HL Deb 03 March 1926 vol 63 cc394-422

LORD DANESEORT rose to call attention to the Irish Land Bill, 1926, which is now before the Senate of the Irish Free State, and its effect on the right of appeal to the Privy Council which is embodied in the Treaty and is expressly preserved by the Constitution of the Irish Free State, and to ask His Majesty's Government what steps they propose to take in relation to the matter?

The noble Lord said: My Lords, I rise to call attention to a matter of grave constitutional importance. I refer to the recent action of the Irish Free State Government and to its effect upon the right of British subjects in the Free State to appeal to the Privy Council from decisions of the Irish Courts. That this right now exists in the Free State is undoubted, and it is equally beyond question that it cannot be taken away except by an Imperial Act of Parliament expressly dealing with that question. That right, as I conceive, is gravely menaced by the recent action of the Free State Government. The general question of the Royal Prerogative to grant special leave of appeal to the Privy Council from any Court of any Dominion has been recently considered in a case of Nadan v. The King, which is reported in The Times of February 26 last. In that case the Privy Council held that the practice of invoking the exercise of the Royal Prerogative by way of appeal from any Court in the Dominions has long obtained throughout the British Empire, has been recognised and regulated by a series of Acts of the Imperial Parliament, and cannot be taken away except by an Imperial Statute and even then only by express words in such Statute. That is the general law on the subject, but in the case of the Irish Free State that right of appeal has, as I shall show in a few moments, been definitely recognised and preserved by the Irish Treaty and in the Free State Constitution which was founded on that Treaty.

The facts which have given rise to the present controversy are shortly as follows. Last year the Supreme Court of the Free State gave a decision in a case of Lynham v. Butler on the construction of some clauses in the Irish Land Act of 1923. The unsuccessful litigant applied to the Privy Council for special leave to appeal against that decision and leave was granted by the Privy Council in December last. That appeal is now pending. Almost immediately after that leave had been granted, on January 27 last the Irish Free State Government introduced into the Irish Parliament a Bill for the express and avowed object of rendering that appeal inoperative and thereby depriving the appellant of his rights under the general law and under the Treaty and the Irish Free State Constitution. The Bill is blown as the Land Bill of 1:926 and what it does is this. It amends the Irish Land Act of 1922 in several particulars, so as to make it conform to the decision of the Irish Supreme Court, and it makes the amendments retrospective as if they had been contained in the Act of 1923. In effect, it enacts that the Land Act of 1923 shall have retrospectively the construction placed upon it by the Irish Court of Appeal. The Bill passed through all its stages in the Dail and passed the Second Reading in the Senate on February 24. I think, though I am not quite certain, that it is going to pass through the remainder of its stages in the Senate to-day, but at any rate the Second Reading was carried without a Division. I would make a brief comment upon that. It is rather singular that, although strong comments as to the character of this legislation were made both in the Dail and in the Senate by unofficial members, no one in either of those bodies ventured to divide against it, and in both the Dail and the Senate the Second Reading and the other stages were carried without any Division.

Let me anticipate for a moment, if I may, what may happen in these circumstances. The appellant is a poor man, and should this Bill pass into law as it now seems certain that it will, subject to the question of receiving the Royal Assent, it is possible that the appellant may be advised not to attempt to prosecute his appeal any further, and the Privy Council may have no opportunity of expressing their opinion on this Bill. If, on the other hand, the appeal is heard, for myself I do not presume to anticipate what the action of the Privy Council may be, or what opinion, if any, they will express on the Bill, but the point I do desire to emphasise is that the declared object of this Bill, as announced by the members of the Free State Government, is to make this appeal inoperative, and to deprive the appellant of his right to have this appeal effectively heard.

In view of the extreme importance of this question, perhaps your Lordships would kindly allow me to recall certain facts which show that this right of appeal to the Privy Council was fully considered, and completely accepted, by the Free State and subsequently by a Statute of the British Parliament as a fundamental part of the Treaty and of the Free State Constitution.

Let me consider for a moment the Treaty. The Treaty was made in December, 1921, and was subsequently confirmed both by the Free State Parliament and the British Parliament. I will read only one clause of the "Treaty—Article 2. That Article says: Subject to the provisions hereinafter set out the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Government of Canada shall govern their relationship to the Irish Free State. No one disputes that under the Canadian Constitution the right of appeal to the Privy Council by special leave exists and has frequently been exercised, and indeed it was fully considered and confirmed in the recent case to which I referred. Therefore it follows that if the matter rested only on the provisions of the Treaty the right of British subjects in the Free State to apply for leave to appeal, and the right of the Crown to grant that appeal, is recognised by and is inherent in the Treaty. So much for the Treaty.

With your Lordships' leave I will now turn for a moment or two to the provisions of the Free State Constitution. By the Constitution which was embodied in an Act of the Free State Parliament and subsequently sanctioned by an Act of the British Parliament, the right of appeal was expressly confirmed. I will read one section of the Irish Free State Constitution Act passed by this Parliament, having previously been passed by the Irish Parliament. Article 66 says:— The Supreme Court of the Irish Free State … shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, tribunal or authority whatsoever. And then there is this vitally important proviso— 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. It is worthy of note, I think, as bearing upon what I have said as to the full acceptance by the Free State. of this provision, that when the Constitution Bill was in the Irish Parliament an Amendment was moved, on October 10, 1922, to the clause which I have just read.

The Amendment was to omit the proviso which preserves the right of appeal. The Irish Free State Government opposed the Amendment and President Cosgrave interposed personally in the debate. I take these remarks of his from the OFFICIAL REPORT of the debate for October 10, 1922, column 1401. What he said is this:— We have entered into a bargain. We have accepted the advantages of that bargain and we must be prepared to grant to others the advantages which we derive ourselves. I think that is a very fair and reasonable statement from the President and Mr. O'Higgins, Minister of Justice, said much the same thing. The Amendment was defeated and the Constitution, with that proviso in it, went unaltered through the Irish Parliament and was subsequently confirmed by our Parliament. May I also remind your Lordships that when the Irish Constitution Bill came before the House of Commons, on November 27, 1922, on Second Reading, this very right of appeal was raised and fully discussed and the Attorney-General assured the House, with, as I think, perfect accuracy, that the right of appeal was fully safeguarded both by the Treaty and the Constitution.

There is one other fact of importance which I should like, if I may, to bring before your Lordships. As I have already said, by the general law this right of appeal cannot be taken away by any Act of a Dominion Parliament. If it is in any way altered it must be altered by the Imperial Parliament. That, of course, applies to the Irish Free State as to all the other Dominions. But in the case of the Irish Free State the matter was not left there. There is an express enactment upon that point, which is to be found in Clause 2 of the Irish Constituent Act. With your Lordships' permission I will read that clause:— The said Constitution shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referred to as the Scheduled Treaty), which are hereby given the force of law … As a matter of fact it had been already given the force of law in April, 1922. The clause goes on— and if any provision of the said constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative … Then comes what I venture to think is an important obligation laid upon the Irish Free State Government and Parliament:— and the Parliament and the Executive Council of the Irish Free State shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty. Now, inasmuch as the right of appeal to the Privy Council was a fundamental part of the provisions of the Treaty, as I have already pointed out, that right cannot be taken away by the Free State Government, either by amending the Constitution or by passing any law affecting that right, and if they do, that amendment of the Constitution and that law will be void to the extent of its repugnancy to the Treaty.

There appear to me to be considerable grounds for contending that the Bill in question, should it become law, would be repugnant to the provisions of the Treaty and of the Free State Constitution and also to the general law, and as such would be void. But the question really assumes a far more serious aspect when you read the speeches made by Free State Ministers in the Dail and the Senate in support of the Bill, because these speeches make it abundantly clear that, while they admit. that the right of appeal now exists, it is the declared intention of the Free State Government to get rid entirely of this right of appeal, which was solemnly and fully accepted by them in their Treaty and in their Constitution, and to get rid of it not only with reference to the particular case under consideration but in any future case that may arise.

I will confine my quotations from those speeches to as reasonable a limit as I can. Let me first quote a few passages from the speeches of Free State Ministers on the Second Reading of this Bill in the Dail. I quote in each case from the OFFICIAL REPORT of the debate. Mr. O'Higgins, Minister of Justice, the same gentleman who, when the Constitution was being discussed, said they must adhere literally to the Treaty and the Constitution, on February 3, 1926, on the Second Reading of this Bill, said, in moving the Second Reading, that the case in question, Lynham v. Butler, should never have come before the Privy Council at all, and he condemned that tribunal "as a bad Court, a useless Court and an unnecessary Court." This Kingdom and this Empire are proud of our Privy Council, which comprises the best trained and most experienced lawyers, I may well say, in the world, and I leave it to your Lordships to judge of the good taste and the propriety of such an observation as I have read.

Mr. O'Higgins went on to say that in the opinion of his Government no cases should go from the Supreme Court in Southern Ireland to the Privy Council. He added:— As a Government we are opposed to this remnant of the Sovereign's Prerogative and he emphasised this point of view over and over again in his speeches. For instance, he said this:— While we are introducing this Bill to bear on a particular case, I want it to be quite clear that our entire feeling is against the continued exercise of the Prerogative. And again: It is really for the purpose of expressing and demonstrating the view that the Supreme Court should be the final Court that this Bill is introduced. That is, it was for the purpose of expressing their view that they should commit a deliberate violation of the Treaty and the Constitution and abolish the right of appeal to the Privy Council that this Bill was introduced.

Then, a little later on, the same speaker said that this appeal to the Privy Council is an anachronism. … It must and it will go. and his colleague, Mr. Blythe, the Minister of Finance in Southern Ireland, in the same debate, said this: This is simply a case of saying that, so far as we are concerned and so far as we can possibly make it so, our Supreme Court is the Court of final appeal. That is the case that I have thought it right to bring before your Lordships, and I desire to thank the House for the patience with which they have listened to the somewhat lengthy enumeration of the facts upon which the case depends.

Before I sit down I want to make a few general observations. From the date of the passing of the Treaty up to this hour the British Government have scrupulously and studiously adhered to the provisions of the Irish Treaty and of the Constitution that was founded upon it. They have done everything in their power, as I think has been freely admitted by every one who has considered the matter, to give full effect to those provisions and to see that the Treaty was carried out in all exactitude. Is it too much for the British Government and the British Parliament to expect that the Free. State Government should show a similar scrupulous care on their part to observe those provisions? I had hoped, seeing the character of this Bill and the mode in which it was introduced, that His Majesty's Government might have made representations — friendly representations, if you will—to the Free State Government with a view to getting them to withdraw the Bill, or at any rate to make it non-retrospective. I have not heard of any such representations being made, and I hope that whoever replies for the Government will tell us whether any representations of the sort have been made and how they have been received, and perhaps, if representations have been made and answered, they will lay a copy of the correspondence on the Table.

Again, there was some reason to hope that the Government might have had recourse to Article 41 of the Constitution and have instructed the Representative of the Crown in Ireland to reserve the Bill for the signification of His Majesty's pleasure. This has been frequently done in Canada, as every one who has studied the Canadian Constitution is well aware. I should like to ask His Majesty's Government whether they considered that question of reserving this Bill for the signification of His Majesty's pleasure and whether they have taken any action at all under Article 41.

I hope that, in the circumstances that I have mentioned, your Lordships may consider that it would have been a dangerous precedent that a Bill of this character and with this object should be allowed to pass through all its stages in the Free State Parliament without comment or protest, so far as I know, from His Majesty's Government and without comment or protest from either House of the British Parliament. If that were done, if there were no such protest or comment, I venture to think that it would be a direct encouragement to those in authority in the Irish Free State to pursue further their declared policy and to carry into effect their declared intention of refusing to be any longer bound by the provisions of the Treaty and of the Constitution as regards this right of appeal.

It is not for me to say anything as to what may be the effect of this legislation on the credit of the Free State Government or on the confidence which the mercantile community here and in Ireland may repose in that Government if this Bill is passed into law. That is a matter for the Free State itself. Suffice it to say that this aspect of the case was referred to in the course of the debate in the Irish Free State Parliament by unofficial members, but their protest did not take a very active form. What really concerns us in this country is the infringement, or the threatened infringement, of the rights of British subjects. Mr. O'Higgins refers to this matter in his speech in the Free State Parliament as if it were solely a question of the King's Prerogative, which he described as a mere, fiction of the Constitution. I venture to assert that in this matter the King's Prerogative is no mere fiction of the Constitution.

The late Professor Dicey, perhaps the greatest authority upon constitutional law who has arisen in this country for many years, said:— The King's Prerogative has largely become the privilege of the people. In this matter I do submit to your Lordships' House that the King's Prerogative is the shield and the defence of the rights of the subject, and I have therefore thought it right to bring this Question before your Lordships; for you, together with the other House of Parliament, are the joint, custodians of the rights and the privileges of the people, and with you and with the other House it lies to see that these rights are not infringed. I trust His Majesty's Government may be able to give us some satisfactory assurance that they have not lost sight of the serious aspect of this question and may be able to tell us clearly what is their position.


My Lords, the noble Lord has asked a Question of the Government, and as the facts connected with this matter are clearly within my knowledge, I think it would be convenient that I should reply to the Question at once. In doing so I shall, of course, endeavour to use moderate language, for no worse service could be rendered either to this country or to the Irish Free State than to inflame a matter which is already one of some difficulty. A few weeks ago three petitions were before the Judicial Committee of the Privy Council for leave to appeal from decisions of the Supreme Court of the Irish Free State. The petitions were brought under the law as it stands, and as affirmed by the Treaty Act and the Irish Free State Constitution. One of those petitions was dismissed. In the second case leave to appeal was granted. It was a case relating to the pensions, I think, of Irish Civil Servants, and no kind of exception has been taken to the course adopted in that instance.

The third case was this case of Lynham v. Butler, to which the noble Lord referred. It was an appeal which related to the construction of the Irish Land Act, 1023, of the Free State Parliament. The facts were stated to the Judicial Committee, and the relevant sections of the Act were brought to their notice sufficiently to enable them to see whether there was, or was not, an important question for discussion. It appeared that there was a difficult question of construction, for the Supreme Court of the Free State had themselves differed, one of the Judges dissenting for reasons which he gave. The Board was informed that the matter was of importance and affected a considerable number of people in the Free State, and having so far considered the question they were satisfied there was a substantial point to be argued, and they advised His Majesty that leave to appeal should be granted. It. appears that the Government of the Free State took umbrage at that decision, and the Minister of Justice, on their behalf, introduced into the Dail this measure which is called the Land Bill of 1926. In doing so he gave this reason. He said that during the discussions preliminary to the Agreement for the Treaty there had been a definite understanding or assurance that the custom and practice with regard to appeals to the Privy Council from the Irish Free State should follow the custom and practice which obtained with regard to appeals from South Africa, and he held the view that in this particular case no special facts had been shown to bring it within that custom and practice.

Now, my Lords, I am not going to have any controversy with Mr. O'Higgins as to facts. I have made careful inquiry and I cannot find any trace of any undertaking or any promise of the nature which he described, and indeed no undertaking could have been given with regard to a judicial body like the Privy Council; but, of course. I accept his statement that from the discussions which then took place he formed the impression that the practice with regard to Southern Ireland would be like the practice with regard to South Africa, and that accordingly leave to appeal would probably be granted only in cases of some importance or which affected a large number of people. I have no doubt he was told that that, was the practice with regard to appeals from all the Dominions, for it is true that that is the practice. 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 Free State, and that accordingly the number of appeals would be less than they are in the case of Canada.

The Free State is a unitary State, and constitutional points likely to arise there would probably be very few. There would be no points like the inter-State questions which arise in certain parts of the Dominions. The appeals would just be appeals in litigation of an ordinary kind, and it is absolutely the settled practice of the Court that in cases of that kind His Majesty is not advised to give leave to appeal unless the issues raised are of public importance, either as affecting large interests or as affecting a considerable number of people. That has long been the clear practice with regard all appeals, and I am quite sure that it will be followed with regard to appeals from the Irish Free State. So far as the act taken by the Free State Government is founded on the view that that practice has not obtained with regard to the Free State it is entirely founded upon a misunderstanding. On that view at all events that Bill was brought in.

Let me add with regard to this particular case that, of course, the question whether a case is important enough to call for leave to appeal must be decided by the Judicial Committee of the Privy Council. The decision is in their discretion. The advice which they will give at all events is in their discretion, and they and they alone can form a binding opinion as to the cases in which leave must be given. On the information given to the Board in this case by counsel from Ireland they arrived at the conclusion that the case was one in which there was a point which might reasonably be argued before the Board. I have not the least doubt that if an entirely similar case had come from South Africa, or any other Dominion, the same course would have been taken and the Board would have advised the granting of leave to appeal.

I cannot, of course, discuss with Mr. O'Higgins or with anybody else the merits of this particular case. All that I can say is that the principle upon which the Committee acted is the exact principle upon which they act in relation to appeals from South Africa. At all events, this Bill has been brought in. It is, I agree, of a somewhat novel character. The question which arose in this case was shortly this, whether certain vesting provisions in the Land Act of 1923 applied to land in which a tenancy existed at the time when the Act was passed but had come to an end before the period fixed for vesting the land in the tenant. The defendant, the tenant, contended that they did. The plaintiff, the landlord—not, I understand, a rich landlord, but the owner of this particular small property—contended that the Act did not apply and that he was entitled to possession. The Judge in Ireland and the Supreme Court decided in favour of the tenant.

Now, what the Bill does is this. It provides that a certain section in the Land Act of 1923 shall be construed and have effect and be deemed always to have had effect as if certain words had been inserted in it which, in fact, are not there. By that provision it is no doubt intended to make sure that the decision of the Supreme Court shall stand. Well, you may think that that shows very little confidence in the opinion of the Supreme Court. I am sure that few Judges would like to have their decisions confirmed by the method of inserting in the Statute which they had construed some words which were not there. Again, we may think it rather hard upon the particular litigant that retrospective legislation of that kind should be passed without any saving for his own individual rights which he was actually asserting by proceedings in the Court. But, after all, that is not so much a matter for us. The effect of what happened a few years ago is to vest in the Irish Parliament the power to legislate as to land in Ireland. If this appeal came to the Privy Council and the Privy Council decided in favour of the appellant, the Parliament of the Irish Free State could the very next day by legislation take away the rights which would have been so held to be vested in him; and if the Government and the Parliament of the Free State think it right to pass legislation at once, that is, no doubt, within their powers.

The noble Lord asked what the Government meant to do. I do not think he would like us to go cap in hand to the Parliament and the Government of the Irish Free State and ask them to withdraw their Bill. He suggested that we might, as we have the right to do, ask the Governor-General of the Free State to reserve this Bill, in order that the question of the Royal Assent might be considered in this country. I venture to think that would be an unwise course to take. It would not be effective, for if this Bill were vetoed a similar Bill could be passed to-morrow; and it would be of no real use to take the step suggested, or to interfere in that way with the discretion of the Governor-General of the Irish Free State.

The noble Lord said—and, I have no. doubt, he said truly—that expressions were used in the debates in Ireland which indicated that the real intention of the Bill is to nullify the right of appeal to the Privy Council. I would be slow to attribute to the Government of the Free State such an intention. The right of appeal is secured to citizens of the Free State by that clause in the Agreement for the Treaty which puts the Free State in the same position as the Dominion of Canada. The right is confirmed, if it needed confirmation, by express words in the Irish Free State Constitution, which were quoted by the noble Lord. The terms of the Treaty have been faithfully adhered to by this country, except that at the request of the Free State we have modified its terms for the benefit of that State. And I will continue to believe, until I have some better evidence to the contrary than a few hasty speeches, that the Free State also will adhere to those terms so far as they affect that State. If, indeed, this process were repeated so as to show an intention, by a succession of Statutes, to destroy the existing right of appeal to the Privy Council a different condition of affairs would arise; but as things stand to-day I decline to believe that it is the intention of the Free State so to depart from its obligations.

Before I leave the matter I would refer, not at too great length, to some observations which were made by the Free State Minister of Justice upon the Judicial Committee of the Privy Council. Of course, I am not going to deal with the words cited by the noble Lord constituting a kind of general attack upon the Judicial Committee, for it is not worth while to reply to them. The Committee will stand or fall upon its own merits. But I do want just to mention the statement made by Mr. O'Higgins that the jurisdiction of the King in Council was, as he said, "obsolete or obsolescent." The Minister has been misled, or has been reading some ill-informed text writer. The Judicial Committee was never more fully occupied than it is at the present time. It sits day after day, not in one Division, but in two. It hears appeals from Canada, Australia, New Zealand and Newfoundland, from India, from South Africa—I sat yesterday and will sit to-morrow hearing an appeal from that Dominion—as well as from all the Colonies and Dominions of the Crown overseas. It includes the most experienced jurists from England, from Scotland, and from Ireland, as well as men who have a lifelong knowledge of the diverse systems of law which obtain in India. The Court is constantly assisted by eminent members of the Supreme Court of Canada. Only last year it had the assistance of the Chief Justice of Australia. For myself, I shall not feel that the Court is complete until it includes some jurist who is acquainted with the administration of law in the South of Ireland.

May I quote to your Lordships' House some sentences which I read yesterday and which occur in the evidence given by Mr. Henry Reeve, the well known Registrar of the Privy Council, some fifty years ago. He said this— The appellate jurisdiction of Her Majesty in Council exists for the benefit of the Colonies, not for the Mother Country. It secures to every subject of the Queen throughout the Empire his right to claim redress from the Throne. It provides a remedy in certain cases not falling within the jurisdiction of ordinary courts of justice; it removes cases from the influence of local prepossessions; it affords the means of obtaining the uniformity of the law of England in these Colonies which derive the great body of their law from Great Britain"— that applies, of course, to Ireland— and it enables suitors, if they think fit, to obtain a decision in the last resort from the highest judicial authority and legal capacity existing in the metropolis"— I should have said to-day, in the Empire. In any Colony which possesses an efficient Court of Appeal it may rarely be necessary to resort to this supreme tribunal; but, even so, its controlling power, though dormant, is felt by every Judge in the Empire, because he knows that his decisions are liable to be submitted to it. I think that statement gives a just view of the Privy Council on its judicial side. The jurisdiction of that great tribunal, which, in the extent and variety of its jurisdiction, is, I believe, unexampled in the history of the world, is readily accepted by such great Courts as the Supreme Court of Canada and the High Court of Australia. I do not think it could be held to derogate in the least degree from the position arid authority of the Supreme Court of the Irish Free State—it would rather be an assistance to that Court—if its decisions on important issues should from time to time undergo the same ordeal. I trust I have given an answer to the noble Lord; at all events I have explained the position taken up by His Majesty's Government.


My Lords, I am grateful to the noble and learned Viscount on the Woolsack for his lucid exposition of the principles on which the Privy Council proceeds in advising the King to administer justice. I cannot but think that there has been a good deal of confusion in the issues raised in the Question which has been laid before the House. What the Irish Dail may have said or what members of it may have said about the Privy Council and about its merits or demerits is one thing; what they have done is quite another thing.


It was the Government, not the Dail.


I do not care whether you call it the Government or the Dail; call it the Government. What they have said there they have said and it is within their right to say it. If any one wants to find criticisms of the Judicial Committee of the Privy Council he has only to turn to the Parliament of Australia, the Parliament of Canada, the Parliaments of the Provinces of Canada and the Parliamentary bodies which represent other parts of the Empire and there he will find abundance of criticisms, sometimes quite as acute in their terms as those used in the Dail the other day. Therefore I do not mind whatever anybody has said in these places, even the Government. It was only the other day that the Attorney-General of one of the Provinces of Canada brought in a measure to abolish the appeal to the Privy Council from his Province. It is the kind of thing to which we are accustomed.

Quite another question arises when you challenge the right accorded to the Dail and to the Government of Ireland by legislation to alter their land laws. They have been given power to legislate for peace, order, and good government in Ireland and you have to take the risk of that. They may pass retrospective legislation if they please. They may have affected this appeal; I do not know. That is a question which may have to be discussed judicially hereafter and I will not say anything about it. But that they have undoubted power to pass laws relating to land, to alter existing rights and to legislate retrospectively, I have no doubt. We gave them that when we gave them power to legislate for peace, order and good government in Ireland and that is a power which is possessed by every Dominion. We must distinguish those two wholly separate questions which I think have not been kept sufficiently distinct.

There was much talk of the right to come to the Sovereign to review and overhaul decisions given in Dominion Courts, including the Courts of Southern Ireland. There is no such right. If a subject of England, Scotland or Northern Ireland appeals to your Lordships' House he appeals as of right. He presents a petition and the House of Lords is bound to take that petition into judicial consideration. But it is quite otherwise if the appeal is to the King in Council from any other part of the Empire, be it Canada, Australia, or anywhere else. In that case he presents a petition asking for leave to appeal and the Judicial Committee of the Privy Council investigates most carefully the question whether he should have leave to appeal. I am not speaking by hearsay. I have been a Judge of the Judicial Committee of the Privy Council for fifteen years. I have taken part probably in more cases of application for leave to appeal than any other Judge alive. For twenty-five years before that I was in many cases before the Judicial Committee when I was at the Bar and I think I may say that I know something of that tribunal and of its practice.

The question whether leave to appeal should be given is a question which should be considered as one of substance, and very minutely. There is no right to bring the appeal for the decision of the King. There is a right to have a pronouncement on the question whether the ease is one which it is suitable or fit that it should be entertained by the King in Council, but that is a very different matter from the application for leave to appeal, which was the only question in the case that your Lordships are discussing. It very often happens in the Judicial Committee that the Judges of that tribunal say: "This case is essentially a, domestic one." It is a, question, it may be, of which the tribunals seem specially well informed and competent to dispose, and there may have been an agreement among them, and the Judicial Committee very often says: "We do not think this is a ease in which it is wise to advise the King to give leave to appeal." I should say myself, speaking from my impression, that in a large majority of cases leave to appeal is refused.

There are cases where leave to appeal is freely given, and I will tell your Lordships what they are. When you have a Dominion that has not a unitary Constitution, a Dominion like Canada, with questions arising out of the distribution of legislative powers between the separate Provinces and the Dominion, there may very often be acute questions arising which it is not easy for Canada to settle herself. We give leave freely in those cases, but when it is a, mere question of a domestic nature, and the tribunals are tribunals which act for the whole of the Dominion, then we are very loth to give leave to appeal. That is the ease in South Africa. We sometimes give leave even there, but it must be an exceptional case, a case which has behind it strong grounds of public policy or public interest. Ireland is in that respect akin to South Africa. It has a unitary Constitution, and it has no constitutional questions arising of the kind that I have indicated, and, therefore, it is to be anticipated that the cases in which leave to appeal will be given will not be as numerous as they are where there are constitutional issues, as in Canada.

But that is not all. I now come to what I hope your Lordships will bear in mind in considering this question. The jurisdiction of the King in Council is a very delicate one indeed. The Dominions have grown, and are still growing, and the evolution of the Empire is still taking place. Things are not now what they were even twenty-five years ago. I remember that twenty-five years ago, when I was in the other House, Australia was able to impose its will by getting a clause passed in the Bill for establishing an Australian Constitution, under which the appeal to the King in Council was altogether taken away in constitutional eases, unless, indeed, the High Court of Australia chose to give special leave. In that way the Prerogative was cut into, and the late Mr. Chamberlain, who was not one wanting in desire to hold the Empire together, refused to oppose it. So to-day, if any Dominion makes out a case for disposing of its own issues, within its own confines, it would be very difficult for the Imperial Parliament, moved by the kind of considerations which inspire the Imperial Parliament in dealing with the Empire, to decline to give effect to its wishes.

I cannot sufficiently strongly express my opinion that it is not by coercion to-day that you can keep the Dominions within the Empire, or make their laws subservient to your own. I cannot too strongly express my opinion that the kind of discussion we have had to-day has, in some parts of it, been a very unfortunate discussion. The jurisdiction here is an excessively delicate one, and it has been assailed in a manner which seems to imply that we have some right to review the decision of Southern Ireland in what is really a domestic matter, for it is a domestic matter of how it will deal with its own jurisdiction, and whether it will allow appeals to go outside its own confines. It is perfectly true that there is a clause in the Irish Constitution Act which preserves the Prerogative of the King if he chooses to give leave to appeal. I have had to deal with these questions, and I recognise that they are very delicate, and we have been very loth to give leave to appeal. The reason is this. I have been fighting all my days to develop the Privy Council in its appellate jurisdiction, to preserve it from further inroads such as those made in 1900, to build it up, and strengthen it, and I know that that can only be done by keeping the good will of the Dominions, and cannot be done by giving to the jurisdiction anything of even an apparently oppressive nature.

It is a matter of diplomacy just as much as one of abstract law whether you can keep the Prerogative, and I wish the noble Lord who introduced this Question had had some first hand experience of the kind of attitude in which we have to place ourselves when we are dealing with these questions if we are to avoid friction. It is a good maxim to avoid raising abstract questions when you are dealing with matters relating to the Dominions and their position with regard to the Mother Country. We have tried to avoid that. Now, unfortunately, an issue has arisen. I hope it will pass and that is why I deprecate the Question that has been raised to-day, because I cannot but think that it will tend to stimulate what already is a tendency not only in Ireland but throughout the Empire, where this question is being raised right and left and will make it more difficult for us to put off. the application of a principle which in itself cannot be questioned, the right of the Dominions, armed as they are with plenary powers of legislation, to deal with and dispose of their own cases.


My Lords, I certainly would like to adopt the suggestion of the noble and learned Viscount on the Woolsack, who urged that we should approach this subject with restrained language, because I think it is well that a contrast should be drawn between the way in which the subject is approached in your Lordships' House and the way in which it was approached in the Dail. I happen to have a copy of the report of the debate that took place in the Parliament of Southern Ireland. While I approach the matter with, I hope, restrained language, I entirely refuse to be deterred from discussing it by the homily that we have just heard from the noble and learned Viscount opposite. I do not wish to compete in any way with the great and wide experience that the noble and learned Viscount has had of the Privy Council. Nor do I dissent from the panegyric of the Privy Council which has been pronounced by the noble and learned Viscount on the Woolsack to-day. The greater the Privy Council is, the wiser it is, the more experience it has, the greater traditions it has, the more necessary it is. Those in Ireland who look for the fulfilment of the Treaty, and of what you call the protection that you gave them, should not be deprived of the Privy Council without some protest from those who care for the honour of this country.

This question cannot be whittled down by the special pleading of the noble Viscount opposite. He gave us a lecture upon what the right of appeal was in the Privy Council. If I may say so without offence to him, it is a judgment which he has given in very many cases as a preliminary to either granting or refusing leave. I think I have heard him say the same thing, in the short time I have been there, at least one hundred times. He, of course, absolutely correctly, laid down the procedure in which the Privy Council approached these petitions for leave to appeal to His Majesty in Council. The noble Viscount said there was no right to appeal, and that it was a common mistake to think that there was. I do not think my noble friend who asked this Question was under any delusion about that, although I think the noble Viscount referred to his want of experience in these matters. I heard him say nothing to that effect.


I took down the words "right to appeal."


There is no use in giving us a lecture about the procedure of the Privy Council, for the simple reason that what we are dealing with in the present instance is a case in which a petition was before the Privy Council, and the Council, in accordance with its procedure, gave leave to appeal. What is the use of talking round the question to try to get our minds away from the serious matter? It is all very well for noble Lords sitting here and my noble friend opposite, with his great position in the legal profession, to give himself an outing in lecturing about the procedure of the Privy Council. I am thinking of this man Lynham, of this poor man in Ireland. What is his position? When your Lordships, only three years ago, passed the Treaty how much we heard of the great protection for the minority in Ireland! I have heard it for thirty years in the House of Commons. "Why do honourable Members opposite," it was said, "always talk of the wrongs they have suffered? Have they forgotten the appeal to the Privy Council?" But the moment the question arises of exercising that appeal, then the noble Viscount opposite says, in effect: "What a disservice you are doing to the Empire, and what a disservice you are doing to the Irish people, when you dare to remind us of what we told you was the only possible safeguard upon which you could rely." Is it not turning the procedure of Parliament into a sham when we hear arguments of this kind?

Let us not give the facts the go-by. Leave to appeal was granted, after argument, by the Privy Council. The noble Viscount opposite says: "Oh, but it was only a domestic question." That is a great gratification to the man whose property is to be taken away by retrospective legislation, with a view to depriving him of what you said would be his protection—and you said it for thirty years in my hearing. You said it over and over again in my hearing in the House of Commons. Here, you said, would be his protection if a Government were set up in the South of Ireland. Of course it is a domestic question. Let us look now at the Land Act. Only the other day we had a most distressing debate in this House on the conduct of the British Government in relation to their pledges as regards Irish land legislation and the hopeless position in which they were, having regard to all the pledges they had given. After the breaking of every one of those pledges, after disregarding everything that was said as an inducement to pass the Treaty, the very next act taken by the Free State Government is to say: "We even deprive you of the advantage of having the law carried out in the manner in which every British subject throughout the Empire has the right to have it carried out." Was there ever a more hopeless and more degrading position than that of the British Government—I do not mean this British Government especially, but British Governments generally—who have put themselves into this absolutely hopeless and helpless position?

We always knew it would be hopeless and helpless. I remember that over and over again I was sneered at and jeered at when I used to say in the House of Commons as regards appeals to the Privy Council: Suppose the Irish Parliament (as was then proposed) refused to admit that appeal? The reply was that "you would have the full force of the British Empire behind you." I can hear the noble Viscount opposite saying: "You would be in the same position as every other Dominion," and the rest of it. But supposing you went on with this appeal to-morrow, and supposing Mr. Lynham succeeded in the appeal, I know perfectly well what the Irish Free State would do. They would snap their fingers and say: "We do not care a pin about your judgment." What are you going to do then? What a farce, what a pretence, under which you passed this Treaty, which has brought such cruelty and tyranny to the minority who are your friends in Ireland! Here you see the utter silliness of the pledges you made, and of the arguments by which you induced this House, and induced the country, to agree to the provisions of that Treaty. It is a lamentable exhibition of the inefficiency of Government in this country.

Of course you can do nothing, and that is the weakness, if I may say so, of my noble friend's Question to the Government. The Lord Chancellor said it would be unwise to interfere. Not only would it be unwise, but it would be impossible. What are you going to do, supposing you give a judgment, and supposing they say, "We will not carry it out"? What are you going to do then? Send over your troops? Why, you brought them away when you ran away at the time you made the Treaty. I do not think that would be a very wise performance to go through again. Do not let us have another humiliation of that kind. No, the whole matter is one that only wants reflection upon to show how little we did in Ireland—or, I am sorry to say, at Locarno, for some of the same great statesmen negotiated the two Treaties, the Irish Treaty and the Locarno Treaty. When it is merely a matter upon paper, it is not worth what the paper cost, unless you have behind it the honour of the two parties to the Treaty, zealous and ready and the good will to carry it out.

The Lord Chancellor, the noble Viscount on the Woolsack, said he looked upon this, as I understand it, as an isolated matter that we ought not to make too much of. Let us be under no delusion. Let us tell the whole truth to these people who are still trying to hang on and hold their own in Ireland. Mr. O'Higgins, who I understand holds high office in the Irish Executive, said in introducing the Bill that while it was introduced to bear upon a particular case, he wanted it to be quite clear that their entire feeling was against the exercise of the Prerogative. What is the use of talking about this particular case as a domestic case, as the noble Viscount did? Their entire feeling, Mr. O'Higgins said, was that the Prerogative should become obsolete through non-use. We are under no delusion now in the matter. This country, so far as the Treaty is concerned, has no more power to interfere with the way in which it is carried out than has any other country. It has professed itself absolutely hopeless and powerless in giving effect to the Treaty. It stands before the nations of the world as having made a Treaty with a part of its own Dominions, after making hypocritical pretences towards its own friends, and within three or four years of the Treaty being signed it has to say that it is hopeless of fulfilling its pledges and hopeless of aiding those who trusted it, and that all it can do is to sit by and pronounce benedictions upon the Privy Council and all the good things that it might be able to do if it were only allowed to do them.

There is only one more observation that I should like to make, as a Southern Irishman. I regret the want of common sense which has prevailed in the Government of Southern Ireland in desiring to get rid of the appeal to the Privy Council, not on any grounds of honour or any of the high-faluting matters that we talk so much about in this connection, but on plain common sense business grounds. If there is one thing more than another that Southern Ireland, like any other country, wants at the present time, it is credit. No country can have credit unless there is confidence in the administration of its law. Could there be any worse example of the methods of administration of the law than to find that the moment a decision is given the Legislature intervenes to take away from the subject the rights and the effects that flow from that decision? It is making your Judiciary the handmaiden of the Executive, and nothing is more contrary to liberty and justice than any such proceeding as that.

I would ask the Free State—not that they mind much what I say—to consider what contractors and business men and those who may want to enter into business relations with Ireland will say when they have to consider, in making a contract, whether that contract will be carried out. They will refer to this kind of proceeding, this ex post facto legislation which takes away the rights of the subject and refuses the privilege that a contractor in any other part of His Majesty's Dominions will have of applying to the Privy Council for leave to have the matter determined by the highest Court, perhaps the greatest Court, in the world. The Privy Council is the Court through which British ideas of justice for the various great Dominions which constitute Our Empire are declared and through which the atmosphere of British justice is disseminated, having regard to all the prejudices, the religious feelings and other factors that go to constitute the daily life of a nation; and, apparently, the one place in the whole of the Dominions where it is no longer to prevail is the little corner called the Free State in Ireland, which is going to set up a kind of jurisprudence of its own, which nobody will ever have heard of or will know anything about.


My Lords, I should like to make a few observations in relation to the Question that has been placed upon the Order Paper and has now been discussed at some length. I quite agree with the suggestion that it is a great misfortune that this matter has been raised this afternoon in the way it has been discussed. I do not purpose to labour the question with any lengthy remarks, because I feel that the House will agree with the observations of the Lord Chancellor and of the noble and learned Viscount, Lord Haldane. Looking at the Question tabled by the noble Lord, Lord Danesfort, your Lordships may not have noticed that it is designed— To call attention to the Irish Land Bi11, 1926, which is now before the Senate of the Irish Free State, and its effect on the right of appeal to the Privy Council which is embodied in the Treaty and is expressly preserved by the Constitution of the Irish Free State. That is not quite correct. I do not think that the noble Lord can have carefully considered the point when he was putting the Question down. There is no right of appeal to the Privy Council in the Treaty with the Irish Free State, and there never was a right of appeal. The noble and learned Viscount, Lord Haldane, was quite right in replying to that effect. There is a right to petition for the right of appeal, but that is an entirely different proposition.

I have not had the advantage of reading the Bill that came before the Dail or the debate that has taken place in relation to that Bill, but, from the statements of the Lord Chancellor and Lord Haldane and other speakers, it is quite clear that nothing that has been done in the Dail up to the present time, so far as we know, has in any way dealt with the right of appeal or the right to petition for an appeal. This is a case of the mountain being in labour and the mouse being born—and a very unfortunate mouse it may turn out to be. I am afraid, not alone in connection with this country and with Ireland, but in connection with the whole of the Dominions. Those who bring these questions up and discuss them in the spirit that has been evidenced here this evening are not doing any good or helping on the cause of uniting the great independent States that make up the Commonwealth of the British Empire. Quotations have been read this afternoon from the speech of the Attorney-General in the Parliament of Southern Ireland.


The Minister of Justice.


I beg your pardon. The speech of the Minister of Justice criticising to a certain extent, if he is correctly reported, the value of the connection with the Judicial Committee of the Privy Council. As the noble Viscount, Lord Haldane, pointed out, however, this has been the subject of debate for years. At the Imperial Conference in 1918 the opinion expressed by Dominion representatives showed that feeling against appeals to the Privy Council was stronger than ever in the Dominions. Mr. Hughes said that there was no feeling in Australia in favour of an Imperial Court of Appeal, but there was a strong demand for one thing, and if a vote on it could be taken it would be carried overwhelmingly, and that was that there should be no appeal to the Privy Council or to any Imperial Court of Appeal at all. Sir Robert Borden expressed the view that the tendency in Canada will be to restrict appeals to the Privy Council rather than increase them, and one of his colleagues pointed out that there was a growing opinion that Dominion Courts should be the final authority. Therefore the mere objection to the continuance of the right of appeal to the Privy Council in no way indicates a lack of loyalty on the part of those who so express themselves. The right of appeal to the Privy Council is not very easy for poor litigants to exercise. It is really a Court for the wealthy and for those who can pay the very heavy costs which always follow an appeal to the Privy Council. So it is not well to mix the two things, which has been done here this evening: that is, loyalty to the Empire and a strong desire to do away with the right of appeal to the Privy Council.

It seems to me that the real point at issue in this discussion has been missed. It is this. As I have said, the Free State are either completely right in what they are doing, or they are not right. If they are right, and the Minister of Justice was right to come down and introduce this Bill, and it is going to pass into law, and is going to affect certain people, what right has anybody to interfere in a matter which is within the rights of the Irish Parliament? If, on the other hand, this Bill is ultra vires and an infraction of the Treaty, as has been suggested, then of what value will it be? It was stated here this afternoon by the noble Lord who tabled this Question that the Treaty between the Free State and this country can only be altered by an Act of the Imperial Parliament. I think that is what he stated.


Perhaps the noble Lord will allow me to say what I did say. I said that this Prerogative right, which gives a subject a right to petition for leave to appeal, and the right of the King to grant that leave, is a thing which can only be altered by Imperial Statute, and that is what the Privy Council decided the other day.


I take issue upon that, and I would point out that the Imperial Parliament has no power to do that, because it would be a breach of the Treaty. The only way in which the Treaty can be amended, even in relation to this right of appeal, is by mutual agreement of the Irish Free State and the Imperial Parliament. What right has the Imperial Parliament to take away the right of petition for leave to appeal? If the people of the Irish Free State have a right to-day, under the Treaty, of appeal to the Judicial Committee, then the Imperial Parliament has no power, unless it breaks the Treaty, to rob them of that appeal. Therefore there is nothing in that. The real point is this. What is the nature of the Bill that is before the Free State Parliament? It is a Bill which may be of a retrospective character, but it is a matter dealing with land and not dealing with the Judicial Committee of the Privy Council, and it is a very unfortunate circumstance that it should have been brought under discussion this afternoon, and dealt with in the way in which it has been dealt with.


My Lords, the noble Lord, Lord Danesfort, has put a Question that is likely to arise for many years in the future, and for this reason only, that the Irish Free State has a written Constitution and this country has not a written Constitution. It has been taken for granted that the Bill has passed both Houses of Parliament in Ireland, but that is not the case, and I must remind you that very prominent members of the Senate took very strong exception to the Bill. I will read exactly what Mr. Brown, K.C., a very well-known member of the Senate, and one who is well known over here, said on the second stage of the Bill: Strongly as I hold the view that leave of the Privy Council ought not to be given in ordinary cases involving our own domestic laws, I am equally strongly of opinion that the right of appeal to the Privy Council in cases which involve law which is common to us, to Great Britain, and to the Colonies, and involves constitutional questions or questions of great importance of that outside nature, the right of appeal ought to be preserved. That was followed by other speakers and, notably, by two members of the Labour Party who sit in the Senate.

I find myself in an excessively difficult position. I am the only person in this House who has sat in the Senate from its beginning, and also been a member of this House. The Lord Chancellor dealt with the cases and said that the Judicial Committee of the Privy Council in one case did not think it was a case to come before the Privy Council, and in the other they gave leave to appeal. Well, that was a very fair and straightforward answer by the Lord Chancellor, but there is snore to be said about this matter. I have no brief from the Free State or from anybody else, and I did not even know what the Lord Chancellor was going to say, nor did I seek to find out; but your Lordships must remember that the Bill in question is not through yet, and the Amendments that the Senate have sent up to the Dail are Amendments, so far as I can understand them, which will protect the subjects of the Free State and give them the right, which they have always had, to petition the King for leave to appeal.

I believe I am right in saying—and your Lordships must remember this—that we have had serious and difficult questions to decide with the Dail. There things are said in the heat of argument that will not bear five minutes' proper criticism. They are demolished, and they are very properly demolished. I have been through some of the most important Bills in Committee, and our differences have been very great. There have had to be Joint Committees of both Houses to settle them, but in the main I am not exaggerating when say that we have had the country behind us. The Senate in Ireland is respected. There are people over there who talk with their tongues in their cheeks, and, as is vulgarly said, through their hats. But the truth is that the people of Ireland want order. They have had plenty of law, but they want order, and they are determined to have order from the very beginning, and I hope that as long as I am alive I shall see that that is carried out. You do not know what our difficulties have been—sitting there with the shots ringing out all round the Senate.

I am glad that the Lord Chancellor said that if there was a succession of Statutes which, by degrees, attempted to do away with the right of the subject of the United Kingdom of Great Britain and Ireland to appeal to the King for the right to be heard in the Privy Council, then this Government would take notice of it. They would have to take notice of it, naturally. But I think you will find that in the end we shall carry out the Treaty and the undertaking that was given after the Treaty to the same extent as the Government of this country have carried them out. I hope what I have said has made it quite clear that we shall try to do our duly, as I have found the English Government do their duty towards our country.