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Original Articles

Lord Cave, The British Empire and Irish Independence—A Test of Judicial Integrity

Thomas Mohr Dr Thomas Mohr BA LLB MA PhD, Lecturer in Law, University College Dublin.
Pages 229-260 | Published online: 07 May 2015

  • Dáil Debates 3 February 1926, vol 14, cols 331–34.
  • ibid 334. O'Higgins later attempted to mollify any offence that might have been taken at these remarks. He explained to the other delegations at the Imperial Conference of 1926 that when he had referred to the Privy Council as a ‘bad court’ he had not meant that it was inherently bad, but that it was bad from the point of view of the Irish Free State: The National Archives of the United Kingdom (TNA): Public Records Office (PRO), CAB 32/56 E(IR–26), 4th Meeting, 2 November 1926.
  • For example, see Hector Hughes, National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations(PS King & Son Ltd 1931) 98.
  • TNA: PRO CAB 43/7 22/N/163: Interview between the Prime Minister, Mr Griffth and Mr Collins, 1 June 1922.
  • See Thomas Mohr, ‘The Privy Council Appeal as a Minority Safeguard for the Protestant Community of the Irish Free State, 1922–1935' (2012) 63 Northern Ireland Legal Quarterly 365.
  • Thomas Mohr, ‘Law without Loyalty: The Abolition of the Irish Appeal to the Privy Council’ (2002) 37 Irish Jurist 187.
  • See eg Darrell Figgis, The Irish Constitution—;Explained by Darrell Figgis (1922) 53–5; Donal McEgan, ‘John Bull's Privy Council’ (1933) 23 The Catholic Bulletin 739; Jacqueline D Krikorian, ‘British Imperial Politics and Judicial Independence: The Judicial Committee's Decision in the Canadian Case Nadan v The King’ (2000) 33 Canadian Journal of Political Science 291, 331.
  • Judicial Committee Act 1833. This was later amended by the Judicial Committee Act 1844. John A Costello argued that this amending legislation did not apply to the Irish Free State: University College Dublin (UCD) Archives, Costello Papers, P190/94, Memorandum on Lynham v Butler, undated.
  • One source provides the following figures for appeals between the years 1911 and 1917—;India: 514; Canada: 180; Australia: 45; New Zealand: 18; Newfoundland: 6; South Africa: 3. See Irish Independent (Dublin, 31 December 1929).
  • The use of a capital ‘D’ when referring to the ‘British Dominions’ was required by the British Government in order to avoid confusion with the wider term ‘His Majesty's dominions' which referred to the British Empire as a whole: see TNA: PRO HO 45/20030. This article will follow this convention.
  • For example, see TNA: PRO CAB 43/1 SFB 21, Meeting between Representatives of the Southern Unionists and the British Representatives on the Conference on Ireland, 7 December 1921; TNA: PRO CO 739/7/47027, Curtis to Churchill, 20 September 1922. For a detailed analysis, see Thomas Mohr, ‘The Irish Free State and the Legal Implications of Dominion Status‘ (PhD thesis, University College Dublin 2007) ch 5.
  • TNA: PRO CAB 43/7, 22/N/162, Draft Irish Constitution, 27 May 1922.
  • Mohr (n 6).
  • See Thomas Mohr, ‘A British Empire Court—;An Appraisal of the History of the Judicial Committee of the Privy Council' in Anthony McElligott, Liam Chambers, Ciara Breathnach and Catherine Lawless (eds), Power in History: From Medieval Ireland to the Post-Modern World (Irish Academic Press 2011) 125–44.
  • TNA: PRO CAB 43/7 22/N/163, Report on Draft Irish Constitution; see also Article 66 of the Constitution of the Irish Free State.
  • For example, see Dáil Debates 10 October 1922, vol 1, col 1404; Seanad Debates 24 February 1926, vol 6, col 408.
  • HL Deb 3 March 1926, vol 63, cols 403–04; TNA: PRO LCO 2/910, Dominions Secretary to Lord Chancellor, 17 February 1926.
  • Dáil Debates 10 October 1922, vol 1, col 1404.
  • These three petitions were Alexander E Hull & Co v Mary A E McKenna; The ‘Freemans Journal’ Limited v Erik Fernstrom and The ‘Freemans Journal’ Limited v Follum Traesliberi. All are reported at [1926] IR 402 (Privy Council (PC)).
  • Hull v M'Kenna [1926] IR 402 (PC) 404.
  • Hull v M'Kenna [1926] IR 402 (PC) 402
  • Hull v M'Kenna [1926] IR 402 (PC) 403.
  • Hull v M'Kenna [1926] IR 402 (PC) 407–08. Lord Buckmaster added that the Irish Constitution made it plain that ‘as far as possible, fnality and supremacy are to be given to the Irish Courts: Hull v M'Kenna [1926] IR 402 (PC) 409.
  • UCD Archives, Kennedy Papers, P4/516, Hugh Kennedy to WT Cosgrave, 30 July 1923.
  • John G Swift MacNeill, Studies on the Constitution of the Irish Free State (Talbot Press 1925) xxiii, 83–89.
  • Seanad Debates 30 July 1923, vol 1, col 1570.
  • Dáil Debates 10 October 1922, vol 1, cols 1402–1403; Dáil Debates 27 January 1926, vol 14, cols 124–25, 132; Dáil Debates 3 February 1926, vol 14, cols 384–85; Seanad Debates 24 February 1926, vol 6, col 401.
  • [1927] AC 674 (PC).
  • Dáil Debates 27 January 1926, vol 14, col 134; see also Dáil Debates 3 February 1926, vol 14, cols 342, 386; Seanad Debates 24 February 1926, vol 6, cols 386, 439; AB Keith also distinguished Lynham v Butler [1925] 2 IR 231 (Supreme Court of Ireland (SC) and Wigg v Attorney-General for the IrishFree State by noting that the former concerned a ‘technical issue’ whereas in the latter case ‘it would hardly have been possible to decline intervention’: AB Keith, ‘Notes on Imperial Constitutional Law’ (1926) 8 Journal of Comparative Legislation and International Law 133.
  • UCD Archives, Blythe Papers, P24/217, Memorandum on the Judicial Committee of the Privy Council; TNA: PRO CAB 32/56 E(IR–26), 4th Meeting, 2 November 1926.
  • Constitution (Amendment No 22) Act 1933 (Ireland).
  • Charles Mallet, Lord Cave—;A Memoir (John Murray 1931) 277–78.
  • Thomas S Legg and Marie-Louise Legg, ‘Cave, George, Viscount Cave (1856–1928)' in Lawrence Goldman (ed), Oxford Dictionary of National Biography (January 2011) <http://www.oxforddnb.com/index/101032329/George-Cave> accessed 6 December 2012.
  • Mallet (n 32) 154–55, 163–65.
  • Government of Ireland Act 1914.
  • Mallet (n 32) 163.
  • ibid 183.
  • The assertion that the diaries were forgeries perpetrated by the British Government was accepted by a significant number of Irish nationalists in the years that followed Casement's execution. This controversy continues despite scientific tests carried out In 2002 that confirmed the authenticity of these diaries. The evidence put forward by both sides in this dispute is considered in Michael Laffan's entry on Casement in the Dictionary of Irish Biography: Michael Laffan, ‘Casement, Sir Roger David’ in James McGuire and James Quinn (eds), Dictionary of Irish Biography (December 2010) <http://dib.cambridge.org> accessed 6 December 2012.
  • Mallet (n 32) 200–01.
  • ibid 201.
  • Re Clifford and O'Sullivan [1921] 2 AC 570 (PC); Mallet (n 32) 229.
  • Mallet (n 32) 253.
  • John Barnes and David Nicholson (eds), The Leo Amery Diaries, Vol 1, 1896–1929 (1980) 530.
  • Mallet (n 32) 253.
  • ibid.
  • ibid 27.
  • ibid 27–28.
  • HL Deb 16 March 1922, vol 49, cols 606–07.
  • ibid 608–09.
  • ibid 943.
  • Mallet (n 32) 27–28.
  • TNA: PRO CAB 23/30/10, Conclusions of Cabinet Meeting, 2 June 1922.
  • TNA: PRO CAB 23/30/10, Conclusions of Cabinet Meeting, 2 June 1922.
  • TNA: PRO CAB 23/30/10, Conclusions of Cabinet Meeting, 2 June 1922.
  • TNA: PRO CAB 23/30/10, Conclusions of Cabinet Meeting, 2 June 1922.
  • TNA: PRO CAB 23/30/10, Conclusions of Cabinet Meeting, 2 June 1922; TNA: PRO CAB 43/1 SFB 33rd Conference, The Irish situation, 10 October 1922; National Archives of Ireland (NAI): Department of the Taoiseach S4285A, Winston Churchill to WT Cosgrave, 11 October 1922.
  • TNA: PRO CO 739/7/47027, Curtis to Churchill, 20 September 1922.
  • Hughes (n 3) 98.
  • Seanad Debates 20 November 1929, vol 13, col 46. See also the remarks made by the Minister for Justice, Kevin O'Higgins, with respect to the decision to grant leave to appeal in the case of Lynham v Butler: Dáil Debates 27 January 1926, vol 14, col 134; Dáil Debates 3 February 1926, vol 14, col 386.
  • In 1925 Lord Carson and Lord Cave did hear an appeal to the Judicial Committee of the House of Lords that directly concerned the Irish Free State. The case of Attorney-General v Great Southern and Western Railway Company of Ireland concerned the payment of compensation for the removal of rails and sleepers during the first world war. The House of Lords held that this liability was now vested in the government of the Irish Free State. Cave's judgment included consideration of the railway company's claim that it would have difficulty recovering the sum in question from the Irish government. Lord Cave insisted that this was improbable and added that he did not doubt that the liability imposed on the Irish Free State would be fully honoured: Attorney-General v Great Southern and Western Railway Company of Ireland [1925] AC 754 (PC) 766–67. Lord Carson did no more than concur with the judgments of Lord Haldane and Lord Dunedin: 775.
  • [1925] 2 IR 82 (High Court) [1925] 2 IR 231 (SC).
  • Land Act 1923 was the latest in a series of legislative acts concerning the compulsory sale and purchase of tenanted land in Ireland. This continued a process that had been initiated in the Landlord and Tenant (Ireland) Act 1870. Lynham v Butler concerned a dispute as to whether the purchase and sale provisions of the 1923 Act applied to particular holdings in County Dublin.
  • Dáil Debates 3 February 1926, vol 14, col 339.
  • AB Keith claimed that he had anticipated the use of such measures as the Land Act 1926 in advice given to Darrell Figgis during the drafting of the Irish Constitution: Keith (n 29) 286–87.
  • Dáil Debates 3 February 1926, vol 14, cols 389–90.
  • Dáil Debates 3 February 1926, vol 14, col 386.
  • The other two judges who heard the petition for leave to appeal in Lynham v Butler were Lord Dunedin and Lord Shaw of Dunfermline.
  • HL Deb 3 March 1926, vol 63, col 403. See also TNA: PRO LCO 2/910, Lord Chancellor to Dominions Secretary, 3 February 1926; TNA: PRO CAB 4/174 SFC 54 (26), Memorandum by the Lord Chancellor, 25 February 1926; NAI: Department of the Taoiseach, S11749, Shorthand Notes of Petition for Leave to Appeal in Lynham v Butler, 7 December 1925. Lord Cave's insistence that leave to appeal had been granted on the basis that the case ‘affected a considerable number of people in the Free State' is unlikely to have made a favourable impression in the Irish Free State. A theory circulated in the Irish Free State that maintained that the Judicial Committee had granted leave to appeal in Lynham v Butler on the erroneous assumption that the case would affect a considerable number of Anglo-Irish landlords: Hughes (n 3) 99.
  • HL Deb 3 March 1926, vol 63, col 405. AB Keith noted that ‘[t]he Lord Chancellor in discussing this matter curiously and rather amazingly asserted that it was this sort of case which it had been intended to secure as a matter for appeal in the Constitution whereas it is clear from that instrument that constitutional issues alone were really intended to be safeguarded, since they alone are of Imperial interest’: AB Keith, Responsible Government in the Dominions, vol 2(2nd edn, Clarendon Press 1928) 1090. Keith was firmly of the opinion that the essential function of the Privy Council in relation to the Irish Free State was to decide constitutional issues. For example, see AB Keith, The Sovereignty of the British Dominions (Macmillan 1929) 59; AB Keith, The Constitutional Law of the British Dominions, (Macmillan 1933) 277; AB Keith, Letters on Imperial Relations, Indian Reform, Constitutional and International Law 1916–1935 (OUP 1935) 55–56, 354. It is likely that such conclusions were even more unwelcome in the Irish Free State than the assertion originally made by Cave.
  • Cave ordered an investigation of British government fles to ascertain claims that the Irish Free State had been promised In 1922 that Irish appeals to the Privy Council would follow the restrictive practice employed with respect to appeals from South Africa. Cave found no evidence to support these claims. In any case he concluded, ‘I have no doubt that if a similar application [to that in Lynham v Butler] had been made in a South African case, leave would have been granted’: TNA: PRO CAB 24/174 SFC 54 (26), Memorandum by the Lord Chancellor, 25 February 1926.
  • TNA: PRO LCO 2/910, Lord Chancellor to Dominions Secretary, 3 February 1926.
  • TNA: PRO DO 117/3, Lord Chancellor to Dominions Secretary, 29 January 1926.
  • TNA: PRO DO 117/3, Memorandum on the Irish Free State and the Privy Council, 29 January 1926.
  • TNA: PRO LCO 2/910, Lord Chancellor to Dominions Secretary, 3 February 1926. For Irish attitudes towards the power of reservation, see Dáil Debates 4 October, vol 1, cols 1168–89.
  • TNA: PRO CAB 24/178 SFC 54 (26), Memorandum by the Lord Chancellor, 25 February 1926.
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926. Cave is often misquoted in this capacity as having described the Irish measures as ‘effective and ingenious'. For example, see NAI: Department of the Taoiseach, S4285B, Memorandum for the Imperial Conference 1930, undated.
  • TNA: PRO CAB 24/178/85, Memorandum by the Lord Chancellor, 25 February 1926.
  • Cave was forced to admit to the House of Lords that neither the British government nor the courts could prevent the enactment by the Oireachtas of the blocking legislation. This was not strictly true. The power of reserving assent for the Irish Land Bill was available but its use was not deemed wise. Cave did tell the House of Lords that if the Irish government tried to expand on this measure a ‘different condition of affairs would arise’. HL Deb 3 March 1926, vol 63, col 407.
  • Nadan v The King [1926] AC 482 (PC). The other judges who heard the appeal were Lord Dunedin, Lord Shaw, Lord Phillimore and Lord Blanesburgh.
  • The Colonial Office had considered the option of recommending the disallowance, or vetoing, of the Canadian Criminal Code 1888 on the basis of the dubious legality of s 1025. This course of action was rejected although the doubts with respect to this provision remained: TNA: PRO TS 27/678, Colonial Secretary to Governor-General of Canada, 12 November 1888. The British Government also turned a blind eye when the Code of 1888 was amended In 1892 to further clarify the prohibition of appeals to the Privy Council in criminal matters: TNA: PRO TS 27/678, Risley to Greenwood, 24 July 1925.
  • Attorney-General for Ontario v Daly [1924] AC 1011 (PC). This appeal was heard by Lord Cave, Lord Haldane, Lord Dunedin, Lord Carson, Lord Blanesburgh and Lord Shaw. See also Toronto Railway Company v The King [1917] AC 630 (PC).
  • Nadan v The King [1926] AC 482 (PC) 491.
  • For example, see Manitoba Free Press (Manitoba, 18 March 1926; 5 April 1926).
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • WPM Kennedy, ‘The Imperial Conferences 1926–1930' (1932) 48 Law Quarterly Review 191, 207
  • National Archives of Canada: RG 25, vol 3418, 1–1926/6, Notes on the Imperial Conference, 1926. The decision in Nadan is also linked to the Irish Free State in KC Wheare, The Statute of Westminster and Dominion Status (OUP 1953) 120.
  • Krikorian (n 7) 306.
  • TNA: PRO TS27/678, Pleadings in Nadan v The King, 10, 11, 14 December 1925.
  • Barnes and Nicholson (n 43) 530.
  • UCD Archives, Costello Papers, P190/94, Memorandum on Lynham v Butler. These assurances were based on arguments that Imperial statutes, such as the Judicial Committee Act 1844 and the Colonial Laws Validity Act 1865, did not apply to the Irish Free State: see Thomas Mohr, ‘The Colonial Laws Validity Act and the Irish Free State' (2008) 43 Irish Jurist 21.
  • The priority given to this question is underscored by the fact that, while the other reforms sought by the Irish delegates at the Imperial conference of 1926 were contained in a single memorandum, a separate document was devoted to the sole question of the Privy Council appeal: UCD Archives, Blythe Papers, P24/217, Memorandum on the Judicial Committee of the Privy Council; see also Seanad Debates 24 February 1926, vol 6, col 413.
  • For example, see DW Harkness, The Restless Dominion: the Irish Free State and the British Commonwealth of
  • Nations 1921–31 (Macmillan 1969) ch 6.
  • Letter from DB Macrae, journalist of the Manitoba Free Press, to his editor, JW Dafoe, 21 November 1926: see Ramsay Cook, ‘A Canadian Account of the 1926 Imperial Conference' (1965) 3 Journal of Commonwealth Political Studies 60, 60–61. Macrae's account is also repeated in Harkness (n 92) 114 and Krikorian (n 7) 326. TNA: PRO LCO 2/3465, Memorandum on Imperial Conference, 1926, 13 October 1926.
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • ibid.
  • [1926] AC 482 (PC).
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • NAI: Department of Foreign Affairs, EA1/26: memorandum by JP Walsh, 21 April 1926.
  • For example, see DW Harkness (n 92) 114.
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • TNA: PRO LCO 2/3465, Imperial Conference 1926: Appeals to the King in Council, 1 November 1926; TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • Imperial Conference, 1926: Summary of Proceedings (Cmd 2768, 1926) 19–20. Similar restrictions were placed on Dominion acceptance of the compulsory arbitration of the Permanent Court of International Justice, a court that was often seen as a potential competitor in terms of jurisdiction with the Judicial Committee of the Privy Council: ibid 28. The Irish Government had to be satisfed with a statement in the conference report that ‘it was no part of the policy of His Majesty's Government in Great Britain that questions affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of the Empire primarily affected’: ibid 19. In reality, this statement provided nothing that had not been said to the Irish by British politicians during the negotiations on the Irish Constitution In 1922 or by the Privy Council itself when dealing with Irish appeals. For example, see the comments made by Lord Haldane when hearing the three petitions in Hull v M'Kenna [1926] IR 402 (PC) 404. AB Keith referred to it as ‘the usual, it must be feared insincere, declaration’: Keith, Responsible Government in the Dominions (n 69) 1230.
  • Keith, Responsible Government in the Dominions (n 69). William Lyon Mackenzie King was Prime Minister of Canada between 1921 and 1926, 1926 and 1930, and 1935 and 1948.
  • [1927] AC 674 (PC). The judges who heard this appeal to the Judicial Committee included Lord Cave, Lord Haldane, Lord Finlay and Lord Dunedin.
  • Wigg and Cochrane v Attorney-General of the Irish Free State [1925] 1 IR 149 (SC).
  • RFV Heuston, Lives of the Lord Chancellors 1885–1940 (Clarendon 1964) 441.
  • [1927] AC 674 (PC) 683.
  • HL Deb 25 April 1928, vol 70, col 832.
  • Heuston (n 111) 442.
  • HL Deb 25 April 1928, vol 70, cols 834–41. Sir Claude Schuster claimed that Cave had been in a state of physical distress during the hearing of Wigg, which, in all probability accounted for the mistake: TNA: PRO LCO 2/910, Memorandum by Sir Claude Schuster, 6 November 1930. It should also be noted that Lord Haldane was also unwell and approaching death during the decision in Wigg. He died on 19 August 1928: Heuston (n 111) 236–37.
  • In re Transferred Civil Servants (Ireland) Compensation [1929] AC 242 (PC). This case was heard by the Lord Reading, Lord Phillimore, Lord Hanworth, Lord Alness and Anglin CJ.
  • Dáil Debates 31 October 1929, vol 32, cols 31, 665; Irish Independent (Dublin, 14 November 1928); Irish Times (Dublin, 15 November 1928).
  • The association of this dispute with Article 10 of the Anglo—Irish Treaty of 1921 ensured that parallel legislation passed in Dublin and at Westminster ultimately proved to be necessary: Civil Service (Transferred Officers) Compensation Act 1929 (Ireland); Irish Free State (Confirmation of Agreement) Act 1929 (UK).
  • Judicial Committee (Dissenting Opinions) Order 1966, SI 1966/1100.
  • With respect to Lynham v Butler, see HL Deb 3 March 1926, vol 63, col 403. See also TNA: PRO LCO 2/910, Lord Chancellor to Dominions Secretary, 3 February 1926; NAI: Department of the Taoiseach, S11749, Shorthand Notes of Petition for Leave to Appeal in Lynham v Butler, 7 December 1925. With respect to Wigg, see HL Deb 25 April 1928, vol 70, cols 834–41; Heuston (n 111) 442.
  • For example, see the remarks of Desmond FitzGerald, Minister for External Affairs, claiming that ‘the recent pronouncement of Lord Cave in the King versus Nadan brings out the danger of relying too entirely in advancement through constitutional usage’: UCD Archives: FitzGerald Papers, P80/450, Desmond FizGerald to Oscar Skelton, Under-Secretary in the Canadian Department of External Affairs, 9 June 1926. See also the reference to the ‘remarkable declaration of Lord Cave’ in UCD Archives: Blythe Papers, P24/217, Memorandum Drafted by the Department of External Affairs in Preparation for the Imperial Conference of 1926, undated.
  • Dáil Debates 10 October 1922, vol 1, col 1404. See also the letter from Kevin O'Higgins to Thomas Johnson (22 September 1922) published in the Irish Times (Dublin, 23 September 1922). George Gavan Duffy claimed In 1922 that the restrictions achieved by the Irish Provisional Government would ensure that no appeal would ever go to the Judicial Committee of the Privy Council from the Irish Free State: Dáil Debates 10 October 1922, vol 1, cols 1413–14.
  • TNA: PRO LCO 2/910, Lord Chancellor to Dominions Secretary, 3 February 1926.
  • NAI: department of the Taoiseach, S11749: shorthand notes of petition for leave to appeal, Lynham v. Butler (1926), 7 December 1925; Wigg v Attorney-General for the Irish Free State [1927] AC 674 (PC); Judicial Committee of the Privy Council, Irish Free State (Agreement) Act 1922 (Cmd 2214, 1925); Performing Right Society v Bray Urban District Council [1930] AC 377 (PC).
  • TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926.
  • Dáil Debates 27 January 1926, vol 14, col 134. See also Dáil Debates 3 February 1926, vol 14, cols 342, 386; Seanad Debates 24 February 1926, vol 6, col 439. By 1930 the Irish were raising the possibility of the Permanent Court of International Justice acting as arbiter of the 1921 Treaty in preference to the Judicial Committee of the Privy Council: Dáil Debates 26 February 1930, vol 33, cols 836, 893–94, 897–98, 911–14).
  • The fear that this scenario might become reality was raised by Kevin O'Higgins at the Imperial Conference of 1926: TNA: PRO CAB 32/56 E(IR-26), 4th Meeting, 2 November 1926. See also Dáil Debates 3 February 1926, vol 14, col 338; Seanad Debates 24 February 1926, vol 6, col 409.
  • The office of Lord Chancellor was reformed by the Constitutional Reform Act 2005.
  • HL Deb 30 November 1922, vol 52, cols 166–67.
  • HL Deb 3 March 1926, vol 63, cols 394–422.
  • Krikorian (n 7) 329.
  • John A Costello, then Attorney-General of the Irish Free State, wrote that the Judicial Committee had a ‘political tinge’ and supported this by noting that it was ‘formed of people who are at one and the same time Judges and Politicians': UCD Archives: Costello Papers, P190/94, Notes on the Memorandum Prepared for the Imperial Conference of 1926 on Appeals to the Privy Council, undated. Patrick McGilligan, the Irish Minister of External Affairs, made a radio broadcast In 1930 that asked, ‘Are not the British government and parliament still in a position to interfere in Irish affairs through this purely British Court, the majority of whose judges have most violently opposed the liberation of the Irish people?’: UCD Archives: McGilligan Papers, P35/108, Radio Broadcast, 9 November 1930. Darrell Figgis, one of the most prominent figures on the committee that drafted the first Irish Constitution, wrote that the expectation of impartiality from a tribunal with such political links was ‘a fool's dream’: Figgis (n 7) 54; see also the remarks of Professor Magennis at Dáil Debates, 10 October 1922, vol 1, col 1406. These suspicions filtered down to opinion pieces in Irish periodicals in which the Privy Council was described as the ‘pocket tribunal of the English political party in power’: McEgan (n 7). Kevin O'Higgins, the first Irish Minister for Justice, told the Oireachtas that ‘[i]t is the Lord Chancellor who assigns the judges who are to try every and any case that is sought to be brought to the Judicial Committee of the Privy Council, and the Lord Chancellor while a very eminent lawyer is none the less a politician and a member of the Cabinet’: Seanad Debates 24 February 1926, vol 6, col 409.
  • For example, see AB Keith, The Constitutional Law of the British Dominions (n 69) 271–72. For a contrasting view of the independence of the Irish judiciary, see TNA: PRO LCO 2/3465, Imperial Conference 1926, Appeals to the King in Council, 1 November 1926. Some commentators ridiculed the very idea of the judges of the Privy Council being directly influenced by the British Government. For example, see TNA: PRO LCO 2/910, Memorandum by Sir Claude Schuster, 6 November 1930.
  • The expectation that Irish appeals would be exceptional events was also shared by AB Keith, one of the leading authorities on British Imperial law: see authorities cited at n 69.
  • TNA: PRO LCO 2/910, Lord Chancellor to Dominions Secretary, 3 February 1926.
  • TNA: PRO LCO 2/3465 Imperial Conference 1926, Appeals to the King in Council, 1 November 1926.
  • Desmond FitzGerald, Minister for External Affairs, was convinced that the Privy Council had actually ‘double-crossed’ the British Government in the case of In re Transferred Civil Servants (Ireland) Compensation [1929] AC 242 (PC): UCD Archives: FitzGerald Papers, P80/1411, Desmond FitzGerald to Mabel FitzGerald, 6 November 1930.
  • Wigg v Attorney-General for the Irish Free State [1927] AC 674 (PC).
  • Barnes and Nicholson (n 43) 539.
  • [1929] AC 242 (PC).
  • Barnes and Nicholson (n 43).
  • [1935] AC 484 (PC). The case of Moore v Attorney-General for the Irish Free State provides examples of the two indicators identified by Krikorian (n 7) 332 as suggesting the possibility that a decision of the Judicial Committee had been influenced by political considerations as well as legal ones. The first indicator is the presence of the Attorney-General for England and Wales acting as intervener in the case. The Attorney-General for England and Wales, Sir Thomas Inskip, appeared before the Judicial Committee during the pleadings in Moore v Attorney-General for the Irish Free State. The second indicator concerns instances in which the Privy Council denied the applicant leave to appeal but nevertheless passed comment on the validity of the legislation raised by the case. This also occurred in Moore v Attorney-General for the Irish Free State. It should also be noted that the practice of the Attorney-General for England and Wales appearing as an intervener in a Privy Council appeal was by no means unusual. This had also occurred in Toronto Railway Company v The King [1917] AC 630 (PC) and Attorney-General for Ontario v Daly [1924] AC 1011 (PC). The Attorney-General for Ontario was also an intervener in Attorney-General for Ontario v. Daly as was the Attorney-General of Canada in Nadan v The King [1926] AC 482 (PC).
  • HC Deb 14 November 1933, vol 281, cols 726–27.
  • For example, see HC Deb 10 July 1935, vol 304, cols 441, 443.
  • [1925] 2 IR 231 (PC).
  • Wigg v Attorney-General for the Irish Free State [1927] AC 674 (PC).
  • [1926] AC 482 (PC).
  • Hull v M'Kenna [1926] IR 402, 404 (PC). The judges who heard this petition for leave to appeal were Lord Haldane, Lord Buckmaster and Lord Parmoor.
  • [1925] 2 IR 231 (PC).
  • Heuston (n 111) 239.
  • HL Deb 3 March 1926, vol 63, col 409.
  • Heuston (n 111) 216, 236.
  • HL Deb 3 March 1926, vol 63, col 412.
  • Mallet (n 32) 251.
  • ibid 201, 222.
  • ibid 201.
  • Wigg v Attorney-General for the Irish Free State [1927] AC 674 (PC).
  • [1929] AC 242 (PC).
  • For example, see Mallet (n 32) 319–21. Cave's deathbed note of 26 March 1928 states that ‘m opinion in the decision of Wigg v. Pattison [sic] (on the bonus point) was probably wrong in law Heuston (n 111) 442.
  • See Heuston (n 111) 442.
  • TNA: PRO LCO 2/910, Memorandum by Sir Claude Schuster, 6 November 1930.
  • Mallet (n 32) 320.
  • [1926] AC 482 (PC).
  • The Privy Council also held that the powers of the Canadian Parliament were confned to matter falling within the frontiers of that Dominion: Nadan v The King [1926] AC 482 (PC), 492. The decision suggested that Canadian legislation could not circumscribe the jurisdiction of a tribun that sat in London and was, therefore, outside the frontiers of the Dominion of Canada. This aspect of the judgment in Nadan is open to challenge: see Thomas Mohr, ‘The Foundations of Irish Extra Territorial Legislation’ (2005) 40 Irish Jurist 86.
  • [1925] 2 IR 82 (PC).
  • Hull v M'Kenna [1926] IR 402 (PC), 405.
  • HL Deb 3 March 1926, vol 63, col 405. See also David B Swinfen, Imperial Appeal (Manchester UP 1987) 96.
  • For example, see TNA: PRO CAB 23/30/10, Conclusions of Cabinet Meeting, 2 June 1922; Thomas Jones, Whitehall Diary: Vol III (OUP 1971) 206.
  • HL Deb 21 March 1922, vol 49, col 689; HL Deb 29 March 1922, vol 49, cols 942–43.
  • Judicial Committee of the Privy Council, Irish Free State (Agreement) Act 1922 (Cmd 2214, 1925).
  • Heuston (n 111) 423.
  • Herbert Bentwich, quoted in The Times (London, 14 August 1933) and in McEgan (n 7) 738.

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