§ LORD DANESFORT had given Notice to ask His Majesty's Government whether their attention has been called to a speech delivered in the Free State Senate on 20th November last by Mr. Blythe, the Free State Minister of Finance, on the subject of appeals from the Free State Supreme Court to the Privy Council, and in particular to Mr. Blythe's statement that if a private individual brought an appeal before the Privy Council and its decision should reverse the judgment of the Free State Supreme Court, the Free State Government would take whatever steps were necessary to make the appeal ineffective; what steps His Majesty's Government will take to maintain the rights of British citizens under the Treaty and the Constitution of the Free State; and to move for Papers.
§ The noble Lord said: My Lords, on November 13 last I drew your Lordships' attention to some recent actions of the Free State Government which indicated a clear and determined policy on their part to deprive British subjects resident in the Free State of the benefits which had been given to them by the Treaty and the Free State Constitution as regards 839 the right to appeal to the Privy-Council, and further to cause those appeals, if they did take place, to be entirely nugatory. Since that date a remarkable speech has been delivered in the Free State Senate, I think on November 20 last. The Free State Minister of Finance, in clear and distinct language, declared that it was the intention of the Free State Government to persist in that course of action for the purpose of destroying that right of appeal by their independent and, as I think, wholly unauthorised action.
§ May I at the outset emphasise one point? The question to-day is not whether that right of appeal should be abrogated. That can only be done by action both in the Parliament of the United Kingdom and the Parliament of the Free State. The question to-day is whether while that right of appeal subsists the Free State Government had any justification or excuse for destroying that right. Incidentally, perhaps I may remind your Lordships that this right of appeal was an essential part of the bargain that was made between the Free State Government on the one hand and the Government of this country on the other. That right was embodied in the Treaty, and it is worth while remembering that President Cosgrave himself, when the Constitution of the Free State was being discussed in the Free State Parliament, stated positively that this right of appeal was an essential part of the bargain, and that he could not, and they could not, accept that part of the bargain which was favourable to them and reject such part as they did not like. In that respect I think it is also worth remembering on a future occasion that the case of the Free State as regards this right of appeal to the Privy Council differs fundamentally from the case of the other Dominions of the Crown.
§ May I now draw your Lordships' attention to the speech of Mr. Blythe, which was delivered in the Free State Senate on November 20 last? The question under discussion was a Bill which was introduced into the Irish Free State Parliament for the purpose of the settlement of the notorious case of Wigg and Cochrane. As your Lordships will remember, that was a case in which the Privy Council, not by one but by two distinct decisions, decided that certain 840 ex-British civil servants, the appellants in the case, were entitled to additional advantage's and pensions beyond those which the Free State were willing to concede, and notwithstanding those decisions of the Privy Council the Free State absolutely refused to give those civil servants those additional benefits, and the taxpayers of this country were compelled practically to pay those additional benefits out of their own pockets.
§
In the course of the debate Mr. Blythe, having pointed out, truly and quite frankly, that the right of appeal to the Privy Council had, to use his own words, "its roots in Article 2 of the Treaty," then went on with a strange inconsequence to say this:—
There will be no more appeals taken, and if there are they will produce no results.
He then used these remarkable words, and you will find them in Volume 13, col. 45, of the Official Report of the Free State Parliament:—
If the Privy Council should still hear private litigants, and decide on the suits of private litigants, and reverse the decisions of the Supreme Court here, we would take whatever steps may be necessary, whether by legislation or otherwise, to make the effort of the Privy Council to reverse the decisions of the Supreme Court here ineffective.
That was a serious statement—a most serious statement—made by a responsible Minister of the Free State Government, and I desire to use no stronger language about it than the circumstances justify; but I venture to say that in my opinion, and I think in the opinion of many more qualified to judge than myself, that statement was a direct and flagrant violation of Treaty rights. I should add that the statement has excited no small alarm and anxiety among those British subjects resident in Southern Ireland who believed, and had justification for believing, that the right of appeal to the Privy Council had been inviolably protected and preserved by the Treaty itself and by the Constitution which followed it.
§ Your Lordships will remember that on the occasion of the last debate on this subject in this House the Secretary of State for Dominion Affairs and the Colonies deprecated any action in this House which might reflect upon the proceedings of any Dominion Parliament. May I respectfully point out to him, and 841 to the House, that I am not now criticising, or inviting this House to criticise, any legislative action of the Free State Parliament. My abject is to call your Lordships' attention to this pronouncement made by a Minister of the Free State, speaking presumably on behalf of his Government, and to enquire what steps His Majesty's Government will take to maintain the rights of British subjects under the Treaty and Constitution. To such an inquiry and such a course of action, I can conceive that there can be no constitutional objection, even on the most rigid view of the relations between this country and the Free State.
§
Your Lordships, I think, are entitled to know what up to now has been the avowed and open attitude of the present Government in regard to this matter. On the 25th of last month the Prime Minister was asked in another place whether he had observed Mr. Blythe's statement on this matter. It had already then been widely published. His answer was this—
I answer questions here as Prime Minister, not as a casual newspaper reader.
To me at any rate that form of answer appears exceedingly evasive, and it was not the form of answer which in former days we were accustomed to receive from the Prime Minister of this country. On November 27 the Prime Minister was again asked whether he had now made himself acquainted with this subject, and whether any communication had been made by the Free State Government to His Majesty's Government on the subject. His reply was this—
The Government have had no communication from the Irish Free State Government in this matter, and such a communication, and such a communication alone, will receive my official attention.
§ That answer will be found in Vol. 232, col. 1411, of the House of Commons OFFICIAL REPORT.
§ I venture to think that the statement I have just read is an astounding statement to be made by the Prime Minister. It comes to this, that if a wrong is done, or alleged to be done, to a British subject by the Free State Government, in violation of the Treaty, the Prime Minister will completely disregard it and put it on one side, unless indeed his attention is called to it by the alleged wrongdoer. Well, there again I think 842 is a new constitutional doctrine and an attitude which I prefer not to describe in the language in which I should like to describe it. I dare say other noble Lords will be able to give it a more suitable description than my vocabulary permits. I trust at any rate that the Secretary of State will not adopt that form of reply or put forward any such excuse for refusing to give attention to this matter to-day. This House has always been a custodian of the rights and liberties of the subject, and has been jealous to protect the subject from injustice, from whatever quarter it may come, and I do hope that the House will to-day feel that it is entitled to a clear and distinct statement from the Government as to the policy they intend to pursue in regard to this matter; because once you allow a deliberate infraction of Treaty rights, whether with a Dominion or any other Power, I venture to think you inflict a blow upon civilised government of which the end is impossible to foresee. I beg to ask His Majesty's Government what steps they will take to maintain the rights of British citizens in the Treaty and the Constitution of the Free State, and I move for Papers.
§ LORD CARSONMy Lords, I doubt very much if it has yet been realised, frequently as this question was debated in this House when the late Government was in power, how far-reaching is the effect of what took place in Ireland when the Irish Government deliberately stated that they would take whatever steps were necessary to make the decisions of the Judicial Committee of the Privy Council ineffective. I do not deny in the least the right of any of our Dominions to say they no longer want to appeal to the Privy Council, and in a constitutional manner to get rid of that appeal. In the case of Canada it would be done by some amendment of the British North America Act, and in other Dominions by some similar means. But in the case of Ireland, under Article 2 of the Treaty, as Mr. Blythe himself admits, this appeal is part of the Constitution, part of the terms upon which Home Rule, or whatever you like to call it, was granted to the Irish Free State. In another place year after year I used to hear them ask from the Government Benches: "What are you afraid of? You have got the appeal to 843 the Privy Council; you will always have the Privy Council." When the Free State was constituted you specifically put it in, and it is, therefore, as much a part of the Constitution of the Free State as are any of the other Courts.
Just look at what that leads to in the way of retrogression and chaos. An Executive Government claims that if one of its Courts gives a decision which it does not like it has a right to say: "We will take whatever steps are necessary to make that decision ineffective." The very foundations of liberty are swept away. Fancy the Government in this country saying: "If any of our Courts, the Appellate Court or any other, gives a decision we do not like, then we with our majority in the House of Commons, and with the ineptitude of the House of Lords, will turn it into naught, we will bring in a law to get rid of it." Consider what it means also to your other Dominions. What are the majority of the cases which come from Canada to the Privy Council? They are cases of litigation between the Dominion Parliament and the Provincial Parliaments—nearly all are cases of that kind. Think what it would mean if any one of these Provincial Parliaments were to say: "We will not allow this appeal to go to the Privy Council. If the Privy Council decide that the Dominion Parliament is right and we are wrong, we will give no effect to it." It is exactly the same. There is nothing at the back of this but chaos.
When this country hands over a large number of her subjects to those who have been their opponents all their lives, and with the one sole protection of an appeal to the Privy Council, I want to know is this Court to allow itself to be laughed at as Mr. Blythe laughed at it all through his speech? Even in the Wigg and Cochrane case he got you to set up one Privy Council to try and overrule another one, and what was his comment on it? His comment was that the Court which was set up to relieve them from the decision of the first—and I commend this to the noble Marquess, Lord Reading, who presided over it—delivered a more extraordinary and absurd judgment than the previous one. Then he goes and ridicules what you did and what you are always doing in the present day of sloppy subservience to any one who 844 insults you and breaks your laws. He says: "What harm did it do us? We sent over counsel just to please them and make a show before the Privy Council. We were not really there at all—it was they who paid the Privy Council. We did not; it all came out of the taxpayers' money in England. And then when the decision went against us what harm did it do us? True it was that under the Treaty we were to pay the sums to the British civil servants who were handed over to us. Not likely! Oh, no, the British Government paid for us." Well, I call that blackmail, and upon each and every occasion upon which this country and the Free State have differed you have always yielded to blackmail. Why, I do not know.
When it came to the question of paying them for property that was blown up, in which they were manufacturing the bombs to blow up your soldiers, you gave them £900,000 rather than have a word with them. It was not under this Government; it was under the last Government. When it came to the question of the boundary between the Six Counties and the rest of Ireland, when, having appointed a Commission, it came to agreeing either to the proposed boundary or the boundary as it existed, you struck out of the Treaty their share of the National Debt which amounted to between £300,000,000 and £500,000,000. That was all out of the money of the taxpayers of this country. How long will you go on doing that? How much do you like being kicked in this country? What is the use of the Free State to you in those circumstances? If they will not fall in with and carry out the ordinary treaty obligations they have entered into and the conditions on which they were set up and under which large sums of money have been paid to them, what do you want with them?
This may appear perhaps a little irrelevant, but I think it is germane. It was only the other day that my old constituency, Trinity College, Dublin, held its great annual sports meeting, which is always one of the great social events in Dublin and has been ever since I was a little boy. I have been there many times as steward. On this occasion, as usual, they invited the Governor of the Free State, the Governor appointed by you, to attend the sports, out of courtesy 845 naturally, although I dare say the majority of them may not have been in sympathy with his politics. What reply did he make? He wrote back to say that he would be very happy to come on one condition and on one condition only—that "God Save the King" should not be sung. That is part of your Empire! Every time there is difficulty you pay them so as to give a good appearance to the thing, as they say themselves in the speeches in question. It is far better to let them go if they want to go. Is there no pride in being part of the British Empire? Have you always to go begging to people and saying: "For God's sake, come in. We will give you anything to say you are part of the British Empire." The whole thing from the commencement until this question of the Privy Council arose has been ignominious, not only for the Free State but for the British Government, and just as much for the last Government as well. I do not in the least wish to cloak the fact that it arose under the last Government. I remember very well the disastrous answers given by Mr. Amery when he held the position now occupied by the noble Lord opposite.
I am very proud as an Irishman to be a member of the British Empire. Why should you always go about patting upon the back and yielding to people, in fact, almost licking their boots, simply because they are always insulting you, insulting your King and insulting the very Treaty under which they exist? That is the way with them. I hope that something will be done to put an end to this state of affairs. Let us have reality. Tell them either that they must conform to the Treaty which constituted them, as any proper, honest Government would and ought to do, or give them up altogether. As an Irishman born in the Free State, and having lived and practised there (I came over here when I was somewhere about 37 years of age and I am very glad that I did) let me say this: I am extremely sorry from every point of view at the course taken by the Free State, by Mr. Blythe and Mr. Cosgrave, from the Irish point of view, and I will tell your Lordships why. Day after day in this country I hear merchants, contractors, and others saying that they would not enter into a contract with people in Ireland for any money you could give them. Of course not. It is the only one of our 846 Dominions in which we do not know what law is administered or whether there is any law. I do not know whether the Executive there have the whole of the Judiciary in their power. They have, at all events, claimed the right to set aside their decisions. That is a very serious thing for Ireland.
I want to make one thing clear which I think ought to be made perfectly clear upon every occasion. It is that this has nothing whatever to do with Ulster. I know of my own knowledge of people who have said, when orders were sent to them from Ulster, that they never dealt with Ireland and would not send goods to Ireland as they did not know whether they would be paid. There is an impression abroad that there is no difference between the North and the South. Ulster is proud that the same law that is administered here and throughout the Dominions in the Privy Council should apply to her. Every British merchant—I say this purposely in order that it may be remembered—and every British contractor and shop-keeper can deal with the Six Counties with the full knowledge that they have the right, if necessary, if it is a case of contract, to bring it to the Privy Council. This action of the Free State regarding the Privy Council affects not merely British subjects in Ireland but any British subject who enters into a contract with people there. I rather think that the last case that arose was that of an English contractor who brought an action over there and carried it to the Privy Council.
§ LORD DANESFORTYes.
§ LORD CARSONAnd then the law was altered so as to prevent the appeal. In passing, though I do not give it as my opinion only, I do not think that it is at all a possible or effective thing to do having regard to the Treaty. This is no trivial matter. It is a far reaching constitutional question. There is no question on my part of any hostility whatsoever to the Free State. All that is buried and gone. Hundreds of my friends have been ruined—well, there let it be! It was the policy of the British Government, including many eminent Conservatives who were going to die on the floor of the House before such a thing should happen, but who agreed to it. Having made the Treaty of surrender and betrayal the 847 least you ought to do is to see whether this great country is not strong enough and able enough to ensure that what was contracted for is carried out.
§ LORD PARMOORMy Lords, I think a large portion of the speech to which we have just listened ought to be answered by some one on the other side of the House, because what the noble Lord, Lord Carson, has protested against in very able terms and in strong language, perhaps not too strong from his point of view, is the Constitution of the Free State itself. He talks about the surrender of the rights of the minority in the Free State, about the distinction between Ulster and the Free State; and no doubt he is quite right. Whether it is a good thing for Ireland or not is a different question. No one can suppose, for a moment, that the same spirit exists in Ulster as in the Free State of Ireland. I certainly would not suggest it, and I do not think anyone else would. But is not all this past history? I will come to the particular point in a moment. As I followed the noble Lord he did not deal, except perhaps in a sentence or two, with the Question brought forward by the noble Lord, Lord Danesfort. But he did tell us today, as he has very often done before in this House, and as he has often told the House of Commons, that in his view the Irish Free State ought not to have been constituted. Today he went so far as to ask why do we not throw it off as an incubus—not as an honoured member of our Imperial system but as an incubus, which is nothing but a drawback to our Imperial and national position.
Before I come to the particular point I would like to make a reference to the speech of the noble Lord, Lord Danesfort. I do not think it is well in a discussion in this House to attack a Prime Minister in the language that the noble Lord used, because he cannot be here to defend himself. There are plenty of opportunities of attacking the Prime Minister in the other House. The noble Lord said that the Prime Minister had been exceedingly evasive.
§ LORD DANESFORTI say it again.
§ LORD PARMOORI deny it altogether. But the real person to answer an allegation of that kind is, of course, the Prime Minister himself. In the 848 same way, if the noble Lord himself made a speech which some one had criticised as being exceedingly evasive, he would be the first person to say: "An allegation of that kind had better be made when I am present; I am prepared to defend what I said, or to give quite a different meaning to that which has been attached to the words to which reference has been made."
§ LORD DANESFORTDoes the noble Lord defend those answers I read?
§ LORD PARMOORCertainly, I defend every word of them. I think the inference the noble Lord makes cannot be drawn from the words which were used. I do not, however, like to use the word "defend" in this connection. I think every word the Prime Minister used was justified, and that the word "evasive" is not justified in regard to the language he used. Lord Danesfort made another statement. I do not want to misrepresent him, but the purport of it was that the Prime Minister was careless of wrongs done to British citizens. Let us consider what we are dealing with an what the Prime Minister was dealing with. There is no question here of any wrong done to a British citizen, absolutely none. So true is it that no such wrong was done that to a great extent it is the essence of the position. I should like to know what a Government could do in the circumstances which are now suggested, and what would be the attitude they could take up, and I hope would take up, if a British citizen was deprived in any way of the rights to which he is entitled. I must say in passing that it seems to me most unfortunate we should have a debate of this kind upon words used elsewhere by one of the Ministers of the Irish Free State.
§ LORD CARSONHear, hear!
§ LORD PARMOORI am afraid the noble Lord says that ironically. I would like him to see that the matter in debate on that occasion was the putting into force of the rights of the civil servants of Ireland which had been ascertained by the Privy Council in this country, and the resolution in favour of the civil servants was carried in the Senate, I think unanimously.
§ LORD DANESFORTI can tell the noble Lord what was done. Mr. Blythe 849 recommended this measure to the House, and expressly said he put it upon the ground that the British taxpayer was going to pay the sums which they ought to have paid themselves.
§ LORD PARMOORThe reasons may be exceedingly had ones. I have the greatest respect for the noble Lord, but I have heard him use some bad reasons at times. That was not the question. The only act was the confirmation of the right of the civil servants to the pay, and to the consideration which had been adjudged to be their right by the decision of the Privy Council. I will deal in a moment with what was said. Mr. Blythe made certain statements to which the noble Lord has referred. It is exceedingly difficult, and a great deal of harm may be done, by having a discussion of this kind on terms used in a debate in one of our Dominions. Whether it be Canada, or Australia, or any other country, nothing is more likely to lead to [misunderstanding, nothing is more likely to put on one side the friendly and conciliatory spirit upon which at any rate in my view the whole framework of the Empire now depends. It makes no difference whether it is a debate in the Senate of the Free State or a debate in the Senate or Second Chamber of any of our Dominions.
How does the matter really stand? The noble Lord, Lord Carson, said quite rightly that Mr. Blythe recognised fully what he called the contractual obligations of Article 2 of the Treaty, and he said, in terms, that Article 66 of the Constitution had been constantly referred to. Article 66 deals with the special right of appeal, which was the question that the noble Lord raised the other day. He said: Why go beyond that? It is not a question of the proviso to Article 66 or the way Article 66 is framed. I regard the terms of Article 2 as placing the Irish Free State in the same position as the Dominion of Canada in regard to the basic and contractual relations between the two countries. I do not see how we can go further than that. I think he is right. We all of us regret the phrases to which attention has been called, but to call attention to particular phrases may be misleading—I do not mean intentionally misleading—unless you deal with the whole speech and consider the whole circumstances in which it was made.
850 Let me answer what Lord Carson says. I think the position now really depends on the Report of the Empire Conference in 1926. That, again, was a very admirable Report drawn up by Lord Balfour and accepted, after debate, in this House and in the other House. I am speaking to-night—Lord Passfield will speak afterwards—because it is in my Department as President of the Council that the whole status and position of the Privy Council has to be considered. It is the headquarters.
§ LORD CARSONWas any law altered by that?
§ LORD PARMOORI want you to listen to me. I do not think it was, but I am going to tell you how I think the position was altered. I am dealing with the purely technical point as to how the position was altered and how it stands at the present time. In the Report of the 1926 Conference one of the paragraphs, and a very important paragraph, is headed "Appeals to the Judicial Committee of the Privy Council." That is what we are dealing with at the present time. I will only read the relevant words. The Report says:—
From these discussions it became clear that it was no part of the policy of His Majesty's Government—that is, the Conservative Government—in Great Britain that questions affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of the Empire primarily affected.Now what was said in the debate? It was that you have not only to consider technical, legal words—of course they are very important—but you have to consider whether a new atmosphere—
§ LORD CARSONMay I ask the noble and learned Lord whether he is arguing that what took place at the Conference repealed the Act of Parliament setting up the Constitution under which an appeal was taken to the Privy Council? If not, what is the relevance of this?
§
LORD PARMOOR It is most relevant. You need not repeal an Act. Of course, that is the answer and the noble and learned Lord would not have asked me the question if he had not been absolutely certain what the answer would be. It is very important to see how the matter stands at the present time. That is the real pith and marrow of Mr.
851
Blythe's speech. I will now read on. The paragraph in the Conference Report continues:—
It was, however, generally recognised that, where changes in the existing system were proposed which, while primarily affecting one part, raised issues in which other parts of the Empire were also concerned, such changes ought only to be carried out after consultation and discussion.
So far as the work of the Committee was concerned, this general understanding expressed all that was required. The question of some immediate change in the present conditions governing appeals from the Irish Free State was not pressed in relation to the present Conference, though it was made clear that the right was reserved to bring up the matter again at the next Imperial Conference for discussion in relation to the facts of this particular case.
That means the Irish Free State. Now what does that mean? I am asked what is the policy of His Majesty's Government? My answer is that on this Imperial question our policy is the policy indicated in the Report of the Imperial Conference of 1926.
§ LORD CARSONDoes that mean that the noble and learned Lord says that the policy of the Government is that they encourage the Free State to break the law?
§ LORD PARMOORNo, nor have they done it. It is not a breach of the law. If I may remind the noble and learned Lord—perhaps he has forgotten it having regard to some of what I may call the very urgent speeches he has made—it is not a breach of the law to make a speech in the Senate or in the House of Commons attacking the legal system and saying you do not intend to be bound by it. That is not breaking the law. I am afraid many of us, I am afraid the noble and learned Lord himself, would have got into trouble if that had been so. Of course, I am not saying that by taking up this question at this date and basing an attack on the report of a speech in the Senate in the Irish Free State, there has been any breach of the law of any kind. It has been mentioned that there has been no communication to the Government. Of course there has been no communication. Who could make any communication to the Government on a matter of that kind? I am bound to admit that I think it is most regrettable—I think everyone 852 will be sorry—that words of this kind have been used; but I am afraid if many of us look back into the past we must regret language used. But there is no illegality, no suggestion of illegality, no complaint of illegality of any kind. If you ask what the outlook of the Government is, we are going to hold by the Report of the 1926 Conference drawn up by our predecessors under the Chairmanship of the Earl of Balfour, and when the time comes in 1930 the whole matter will be ripe for decision. One cannot foretell that. We may not be here at that time. It is not for us to prophecy what will happen in 1930. Still worse would it be at this time for the Government now in power to assume that illegality had been committed which in fact has not been committed.
§ LORD CARSONYes, it has.
§ LORD PARMOORSpeech is not illegal.
§ LORD CARSONThe noble and learned Lord is in error. They have passed two Bills getting rid of the Privy Council.
§ LORD PARMOORBut even that by itself is not illegal.
§ LORD CARSONYes, it is.
§ LORD PARMOORWith great respect to the noble and learned Lord—we have had many contests in many places, but I do not want a contest with him now—I say that in my opinion it is not. I do not believe any ordinary lawyer putting it in that way would suggest that that is an illegality. I do not think it is. Therefore, as I say, our policy will be and is the policy which I find enunciated in the 1926 Conference Report. Of course, we regret language of this kind. We should regret any one using language of this kind. I am sorry even that the noble Lord himself used language which might promote, instead of conciliation and friendship, unfriendliness between this country and the Irish Free State. After all, our Empire depends on promoting a kindly feeling in all parts of it. That will be our policy and when the 1930 Conference is held we shall carry out what was laid down and enunciated in 1926.
§ THE MARQUESS OF READINGMy Lords, I should not have intervened in this debate but for some observations 853 which fell from the noble and learned Lord, the Lord President of the Council, in which he defended as no illegality, and treated as a matter on which no lawyer could differ from him, the position taken up by the Minister of Finance in the Irish Parliament. I am only concerned in discussing the constitutional question which has been raised. May I say that as a lawyer, I differ from him profoundly.
§ THE MARQUESS OF READINGIn my view the argument he has put forward, though it may be and most probably is the best that could be advanced in defending a difficult position, is one of that kind of quibbling which has often brought lawyers into disrepute. What is the position? I have no desire to take any part in the political side of the debate or as it affects past decisions of the Judicial Committee. I am dealing only with the constitutional question as I see it. There is agreement by a formal Treaty, binding not only in law but in honour. The Irish Free State was party to an agreement by which, under Article 2 of the Treaty, and also under Article 66 of the Constitution, there is no question regarding the right of appeal to the Privy Council in certain cases. I do not enter into detail or into the limitations, because really they are not germane to the matter we are now-discussing. The whole point concerns the right of appeal under the Treaty and the answer made to the arguments of the noble and learned Lords, Lord Danesfort and Lord Carson.
I agree with what Lord Parmoor said as to no action having been taken with regard to an individual, but there is a vital difference between this and saying that there is nothing illegal of which complaint can be made in reference to the Treaty. Let me point out to him something that I cannot but think has been forgotten or not sufficiently regarded in considering this question. The position is that there is a right of appeal as matters stand. The Minister has said so. He has referred to the Treaty and there is no question about it. The right of appeal, until it has been abrogated by agreement between the Irish Free State and this country, remains. In order that there may be no doubt about it, and to show that this is recognised by the Minister, I would point 854 out that he used almost the same language—
§ LORD PARMOORPerhaps I may be allowed to say to the noble and learned Marquess that I not only agree with him, but that I referred to that language, which is familiar to me.
§ THE MARQUESS OF READINGMy noble friend did not refer to the particular sentence to which I desire to call attention. In this respect I am not in controversy with him, nor even with Mr. Blythe. On the contrary I am pointing out what he said. His words were:
…we would take whatever steps may be necessary, whether by legislation or otherwise, to make the effort of the Privy Council to reverse the decisions of the Supreme Court here ineffective; that is, pending the time when we can get agreement with the British Government to wipe out the appearance of the right of appeal, and to abolish the whole idea of appeal to the Privy Council.That makes it quite plain that it is recognised that there is no agreement at the present moment, and therefore references to what took place in 1926 at the Imperial Conference scarcely assist in the matter. All that they do indicate—and I think my noble friend would have been justified in confining his observations to this—is that there were discussions at the Conference in 1926, that references were made to the right of appeal to the Privy Council and that, so far as I can understand, the matter was left open for discussion at the next Imperial Conference when, if necessary, legislation would be introduced in the various Dominions giving effect to the agreement which had been reached. I challenge contradiction upon that point, and I am quite sure that my noble and learned friend will agree.
§ LORD PARMOORCertainly.
THE MARQUEISS OF READINGThat being the decision, how do matters stand now? Let me take the case of an individual who seeks to appeal to the Privy Council because he hopes to reverse a decision of the Court in Ireland. This is a right which he has by agreement. It has hitherto been considered the right of any subject in the Dominions to petition the King. If he appeals at the present moment, he is justified. His appeal, properly stated, comes before the Judicial Committee, and he spends 855 his time, his labour, his attention and his money for the purpose of obtaining a decision. The vice of the statement that has been made, if it were ever to be made effective, would be that it is giving notice to him that, if he takes that step, he is wasting his money, his time and his attention, for the reason that, if he succeeds in reversing the decision in Ireland, then, "whether by legislation or otherwise," to use the words of the Minister, steps will be taken to render that appeal ineffective.
That is obviously the true state of affairs, and I do not hesitate to say that, to my mind, it is more serious than the breach of a legal obligation. It is a breach of honour. They say: "We are bound by the Treaty; we can be forced by law, if there is a Court which can enforce it, to carry it out but we will take steps to render ineffective any decision which interferes with the decisions of our Court." And yet in the same breath, the Minister says: "I admit that we are bound by the agreement. I admit that, until there is a new agreement, the right of appeal to the Privy Council stands. But, although we are bound in honour and by law, we will take such steps that nobody will be so foolish as to waste his time or money by going to the Judicial Committee to get a decision reversed, because we give him full notice that, if he does that, although we cannot object that he has no right of appeal, we will take care that he gets nothing out of what he has done and, indeed, that he will be worse off because he will lose the money which he has spent on prosecuting the appeal."
I cannot believe that this is really what the Minister means, but I have looked at this statement and considered it very carefully. It may be that it is not satisfactorily expressed. It is possible, it occurs to me, that what he meant was that, when the time came, they would seek to make appeals ineffective by preventing appeals to the Privy Council. But the language that he used, unless it is explained, merits every observation that I have made with regard to it. Indeed I go further. I will challenge any member of your Lordships' House, in view of the facts to which I have referred and which are beyond controversy, to get up in this House and say that, if the speech 856 means what it does mean according to the ordinary interpretation of the English language, and if it is the fact that successful appeals to the Privy Council under the Treaty are to be made ineffective, by legislation or otherwise—I defy any member of this House to get up and deny that this is not only a breach of the Treaty but also a breach of honour. I hope that we shall have an explanation.
§ THE MARQUESS OF SALISBURYMy Lords, I think that the noble and learned Lord the Leader of the House, after listening to the speech of the noble and learned Marquess, must regret the tone which he adopted in answering my noble friend. Compare the two speeches. If the speech to which we have just listened had come from this Bench, from avowed Unionists, from people who had opposed the Treaty and who deplored the policy of the Government who passed the Treaty, if one of us had made the speech to which we have just listened, it might not have been so impressive. But the noble and learned Marquess is as much a Home Ruler as the noble and learned Lord opposite. He belongs to a Party which is quite as much responsible for all the misfortunes of the Irish policy as the noble and learned Lord opposite. And yet the noble and learned Marquess, when he was faced with this deplorable speech by an Irish Minister, did not hesitate to say exactly what he thought about it. He stood up before your Lordships' House and the country and said that this was not merely a question of a breach of law; it was a breach of an obligation of honour. He did not apologise for the Irish Ministers, and he did not try to minimise what they had done. He said quite frankly, what I should have thought any sincere man must say, that the speech which was made in the Irish Senate was a deplorable speech.
I must say that I regret very much the line which the Government have taken. Altogether apart from any personal or political convictions they may have on these subjects, it is their business to see that the Treaties which have been made between this country and any other country are fulfilled. If there is an obvious breach of the spirit of the Treaty it is their business to say so, and I cannot for the life of me understand why they should not say 857 so. What harm could happen to them if they said what the noble Marquess has said? Why should they not stand up for the rights of this country and the rights of those whose interests we are bound to protect in Ireland? The only answer, so far as I can understand, which the noble and learned Lord could make, was that next year the matter will be brought up at the Imperial Conference, and that therefore nothing is to be done to maintain the law in the meantime. That seems to me a most singular want of judicial sense.
§ LORD PARMOORI never said that.
§ THE MARQUESS OF SALISBURYI really do not think I have misrepresented the noble and learned Lord. So far as I can make out, the Government do not propose to take any action, either in this House or elsewhere, to condemn what has been done, but propose to hold the whole thing over till the Conference next autumn. The course which I should have thought would be pursued would be a proper remonstrance on the part of His Majesty's Government in regard to the speech made in Ireland, and a representation to the Irish Government that we look to them to maintain the law until the law is altered, just like any other civilised country would do. Surely the essence of a State is the acceptance of a common responsibility, and the essence of a common responsibility is that people should keep their word. That is what is essential. The Irish Government have entered into certain obligations, and they allow a Minister, one of their own Cabinet, speaking in the Irish Parliament, to say distinctly that whatever the law may be with regard to Privy Council judgments they, the Executive Government, will see that those judgments are ineffective.
Can there be anything more—I cannot avoid the word—outrageous than that, as a statement from an Executive Government? That has been said in your Lordships' House, not by a poor benighted Unionist, but by the noble and learned Marquess, speaking, as he ought to speak, with a full sense of his responsibility as a great judicial officer of this country. I wish His Majesty's Government had pursued a like course, and I earnestly hope that the effect of this debate may be that the Irish 858 Government will realise that if they are to deserve the name of a great Dominion, if there is to be a great Dominion history before them, they must begin by learning what are the obligations of a Dominion or a relatively independent State—to keep their word and maintain their Treaty obligations, and not allow their Ministers to denounce beforehand legitimate judicial decisions by which they are bound by Treaty but which are to be rendered ineffective by executive action.
§ LORD PASSFIELDMy Lords, I do not propose to detain you many minutes, but the speech of the noble Marquess deserves some word of recognition from this Bench. I want to say that far from rising to defend a difficult position, I do not feel any difficulty in the matter, because I claim that we here are in agreement with nearly all that the noble Marquess on the other side has said, and with what the noble Marquess who has just sat down has said, As a matter of fact of course we believe that agreements should be observed, and should be observed in the spirit as well as in the letter. Of course we believe that Treaty obligation are sacred until they are revised by consent, and so on; but, on the other hand, I think it is desirable to be a little careful before we assume that those with whom we are dealing are going actually to break a Treaty or to depart from their word. One has to be slow, even in face of expressions, to assume that people are going to act in a way which we think dishonourable, and I am not going; to assume that the Irish Government are going to commit any breach of the Treaty or to do anything illegal under the existing law.
I venture to say that a great deal of this discussion this afternoon has gone a little askew, because of the failure to distinguish between the actual committal of an illegality and assertions that you are going to do something which, if done, would be an illegality. I am afraid that many of us have been guilty in speech of saying that we are going to do something which on reflection we find to be illegal or dishonourable, and so we do not carry out our intention.
THE MARQUESAS OF READINGWill the noble Lord forgive me if I ask one question? What is to be the state of mind of the man who thinks he has a perfect right 859 to appeal on a good case to the Judicial Committee of the Privy Council, but is told that if he succeeds the result will be ineffective?
§ LORD PASSFIELDI am sorry that I cannot answer that conundrum. Perhaps some noble Lord opposite can answer it. I do not think the noble Marquess could answer it.
§ THE MARQUESS OF LONDONDERRYYou are speaking for the Government.
§ LORD PASSFIELDCertainly, I am speaking for the Government, but the Government cannot answer what the state of mind of that man would be. For that reason I myself would not have made the speech which this Irish Minister is reported to have made. It is because words have effect upon the minds of people that one has to be a little careful in speaking, and obviously it is not a matter of doubt or dispute that this speech, as reported, contained a great many (I venture to say) injudicious remarks. I have heard speeches even in this House which contained a great many injudicious remarks, and I have regretted them, but I have not thought them matters of illegality. When the Irish Free State have actually committed some breach of the Treaty undoubtedly it will be the duty and right of His Majesty's Government to call their attention to the matter, and ask for an explanation, and to take any other steps which may be necessary; but that is not yet. So far as I know no illegal act has been done, and when we are asked what steps we should take my reply is that we must wait until some illegal act has been done. Obviously it would not be possible, or desirable, to state beforehand what action would have to be taken in the event of that very regrettable action actually happening.
I am not going to believe that the Irish Free State is capable of committing an actual breach of the Treaty or of its contractual obligations, which in this very speech the Minister himself recognises as existing, when he said that what he wanted was by agreement with His Majesty's Government to get a revision of the Treaty in that respect. I am coming to that in a few minutes. But in this very speech, if it is read right through, Mr. Blythe recognised the existence of the contractual obligation, 860 recognised that it could only be modified by agreement with the other party to the contract, and as far as I can see indicated the intention of his Government to seek at the proper time such a modification of the Treaty as they desired, apparently. That attitude, if you disregard the fireworks of the other part of the speech, is one to which I do not think we can take any objection at all. It is the very essence of a contractual obligation that it can be modified lawfully and properly by agreement among the parties. It is the very essence of a Treaty that it can be altered by agreement of the parties, and in no other way. And therefore, if it were necessary for me to make any defence of my Irish colleague, I could make a defence in that way, whilst regretting and abandoning to the critics the other parts of the speech which seem to have been singularly unhappy and, I should have thought, altogether improper.
Now I think in fairness to Mr. Blythe—whom I am not seeking to defend, but I do think that noble Lords ought to recognise what the point is that he has in his mind: it is relevant—I ought to point out that he said that while the Treaty had been signed in 1922 (if that was the year), long before the time when this Government or the Government of 1924 was responsible—the Treaty signed and carried out by our predecessors of the opposite Party—
§ THE MARQUESS OF SALISBURYNo, the Coalition Government.
§ LORD PASSFIELD—at any rate, of the combined Opposition to the Labour Party. Since then (this is not a quibble) Mr. Blythe points out that there has been a tremendous constitutional development in the position of the Dominions, that the Imperial Conference of 1926, which occurred subsequently to the Treaty, marked a growth in our constitutional relations, and—I am not agreeing with this necessarily: I am only trying to put the position which he indicated in that very speech—that, in accordance with the declaration of 1926, which defines the present constitution of the British Commonwealth of Nations, the advice which is given to the Sovereign by his Privy Councillors ought to be tendered by the Privy Councillors for the part of the Commonwealth with which the matter was concerned; that is to say, 861 that it is not constitutional for His Majesty's Ministers in this country to tender advice to His Majesty with regard to something in Canada or South Africa.
Now I am not asserting that I agree with this; I am only trying to indicate what the position of Mr. Blythe is. Therefore, he says in terms, though there may be a right of appeal to the Privy Council, though there may be a decision of the Privy Council, effect is given to that decision of the Judicial Committee by advice given by Councillors to His Majesty at an ordinary Council; and, according to the constitution of the British Commonwealth, as laid down and authoritatively agreed to in 1926 (when we were not responsible) that advice can only be given by the Privy Councillors for the part of the British Commonwealth which is concerned. That is to say, that Mr. Blythe suggests that no executive order based on the recommendation and the advice of the Judicial Committee of the Privy Council ought to be issued except in accordance with the advice of the Executive Council of the Irish Free State. That is the puzzle which is—
§ THE MARQUESS OF SALISBURYThe noble Lord will realise that he has made a statement which is quite accurate as to Mr. Blythe's contentions, but if he leaves it like that the country may be under the impression that His Majesty's Government share this singular view of how a judicial decision is arrived at. It is perfectly true that the acts of the Privy Council are the acts in one sense of the Executive, but we all know perfectly well in England that the Executive Government does not interfere in any way whatever with the judicial decision, and that therefore the contention of Mr. Blythe is quite illusory. I should be very sorry if this debate ended without a very strong expression on behalf of His Majesty's Government that they entirely differ from his view.
§ LORD PASSFIELDI carefully said that I was not taking any responsibility for Mr. Blythe's position, but I was trying to indicate why it was that he thought that the appeal to the Privy Council from Ireland was no longer effectively in accordance with the constitution. Now I am not prepared to accept his view at all in that matter, but 862 I know too well how strongly such views are held. With regard to the special point of the noble Marquess, of course I recognise to the full the difference between decisions of a Court of Justice, with which the Executive, according to our common English view, ought not to interfere in the very least—
§ THE MARQUESS OF SALISBURYAnd never does interfere.
§ LORD PASSFIELDAnd never does interfere—I entirely agree with that, of course. I recognise to the full the difference between the decisions of Courts of Justice, with which the Executive does not interfere, and would not dream of interfering, and ordinary executive acts of government, which necessarily have to be decided by the Executive itself. But the contention that Mr. Blythe is making was raised not by him alone, and was deliberately left over unsettled in 1926—the point, that is, how to draw the line between the one kind of decision and the other kind of decision. That has been left over until the next Imperial Conference in 1930. We know that the Irish Free State at that time practically gave notice that it would be its intention to raise the question at the Imperial Conference in 1930. That is one of the reasons why I have been anxious myself—and I think it would be a matter of prudence and tact—not to assume that the Irish Free State are actually going to commit a breach of this contractual obligation, which they admit they are under—a breach of the Treaty, to which they attach importance. I am not going to assume that they are going to commit that breach until they do it. Then, if they unfortunately do it, it is quite certain, of course, that His Majesty's Government will have to take the appropriate action. I cannot say in advance what that would be. But the time of the next Imperial Conference is not so far off. It is practically going to take place, in all probability in the course of the very next year, and this whole question will have to be dealt with, as the noble Marquess has rather indicated, by the decision of the whole of the Dominions, and not upon the will of any one of them.
§ THE MARQUESS OF SALISBURYHear, hear.
§ LORD PASSFIELDI hope there has been no ambiguity as to the position of His Majesty's Government. I hope also that there is no unfair objection to parts of Mr. Blythe's speech without taking into account the other part, in which he recognises the existence of this contractual obligation, and indicates that they were prepared to ask for a revision by agreement. That being so, I think we must wait until the time comes, and then we shall have to act with all the wisdom that we can. I do not see that I can announce any policy of His Majesty's Government beyond that.
§ LORD DANESFORTMy Lords, perhaps the House will allow me to express one or two views that I gathered during the debate. I do not suppose that your Lordships have often heard two more discordant notes struck by two Ministers of the Grown who are supposed to be speaking on the same subject. Lord Parmoor, on the one hand, as I understood him, entirely justified the speech of Mr. Blythe.
§ LORD PARMOORI never did that.
§ LORD DANESFORTSo I understood him. He said there was nothing illegal about it and nothing wrong about it. Of course, if he chooses to say I am wrong and that he condemns that speech I shall be very happy to hear him.
§ LORD PARMOORI said there was nothing illegal, just the same as the noble Lord who spoke just now. Nor is there. But that is an entirely different thing. The part of the speech I referred to was that in which he recognised the contractual obligations as binding obligations between the two States. That was perfectly right and I entirely agree. But what I may call the extreme statements I never touched and, of course, I do not agree with them.
§ LORD DANESFORTI still do not know whether the noble and learned Lord denounces that speech or approves of it. He quoted just now the only part that he agreed with—namely, that Mr. Blythe recognised that the right of appeal was at the root of Article 2 of the Treaty, and then he proceeded to say that he violated that Article. I do not know whether the noble and learned Lord approves of that; at any rate, he has not told us and he declines apparently to express himself 864 upon that. He does not at any rate here disapprove of that. And the Secretary of State, with the most engaging and, as I think, the most worthy candour, tells us that he strongly disapproves of the speech. He said that parts of it were—
§ THE MARQUESS OF READINGImproper.
§ LORD DANESFORT —unhappy and indeed, he would add, improper, and he greatly regretted that it had been delivered. I greatly regret that the noble and learned Lord had not consulted with the Secretary of State before he made his speech and then they might at any rate have said the same thing; but they have not. I do not intend to refer to Lord Parmoor's speech more than to say one word about it because it has already been dealt with by the noble Marquess, Lord Reading. The truth is that the greater part of Lord Parmoor's speech was totally and entirely irrelevant to this discussion. He referred to the Report of the Imperial Conference of 1926 which dealt with something to be done in the future, some agreement to be arrived at. What we are discussing to-day is whether, before any agreement has been arrived at but while the Treaty is still in force, Mr. Blythe was justified in saying that they, the Free State, would do everything in their power to render nugatory that right of appeal given by the Treaty. That is what we are entitled to discuss and it is the only thing to be discussed. This reference to what should be done by agreement in future, I venture to suggest is entirely and hopelessly irrelevant.
§ The noble Lord, Lord Passfield, did indeed discuss that point, but with very tender consideration—I do not think he knows Irishmen quite well—for Mr. Blythe and his colleagues, for whom Mr. Blythe has spoken. He said: "I do not care about these injudicious speeches. They mean nothing? They are all froth." (I am paraphrasing his speech.)" Wait till they do something. "On three separate occasions they have already acted upon that statement of Mr. Blythe. They acted upon it in the case of Lynham versus Butler. While the appeal was pending in the Privy Council, they passed legislation which made that appeal futile and caused it to be abandoned. They acted on the 865 same principle in the case of the Performing Right Society versus the Bray Urban Council in regard to which, after leave to appeal had been granted and while the appeal was pending, they passed legislation which said in so many words: "However successful you may be in this appeal you will get nothing out of it. You will get neither costs, damages nor anything else." Is not that acting upon it? The noble Lord, Lord Passfield, will see on reflection, I think, that not only have they made this statement of future intentions, but they have already in the past shown that they intend to carry it into action.
§ There is also the notorious case of Wigg and Cochrane. Did they not act upon it on that occasion? Did they not flout the Privy Council? Did they not say: "Although the Privy Council have said that these ex-British civil servants have certain rights, we will not pay a farthing of the money that the Privy Council have declared them to be entitled to "? It is not as if this was a mere threat which means nothing or a mere injudicious speech by some excitable Irishman. The fact is that it is a deliberate and fixed expression of the policy which they intend to carry out. I am glad to know that it has been denounced in strong language in your Lordships' House and I trust the Government may be induced to take their courage in their hands and to make some protest. I asked 866 in my Question whether the Government could give us a statement of their policy in this matter. The policy they have announced is one of paralysis. They can do nothing. They say that can do nothing and they will do nothing. I beg them to reconsider that, and to see whether it is a worthy attitude on the part of a British Government.
§ THE LORD CHANCELLOR (LORD SANKEY)Does the noble Lord press his Motion?.
§ LORD DANESFORTNo, I do not press it.
§ Motion, by leave, withdrawn.