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

In 1926 Kevin O’Higgins, the Irish Minister for Justice, asked his parliamentary colleagues to consider the utility of the Irish appeal to the Judicial Committee of the Privy Council. In particular he asked them to consider ‘whether it is a good court, whether it is a useful court, whether it is a necessary court’.1 O’Higgins’ uncompromising conclusion was that it was ‘a bad court, a useless court, an unnecessary court.’2 These remarks are indicative of the unhappy history of the appeal to the Privy Council from the Irish courts in the 1920s and 1930s. Irish nationalists regarded the Privy Council appeal as a serious affront to Irish sovereignty. In addition, many Irish people perceived the Privy Council as being biased against the new self-governing Irish state.3 In 1922 Michael Collins, the leader of the Irish Provisional Government, stressed that there was a strong feeling prevailing in Ireland against the Privy Council on the grounds that several of its judges had publicly displayed hostile attitudes to the embryonic Irish state.4 There is evidence that a substantial portion of the protestant minority of the Irish Free State did value the appeal to the Privy Council from the Irish courts. However, claims that the Privy Council appeal was necessary as a safeguard for the rights of the minority community tended to offend members of the majority Catholic community and increased suspicions of bias. Irish governments insisted that safeguards of this nature were unnecessary in the new Irish Free State.5 Perceptions of the Judicial Committee of the Privy Council as a court that was inherently biased against the Irish Free State fuelled the opposition of Irish governments to the appeal throughout the 1920s and 1930s.