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Irish Free State

Dr Claire Fitzpatrick

The history of the appeals to the Judicial Committee of the Privy Council from Irish courts from 1922 to 1933 was tempestuous and short. Appeals to the JCPC represented to Irish republicans a further diminution of the already compromised sovereignty granted by the
Anglo-Irish Treaty of 1921 and the emergent Irish Free State government fought strenuously to undermine it. While not specifically mentioned in the Treaty, the inclusion
of Article 66 of the Irish Free State constitution, 1922[1] allowing for such appeals had been at the insistence of the British Government. The appeal was also seen as an important safeguard for the rights of the Protestant minority.[2] The JCPC was seen as the ‘supreme’ court of the Empire and the ‘supreme arbiter in interpreting the Treaty’[3] and as such it was argued, Ireland’s adherence to it would ensure it was perceived as a British dominion[4] and an integral part of that empire. As this imperial connection, encapsulated in articles 1 and 2 of the Treaty, was so contentious, the Irish Free State continued to oppose it and decry the JCPC’s claim at successive Commonwealth conferences[5].

Labelled a ‘bad, useless and unnecessary court’[6], the JCPC was opposed by Republicans
for a number of reasons. To begin with it was considered an insult to the Irish Supreme Court and the Irish legal system. Furthermore it was felt that as three of the judges on the JCPC were Unionists who had opposed Irish home rule, it would be biased. It was argued that such judges should have no right to interpret the Irish constitution which they had opposed.[7] Of these judges, two refrained from hearing any Irish appeals, while the third Lord Cave has become the subject of historical debate.[8]  Finally the argument that the appeal to the JCPC was an essential safeguard for the rights of the
minority was deemed unnecessary[9]. Ernest Blythe, Minister for Finance and himself a Protestant and one of the strongest advocators for abolition of the appeal, argued that an ‘outside legal tribunal’ was as much use for the protection of the minority as ‘a crow or jackdaw on the roadside’.[10]

While the first few petitions to the JCPC were all dismissed and the Irish courts’ supremacy as guaranteed by the Irish constitution was upheld[11], the Irish Free State did battle with the JCPC on a number of occasions, most notably in the controversial Land Act case of 1925-6, Lynham v Butler whose appeal was blocked by legislation passed by the Irish Free State,[12]  and on cases dealing with the fate of civil servants and public officials who had been transferred from British to Irish employment after the partition of Ireland. Article 10 of the Treaty guaranteed fair compensation to those public servants who had been dismissed by or retired under the new government. This was later endorsed by Article 78 of the Irish Constitution. The most celebrated case of those who pursued cases in court was that of Wigg-Cochrane v Attorney General which was heard twice by the JCPC. The Irish High Court had decided that pensions of transferred officers were a constitutional right, but the Supreme Court appealed against this and won. The
case was then taken to the JCPC which overturned the Irish Supreme Court’s decision and confirmed the original ruling. It has been argued that this confirmed the Irish government’s view of the JCPC as a reactionary Tory institution[13] and it became committed to abolishing the appeal to it.

At the Imperial Conference in 1930 the Irish government denounced the JCPC as ‘obnoxious’ with no ‘democratic sanction’, claiming  it remained a ‘menace to our sovereignty’ which rendered ‘more difficult the growth of that close and friendly
co-operation’ between the two countries.[14]  The advent of the republican Fianna Fáil government in 1932, made up of many who opposed the Treaty, signalled the imminent severance of any remaining ties with the British empire.  In 1933 the Irish government
finally abolished the appeal to the JCPC although it did hear another case after this. Its decision in the Moore v Attorney General case of 1935, however, acknowledged the power granted to the Irish government by the Statute of Westminster 1931 which in essence allowed it to abrogate the Treaty and abolish the appeal.[15]

 

Further reading:

D.W. Harkness, The Restless Dominion: The Irish Free State and the British Commonwealth of Nations 1921-31 (Dublin, 1969).

M. Maguire, The Civil Service and the Revolution in Ireland, 1912-38 (Manchester, 2008)

T. Mohr, ‘The Privy Council Appeal as a Minority Safeguard for the Protestant
Community of the Irish Free State 1922-35, UCD Working Papers in Law, Criminology and Socio-Legal Studies Research, paper No 50/2011. 

--------, ‘Lord Cave, the Privy Council and Ireland’, UCD Working Papers in Law, Criminology and Socio-Legal Studies Research, paper No. 42/2010

 

--------,‘Law without Loyalty: The Abolition of the Irish Appeal to the Privy Council’ (2002) 37 Irish Jurist 187-226. 

 

--------, ‘A British Empire Court: A brief appraisal of the History of the JCPC’ UCD Working Papers in Law, Criminology and Socio-Legal Studies Research, paper No.



[1]Article 66
‘The Supreme Court of the Irish Free State (Saorstát Eireann, with such
exceptions (not including cases which involve questions as to the validity of
the law) and subject to such regulations as may be prescribed by the law, have
appellate jurisdiction from all decisions of the High Court. 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; Provided that nothing in the 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 . See Dáil
Debates,
Vol. 14, 27 Jan. 1926 cols 116- for discussion of this.

[2] Harkness, The Restless Dominion: The Irish Free State and the British
Commonwealth of Nations 1921-31
(Dublin, 1969).p.22 and T. Mohr, ‘The Privy
Council Appeal as a Minority Safeguard for the Protestant Community of the
Irish Free State 1922-35, UCD Working
Papers in Law, Criminology and Socio-Legal Studies Research,
paper No
50/2011

[3] Lionel Curtis cited in T. Mohr,
‘Lord Cave, the Privy Council and Ireland’,
UCD
Working Papers in Law, Criminology and Socio-Legal Studies Research,
paper No. 42/2010 p.

[4] T. Mohr, ‘The Privy Council
Appeal as a Minority Safeguard’  

[5] See D. Harkness, The Restless Dominion.

[6] Kevin O’Higgins, Minister of
Justice, quoted in Mohr, Lord Cave, the Privy Council and Ireland’ p. 7 and Dáil Debates, vol. 18 8 Feb. col. 385.

[7] M. Maguire, The Civil Service and the Revolution in
Ireland, 1912-38
(Manchester, 2008) p. 189.

[8] See
T. Mohr for discussion of
this.

[9]
Harkness,
p. 22 and Mohr, ‘The Privy Council Appeal as a Minority Safeguard for the
Protestant Community of the Irish Free State 1922-35.

[10] The
Times,
12 May
1931.

[11] T. Mohr, ‘Lord Cave, the Privy
Council and Ireland’, p.5.

[12] For discussion of Lynham v
Butler see Mohr, ‘Lord Cave, the Privy Council and Ireland’, pp. 13-16.

[13] Maguire, The Civil Service and the Revolution in Ireland, p.190. Subsequent
negotiations led to a reworking of Article 10 of the Anglo-Irish Treaty.

[14] Cited in Harkness, The Restless Dominion, pp.178-9.

[15] See Moore and others v Attorney and others for
the Irish Free State
[1935] IR 472 [1935] A.C. p.487. This was a case
involving disputed fishing rights.