I confess that the presentation of this Bill has left me in a position almost of greater difficulty than any matter that has come my way since the opening of this legislature. I repeat now what I said on the First Reading, and I accept the lead that has been given by the Minister, in expressing my view that the Courts of Saorstát Eireann should be the final Courts of Appeal in any matter affecting the citizens of Saorstát Eireann. But the form of the Bill seems to me to raise a different issue, and one which, so far as the argument has gone, leads me to feel that I cannot support the Second Reading. I am still waiting for guidance on the matter, but so far as the explanation has gone, it seems to me that the method of arriving at the conclusion that the Minister desires is a bad one and should not be followed. The Minister asked us on the First Reading to confine our attention to the issues raised on that First Reading, really constitutional issues, but he has gone some way at least to discuss the merits of the case Lynham v. Butler.
I do not pretend to understand that case, nor do I intend to follow it to any extent. I would perhaps say, fearing lest an unintentional phrase of the Minister might mislead the House, that in this case at any rate it was the poor man made the appeal and not the rich man. The case is not a case of a person against the State. It is a case of two citizens of the Saorstát, and I am very much perturbed by the proposition that we should be asked to intervene to declare that the law is so and so, between two stages of a lawsuit between two citizens. The Land Act of 1923 was passed, and it is presumed that all citizens understand the law. At least I should say it is no excuse, no defence, that a citizen does not understand the law. The Constitution Act was passed in 1922. Whatever the rights and privileges given under the Land Act of 1923 to either tenant or landlord, the Constitution Act gave certain rights and privileges to individual citizens. Now we are asked in this Bill to say that the interpretation as set forth in the judgment of the Supreme Court here is the law, but the assumption behind the Minister's case is that there is no need for the legislature to make any such declaration of what the law is, as he pointed out more than once that this Bill is not a Bill to remove a doubt. The law is as the Supreme Court decided. But we are asked now to say in other words that the law is as the Supreme Court decided. In other words, we are asked to be interpreters of the law as well as the makers of the law. That is not the function, I think, of the legislature. It would be quite competent, probably quite right, for us to say that such and such shall be the law, but I am afraid it is very bad for us to be asked to say that such and such is the law and was the law two or three years ago. We are asked to say: "It is hereby declared and enacted that the Principal Act shall be construed and have effect and be deemed always to have had effect as if the words `which is at the passing of this Act' were inserted therein immediately after the words `means land.' "
In the discussion on the Committee Stage of this Bill an amendment may be proposed to delete the words "which is at the passing of this Act" and insert the words "which is at the appointed day," and the whole issue between these two litigants would require to be discussed. I think that is most undesirable, a very bad precedent, and quite improper, especially in view of the fact that the Bill is introduced between one stage and another stage of law proceedings. It is implied in the Minister's argument that the final stage has been completed, against which there should be no appeal, but the very production of this Bill and the arguments used seem to me to admit that there is a constitutional right of appeal on such a case as this, to the Privy Council. If that is admitted, then by all means no such Bill as this should be brought forward to be retrospective in its action. Litigants were entitled to read the Constitution Act, which contains the proviso in question:
"Nothing 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."
If there is a right indicated by the Legislature, notwithstanding all the promises, notwithstanding the assumption, notwithstanding all the conventions, all the convictions that such and such a thing would not happen so far as the citizens are concerned, that was present to him, and not the promises of Ministers across the water. It seems to me, if we are admitting, and I contend that the very production of the Bill in that form is admitting, the right of appeal, we ought not to come in as a Legislature between two courts to prejudice the last court by saying that the previous court's judgment was the law.
Supposing we had a different view of what the law is. It is quite conceivable. Supposing the Legislature took the view that Mr. Justice Johnston expressed rather than that of the majority of the court. He said: "I regret I am obliged to take a different view. I am unable to find anything in the Act which affects the right of a person in the position of the plaintiff to recover this land in the interval between the passing of the Act and the appointed day," and he dissents from the decision of the majority. As I say, supposing it were put forward from the Ministerial Bench that the minority judgment was really the law, or should have been the law, or really was what the Oireachtas intended, that it made a mistake in its phraseology, and that they brought forward a Bill of this kind to say that the Principal Act shall be construed and have effect as though it had always been in the terms which the minority judgment decided. We would have been just as wrong as we are in this proposition. I am submitting that the method the Minister is adopting of arriving at the purpose which he wants to arrive at, is utterly wrong, bad from every point of view, and that we should not be asked to take that course.
Well, saying all that, I want to add that, in my view, there is no right of appeal, and further that if the Privy Council issues a judgment, whatever that judgment may be, it should be the position of the Executive in this country to take no notice of it. Now, if it is intended to take a strong line in this matter, and to stand by our contention that the right of appeal to the Privy Council in this kind of case, or in any other class of case, should not prevail, then we ought not to take notice of, or execute the judgment, or the reports or decrees or whatever the term may be, of the Privy Council, and that we ought to affirm, if necessary by a resolution of the Dáil, that the judgments of the Supreme Court are final so far as the Executive Government in Ireland is concerned.
The Dáil might well say: "We will not provide the money to any authority in Ireland to execute the judgment of any court outside of Ireland." A resolution of that kind from the Dáil will be just as effective an estoppel as anything proposed in this Bill, and would be much more dignified, much more in accord with the will of the people as I understand it, and would not be doing an injustice to any citizen; and, further, would not set a precedent as to the method of interfering with the Judiciary. I think it is a most lamentable proposition that the Legislature should be invited, between two stages of a lawsuit, to declare what the law was on a certain date. If we have confidence in our Judiciary we have to trust them to interpret the meaning of an Act of Parliament, or we have to alter the Act of Parliament. We can pass a Bill of this kind to have effect as from the date of its passing. That is perfectly right and perfectly in order. But I think it is very wrong to pass a Bill of that kind, and to say that it shall be deemed to have been always the law, so as to tie the hands of the Supreme Court, because, on the assumption of the Minister, the Privy Council is, in fact, the superior court.
I would like to suggest that the right that is suggested or that is referred to in this proviso has no value and should not excite the anxiety of Ministers, and should not lead to the introduction of a Bill of this kind. The Minister said that, at the time of the conversations between the British Ministers and the Provisional Government respecting the Constitution, this question of the appeal to the Privy Council was dealt with and that the prerogative was still in existence at the time of the discussion of the Constitution provisions. I would like the Minister, later on, to support that statement, if he can, or I would like him to admit what. I think, is more near the truth, that the prerogative did not exist in respect of the citizens of Ireland. On the question of Article 66 itself and against that proviso, I would even put the first Article of the Treaty which is of more importance and which reads:—
"Ireland shall have the same constitutional status in the community of Nations known as the British Empire as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand and the Union of South Africa, with a Parliament having powers to make laws for the peace, order and good government of Ireland, and an Executive responsible to that Parliament, and shall be styled and known as the Irish Free State."
To me, it seems that the Parliament which has powers to make laws for the peace, order and good government, and the Executive responsible to it, is the only authority in this country to decide any question between citizen and citizen. And if it is contended that the Constitutional status of these various Dominions has a bearing upon the powers of a judicial court outside Ireland, then we are immediately confronted with the question as to which of those Dominions, because the judicial question differs in respect of one and the other. I say that that particular reference has only value in respect of what one might call State relations. But there was a long argument stated in an English review by the late Deputy Figgis, inspired, as I believe, by very high legal opinion in 1923. I think it is no harm to invite the attention of the Ministers and of the Dáil to the general lines of that argument because it is of very great weight. Some Deputies here will bear me out when I say that at the time of the discussion on this Article 66 of the Constitution very eminent counsel indeed informed us that so far from impairing a right, there was no right; and therefore it could not be impaired and therefore we need not trouble about the effect of this proviso.
All the assumptions in Lord Haldane's review of the law are that the Free State position is that of a dominion. He calls it a dominion, not a country with the status of a dominion within the British Commonwealth, but as a dominion, and he compares it with South Africa, Canada, Australia and New Zealand, forgetful of the very important fact that the history and development of these countries in relation to Great Britain was very different indeed from that of Ireland. The development from a colony to a dominion naturally and inevitably led to an enlargement of the powers of the courts of those countries. But the whole history of the appeal to the Privy Council in respect of the colonies as they were, has its roots in the fact that they were colonists, people who emanated from Great Britain, and wanted some appeal from, shall I call them, the immature courts of the early colonial days. And they were distinguished by that fact from the rights of citizens of Great Britain who had not an appeal to the Privy Council but appealed to the Court of Parliament, to the House of Lords.
All this legal argument that I am referring to shows, and I think very convincingly, that the position of Ireland in respect of appeals of this kind was identical with the position of England, not with the position of any colony, and therefore not with the position of any dominion; that the highest Court of Appeal was the Court of Parliament, not the Privy Council. There have been, of course, very long and acrimonious, and very violent disputes in days long passed between the Parliament of Ireland and the Parliament of Great Britain on this very question.
I will just quote a case which is very illuminating, especially in view of this discussion; it is an historical case that has had a great deal written about it, and it led to a conflict between the two Parliaments. It was the case of Sherlock and Annesley. Annesley, against whom the House of Lords in Ireland had decided, carried his appeal in 1712 to the English House of Lords. There he won his case and the English House of Lords instructed the Irish Court of Exchequer to put Annesley in possession of the estate he claimed. This also was a land case. But when the court issued its order, Alexander Burrows, Sheriff of County Kildare. stubbornly declined to execute an order contrary to that of the House of Lords of his country. Fined £1,200, he brought his case before the House of Lords in Ireland. Appealed to in this matter, the Irish Lords took the counsel of the judges of the country, who declared that the Irish House of Lords, and the Irish House of Lords alone held the final and conclusive right of judicature for Ireland. So fortified, the Irish Lords declared their rights in a resolution of their House, extolled the Sheriff for his vigour, addressed a strong representation to the King and proceeded to imprison the Barons of the Exchequer.
There was litigation, there was conflict. There was a new Act passed in England to counter and supersede the action of the Irish House of Lords. Then we had the case of Grattan's Parliament deciding that no power outside Ireland had any right to legislate or to administer the law. Then came the Union, and there was no interregnum in which citizens of Ireland had any appeal to the Privy Council; they had appeal only to the High Court of Parliament, the House of Lords. If we are co-equal members of the British Commonwealth we are equal with England even in that respect, and citizens of this State are equally entitled to appeal only to courts within this State. As we have no House of Lords, our final Court of Appeal is our Supreme Court of Justice.
On that showing, and I think it can be defended by other arguments, this proviso which speaks of impairing rights has no effect; no right exists and therefore you cannot impair it. It assumes a right to exist which, in fact, does not exist. I believe the right course for the legislature here to take, the right course for the Government to take, is to assert that there is no such right of appeal as is indicated, except with the consent of the legislature, which will mean, of course, that we will have to define the class of case which may be appealed. I am not suggesting that that should be done, but it is a method of meeting what, notwithstanding the avowals, is implied in this Bill. In my view the very introduction of this Bill, and certainly the passing of it, would mean an agreement that there was a right, even in domestic cases, to appeal to the Privy Council.
I feel that the Bill ought not to be proceeded with. If it is proceeded with I think it would be doing injustice and I think it would be setting a precedent of very great danger. It will mean that at any time when a judgment has been delivered by the High Court a Minister may come along, or an individual Deputy may come along, and endeavour to get passed a Bill declaring that the law was so and so. That, surely, nobody would pretend was justified; yet that is exactly what is happening here. If it is going to be admitted that there is a right to appeal to the Privy Council implied in this Article of the Constitution, then we have to make the most of it and accept the results of our legislation, no matter what promises were made. If this Dáil, or the Constituent Assembly preceding this Dáil, decided that there was a right, or at least decided that nothing should impair the right, if there was a right, then we should confirm it and we ought to take the consequences of that act and proceed to amend the Constitution. That is not being done by this Bill and I feel that unless there is very much more convincing justification made in favour of this method of arriving at a conclusion which I myself approve of very definitely, I cannot support the Second Reading.