Memorandum by Michael McDunphy on appeals to the Privy Council

On Sunday 2nd instant the Earl of Granard called to see the President with a proposal in regard to the Privy Council, which had been made to him by the British Lord Chancellor Lord Sankey, Chairman of the Committee on Certain aspects of Inter-Parliamentary Relations (one of the Committees of the Imperial Conference of 1930).

Owing to the political difficulties in Great Britain it was thought that it would not be possible to pass the requisite legislation in the British House of Parliament and Lord Sankey's suggestion was that the Irish Government should promote unilateral legislation for this purpose on the understanding that the British Government would not take any steps to oppose it.

The President discussed the matter with Ministers, and sent me to London on Tuesday night (4th Nov.) to discuss the matter with the delegates there. On Thursday morning (6th inst.) I arrived back and reported the position in London, the effect of which was as follows:-

Prior to my arrival the atmosphere at the Imperial Conference in regard to the Privy Council had been fairly satisfactory. There appeared to be every hope of the passage by the British Government of an Act to be entitled 'The Statute Of Westminster Act' repealing the Colonial Laws Validity Act, and this being done there would remain no constitutional or legislative obstacle in the way of the Irish Government's introducing and passing the requisite legislation to remove provisions in regard to the Privy Council.

The Prime Minister, Mr Ramsay MacDonald, informed Mr McGilligan that he wished to discuss the matter with the leader of the Opposition, Mr Baldwin, and asked him to give him a letter dealing with the O'Higgins-Birkenhead negotiations in 1926, with a view, apparently, to arranging for accommodation so that the requisite statutes could be introduced into the British Parliament. Mr McGilligan gave him the desired letter summarising briefly what happened at the O'Higgins-Birkenhead negotiations in 1926,¹ from which emerged a clear statement of the attitude of the Irish Free State towards Privy Council Appeals, and notice on their part that they intended to raise this matter to a conclusion at the next Imperial Conference.

On the resumption of official negotiations with the delegates following this meeting it was clear that matters had taken a definite turn for the worse. It was obvious that it had been learned that the British House of Commons would oppose the removal of the Privy Council and that a similar attitude was to be anticipated in the House of Lords, but instead of honestly explaining the position to the Conference Mr Ramsay MacDonald and his colleagues endeavoured by spurious arguments to undermine the constitutional position of the Irish Free State. They said that the Treaty would not have been entered into by the British Government were it not for the proviso in regard to the Privy Council and that the reference in the 1926 report to the opening of the Privy Council question at the next Imperial Conference was merely an indication that the British Government could be trusted to be sympathetic but that they had never any intention of agreeing to its removal. He argued that the Saorstát's constitutional position, embodied in the Treaty, was that of Canada on 6th Dec 1921, and that no advance was possible from that position. The absurdity and dishonesty of this argument were pointed out by Mr McGilligan. He asked why, if such were the case, was the Irish Government invited to the subsequent Conferences of '23, '26, '29 and '30. The whole trend of the arguments used by the British delegates showed that there was a definite disposition on the part of the British Government to whittle down the status of the Irish Free State from that enunciated in the report of the 1926 Conference.

The suggestion that the status of the Irish Free State was static because of the 1921 Treaty secured for the Irish delegates the support of General Hertzog (South Africa) and of Mr Scullin (Australia) who saw in this argument a lever which could be used equally against their own countries.

The other Dominions, with perhaps the doubtful exception of Newfoundland (whose delegate was absent from this discussion), showed little interest in the debate, and the Irish delegates saw themselves faced with the prospect of a distinctly hostile report countered at best by a minority report signed by Ireland, South Africa and Australia.

On the special question of the Privy Council the support of even these two Dominions could not be relied on as they had not a proper appreciation of the Irish standpoint in this regard.

 With regard to Lord Sankey's proposal to the President through Lord Granard, the feeling of the delegates was that it was a dishonest attempt to side-track the official delegation and that the proper course would be for the President to inform Lord Granard that he had instructed Mr McGilligan that there was to be no yielding on the matter of the Privy Council. Mr McGilligan was of opinion that on the return of the delegation from London the Government of the Saorstát would be bound to introduce an Act repealing the proviso in the Constitution relating to the Privy Council irrespective of what action the British Government was disposed to take in the matter.