Minute from Joseph P. Walshe to Diarmuid O'Hegarty (Dublin) enclosing a draft despatch to Lord Passfield
(5831/32)

Secretary,

Executive Council.

I enclose copies of draft Despatch concerning the Privy Council for submission to the next meeting of the Cabinet.

DRAFT

My Lord,

The report delivered by the Judicial Committee of the Privy Council in the case of the Performing Right Society, Ltd., and the Bray Urban Council raises once more the anomalous Constitutional position created by the continued existence of the appeal to the Judicial Committee.

The submission of questions affecting the laws, statutes, customs and conditions of the Irish Free State to a body of Judges living under a different legal and political system and entirely out of contact with the progress and trend of affairs in this country is contrary to the wishes of the overwhelming majority of the citizens of the Irish Free State. The Sovereignty of the State in the administration of justice is one of the prime factors in securing the maintenance of order, contentment and the strict observance of the law and there is no doubt that anything which appears to derogate from that Sovereignty, as the possibility of such submission cannot fail to do, must act as a detrimental influence on the minds of litigants and others by lessening their loyalty to and respect for the institutions under which they live.

Furthermore, the very procedure followed by the Privy Council in relation to appeals involves the performance of an executive act by the Crown on the advice of a body other than the Executive Council of the Irish Free State and such an act is plainly at variance with the declaration made at the Imperial Conference of 1926 that it is the right of the Government of each Dominion to advise the Crown in relation to its own affairs and also at variance with the principle of co-equality of status established by the same Conference.

The Government of the Irish Free State, realising the difficulties which have arisen through the inclusion in the Irish Free State Constitution, in circumstances differing widely from those obtaining to-day, of an Article dealing with appeals to the Privy Council, brought the matter to the notice of the 1926 Conference. While it was not then found possible to deal with the matter to a conclusion the fact was nevertheless recorded 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. The revision of that Article in the Constitution of the Irish Free State takes its proper place beside the revision of those articles in different Constitutions of the Commonwealth which the recent Conference on the operation of Dominion Legislation recognised as a necessary part of the process by which law is brought into harmony with Constitutional status.

His Majesty's Government in the Irish Free State will, at the next Imperial Conference, elaborate for the information of His Majesty's other Governments the considerations which render the removal of this provision from the Irish Free State imperative.