HL Deb 01 December 1931 vol 83 cc231-45

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clauses 1 to 6 agreed to.

LORD DANESFORT moved, after Clause 6, to insert the following new clause: . Without prejudice to maintenance of the other provisions of the Treaty of sixth December, nineteen hundred and twenty-one, and of the Irish Free State (Agreement) Act, 1922, and of the Irish Free State Constitution Act, 1922, it is hereby declared that nothing in this Act shall be deemed to authorise the Parliament of the Irish Free State to alter or repeal Section two of the said Treaty or the provisions contained in the Irish Free State Constitution Act, 1922, as to the right of any person to petition His Majesty for leave to appeal from the Supreme Court of Southern Ireland to His Majesty in Council or the right of His Majesty to grant such leave.

The noble Lord said: The object of the clause which I move is to preserve the right of appeal from the Irish Free State Courts to the Privy Council, which is an integral part of the Treaty between this country and the Irish Free State made on December 6, 1921. The issue raised by my clause is largely a different one from that which was raised by Colonel Gretton's Amendment in another place, an Amendment which was rejected. Colonel Gretton's Amendment proposed to safeguard specifically by words all the terms of the Irish Treaty, and when you see why that Amendment was rejected I think your Lordships will see some reason why my Amendment should be accepted. Colonel Gretton's Amendment, as I say, was to preserve all the provisions of the Treaty and to prevent them from being altered under the Statute of Westminster Bill when it becomes law. There is no question that in arriving at the decision to reject that Amendment the House of Commons was largely influenced by two facts. The first was a letter from Mr. Cosgrave to the Prime Minister, dated November 21, which was read out by the Dominions Secretary, in which Mr. Cosgrave said: The Treaty is an agreement which can only be altered by consent. A very proper and a very just declaration, and, if it were applied to all the Treaty, I should not be here to ask your Lordships' leave to move my Amendment.

The second thing that I think materially influenced the House of Commons was Mr. Baldwin's declaration that he was advised by the Law Officers that the binding character of the Treaty would not be altered by one jot or tittle by the passing of this Bill. In those circumstances the majority of the House of Commons naturally assumed, and I think very justly assumed under the conditions, that Mr. Cosgrave's letter and Mr. Baldwin's statement applied to every term of the Treaty, including that very important term, the right of appeal to the Privy Council from decisions of the Irish Courts. And may I say in passing that that right of appeal is regarded to this day by many persons—minorities and others in Ireland—as of vital importance for the purpose of protecting their rights in case those rights should be at any time invaded? I reminded your Lordships on the Second Reading of this Bill that in practically every case where an appeal to the Privy Council came from the Supreme Court of Southern Ireland the appeal was successful. In other words, had it not been for the existence of this appeal injustice would have been done.

There was the notorious case of Wigg and Cochrane, which was a case of ex-British civil servants who appealed to the Privy Council on the ground that the compensation given to them by the Irish Courts under Article 10 of the Treaty was insufficient, and the Privy Council decided that these ex-British civil servants were entitled to £150,000 more in compensation than had been awarded by the Irish Court. The result of that appeal was that these men got £150,000 additional compensation. If the appeal to the Privy Council had not existed they would not have got one farthing of that sum. I merely mention that to show that in quite recent times—I think the appeal of Wigg and Cochrane was only two or three years ago—that right of appeal has not only been exercised but exercised in such a way as to prevent what undoubtedly would have been injustice otherwise.

I told your Lordships what was said in another place—namely, that Mr. Cosgrave proposed to abide by the Treaty, which, he said, could not be altered except by consent. Somewhat to the surprise of many of us, we were told by the noble Viscount, Lord Hailsham, on the last occasion when this question was before your Lordships, on the Second Heading on Thursday last, that Mr. Cosgrave holds the view that this right of appeal to the Privy Council is not part of the Treaty at all, and that he intends on the first opportunity when this Bill is passed into law to abolish that right entirely. The noble Viscount will forgive me, but he told us that Mr. Oosgrave alleges now that the right of appeal was not in the Treaty. It is notorious, and has appeared in The Times and other newspapers two days ego, that they are already preparing a Bill in Dublin to abolish this right of appeal in the Treaty as soon as ever the Bill is passed. There can be no question about that, and if the noble Viscount did not say so I expect he is one of the very few people who are not aware of the fact; but it is a fact.

May I make this comment? If it be a fact, as it is, that Mr. Cosgrave asserts now that this right of appeal is not part of the Treaty, was it not very unfortunate that he did not mention that fact in his letter to the Prime Minister? Instead of asserting or putting that into his letter, he told us in fact that he was going to abide by every term of the Treaty Unfortunately, he did not mention that he did not agree that this very important right of appeal was not part of the Treaty. I have taken the trouble to look into some of his previous utter- ances to see why he objects, or objected, to this right of appeal. I find that as recently as May last at a public gathering the reasons which he gave for objecting to this right of appeal were these. He said: These appeals are an anomaly and an anachronism. Their continuance is incompatible with our status"— I ask your Lordships to pay especial attention to this reason that he gives— and is an insult to our dignity. So that according to his statement in May last he did not object to the right of appeal on the ground that it was not in the Treaty. He objected to it mainly because it was an insult to their dignity.

His Foreign Secretary, I think he is called, Mr. McGilligan, speaking a little later in the year, gave another reason for objecting to the Treaty. I almost hesitate to read this because it is in terms which might be somewhat offensive to your Lordships. But one has to know what is being said in Ireland and it is no use shutting one's eyes to the fact. Mr. McGilligan said: The British Monarch or King was finished entirely so far as the Free State was concerned. May I say a word or two as to the right of appeal being part of the Treaty? Every legal authority before whom that Treaty has come in this country has said without hesitation that Article 2 of the Treaty contains implicitly this right of appeal to the Privy Council. That view has been asserted by no one more strongly than His Majesty's present advisers, and by the noble Viscount, who wanted the other night temporarily to divest himself of his great legal authority, which I entirely refused to grant him because I cannot forget that, notwithstanding that he is the Secretary of State for War, he is an authority to whom we all look.

Not only has the view that the right of appeal is contained in this Treaty been, laid down by His Majesty's Government, but it has been laid down by every legal authority in this country, including such an authority as Mr. J. H. Morgan, who is recognised as a great constitutional lawyer. I do not think that one single legal authority in this country could be produced to say the opposite. Yet Mr. Cosgrave tells us, with what authority we know not, that he does not think that this right of appeal is in the Treaty. I ask, would it be right for your Lordships' House and for Parliament to allow what we believe on the highest legal authority would be a violation of the Treaty to be done because some unknown legal authority in Ireland says he does not think it is in the Treaty? I think it would be a grave dereliction of duty if we assented to anything of the sort.

There is another and somewhat different view of the point to which I would ask your Lordships' attention. Let us assume for a moment that this right of appeal is not in the Treaty, and let us consider how the matter stands apart from the Treaty. I say that even if this right of appeal had not been put into the Treaty, the Irish Free State Government would not be entitled, unless they are empowered to do it by this Statute of Westminster Bill, to destroy that right of appeal. The reason I say that is that in the Irish Free State Constitution Act, an Act which was passed in identical terms both in the Imperial Parliament and in the Parliament of the Free State in the year 1922, laying down the Constitution of the Free State, there is an Article which contains an express provision that the right of appeal should exist. The words of Article 66 are these: Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave. Therefore, this right of appeal was expressly reserved, putting the Treaty on one side for a moment, in the Constitution, and unless this Bill gives the Irish Free State power to alter this Imperial Statute, then the Irish Free State have no power to alter that part of their Constitution. But I fear there is little doubt that if this Bill were passed unamended, without the Amendment which I ask your Lordships to introduce in it to-day, they could repeal this part of the Imperial Statute and could abolish this right of appeal which was enshrined in that Statute. Therefore, from that point of view also, I think my Amendment is essential.

There is only one other aspect of this question I want to call your Lordships' attention to, and it is rather important. It is the question of the Prerogative of the Crown, and whether the Irish Free State is entitled to do an act by its own legislation which would involve an infringement of the Prerogative of the Crown. It arises in this way. I am now quoting from an authority I will mention in a moment, which your Lordships will all recognise as paramount: In every self-governing Colony the Crown has a right if it chooses to exercise it, to grant leave to appeal to the Privy Council. You cannot take away this Prerogative without express words. Those are the words used by Sir Douglas Hogg, Attorney-General of the day, in the House of Commons in moving the Second Reading of the Free State Constitution Bill, and I need hardly say that utterance of his, like all his utterances, was entirely accurate and in accordance with the law. I need hardly say that everyone in this House accepts that authority. What follows from it? It follows that, even apart from the Treaty altogether, the Free State could not abolish this right of appeal to the Privy Council without infringing on the Prerogative of the Crown, and, therefore, when I ask your Lordships to accept this Amendment, I am asking you to do so for the reasons I have already given, and for the further reason that I think your Lordships would be justified in saying to the Free State Government: "You are not entitled to infringe on the Prerogative of the Crown, and to abolish that Prerogative which allows His Majesty's subjects in proper cases to appeal to the Privy Council."

My last word is this. What is the objection to this Amendment? We shall hear it in due course. Mr. Baldwin said in another place that if an Amendment of this character were put into the Bill the other Dominions would resent it. Why should the other Dominions resent it? I cannot conceive any reason—and I have racked my very poor brain to find a reason but I am unable to imagine one—unless they put some extravagant construction on the celebrated Balfour Declaration. What they would have to say would be this. They would say that Declaration meant this, "that a Bill is to be brought forward in the Imperial Parliament which will be sent to each of the Dominions for consideration, and each of the Dominions will be entitled to put in such reservations as they may think lit or proper to protect themselves, but when the Bill comes to this Imperial Parliament you, representing Great Britain and Northern Ireland, and as trustees"—let us not forget that—"for minorities in Ireland, are prohibited from inserting one line to preserve those Treaties in matters which were considered when they were made absolutely essential both for your own interests and in the interests of minorities in Ireland."

I think that would be an absolutely extravagant—I had almost said outrageous, but your Lordships do not like strong language—an almost outrageous perversion of the intention of Mr. Balfour's Declaration. How could it be justified to tell us "the Dominions can do what they like to protect themselves if they had this Bill"—four or five have put in provisions protecting their interests in the manner which they think proper—"but you, the Imperial Parliament, must not put in one single line to protect either your own interests or the interests of minorities in Ireland. More than that, even though the rights which were conceded to you and to minorities in Ireland were granted by Treaty you must not touch the Bill and you must not do anything to the Treaty." I urge upon your Lordships strongly that you would be justified—may I say you would be almost more than justified, you would be bound?—to protect the rights of this country and to protect, the rights of Ireland in view of the declared intention by Mr. Cosgrave to do what we believe to be a violation of the Treaty. I beg to move.

Amendment moved— After Clause 6, page 3, line 27, insert the said new clause.—(Lord Danesfort.)


I cannot help saying that I think it is a little unfortunate, after the debate which took place in this House on Thursday last, that this Amendment should have been moved. No one of course doubts the sincerity and earnestness of conviction which actuated my noble friend in bringing the matter forward. I hope he will forgive me if I say that I doubt very much whether he is really rendering a great service to those whose cause he desires to champion in Southern Ireland by moving his Amendment. My noble friend, before he dealt with the main point in dispute in this Amendment, referred to one or two quotations which I would like to mention in order to brush them aside. He quoted three persons—President Cosgrave, Mr. McGilligan and myself. He quoted President Cosgrave as having given a number of reasons in May last why he disliked the maintenance of the right to petition His Majesty for special leave to appeal, and he said that the President had not mentioned in his letter as one of the reasons the contention that the right was not in the Treaty. Of course the President did not mention that as one of the reasons why he objected to the continuance of the right. President Cosgrave has all along said that he intended and promised to observe the provisions of the Treaty, and, therefore, to say that he objected to this particular provision because it was not in the Treaty would have been a ridiculous statement. What he no doubt meant is that, although he desires to observe the provisions of the Treaty intact, that does not preclude him from attacking this particular matter because it is not included in the Treaty provisions. I have said already, and it is not necessary to repeat, that I do not personally agree with that view, but at any rate it would obviously be a wholly illogical thing for the President to have said the reason he objected to the Privy Council appeal was that it was not in the Treaty.

Then my noble and learned friend quoted an observation of Mr. McGilligan to the effect, I think, that the British Monarch or King was finished in the Irish Free State. I have not got the quotation, but I am informed—and my noble friend will be able to verify it—that, if he looks at the context in which that observation was made, he will find, not that Mr. McGilligan is repudiating the Sovereignty of His Majesty, but that he is emphasising that, since the arrangements embodied in the Balfour Declaration, His Majesty is King of the Irish Free State just as he is King of Great Britain and that the Irishman's allegiance is due to His Majesty as King of the Irish Free State and not as King of England. That is a concession to Irish sentiment which I confess does not shock me at all.

Next my noble and learned friend quoted an observation, which I made in 1922, in which I pointed out that the Prerogative of the Crown to grant special leave to appeal to His Majesty in Council is a right which could not be taken away without express language. My noble friend is good enough to say that he accepted my authority, but I should like to assure your Lordships at once that the proposition does not rest on the statement I made in another place, but is, in fact, embodied in a decision to that precise effect by the Privy Council itself in the case of Rex versus Nadan, an appeal from Canada. There is no doubt at all that, without express language, the Prerogative right to grant special leave to appeal cannot be taken away. But that is not what we are discussing today. My noble friend seems to me to miss altogether the point of the objection which is taken to any such provision as that which he desires to see inserted, not only by the Irish Free State but by the other Dominions of the Crown. The objection of the other Dominions is just as emphatic as the objection of the Irish Free State, although the reason for it may be a little different in the two cases. The objection which the Dominions feel to this clause or anything like it being inserted is that it is a derogation from, and contradiction of, the constitutional position which we as long ago as 1926 asserted to be the constitutional position of the Dominions in what is now known as the Balfour Declaration, a Declaration which, your Lordships will remember, rests not merely on the authority of that great statesman but was accepted and embodied in the unanimous Report of the Imperial Conference of that year and, therefore, represents the considered and united opinion of all the self-governing Dominions and of the Mother Country.

May I remind your Lordships, because the point is of some importance and is the whole point in this discussion, of what the Balfour Declaration said. I am quoting from the Report of the Imperial Conference: They [the Dominions] are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. That defines the status of the Dominions and of the Mother Country and their relations one to another. What the Dominions say is this: "If it be true, as you have said in 1926 and as we accepted in that year, that the Irish Free State is an autonomous community, in no way subordinate to the United Kingdom in any aspect of its domestic or external affairs, and if it be true, as you allege, that you are passing this Statute of Westminster Bill in order to give legal recognition to that doctrine, it is a contradiction in terms to insert into that Statute a limitation of the legal right of the Irish Free State to deal with its domestic affairs in any way which it sees fit, and it is none the less a derogation from that right because it happens that the Irish Free State have contracted with you that they will not exercise their rights in a particular way."

The Dominions say that you have no right to say to the Irish Free State: "Although we are agreed that you are an autonomous community, in no way subordinate to the United Kingdom, when we come to put that into an Act of Parliament, we are going to say, as a pledge of your subordination to us, that we will not allow you that freedom except as we think you are entitled to use it. "That is the objection of the Dominions and it does not rest upon their agreeing with the Irish Free State or with us as to whether this particular right is in the Treaty or not. If it is in the Treaty, the Irish Free State cannot depart from it without a breach of their Treaty obligations: if it is not, they can. Whether they can or whether they cannot, this Parliament has no constitutional right, according to the Balfour Declaration, to impose upon their recognition of the absolute autonomy in external and domestic affairs of the Irish Free State a limitation or qualification that we will only grant it to the extent to which we think they are entitled to use it. That is the argument and to me it seems an unanswerable argument. So far from it being, as my noble friend said, an unreasonable extension of the Balfour Declaration, it seems to me only to state in other language what the Balfour Declaration lays down.

I have said already, and can only repeat, that in my view the right to petition His Majesty by special leave to appeal is preserved by the Treaty. I have said already that in any view, if the Irish Free State hold an opposite opinion, they ought to submit the matter to some impartial tribunal to decide which is right. I have said already, and I do not shrink from repeating, that I think they were very wrong in doing what they have consistently done, passing Acts reversing every decision of the Privy Council given in an Irish appeal. I said that it was wrong. I should not attempt to justify their legislating unilaterally to abolish that right without our sanction or without having obtained from an impartial tribunal a decision that their view was right. Because I take that view as to what is right, that does not justify me, nor would it justify your Lordships, in saying to the Irish Free State or to the other Dominions vitally concerned in this question: "When we said in the Falfour Declaration that we recognised your absolute autonomy, when we renounced all right to subordinate you to this Parliament in domestic affairs, we meant at the same time to reserve to our-selves the right to insert in the Statute which recognises that right a limitation?which is inconsistent with its existence." That is the whole issue in this Amendment. It is because that Amendment is inconsistent with the constitutional position of the Dominions, and not in the least because I differ from my noble and learned friend as to his construction of the Treaty rights, that I beg your Lordships not to accept an Amendment which, in my judgment at any rate, would do a great deal to spoil the relations between this country and the Irish Free State, which would revive suspicions in the other Dominions which I hope and believe were finally allayed in 1926, and which could be of no practical benefit to anybody in the wide world.


I had not intended to intervene this afternoon. I listened with very great respect to the speeches of my noble friends, particularly the speech of my noble and learned friend on the Front Bench. I do not know whether I ought to call him my noble and gallant friend from the office he occupies at the moment, but I prefer to think of him as a learned and not as a gallant member of this House. Naturally one takes his views as correct and he has shown that he does agree with the moral aspect of this question put before your Lordships by my noble friend Lord Danesfort. But I want to appeal to my noble friend as to whether it is desirable in the present circumstances, and in view of the fact that this Bill has passed the Lower House by a very large majority and in face of what the noble and learned Viscount, Lord Hailsham, has said in regard to the effect which it might have, and probably would have, upon all the Dominions who are parties thereto. I would ask my noble friend whether, having made his statement, with which I think all your Lordships will agree or at any rate a very large proportion of your Lordships will agree, having made out both legally and actually a good case for the Amendment—an Amendment which I say frankly I should be only too glad to vote for if it were not for the circumstances—he could see his way, in consideration of the Imperial interests, not to press to a Division an Amendment with which I am sure so many of your Lordships really sympathise.


We have heard an interesting speech from the noble and learned Viscount. So tar as I followed him he did not impugn one single jot or tittle—that I am told is the proper legal phrase used by Law Officers—of my argument. He admitted it all. He admitted that what Mr. Cosgrave is going to do is a violation of the Treaty. He admitted that Mr. Cosgrave is wrong in suggesting that it is not a violation of the Treaty. He admitted—at any rate, he did not controvert it—that apart from the Treaty it would be a violation of the Constitution to abolish this right of appeal, and he did not dispute my point that it would be an infringement of the Royal Prerogative if the Free State attempted by legislation to abolish this right of appeal. But then, in language which of course I accept coming from him, though if it had come from any one outside this House with less authority I should have had great difficulty in accepting it, he told us that if the Balfour Declaration is to be followed it is a contradiction in terms to insert a restriction on the legal power of the Irish Free State or any other Dominion even though—I think I am quoting the substance of what he said although I have not got his exact words—that involved a breach of a Treaty or an Agreement. If that be really an accurate statement I confess that to me it is an absolutely astounding position. The subjects of His Majesty's Dominions all over the world are entitled to protect themselves, but we in this country are forbidden to do it by the words of the Balfour Declaration.

If your Lordships accept that it is not for me to press my Amendment to a Division, but I do hope that before this intention of Mr. Cosgrave's is carried out he, too, by representations made from His Majesty's Government in this country, may be induced to pause long before he does what undoubtedly will be looked upon by the minority in Southern Ireland as a gross breach of faith with them, and what would be looked upon by any people in this country who desire to maintain Treaty rights as being unworthy of a Dominion to whom free government had been granted by this country. In the circumstances I accept the advice of my noble friend Viscount Brentford and do not ask your Lordships to divide upon this Amendment, but I say honestly I do it with the utmost regret.


I would not have intervened in this debate, but I cannot allow some of the words of my noble friend to pass without comment. My noble friend spoke as if he were the spokesman of the minority in Southern Ireland.


I am of a good many of them.


I am very doubtful whether he knows the mind of a good many of them.


May I say that I have been asked by a great many of the minority in Southern Ireland to put forward their views in this matter, persons who are of importance and whose views I respect?


I think that is a little indefinite, but really my purpose is to see that your Lordships should not be misled. I doubt whether there is any strongly considered opinion among loyalists in Southern Ireland in regard to this particular point. I am not an apologist for the Treaty. Views of the Treaty were expressed on behalf of the minority in Southern Ireland by myself and my colleagues to the then Prime Minister within a few hours of the Treaty. I am not going back upon that question at all. It may be that promises to the minority in Southern Ireland had been forgotten altogether in framing the Treaty and that mischief undoubtedly resulted, but I am not going to touch on that or the legal aspect of the case or detain your Lordships for more than a moment or two. Whatever the legal aspects of the case, I am forced to say that in my opinion, and I know in the opinion of many of the minority in Southern Ireland, whatever his previous views and convictions were, the conduct of Mr. Cosgrave as leader of the Irish Free State has been in other respects than those which I cannot deal with on legal points, consistently one of loyalty to the Treaty, of regard for the minority and of statesmanship in dealing with extremely difficult problems.


Hear, hear.


That tribute from your Lordships, that cheer, is well bestowed on this occasion. I will say one thing more. I believe that no greater unwisdom has been shown than by those extremists who have followed the example of O'Connell for a great many years in the last century, who instead of endeavouring to make the very best of the circumstances in which Ireland finds herself have gone back again on old political problems. Nothing can stimulate that habit of view in the Irish mind so much as the belief—which is an entire delusion—that this country is solely occupied with trying to find out how it may again reassert authority in Southern Ireland. I do not believe that there is any attempt of that kind in any direction, but nothing is so much calculated to reaffirm that view in the Irish mind as any attempt to reassert power which we shall not be able to exercise.

I would put this question to my noble friend. Suppose he carried his Amendment, can be give effect to it? We all know he cannot. We all know that we are not going by force of arms to reaffirm the right of appeal to the Privy Council. In the circumstances I can only say that I think the Government have taken upon the whole a wise course, faced as they were with the necessity—which I regret—of putting into statutory form the hitherto unwritten Constitution of tie British Empire. I regret it, but I believe that in taking the course your Lordships propose to take we are avoiding one more blunder of a long series of blunders on the part both of Ireland and of this country, which have been in the past the cause of so much misunderstanding and a renewal of which at this moment may prejudice the best interests of both countries.

Amendment, by leave, withdrawn.

Clauses 7 to 11 agreed to.

Clause 12:

Short title and commencement.

12.—(1) This Act may be cited as the Statute of Westminster, 1931.

(2) This Act -shall come into operation on the first day of December, nineteen hundred a id thirty-one.

THE LORD CHANCELLOR (LORD SANKEY) moved to leave out subsection (2) The noble and learned Lord said: This Amendment is in the nature of a drafting one. The Bill provided, by Clause 12, subsection (2), that this Act shall come into operation on the first day of December, 1931. To-day is the first day of December, and of course the Act cannot come into force to-day. The Amendment proposes to leave out that subsection, and the effect will be that the Act comes into operation when the Royal Assent is given.

Amendment moved— Page 5, lines 11 and 12, leave out subsection (2).—(The Lord Chancellor.)

On Question, Amendment agreed to.