Moore v Attorney General for the Irish Free State

JurisdictionUK Non-devolved
Judgment Date06 June 1935
Date06 June 1935
Docket NumberCase No. 22
CourtPrivy Council
[PRIVY COUNCIL.] MOORE AND OTHERS APPELLANTS; AND THE ATTORNEY-GENERAL FOR THE IRISH FREE STATE AND OTHERS RESPONDENTS. ON APPEAL FROM THE SUPREME COURT OF THE IRISH FREE STATE. 1935 June 6. VISCOUNT SANKEY L.C., LORD ATKIN, LORD TOMLIN, LORD MACMILLAN, and LORD WRIGHT.

Right of Appeal to His Majesty in Council - Competency of the Irish Free State Legislature to abrogate the right - Irish Free State Constitution Act, Amendments No. 6 and No. 22 of 1933 - Irish Free State Constitution Act, 1922 (13 Geo. 5, Sess. 2, c. 1), arts. 12, 50 and 66 - Constituent Act - Treaty - Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63) - Statute of Westminster, 1931 (22 Geo. 5, c. 4), s. 2.

The prerogative right of appeal to His Majesty in Council from the Supreme Court of the Irish Free State has been effectively abrogated by the Irish Free State Constitution (Amendment) Act, 1933.

The Treaty and Constituent Act scheduled to the Irish Free State Constitution Act, 1922 (13 Geo. 5, Sess. 2, c. 1), being parts of an Imperial Act, form parts of the statute law of the United Kingdom.

Before the passing of the Statute of Westminster it was not competent for the Irish Free State Parliament to pass an Act abrogating the Treaty, because the Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63), forbade a Dominion Legislature to pass a law repugnant to an Imperial Act. The effect of the Statute of Westminster was to remove the fetter which lay upon the Irish Free State Legislature by reason of the Colonial Laws Validity Act. The Irish Free State Legislature can now pass Acts repugnant to an Imperial Act.

Petition dismissed.

PETITION for special leave to appeal.

The appellants claimed to be the owners of a fishery in the tidal waters of the Erne. The respondents were a number of local fishermen. The action was brought to restrain them from trespassing. The Attorney-General for the Irish Free State was added as a party. The claim was allowed by the trial Court. The decision of the trial Court was reversed by the Supreme Court of the Irish Free State on July 31, 1933. In the same year, on August 9, a Bill was introduced in the Dail Eireann having for its object the termination of the right of appeal to His Majesty in Council from the Irish Free State Courts. On September 29 the appellants presented a petition to His Majesty in Council for special leave to appeal from the judgment of the Supreme Court. On October 9 their Lordships of the Judicial Committee decided to humbly advise His Majesty to grant special leave. On October 31 an amendment to the Bill was moved in the Irish Senate to extend the Bill to pending proceedings. On November 10 an order was made by His Majesty in Council granting the appellants special leave to appeal. On November 15 the Bill, including the amendment extending it to pending proceedings, was passed by the Irish Free State Parliament as The Constitution (Amendment No. 22) Act, 1933. The appellants thereupon presented this petition praying to have it declared that Amendment No. 22 was void and did not bar their appeal.

1934. Dec. 3, 4. 1935. Jan. 9, 10, 11. Wilfrid Greene K.C. and Blanco White for the petitioners. In considering constitutional powers, it is material to ascertain the origin and development of the Constitution. The facts may be conveniently taken from Mansergh: “The Irish Free State, Its Government and Politics.” Reference was made to the Treaty, the Government of Ireland Act, 1920 (10 Geo. 5, c. 67), the Irish Free State (Agreement) Act, 1922 (12 Geo. 5, c. 4), the Constituent Act passed by the third Dail, October 25, 1922, and the Irish Free State Constitution Act, 1922 (13 Geo. 5, Sess. 2, c. 1).

Legal effect was given to the Treaty and the Constituent Act by the Irish Free State Constitution Act, 1922, and the Constitution derives its validity and legal force from this Act. The two questions which arise are: (1.) Whether it is competent to the Irish Legislature to pass legislation inconsistent with the Treaty; and (2.) Whether it is competent to diminish the Royal prerogative. Article 1 of the Treaty provided that the Irish Free State should have the same constitutional status in the British Empire as Canada, and article 2 that its relations with the Imperial Parliament should be the same as the Canadian. The oath, which is significant of the Imperial aspect of the Constitution, was provided for in article 4 of the Treaty and incorporated in article 17 of the Constitution Act. Article 50 of the Constitution Act provided for amendment of the Constitution within the terms of the Treaty. The Constitution (Amendment No. 6) Act of 1933, which purported to abolish the oath and to delete the words “within the terms of the Treaty” from article 50, was incompetent, because the Irish Legislature could not pass an Act repugnant to the Treaty: The State (Ryan and Others) v. Lennon and Others (Supreme Court, December 19, 1934, unreported). There was no express provision in the Treaty regarding the right of appeal to His Majesty in Council, but this right is preserved by the proviso to article 66 of the Constitution Act. The Irish Legislature was incompetent to abolish this right not only because, as part of the Canadian Constitution, it was impliedly incorporated in the Treaty and its abolition would be repugnant to the Treaty, but also because it would be an interference with the Royal prerogative, which cannot be affected except by an Imperial statute and by express words or necessary implication. The power to legislate for the peace, order and good government of the Free State must be construed as power to legislate consistently with the Treaty and would not include the power to affect the prerogative. The Statute of Westminster does not make it competent to a Dominion to legislate on classes of subjects which before the Statute were outside its competence. The power to repeal or amend Imperial Acts is not extended by s. 2 to repeals or amendments which would have effect outside the Dominion. The Statute does not expressly or by necessary implication confer the power to affect the Royal prerogative. The Constitution (Amendment No. 22) Act which is now in question purports to amend the Constitution in so far as that preserves the right of appeal, but it does not repeal the Judicial Committee Acts, which, in creating a statutory body to advise the King, recognize the prerogative.

[Webb v. OutrimF1; Macleod v. Attorney-General for New South WalesF2 were referred to.] The present case is sui generis because of the Treaty, which not only conferred rights, but imposed obligations. If Amendment No. 22 is competent, it would follow that the Irish Free State could repeal the whole of the Constitution Act. The Statute of Westminster does not enable the abrogation of the Treaty as merely a part of the law of the Irish Free State.

Sect. 6 deals with only one aspect of the prerogative. The British North America Act gave power to set up a Supreme Court, but no power to take away the prerogative: Nadan v. The King.F3 That the Canadian Legislature can deprive Canadian Courts of the power to grant leave to appeal to His Majesty in Council may be conceded. It cannot take away the prerogative right to grant special leave. The power to affect the prerogative depends on the Constitution, not the Statute of Westminster. Sect. 2 of the Statute does not extend the powers of the Dominions so far as to enable them to interfere with the prerogative. It merely removes certain restrictions. In the case of Australia and South Africa express power is given to diminish the right of appeal. In New Zealand power is given to legislate for peace, order and good government. The prerogative does not fall within that: e.g., the prerogative of mercy. In some instances the prerogative has been decentralized and the power to grant leave to appeal has been abridged: Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick.F4 A local Legislature can deprive itself of the power to grant leave to appeal but cannot affect the Royal prerogative to grant special leave. It is the privilege of the subject to petition the King and the prerogative of the King to entertain the appeal: Bentwich, 2nd ed., p. 56, and Nadan v. The King.F3 Power to legislate for peace, order and good government does not include the power to prevent the subject from applying for special leave to appeal, because that would be an indirect interference with the prerogative and the subject cannot be deprived of the right of appeal by indirect...

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    ...when the disappointed Plaintiffs sought to appeal the decision to the Privy Council: Moore & ors v. Attorney General of Ireland & ors [1935] I.R. 472., which is the last occasion on which a judgment of that court is to be found in the Irish reports. 56 In Little v Cooper [1937] I.R. 1, it......
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    ...Irish Free State derived from the statutes of the imperial parliament: see the advice of Viscount Sankey L.C. in Moore v Attorney General (1935) IR 472 at pp. 486–487. The Supreme Court of Saorstát Éireann were in no doubt that this view had no place in Irish law and that the powers of the......
  • Costello v The Government of Ireland, Ireland, and The Attorney General
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    ...and the validity of that constitutional amendment was upheld by the Privy Council in Moore v. Attorney General of the Irish Free State [1935] IR 472 in a judgment delivered in June 1935. It is perfectly clear from the case-law of the Privy Council up to its abolition that that body exercise......
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1 books & journal articles
  • Thomas Mohr, Guardian of the Treaty: The Privy Council Appeal and Irish Sovereignty
    • United Kingdom
    • Edinburgh University Press Edinburgh Law Review No. , May 2018
    • 1 May 2018
    ...abolition of the appeal to the Privy Council was not without an element of farce. In Moore v Attorney General for the Irish Free State [1935] AC 484 (the Erne Fisheries Case) the Privy Council upheld the validity of the legislation abolishing the appeal in a case where the Irish government ......

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