Even today, the Privy Council (for long, the Judicial Committee of the Privy Council, with deep historical roots going back to the twelfth-century Curia Regis) is the final court of appeal for a number of small states, including Jamaica, the Bahamas and Mauritius, as well as overseas possessions, like Gibraltar. And, well into the post-Second World War era, its reach extended to almost all of the former British Dominions.
In the case of the Irish Free State, there were particularly strong reasons why the ‘Imperial Power’ insisted on the new state being within the Privy Council’s jurisdiction. Specifically, four reasons form the basis of this excellent study of the political-constitutional aspects of the Irish appeal to the court, during the hectic period 1922–35.
The first reason is that, during this period, the British Commonwealth of Nations has a much more solid, structured association than the amoeba that the Commonwealth has become. And the Privy Council was one of the major institutional pillars of imperial unity (as opposed to the cement of sentiment, which was lacking in the case of Ireland). The Irish viewpoint was naturally the obverse. The Privy Council was regarded as being, at best, on a par with the oath of allegiance or the king as head of state. Coupled with all this is the fact that the court is the place where the citizen comes face-to-face with their rights. If to do that, the citizen has to go to another country that implies that there is something lacking in the citizen’s own country.
Secondly, and this is the feature which provides the book’s title, it was the court which was intended to settle disputes between the U.K. and the I.F.S., arising out of the Anglo–Irish Treaty. One of the major cases of this type was the Wigg and Cochran case ([1927] IR 285), which concerned the level of compensation payable to transferred civil servants. The judgment concluded that the civil servants were entitled to higher remuneration than had been calculated by the Irish supreme court. After the judgment had been handed down, the judges on the Privy Council admitted to having made a mistake. Irish reaction may be imagined.
Thirdly, the Privy Council was intended to act as a guarantee of civil liberties and equal rights, for the 200,000 Protestants, out of a population of three million, remaining in the Free State. The notion of an international court offering protection to a national minority has a contemporary ring. And even then, it was a very respectable argument. Consequently, in the propaganda battle, each side sought to adduce evidence to show that the Protestant community, itself, considered that it needed/did not need, the protection of this supra-national court. Chapter five gives a meticulous survey of the available evidence and rejects the Irish Government’s contention that opposition to abolition came from only ‘a tiny vociferous proportion of former unionists’.
Finally, a more general point which is often heard (though not in this book) that the appeal gives access to a large, open sophisticated legal world. By contrast the jurisdiction from which an appeal emanates may be small and the sort of environment where, for instance, a foreign trader may not be confident of securing justice. An argument of this type was advanced unsatisfactorily, as a reason for Hong Kong to retain the appeal, after its reversion to China in 1997.
Unfortunately, something like the reverse happened in the Irish experience of the Privy Council. The problem arose from the judicial and political character of the lord chancellor. Until the office was reformed by the Blair government, this high officer sat in the British cabinet, as effectively the minister for civil justice, as well as chairing the judicial committee of the House of Lords and selecting the members of the Privy Council, often including himself. Unfortunately the dominant personality holding this position in the 1920s was Lord Cave, a Liberal-Unionist who had condemned the Treaty. Even after he became lord chancellor, he stamped out of the imperial conference of 1926, proclaiming that he was not going to be a party to breaking up the British Empire. And he was party to many of the Privy Council appeals. Despite the fact that there were honest judges, this awful instance of Britain’s unwritten constitution naturally made the Irish think that they were not being treated fairly. Lord Cave justly commands a chapter to himself. Because of its constitutional–political implications, the court was hated even when the actual decision did go in Ireland’s favour. This aspect was noticeable in the final case from Ireland. This was Moore’s case ([1935] IR 472) on riparian fishing rights, which might be characterised as a situation of Protestant landowner versus Catholic community. But the main ruling was that the Oireachtas did have the right to abolish the appeal to the Privy Council, without the agreement of the British government or parliament.
The sequence of events was significant here. The Cosgrave government had been, by a distance, the strongest of the dominions in assailing the Privy Council’s jurisdiction. But it had gibed at uprooting the court from the Irish legal system because it feared that doing so would be condemned as unilateral action. However, this Government was replaced by Fianna Fáil in early 1932 which in the following year took the bull by the horns and removed the Privy Council, without British consent. Two years later came the Moore ruling that the I.F.S. was empowered to uproot the appeal, on its own. What if this decision had come in time for the outgoing Government to capitalise on it and remove the appeal? Would this have affected the outcome of the fateful election of 1932?
One brief sequel is not mentioned in this book: Article 34.1 of the 1937 Constitution states ‘justice shall be administered in courts … by judges appointed in the manner provided by this Constitution’. In other words, Ireland is placed beyond the reach of the Privy Council.
The subject of this book is at an intersection and so the book casts light in a number of directions. Most important of all the Privy Council’s early removal in the case of Ireland is a major strand in the peaceful development of the Commonwealth. This is probably one of the few examples we have yet had of the break-up of an empire being put to a constructive, if limited, use. As regards the legal system, one should emphasise this book is principally about the interrelationship between the two countries. So there is only a little on such practicalities as the relationship with the court system, lawyers (Irish and British? representing the parties), attempts to enforce the judgments in Ireland. But there is plenty of material relating to the question of whether, given good luck, including the absence of a Caveman, the court might have worked. Dr Mohr seems to be of the opinion that the political background was just too hostile and I respectfully agree.
In summary, this is an excellent book about an aspect of Irish–British relations in the 1920s, which has not to my knowledge, been comprehensively explored before. It is balanced, comprehensive, meticulous and accessibly written.
