§ LORD DANESFORT had given Notice to ask His Majesty's Government whether their attention has been called to the case of Performing Right Society versus Bray Urban District Council, in which the plaintiffs, acting under Article 66 of the Free State Constitution, obtained in November, 1928, special leave from the Privy Council to appeal against a decision of the Free State Supreme Court dismissing their action for infringement of musical copyright; whether His Majesty's Government are aware that, while this appeal was pending, the Free State Government in July last passed an Act entitled the Copyright (Preservation) Act, 1929, Section four of which was designed to render and would render such, appeal wholly nugatory; whether His Majesty's Government have received any protests against this interference with the rights of the subject as expressly declared and preserved by 486 the Free State Constitution; and to move to resolve, That this House views with disfavour any attempt by ex post facto legislation or otherwise to render nugatory appeals from the Free State Supreme Court to the Privy Council for which special leave has been given, or to deprive the subject of the benefits of a successful appeal; and to move for Papers.
§ The noble Lord said: My Lords, the object of the Motion that stands in my name is to call attention to some of the recent actions of the Irish Free State Government with regard to appeals from their Supreme Court to the Privy Council. These actions of the Free State Government leave no room for doubt that it is the fixed and determined policy of the Free State Government to prevent British subjects from exercising their undoubted rights under the Treaty and the Constitution of the Free State, of prosecuting their appeals to the Privy Council when the Privy Council has granted leave to appeal. If this were a mere domestic question affecting persons in the Irish Free State, I should not for one moment have thought of troubling your Lordships with this discussion; but it is something very different from that. It involves grave constitutional questions, and, more than that, it involves the good faith of the Irish Free Slate Government in carrying out their obligations under the Treaty and Constitution.
May I briefly remind your Lordships of the foundations upon which this right of British subjects which is now being assailed was established? The right of British subjects to apply to the Privy Council for leave to appeal from the Supreme Court of the Irish Free State, if they obtain such leave to prosecute appeals, is unquestionable. That right, which for shortness I may call the right of appeal, was expressly secured by Article 2 of the so-called Treaty of 1921, and was confirmed in express terms, if it needed confirmation, by Article 66 of the Irish Free State Constitution, which received the sanction both of the Parliament of the Free State and the Imperial Parliament. It is worth remembering that this right was part of the bargain which was entered into between the Government and the people of this country and the Government and people of Southern Ireland,
and indeed was so expressly described by Mr. Cosgrave in the Irish Free State Parliament in October, 1922. He used these words:—
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.
Those are admirable words, and I am sorry that they seem to have been forgotten. This right, conferred by Treaty and by Acts of the two Parliaments, cannot be in any way altered or changed, still less taken away, by any Act of the Irish Free State Parliament. Such a change would require an Act of the Imperial Parliament itself.
§ May I shortly now refer to the facts of the present case? The Performing Right Society is an important English company, which is composed of a large number of authors, publishers and other proprietors of musical, dramatic and other copyrights, and it was formed for the express purpose of protecting performing rights in those coypright works. In 1926 this company brought an action in the High Court of the Irish Free State for an infringement of certain musical copyrights, and obtained judgment in their favour in the Court of First Instance. That judgment was reversed by the Supreme Court of the Irish Free State on a somewhat singular ground. The ground was that between the years 1922 and 1927, during which these rights were supposed to be in existence, no copyright whatever existed in the Irish Free State, and the Supreme Court in fact decided that an Act of the Free State Parliament, passed in 1927 and intended to preserve copyrights under the British Act of 1911, had failed to carry out its object, and that consequently the plaintiffs in that case were without any remedy whatsoever. That is a singular state of things, and in November of last year the Performing Right Society applied to the Privy Council, under the Constitution, for special leave to appeal against that decision of the Supreme Court.
That leave was granted, and it was granted upon this ground, as stated by a very eminent Judge, Lord Phillimore, whose absence we all deplore, in these words:—
There was a constitutional question which had to be decided, and that was precisely
the kind of ease that would be appealed to the Privy Council from Canada or Australia.
I ask your Lordships to mark what follows. In the early part of this year, while this appeal for which leave had been granted was pending, the Free State Government introduced into the Irish Parliament a Bill, entitled the Copyright (Preservation) Act, 1929, which, while remedying the error or omission supposed to exist in the Free State Act of 1927, contained a special section, Section 4, which was framed for the express purpose of rendering nugatory this pending appeal to the Privy Council of the Performing Right Society. The words of this section are so remarkable—certainly there is nothing in the legislation of any civilised country of which I have heard in the least like it—that I venture to trouble your Lordships by reading it. It is as follows:—
Notwithstanding anything contained in this Act, no remedy or relief, whether by way of damages, injunction, costs, expenses, or otherwise, shall be recoverable or granted in respect of or by reason of an infringement in Saorstat Eireann before the passing of this Act of a copyright by this Act declared to subsist or deemed to have subsisted in Saorstat Eireann.
In other words the Act in one section says that "This copyright on which you, the Performing Right Society, sue shall be deemed to have been in existence at the very time at which you claimed relief for infringement of it, but you shall get no benefit whatsoever out of your appeal to the Privy Council, however successful you may be, because we do not approve of the Privy Council, and we do not like them interfering with us. Although we agreed to it as part of the bargain, we dislike the Privy Council, and therefore you shall be penalised for having applied to the Privy Council, and shall get no benefit by way of injunction, costs, and so on." The avowed object of that section, as shown by the debates in the Irish Parliament, was to punish the appellants for having so applied for leave, and to deprive them of any benefits they might get from a successful appeal.
May I refer to one of the speeches in Committee on this Bill, delivered by a Free State Minister on July 10, 1929? Sir John Keane, one of the Senators, moved to omit the objectionable section. Mr. McGilligan, who, I understand, is Minister for External Affairs, in opposing, said the prerogative
in so far as it remains in the Constitution is a matter which must be faced on this point.
In so far as it remains! Why, they had only put their hand to it in the most solemn way they could a very few years ago! It "must be faced"—in other words, it must he abolished. And he went on to refer to a previous case, that of Lynham versus Butler, in which the Free State was behaving in a similar way. There the plaintiff got leave to appeal to the Privy Council, and while the appeal was pending the Free State Government passed ex post facto legislation, as in this case, rendering that appeal nugatory. Then Mr. McGilligan goes on to describe that ex post facto legislation in the Lynham versus Butler case as a most ingenious means of preventing any appeal to the Privy Council. I think it might be better described as a most ingenious means of destroying the rights of the subject under the Constitution and of evading the obligations of the Free State.
However, Mr. McGilligan went on to say:—
We regard the Supreme Court of the Free State as the final authority in local matters.
That, of course, could not apply to this case, because the Privy Council in giving leave to appeal said that it was not a local matter, but a constitutional question. Mr. McGilligan went on—
Are we to allow an outside body"—
that is, His Majesty's Privy Council—
to decide contrary to the Supreme Court, or are we not to treat the decision of the Supreme Court as final?…I give this precise warning that people who look for leave to appeal to the Privy Council do so at their peril.
I do not think I need comment on language of that sort; but if your Lordships care to look up the debate you will find the speech reported in the OFFICIAL REPORT of the debates in the Free State Parliament, Vol. 12, columns 1216 to 1219.
That action of the Free State Government and its Parliament has been overwhelmingly condemned by a newspaper of great repute and influence in Ireland, the Irish Times. It has also been condemned by many important newspapers in this country. But more than that, there was a conference held at Madrid on May 24 of this year while that Bill
to which I have referred, containing this curious section, was passing through the Irish Parliament. It was a conference of a body known as the Confédération Internationale des Sociétés des Auteurs et Compositeurs Dramatiques. At that conference no fewer than 17 nations were represented, including Great Britain, France, Italy, and Germany, and resolutions were passed condemning the section in question, Section 4, as being
contrary to the universally accepted principles of justice and the spirit and tenor of the Berne Convention.
These resolutions went on to advise the members of the Confederation to protest to their respective Governments against this proposed legislation as being "contrary to natural justice and a direct confiscation of the rights of authors." Pausing there for one moment, may I ask His Majesty's Government whether they have received any protests of that character from any members of that conference, or from any other person interested in obtaining justice and the rights of citizens in the Free State? Perhaps they will be able to let me know.
§ This is not the only or the first time when the Free State have deliberately taken action to render nugatory an appeal from their Supreme Court to the Privy Council for which leave has been given. I have referred already to the case of Lynham versus Butler. No sooner had the appellant in that case obtained leave to appeal to the Privy Council from the decision of the Supreme Court than the Free State Government brought in and passed an Act of Parliament saying that the Supreme Court was light and always had been right, and that the law as laid down in the Supreme Court was not only right at the time the decision was delivered but had been right at the very time when the plaintiff complained, so that the plaintiff could not possibly go on with his appeal. Though I want to use very moderate language about this matter, I must say that I think a stranger case of ex post facto legislation has very seldom been brought before the consideration of your Lordships.
I ventured on March 3, 1926, to bring that case of Lynham versus Butler and the action of the Free State before your Lordships' House. The report is in
Vol. 63 of the OFFICIAL REPORT, column 394. I quoted several speeches made by Free State Ministers in the Free State Parliament attempting to justify their action. The late Mr. O'Higgins, who was at that time Minister for Justice, said this:—
This Bill was introduced for the purpose of expressing and demonstrating the view that the Supreme Court should be the final Court.
In other words, it was introduced for the express purpose, as I read it, of violating their own Constitution. The Lord Chancellor, the late Viscount Cave, made a speech on that occasion in which, after referring to the undoubted right of the subject to apply for leave to appeal and so on, pointed out that the terms of the Treaty had been faithfully adhered to by this country, except that at the request of the Free State we had modified its terms on one or two occasions for the benefit of that State. He then went on to express his belief that the Free State would adhere to the terms of the Treaty in future; but he gave a warning—a warning which I think might have received more heed than it did—that if the course at that time taken by the Free State were repeated, a different condition of things would arise.
§ Subsequent events have shown that the benevolent anticipations of the noble and learned Viscount, Lord Cave, have not been realised. Not only have the Free State acted in this manner in the case I have just described at some little length—namely, of the Performing Right Society—but the question arose in the recent notorious case of Wigg and Cochrane. In that case there was an appeal to the Privy Council from the Free State Supreme Court by certain ex-British civil servants, and the Privy Council decided that these ex-civil servants were entitled to additional compensation beyond that which was allowed to them by the Free State Supreme Court. What did the Free State do? They said: "We will not pay you a farthing. The judgment of the Privy Council is wrong." And they referred to it in terms which I do not think I ought to repeat to your Lordships' House. That allegation of the Free State that the Privy Council decision was wrong was, by what I can only call some strange aberration accepted and repeated by the noble Earl, Lord Birkenhead, who gave 492 the weight of his authority to the allegation. That allegation proved to be directly contrary to the facts because a second Tribunal of the Privy Council was set up to reconsider this very question and to see what ground, if any, there was for the allegation that the first decision was wrong. The second Board of the Privy Council which sat upon the question decided that the decision of the first Board was right and that these ex-civil servants were entitled to the extra compensation beyond that which the Free State Courts would allow them.
§ Again, the Free State Government deliberately refused to act upon, or give effect to, that decision of the Privy Council, or to pay these civil servants one farthing of what they were declared to be entitled to by the Privy Council—a course of conduct never adopted, so far as my investigations have gone (perhaps the Government would give me some precedent for it), in any Colony or Dominion of the British Empire until then. The sequel was rather a strange one. The British Government evidently thought that it would be an outrage if British subjects were deprived of the benefit to which the Privy Council had declared them entitled by the action of the Government concerned—namely, that of the Free State. The British Government, therefore, decided that they would pay out of the pockets of the British taxpayers the sums which the Free State Government should have paid themselves. That was done. So here you had not only an injustice committed in the Wigg and Cochrane case against the successful appellants, but you had a very grossly improper burden thrown upon the British taxpayer owing to the default of the Free State Government.
§ Those are the facts of the case. I venture to think that the seriousness of the position cannot be exaggerated. What emerges from these facts is the outstanding and undeniable fact that the Free State Government have deliberately adopted a policy of destroying a right solemnly secured to British subjects by their own Treaty and their own Constitution. I express no opinion at all, but it may well be that Section 4 of the Act to which I have referred is a violation of the provision of the constituent Act of 1922 which was adopted by the British Parliament and the Free 493 State Parliament, and which said in effect that the Free State Parliament should not be allowed to pass into law any measure repugnant to, or infringing upon, the Constitution. It may well be that Section 4 is a violation of that provision. I hope that this matter may come before the Courts. At any rate, it is a matter for the Courts to decide, and I could not venture to ask your Lordships to pronounce an opinion upon it at the present moment.
§ I will only add that if the Free State were a foreign country and attempted to destroy rights granted to British subjects by Treaty, strong protests would undoubtedly be made by this country and corrective remedies would be found. Can it really be that because the Free State is part and parcel of the British Empire the British Government are impotent to protect their own subjects from injustice in the Free State, and are too careless, or indifferent, to make any protest against such injustice? I beg to ask the Question which stands in my name on the Paper, and to move the Resolution as printed and for Papers.
§ Moved to resolve, That this House views with disfavour any attempt by ex post facto legislation or otherwise to render nugatory appeals from the Free State Supreme Court to the Privy Council for which special leave has been given, or to deprive the subject of the benefits of a successful appeal.—(Lord Danesfort.)
§ THE SECRETARY OF STATE FOR DOMINION AFFAIRS AND THE COLONIES (LORD PASSFIELD)
My Lords, this question is of very considerable legal and constitutional complexity and, as Secretary of State for Dominion Affairs, I must express my regret that this matter should have been raised in your Lordships' House, not merely by way of Question to His Majesty's Government of the United Kingdom but by way of a Motion which takes the form of criticising the action taken by the Legislature of one of His Majesty's Dominions. That is a matter of principle which is of some constitutional importance in the relations between this Parliament at Westminster and the Parliaments of the respective Dominions. Your Lordships will remember that in the Imperial Conference of 1926, when His Majesty's present Government were not responsible for what was done, the 494 equality of status and the autonomy of the several Parliaments of the Dominions were solemnly recognised in the fullest possible terms. Consequently, it is not usual, it may be that it is not constitutional, for this Parliament at Westminster to reflect on the proceedings of any of the Parliaments of the Dominions any more than it would be constitutional for any of the Parliaments of the Dominions to reflect upon the procedure or the actions of the Parliament here at Westminster.
I say that having regard to the feelings and the rights, as we have recognised them in this country, of the other Dominions, as well as of the Irish Free State, because it is not possible to reflect upon the action of these Legislatures, which we have recognised as equal in status to our own Legislature, and autonomous as regards their own Legislatures—it is not possible to reflect upon the conduct or the action of the Parliament of one of those Dominions without to same extent injuring the feelings of other Dominions on that constitutional point. If I may say so, I feel that all the more strongly because, as your Lordships are aware, a Conference of representatives of all His Majesty's Governments is at present sitting in London to consider a wide range of questions connected with the legislative powers of Dominion Governments, questions which have arisen out of the declaration of the Imperial Conference of 1926, which are of considerable difficulty and complexity, and for the satisfactory settlement of which there is no remedy without the fullest frankness and good will on all sides. Those who are taking part in that Conference now feel how very much depends upon maintaining that good will between all the various autonomous parts of the British Empire. Any Motion in this House reflecting on the legislative action of the Parliament of one of the members of the British Commonwealth of Nations, all of them engaged in the present Conference, appears to me strongly to be deprecated and in its results cannot fail to add difficulties to the labours on which the Conference is engaged.
Having said that, I will answer as briefly as I can, the definite Questions which the noble Lord has addressed to His Majesty's Government. I must ask the noble Lord to excuse me if, in doing 495 so, I refrain from any comments on words which may have been used in the Parliament of the Irish Free State in regard to the matter, and from any comments on the legal decisions of the Courts or on the action of the Judicial Committee in granting leave to appeal. I refrain from any comments because it seems to me that that is incumbent on us in the circumstances. Now the facts of the case as regards His Majesty's Government are simple and clear. I will not go over them in detail, because the noble Lord has set them forth in his own way. I have nothing to complain of substantially in the way he has set forth the bare facts of the case. It will be remembered that the plaintiffs, the Performing Right Society—I must make this clear—having won their case in the Law Courts of the Irish Free State, lost their case, or rather had the decision reversed, in the Supreme Court of the Irish Free State on a ground—we may treat it as we like—which the Supreme Court of the Irish Free State was competent to take. That Court, be it noted, decided against the claim of the plaintiffs, the Performing Right Society, and found that by some inadvertence the Copyright Act on which the plaintiffs had relied was in fact not in force in the Irish Free State between some date in 1922 and 1927.
I am not going to criticise that decision. I do not know that the noble Lord criticised it seriously. It is not really a matter at issue at the present time. One would suppose from some of the allusions or phrases of the noble Lord and other people who have dealt with this subject, that the Parliament of the Irish Free State thereupon passed a law which deprived the plaintiffs of the right which they were trying to assert at law. On the contrary, the Irish Parliament, finding that by the decision of its own Supreme Court the Copyright Act had not been in force through inadvertence, and that there was in fact between 1922 and 1927 no copyright law in Ireland at all, they could not get over that decision, and they did what many a Government has done before: they passed an Act promptly declaring that the Copyright Act of 1911 should be in force and should be deemed to have been in force from the date on which it had been declared by the Supreme Court to have ceased to be in force. So far, I 496 take it, there is nothing to complain of Governments constantly ask Parliament to pass ex post facto legislation of that kind when by some inadvertence, or some accident or slip, a law which everybody had assumed to be in force, which may have been presumed to have been intended to remain in force, has been declared by the highest Court to be not in force. The Irish Parliament then passed an Act making it in force and declaring that it should be deemed to have been in force. So far I do not think the noble Lord would have anything to complain of.
I want to point out what is constantly being overlooked. This Statute was not passed to deprive the plaintiffs in this case of the rights which they thought they had and which, as a matter of fact, everybody thought they had; but in fact it confirmed the plaintiffs in these rights. At any rate, the injustice would have been much greater if the Act had been to deprive the plaintiffs of some rights which the highest Court in the land had said they possessed. On the contrary, the Act remedied this obvious omission and confirmed the plaintiffs in the possession of that right which they believed themselves to have, and everybody believed them to have, until the Supreme Court has given a contrary decision.
§ LORD DANESFORT
Will the noble Lord allow me to interrupt for a moment? May I ask him whether the effect of Section 4 was not to deprive the appellants of any benefits they would have got from a successful appeal to the Privy Council? And was not that really not only the object but would it not have been the effect of that section?
§ LORD PASSFIELD
As a matter of fact, I do not agree with the noble Lord in his description of the effect of Section 4. I have not come to Section 4. The noble Lord is a little in a hurry. I was only describing the effect of the words of the Statute in Sections 1, 2, and 3. I have the words of Section 4 here. It enacts that:—Notwithstanding anything contained in this Act, no remedy or relief, whether by 497 way of damages, injunction, costs, expenses, or otherwise, shall be recoverable or granted in respect or by reason of an infringement in Saorstat Eireann before the passing of this Act of a copyright by this Act declared to subsist or deemed to have subsisted in Saorstat Eireann.That is to say, the Act of Parliament, which remedied a defect in the law as declared by the Supreme Court, not only declared that copyright law should be deemed to have been in force during the period in question, but also included a clause which said no one should take advantage of the Act to claim damages, etc., under a law which had been held not to be in force during that period. I would point out that there is no reference by name to the plaintiffs in this case. It is a general section which applies to everybody.
The noble Lord imputed motives and ascribed intentions. It is very easy to impute motives and ascribe intentions, but I do suggest to your Lordships—I am now speaking in respect of all the Dominions—that it would not be a good plan to take up any Act of any one of those autonomous Dominions and go behind the Act and ascribe intentions or impute motives to those who passed the Act, whatever justification we may think we have in that way. I am here protesting, not on behalf of the Irish Free State, but on behalf of all the Dominions. It has ceased to be a constitutional right, it has ceased to be proper, for the Parliament at Westminster to reflect upon the action of these autonomous communities under the British Crown. In the same way it has ceased to be constitutionally proper for them to reflect upon the proceedings of this Parliament here at Westminster. Incidentally, I must comment that the effect of that decision, the effect of that legislation, has been to prevent, or so it is alleged—and I accept the allegation—plaintiffs recovering certain costs to which they were put which they might otherwise have recovered. It is possible it has had that result—we do not know—but that must be presumed to have been an incidental result, and I do not feel that I have any right to reflect upon the action thus taken.
His Majesty's Government in the United Kingdom is concerned in the matter by the fact that a representation was made to the Dominions Office on 498 May 2 last, when His Majesty's present Government was not in office. The conclusion was reached after very careful consideration that no adequate ground existed on which His Majesty's Government in the United Kingdom would be justified in making representations to His Majesty's Government in the Irish Free State as desired by the Society. On July 15 the Society again wrote to the Dominions Office saying that they were in process of appealing to the Judicial Committee of the Privy Council, and saying that the Society should at the very least be afforded some compensation in respect of the costs involved. They pointed out that it had been left to the Society, by the litigation that it had instituted, to reveal the defect in the law relating to copyright which had existed, and the Bill was designed to declare the law as being and having been that which the Society was contending that it was. On my instructions a copy of that letter was forwarded on July 29 to the Free State Government for their consideration. I felt that we owed that politeness, that courtesy at least to those who had written to us. The Free State Government did not feel it possible to take any action to alleviate the burden of costs falling in present circumstances upon the Performing Right Society.
I do not think I am doing wrong or committing any breach of confidence in communicating to your Lordships the substance of their views. His Majesty's Government in the Irish Free State explained that the object that they had in mind in introducing the Copyright (Preservation) Bill, 1929, was to make provision without delay for the preservation in the Free State of all copyrights subsisting in the United Kingdom of Great Britain and Ireland on the 5th day of December, 1921. They had before them the decision of the Supreme Court on the state of the copyright law in this connection, and they were advised that as a result of that decision legislation in the terms of the Bill would be necessary in order to preserve the said copyrights in the Irish Free State. The whole policy and scope; of the measure was to secure that object. They stated that it was their endeavour to legislate in terms which, while preserving the copyrights of interested parties such as the Performing Bight Society, would not at the 499 same time have the effect of doing an injustice to others.
Care was taken that damages, etc., should be made irrecoverable against any person or body for alleged infringements of copyrights which in the judgment of the highest judicial tribunal in the Irish Free State did not exist at all at a time at which the alleged infringement took place, and for that purpose the Parliament of the Irish Free State thought it right to enact Section 4 of the Copyright (Preservation) Act, 1929. The Free State Government further stated that they were advised that the decision of the Supreme Court in the case of the Performing Right Society against the Bray Urban District Council stands, and that they did not feel that a departure from the rule that in legal proceedings the costs follow the event could be justified in that case. In addition they were assured that the provisions of Section 4 of the Statute conclusively removed the matter outside the province of their discretion. From that date till now His Majesty's Government in the United Kingdom, so far as I can ascertain, has received no communication at all on the subject either from the Irish Free State Government or from the Performing Right Society or from the International Association of Authors to which the noble Lord alluded.
I do not want to comment at all upon the view which His Majesty's Government in the Irish Free State have taken on this matter. I can only set the view before your Lordships and emphasise that the Free State Government took action to promote legislation, not in order to perpetuate a decision of the Supreme Court which was unfavourable to the plaintiffs, but to remedy a position which they had not intended to exist and which they had not known to exist until the decision of the Supreme Court was given. In doing so they did in fact preserve the copyrights of interested parties such as the Society, which under the Supreme Court decision had no protection over the period covered by the law. It is possible that if the Performing Right Society had taken their appeal to the Privy Council the Judicial Committee in its wisdom might have overruled the decision of the Supreme Court of the Irish Free State. But can we presume that? Is there any lawyer here who 500 would confidently say that the Supreme Court was wrong, not in making the law, but in declaring what the law was?
§ LORD PASSFIELD
I have nothing to say about that. All I am concerned with is that your Lordships should not lightly assume any such thing in regard to any one of His Majesty's Governments in one of the autonomous communities under His Majesty, exercising its undoubted legal rights and passing legislation to preserve the copyright law. Nobody has impugned, and I hope that no one will impugn, the undoubted legal right of the Free State Government to pass legislation maintaining the copyright law and remedying a gap. His Majesty's Government in the Free State has given its answer, explained its intention and expressed its decision in the matter and, whatever we may think of it, I am afraid I must remind your Lordships that the matter of copyright in the Free State is a matter wholly within the competence of the Free State Parliament and not, as it seems to me, a matter in regard to which it would be fitting for His Majesty's Government in the United Kingdom to interfere with His Majesty's Government in the Irish Free State. I have already stated to your Lordships that at this moment discussion on this subject is extremely inconvenient and would, in my judgment, certainly be injurious. The Conference now sitting, over which I have to preside, is working out the extremely difficult matters that arise out of the declaration of 1926, for which His Majesty's present Government is not responsible. We have to try to secure that effect is given to it in these matters, and I can only express my earnest hope that in those circumstances the noble Lord will not press his Motion to a Division.
§ VISCOUNT BRENTFORD
My Lords, the noble Lord has treated this matter as if it were one purely of domestic legislation in the Irish Free State in regard to the domestic question of copyright, and he has—if he will forgive me for saying so—read to your Lordships a lecture on the inadvisability of making any remarks in regard to any legislation 501 which may be passed in any one of His Majesty's Dominions. I quite agree with the noble Lord that we are not here as a court of appeal from legislation passed in one of His Majesty's Dominions; but the whole gravamen of the case set up by my noble and learned friend behind me is that, by this particular legislation and by a particular section of it, a British subject in this country is damnified. A British subject in this country has the same right to ask his own Government to consider whether he has been damaged by an Act of Parliament passed by a Dominion for a specific purpose—as the suggestion is, specifically to prevent his obtaining rights which he might have if the Privy Council decision were to go in one direction—as in the case of a foreign Government.
I do not know whether the Government will say plainly that no British subject has the right—this, so far as I can see, is the basis of the argument of the noble Lord opposite—to appeal to his own Government in respect of hardship or damage done to him owing to the domestic legislation of any particular Dominion? I am quite certain that the noble Lord opposite would be absolutely prepared to admit the right of a British subject to appeal to the Government in regard to damage done through similar legislation in some foreign country. Over and over again cases have occurred in this country of damage and hardship being inflicted upon a British subject by the Government of some foreign country, and the Government of the day, from the time of Lord Palmerston downwards, has taken up the case of the British subject and appealed to the foreign Government that right should be done. It is a very serious position if the Government is now going to adopt the view that, while this is permissible with regard to a foreign Government, it is not permissible to make any representation of any kind to one of our own sister Governments in the Dominions because, forsooth, they belong in some kind of way to the same Empire as we. It comes to this, that the British subject is deprived of his right in respect of a wrong done to him—assuming for the moment that my noble friend is right in regard to the damage done—by the Government of a Dominion, while he would not be so deprived if the wrong 502 were done by the Government of a foreign country.
§ LORD PASSFIELD
If the noble Viscount will allow me to interrupt, I do not think I said that it would not be right for His Majesty's Government of the United Kingdom to make representation to any Government, foreign or Dominion, which had injured a British subject. All that I said was that it was improper, as I venture to think, for this Parliament to criticise the actions of any of the autonomous Parliaments. His Majesty's Government, as I have told your Lordships, did make representations to His Majesty's Government of the Irish Free State in July last, and we had their reply. They did not do any more.
§ VISCOUNT BRENTFORD
The noble Lord is now laying down a very remarkable proposition—namely, that His Majesty's Government is to be at liberty to make representation to a Dominion Government, but that Parliament is not at liberty to ask His Majesty's Government to do so.
§ VISCOUNT BRENTFORD
As my noble friend behind me says, the Government is the servant of Parliament. The noble Lord opposite tells us that he has made certain representations—not such representations, perhaps, as I should desire—and adds in effect: "I have made representations, but you must not criticise the representations that I have made and you must not criticise the action of the Dominion Government which caused me to make those representations."
§ LORD PASSFIELD
Pardon me, I said a Dominion Parliament. It is a question of the dignity of the Parliaments of the British Empire. Governments communicate with each other, but Parliaments, as I venture to think, do not reflect on each other. It is a matter of courtesy.
§ VISCOUNT BRENTFORD
It seems to me, then, that the Parliament must be assumed to have more dignity than the Government.
§ VISCOUNT BRENTFORD
I hope that your Lordships will not allow this to pass. We now have it that the Government is entitled to make communications to a Dominion Government in respect of the action of the Dominion Parliament—that is admitted—but at the same time we on this side of the House may not criticise it or appeal to it at all, either by way of praise or blame. Only His Majesty's Government, of its own motion, may write to a Government of a Dominion, state that some of our subjects suffer owing to legislation which has been passed and make certain requests. That is the position. Really, I do not think that this House, or any other House of Parliament, would consent to be put in such a position. It would mean that His Majesty's Government is not to be criticised for the action it has taken or has failed to take. It would be quite impossible for a member of your Lordships' House to come and ask the Government to make a communication to any Dominion in respect of any legislation unless it had chosen to do so of its own motion. Surely that is an impossible position, a position to which Parliament would never assent. Further, if the communication that the Government made to the Dominion Government is an improper, an unsatisfactory or, as in this case, an insufficient one, does the noble Lord still say that we are not allowed to question him, or to blame him, merely because in so doing we must—I will not say criticise, but make remarks upon the legislation of a Dominion Government which has affected the rights of a British citizen?
§ LORD PASSFIELD
Perhaps the noble Viscount will allow me to make it clear. I have said nothing whatever in any way to deprecate criticism of any of His Majesty's Governments in one way or another. It is obviously within your Lordships' rights to refer to action taken by other Governments, but I would venture to repeat that it does not seem to me proper, or constitutionally correct, to reflect upon the motives for action taken by another Parliament. There is a difference between the two, and I was complaining, if at all—I hope not improperly—of the imputations, motives and so on which the noble Lord behind Lord Brentford ascribed to the Parliament of the Irish Free State. Other Dominion Parliaments would not like it.
§ VISCOUNT BRENTFORD
I do not want to differ too much, I need hardly say, from the noble Lord and I will endeavour to confine myself to a complaint with regard to his conduct. He does not speak as a representative of the Dominion Government. He is a British Minister, and the Minister to whom any British subject has a right to apply with regard to a wrong which he deems to have been committed upon him in a Dominion, and it is the duty of His Majesty's Government to consider the case, and to see whether there is anything in the complaint of the British subject, exactly as it would if the complaint had been made with regard to the action, either diplomatic or Parliamentary, of any foreign country. I put my case as high as that, and although the noble Lords says it may do harm, I hope it will not and that the Dominions will feel that Dominion citizens have exactly the same right through their Governments to communicate with the Government here in respect of any wrongs which they conceive to have been committed upon them in this country.
The noble Lord mentioned at the beginning and end of his speech a Conference which is shortly to take place, and over which he is to preside. I do not know whether he meant to infer that that Conference had anything to do with this particular question, either in detail or in general. I think he has opened up an opportunity for a very good suggestion—namely, that he should place before the Dominions this whole question of the right of appeal to the Privy Council. It is clear, if he has read the debate in the Irish Parliament, and the reasons for this particular Act and the section in it of which we complain, that at the bottom of this Section 4 was not the very innocent suggestion he made, but a determined and definite attempt to render nugatory the right of appeal to the Privy Council. You have only to look at the speech, not of an unimportant member of the Dail but of the Minister for External Affairs or, as we would call him, the Minister for Foreign Affairs. He makes that quite clear in the passage where he says:—At any rate we are not going to have the Privy Council determining a matter which is decidedly a domestic matter.I agree that a Dominion Parliament can pass any Acts it likes, unless it deals with a reserved subject, and it becomes 505 law in the Dominion, but here there is a definite question of Treaty right.
Here there is a definite and distinct right by Treaty, made by a Government for which I think neither the noble Lord nor myself is responsible. The Constitution was passed not merely by the Irish Parliament but by this Parliament, and Article 66 quite distinctly preserves this right of appeal to the Privy Council. I agree that it is quite possible for the Irish Government, or any Dominion Government, to pass a law saying that no subject of its own shall henceforth appeal to the Privy Council—I think that that possibly might be a derogation of the Treaty—but I think it is quite impossible for a Dominion Government to pass any law directly saying that no British subject shall have a right of appeal to the Privy Council, without a similar Act being passed by the British Parliament modifying the Treaty of 1922. Equally, it is impossible for a Dominion Parliament to pass an Act which by implication, without referring to a particular British subject, prevents him from having a right of appeal to the Privy Council.
The noble Lord opposite founded himself upon the decision of the Supreme Court of Ireland, and he said the Government of Ireland passed an Act to remedy a defect which the Supreme Court had found in their copyright law. That point was appealed to the Privy Council, and on that point the Privy Council, presided over by Lord Phillimore, definitely gave leave to the British subject to appeal, because the point raised was a point of great constitutional importance. Non constat that the Supreme Court was right. The noble Lord dealt with the whole question on the assumption that the decision of the Supreme Court was right. If that decision were confirmed by the Privy Council, obviously the British subject would have nothing to stand on: he would have exhausted his right of appeal and his case could be dismissed with costs all the way. That is not the case. The Irish Parliament, without waiting for the decision of the Privy Council, have passed an Act affecting to put right a position which the Supreme Court found to be wrong, but they have, by Section 4, put in quite an unnecessary section, which deprives these particular plaintiffs of their rights.
506 When they come to the Privy Council they are faced with Section 4 of the Irish Act, which says:Notwithstanding anything contained in this Act, no remedy or relief, whether by way of damages, injunction costs, expenses, or otherwise, shall be recoverable or granted in respect of or by reason of an infringement in the Saorstat Eireann before the passing of this Act of a copyright by this Act declared to subsist or deemed to have subsisted in the Saorstat Eireann.I cannot conceive, and I do not think the noble Lord gives any reason, why this section should have been inserted, except to prevent an action of this kind for an infringement during the period when, according to the Free State Supreme Court, there was no copyright in Ireland. I am not arguing—I do not want to argue; it would be improper to argue—which way the Judicial Committee would be likely to decide. But I am entitled on behalf of a British subject to say that by this Act, and particularly by this section of the Act, a British subject has been deprived of his clear right under the Treaty, under the Constitution of the Irish Free State, and under the authority which has been given to him by the decision of the Privy Council itself to lay his case before them; and if he goes to the Privy Council, if he spends his money and gets a judgment in his favour granting him damages and an injunction to go back to Ireland to enforce the judgment, he will be met by this section of this Act, passed as I submit, to make it impossible for him to recover in respect of the damage he has suffered. That is the case we put before the noble Lords opposite.
We ask His Majesty's Government to communicate more definitely with the Free State Government. The noble Lord says he has communicated with them. If he will forgive me for saying so, it was a very moderate communication. The moderate communication received a somewhat unsatisfactory reply, and nothing further has been heard. Now, will he not adopt the suggestion I have made that he should put this matter—it is not the first, or the second, or the third case where trouble has arisen from the determined effort of the Irish Free State to prevent appeals to the Judicial Committee of the Privy Council—will he not put this matter before the Conference which is now sitting? I have no authority on behalf of my noble and learned friend behind me to give any pledge on 507 his behalf in regard to the Resolution that he has moved to-day; but I am concerned with the larger question. The Lord President of the Council is himself a lawyer of very great distinction. He has pleaded many times before the Judicial Committee, he knows that subjects of the Empire have the right, and how much they value their right, to appeal to the Privy Council. I suggest that it would be a very desirable thing in the interests of the whole Empire that this question should be settled once and for all. If the noble Lord would give an undertaking that he will deal with it at the Conference I think that would be advantageous, not merely in the interests of this particular plaintiff, but in the interests of those British subjects who have always claimed and valued their right to come to the higher Court of Appeal in this country.
§ THE LORD PRESIDENT OF THE COUNCIL (LORD PARMOOR)
My Lords, I agree, and I think we all agree, with a good deal that has been said by the noble Viscount opposite, although at the same time I think he did not appreciate what was said by the noble Lord, Lord Passfield, because there is undoubtedly a great distinction between what is called the dignity of Parliament and the dignity of a Government, and that was the point of view which Lord Passfield emphasised. On the question of whether the particular communication was strong enough or not I may say a word or two presently, if necessary. But what the noble Lord pointed out was this, that the form of the communication that we make to a foreign Government to protect a British subject was the form of communication which the Government of which the noble Viscount was a member and the present Government have in fact employed towards the Irish Free State Government. So far as the form is concerned I think it is very important in constitutional matters of this kind that these forms of courtesy should be enforced, not only between ourselves and foreign States, but also as between ourselves and Dominion States. I think the noble Viscount will agree with me.
§ LORD PARMOOR
And if the failure was on the side of too great courtesy, which I should question, one would be 508 glad at least that it was in the case of a Dominion State that that excess of courtesy should be used. I was extremely sorry to hear Lord Danesfort in the speech which he made speak of this decision as being not in accord with natural justice, and as being confiscation.
§ LORD DANESFORT
I was quoting from the authoritative action of the Confederation which met in Madrid. Not that I dissent from the words, but I was quoting from the resolution of this Confederation of seventeen nations.
§ LORD PARMOOR
I do not think that that makes any difference, because the noble Lord, speaking here with all his authority, adopted those expressions as applicable to the present case. All sorts of resolutions are passed by conferences of admirable respectability, using language which I, speaking in this House, should not think myself entitled to use as applying to one of our Dominion Parliaments, who, of course, are on an equality with ourselves, as was stated in the great Imperial Conference of 1926. I do not know whether the two noble Lords opposite who were members of the Government then were also members of that Conference, but I am quite certain that they adhere to everything that was done at that Conference—
§ LORD PARMOOR
—and that they approve the great advance that was made as regards the dignity and independence of the Dominions, the basis being that while the allegiance to the Crown is preserved, they should occupy the position of independent Sovereign States. As to this particular case, I do not deny that there is something in what the noble Viscount has said. He read out a statement by a statesman in the Irish Free State Parliament, expressing the view that this question of copyright was definitely and decidedly a matter of domestic legislation. I am not saying whether he was right or wrong; as a matter of fact, he seems to me to have been right, but that is not the question. When you are criticising something said on an occasion of that kind you must look to see what was the basis on which the speaker was relying when he made the statement. No man can doubt that it 509 was a perfectly bona fide statement when he said that this was a matter of domestic legislation, and, if so, of course, within the special purview of the Dominion Parliament of Southern Ireland.
It is said that under Section 66 of the Constitution, and I think it is said quite rightly, the same special leave to appeal was reserved as against decisions of the Irish Supreme Court as in the case of the special leave to appeal when appeals came from other Dominions. I have of course the greatest possible respect for the decisions of the Privy Council. No Court is infallible, but I do not believe that any Court in the world has won a higher reputation or holds a higher position than the Judicial Committee of the Privy Council. Their duty is to advise the Sovereign to exercise his Prerogative in a particular case, and in this particular case they thought that they ought to advise the Sovereign to exercise his Prerogative, and no doubt the Prerogative would be exercised and a special leave to appeal would be given—that would be the normal course.
I am sorry that any attack should be made on any of our Dominion Parliaments, particularly on that of the Irish Free State, who have immense difficulties to deal with, who ought, I think, as far as possible, to have our sympathy rather than our criticism, and who, we ought to hope, will come into the full framework of the Dominion Conference as other bodies have done. That, of course, is what we all desire and it is what we mean by allegiance to our common Sovereign. What has happened here? I ask the noble Viscount to look at this section again. He has referred to me as a member of the legal profession. He, too, is well known in the legal profession. We are members of the same profession. He will appreciate that, because there is no difference in the legal profession whether you belong to one branch of it or the other. Therefore, we meet together on a common basis for quiet discussion. What is said is this and surely it is right. When this Act was passed there was no copyright in the Irish Free State, and what it says is that after this Act is passed no one is to bring action as though, by a matter of ex post facto legislation, there had been a copyright in the Irish Free State during that period of time.
§ VISCOUNT BRENTFORD
The noble and learned Lord will forgive me interrupting him, because I want to be quite clear. He says that there was no copyright in the Irish Free State. He will forgive me for suggesting that he should say, according to the decision of the Supreme Court, which has not yet been confirmed or rejected by the Privy Council.
§ LORD PARMOOR
I think the noble Viscount is more accurate than I am, but it does not affect my argument. I am very much obliged to him, because I want to attract his mind and not to drive it away. Supposing that this was a matter of definitely domestic concern, and assuming, for the moment, that the ultimate decision was the decision of the Supreme Court there, every lawyer very naturally takes great objection to creating, by what is called ex post facto legislation, rights which before that legislation came into operation were not in existence. Every lawyer will appreciate what I mean. That is all that this clause does. What it says in effect is this: "Although we are introducing this Act which introduces copyright for the first time in our opinion into Ireland, people are not to rely on that in order to get damages or injunctions or legal remedies at a time when, according to the view expressed by the Supreme Court in Ireland, no such rights existed." (I agree with the noble Viscount that there is always some difficulty when you have what is called ex post facto legislation; but a clause of this kind is common form.) "So that although we are putting the matter right, recollect that then according to the assumption the law was the other way, and you are not now to bring actions against all sorts of people who, according to what they considered the old law to be, were not liable at all."
What is the objection that is made? The objection is said to be in this case that the Act included this particular person whose appeal had been made to the Privy Council. I do not know whether it was made at that moment, or not, and that does not matter. I do not think you could have made a special exception of that kind. But I want to say that the only matter, as it appears to me, that can be left over now as regards the Performing 511 Right Society is really a substantive question of costs, as I think the noble Lord, Lord Danesfort, said. In matters of this kind you may be sorry that a person has taken certain steps in litigation and has ultimately found that he has to pay certain costs. One sympathises with that view; but it really is not a matter, if I may say so, for complaint in this House, as though a wide and large matter of constitutional principle had been invaded. I do not think any constitutional principle has been invaded—
§ LORD DANESFORT
Will the noble and learned Lord permit me to ask him a question? Supposing this appeal is carried to the Privy Council and the Privy Council say that the Supreme Court in Ireland were wrong and that the original plaintiffs were right and ought to have an injunction and damages and costs, would the noble and learned Lord kindly tell me whether, in that event, the plaintiffs would be able to get in Southern Ireland the benefit of that decision, or would they be precluded by Section 4 from obtaining that benefit?
§ LORD PARMOOR
From my own experience of the Privy Council in these matters, I think that would depend on the form in which their decision was given. They might give a decision, as is often done in the Privy Council, merely on the question of putting the right as they think it ought to be, or the decision might be given in the form of sending the matter back to Ireland with their recommendation that when this action was brought the plaintiff, whoever he was, was entitled to succeed in his action. I believe the damages were almost nominal.
§ LORD PARMOOR
What would be involved would be the question of right substantially in cases of this kind.
§ LORD PARMOOR
I do not want to go too much into this because in these questions of procedure one may easily make a mistake; but whatever rights of that kind this particular litigant had, I do not think they are interfered with so far as I can see. I can see that practically any profit he would get is very 512 small. But I think what is influencing his mind is probably this: Is it worth while to incur the risks of further litigation when, in any event, any profit I get out of this is very small? After all, although the noble Viscount was most fair in what he said and I appreciate it and have made a note of it, of course the litigant has to take the risk of the decision being either one way or the other. As in all these case, he would have to take a risk of that kind.
It is not for me to criticise any one or any State, but I might say, in conclusion, that I sympathise with the attitude taken by the noble Viscount and I admit that if the matter could have been dealt with between the two Governments I should have been only too glad. But what prevent that, and will prevent it, and really do great harm in matters of this kind are speeches imputing motives, low motives, motives which no Government ought to entertain; whereas, in reality, whether they are right or wrong, they have been actuated, no doubt, by their view of what is in the national interests of Ireland under their existing new Constitution. I have not the slightest doubt that, just as we should do in a case of this kind, they have tried to work out in what they consider the right and just way the interests which are involved in this litigation. I sincerely hope that we shall not have a Division upon these points, from the point of view that I have submitted. I do not know whether the noble Lord has made up his mind about that. I hope he will not; I will not say more than that.
§ THE MARQUESS OF SALISBURY
My Lords, I am sure that the noble and learned Lord and his colleague who sits upon his right hand will believe that no members on this side of your Lordships' House, certainly not those who were formerly members of the late Government, desire to say anything in the least disrespectful of any Dominion Parliament or, indeed, of any Dominion Government. On the contrary, we were foremost all through the period when we had the responsibility of office in maintaining the dignity of the great Dominions of the Crown and of furthering, as far as we could, the proper sentiment between the Parliament and Government of the United Kingdom and these great Parliaments in all parts of the globe. 513 If the noble and learned Lord and his colleague make a point of the difference between a Parliament and a Government, the matter does not bother me. For my part, I would be quite glad if my noble friend behind me (Lord Danesfort) cut out from the whole of his indictment the word Parliament and put in the word Government instead. What we want to reflect upon is the injustice, as we allege it to have been, upon our fellow-subjects, an injustice done at the instance, as we are afraid, of the Irish Free State Government.
The noble Lord, the Dominion Secretary, made an appeal to us not to use any language, or take any action, which might be resented by the great Dominions. I would re-echo that; at the same time I would like to draw his attention once more to the subject-matter of this debate. We are trying to maintain the jurisdiction of the Privy Council in respect of appeals from the Free State—a jurisdiction secured in the most solemn manner by Treaty a very few years ago. I want to speak respectfully of the Government of the Free State just as I do of the Governments of the other Dominions, but it is not fair to leave the impression, which might result, that any other Dominion except the Free State would ever have called in question their own signatures to a, Treaty, and the rights which British subjects have of an appeal to the Privy Council. I have been in the great Dominions as, I have no doubt, noble Lords opposite have. The great Dominions treat appeals to the Privy Council with the most profound respect. In a large part of Canada—indeed, as far as I know, in the whole of Canada—its value is much regarded, and I believe that to be equally true of Australia.
What I wish to point out is that in trying to maintain the right of appeal to the Privy Council from the Irish Free State Courts we are doing nothing disrespectful to the great Dominions of the Crown. To suppose the contrary is an entire misunderstanding. The great Dominions may or may not approve of the Privy Council's jurisdiction in the future—I do not know about that—but I am quite certain that as long as it subsists every one of them will respect it. I do not care whether you look to the northern hemisphere or the southern hemisphere, in the East or in the West, 514 every Dominion of the Crown would respect it so long as it exists, except the Irish Free State. That is a fact. As I have said, I want to speak very respectfully of the Irish Free State. I have been very much opposed, as many of my noble friends have been, to the policy of the Imperial Parliament in creating the Irish Free State, but all that is past and we accept the situation as it is. But surely it is not disrespectful of us to recall to the Irish Free State the great example which has been set them by the other Dominions of the Crown? We recognise the orderliness with which every British Dominion has accepted the law as it stands, even if they should want to alter it hereafter, of which I know nothing, and we say it is not disrespectful but is only reasonable that we should take up the attitude that has been taken in this debate.
Although the noble and learned Lord may argue with his customary legal acumen over the exact meaning of Section 4, the broad effect cannot be denied by those who read the debate at the time when this Act of the Irish Parliament was passed, that the intention was to oust the appeal to the Privy Council. I do not mean that that was the only intention. I give the noble and learned Lord quite willingly the full benefit of his argument that it was required—that in many cases it was "common form" as he said—but in fact it would oust this particular case from the jurisdiction of the Privy Council if it turned out that the Privy Council had decided in favour of the plaintiff. That that was the intention of the Irish Government who passed the Act I do not think you can doubt if you read the debate. I stand corrected if I am wrong, but that is my impression after glancing at the debate, and my noble friends beside me who have read it carefully tell me that was the intention of the speakers. I earnestly hope that the Free State Government—I represent this most respectfully to them—will reflect how unworthy it is of those who want to follow in the footsteps of the great Dominions if they take a line of that kind.
I am most anxious not to embarrass His Majesty's Government at this particular moment. The noble Lord who is Secretary of State for the Dominions told us there is a Conference at present sitting 515 in London, and that he is presiding over it, and that a Resolution of your Lordships' House might conceivably embarrass him in the conduct of his negotiations. I understand him to say that. I do not know whether my noble friend Lord Danesfort will take any suggestion from me. I should be the last man to desire to embarrass His Majesty's Government to whatever political Party it belonged, and as far as I am concerned, if my noble friend, after the appeal that has been made, decides not to press this Motion, I should not think him at all wrong; but I do think, none the less, there is a great responsibility on the noble Lord the Secretary of State for the Dominions and his colleagues. At any rate, can he not approach the Irish Free State Government and represent how strong the feeling is in this country that these Treaty rights should be maintained, and ask whether, after all, they do not see that it is right to do as the other great Dominions do? I do not know whether he will have any opportunity to do that at the present Conference, but if he has I hope he will avail himself of it. Of one thing I am certain, and that is that no blame attaches, or can attach, to my noble friend Lord Danesfort and those who sit on this side of the House, if, whenever this kind of thing ocurs, they come to your Lordships' House and speak to Parliament and the people of this country pointing out where they think British subjects are gravely wronged.
§ LORD DANESFORT
My Lords, I am very greatly obliged to the noble Marquess who has just spoken for recalling the attention of the House to the real question which is at stake. It has been blurred over, if I am not using an unceremonious expression, by the two speeches we have heard from the Front Bench opposite. The real question here to-day is: Are we in this House, or are we not, determined, so long as the right of appeal subsists under the Constitution or the Treaty, to do all in our power to maintain the right of British subjects under that Treaty and Constitution, or are we going to let it pass by without comment? I listened with great regret, I may frankly say, to the speech of the Dominion Secretary. If he will permit me to say so I do not think he went near the real question—namely, whether this right to apply for leave to appeal 516 has been infringed or not. He went a very long way from that question. What he really did was to try to divert the attention of your Lordships from the question, asking "Is this a domestic question?" and saying in effect that if it is a domestic question we ought not to touch it; it would hurt the feeling of the Irish Free State Parliament to interfere with their domestic legislation, and it might hurt the feelings of other Dominions if we attempted it. But this is not a domestic question, and upon that I greatly prefer the authority of the noble and learned Lord, the late Lord Phillimore, to any opinion that I have heard to-day. He said it is a constitutional question and essentially a question which would have resulted in an appeal from either Canada or Australia.
I have heard the appeal of the noble Marquess, Lord Salisbury, and of course I feel with him that it would be very undesirable to do anything which might interfere with the deliberations which are now going on. But I do wish to protest most strongly against the perfectly new and, as I think, entirely unfounded doctrine which has been uttered to-day by the Secretary of State for the Dominions, to the effect that if a Dominion does something which in the opinion of the Government of the day is improper, it is open to the Minister to send a remonstrance to that Dominion Government, but that Parliament must remain silent. Parliament must be muzzled! It would be an impious thing for Parliament to send a protest, but right for the Minister to make a protest! That is what I understood to be the Secretary of State's new constitutional doctrine. Well, I have read a good many constitutional books, but I have never beard such a suggestion before, and if the noble Lord who speaks for the Dominions will give me any authority for a doctrine of that sort I shall be much obliged and at the same time very much surprised. Take the case of a foreign country. If a foreign country breaks a Treaty and does an injustice to a British subject, does the noble Lord say that if that is done under the authority of the Parliament of that foreign country it would be an insult for the Parliament of this country to make a protest? Wherein lies the difference? For the life of me I cannot understand 517 so strange and, as I think, so unfounded a doctrine.
The noble and learned Lord, Lord Parmoor, said that you must not enquire into the motives of the Free State Parliament or its Ministers. I do not know anything about their motives. What I do know is what they have said and what they have done. What they have said is that they want to destroy appeal to the Privy Council, in this case as in others. They have said so in the plainest possible terms in their own Parliament. What they have done is that they have passed legislation which, if it is not repugnant to the Constitution—on which I offer no opinion—will undoubtedly have the effect, as I think, of depriving the appellants of the results of their appeal if the appeal is successful. Indeed, the noble and learned Lord, Lord Parmoor, did not venture to say that it would not have that effect. It might have other effects, I grant you, less pernicious, but it would have that effect. If the present appellants were successful in the Privy Council, and went to Ireland and asked for damages or anything else, this legislation would be flaunted in their faces and they would not get anything. Therefore I say, judging from their speeches and their action, that this is a deliberate attempt on the part of the Free State Government to make null and void the effect of any successful appeal to the Privy Council. They have no hesitation in saying it. Why should the noble and learned Lord, Lord Parmoor, have any hesitation in believing them?
In response to the appeal of the noble Marquess I shall do nothing which might injure the deliberations of the Conference 518 which is going on, and therefore I shall withdraw that part of my Motion which expresses disapproval of the action of the Free State Government—although I need hardly say I feel it—but I shall move for Papers. The Secretary of State for the Dominions has read out portions of the correspondence which has passed, and he will no doubt have no objection to publishing those letters as a White Paper, so that we may know on the one hand what objections were taken by the, Society and the Government here, and on the other hand what excuse, if any, the Irish Free State Government have to offer. I shall move for those Papers and any other Papers that are material. Perhaps the noble Lord would kindly tell me whether he will grant that.
§ LORD PASSFIELD
I will enquire what other Papers there are and I will put no obstacle in the way. If there is anything which can with propriety be produced I will produce it.
§ Motion, by leave, withdrawn.
§ House adjourned at a quarter before six o'clock.