Extracts from a memorandum by John J. Hearne on the abolition of the right of appeal to the Privy Council (Dublin)

The Judicial Committee and The Irish Free State

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If it becomes the deliberate policy of an Irish Government to remove or render ineffectual the application for leave to appeal to the King in Council which is saved in Article 66 of the Constitution what courses are open to them? There is, first of all, the course already followed in the Lynham v Butler precedent. They can in every case in which an application for leave to appeal from a decision of the Supreme Court is pending introduce ad hoc legislation declaring the law to be as it is decided to be by the Supreme Court in the particular case in question and having passed such legislation coerce the judgment of the Judicial Committee not upon the Supreme Court ruling but upon the statute confirming it. The desirability of such a course would depend on the circumstances existing from time to time and it is probable that if there were evidences of a forming habit of the use of the application for leave to appeal some more expeditious and less vexatious procedure would be sought by the Oireachtas. The question at once suggests itself: Can the Oireachtas abolish by statute the 'right' saved to the citizens of this country in the proviso of Article 66 of the Constitution? If the Oireachtas can abolish the 'right' by statute that would be the second course open to an Irish Government desiring to remove the jurisdiction of the Judicial Committee so far as the Irish Free State is concerned. I have established elsewhere the proposition that the prerogatives of the King may be delimited or restricted or removed by statute: I have adverted to the cases in which Parliament has divested the sovereign of his regal rights and attributes and it is unnecessary to repeat here the arguments adduced in support of the views there set down. I propose to examine here the particular question now in mind, namely, whether there is power in the legislative authority in the Irish Free State to divest the citizen and His Majesty of the 'rights' saved to them in the proviso of Article 66 of the Constitution.

   Article 66 of the Constitution is as follows:

It will be observed that the proviso to this Article is a specific enactment. It has the force of law by virtue of the statute of the Provisional Parliament in which it was embodied. Whatever 'right' it confers on any person or on His Majesty is a statutory right, a right which the framers of Article 66 must have thought would not have existed at all but the saving enactment in that Article. In statutes you do not save rights that are not impaired or imperilled; if the earlier provisions of Article 66 could not have operated to render final and conclusive the decision of the Supreme Court and to render such decision incapable of being reviewed by any other Court, Tribunal or Authority whatsoever the proviso would have been unnecessary. In other words, if the 'right' to make application for leave to appeal were inherent in every person apart from the Constitution what was the necessity to save it in the part of the Constitution which related to the judicial sovereignty of the State? I am aware of the answer which the British constitutional lawyers will make to that question. They will answer as follows: 'The proviso to Article 66 confers no right which did not exist apart from it: the right to make application for leave to appeal was given in Article 2 of the Treaty and the proviso merely made explicit what was implicit - but unmistakeable - in the said Article 2'. That is the real argument with which our representatives at the forthcoming Committee will have to deal. For the moment, however, let us consider the effect of removing from the Constitution the proviso to Article 66. No question whatever arises as to the power of the Oireachtas to restrict the appeal by statute and to declare the conditions and circumstances subject to and in which the right may be exercised. But what is the position on the proposal to repeal the proviso to Article 66 altogether? I have no doubt that it would be competent for the Oireachtas to do so. But what I have to consider here is the effect of such a repeal. If the point which the British constitutional authorities make is sound then a repeal by the Oireachtas of the proviso to Article 66 could not operate to remove the right to make application for leave to appeal; the reason urged being that Article 2 of the Treaty is as much part of the statute in which the Constitution was enacted as is the proviso to Article 66 itself and the right is preserved in Article 2. Indeed, further than that, the argument from the British point of view would be put that if the right of appeal could in fact be removed by a repeal of the proviso to Article 66 the Oireachtas would be bound under the provisions of section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922 to introduce legislation restoring it. For the said section 2 enacts that 'if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty it shall, to the extent only of such repugnancy, be absolutely void and inoperative'. And again: 'the Parliament and the Executive Council of the Irish Free State (Saorstát Éireann) shall respectively pass such further legislation and do all such things as may be necessary to implement the Scheduled Treaty'. Finally, a definite limitation is imposed by Article 50 as to the extent to which the Oireachtas may amend the Constitution. The amendment must be 'within the terms of the Scheduled Treaty'.

It will be clear, therefore, that the real problem for the Oireachtas is in Article 2 of the Treaty and section 2 (part of the preamble as it were) to the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922. Approaching, therefore, the consideration of the application for leave to appeal not as a statutory prerogative right conferred by Article 66 but as a right or privilege - whichever it may be - subsisting prior to and over and above the Constitution of the Irish Free State itself how is an Irish Government which proposes to abolish the application to overcome the difficulties created for them by Article 2 of the Treaty and section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922? There would, first of all, be open to them a course of policy leading to the deletion by agreement with the British Government of the embarrassing formula in Article 2 of the Treaty, the words, that is to say, that 'the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern the relationship to the Irish Free State'. The deletion of these words - assuming that there are no other words in Article 2 or elsewhere in the Treaty which affect the issue - would destroy in this connection the force of the provisions of section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, as there would then be nothing in the Treaty so far as the application for leave to appeal is concerned upon which those provisions could operate. But there is, in my view, little prospect of an agreement to the effect required being arrived at by the two Governments. Article 2 of the Treaty is fundamental in the British conception of the constitutional relationships of 'the Crown' and 'the Dominions'. There is, however, for an Irish Free State Government seeking to destroy the functions of the Judicial Committee so far as this State is concerned a way out of the difficulties created for them by Article 2. The way out is not along the line of an amendment of the Constitution alone - such an amendment would, of course, be consequentially necessary - but rather along the line indicated by the true construction of Article 2 of the Treaty in the light of the constitutional doctrines formulated in the year 1926.

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It will be observed that in Article 66 of our Constitution there are added to the words which make decisions of the Supreme Court final and conclusive the following words, that is to say:- 'and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever'. It would appear that the authors of that Article (which at the time the words referred to were inserted did not contain the proviso) thought of the Privy Council as something other than a Court or Tribunal. Whether that be so or not it is clear that the advice given to the King by the Judicial Committee is not given in exercise of any judicial authority vested in them but rather is given at the King's request to enable His Majesty to make an executive decision in favour of the petitioner or against him. Consider, furthermore, that under section 4 of the Judicial Committee Act, 1833, general matters upon which the King seeks advice may be referred to the Judicial Committee. How is the reference of such matters to that body made? It is made by an Order in Council settling the terms of reference, and the said Order is issued upon the advice of His Majesty's Government in Great Britain.

Returning to Article 2 of the Treaty let us consider the only interpretation of that Article that will stand the light of the present definition of status and constitutional relationships in the Commonwealth of Nations. The relationship established there preserves, it is said, the prerogative right of appeal to the Privy Council. And at the outset we are met by an array of British constitutional authority affirming the proposition that the prerogatives of the King are attributes which are impregnable and immutable so far as the Dominions are concerned and that nothing short of an Act of the 'Imperial' Parliament can divest them. That view was authoritatively expressed by Lord Cave² in 1926 and will no doubt be reiterated with increasing emphasis as the difficulties created for it by the new conception of the Commonwealth system become more and more manifest. The fact that long before the recent rapid succession of constitutional developments took place the prerogatives of the King were exercised in Great Britain upon the advice of a Cabinet responsible to the British electorate has implications of enormous importance in the consideration of the question now under discussion. The King exercises no prerogative in any of the member-States of the Commonwealth save upon the advice of the Government of that member-State. He has no special reserve of Majesty or regal power, no 'pre-eminence out of the ordinary course of the common law in right of his royal dignity' (Blackstone), no 'discretionary authority' (Dicey) so far as the Irish Free State is concerned which he has not in Great Britain. Moreover, if the British Parliament can divest him of his prerogatives by statute, why cannot the Oireachtas divest him of his prerogatives so far as their exercise in the Irish Free State is concerned by statute as well. The only construction of Article 2 of the Treaty of 1921 which can stand examination at all is that whatever prerogative right in the King is preserved in the material words of that Article can only be exercised upon the advice of the Government of the Irish Free State. If the words of Article 2 of the Treaty are open to the construction that they do anything more than invest in the constitutional Head of the Irish Free State a function to be exercised by him upon and in accordance with the advice of the Government of the Irish Free State such a construction is a fraud upon that Article. On any other hypothesis than this, namely, the hypothesis, that the words of Article 2 invest in the constitutional King a function to be performed upon advice if it is to be performed at all, on, for instance, such a hypothesis as that the application for leave to appeal authorised by Article 2 can be made without regard to the Government of the Irish Free State either on the part of the King or the petitioner you have a constitutional situation in which the King exercises a discretionary authority or prerogative which destroys the judicial sovereignty of the Irish Free State and bearing in mind the origin, history, functions and formal procedure of the Judicial Committee of the Privy Council, destroys the executive sovereignty of the Irish Free State as well. Is it not contrary to the whole Commonwealth notion and to the principles of co-equal sovereignty and free co-operation upon which its existence is based that His Majesty in his capacity of King of any one of the member-States can be advised in matters affecting that member by a body external to it? When before the Imperial Conference of 1926 member-States had to complain of the attempt of the British Government - a body responsible to the British electorate - to advise His Majesty in matters concerning those member-States the complaint made related to what was a very grave constitutional impropriety; but what can be said for the claim still made in Great Britain to retain a procedure whereby a body appointed in Great Britain on the advice of the British Government, a body which has no political responsibility whatever gives the ultimate advice to His Majesty in matters relating to one of the member-States of the Commonwealth, matters that is to say which concern the King at all only in so far as he is the constitutional head of that member-State?

It would appear, therefore, that an Irish Free State Government has a complete case for removing the right of application for leave to appeal to the Privy Council based upon the separate constitutional existence of the member-States of the Commonwealth and the inevitable implications of that constitutional fact. The judicial sovereignty of the Irish Free State is as inalienable as the legislative sovereignty or the executive sovereignty. I am satisfied that the Oireachtas cannot legislate away its law-making competency, nor can it legislate away its judicial sovereignty without destroying its status and Statehood. If an Act of the Provisional Parliament exists which seems to vest in a body external to the Irish Free State the function of advising the King in any matter whatever which is the exclusive concern of the Irish Free State that statute and its relevant provisions can have no acceptable or justifiable interpretation apart from that imposed upon it by the existence of the principles which received formal recognition after that statute was passed. If I am met with the objection that that contention confuses legal questions and political issues I reply that the whole function of the forthcoming Expert Committee will be to make the law square with the constitutional facts which have called the Committee into being.

There is a further argument urged by British constitutional lawyers upon the issues raised on Article 2 of the Treaty. It is this: 'You must not look at Article 2 of the Treaty only. You must have regard to the position in Canada. Article 2 expressly refers to the constitutional relationship existing between "the Crown" and the Dominion of Canada and establishes that same relationship between "the Crown" and the Irish Free State'. In answer to that argument I would urge that the separate constitutional existence of Canada has the same implications so far as the Judicial Committee is concerned as has the separate constitutional existence of the Irish Free State. Article 2 of the Treaty as enacted in the statute of the Provisional Parliament made the constitutional usages and practices in Canada constitutional law in the Irish Free State, but not so as to prevent constitutional evolution in either the one State or the other or in both at the same time. Besides the precise legal position in Canada so far as the Judicial Committee is concerned is not the same as the legal position in that respect in the Irish Free State. In this connection let us give some consideration to the position in Canada as defined by the Judicial Committee itself. The Judicial Committee has considered whether a provision contained in a Canadian statute purporting to remove the prerogative of appeal in criminal cases operated to carry out the intentions of the Canadian Legislature.

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I have elsewhere adverted at length to the question as to whether the Colonial Laws Validity Act, 1865, applies to the Irish Free State. It is unnecessary to consider that question again in this place. Since examining the matter in another memorandum I have read the remarks in reference to it made in Corbett and Smith's³ recent treatise on 'Canada and World Politics'. On page 35 the following sentence occurs: 'The Irish Free State would appear to be exempt from the operation of the Colonial Laws Validity Act, since she is expressly empowered to adopt or reject imperial legislation at her own discretion'; and the proposition so enunciated is based upon section 3 of the Irish Free State Constitution Act, 1922, which was the section on which the proposition stated in my previous memorandum was based.

It is clear, therefore, that on whatever ground the Judicial Committee would seek to found a decision invalidating a provision in a statute of the Oireachtas similar to - or more comprehensive than - that contained in section 1025 of the Canadian Act of 1888 they could not validly found such a decision on the Colonial Laws Validity Act, 1865. Besides whatever the joint effect of the Judicial Committee Acts, 1833 and 1844, may have been these statutes had no effect in the Irish Free State unless and until adopted by the Oireachtas. The applications for leave to appeal which have been brought from the Supreme Court of the Irish Free State were brought to the King in His Council and the machinery employed by His Majesty to consider those applications was not in any sense imposed upon him or upon the Irish Free State by virtue of the proviso in Article 66 of the Constitution. It would be within the competence of the Oireachtas to declare by statute that the King should consider applications for leave to appeal by employing such machinery for that purpose as such statute might prescribe or as the Oireachtas might from time to time determine.

The argument, therefore, that Article 2 of the Treaty imports by reference the whole Canadian position even before the Declarations of 1926 loses force when one considers the existing legal position in Canada. The truth is that the attempt to superimpose the old legal structure upon the existing constitutional structures ends in a bewildering confusion of thought. The legal position in Canada at the moment is unquestionably worse from the constitutional point of view than the legal position in the Irish Free State. But in both States and generally throughout the Commonwealth the legal position must be remodelled in the image of the constitutional. Either the Judicial Committee must be abolished altogether by consent or its constitution and functions re-organised upon a plan to which the individual member-States of the Commonwealth with due regard to their separate Statehood can agree. For my part, I have seen no proposal in regard to the reconstitution of the Judicial Committee that does not pave the way to Imperial Federation.

In Chapter IV of the Memorandum of the Dominions Office relating to the operation of Dominion legislation the statement is made (in paragraph 4) that the Parliament of the Irish Free State has not the power to pass legislation limiting the matters in respect of which leave to appeal to the King in Council may be sought. If the views hereinbefore outlined have any force it must be clear that there is no substance whatever in that proposition. Lastly, the Irish Free State Constitution is, as the British Memorandum points out, 'silent on the subject' of Admiralty Appeals to the Privy Council. The Admiralty Appeal to the Privy Council is a statutory appeal founded in section 6 of the Colonial Courts Admiralty Act, 1890. It has been contended that that appeal cannot be abolished by legislation passed by any of the member-State Parliaments so long as the Colonial Laws Validity Act, 1865, remains in force. But so far as the Irish Free State is concerned the Colonial Courts of Admiralty Act, 1890, has not been put in force any more than has the Colonial Laws Validity Act, 1865, itself. It follows that the statutory appeal under section 6 of the Colonial Courts of Admiralty Act, 1890, does not lie from any court exercising Admiralty jurisdiction in the Irish Free State.