the Privy Council appeal constitutes an invasion of the jurisdiction of the Supreme Court of this country, the decisions of which should, as the authors of the Constitution originally intended, be final and conclusive and not subject to review or appeal by any other authority whatsoever.

I do not propose to labour this question any further. The Bill itself has been under discussion for many years. It was the intention of our predecessors in office to introduce this Bill long since. For some reason or another it was held up. We feel the time has now come when any question of appeal to the Privy Council or to any court at all outside this country should go and that we, exercising our full functions in the judicial and in every other sense, must prevent any appeal going to any outside court.

I might mention that in the discussion on this Bill certain statements were made and these were confirmed by an article that appeared in one of the papers, the Irish Times, on last Saturday. I would like to refer briefly to this. In the last ten days it has been definitely stated by Professor Thrift and by the Irish Times that the concession of regarding the right of appeal to the Privy Council was part of a bargain which won ex-Unionists' assent for the Irish Treaty of 1921. I wish to use this opportunity to state categorically that, having examined all the records of the negotiations and discussions of that period, I can find no trace whatever of any such bargain. Perhaps I should also express astonishment that an Irish newspaper could warn the British Government to be careful about tolerating constitutional advances in Ireland lest the precedent should be used to the disadvantage of the British in India. That such anti-national views could be expressed is, in itself, an example of the unparalleled tolerance existing in this State.

Talking about the matter of tolerance, most of us will remember that in 1930, when this question was up before, two eminent ecclesiastics contributed a letter to the paper. I will read the letter for you to remind you of what happened:—

"We would remind you that memories in Ireland are long and that the removal from the Constitution of the safeguard referred to, or the consent of Great Britain to its exercise only with the consent of the Supreme Court in Ireland (as has been suggested), or any similar abrogation or limitation, while it may gratify the desire of Irishmen for independence, will inevitably weaken the security enjoyed by the members of a vulnerable minority, and as time passes lead most certainly to infringements of their liberty which they would be powerless to withstand."

I think it can be reasonably argued that the statement by Professor Thrift in the other House and the leading article to which I have referred more or less reiterate that point of view and I think it is quite unfair and would be quite wrong on my part to let such statements go by without denying them in the way I have. I have gone to considerable personal trouble to examine all the records and there is no vestige of foundation for the suggestion that any such bargain, as I think Professor Thrift called it, was even discussed, and for a leading morning paper to write in the terms the Irish Times did indicates something that is, to say the least of it, decidedly undesirable in this country.

I think that those of us who have lived in Ireland realise how little legal protection those in the minority need in order to safeguard their interests in the Twenty-Six Counties of Ireland. The Bill, as I say, definitely refuses to any citizen the right of appeal. That, I think, is only fair and just. It is only fair and just that our Supreme Court should be really supreme. That is the feeling of the Irish people. Of that there is no question. It is the feeling of the two big Parties, irrespective of anything else, and I think it is the feeling of the big majority of the minority.

The other question that may arise on this Bill is with regard to any steps that may be taken to allow appeals to the Privy Council pending the passing into law of this Bill. Every necessary step, whether by legislation or otherwise, will be taken to nullify any attempt to go to the Privy Council. The Bill is clear. It had been long under discussion by our predecessors and we feel that the time is now ripe to put it into operation. We ask your assent to the passing of this Bill which amends the right of appeal to the Privy Council.

Mr. Bagwell

With this Bill, as with the other two Bills, it is a matter of yes or no. The Bills do not lend themselves to amendment. As far as I can sense the feeling of the House, I think that these Bills will pass by a large majority and largely on their merits, in the minds of the members of the House. In such case what is the proper course for a member of the House who, like myself, holds that such legislation is hurtful to the national and true interests of the nation? Should I sit down and say nothing? No. I hold an opinion which is shared by very few others in this House. Knowing, however, that there would be no question of an effective division on the issue, I hold, rightly or wrongly, that I ought to give expression to my views on these Bills, so long as the members of the Seanad will listen to me. I shall be as brief as possible because there is no hope of altering the views of the members by what I have to say.

My remarks may be taken as having the same reference to the other two Bills. My objection to this Bill is not on strictly constitutional or legal grounds. I do not propose to criticise it on strict constitutional or legal grounds. On that issue I see no use in going into anything beyond the text of the Treaty, the text of the Constitution, and the text of the confirming Acts. These are the three things to be considered in connection with this Bill. In a matter of this kind it is no use bringing in anything that has been said or is alleged to have been said during the negotiations out of which the Treaty arose. I think that is a waste of time and in any case I have no special information. Therefore I do not propose to touch on those matters at all.

The question of an appeal to His Majesty in Council is not in the Treaty at all, so that this would not be an infringement of the Treaty. If it were it would not constitute a precedent. It does not constitute a precedent for indeed the Treaty has been effectively broken already. I do not think that this Bill should be criticised very much on those lines, but it can be criticised having due regard to these matters. Such a provision as providing for appeal to the Privy Council would be useless unless the relationship between the Governments concerned is friendly and unless the Governments concerned are prepared to implement whatever judgment may be passed by the Privy Council. Otherwise this right of appeal would be quite useless. Because unless you implement that judgment you might as well not have it.

As regards the Treaty, I think this Bill is strictly opposed to its spirit. What I have in mind is the spirit of the thing that is expressed by the last of the Confirming Acts of 1925—this kind of thing:—"Resolved mutually to aid one another in a spirit of neighbourly comradeship." This legislation is opposed to that spirit and to that extent these Bills are ethically open to criticism. That is why I am opposed to this Bill.

The question is whether all this is in the true interests of the nation. All this legislation, as the Minister has told you, is one step further away from England, out of what is officially described as the Community of Nations known as the British Empire. Many Senators in this House may want that. A great many in the country no doubt do not want it. The Minister certainly does want it, but it does not follow necessarily that it is the wise course or the right course in the long run. I venture to assert that hatreds are the producers of bad judgment. This is admittedly a whitling process. It amounts eventually to the issue whether we remain in the Empire or go out or in effect be put out. You cannot always continue to eat your cake and have it. There is not admittedly very much cake. Those who want to gratify their antipathies and go out of the Empire should count the cost of going out. Many think it is better to be isolated, to go out and go on hating. I think myself it is extremely foolish and time will show it, though I hope it will not, because if the matter gets to that it will be too late. I think it is greatly to the detriment of this nation to go in for that sort of policy. It is immeasurably more important to us to try even at some sacrifice of prejudices and antipathies to be on good terms with our neighbours. I feel bound to ventilate these views which I hold, which are the views held by a great many in this House and held by a great many in the country. I think these views ought to be expressed and that is why I have given expression to them.

Mr. Douglas

I have believed for a great many years and I am still absolutely of the same opinion that the largest amount of freedom and the greatest amount of happiness and success for this country will be found in association with the British Commonwealth of Nations. Yet, nevertheless, when a member of the Constitution Committee I felt strongly when any form of words which suggested domination by any outside authority was at stake even if that might have little or no effect in itself, if it was something which would make it harder for many people in this country to appreciate my view of our position in the British Commonwealth of Nations.

This particular question of an appeal to the Privy Council is a matter which I have opposed both in writing and in speech ever since I have been a member of this House and I can assure Senator Bagwell that I do so not because I believe that it is desirable to quarrel with our neighbours, or because I want to get outside the British Commonwealth. I am sure, however, that what he says is true—that views somewhat like those which have been expressed by him are held by a number of people and that they have been held by a number of people through some very grave and very serious misunderstanding. I spoke at very considerable length years ago in this House on the general merits, or otherwise, of an appeal to an outside court, and I do not propose to go in detail into the matter now, but even if the Minister had not referred to it, it was my intention when this Bill came before the Seanad to refer to a speech made by Professor Thrift and to a leading article in, I think, the Irish Times. The Minister referred to a letter which was written by two Protestant Archbishops some time ago and I felt, as one who is in a minority and expects always to be in a minority in this country, that it was my duty then to put in the Press a contrary view to that expressed by them. I am still of the same opinion, but I should like particularly to refer to the view expressed by Professor Thrift that some kind of a promise, some kind of an agreement, had been made to the small minority in this country commonly referred to as ex-Unionists, that their support for the Treaty could be won by maintaining not a right to appeal, because that never existed, but a right to ask for leave to appeal to the Privy Council.

I can in some measure confirm what has been said by the Minister. I was a member of the Constitution Drafting Committee and I think I can say that I did not miss any meeting of that committee. We had consultations with the then Ministers of the Provisional Government, and this matter of the Privy Council came before us and a very considerable time was spent in considering it. I am perfectly satisfied that if the members of the Provisional Government had been a party to, or had actual knowledge of, any such promise or agreement on their part, we would have had knowledge of it, particularly in view of the fact that we had reached the conclusion that to make a provision for applications for leave to appeal in the Constitution would be a mistake and that it would be much better that it should not be included in the Constitution.

I think, however, that there is a suspicion that there may have been certain people in another country who gave assurances because there are few members of this Oireachtas for whom I have more respect than Deputy Thrift and I am perfectly certain that he did not make the statement he did make without having some reason to believe what was stated in it. I am also quite certain that certain other people who believed that some such pledge or promise was given would never have made the statement without some reason. Personally, I am convinced that the promise, if any, was not made on behalf of the Provisional Government and was not made on this side.

Mr. MacEllin

Who is supposed to have made that promise?

Mr. Douglas

I cannot say, but it was stated that some such promise was made. I am not expressing the opinion that any such promise was made, and I feel certain that there must have been some misunderstanding, otherwise the statements would not have been made. It must have been made in some other country. I am giving that only as my own personal opinion, but what I want to say is that even if any such promise was made to the minority, it would have been a farce because you would have been promising something which could not have been, under any conceivable circumstances, effective. The inherent right of the subject in the British Empire, as it was then called, to ask His Majesty for leave to appeal in order to redress some legal injustice was part and parcel of the Colonial development of Great Britain, and so long as the British Parliament was supreme and had powers over the Colonial legislatures, that appeal was an effective appeal. I am not dealing with its merits but with its effectiveness. As soon as it became established that the Parliament at Westminster had no power to pass laws against the wishes of the Dominions, it became perfectly plain that the appeal would be useless. I should like to draw the attention of persons who are interested in the position of minorities here and who feel that they have a grievance to a letter which was published in The Times almost immediately after the publication of the Irish Free State Constitution and sent to The Times by Professor Berriedale Keith in which he pointed out that no power whatever existed to force the Free State Parliament to implement any decision of the Privy Council. It is quite true that pressure was brought to bear and with some reluctance a provision was inserted—I forget the exact article——

Mr. Johnson

Sixty-eight.

Mr. Douglas

——but we all know the Article which provides for the supremacy of the Supreme Court goes on to say that "nothing in this Article shall take away the right of the individual to apply for leave to appeal." I do not like talking about pledges, but I can say that it was accepted that that would be interpreted in accordance with the South African precedent.

A Senator

Canadian.

Mr. Douglas

A Senator says "Canadian." It might have been held on a very strict reading that because of the reference to Canada in the Treaty, the Canadian precedent should have applied, but it was clearly understood at the time—and I have the clearest possible recollection of the discussions —that the Canadian precedent would not apply, the Canadian precedent being not applicable in view of the fact that Canada was a federal State and that the Irish Free State being a unitary Dominion, the only proper precedents that could apply would be those from South Africa. As the House may possibly remember, it was in fact the South African precedent that was held to apply in the first case that came, I think, from the then Freeman's Journal newspaper, in which an attempt was made to ask for leave to appeal. That application for leave to appeal was refused and a long judgment was given by the late Viscount Haldane almost entirely on the ground that the South African precedent applied and that, therefore, leave could not be given against the wishes of the Attorney-General as representing the Government of the Free State.

At a later date—we all know the history—certain leave was given and the Executive, feeling themselves aggrieved and feeling that what was a clear understanding was not being carried out, decided to make the position clear beyond any possible doubt, and legislation was introduced after leave had been granted, but before any actual appeal took place. I think it is perfectly obvious to every person, whatever be the general point of view in this House, that that, though perhaps inevitable, was a bad way and an unsatisfactory way of doing it, and that it is very much better that the position on which we are practically unanimous here should be dealt with as it is dealt with in this Bill. For that reason it unquestionably has my approval.

I am not quite sure whether we have completely got over all the difficulties, but that will have to wait. It is clear in this Bill that any citizen of the Saorstát who asks for leave to appeal will be acting illegally, but it is not clear that there is any penalty for acting illegally. If there is a dispute involving Irish law here and one of the litigants is a citizen of Great Britain and if that citizen asks for leave to appeal, and if the Privy Council grants that leave he would not be acting illegally, but what is clear is that if he is foolish enough to do that, the position will be the same as it was before because there is no power whatever either in the British Parliament or the British Privy Council to enforce any of its decisions and any such application or any such appeal would only be most unfortunate. It would seem, of course, a vital matter to minorities in this country if they thought they could not get protection within the country to seek to get that right through an outside court. If the law, as a result of judgments of the Supreme Court here, proved unfair to minorities, it is the duty of the Oireachtas to right that as soon as possible, and if the Parliament of a country is not willing to do so minorities would be helpless or would appear to be helpless. But I want to emphasise the fact that I think a wrong impression is given by well-meaning people if they lead others to believe that some kind of safeguard for minorities is taken away by this Bill. I am satisfied that nothing of the kind is done.

Mr. Milroy

I rise to support this Bill. I was very glad that the Minister in his explanatory remarks made such emphatic assertion of his determination, and the determination of the Executive Council to uphold the sovereignty of the Saorstát. It is indeed a welcome change from the conditions that existed when the only challenge to the Saorstát supremacy came from the Minister and the colleagues and associates of the Minister, when the predecessors of the present Government had not only to uphold the sovereignty of the State, but maintain its existence against the attacks of the now stalwart defenders of the authority and sovereignty of the Saorstát. I am glad to see that change. There is more joy in heaven at one sinner doing penance than 99 just men. As penitence has resulted I think we will have to apply either to the Minister for Agriculture or to the Minister for Lands and Fisheries to kill one of our fatted calves in order to celebrate the conversion.

I want to refer in passing to what I mentioned in connection with the previous Bill: that the situation which makes for the passing of this Bill is the fruit of the work of the predecessors of the present Government. The gentleman whom Senator Douglas quoted, Professor Berriedale Keith, referred to this matter in a book which he wrote in 1929. He said: "The Minister for External Affairs has worked patiently for the aggrandisement of the status of the Free State." I do not want any misconception to emerge from the debate or from the impassioned declaration of the Minister in support of the sovereignty of the State. I do not want any misleading ideas to emerge, such as, that this Bill and what it proposes to secure is the work of the gentlemen in the possession of a very brief authority— very brief indeed—in the Irish Free State. I think it is a good thing that this Bill should pass. I think it is a good thing that appeals to the Privy Council should disappear. I think it is a bad principle that a citizen of one State should appeal to the authority of some tribunal external to the State, for redress if he feels aggrieved. Not only is that a bad principle but, as Senator Douglas pointed out, it is futile. That particular provision is futile so far as anything could be done to give effect to any decision which such an appellant might secure in an external court. The retention of such a provision, which some of our friends will desires, gives no safeguard in appeal to what they consider a higher tribunal than the Supreme Court of this country. The existence of such an appeal is futile as it would place the Supreme Court of this State in subordination to some external tribunal. That, I think, is entirely undesirable. I think that the term "minority" ought to fall into desuetude like some other formalities in the Constitution and ought to be forgotten. There ought to be equality of citizenship, and categories and classifications, by which men were known in pre-Treaty days, should be forgotten, and new alignments made regardless of creed or political opinions or bygone days. As long as they are good citizens there is no necessity to consider them as minorities, looking outside the State for sustenance and support.

One other point which I shall put in the form of a query to the Minister. I have still the temerity to interrogate the Minister though my last queries addressed to him received very scant attention or courtesy, so much so that doubtless it will seem to him great effrontery on my part again to address an interrogation to him. I think it is important that he should give an expression of opinion upon a matter that I am going to raise now. In 1930 the Imperial Conference in discussing the question of appeal to the Privy Council, more or less, came to an agreement for its abolition and were considering some kind of alternative tribunal, somewhat differently constituted from that of the Privy Council, for the consideration of disputes that might arise between different members of the Commonwealth. There was general agreement amongst the delegates of the Dominions that such a tribunal was desirable. The proposal was supported by the representative of the Irish Free State with the reservation that the International Court of the Hague should be available as a final court of appeal. I should like to know, and I think it is very pertinent to this case, as this matter was raised at the Imperial Conference in 1930, and as we are discussing the matter of abolition of appeal to the Privy Council, what is the attitude of the present Executive Council towards the idea of the Dominion of Commonwealth Tribunal to discuss matters that might be at issue between the different Dominions. I think it might possibly help to throw a gleam of light on the possible solution of some of our present urgent problems if an intelligent and clear answer to that query were given now by the Minister in charge of the Bill.

Cathaoirleach

I should like to say as regards queries to Ministers, that it is hardly fair on the Second Stage of a Bill to ask any query which would possibly require a good deal of research. On other stages of Bills the Minister in charge has notification of the matters likely to be raised and I should never urge the Minister to answer questions on the spur of the moment which would involve perhaps an amount of research. I do not think it is fair or reasonable. For that reason, it must be left to the discretion of the Minister whether he desires to answer the Senator's question or not. I shall certainly not urge him to do so.

Mr. Johnson

I was rising to make a statement somewhat similar to that which you, sir, have just made because it seems to me that the questions which were asked by Senator Milroy on a previous Bill raised very important matters of constitutional law. It would be quite impossible for any Minister, unless he had been thinking of nothing else for some months, to answer such questions on the spur of the moment. Further than that, I have not fortified myself with the material, but I think Senator Milroy is misstating the position of the representatives of the last Government at the Imperial Conference, when the question of the Inter-Commonwealth Tribunal was proposed. If my memory serves me aright, I am fairly clear on this point, that the report of the tribunal indicates pretty clearly that some members, indicating the representatives of the Irish Free State, did not approve of the proposal to set up such a tribunal. It was agreed that if a question arose which required to be determined as between the members of the Commonwealth, and such a tribunal were set up, it should be of a certain character. I am very nearly certain that the attitude of the Saorstát representatives was against the setting up of an Inter-Commonwealth Tribunal. That can be verified perhaps by the Minister on later stages of the discussion of the Bill, but certainly I should not like it to go out from this House, without contradiction, that statements of British Ministers, appropriate to other subjects and other disputes, are being confirmed in this House. I am very confident that statements made by British Ministers, and apparently confirmed by Senator Milroy, are not based on a proper reading of the records of that time.

Mr. Milroy

On a point of correction, this is the report of the Irish Independent of October 3rd, 1930:—

"Mr. McGilligan, while supporting the establishment of a Commonwealth tribunal, was unable to concur that its judgment was to be a final court of appeal on all matters."

Mr. Johnson

That is a very short summary.

Sir John Keane

I feel, like Senator Bagwell, that although in a minority I shall have to make some remarks on this Bill before we finally pass it into the limbo of treaties or understandings that are no longer to be honoured. It stands in a different category to the first two matters. The first two matters you might say are like certain heraldic emblems that no longer serve a purpose and those who object to their passing away do so on sentimental grounds but, as the President himself said in the Dáil, there is substance in this Bill. It deals with the form of appellate jurisdiction which is recognised and valued by several of the Dominions as evolved out of old historical associations. Its need was shown when less than 100 years ago the Judicial Committee of the Privy Council was put on a more or less systematic basis.

I propose to make a few remarks on the three heads—first, on the sanctity; secondly, on the utility; and thirdly, on the opportunity that the opposition to this Bill suggests that it can afford to those who are opposed to it. The President said that there was no bargain. Senator Douglas, who was behind the scenes at the time, has no knowledge of any understanding. That being so, why is it that the provision in the Constitution appears under such a rather unusual form? It appears as a proviso, and there is a strong suggestion that it was not in the original draft but added subsequently.

Mr. Douglas

That is correct. It was not in the original draft.

Sir John Keane

I suggest it was on the representations, perhaps, on the pressure, of certain parties, and with a certain object that it was inserted, with the object, if you like, of affording a safeguard to certain citizens who thought it was a safeguard. The other contracting party accepted it. I do not suggest for a moment that it was put there of their own volition. To that extent I suggest it constitutes an undertaking and its removal now is a breach of that undertaking. After all, there is a bargain. Bargains are made on the Stock Exchange purely by word of mouth and very seldom repudiated. Bargains are frequently made in vague writing, a vague form of words, that would never stand the test of law and they are honoured by all right-minded people. In fact, out of that we evolved the term "gentleman's agreement" and I suggest a great many things that have been put in this Blue Paper, even if they might not strictly stand the test of law, are in the nature of "gentlemen's agreements," just as binding between those who have agreed to them as any formal legal contract. For that reason I place very little value on those metaphysical points, as to what the reading of the Constitution is or what the reading of the Treaty in relation to the Constitution should have been. I prefer to apply to these documents the reading of the ordinary plain citizen and I suggest the reading of the ordinary plain citizen gives to these things the character of what I am pleased to call "gentlemen's agreements." I need not go at any length into what has happened since the Treaty in relation to appeal jurisdiction.

From the very first it was clear the Government did not intend to accept the understanding, whatever it was, but I would point out, just for the purpose of historical accuracy, that the late Kevin O'Higgins, as Minister for Justice, said that although his Government objected to any general arrangement for an appeal, he conceived certain cases in which an appeal would be appropriate. He cited in that connection the Wigg and Cochrane case, which was obviously a most appropriate case for appeal to such a tribunal. That went to appeal. It went to rehearing, yet the Government did not honour that judgement. The effect of the whole of its action up to date in connection with this matter has, I suggest, been most unfortunate. However much gratification we may take to ourselves it has materially damaged our prestige abroad, and we cannot live in blissful and happy isolation of what other people think about us. I suggest that it has marred the otherwise very good work of the first ten years of national reconstruction.

With regard to the utility of this right of appeal, certain speakers regard this attribute of sovereignty as a pearl, so to speak, beyond all price. I would suggest that while sovereignty may be valued it has to be taken in relation to actual fact and that, to put it metaphorically, very few people would prefer an Irish hair-shirt to a softer substance of foreign manufacture. I think there are very few people, however much they may talk about sovereignty, who would not welcome and enjoy the good things of this world wherever they may come from. I suggest that sovereignty is not an absolute test; it is the service, what you get out of any arrangement. I strongly suggest to the House that there are cogent reasons for some form of appellate jurisdiction, not necessarily this kind, but that this should be taken as sufficient until something different and better is put in its place. When certain interests in the past pressed, as they press to-day, for this form of appellate judicature, it is not because they believed our courts were corrupt. They did, however, feel that there are big issues, not alone of domestic concern, which can be better tried by a court on which men of wide judicial experience and knowledge habitually sit. Indeed our own judges —and I mark this—might sit there if we accepted the Commonwealth bond in the proper spirit. It is absurd to suggest that such a court is political or biased. Before the Treaty the then Irish Court of Appeal was reversed five times in one year by the House of Lords. It seems to me as a layman that our judicial system would be better for a third court as a kind of referee between the present High Court and the Supreme Court when they do not agree.

Mr. Johnson

Interpreting what law?

Sir John Keane

Recently we had the extraordinary case where two judges of the High Court on full hearing and two judges of the High Court on a substantial partial hearing were reversed by two judges of the Supreme Court on an issue of great importance and great legal complexity. I suggest that appellate jurisdiction of this kind is most appropriate to deal with such a case. You have another case now very much of the kind suggested by the late Kevin O'Higgins as suitable for appeal, that is this Killester case, where the money involved is British Treasury money, where the whole of the machinery set up was under British Acts, where this Government has really no concern at all except almost technically as trustees, which should and could appropriately be dealt with on appeal to the Privy Council. I can also conceive in the future, without any apprehension as to the justice and integrity of our courts or their judicial eminence, that cases might arise where a body, say, like the Church of Ireland, having assets on both sides of the Border, might be seriously embarrassed by a judgement in this country and where some form of appeal would only be just and proper.

I should like to examine for one moment the arguments put forward by the Government in defence of this measure. The first is that this is a derogation of sovereignty. Where, all down the ages, has sovereignty ever been complete? I do not know to what extent we are tied into the Locarno Treaty. If we are in any way tied into that, our sovereignty is most substantially imperilled. I take it we are tied into the Kellogg Pact. There, of course, our sovereignty has been largely surrendered. If we really wanted to be logical in this matter, we ought to get away at once from all the limitations of sovereignty that the Treaty involves, not in dribs and drabs of matters which are more or less technically vestigia from old practice, but substantially come out and declare a republic and do something definite to mark that desire.

Another argument applied is this test of national prestige. We all like sovereignty, we all value nationality when it gives service, but to take nationality as a test, irrespective of consequences or fact, is to apply the test every bit as tyrannically as the old religious tests which have been abolished long ago as archaic and unjust. Of course the Government are on much safer ground when they apply the example of their predecessors. I can only say that I am sorry they should follow them only in the bad. If they would also follow them somewhat in the good I think they would be somewhat more consistent. The Statute of Westminster, I have no doubt, gave legal sanction for a measure of this kind; but I would remind the House that when it was suggested to put into the Statute of Westminster certain limitations of its use the then President Cosgrave wrote a letter asking that that should not be done and said the people could be trusted to honour their obligations. I am not quite certain that in all cases that trust has been amply fulfilled.

I come to the last heading now, that of opportunity. In this respect I make no appeal to the present Government or its supporters. Their attitude is consistent up to a certain point. They in no way wish to cultivate better relations within the Commonwealth, or, if they do wish, they are going a very strange way about it. I say that their attitude was consistent up to a certain point. It appears to be leading to the brink of a republic. They hesitate for some reason to take the final step. I do, however, make a very serious and heartfelt appeal to the new Party. I make it at a not inappropriate time, at a time when fusion is taking place and their policy is being recast and reconsidered. Now, I would ask that Party seriously to consider whether it has ever paid, as one may say, to talk with two voices, to go over to conferences and plead wholehearted devotion to the Commonwealth, admittedly maintaining its dignity and independence, and to honour the Sovereign in all sartorial externals and yet, at the same time, come back home and sort of explain away that action in the hope of attracting some waverers or moderate people from the republican cause. I would suggest that ten years' experience of that policy has yielded very little result, and what I would suggest to this Party is to leave all that—let it be the province of the Left or of the Republican Party or whatever you like to call it—and to make no attempt to capture young people so minded, but on the other hand to acknowledge frankly and in full spiritual feeling allegiance to the Commonwealth.

I would suggest that policy is sound for two reasons. First of all, it is good business. As Senators know, there is great competition under the new tariff proposals to get a stand in the British market, and it is only natural that the British people will be more sympathetic to those who are sympathetic, and honestly and openly friendly, to them. I would suggest also that in doing so we have regard to the side on which our bread is buttered. Not long ago some people were doubtful of the wisdom of this policy, in view of the suggested collapse of Great Britain, but I think the last two years have shown that Great Britain is rather one of the bright spots in the European group of nations. Its currency is sound; its prestige at Geneva is certainly high; its trade is recovering, and in every way it is good business to cultivate, and not just on one side of one's face, frankly and openly these good relations. I suggest further that it is good politics.

I may not know Ireland as well as some people in this House, but I doubt that those who claim to know Ireland very well know it very much better than I do. I would suggest that a very large number of people in this country—I do not say a majority but a very large number not far short of a majority—are as loyal to the Commonwealth and the Empire—you can take whichever word you like, but do not let us split words about Empire domination and all that nonsense—as the people of Australia or New Zealand, and all that they are waiting for to-day is a lead. It would be good politics for the new Party to give them that lead. For that reason I do suggest, although it may be too much to ask them to vote against this measure in view of their past commitments, that now is the time for the new Party to take stock and say: we stand for a wide open outlook, we have the healthy cosmopolitan outlook of getting the good things whenever we can, and of bringing our country forward into the comity of nations in its full general spirit, and of leaving all these rather narrow introspective tests of nationality and sumptuary conditions to the other Party. Let us have a new orientation and no longer the old divisions. Let the Fianna Fáil policy be that of introspection and of intensive nationality, but let the policy of the new Party, the Fine Gael Party, be that of generous co-operation with the world. Let it not be ashamed of being accused of being pro-Britain and all the rest of it, because whatever it does it will be accused of that. I do hope that the discussion on this Bill will open up that point of view and that it will be pursued by the new Party in the future.

Mr. Connolly

The last speaker has provided any Minister with ample scope to forget all about this Bill and to go on to a political discussion. I have not, for a very long time, heard such an interesting professorial lecture on what the different Parties ought to do. As I am not a member of the Party apparently to which Senator Sir John Keane has referred, I suppose I ought not to take any interest in that, but I have no doubt that the remarks the Senator has made will be taken note of in the proper quarter. That, however, does not arise on this Bill.

Sir John Keane

I did not quite catch what the Minister said.

Mr. Connolly

I merely mentioned that I am sure that the advisory remarks which the Senator addressed to the House will be taken note of by the Party concerned. At this stage I would like to express my satisfaction at finding such a complete, an almost complete, unanimity in the advice that we of the Fianna Fáil Administration are getting to be out and out Republicans. It seems to me that the Seanad is going to turn turtle altogether and to become the extreme Republican House of the two—the extreme Republican voice of the country. That, however, does not divert me from the main thing that I would like to deal with arising out of Senator Sir John Keane's remarks in connection with bargains or agreements, verbal or other agreements. In dealing with that I want to make it clear that I am also dealing with Senator Douglas's analysis of Professor Thrift's statement and the leading article which appeared in the Times. Senator Sir John Keane indicated that something may have happened in the way of a gentleman's agreement during the discussion on the Constitution. Senator Douglas referred to the fact that no such agreements arose during the discussions on the Constitution. I want to make it clear to Senators that what I think Professor Thrift had in mind was something entirely different, namely, something that arose at the time of the Treaty discussions. With a view to trying to get clarity on what Professor Thrift did say in the Dáil I shall read for the House portion of his speech. He said:—

"I cannot imagine myself as being a party to any appeal to the Privy Council, but the fact remains—and it is a very simple fact—that this is part of a bargain. I do not refer to the bargain made with the British people; I do refer to the bargain made with your own nationals. The support of those nationals was obtained to the Treaty very largely because certain concessions were made by those who were going against the British Government at the time. This was one of those concessions."

Now it is specific, it is definite, and links up the supposed bargain with the Treaty or pre-Treaty position. What I want to make clear is that I have examined in detail all the discussions. There is no correspondence with regard to these discussions and communications, apparently, dealing in detail with what took place with the Southern Unionists. In no case is there the slightest reference by implication or suggestion that the question of the Privy Council was discussed either in correspondence or verbally. There are reports of verbal discussions, so that when Senator Douglas refers to the fact that these matters did not arise when discussing the Constitution he is not right. What I wanted to make clear, when Professor Thrift indicated that they were a preceding factor before the Treaty was effected is that such is not the case.

Mr. Douglas

The late Michael Collins did attend the Constitution Committee and referred to certain matters relating to minorities that he felt should be carefully considered by the Committee. What I wanted to convey was that that was not one of them.

Mr. Connolly

Senator Bagwell and other Senators referred to our attitude, to our antipathies and to certain gratification to our national souls in taking such action as we are taking here. I think it cannot be too clearly understood that there is much more than that in the decision to go for the abolition of appeal, or the right of appeal to the Privy Council. Senator Sir John Keane has indicated that a great many of the minority felt that this was a safeguard. I want to reiterate that the minority in this country have got their own courts, their own Parliament, and proportional representation. I want to know of any country in the world where a minority has the same privileges, the same protection, the same freedom, and the same equal justice handed out to them as exists in the Twenty-Six Counties of the Irish Free State.

Miss Browne

Did the Minister say protection? They are not getting that.

Mr. Connolly

I do not know what Senator Miss Browne's opinion is, and I do not know what her experience is, but I feel that they are getting protection. I know that nobody in this country who is in need of protection has been denied it at any time.

Miss Browne

Look at the newspapers.

Mr. Connolly

I have just quoted from a newspaper. Senator Milroy has been very emphatic about the fact that this proposal to amend the Constitution in the form in which we have put it before the House was conceived, intimated, declared, decreed and all the rest by our predecessors in office. We have never attempted to dispute that. We claim no credit for putting this ordinary measure of adjustment through the Oireachtas. One of the most satisfactory statements made in this House was made to me by the late Minister for Finance when a certain case was being discussed in 1929. When I asked him then in a comparatively brief speech, what they proposed to do with this measure and with this problem of the Privy Council, he indicated clearly that they intended to abolish the right of appeal to the Privy Council. He also intimated, at that time very definitely, having a certain case in mind, that they proposed to take such steps by legislation or otherwise as would annul the effect of any decision of the Privy Council itself. I should point out, however, that that was in 1929, and that this is 1933. What the reason for the delay was I do not know. The fact remains that we have taken as early an opportunity as we had of having this measure brought forward. We feel that the fact that it was brought forward or conceived by our predecessors in office is not an argument against the Bill.

Senator Milroy asked some specific questions. He complained that there was perhaps scant courtesy in dealing with an earlier question, on one of the other measures. There was no discourtesy intended. As Senator Johnson pointed out, the fact remains that a highly technical and legal problem arose on which I, certainly, would not presume to speak without having taken the precaution of being adequately briefed and having studied the question he put up. The Senator then raised a question with regard to an appeal to the Inter-Commonwealth Tribunal. This Bill deals with a different matter altogether. The discussion on the Inter-Commonwealth Tribunal revolved around the problem of inter-Government disputes, disagreement between Governments, and even upon that it has to be remembered that certain agreements were essential before such a court or tribunal could be established. The disputing parties had first to agree to go to such a court, and then they had to agree to the constitution of that court. The whole matter was entirely one of voluntary agreement, on which both parties would have to agree, first on the submission of their case to the court and, secondly, on the constitution of the court. It has no relevancy whatever to the matter we are discussing.

I submit that is all that has to be said with regard to the points that were raised. The Senator made several references to matters that, I think, are hardly worth noticing, such as "gentlemen dressed in a little brief authority," that one can hardly take seriously, or worry about. Senator Sir John Keane's mind was running on somewhat similar lines when he spoke about attending various international conferences and consulting with other countries. I think such discussions and such conferences as have been attended have been attended without any breach of either national dignity or giving away of national credit, that anything done at them has been open and above-board, and that our position has been clearly defined to all concerned, and to our people at home.

Sir John Keane

May I explain that I never suggested that there was any lack of dignity in attending these conferences? I referred, not to the present Government, but to their predecessors.

Mr. Connolly

I am glad that there is no question as far as the present Government is concerned. The Senator definitely spoke of pleading with two voices. That is something, in so far as my experience of international conferences go, that no member of this Government can be accused of doing.

Question put and declared carried, Senators Sir John Keane, Bagwell and Sir Edward Coey Bigger dissenting.

Committee Stage ordered for Wednesday, 25th October, 1933.