Judicial Committee of the Privy Council and the Irish Free State
Until 1933, Article 66 of the Constitution of the Irish Free State permitted appeals of decisions of the Supreme Court of the Irish Free State[n 1] to be made to the Judicial Committee of the Privy Council (JCPC) in London. This was a requirement of the Anglo-Irish Treaty of 1921, which underpinned the creation of the Irish Free State. The treaty specified that the Free State's constitutional status would be the same as the other British Dominions, whose local courts allowed further appeal to the JCPC.
While Article I of the 1921 treaty said the Free State's "constitutional status" would match all the existing Dominions (Canada, Union of South Africa, Australia, New Zealand), Article II said "the relationship of the Crown or the representative of the Crown" to the Free State would match Canada. Although Article II ought to have covered the JCPC, in negotiations on the 1922 Free State constitution, the Lloyd George government allowed the provisional Irish government to use the model of South Africa, a unitary state with fewer JCPC appeals than Canada, a federal state for which the JCPC often heard cases of dispute between federal and provincial governments. Kevin O'Higgins predicted there would "not be two or three appeals in a century, where appeals [would] only be granted in very special cases, raising matters other than purely Irish interests, raising international issues of the first importance".
The Cumann na nGaedheal governments of 1922–32 sought to minimise appeals to the Privy Council as undermining the autonomy of the Free State and giving fuel to its republican opponents. An additional impetus was that JCPC members included former politicians who were now Lords of Appeal, among them prominent unionists Lord Carson, Viscount Sumner, and Viscount Cave. In the event Carson and Sumner recused themselves from Free State cases; however, Cave did not and ruled against Cumann na nGaedheal in several cases. Conversely, Southern Irish unionists regarded the JCPC as a safeguard against tyranny of the majority, a fear which Irish nationalists insisted was unfounded.
Article XII of the 1921 treaty provided for a three-person Irish Boundary Commission to finalise the border between the Free State and Northern Ireland. In 1924, when Craigavon's Stormont government refused to appoint Northern Ireland's commissioner, MacDonald's Westminster government referred to the JCPC the question of whether it could either force Stormont to nominate or make one in its stead. The JCPC corresponded with Cosgrave's Dublin government, which chose to view the matter as internal to the UK and refused to be a party to the deliberations.
At the Imperial Conferences of 1926 and 1930, Cosgrave's governments attempted to secure the abolition of JCPC appeal; although neither conference explicitly agreed to this, the 1930 conference led to the UK Parliament recognising Dominion parliaments as its equals via the Statute of Westminster 1931. In the runup to that UK statute, Cosgrave's government prepared two bills for the Free State Oireachtas (parliament): one to remove Article 66 from the constitution, and the other to make any Supreme Court decision final. The bills had not been introduced by the 1932 general election after which Fianna Fáil came to power after and began removing British and monarchist elements from the constitution. The Constitution (Amendment No. 22) Act 1933 abolished the right of appeal to the JCPC. The JCPC itself ruled in 1935 that the Free State Oireachtas had the power to do so under the Statute of Westminster.
List of referralsEdit
|Date[n 2]||Case||Legal citations||Type||Justices||Notes|
|25 July 1923||
|| 57 ILT & SJ 173, 197
 2 IR 402
|Appeal from Court of Appeal in Ireland (leave denied[n 3])||Haldane, Buckmaster, Parmoor||The first Free State petitions.|
The decision in cases 2, 3, and 4 (often cited as Hull v. McKenna) was to refuse leave to appeal on the basis that there was no automatic right of appeal and that the questions at issue were internal matters for the Free State.
|31 July 1924||In the Matter of the Reference as to the Tribunal under Article 12 of the Schedule appended to the Irish Free State Agreement Act 1922.||Cmd. 2214[n 4]||Special reference||Dunedin, Blanesburgh, Lawrence Jenkins, Lyman Duff, Adrian Knox||Four questions were submitted in advance and a supplementary question during the JCPC hearing beginning 22 July 1924. The answers were transmitted to the UK government by Maurice Hankey, secretary to the JCPC. The substance was that there was no way "under existing law" to bring the Irish Boundary Commission into being without the co-operation of the Northern Ireland government.|
|27 December 1925||James O'Callaghan v. Charles O'Sullivan|| 1 IR 90
 2 IR 586
|Appeal from Supreme Court (leave denied)||Cave, Dunedin, Shaw||O'Callaghan contested in forma pauperis his dismissal as parish priest of Eyeries by O'Sullivan, Catholic Bishop of Ardfert and Aghadoe.|
|27 December 1925||Lynham v Butler|| 2 IR 82||Appeal from Supreme Court (leave granted)||Cave, Dunedin, Shaw||The JCPC granted leave to appeal a Supreme Court ruling on the Land Act 1923, but the Land Act 1926 was rushed through the Oireachtas to make explicit the interpretation given by the Supreme Court judgment, obviating the need for JCPC consideration.|
|22 June 1926||Martin Fitzgerald v. Commissioners of Inland Revenue|| 2 IR 182, 585||Appeal from Supreme Court (leave denied)||Haldane, Dunedin, Atkinson, Phillimore||A tax case for compensation for damage from the 1916 Rising.|
|3 May 1927||John Howard Wigg and Robert Oliver Cochrane v The Attorney General of the Irish Free State||1927 UKPC 45
1927 AC 674
|Appeal from Supreme Court (heard; overturned verdict)||Cave, Haldane, Finlay, Dunedin||Questioned the applicability to Free State civil servants who had previously been employed by the Dublin Castle administration of a change to the UK Superannuation Act's civil service scheme effected by a Treasury minute of 20 March 1922. The minute was after the Provisional Government was created on 16 January but before the Irish Free State (Agreement) Act 1922 transferred control of the Irish civil service from 1 April.|
|13 November 1928||In the matter of certain questions relating to the payment of compensation to Civil Servants under Article X of the Articles of Agreement for a Treaty between Great Britain and Ireland||1928 UKPC 85||Special reference||Reading, Phillimore, Hanworth, Alness, Anglin||Special reference due to the Free State government's refusal to enforce the JCPC decision in the Wigg case. In response to both decisions, the Irish and British governments agreed to amend the 1921 treaty.|
|10 April 1930||The Performing Right Society, Limited v The Urban District Council of Bray||1930 UKPC 36||Appeal from Supreme Court (heard; overturned verdict)||Sankey, Blanesburgh, Hanworth, Thankerton, Russell||Overturned a 1928 Supreme Court decision that the Copyright Act 1911 had not been carried over from UK to Free State law. In the interim, the Oireachtas had passed the Copyright (Preservation) Act 1929 to replicate the 1911 Act.|
|6 June 1935||Robert Lyon Moore and others v The Attorney General for the Irish Free State and others [Petition]||1935 UKPC 34
1935 1 IR 472
|Appeal from Supreme Court (leave denied)||Sankey, Atkin, Tomlin, Macmillan, Wright||Moore and the other plaintiffs represented the Erne Fishery Company in a fishing rights case begun in 1925, in which the Supreme Court ruled against the company in 1933. The appeal to the JCPC was filed before the bill to abolish such appeals was introduced, and heard after the bill had been enacted as the Constitution (Amendment No. 21) Act 1933. Whereas abolition statutes in other Commonwealth countries usually allowed appeals already pending to proceed to the JCPC, the 1933 act made no such exception. Conformant to Irish law that the JCPC no longer had jurisdiction, the Supreme Court refused to transmit the case files to the JCPC and the Attorney-General of the Irish Free State was not represented at its proceedings. The JCPC ruled in 1935 that it no longer had jurisdiction because the 1933 act was legitimate. The Oireachtas in 1934 had passed a law enabling the Erne Fishery Company to regain possession of the disputed fishing rights.|
- The Supreme Court was created by statute in 1924, prior to which the 1922 constitution preserved the Court of Appeal in Ireland created in 1877, Article 66 applying to its decisions.
- Date of the final JCPC action (denial of leave, issuing of opinion, ruling, etc.)
- The petition in Bowman v. Healy was withdrawn rather than denied.
- UK National Archives citation CAB 24/168/28 [formerly CP 426 (24)]
- "Constitution of the Irish Free State (Saorstát Eireann) Act, 1922". Irish Statute Book.
- Fitzpatrick, Claire. "Contexts; Jurisdictions; Territorial; Irish Free State". Privy Council Papers. University of Exeter.
- Hughes, Hector (1931). National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations. London: P. S. King and Son. Retrieved 28 May 2020.
- Mohr, Thomas (2002a). "The Privy Council appeal as a minority safeguard for the Protestant community of the Irish Free State, 1922-1935" (PDF). Northern Ireland Legal Quarterly. 63 (3): 365–395. Archived from the original (PDF) on 2016-10-09. Retrieved 2018-04-17.
- Mohr, Thomas (2002b). "Law without loyalty–the abolition of the Irish appeal to the privy council". Irish Jurist. 37: 187–226. hdl:10197/5308. JSTOR 44027022.
- Swinfen, David B. (1990). Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986. Manchester University Press. ISBN 9780719023125. Retrieved 18 April 2018.
- Towey, Thomas (1977). "Hugh Kennedy and the Constitutional Development of the Irish Free State, 1922–1923". Irish Jurist. 12 (2). ISSN 0021-1273. JSTOR 44026237.
- Constitution of the Irish Free State Article 75; Henchy, Seamus (1962). "Precedent in the Irish Supreme Court". The Modern Law Review. 25 (5): 547. ISSN 0026-7961. JSTOR 1092346.
- Maguire, Martin (2008). "5: Cumann na nGaedheal and the civil service, 1923–32". The Civil Service and the Revolution in Ireland 1912-1938: Shaking the Blood-stained Hand of Mr Collins' (PDF). Manchester University Press. pp. 182–195. ISBN 9781781702611. Retrieved 17 April 2018.
- Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 Schedule 1, Article 66: "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 or the right of His Majesty to grant such leave"
- Constitution of the Irish Free State (Saorstát Eireann) Act, 1922; Schedule 2
- "In Committee on the Constitution of Saorstat Eireann Bill. — Article 65". Dáil debates. Oireachtas. 10 October 1922. Vol. 1 No. 20 p.25 cc.1401–1416. Retrieved 17 April 2018.
- "Public Business. - Land Bill, 1926—Second Stage". Dáil Éireann (4th Dáil) debates. Houses of the Oireachtas. 3 February 1926. Retrieved 17 April 2018.
- Viscount Cave (3 March 1926). "Appeal From The Irish Free State Courts". Hansard. HL Deb vol 63 c404. Retrieved 17 April 2018.
I dare say he was told also that the Free State would be like South Africa, a unitary State, so that the questions which frequently arise, for instance, in Canada between the Dominion and Provinces would not arise in the Irish Free State, and that accordingly the number of appeals would be less than they are in the case of Canada.
- Mohr, Thomas (2010). "Lord Cave, the Privy Council and Ireland". UCD Working Papers in Law, Criminology & Socio-Legal Studies (Research Paper 42/2010). doi:10.2139/ssrn.1713114.
- Towey 1977 p.367
- Rankin, K. J. (2006). "The provenance and dissolution of the Irish boundary commission" (PDF). IBIS Working Papers. Institute for British-Irish Studies, University College Dublin (79): 14.
- Executive Council (1924). "Correspondence between the Registrar of the Privy Council and His Excellency the Governor-General of the Irish Free State : on matters arising out of article 12 of the Treaty" (PDF). Documents Laid. Oireachtas Library. Retrieved 2 June 2020.
- Mohr 2002b pp.194–195
- Mohr 2002b p.190
- "Status of Free State Courts; Right of Appeal to Privy Council". Weekly Irish Times. 4 August 1923. p. 2. Retrieved 31 May 2020.
- "The Inchicore Case Again". The Irish Times. 13 April 1923. p. 3. Retrieved 31 May 2020.
- Towey 1977 pp.368–370
- McCullagh, David (2010). "Chapters 2 and 3". The Reluctant Taoiseach: A Biography of John A. Costello. Gill & Macmillan. ISBN 978-0-7171-5163-9. Retrieved 31 May 2020.
- Mohr 2002b fn.4
- "Memorandum: Irish Boundary Commission". Catalogue. UK National Archives. 31 July 1924. Retrieved 10 December 2019.
- Hudson, Manley O. (January 1925). "The Irish Boundary Question". The American Journal of International Law. 19 (1): 150–155. doi:10.2307/2189090. JSTOR 2189090.
- Reprinted in Quekett, Arthur S. (1933). The Constitution Of Northern Ireland. Part II. Belfast: HMSO. pp. 171-175. Retrieved 10 December 2019.
- Hughes 1931 p.80 fn.1; Murdoch, Henry (December 2004). "Beating the Bishop: O'Callaghan v O'Sullivan" (PDF). Law Society Gazette. Dublin. 98 (10): 10. Retrieved 29 May 2020.
- Hughes 1931 p.85 fn.1
- Mohr 2002b pp.191–192
- "Civil Service (Transferred Officers) Compensation Act 1929". electronic Irish Statute Book (eISB). Retrieved 31 May 2020.; "In Committee on Finance — Civil Service (Transferred Officers) Compensation Bill, 1929 — Second Stage". Dáil Éireann (6th Dáil) debates. Oireachtas. 11 July 1929. Retrieved 31 May 2020.
- Clark, Robert; Shúilleabháin, Máire Ní (2010). Intellectual Property Law in Ireland. Kluwer Law International. p. 32 s.1.22. ISBN 9789041133021. Retrieved 17 April 2018.
- Mohr 2002b, Parts I, V, VI
- "S.R. & O. No. 177/1934 - River Erne (Tidal Waters) Order, 1934". Irish Statute Book. Retrieved 24 April 2018.; "Fisheries (Tidal Waters) Bill, 1934—Second Stage". Dáil Éireann Debates. 25 May 1934. pp. Vol.52 No.14 p.4 cc.1817–1850. Retrieved 24 April 2018.
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