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词条 Judicial Committee of the Privy Council and the Irish Free State
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From 1922 to 1933, Article 66 of the Constitution of the Irish Free State permitted appeals of decisions of the Supreme Court of the Irish Free State to be made to the Judicial Committee of the Privy Council (JCPC) in London.[1][1] 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.[2] 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.[3][5][4] 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".[3]

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. 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.[5] 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.[6]

The Free State played a leading role in the 1930 Imperial Conference which led to the Statute of Westminster 1931. Fianna Fáil came to power after the 1932 general election and began removing British and monarchist elements from the Constitution. The Constitution (Amendment No. 21) Act 1933 abolished the right of appeal to the JCPC. The JCPC itself ruled in 1935 that the Free State Oireachtas (parliament) had the power to do so under the Statute of Westminster.

List of referrals

Appeals from the Supreme Court of the Irish Free State to the Judicial Committee of the Privy Council
Date Case Legal citations Notes
1926 Lynham v Butler [1925] 2 I.R. 82 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.[7]
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>Questioned the legality of a change to the Superannuation Act's civil service scheme effected by a Treasury minute of 20 March 1922, after the Provisional Government of Ireland was created on 16 January but before it took control of the Irish civil service on 1 April.[8]
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 [Special reference][1928| UKPC 85]>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.[8]
10 April 1930 The Performing Right Society, Limited v The Urban District Council of Bray[1930| UKPC 36]>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.[9]
6 June 1935 Robert Lyon Moore and others v The Attorney General for the Irish Free State and others [Petition][1935| UKPC 34]
[http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/34740D4947655F668025765E0036AE51/$FILE/Moore%20v%20AG_1935.rtf [1935| 1 I.R. 472]>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.[10] 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.[11]

References

Sources

  • {{cite web |url=http://www.irishstatutebook.ie/eli/1922/act/1/enacted/en/index.html |title=Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 |work=Irish Statute Book }}
  • {{Cite web |last=Fitzpatrick |first=Claire |url=http://privycouncilpapers.exeter.ac.uk/contexts/jurisdictions/territorial/irish-free-state/ |title=Contexts; Jurisdictions; Territorial; Irish Free State |work=Privy Council Papers |publisher=University of Exeter }}
  • {{Cite journal |first=Thomas |last=Mohr |year=2002 |url=http://researchrepository.ucd.ie/bitstream/handle/10197/6057/PC_Minority_Article.pdf |format=PDF |title=The Privy Council appeal as a minority safeguard for the Protestant community of the Irish Free State, 1922-1935 |journal=Northern Ireland Legal Quarterly |volume=63 |number=3 |pages=365–395 }}
  • {{cite book|last=Swinfen|first=David B.|title=Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833-1986|url=https://books.google.com/books?id=wtlRAQAAIAAJ|accessdate=18 April 2018|year=1990|publisher=Manchester University Press|isbn=9780719023125}}

Citations

1. ^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"
2. ^Constitution of the Irish Free State (Saorstát Eireann) Act, 1922; Schedule 2
3. ^1 {{cite web|url=http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1922101000025|title=In Committee on the Constitution of Saorstat Eireann Bill. — Article 65|date=10 October 1922|work=Dáil debates|publisher=Oireachtas|page=Vol. 1 No. 20 p.25 cc.1401–1416|nopp=Y|accessdate=17 April 2018}}
4. ^{{cite web|url=https://api.parliament.uk/historic-hansard/lords/1926/mar/03/appeal-from-the-irish-free-state-courts#column_404|title=Appeal From The Irish Free State Courts|authorlink=George Cave, 1st Viscount Cave|author=Viscount Cave|date=3 March 1926|work=Hansard|page=HL Deb vol 63 c404|nopp=Y|accessdate=17 April 2018|quote=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.}}
5. ^{{cite journal|last=Rankin|first=K. J.|year=2006|title=The provenance and dissolution of the Irish boundary commission|journal=IBIS Working Papers|publisher=Institute for British-Irish Studies, University College Dublin|issue=79|page=14|url=http://researchrepository.ucd.ie/bitstream/handle/10197/2258/79_kr.pdf#page=21 |format=PDF}}
6. ^{{cite web|url=http://www.difp.ie/docs/1924/Reference-of-Article-XII-of-the-1921-Treaty-to-the-Privy-Council/583.htm|title=Letter, T.M. Healy to the Registrar of the Privy Council from T.M. Healy to the Registrar of the Privy Council |date=10 July 1924|work=Documents on Irish Foreign Policy|publisher=Royal Irish Academy|accessdate=17 April 2018}}
7. ^1 {{cite web|url=https://beta.oireachtas.ie/en/debates/debate/dail/1926-02-03/33/|title=Public Business. - Land Bill, 1926—Second Stage.|date=3 February 1926|work=Dáil Éireann (4th Dáil) debates|publisher=Houses of the Oireachtas|accessdate=17 April 2018}}
8. ^1 2 {{cite book|last=Maguire|first=Martin|title=The Civil Service and the Revolution in Ireland 1912-1938: Shaking the Blood-stained Hand of Mr Collins'|url=http://eprints.dkit.ie/84/1/The_civil_service_and_the_revolution_in_Ireland_1912-38_%27shaking_the_bloss-stained_hand_of_Mr_Collins%27..pdf#page=192 |format=PDF|accessdate=17 April 2018|year=2008|publisher=Manchester University Press|isbn=9781781702611|pages=182–195|chapter=5: Cumann na nGaedheal and the civil service, 1923–32}}
9. ^{{cite book|last1=Clark|first1=Robert|last2=Shúilleabháin|first2=Máire Ní|title=Intellectual Property Law in Ireland|url=https://books.google.com/books?id=_6Mq3s--guIC&pg=PA32|accessdate=17 April 2018|year=2010|publisher=Kluwer Law International|isbn=9789041133021|page=32 s.1.22}}
10. ^{{cite journal|last=Mohr|first=Thomas|year=2002|title=Law without loyalty–the abolition of the Irish appeal to the privy council|journal=Irish Jurist|volume=37|pages=187–226|url=http://hdl.handle.net/10197/5308 |format=PDF |jstor=44027022}}
11. ^{{cite web|url=http://www.irishstatutebook.ie/eli/1934/sro/177/made/en/print|title=S.R. & O. No. 177/1934 - River Erne (Tidal Waters) Order, 1934|work=Irish Statute Book|accessdate=24 April 2018}}; {{cite web|url=http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1934052500004|title=Fisheries (Tidal Waters) Bill, 1934—Second Stage|date=25 May 1934|work=Dáil Éireann Debates|pages=Vol.52 No.14 p.4 cc.1817–1850|accessdate=24 April 2018}}

Further reading

  • {{cite book |first=Thomas |last=Mohr |year=2016 |title=Guardian of the Treaty: The Privy Council Appeal and Irish Sovereignty|publisher=Four Courts Press|isbn=9781846825873}}

External links

  • The Judicial Committee of the Privy Council Decisions BAILII
  • Documents on Irish Foreign Policy (search for "Privy Council")

2 : Judicial Committee of the Privy Council cases from the Irish Free State|Lists of Judicial Committee of the Privy Council cases
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