§ LORD DANESFORT rose to ask His Majesty's Government whether their attention has been called to an announcement made in the Irish Free State Parliament on 11th December, 1930, by Mr. McGilligan, the Minister for External Affairs, to the effect that legislation in the Free State Parliament to abolish appeals to the Privy Council from the Free State Supreme Court was under consideration and would be introduced in due course; whether the consent or approval to this course of His Majesty's Government has been asked for or obtained; and whether His Majesty's Government approve of such action by the Trish Free State Government; and to move for Papers.
§ The noble Lord said: My Lords, I rise to ask the Questions and to move the Motion standing in my name. May I say at once that the issue involved in this matter is a gravely important constitutional question of the maintenance of obligations which were imposed upon the Irish Free State Government by the so-called Treaty of 1921, and by the Constitution of that Free State which was established by legislation both in this Parliament and in the Free State Parliament. I have no intention to-day of reciting any of the attempts or devices—and there are many—by which the Free State Government have endeavoured to evade their obligations under the Treaty and the Constitution in regard to this matter of the right of appeal to the Privy Council. That right of appeal was contained in the Treaty—if I am right in calling it a Treaty. It was 737 expressly confirmed by legislation both in this country and in the Free State, and I should hope it is too late to question the obligation of the Free State Government to abide by those obligations.
§ I do not intend—because I am going to speak very briefly to-day—to discuss the general question of the obligations which the. Free State Government entered into owing to that Treaty and that Constitution. All I would say about that is that every successive Government in this country since the date of the Treaty and Constitution have asserted in the strongest terms that it is not open to the Free State Government to depart in any respect whatsoever from the obligations of that Treaty without the consent of the other Party to it. In other words, in order to alter the Treaty or Constitution we must have an agreement between the people and the Parliament of this country on the one hand, and the people and Parliament of Southern Ireland on the other. No one has asserted the view that I have just enunciated more strongly and, if I may say so with great respect, more clearly than the noble Lord, Lord Pass-field, who, I gather, will answer my Questions to-day. More than that, I do not at the present moment recall any responsible Minister of the Free State having asserted that they are at liberty to evade or to depart from the obligations of the Treaty, as embodied in the Constitution, of their own motion and without the sanction of the Parliament of this country.
§ It was therefore with considerable surprise that I read the announcement that the Free State Minister for External Affairs, Mr. McGilligan, made in the Irish Free State Parliament on December 11 last, to the effect that legislation to abolish appeals to the Privy Council from the Free State Supreme Court was under consideration and would be introduced in due course. Having regard to that announcement, I have ventured to put upon the Paper these Questions to His Majesty's Government and, putting them very shortly, they are simply to ask: Whether the consent or approval of His Majesty's Government in regard to this action on the part of the Free State Government has been asked for or obtained; and whether His Majesty's 738 Government approve of the action that has been taken or is about to be taken by the Free State Government. I hope that we shall have a very clear answer, as I am sure that we shall have a very definite answer, from the noble Lord. I beg to put my Questions and to move for Papers.
§ THE SECRETARY or STATE Ton THE COLONIES (LORD PASSFIELD)My Lords, the Questions which the noble Lord has put relate to a subject to which he has already several times called attention, and I will certainly give him an explicit answer. I agree with him, of course, that what he referred to as the obligations entered into between the Governments of this country and of the Irish Free State became a matter of contract from which no one party could depart without the consent of the other contracting party. That is quite clear. But I would venture to protest against the language which the noble Lord used in the opening of his speech, when he referred to the obligations "imposed upon." the Irish Free State Government by "the so-called Treaty." I would rather put it on the ground that it was a contract between the parties. If we wish to take it on the grounds on which it has been taken by successive Governments, I would not refer to it as an obligation imposed upon the other party. It is better to regard it as a Treaty or contract freely entered into by two contracting parties on equal terms, from the provisions of which neither can depart without the consent of the other.
The noble Lord referred to the action taken or about to be taken by the Free State Government. This puts me in some difficulty, because I ant not in a position to state what action would be taken by His Majesty's Government on the action taken or about to be taken. It rather depends upon what the action is when it is taken. I have heard before of speeches made by Ministers to the effect that something was in contemplation, and what happened afterwards has not been exactly that which had been stated in the speech. To give a specific answer to the noble Lord, the attention of His Majesty's Government has been called o a report of a statement made by the Irish Free State Minister for External Affairs in the Irish Parliament on December 11 last, to the effect that legis- 739 lative proposals to abolish appeals to the Judicial Committee of the Privy Council were at present under consideration and would be introduced in due course. They have not, however, received any intimation from His Majesty's Government in the Irish Free State as to the terms or the intended legislation, nor have they indicated their consent to the introduction of such legislation. If and when such legislation were introduced, it would be necessary for His Majesty's Government in the United Kingdom to consider it most carefully in view of the terms of the Articles of Agreement of 1921, and the conclusions reached at the Imperial Conference of 1926.
It will be remembered that these conclusions were set out in the following statement:—
…. it became clear that it was no part of the policy of His Majesty's Government in Great Britain that questions affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of the Empire primarily affected. It was, however, generally recognised that where changes in the existing system were proposed winch, while primarily affecting one part, raised issues in which other parts were also concerned, such changes ought only to be carried out after consultation and discussion.In all the circumstances His Majesty's Government in the United-Kingdom think that it would be inadvisable at this stage to indicate the attitude which they might find it necessary to adopt in relation to projected legislation of the provisions of which they are not aware. I hope the noble Lord will not think that I have evaded his Questions. To put it more summarily: the answer to the first Question is in the affirmative; the answer to the second Question is in the negative; and consequently the third Question does not arise. In reference to the noble Lord's Motion for Papers, there literally are no Papers, because we have received no Dispatch from the Free State Government on the subject. I hope the noble Lord will be satisfied on that point, and will withdraw his Motion for Papers. I can assure him that, when the time comes and there are Papers, it will be the duty of His Majesty's Government to produce them when we know exactly what steps are going to be taken.
§ LORD DANESFORTMy Lords, I am afraid that I have not received a great 740 deal of information from His Majesty's Government, but. I welcome the very clear statement which the noble Lord has once more made to the effect that the obligations which the Free State are under by virtue of the Treaty are matters of contract which cannot be altered without the consent of the other party to the contract—namely, this country and the Parliament of this country. I understand from him (he will correct me if I am wrong) that, even if the Free State Government were to pass legislation in their Parliament abolishing the right, to appeal to the Privy Council that is contained in the Treaty, such legislation would be entirely void and without effect unless there were legislation of a similar character in this country.
§ LORD PASSFIELDI am sorry that the noble Lord should put a legal question of such profundity to me across the Table. I cannot give him a legal opinion as to what the effect would be in law. I am in agreement with him that it is a matter of contract, but I cannot he held responsible for the statement he has made as to the effect in law.
§ LORD DANESFORTThen that really answers my question. Inasmuch as it is a matter of contract, the contract cannot be altered without the consent of both parties. As regards the matter of Papers, if there are none it is useless to ask for them, but if at a later date Papers should arrive in which the Free State Government ask for the advice or consent or approval of his Majesty's Government, I shall certainly ask for those Papers. I now withdraw my Motion for Papers.
§ Motion, by leave, withdrawn.