Uncirculated memorandum on appeals to the Judicial Committee of the Privy Council prepared by the Irish delegation to the 1930 Imperial Conference
(Copy)

1. The Irish Delegation to the Imperial Conference, 1926, in a memorandum circulated by them on the subject of Appeals to the Judicial Committee of the Privy Council put forward the view that:

2. From the discussions arising out of this memorandum, it became clear, in the words of the Imperial Conference Report, 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 continuance of appeals to the Judicial Committee of the Privy Council from the Courts of the Irish Free State is not in accordance with the wishes of the Irish Free State.

3. The objection of the Irish Free State to the continuance of such appeals is based upon two considerations, the first constitutional and the second practical. Constitutionally, it is not in accordance with the definition contained in the Report of the Imperial Conference, 1926, of the position and mutual relation of the self-governing communities forming the British Commonwealth of Nations that the decision of the Supreme Court of one of those communities should, contrary to the wish of that community, be subject to revision by a tribunal outside that community. It detracts from that community's autonomous status and implies subordination to an outside authority in a vital aspect of its domestic affairs. Practically, the maintenance of this appeal is objectionable because (a) it tends to place litigants of moderate means at a serious disadvantage in relation to wealthier citizens, and (b) it removes the authoritative interpretation of Statutes from those best qualified, by reason of long experience and local knowledge, to appreciate and decide the intention of the legislature, and places it in the hands of persons whose experience derives from the administration of laws which now differ and will increasingly differ from those in force within the territory concerned.

4. In connection with this matter, the position of those persons described as 'Southern Loyalists' has been mentioned. These persons, in so far as they are resident in the Irish Free State, are subject to the laws of the Irish Free State and enjoy all the rights and are seized of all the obligations common to such residents. This position cannot be altered, and the suggestion that the removal of the appeal to the Judicial Committee would deprive them of a privileged position is wholly unwarranted.

5. In the first place they have never suffered any discrimination or injustice. They have been accepted in the fullest sense as fellow-citizens, they have with the exception of a negligible number of irreconcilables accepted the position themselves. Many who left in 1921 and early 1922 when conditions were difficult have already returned. The vast majority are amongst the best citizens we have.

6. The position of these persons was considered at the time of the Treaty, in conditions very different from those now obtaining, and certain safeguards were agreed to. These centred round Article 8 relating to religious disabilities, round proportional representation and the special constitution of the first Senate. The Appeal to the Privy Council was not mentioned as one of these safeguards.

7. The proviso of Article 66 of the Constitution was agreed to in 1922 at the instance of Mr. Lloyd George's Government. It was agreed to with great reluctance because we foresaw that it would be a source of trouble. It was not inserted with advertence to any question of safeguarding Southern loyalists.

8. We have not received any complaints from Southern Loyalists that they have suffered discrimination. We know there is an irreconcilable element largely domiciled in Great Britain who have endeavoured without success to raise this issue. They have received no support from any responsible individual in Ireland. So far from this being the case, there have been numerous pronouncements by responsible members of this group expressing satisfaction with their position.

9. When Article 66 was being discussed in the Provisional Parliament, Mr. Fitzgibbon (now Supreme Court Judge), then member for Trinity College, as Mr. O'Higgins pointed out in 1926, said he neither hoped or believed that the appeal would be a reality.

10. Since this, there have been three occasions on which Acts of Parliament have been passed in the Irish Free State which, in effect, nullified decisions of the Appeal Tribunal. If the continuance of this tribunal were regarded as a serious matter, there was here an obvious opportunity for a protest, but none was made.

11. The proviso is, in any event, valueless as a safeguard. The function of the Appeal Tribunal is to interpret laws, not to distort them. It has been admitted that we have found, in the words of Lord Cave, an 'effective and ingenious' method of preventing the Privy Council from frustrating the intention of our legislature. We say that safeguards are quite unnecessary, but, if they were, this appeal does not provide a safeguard.

12. It has been suggested that the Appeal is inherent in the Treaty. We do not agree. If there is anything in the argument, it can only be suggested that the Appeal is imported by way of analogy to Canada through the medium of Article 2. If it were so imported, it was imported with all the disabilities of the position described 14 years before by Lord Loreburn and subject to the constitutional changes arising from the development of the Dominions. This was made very clear in 1926, when His Majesty's Government of the day in the United Kingdom placed it on record that it was no part of their policy that appeals should be dealt with otherwise than in accordance with the wish of the part of the Empire primarily concerned.