Judicial Committee of the Privy Council and the Irish Free State

From 1922 to 1933, Article 66 of the Constitution of the Irish Free State permitted appeals of decisions of the Supreme Court of the Irish Free State to be made to the Judicial Committee of the Privy Council (JCPC) in London.[1][2] This was a requirement of the Anglo-Irish Treaty of 1921, which underpinned the creation of the Irish Free State. The treaty specified that the Free State's constitutional status would be the same as the other British Dominions, whose local courts allowed further appeal to the JCPC.

While Article I of the 1921 treaty said the Free State's "constitutional status" would match all the existing Dominions (Canada, Union of South Africa, Australia, New Zealand) Article II said "the relationship of the Crown or the representative of the Crown" to the Free State would match Canada.[3] Although Article II ought to have covered the JCPC, in negotiations on the 1922 Free State constitution, the Lloyd George government allowed the provisional Irish government to use the model of South Africa, a unitary state with fewer JCPC appeals than Canada, a federal state for which the JCPC often heard cases of dispute between federal and provincial governments.[4][5][6] Kevin O'Higgins predicted there would "not be two or three appeals in a century, where appeals [would] only be granted in very special cases, raising matters other than purely Irish interests, raising international issues of the first importance".[4]

The Cumann na nGaedheal governments of 1922–32 sought to minimise appeals to the Privy Council as undermining the autonomy of the Free State and giving fuel to its republican opponents. Article XII of the 1921 treaty provided for a three-person Irish Boundary Commission to finalise the border between the Free State and Northern Ireland. In 1924, when Craigavon's Stormont government refused to appoint Northern Ireland's commissioner, MacDonald's Westminster government referred to the JCPC the question of whether it could either force Stormont to nominate or make one in its stead.[7] The JCPC corresponded with Cosgrave's Dublin government, which chose to view the matter as internal to the UK and refused to be a party to the deliberations.[8]

The Free State played a leading role in the 1930 Imperial Conference which led to the Statute of Westminster 1931. Fianna Fáil came to power after the 1932 general election and began removing British and monarchist elements from the Constitution. The Constitution (Amendment No. 21) Act 1933 abolished the right of appeal to the JCPC. The JCPC itself ruled in 1935 that the Free State Oireachtas (parliament) had the power to do so under the Statute of Westminster.

List of referrals

Appeals from the Supreme Court of the Irish Free State to the Judicial Committee of the Privy Council
DateCaseLegal citationsNotes
1926Lynham v Butler[1925] 2 I.R. 82The JCPC granted leave to appeal a Supreme Court ruling on the Land Act 1923, but the Land Act 1926 was rushed through the Oireachtas to make explicit the interpretation given by the Supreme Court judgment, obviating the need for JCPC consideration.[5]
3 May 1927 John Howard Wigg and Robert Oliver Cochrane v The Attorney General of the Irish Free State [1927| UKPC 45
[1927] AC 674		 Questioned the legality of a change to the Superannuation Act's civil service scheme effected by a Treasury minute of 20 March 1922, after the Provisional Government of Ireland was created on 16 January but before it took control of the Irish civil service on 1 April.[1]
13 November 1928 In the matter of certain questions relating to the payment of compensation to Civil Servants under Article X of the Articles of Agreement for a Treaty between Great Britain and Ireland [Special reference] [1928| UKPC 85 Special reference due to the Free State government's refusal to enforce the JCPC decision in the Wigg case. In response to both decisions, the Irish and British governments agreed to amend the 1921 treaty.[1]
10 April 1930 The Performing Right Society, Limited v The Urban District Council of Bray [1930| UKPC 36 Overturned a 1928 Supreme Court decision that the Copyright Act 1911 had not been carried over from UK to Free State law. In the interim, the Oireachtas had passed the Copyright (Preservation) Act 1929 to replicate the 1911 act.[9]
6 June 1935 Robert Lyon Moore and others v The Attorney General for the Irish Free State and others [Petition] [1935| UKPC 34
[1935| 1 I.R. 472		 Moore and the other plaintiffs represented the Erne Fishery Company in a fishing rights case begun in 1925, in which the Supreme Court ruled against the company in 1933.[10] The appeal to the JCPC was filed before the bill to abolish such appeals was introduced, and heard after the bill had been enacted as the Constitution (Amendment No. 21) Act 1933. Whereas abolition statutes in other Commonwealth countries usually allowed appeals already pending to proceed to the JCPC, the 1933 act made no such exception. Conformant to Irish law that the JCPC no longer had jurisdiction, the Supreme Court refused to transmit the case files to the JCPC and the Attorney-General of the Irish Free State was not represented at its proceedings. The JCPC ruled in 1935 that it no longer had jurisdiction because the 1933 act was legitimate. The Oireachtas in 1934 had passed a law enabling the Erne Fishery Company to regain possession of the disputed fishing rights.[11]

References

Sources

  • "Constitution of the Irish Free State (Saorstát Eireann) Act, 1922". Irish Statute Book.
  • Fitzpatrick, Claire. "Contexts; Jurisdictions; Territorial; Irish Free State". Privy Council Papers. University of Exeter.
  • Mohr, Thomas (2002). "The Privy Council appeal as a minority safeguard for the Protestant community of the Irish Free State, 1922-1935" (PDF). Northern Ireland Legal Quarterly. 63 (3): 365–395.
  • Swinfen, David B. (1990). Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833-1986. Manchester University Press. ISBN 9780719023125. Retrieved 18 April 2018.

Citations

  1. 1 2 3 Maguire, Martin (2008). "5: Cumann na nGaedheal and the civil service, 1923–32". The Civil Service and the Revolution in Ireland 1912-1938: Shaking the Blood-stained Hand of Mr Collins' (PDF). Manchester University Press. pp. 182–195. ISBN 9781781702611. Retrieved 17 April 2018.
  2. ↑ Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 Schedule 1, Article 66: "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"
  3. ↑ Constitution of the Irish Free State (Saorstát Eireann) Act, 1922; Schedule 2
  4. 1 2 "In Committee on the Constitution of Saorstat Eireann Bill. — Article 65". Dáil debates. Oireachtas. 10 October 1922. Vol. 1 No. 20 p.25 cc.1401–1416. Retrieved 17 April 2018.
  5. 1 2 "Public Business. - Land Bill, 1926—Second Stage". Dáil Éireann (4th Dáil) debates. Houses of the Oireachtas. 3 February 1926. Retrieved 17 April 2018.
  6. ↑ Viscount Cave (3 March 1926). "Appeal From The Irish Free State Courts". Hansard. HL Deb vol 63 c404. Retrieved 17 April 2018. I dare say he was told also that the Free State would be like South Africa, a unitary State, so that the questions which frequently arise, for instance, in Canada between the Dominion and Provinces would not arise in the Irish Free State, and that accordingly the number of appeals would be less than they are in the case of Canada.
  7. ↑ Rankin, K. J. (2006). "The provenance and dissolution of the Irish boundary commission" (PDF). IBIS Working Papers. Institute for British-Irish Studies, University College Dublin (79): 14.
  8. ↑ "Letter, T.M. Healy to the Registrar of the Privy Council from T.M. Healy to the Registrar of the Privy Council". Documents on Irish Foreign Policy. Royal Irish Academy. 10 July 1924. Retrieved 17 April 2018.
  9. ↑ Clark, Robert; Shúilleabháin, Máire Ní (2010). Intellectual Property Law in Ireland. Kluwer Law International. p. 32 s.1.22. ISBN 9789041133021. Retrieved 17 April 2018.
  10. ↑ Mohr, Thomas (2002). "Law without loyalty–the abolition of the Irish appeal to the privy council" (PDF). Irish Jurist. 37: 187–226. JSTOR 44027022.
  11. ↑ "S.R. & O. No. 177/1934 - River Erne (Tidal Waters) Order, 1934". Irish Statute Book. Retrieved 24 April 2018. ; "Fisheries (Tidal Waters) Bill, 1934—Second Stage". Dáil Éireann Debates. 25 May 1934. pp. Vol.52 No.14 p.4 cc.1817–1850. Retrieved 24 April 2018.

Further reading

  • Mohr, Thomas (2016). Guardian of the Treaty: The Privy Council Appeal and Irish Sovereignty. Four Courts Press. ISBN 9781846825873.
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