Title Law without loyalty: The abolition of the Irish Appeal to the Privy Council Authors(s) Mohr, Thomas Publication date 2002 Publication information Mohr, Thomas. “Law without Loyalty: The Abolition of the Irish Appeal to the Privy Council” 37 (2002). Publisher Thomson Reuters - Round Hall Item record/more http://hdl.handle.net/10197/5308 information Downloaded 2023-02-01T17:06:57Z The UCD community has made this article openly available. Please share how this access benefits you. Your story matters! (@ucd_oa) © Some rights reserved. For more information Law Without Loyalty- The Abolition of the Irish Appeal to the Privy Council 'Law without loyalty cannot strengthen the bonds of Empire'- Lord Balfour1 On the morning of 3 June 1925 an excited crowd gathered on the banks of the River Erne at a point of the river's tidal estuary known as Robert's Hole. They watched expectantly while two men, Hugh Gavigan and John Cleary from the village of Kildoney, walked leisurely down from the nearby hills carrying a net between them. On arrival at the riverbank the two men immediately entered a waiting tar and canvas fishing boat that was already occupied by four other men, William Phillips, Michael Mulhartagh, William Goan and William Morrow, also from Kildoney. As their boat moved slowly away from the shore it became clear to the people watching on the bank that their intention was to poach salmon from tidal estuary of the River Erne, over which the Protestant owned Erne Fishery Company operated a several fishery. The fishery had been in existence since at least the time of the Plantation of Ulster and was presently owned by Major Robert Lyon Moore, who lived not far from the place where this incident occurred, together with various members of his family and other persons. Their extremely profitable exclusive fishing rights on the Erne's tidal estuary was much resented by many of the local people who, inevitably, had a long history of poaching salmon from those waters. 1 Nicholas Mansergh, The Irish Free State -Its Government and Politics, London, 1934, p.324. 1 However when the six men rowed out onto the Erne on 3 June 1925 they seemed to be employing an eccentric method of poaching. Not only were they operating quite openly in broad daylight, but they seemed totally unperturbed by the fact that an Erne Fishery Company motor boat had recently been spotted patrolling nearby. Moreover these would-be poachers had also brought a very substantial audience with them to watch their illegal activities, an audience which included several members of the local Garda Siochana. Nor was this strange attempt at poaching to yield a single fish as not long after the six fishermen had shot their net the roar of the nearby conservators' motor boat was heard descending on Robert's Hole. Before the fishermen had time to haul their net back in the motor boat sped towards them and rammed their craft at full speed. The side of the small tar and canvas boat caved in immediately, and as it sank the conservators seized the empty net and hauled it in themselves. Their next task was to haul in the six Kildoney men whose boat was sinking fast, a task which was achieved in spite of the attempted heroics of the injured William Morrow who was rescued in spite of his repeated protests that he wanted to go down with the boat. When the motor boat dropped the six would-be poachers off at the Mall Quay the watching crowd descended on them and rewarded the Kildoney men for their strange performance with a rapturous round of applause2. Why had these six men deliberately put themselves up for criminal prosecution? There is little doubt that this incident was clearly orchestrated in order to provoke the Erne Fishery Company into taking legal action which would provide an opportunity to challenge the legitimacy of that company’s much resented title to its several fishery. As for the individual responsible for organising the incident the most likely candidate is local solicitor Frank Gallagher who had been preparing a legal challenge to the company's title to the fishery for several years. In order to successfully challenge a fishery which was, at the very least, three centuries old Gallagher had amassed a formidable array of historical evidence. Yet it is unlikely that Gallagher, while making his preparations for this personal campaign, could 2 This incident is described in detail in a number of Donegal Democrat reports on 5 June 1925, 2 October 1925 and 5 August 1933. 2 have foreseen that what was to become known as the Erne Fishery Case would itself make history for a number of reasons. Firstly the case delved into the realms of Irish history to an almost unprecedented degree with many of the most eminent historians of the day giving evidence on both sides. Thus historical controversies concerning the Plantation of Ulster, the Anglo-Norman conquest and the nature of pre-conquest Gaelic society were argued before the courts. Secondly, issues of the long obsolete Brehon law proved to be crucial to the eventual outcome of the case and thus this ancient law code would briefly come back to life as they were interpreted by twentieth century judges. Thirdly the Erne Fishery Company's appeal to the Judicial Committee of the Privy Council would ignite a legal and political dispute concerning one of the most controversial legacies of the 1921 Anglo-Irish Treaty. Although this controversy has received little attention from historians, who generally prefer to concentrate on that surrounding the Oath of Allegiance, it was to cause considerable friction between the Irish Free State and Great Britain at a time during the Economic War when Anglo-Irish relations were already thought to have reached their lowest ebb. It would also see the remaining Southern unionists, aided one last time by their great chief, Lord Edward Carson, protest that barely a decade after the signing of the Treaty the few safeguards that were left them were being ruthlessly stripped away. The resulting case heard before the Privy Council, in spite of de Valera's attempts to stop it, would see a group of British lords sitting in judgement over de Valera's programme of Constitutional reforms which, in spite of being blatant breaches of the Treaty, were declared by those same lords to be legitimate according to Commonwealth law. Finally this case would examine the legal origins of the Irish Free State itself in a manner that is still of great relevance today and would ultimately decide the important question of whether that state was to enjoy full judicial sovereignty or not. * * * The limitation of the newborn Irish Free State's judicial sovereignty was undoubtedly one of the most objectionable requirements of the 1921 Treaty for legally minded 3 nationalists. An unavoidable consequence of attaining the Constitutional status of Canada was the inheritance of the appeal to the Judicial Committee of the Privy Council to which Canada was still subject. Although by the early 20th Century the scope of the appeal from the Dominion courts had been progressively restricted, Irish nationalists still looked with distaste at the prospect of their Supreme Court being overruled by a body of British lords, especially as one of these British lords included the former colossus of Irish unionism Lord Edward Carson. Such was the abhorrence felt among Irish nationalists at the prospect of the judicial decisions of their new state being subject to appeal to the Judicial Committee of the Privy Council that not only did the first draft of the 1922 Constitution make absolutely no mention of that appeal, but Article 65, dealing with the jurisdiction of the Supreme Court, seemed specifically designed to exclude any possibility of that appeal becoming effective. This article, which later became Article 66 when the text of the Constitution was finalised, declared that; The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever. When the British reviewed the first drafts of the Free State Constitution the omission of any mention of the Privy Council appeal, along with several other important Treaty requirements such as the Oath of Allegiance and the role of the Crown in the new state, caused Lloyd George to call it 'a complete evasion of the Treaty and a setting up of a republic with a thin veneer.'3 Such was the level of British discontent with the draft that on 27 May 1922 Collins and Griffith had to meet with the British signatories of the Treaty in London and, in almost a repeat performance of that given before December 1921, had to engage in some intensive negotiations to arrive at a satisfactory compromise. The Irish delegation voiced a number of objections when Lloyd George insisted that it was an essential Treaty requirement that the Free State accept the appeal to the Privy Council. Collins put it to the Prime Minister that Irish nationalists could not accept a situation in which Edward 3 Joesph M. Curran, The Birth of the Irish Free State 1921-1923 , Alabama, 1981, p. 205. 4 Carson, and those with similar views, could sit in judgement over Irish court cases. Lloyd George assured him that no judge that had been involved in a controversy would hear any case connected with it, which the Irish delegates probably believed meant that Carson would not be allowed hear sensitive cases emanating from the new Irish state. Griffith felt that the Irish people would need some kind of guarantee of impartiality towards Irish cases if the Free State courts were ever to be subject to the appeal. After all, even leaving Carson aside there were undoubtedly a number of Privy Councillors who shared many of his views. He went on to complain that the great expense involved in making an appeal might handicap poorer litigants. In any case Griffith disputed whether the appeal to the Privy Council really did constitute a genuine Treaty requirement but would ultimately have to cede the point in the face of determined British resistance. When it was agreed on 6 June 1922 to allow Hugh Kennedy and Sir Gordon Hewart to redraft the Constitution the resulting amendments created a very different Constitution to the one brought to London by Collins and Griffith. Under this scheme of revision Article 66, which declared that all Supreme Court decisions were to be 'final and conclusive' and not 'capable of being reviewed by any other Court, Tribunal or Authority whatsoever', was given a seemingly contradictory addition. Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council of the right of His Majesty to grant such leave. Thus in Article 66, as nowhere else in the 1922 Constitution, can the great gulf that lay between the spirit of the Constitution originally drafted and the one eventually enacted be seen. The unhappy circumstances surrounding the birth of the appeal to the Judicial Committee of the Privy Council from the Irish Free State did not augur well for its future. In 5 spite of this when the first Irish appeals came before that body on 25 July 1923 the proceeding were smooth and relatively free from controversy. Since this was the infant Irish Free State's first tentative steps in developing its unwritten Constitution with respect to Privy Council appeals Viscount Haldane felt it necessary to give an introductory speech before hearing the three petitions brought before him.4 No doubt aware of Irish fears with respect to the objectivity of Privy Councillors Haldane emphasised that 'we have nothing to do with politics, or policies, or party considerations'5. He was eager to stress that the Judicial Committee was in no sense 'an English body'6 since in law the Sovereign was omnipresent throughout the Empire and therefore the King in Council could just as well sit in South Africa or in India, in Ottawa or even in Dublin. That it sat in London, Haldane informed the listening Irish observers, was purely a matter of convenience7. Furthermore, in order to refute the contention that the Judicial Committee was dominated entirely by British Lords, Haldane pointed to the recent policy of inviting Dominion judges to hear its petitions. Most comforting of all to the group of Irish observers, which included Attorney General Hugh Kennedy and future Taoiseach John A. Costello, was Haldane's admission that 'it is obviously proper that the Dominions should more and more dispose of their own cases'8 and therefore the Judicial Committee did not interfere 'unless the case is one involving some great principle or is of some very wide public interest'9. Therefore, according to Haldane, the Irish Free State 'must in a large measure dispose of her own justice'10, a sentiment with which 4 These three petitions were Alexander E. Hull and Co. v Mary A. E. M'Kenna, The "Freeman's Journal" Limited v Erik Fernstrom and The "Freeman's Journal "Limited v Follum Traesliberi. There was also a fourth appeal The King (John Bowman) v Joesph Healy and Another but this petition was withdrawn. All are reported at (1926) IR 402. Alexander E. Hull and Co. v Mary A. E. M'Kenna, 2 (1923) IR 112 was a negligence case involving a foot-passenger who had stepped onto the roadway to get round a hoarding which was blocking a footpath and was hit by a military lorry. Alexander Hull and Co., who had erected the hoarding, were found to have been negligent and ordered to pay £2, 700 damages at the trial of action. This was subsequently upheld by the Court of appeal. The "Freeman's Journal" Limited v Erik Fernstrom and The "Freeman's Journal Limited" v Follum Traesliberi both involved Swedish paper manufacturing firms who successfully sued the "Freeman's Journal" Limited for breach of a contract providing for the supply of a large quantity of paper. 5 Ibid. at 403. 6 Ibid. 7 Ibid. at 404. 8 Ibid. 9 Ibid. 10 Ibid. at 407-408. 6 Lord Buckmaster fully concurred, adding that 'as far as possible, finality and supremacy are to be given to the Irish Courts'11. Thus the Irish Free State's first encounter with the Privy Council appeal passed off in a surprisingly gracious manner. The Irish Attorney General was offered the chance to make any observations he wished on the matter before the Court, 'we are always ready to learn'12 added Haldane. However the cynic might argue that this relatively amicable beginning was only made possible by the fact that the Judicial Committee dismissed all three Irish petitions for leave to appeal brought before them that day. When the Privy Council finally did grant an Irish petition for leave to appeal the Free State Government was in uproar. On the 7 December 1925 four more Irish petitions were heard by the Privy Council. FitzGerald v Commissioners for Inland Revenue 13 was rejected while Rev James O' Callaghan v The Right Rev. Charles O' Sullivan, Bishop of Kerry 14 was never likely to be given leave to appeal due to the controversial nature of its content. This case involved a dispute concerning the construction of a specific aspect of the Canon Law of the Roman Catholic Church, a controversial topic, especially in relation to a country like Ireland, which the Judicial Committee wisely decided to steer well clear of. However when the remaining two petitions were accepted the Irish Government, which considered both of these cases to be entirely local disputes concerning purely domestic interests, saw this action as a breach of the assurances they had been given by British ministers in 1922 as well as those given by Viscount Haldane in the Privy Council itself in 1923. In the case of Lynham v Butler 15 the appellants appealed to the Privy Council in order to overturn the Irish Supreme Court's interpretation of an Irish statute, the Land Act of 1923. When the Privy Council agreed to hear this case the Cosgrave Government responded by 11 Ibid. at 409. 12 Ibid. at 406. 13 [1926] I R 585. This was a tax case concerning the restoration of property damaged in the 1916 Rising. 14 [1926] I R 586. Also see UCD Archives, McGilligan Papers P 35B/102. This case threatened a rerun of the celebrated case of O'Keefe v. Cullen reported on demurrer at I.R. 7 C.L. 319. 15 [1921] I R 185. Also Irish Law Times [1926] vol. 60 p. 31 and 43. Also McGilligan P35B/102. 7 passing the Land Act of 1926 which had the effect of declaring that the Irish Supreme Court's interpretation of the 1923 Act had always been the correct interpretation of that statute. The creation of such ad hoc legislation, which would have the effect of forcing the Privy Council to accept the Supreme Court verdict, was undoubtedly creating a distasteful parliamentary precedent, but the Irish Government considered such drastic measures justifiable in the circumstances. The effectiveness of these measures was proved when the case was withdrawn and the impotence of the Privy Council in the face of a hostile Dominion displayed for all to see.16 The fourth case, Wigg and Cochrane v The Attorney General of the Irish Free State 17, involved a dispute over compensation payable to British civil servants who had been transferred to the Irish civil service in 1922 and had subsequently retired shortly after the creation of the State. Although this case was actually heard by the Judicial Committee, its effect was to prove even more damaging to the Privy Council's already tarnished image than Lynham v Butler. When the Privy Council reversed the Supreme Court's decision the Irish Government accused it of interpreting Article 10 of the Treaty in a manner inconsistent with the intentions of the signatories and refused to pay any compensation whatsoever to the civil servants. The case was re-heard in 1928 after it was alleged that a mistake of fact had been made by the Judicial Committee which had affected its decision.18 The Committee had believed that the civil servants in question had been transferred before the 20 March 1922, the date of a Minute of the British Treasury concerning the calculation of compensation for such persons. In fact the civil servants had not been transferred until after that date. The Judicial Committee ultimately held that the Minute in question was not applicable and upheld its original decision which had reversed that of the Irish Supreme Court. The Irish Government continued its objections and the controversy was only resolved when the British Government agreed to pay the civil servants' compensation themselves. 16 It is likely that the Privy Council's involvement in the 1924 Boundary Commission, in which it decided that the Northern Ireland Government could not be compelled to appoint a representative to take part in the negotiations, did much to add to that body's unpopularity in Ireland even before Lynham v Butler. 17 [1927] I R 285, 293. 18 [1929] I R 44. 8 After the disaster of Wigg and Cochrane the next Irish petition heard by the Privy Council, Performing Rights Society v Bray Urban District Council19, saw the respondents challenge the very jurisdiction of the Court to hear that appeal. Their novel argument contended that, although Article 66 of the Constitution claimed to save the right of any person to appeal to 'His Majesty in Council', such a right could not be saved as no such right had existed before the creation of the State since in those days Irish appeals, as in Great Britain, had gone to the House of Lords. Therefore if any such right to appeal to 'His Majesty in Council' existed in the Irish Free State it could only lie with the Irish Privy Council and not with the Judicial Committee of the Privy Council which sat in London. Such an argument was never likely to succeed and Sankey L C declared it to be untenable and based on a misinterpretation of Article 66. The case itself concerned a claim of copyright over certain pieces of music under the British Copyright Act 1911 which the Irish Supreme Court claimed had ceased to apply in Ireland at the time of the creation of the State. When the appellants appealed this decision to the Judicial Committee, the Oireachtas, in a move which echoed Lynham v Butler, upheld the Supreme Court's decision in the Copyright (Preservation) Act 1929 which effectively prevented the Privy Council from granting compensation to the appellants. The fact that the proviso saving the Privy Council appeal in Art. 66, which denied the Irish Free State full judicial sovereignty, had been placed in the 1922 Constitution under British pressure, coupled with the unhappy history of the cases that had been appealed to the Privy Council to date caused the Cosgrave government to seriously examine the possibility of abolishing the appeal altogether. However it was not entirely clear if they could do this through unilateral legislation while keeping within the limits of the law as it existed at the time. After all, the British had insisted in 1922 that the appeal was an indispensable condition of the Treaty, under which, according to Section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, no Act of the Oireachtas could be passed that was 19 [1930] I R 509. 9