Thomas Mohr, Guardian of the Treaty: The Privy Council Appeal and Irish Sovereignty
| Published date | 01 May 2018 |
| Pages | 325-327 |
| DOI | 10.3366/elr.2018.0498 |
| Date | 01 May 2018 |
| Author |
From the inception of the Irish Free State in 1922 until 1935, the final court of appeal from that state was the Privy Council of the United Kingdom. In this carefully researched book, Prof Mohr sets out the background to the creation of this form of appeal and discusses its history before considering the specific case of the Irish appeal. As the author observes, “It is clear that the origins of the Irish appeal were not without elements of stealth and deception”. Probably because of their own political requirements, the Irish signatories of the treaty that brought an end to the Anglo-Irish war agreed that there should be no explicit reference to the appeal in that document on which was based the constitution of the new state. Its creation was opposed on almost all sides in the Free State and it continued to be resented throughout its existence. Opposition based on the absence of an explicit reference to such an appeal overlooked the historical background. Each of the three home bills over the previous half century had included one, so British insistence on it cannot have come as a surprise. In Ireland, the appeal was seen by nationalists as an affront to Irish sovereignty and a possible method by which there might be interference in the internal affairs of the new state. There were also concerns that members of the court would be unsympathetic to Irish interests. This was not far-fetched as three members of the court had strong Unionist sympathies. Lord Carson had led Ulster opposition to the pre-war home rule bill and, like Lord Sumner, had denounced the Treaty in parliamentary debates despite their positions as law lords. However, they had the sense not to sit on Irish appeals which could not be said for Lord Cave who, in addition to a history of opposition to home rule, was the Home Secretary responsible for the decision to circulate Casement's “black diaries”.
The British case for the appeal was twofold: a tribunal was needed to deal with the interpretation of the treaty; and the appeal was intended to give reassurance to the protestant minority. It was suggested that there would be few appeals, some going so far as to suggest that there might be no more than one or two in a decade. The first petitions for leave to appeal did seem to bear this out. Lord Haldane in his preliminary remarks indicated that the Privy Council was reluctant to interfere where the issue was one that could be “best determined on the spot” and the court dismissed the three...
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