Memorandum from John J. Hearne to Seán Murphy (Dublin)

Privy Council Bills

Assistant Secretary,

I have now completed the draft of the above Bills in accordance with your directions and the instructions of the Minister and the Attorney General. I have rewritten the Supreme Court (Confirmation of Judgment) Bill, 1931, to meet the views expressed by the Minister before his departure for Geneva and I have made the amendment suggested by him in the long title of the Constitution (Amendment No. 17) Bill, 1931.¹ The Minister proposed the preparation of a draft Bill to remove from the jurisdiction of the Courts the function of determining whether a law passed by the Oireachtas is or is not invalid on the ground of its repugnancy to the Treaty. I have drafted a Bill accordingly.

At the Conference which we had with the Attorney General (by direction of the Minister) on the 20th inst, the Attorney General agreed with the views of the Minister (1) as to the lines which the Supreme Court (Confirmation of Judgment) Bill, 1931, should follow, (2) as to the amendment in the long title of the Constitution (Amendment No. 17) Bill, 1931, and (3) as to the necessity for a Bill removing from the Courts any jurisdiction to declare any law passed by the Oireachtas invalid on the ground of its repugnancy to the provisions of the Treaty.

In addition, the Attorney General pointed out that the proposed legislation - if proceeded with - should contain provisions to render the decisions of the Judicial Committee unenforceable in the Irish Free State both as to the substance of those decisions and so far as any question of the payment of costs is involved. He also considered that there should be a prohibition of proceedings against court officers for carrying out any decision of the Supreme Court which became or might become the subject of an application for leave to appeal to His Majesty in Council.

I now send you five Bills² which carry out the instructions received. These Bills fall into two groups.

Group I

Supreme Court ( Confirmation of Judgment) Bill, 1931

Constitution (Amendment No.17) Bill, 1931

The first of these two Bills has been rewritten as stated. The difficulties which the Minister foresaw on the original draft cannot arise on the new draft. The Order of the Governor General must be made when advice to that effect is given by the Executive Council. The Order will in every case be expressed and operate to give statutory effect to the decision of the Supreme Court to which it relates as from the date of that decision and no risk of the defeat of the Order by Seanad Éireann or of its postponement owing to the fact that either House or both Houses of the Oireachtas is or are not sitting will be incurred. The new Bill reverses the procedure proposed in the original Bill. The functions of the Houses will be limited to annulling the Order; they will have no say in making it effective in the first instance.

The second of those Bills is the Bill as drafted by the Parliamentary Draftsman with the exception of the amendment in the long title thereof, namely, the deletion of all the words after the word 'Court' in the original draft.

Group II

Constitution (Amendment No.18) Bill, 1931

Constitution (Amendment No.19) Bill, 1931

The Judicial Committee Bill, 1931

The Constitution (Amendment No.18) Bill, 1931, proposes (by section 1) the insertion in Article 65 of the Constitution of words limiting the jurisdiction of the High Court in the matter of pronouncing upon the validity of laws. The new words which the section proposes to insert would occur after the word 'Constitution' in the first sentence of the Article. I have added to this Bill a section (section 2) which may be found to be unnecessary. Section 2 proposes to amend Article 66 of the Constitution by inserting after the word 'law' (in brackets) now contained therein the words 'having regard to the provisions of the Constitution'. The intention is to make it clear that the function of the appellate jurisdiction of the Supreme Court is limited so far as pronouncements on the validity of laws are concerned to determining whether or not a law contravenes the Constitution. I think that this section may be unnecessary for the reason that under the Constitution as it stands (Article 66) the appellate jurisdiction of the Supreme Court is confined to matters decided in the High Court and made the subject of an appeal to the Supreme Court. If the jurisdiction of the High Court is appropriately limited in the matter of pronouncing on the validity of laws it would appear that the appellate jurisdiction of the Supreme Court would be similarly limited in that regard without the insertion in Article 66 of the words proposed to be inserted in that Article by section 2 of the draft Bill. If it is decided not to insert the words suggested a small amendment in the long title will be necessary.

This Bill also proposes (section 3) the repeal of section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, save in so far as the said section 2 gives the force of law to the Treaty. This proposal does not amount to an amendment of the Constitution itself; but only of the 'covering clause' referred to. I think this section should be contained in this particular Bill and that it should not stand part of a separate Bill. I do not know the history of the section which we now propose to repeal. It really goes much too far. Taken in conjunction with Article 65 as that Article stands up to the present time it puts the High Court on inquiry in appropriate cases as to whether a law passed by the Oireachtas is or is not void and inoperative by reason and to the extent of its repugnancy to the provisions of the Treaty. Article 65 of the Constitution is not at all bad as it stands - it speaks of the validity of laws vis à vis the Constitution - but taken together with the covering clause (section 2) the result is to place the Oireachtas in a position (before the Courts) as regards the Treaty in which no Parliament in the world finds itself in relation to the treaty obligations of the State whose destinies it rules. The proposition of law which I would emphasise in this context is that the Oireachtas has the undoubted power to pass a law repugnant to the Treaty and that such a law is valid and unavoidable notwithstanding such repugnancy. The Courts should have no jurisdiction to pronounce such a law invalid. But I shall deal with this point more fully in the observations which follow on the Constitution (Amendment No. 19) Bill, 1931.

The effect of Constitution (Amendment No. 19) Bill, 1931, will be to remove from Article 50 of the Constitution the words 'within the terms of the Scheduled Treaty' which appear to limit the power of the Oireachtas in the matter of amendments to the Constitution. In the memorandum on Reservation of Bills and Disallowance of Acts³ prepared by me for the O.D.L. Conference of 1929 I examined at considerable length under the heading 'Express limitations in Dominion Constitutions as to the subjects on which legislation may be enacted' the meaning of the words 'within the terms of the Scheduled Treaty' now contained in Article 50 of the Constitution. (This study of Article 50 will be found on pages C.9 to C.13 inclusive of the memorandum referred to). The upshot of the argument outlined in the said memorandum is that the words 'within the terms of the Scheduled Treaty' in Article 50 simply amount to a declaration by the Provisional Parliament of the Treaty obligations of the Irish Free State. They do not constitute a status-limitation upon the legislative competency of the Oireachtas They are rather an acknowledgement in the Constitution of the fact that obligations were undertaken in the Treaty which was being given the force of law in the statute in which the Constitution itself was being enacted. Article 50 did not (by the words 'within the terms of the Scheduled Treaty') enact that there was to be no power in the Oireachtas to legislate contrary to the Treaty. It simply declared that the Oireachtas would not so legislate, or, in other words, would in amending the Constitution have regard to the fact that there were in existence mutual obligations (namely, those undertaken in the Treaty) between the Irish Free State and Great Britain. Such a declaration was and remains wholly unnecessary. Every Parliament has the power to legislate in the teeth of its treaty obligations. Some treaties contain a stipulation to the effect that the passing of such legislation puts an end to the treaty; but the presence of such a stipulation in a treaty makes clear the recognition by each party of the power of the other to enact in its Parliament legislation contrary to the treaty. When, moreover, the Parliament of a treaty-bound State passes a law contrary to the treaty the Courts of that State are bound, notwithstanding the inconsistency between the law and the treaty, to give effect to the law. This rule was clearly laid down in the case of Mortensen v. Peters, decided by the High Court of Judiciary in Scotland (reported in 14 Scots L.T.R. at page 227). The Lord Justice General in delivering the judgment of the Court said that that Court was bound by an Act of Parliament whether or not it was contrary to international law.

Applying these considerations to Article 50 of the Constitution it would obviously be well to remove from that Article the words which it is now proposed to remove by Constitution (Amendment No.19) Act, 1931. If those words remain in the Article the amendment of Article 65 now proposed will not be effective. For, if you purport to remove from the jurisdiction of the High Court the function of determining whether or not a law is invalid on the ground of its repugnancy to the Treaty, and at the same time retain in Article 50 of the Constitution the words which appear to enact that a constitutional amendment outside the terms of the Treaty would be invalid you put the High Court on enquiry in an appropriate case as to whether a constitutional amendment is invalid as a matter of law on the ground that it is outside the terms of the Treaty, a ground indicated by the words used in Article 50 itself. Although you confine the jurisdiction of the High Court to the question as to whether a law is or is not constitutional the construction which the High Court would put upon that position would be that an amendment is unconstitutional if it is outside the terms referred to in the Constitution itself, and the terms of the Treaty are referred to there. It would appear to be necessary, therefore, to remove from Article 50 the words 'within the terms of the Scheduled Treaty'. Hence the draft (herewith) of Constitution (Amendment No. 19) Bill, 1931.

I do not think that any difficulty will arise out of the retention of so much of section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, as gives the force of law to the Treaty. The portion referred to of the said section 2 is the only enactment in force in the Irish Free State giving the force of law to the Treaty. That must be retained as it is the enactment which confirms and ratifies the Treaty. So long as it is clear that the High Court can no longer declare a law invalid on the ground of its repugnancy to the Treaty no difficulty can arise from the mere fact that the Treaty has been given the force of law.

The Judicial Committee Bill, 1931, is an attempt to write down the instructions of the Attorney General as regards the unenforceability of judgments, etc., of the Judicial Committee in the form of a draft Bill. This draft Bill contains four sections. Section 1 would prohibit the registration of judgments, etc., of the Judicial Committee in any court in the Irish Free State and the enforcement of any such judgment, etc., in the Irish Free State. It would also render costs, expenses and fees incurred or paid in connection with the proceedings in the Judicial Committee irrecoverable in the Irish Free State. Section 2 would prevent the granting by the Supreme Court of a stay of execution of its own judgment pending an application for leave to appeal to the King in Council and would render immune from actions or other proceedings any court officers and other persons who meantime did any act matter or thing in execution of the judgment of the Supreme Court. Section 3 is a repeal section; the Acts to be repealed will be in the Schedule (not yet completed). The Judicial Committee Acts number over twenty and I have not yet had the time to go through them with a view to seeing how many of them will require to be wholly or partly repealed.

I had an informal conversation with the Attorney General⁴ on the 26th inst, on the subject matter of the proposed Bills. The Attorney General stated that so far as he understood the Report of the recent London discussions there appeared to be a tendency in the minds of British officials to do business on the subject of the Privy Council along lines something short of an express abolition of the appeal by agreement. He appeared to take the view that, while the Bushe⁵ draft was useless for any purpose and dangerous in so far as it defined the status of the Irish Free State at all, nevertheless, there might be a way out for the British Government along a different line which would not impose on them the necessity of passing agreed legislation expressly abolishing the appeal. He referred to the words quoted in the Report as having been used by Sir Harry Batterbee and Mr. Bushe, namely, the words which stated that while the British Government could not kill the appeal themselves, they would not be in so bad a position in Parliament if they merely handed the knife to the Irish Free State Government to do so. The Attorney General suggested that business might be done with the British Government along that line. He thought, for example, that we could extract from the British Government an undertaking in a formal despatch to the effect that if we waited until after the Statute of Westminster is passed before going on with the proposal to abolish the appeal by unilateral legislation they would not then raise any question as to our right and power to do so and would agree that the exercise of that right and power would not involve us in any charge at their instance of a breach of the Treaty.