The Birth of an Independent Ireland
It was in 1169 that the Norman rulers of England first came to Ireland with a view to conquering its people and making the island an English possession. In 1177 King Henry II of England made his young son, the future King John, the first Lord of Ireland, and all subsequent English monarchs held that title until the Parliament of Ireland, by the Crown of Ireland Act 1542, conferred the kingship of Ireland on the then English monarch, Henry VIII. From then until 1801 the same individual was King of England and King of Ireland but there was no political union between the two countries. Such a union was created between Scotland and England in 1707, forming the Kingdom of Great Britain, and in 1800 a further Act of Union added Ireland to that political union to form the United Kingdom of Great Britain and Ireland. This meant that from 1 January 1801 the powers to make legislation for Ireland rested solely with the Parliament at Westminster in London and the highest court dealing with Irish cases was the House of Lords in London—more specifically the Appellate Committee of the House of Lords, which was eventually put on a statutory footing in 1876.1
Following substantial clamour in favour of ‘home rule’ for Ireland, which had already led to three previous attempts to enact legislation,2 devolution was eventually brought about by the Government of Ireland Act 1920. This was achieved, however, at the cost of dividing the island into two separate jurisdictions because the predominantly Protestant population in the north-east did not want as broad a degree of home rule as the predominantly Catholic population in the rest of the island. The six counties in the north-east were therefore renamed Northern Ireland and continued to form a constituent part of the United Kingdom, albeit with their own Parliament to which substantial law-making powers were transferred. The remaining 26 counties on the island became Southern Ireland. They too were to be given their own Parliament with substantial devolved powers. The original plan was that Southern Ireland would also remain a part of the United Kingdom, but ongoing civil unrest in the 26 counties put paid to that idea.
In the 1918 general election to the Westminster Parliament, 73 of the 105 seats in Ireland had been won by representatives of Sinn Féin, a party which favoured the complete independence of Ireland from Great Britain.3 Rather than take their seats in London, these elected representatives established their own Irish Parliament in Dublin, which they called the first Dáil Éireann (‘Assembly of Ireland’). They also set up a separate court system from that which already existed—the Dáil Éireann courts.4 An armed struggle to achieve a greater degree of autonomy—the War of Independence—was then waged from 1919 to References(p. 8) 1921, resulting in approximately 1,230 fatalities.5 A truce was called on 11 July 1921 and a peace settlement, the Anglo-Irish Treaty, was signed on 6 December 1921. Under this treaty, Southern Ireland was to be renamed the Irish Free State (Saorstát Éireann) and to become a self-governing dominion within the British Empire, a status comparable to that of Australia, Canada, Newfoundland, New Zealand and South Africa. The status of Northern Ireland was unaffected.
As a result of the Anglo-Irish Treaty the devolution arrangements provided for in the Government of Ireland Act 1920 were abandoned as far as the south of Ireland was concerned. The Treaty was ratified by Parliament at Westminster on 16 December 1921 and narrowly approved by the second Dáil Éireann6 on 7 January 1922 (by 64 votes to 57), but since the British government did not recognise the Dáil as a legitimate parliamentary assembly it insisted that the Treaty also be put before a meeting of the members entitled to sit in the House of Commons of Southern Ireland, that is, the 128 persons who had been elected in May 1921 when, as required by the 1920 Act, elections were held throughout the island. Only the 64 pro-Treaty members of the Dáil, together with the four MPs for Dublin University who were unwilling to attend the Dáil, were present at that meeting on 14 January 1922 and the Treaty was unanimously approved. It was given the force of law by the Westminster Parliament through the Irish Free State (Agreement) Act 1922, which received Royal Assent on 31 March 1922. This Act authorised the establishment of a provisional government7 as well as a provisional parliament in Dublin, and later that year the former asked the latter—the third Dáil Éireann, elected on 16 June 1922,8 but sitting as a Constituent Assembly rather than as a law-making body—to approve the draft Constitution of the Irish Free State.
The draft Constitution had been produced by a committee which first met on 24 January 1922 and was published on 15 June 1922.9 The third Dáil conferred its approval on 25 October 1922 and on 5 December 1922 the Westminster Parliament passed the Irish Free State (Constitution) Act 1922 to confirm the adoption of the new Constitution. King George V issued a Royal Proclamation on 6 December 1922 formally bringing the Constitution into force. That was exactly a year after the signing of the Anglo-Irish Treaty, the maximum time which the Treaty had allowed for the formation of the new State. Irish independence, therefore, can be said to formally date from 6 December 1922.10 On that day the former provisional government became known as the Executive Council. The original head of the provisional government, Michael Collins, had been assassinated by anti-Treaty forces on 22 August 1922, so the position of President of the Executive Council was taken up by William Cosgrave, Collins’ successor as Chairman of the provisional government.
References(p. 9) The Evolution of the Court System in Ireland
The intention of the Government of Ireland Act 1920 was that after partition the court systems in each part of Ireland would remain very much as they had been since the rationalisation introduced in the 1870s by the Supreme Court of Judicature (Ireland) Act 1877, which mirrored legislation introduced a few years earlier for England and Wales.11 Before the 1920 Act came into force on 3 May 1921 the highest court sitting in Ireland was the Court of Appeal, but on that date it was divided into the Court of Appeal of Northern Ireland and the Court of Appeal of Southern Ireland. Final appeals from either court could lie to the High Court of Appeal for Ireland and thence to the House of Lords in London.12 Although all of these appeal courts tended to adhere quite strictly to the doctrine of precedent, they were not obliged to do so by law: ‘the following of precedent in former superior Irish courts did not originate as a common law or statutory rule—it was in fact a custom that derived from judicial comity (as in England)’.13 They would depart from previous decisions if those decisions failed to refer to relevant legislation or other authorities, but the need to avoid an intolerable degree of uncertainty in the law was also a strong motivating factor for following their predecessors.
Irish influence in the House of Lords
It is worth noting that Irish influence in the House of Lords was still significant: between the statutory recognition of the House’s appellate jurisdiction in 1876 and the partition of Ireland in 1921 seven of the 22 judges appointed as Lords of Appeal were men who had qualified as Irish barristers.14
The first three of the seven were all graduates of Trinity College Dublin: Lord FitzGerald, a former Liberal Party MP for Ennis in County Clare, served from 1882 to 1889; Lord Macnaghten, a former Conservative MP for Antrim in the North of Ireland, served from 1887 to 1913; and Lord Morris, a former Liberal Party MP for Galway, served from 1889 to 1899. The next Irishman to be appointed was Lord Russell of Killowen, from County Down in the North of Ireland: he was another former Liberal MP, first for Dundalk and then for South Hackney in London, before becoming the Attorney General for England and Wales. In 1894, after just a month as a Lord of Appeal, he was appointed as Lord Chief Justice of England.
The fifth Irish man appointed, in 1905, was Lord Atkinson, a Northerner who was a Conservative MP for Londonderry; he served for 23 years. Lord Collins, yet another Northerner, was Master of the Rolls in Ireland (head of the Court of Appeal) before being appointed a Lord of Appeal in 1907 and serving until 1910. The final Irishman appointed before the partition of Ireland was Lord Edward Carson, a prominent Ulster unionist, who sat as a Lord of Appeal from 1921 to 1929. At partition, therefore, two of the six Lords of Appeal then in office were from Ireland—Lords Atkinson and Carson, both very much of a unionist disposition.15 No openly nationalist person with an Irish background was ever appointed to the Appellate Committee.
References(p. 10) The Constitution and the Dáil Éireann courts
Article 64 of the Constitution of the Irish Free State, which came into force on 6 December 1922, provided that the Oireachtas (the Irish Parliament) must establish public courts comprising ‘Courts of First Instance and a Court of Final Appeal to be called the Supreme Court’. The Courts of First Instance were to include a High Court, with full original jurisdiction in all civil and criminal matters, and also courts of local and limited jurisdiction. By Article 66 the Supreme Court was, ‘with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law’, to have appellate jurisdiction from all decisions of the High Court. Moreover by the same provision all decisions of the Supreme Court were to be final and conclusive, incapable of being reviewed by any other authority. By Article 75, one of the transitory provisions in the Constitution, pending the establishment of the new courts existing courts were to continue to exercise the same jurisdiction as before, and any judge of any such court, unless wanting to resign, was to continue to hold office on the same terms. The provisions of Article 66 concerning the finality of decisions taken by the proposed new Supreme Court were in the interim to be applied to decisions of the Court of Appeal.
In fact, no legislation was enacted setting out the exact powers and duties of the proposed new courts until the Courts of Justice Act was passed in 1924, taking effect on 6 June. For part of the interim period, operating illegally alongside the official courts, there was a remarkable system of ‘republican courts’.16 As Casey has shown, the process by which these came to be established in various parts of the country after the first meeting of Dáil Éireann on 21 January 1919 is rather obscure, as so few contemporary records survive, but in May 1920 ‘rules of arbitration’ were finalised for use within parish and district republican courts.17 Kotsonouris has charted developments thereafter, highlighting the issuing of a decree by Dáil Éireann on 29 June 1920 which authorised the sitting of civil and criminal courts throughout the country, even though they often had to be held in secret for fear of attracting the attention of the police.18 The (unofficial) Department of Home Affairs then issued a document entitled Judiciary, which primarily contained rules and forms for the parish and district courts but also made several references to a Supreme Court.19 The Supreme Court was to sit in Dublin and have jurisdiction ‘over the Republic’. It was to consist of not less than three judges who, after the first appointments, were to be legally qualified persons of at least 12 years’ standing (unless the Department of Home Affairs determined otherwise ‘for special reasons’). They were to hold office for life and be removable only by special decree of the Dáil passed by a two-thirds majority. Where a case of exceptional public importance came before the Court it could direct that it be heard by a full Court, consisting of not less than two judges of the Supreme Court and two Circuit Court judges. In such cases, if there was an equality of votes, the President of the Supreme Court was to have a casting vote.
By September 1920 four senior professional judges were in place to help regularise the Dáil Éireann courts. They were James Creed Meredith (a King’s Counsel with a doctorate in philosophy), Arthur Clery (a professor of law at University College Dublin), Cahir Davitt (an enthusiastic young barrister practising mainly in Connaught) and Diarmuid Crowley (a contemporary of Davitt practising mainly in Munster). Meredith and Clery were made members of the Supreme Court of the Irish Republic and allocated an annual salary of References(p. 11) £750; Meredith, indeed, was made President of the Supreme Court. Davitt and Crowley were Circuit Court judges, hearing cases mainly outside Dublin. On one occasion Judge Crowley was arrested and prosecuted for participating in the courts, serving two years in prison as a result. Davitt occasionally sat with Meredith and Clery in the Supreme Court in Dublin.20 As the intensity of the War of Independence wound down in the early months of 1921 the Dáil Éireann courts began to operate more openly and continued to do so up until the completion of negotiations leading to the Anglo-Irish Treaty in December. Kotsonouris notes that immediately after being released from prison in November Crowley returned to his job as a republican judge.21
The Dáil Éireann Supreme Court was given both an appellate jurisdiction and an original jurisdiction. The former catered for appeals from the Circuit Court on questions of law in civil cases, equity cases, criminal cases (if the appellant was convicted by a Circuit Court Judge in an earlier appeal) and Land Commission cases. The Supreme Court’s original jurisdiction was to be exercised either by the whole Court or by any member of it and covered matters such as applications for an order of habeas corpus or bail, applications from any party or District Judge to hear a civil or criminal case or applications to change the venue of any civil or criminal case. Sadly, there is a lack of surviving evidence as to how frequently the Supreme Court sat and what kind of legal reasoning its judges engaged in.
The Anglo-Irish Treaty did not mention the outlawed courts and after Dáil Éireann voted to approve the Treaty on 7 January 1922 the Provisional Government directed that all pre-existing official courts should continue to carry out their functions ‘unless and until otherwise ordered’.22 Yet at the same time instructions were sent to those operating the unofficial courts to keep them running. What’s more, additional judges were appointed to sit in those courts, such as Cecil Lavery, a future Supreme Court judge. As a high number of litigants insisted on taking advantage of the republican Supreme Court, Dáil Éireann itself had to direct, in April 1922, that an application by a litigant to prevent his or her opponent from proceeding with a case in the official courts should be granted only if the full Supreme Court approved of it.23
As tensions rose between the pro-Treaty and anti-Treaty factions of Sinn Féin and the prospect of a civil war beckoned, the provisional government attempted to crack down on the unofficial courts. Judge Meredith, presiding in the Supreme Court, announced on 13 July 1922 that the Dáil Éireann cabinet had advised that no further sittings of the Supreme Court should take place until the judicial system could be properly reconstructed, presumably as intended in the draft Constitution published a month earlier. Less than two weeks later, on 25 July 1922, the Provisional Government decided to repeal the decree of Dáil Éireann of 29 June 1920, thereby marking the end of this separate system of unofficial courts.24 The process for completing the cases already begun, and for dealing with appeals against decisions by unofficial parish and district courts outside Dublin which the decision of 29 June 1920 had exempted from abolition, has been painstakingly detailed elsewhere and need not divert us now.25 Suffice it to note that one of the principal architects of the process was none other than James Creed Meredith, the former President of the Dáil References(p. 12) Éireann Supreme Court. It fell to him, as Chief Judicial Commissioner of Ireland, to wind up the Dáil courts efficiently. When the Courts of Justice Act 1924 came into force he was appointed a judge of the High Court, where he remained for 13 years before serving for an additional five years as a judge of what was by then the official Supreme Court of Ireland. In 1925 the Dáil even provided pensions for outgoing members of the Dáil Supreme Court.26
The Judiciary Committee 1923
The Courts of Justice Act 1924 was largely the result of work carried out by a Committee appointed by the Executive Council (ie, the government). As announced to the Dáil by William Cosgrave on 30 January 1923, the precise terms of reference of the Committee were:
To advise the Executive Council of Saorstát Éireann in relation to the establishment in accordance with the Constitution of Courts for the exercise of the judicial power and the administration of justice in Saorstát Éireann, and the setting up of the offices and other machinery necessary or expedient for the official conduct of legal business.27
The Judiciary Committee, as it became known, consisted of 12 members, including the chairman Lord Glenavy, formerly known as Sir James Campbell. Campbell had served as the Lord Chief Justice of Ireland from 1916 to 1918 and as the last Lord Chancellor of Ireland from 1918 to 1921. He was therefore very much a member of the British establishment but he let it be known that he was sympathetic to home rule for Ireland. He was undoubtedly a hugely experienced legal practitioner with an intimate knowledge of the details of the Irish legal system.28 He later claimed that without hesitation he found his experience as Chair of the Judiciary Committee to be the happiest of the many curious experiences he had had in a long and varied career,29 although he was certainly not universally admired.30 The other members of the Committee were the head of the Court of Appeal (Charles O’Connor MR), four other judges (James Creed Meredith and Cathaoir Mac Dáibhid [Cahir Davitt] of the Supreme Court of Dáil Éireann, Judge Johnston from the High Court and District Justice Lughaidh Breathnach [Louis Walsh]), the Attorney General (Aodh Ua Cinneidigh [Hugh Kennedy]), two practising barristers (Timothy Sullivan and John O’Byrne), two solicitors (Patrick Brady and Henry Murphy) and the President of the Dublin Chamber of Commerce (William Hewat). In his letter to each of these members, written the day before his announcement in the Dáil and published at the start of the Committee’s report, William Cosgrave (named as Liam Mac Cosgair) stressed that ‘there is nothing more prized among our newly won liberties than the liberty to construct a system of judiciary and an administration of law and justice according to the dictates of our own needs and after a pattern of our own designing’.31 Cosgrave added that the current system for administering law and justice was ‘a standing monument of alien government’ and he urged the Committee to approach their task ‘untrammelled by any regard to any of the existing system of judicature in (p. 13) this country’. As it turned out, however, ‘the pattern of our own designing’ was in the end not very different from the pattern of British designing.
The Committee had its first sitting on 2 February 1923 and signed off its report on 25 May 1923. Its report was unanimous, but comprised just 26 pages, including preliminary documents. It recommended the establishment of a District Court (to replace the petty sessions courts), a Circuit Court (to replace the County Courts), a High Court and a Criminal Appeal Court (to replace the former Supreme Court of Judicature) and a Supreme Court of Appeal (to replace civil appeals to the Court of Appeal and any further appeals to the House of Lords or Privy Council). Somewhat disingenuously, and very unhelpfully, the report used the fact that its conclusions were agreed unanimously to support its statement that ‘we have not thought it necessary to set out the reasons upon which our recommendations are based’.32
The section of the report on ‘the Supreme Court of Appeal’ covers just over two pages.33 It proposed that the Supreme Court should consist of a President and two Judges, with the President of the High Court being an additional ex officio member,34 and that one or more High Court judges should be eligible and required to sit in the Supreme Court if the President of that Court so requested because, owing to its difficulty or importance, an appeal needed to be heard by a court of five judges. The report also recommended that a member of the Supreme Court should preside in the Criminal Appeal Court, sitting alongside two High Court judges.35 The Supreme Court itself should hear appeals from decisions of the High Court and deal directly with motions for a new trial or judgment in ‘nisi prius’ cases, that is, cases heard by the High Court outside Dublin. To be appointed a judge of the High Court or Supreme Court a person should have practised at the Bar for at least 12 years, although time served as a Circuit judge would be deemed to be practice at the Bar. The proposed salary for Supreme Court judges was £3,000 per year, with the President of the Court receiving an additional £1,000.36
On none of these matters is the Committee’s report at all detailed. There is absolutely no discussion of how any other country—least of all other British dominions—had chosen to organise their court systems. Neither the long experience of the USA nor the much shorter experience of the new democracies which emerged from the peace treaties following the First World War37 was alluded to. More generally, the Committee does not appear to have considered what role the new Supreme Court might be encouraged to play in the development of the Irish Free State. This was despite the fact that Article 65 of the Constitution expressly conferred on the High Court the power to rule on ‘the validity of any law having regard to the provisions of the Constitution’, and Article 66 presumed that the Supreme Court would be able to consider appeals against all such rulings. This meant that the Supreme Court would be the final arbiter of whether any law, even one enacted by the national parliament, was valid. This was a notion which was completely alien to the British legal tradition, where Diceyan logic maintained that supreme power lay with Parliament and not with any court. It is not clear to what extent members of the Committee considered the experience of other common law countries before deciding what option to take on this issue.
References(p. 14) Supreme Courts Elsewhere at this Time
By 1924 none of the five other British dominions had created legal systems which gave the last word on the constitutionality of legislation to a domestic court. But nor did the Constitutions of those jurisdictions confer complete sovereignty on domestic legislatures. The essence of ‘dominion’ status was that such entities were still subject, in legal theory at least, to the mother country—the United Kingdom. The dominion legislatures had power to make laws for ‘the peace, order and good government’ of the territories,38 but some residual law-making power was retained in London. More particularly, changes to the Constitutions of the dominions could occur only if Westminster consented to those changes. In addition, if a dispute arose within a dominion as to whether a law was valid or not the body which would ultimately decide the question was not the highest court in the dominion but the Judicial Committee of the Privy Council in London. That was the court, statutorily recognised since 1833,39 which traditionally heard appeals from jurisdictions created by British overseas expansionism.40 The one foreign common law court which had retained for itself the supreme authority over its country’s legislature and government was the US Supreme Court. Yet the report of the Irish Free State’s Judiciary Committee made no reference to that or any other overseas court.
In 1924 the Supreme Court of Canada was approaching its fiftieth birthday.41 From 1875 it had comprised six judges, two of whom were drawn from the civil law system of Quebec. A seventh seat would be created in 1927, and two more in 1949, the year in which appeals to the Privy Council from Canada were finally abolished. The size of the Canadian Supreme Court has remained unchanged since then. But it took some time for the Court to win credibility after it was first created. In MacKinnon’s words, its early years were ‘extremely troublesome’.42 By the mid-1920s it had still not found its feet, primarily because the shadow of the Privy Council still hung over it. In addition, most of its judges were not particularly activist. More to the point, if anyone in Ireland had been keen to model the Irish Supreme Court on its Canadian equivalent, there was little literature on the latter around which to fashion such imitation. Even as late as 1964 a future Chief Justice of Canada, Bora Laskin, was still lamenting the lack of attention given to its work:
… it is clear that the Court has not hitherto been regarded by the public at large as a potent element in Canadian self-government … It is a fact that hardly anything has been written about its doctrine, and only recently has there been any professional curiosity manifested about its jurisdiction … Indeed, neither the Court itself nor (with a few exceptions) its judges have been subjected to appraisal in any book or article.43
Laskin did add, perhaps disingenously, that in the area of constitutional doctrine the Court ‘has given adequate proof of responsible utterances’,44 but in his subsequent exegesis he makes it clear that only after the abolition of appeals to the Privy Council was References(p. 15) the Canadian Supreme Court truly ‘free to adopt its own canons of judicial behaviour’.45 Prior to then:
The Court as a whole appeared loath to strike out in new directions except where the Judicial Committee itself had given a lead … The task of the Supreme Court was not to interpret the constitution but rather to interpret what the Privy Council said the constitution meant.46
Similar concerns were raised by others. Cheffins described the Supreme Court as ‘playing a rather moderate role’; he thought it was ‘being by-passed as an important arena for the making of vital constitutional decisions’.47 Weiler was more severe in his critique, which he summed up in one short sentence: ‘Our judges share an outmoded and unduly narrow conception of the role of law in courts.’48 McCormick writes that in 1950 ‘the Supreme Court of Canada was a minor blip on the Canadian political scene … The 1950s and 1960s saw flickering moments of promise but little in the way of substantial change’.49
The disregard of the Canadian Supreme Court by the Irish Free State’s Judiciary Committee is nevertheless surprising given that the Anglo-Irish Treaty of 1921 makes several references to Canada as the constitutional model which the Irish Free State should follow. Article 2, for example, provided that:
The first Chief Justice of Ireland, Hugh Kennedy, was to pay tribute to the Canadian model when he addressed the Canadian Bar Association in 1928, but his remarks relate more to the role of the Crown, parliament and government than to the judiciary.50
By the Commonwealth of Australia Constitution Act 1900, enacted by the Westminster Parliament, the name given to the country’s Federal Supreme Court was ‘the High Court’.51 Its first judges were sworn in on 6 October 1903. They were granted original jurisdiction, usually exercised by a single judge, as well as appellate jurisdiction, usually exercised by all the judges. From 1903 to 1906 the Court had three judges, from 1906 to 1912 it had five, and from 1912, except for the period from 1931 to 1942 when it was reduced to six, it had seven, the number which it still maintains today.
The High Court’s original jurisdiction included matters in which the Commonwealth of Australia itself was suing or being sued and matters between States within the Commonwealth, between residents of different States or between a State and a resident of another State.52 Its appellate jurisdiction included appeals from any decision of the High Court itself when exercising its original jurisdiction, from any other federal court, from the Supreme Court of any Australian State and from the Inter-State Commission.53 The 1900 Act added that, until the Australian Parliament provided otherwise, conditions already attaching to appeals to the Privy Council from Supreme Courts of Australian States should References(p. 16) apply to appeals from the High Court,54 but unless the High Court itself gave leave to appeal no appeal was to lie to the Privy Council against decisions on the limits of the constitutional powers of the Commonwealth compared with those of any State or on the limits of the constitutional powers of any two or more States.55 In other cases the Crown’s prerogative to grant special leave to appeal from the High Court to the Privy Council was preserved, as it had been in Canada.56
In the years leading up to the mid-1920s the Australian High Court exerted its authority more ostentatiously than the Canadian Supreme Court managed to do. This mostly manifested itself in decisions on what constituted ‘judicial power’ for the purposes of the 1900 Constitution.57 Thus, in New South Wales v The Commonwealth (the Wheat case) the High Court found that the conferment of adjudicatory powers relating to inter-State trade and commerce on the Inter-State Commission, an institution provided for by section 101 of the Constitution, was unconstitutional,58 and in In re Judiciary and Navigation Acts the High Court struck down a provision in the Judiciary Act 1903 purporting to confer on the High Court the power to issue advisory opinions on whether any Act of the Commonwealth Parliament was valid.59 More generally, in R v Kidman the High Court held that the Federal Parliament had the power to make even criminal laws operate retrospectively.60 In addition, in the landmark case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers case) the High Court departed from established case law concerning the powers and immunities of State governments in order to hold that the Commonwealth of Australia, representing the Crown, was bound to adhere to the Constitution, which should be interpreted in a traditional common law fashion, that is, literally.61 In this decision the relevance of precedents from the US Supreme Court was denied and the Australian Constitution came of age as a fundamental law. This was just four years before Ireland enacted its Courts of Justice Act 1924.
Ellison Kahn, writing in 1960,62 gives a clear account of the structure and powers accorded to the Supreme Court of South Africa by the South Africa Act 1909.63 The supreme courts of the former colonies of Cape Colony, Natal, Orange River Colony and Transvaal became provincial divisions of the Supreme Court of South Africa, which comprised an Appellate Division, Provincial Divisions and Local Divisions. The seat of the Appellate Division, controversially, was placed in Bloemfontein, the relatively remote capital of the province of Orange Free State (formerly Orange River Colony). The Appellate Division at first comprised a Chief Justice, two permanent ‘ordinary judges of appeal’ and two additional judges of appeal who would be assigned to the Court as required from its Provincial or Local Divisions, but in 1920 the labels of ‘ordinary’ and ‘additional’ judges were dropped64 and the Supreme Court simply comprised the Chief Justice and four judges of appeal. The normal quorum was three judges, but in appeals from a court where two or more judges had sat, the quorum was first set at five and then, after 1927,65 at four. The number of seats on the Court References(p. 17) was gradually increased over the years and in 1996 the Appellate Division was renamed the Supreme Court of Appeal of South Africa. Today it has a President, a Deputy President and 23 other judges.66
In line with British Diceyan tradition, the South Africa Act 1909 did not confer any powers on South African judges to review legislation. Section 59 declared that the country’s Parliament ‘shall have full power to make laws for the peace, order, and good government of the Union’, but the Supreme Court soon issued a self-denying ordinance in R v McChlery, where it held that whether an Act of Parliament met that criterion was a matter to be determined by Parliament itself and not by any court.67 By the mid-1920s the Supreme Court had not issued any decisions which would have illuminated the path for Irish politicians who were seeking a special role for the Irish Supreme Court. Following the ending of apartheid in 1994 and the adoption of a new Constitution in 1996, the Supreme Court of Appeal of South Africa no longer deals with constitutional issues at all. Instead these are reserved for the Constitutional Court some 400 miles away in Johannesburg.68
Newfoundland and New Zealand
The two remaining dominions, although more similar to Ireland in terms of size of population, would have had little to offer the Irish Free State’s Judiciary Committee during its deliberations in 1923. They became dominions in 1907 and their courts were no more powerful than those in the other dominions. In 1924 appeals from Newfoundland still went to the Judicial Committee of the Privy Council and indeed in that year the Council was in the midst of dealing with a long-running dispute between Newfoundland and Quebec as to where exactly the boundary should be drawn between them.69 New Zealand preserved its links with the Privy Council until the twenty-first century. A Supreme Court was set up in 2004 to replace the role of the Privy Council70 but the final decision by the Privy Council in a dispute originating in New Zealand was made as recently as 2015.71 The relationship of New Zealand and of Ireland to the former colonial power has always been very different.
European nations and the USA
As Leo Kohn points out, by 1924 the power to judicially review legislation was still a relatively recent development anywhere in Europe:
… until the new era of constitution-making which followed the European war, the conception of the review of legislation, judicial or otherwise, was not generally accepted on the Continent … It was essentially the American Courts—heirs to the traditions of the Common Law Judiciary—which established the doctrine that the Acts of the Legislature could be reviewed by an independent agency as to their conformity with the Constitution and that this power was vested in the civil Courts.72
References(p. 18) Kohn observed that in the USA ‘[i]ndividualistic interpretations of liberal principles have thwarted measures of social reform enacted with the strong support of legislature and electorate’ and that it was therefore not surprising that the constitutions of new European nations had vested judicial review in special Constitutional Courts ‘of semi-political composition’.73 Strange as it may seem, it is possibly one of these European courts that most influenced the introduction of constitutional review in the Irish Free State. The Constitution of Austria, agreed in 1920, expressly provided for judicial review of legislation and created a Constitutional Court (Verfassungsgerichtshof) with the remit of adjudicating on applications for such review.74 Ireland’s 1922 Constitution was the next European constitution to provide for such review. As to whether the US Constitution was indirectly influential remains controversial. While the Irish Constitution was being drafted a letter was apparently written to a British administrator, Lionel Curtis, by Professor Felix Frankfurter, later a US Supreme Court Justice from 1939 to 1962, inquiring whether the provision on judicial review was derived from the USA’s experience. Unfortunately there is no record of any reply to this letter.75
At the time Kohn was writing (1932) the power of constitutional review had been used only once to limit the applicability of an Act of the Oireachtas. This was in the Court of Appeal’s decision in R (O’Brien) v Military Governor of the North Down Union Internment Camp.76 Mrs O’Brien had been interned by the army and she claimed this was unlawful, firstly because there was no state of war or rebellion in Ireland at the time and secondly because the detention could not be justified under the Public Safety (Emergency Powers) Act 1923 because that Act had been passed just a day before the Court’s hearing and was still liable to be suspended if enough members of the Oireachtas took advantage of the provisions of Article 47 of the 1922 Constitution.77 Molony CJ and Ronan LJ agreed with these arguments and ordered Mrs O’Brien’s release. They did not accept that the 1923 Act was exempt from Article 47, because no evidence had been produced that both Houses of the Oireachtas had deemed it to be an Act necessary for the immediate preservation of the public peace, health or safety. The State’s legal team in this case included Hugh Kennedy and Timothy Sullivan, but Ronan LJ rejected their interpretation of the legislation as ‘ridiculous and absurd’.78 The State, however, had the last word because a day after the Court’s decision it secured the enactment of the Public Safety (Emergency Powers) (No 2) Act 1923, which set out the text of the earlier Act in a Schedule and declared in section 2(1) that the second Act was ‘necessary for the immediate preservation of the public peace and safety and accordingly the provisions of Article 47 of the Constitution of Saorstát Eireann shall not apply to this Act’.
Leo Kohn rightly predicted that the power of constitutional review would not be frequently used as long as the Free State’s Constitution permitted amendments to be made References(p. 19) to it by ordinary legislation79 but that thereafter the judges’ interpretation of fundamental declarations in the Constitution ‘may indeed be fraught with profound import’.80
The Courts of Justice Act 1924
Less than three weeks after receiving a copy of the Judiciary Committee’s report in May 1923 William Cosgrave wrote to Lord Glenavy to express the Executive Council’s thanks for the quality and swiftness of the Committee’s work.81 He announced that a Bill would be introduced in the Dáil at an early date ‘on the lines of your report’. The Courts of Justice Bill was indeed given a first reading in the Dáil on 31 July 1923, but its passage could not be completed prior to the general election on 27 August and so it had to receive another first reading in the new Dáil on 20 September.82 Unfortunately the Dáil and Seanad debates on the legislation, which eventually emerged some seven months later, reveal no greater consciousness of other countries’ court systems than the Judiciary Committee itself had displayed. Nor was anything said about the way in which the new Supreme Court might use its power to declare legislation unconstitutional.
The most interesting intervention in the debates was by Lord Glenavy himself, one of whose roles at the time was that of Deputy Speaker (Leas-Chathaoirleach) in the Seanad. In January 1924 he said that members of the Dáil did not yet realise the tremendous constitutional change that had been made as a result of the Treaty and the Constitution:
It is one that tends to the permanent liberty and security of the subject. It is a protection that no member of the Dáil or no member of the Seanad should allow to be lightly tampered with or interfered with, because it contains within itself the greatest charter of liberty that any country or any nation could wish or hope to have. I refer to the fact that the Constitution has adopted the great theory, call it what you like, of the United States and Canada, and of most modern Governments, that is to say, they have reduced the Constitution of the Irish Free State into writing, and they have, in addition to that, created by statute, and by the Constitution, the principle that our judges in the future are to be ‘independent in the exercise of their functions’.83
These exaggerated claims for the benefits of a written Constitution and an independent judiciary had little to do with the architecture of the court system or the actual powers of the Supreme Court as provided for in the Bill which was under debate. They also left out of account the outstanding feature of the US Supreme Court, which is that it can strike down legislation that is deemed to be contrary to the federal Constitution, a power which the US Supreme Court claimed for itself in Marbury v Madison,84 there being no provision to that effect in the 1789 Constitution.
Lord Glenavy did add that in his view ‘the permanent guarantee and the basis of all personal freedom and of liberty in the USA is to be found in the courage and the conscience of the Courts and their perfect freedom from all Government control’. While he conceded that in theory this was what the Irish Free State’s Constitution also provided for, he did not cite the Court of Appeal’s decision in O’Brien,85 or any other decision, as an example of the judicial conscience operating in Ireland. Instead he merely railed against the References(p. 20) government’s proposal to allow the Minister for Home Affairs, in conjunction with the Minister for Finance and with the concurrence of certain members of the courts, to make Rules of Court (including for the Supreme Court) through which supposedly independent judges were to exercise their jurisdiction as regards pleading, practice and procedure. He thought such humiliation of the judiciary was unprecedented,86 and was especially upset at the prospect of the government telling the judges what kind of costume they should wear in court,87 there having been a recent press report that the Attorney General (Hugh Kennedy) wanted to dispense with judges’ wigs and gowns.
Despite being supported in part by at least two other senators,88 Lord Glenavy’s concern about judicial independence was dismissed by William Cosgrave, who was attending the Seanad debate as President of the Executive Council. Cosgrave pointed out that the Minister for Home Affairs would still be unable to make Rules of Court without the concurrence of the Rules Committees and that under clause 97 of the Bill Rules of Court would in any event have to be laid before each House of the Oireachtas. In March 1924 there was a long debate in the Seanad on an amendment proposed by Samuel Brown which would have deleted the clause authorising Rules of Court to be made but after fraught exchanges involving Seanad personalities such as William Butler Yeats and Oliver St John Gogarty,89 the amendment was defeated by one vote and the clause was allowed to stand.90 Shortly afterwards the Attorney General appeared before the Seanad and won approval for an amendment to clause 97 requiring each House of the Oireachtas to approve draft Rules of Court before they could come into operation.91
The Courts of Justice Act 1924 very much reflected more generally the proposals in the 1923 report. Considerable thought was given to reform of the lower courts, but remarkably little attention was paid to the higher courts. It does not seem to have occurred to the politicians, or to their legal advisers, that the Supreme Court would be acquiring powers which could make it at least as significant a player in the building of the new nation as the government and the legislature. The spirit of the times, steeped as it was in the Diceyan glorification of the sovereignty of Parliament, simply did not envisage a Supreme Court which would actively develop a peculiarly Irish approach to constitutional review.92 It is interesting, too, that no mention was made in the parliamentary debates of the role which the Judicial Committee of the Privy Council would continue to play in Ireland’s legal system. Of course the Irish Supreme Court has never become anything like as powerful an institution as the US Supreme Court: the Oireachtas did not want it to develop into a body which might restrict the right of elected representatives to shape the country as they thought best. Contrary to what might have been in the minds of the members of the Judiciary Committee in 1923, any presumption that the doctrine of parliamentary sovereignty was being put to death in Ireland was very wide of the mark.
The first three judges of the Supreme Court were appointed on 5 June 192493 and the Court began operating immediately. The first of its decisions to be reported in the Irish Reports was Keelan v Garvey,94 where the Court overturned Molony LCJ’s decision and confirmed References(p. 21) a man’s title to a farm in County Monaghan which he had abandoned in 1897 but to which he had returned in 1923 after his wife’s death. A decision taken a few months earlier was reported shortly after Keelan v Garvey. This was In re the Estate of Sir E C Nugent,95 which was about whether particular land was excluded from the Land Commission’s vesting powers conferred by the Land Act 1923. In the early years of the life of the Supreme Court most of the cases considered were as humdrum as those two.
2 These were the Government of Ireland Bills of 1886 and 1893, which failed to get the approval of the House of Lords in its capacity as the second chamber of Parliament, and the Government of Ireland Act 1914, which, although receiving Royal Assent, was never brought into force because of the outbreak of the First World War in August 1914 and the Easter Rising in Dublin in April 1916.
3 For details of this crucial election see www.ark.ac.uk/elections/h1918.htm. Each of three Sinn Féin candidates stood, and were elected, in two different constituencies.
6 This parliament comprised the 125 Sinn Féin MPs who on 24 May 1921 had won seats in the proposed parliaments for Northern Ireland (six) and Southern Ireland (119).
7 It had already been functioning since 16 January 1922.
8 Of the 128 persons elected, 35 were anti-Treaty Sinn Féin candidates led by Éamon de Valera, and they refused to take their seats.
9 For details of the drafting process see Farrell (1970–71); more generally onthe creation of the Free State see Curran (1980); for the pre-1922 constitutional history of Ireland see Donaldson (1957) Chap 2.
10 The ‘illegal’ first Dáil proclaimed its own Declaration of Independence at its inaugural meeting on 21 January 1919, so many Sinn Féin supporters consider that to be the founding date of Ireland’s independence. For a fascinating exploration of what is Ireland’s ‘Independence Day’ see Mohr (2018).
11 Supreme Court of Judicature Acts 1873–75.
12 See too Chap 4 below, 46-7. For more on Ireland’s legal systems between 1916 and 1926, see Osborough (1972).
13 Walsh (2005) 185. Walsh maintains that this was also so for the ‘first’ Irish Supreme Court (1924–61).
14 Lowry (2001); on the Irish House of Lords as a judicial body at the end of the 18th century see Lyall (1993–95).
15 The other four Lords of Appeal were Lord Shaw and Lord Dunedin from Scotland and Viscount Cave and Lord Sumner from England and Wales.
19 The information here is at pp 4 and 8 of the document.
20 Davitt served as President of the High Court from 1951 to 1966. He lived on until 1986.
22 Iris Oifigiúil (Official Bulletin), no 4, 14 February 1922.
24 Iris Oifigiúil, no 55, 1 August 1922.
25 Under the Dáil Éireann Courts (Winding Up) Act 1923; see Kotsonouris (1994) and (2004). Kennedy et al (2003) say of the Dáil Éireann courts: ‘Given the relative inexperience of the judges who conducted the courts and the extremely constrained and sometimes dangerous conditions in which they were endeavouring to administer justice, the experiment was remarkably successful’ (33).
26 Dáil Supreme Court (Pensions) Act 1925.
27 Dáil Debs, vol 2, col 1088.
28 On the formation of the Irish Free State Cosgrave nominated him as a member of the Seanad (Senate); the other members then elected him as their chairperson.
29 Seanad Debs, vol 2 no 11, p 4, 16 January 1924.
30 Hugh Kennedy, Ireland’s first Chief Justice, said of Glenavy in a letter to Louis Walsh that ‘[he] stops at nothing to gain his own end’ and ‘[h]is advocacy is of the most thoroughly dishonest and disreputable character’ (Hugh Kennedy Archive, UCD, P4/1125, 8 February 1924). Kennedy annotated Walsh’s reply to this letter with ‘Glenavy is a terrible old cod’ (P4/1126, 9 February 1924).
31 Cited by the All Party Oireachtas Committee on the Constitution in its Fourth Progress Report: Courts and the Judiciary (2003), Stationery Office, Dublin, para 10.
32 Judicial Committee (1923) 26.
34 The report recommended that the High Court should consist of six judges, one of whom would be designated as its President: ibid, 19.
36 Elsewhere (at 22) the report suggests that the annual salary of the President of the High Court should be £3,000 and that of High Court judges should be £2,500.
37 Austria, Estonia, Finland, Hungary, Latvia, Lithuania and Yugoslavia.
38 On the significance of this phrase see the valuable study by Yusuf (2014).
39 The Judicial Committee Act 1833, largely still in force.
40 See the written history and useful video presentation on the Judicial Committee’s website.
53 Ibid s 75. This Commission is explained in the next paragraph.
54 Ibid, s 73 (final sentence).
56 Ibid, final paragraph.
57 Section 71 of the Constitution. See Kirk (2001); Paton (1952); Sawer (1948). The High Court also sought to treat Australian State Constitutions as a form of higher law which could not be impliedly repealed or amended, but the Privy Council overturned that approach in McCawley v The King  AC 69.
64 Appellate Division Act, No 12 of 1920, s 3.
65 Administration of Justice (Further Amendment) Act, No 11 of 1927, s 1.
70 Supreme Court Act 2002 (NZ).
71 Pora v The Queen  UKPC 9,  1 NZLR 277 (where a man’s convictions for rape and murder were quashed after he had served 22 years in prison).
74 Cahillane (2011b) 9, citing Grant (1934). Cahillane points out (at 3–4) that copies of post-War constitutions were made available to members of the committee set up to draft Ireland’s 1922 Constitution and she suggests (at 9) that the Czechoslovakian model may also have been an inspiration to that committee. For a modern assessment of Austria’s Constitutional Court see Gamper and Palermo (2009).
75 See Cahillane (2011b) 9, n 39, citing an extract from a 2001 thesis by Gerard Hogan, later a Court of Appeal judge in Ireland.
77 This allowed any Bill to be suspended for 90 days if this was demanded from the President of the Executive Council by 40 per cent of the members of the Dáil or a majority of the members of the Seanad not more than seven days after the Bill was passed. The Bill could then be submitted to a referendum if certain conditions were fulfilled. But Art 47 did not apply to Money Bills or Bills which were declared by both Houses to be necessary for the immediate preservation of the public peace, health or safety.
79 On which see Chap 3 below, 32-4.
81 Report of Judiciary Committee (1923) 8.
82 Its final stage in the Dáil took place on 11 December. The Seanad considered the Bill principally on 16 January 1924 (second stage) and 5 and 20 March (report stage). The Dáil approved 42 of the 44 Seanad amendments on 2 April, and the Seanad accepted that position on 3 April.
83 See Seanad Debs, vol 2, no 11, cols 410–11, 16 January 1924.
86 Note 83 above, col 412.
88 Sir Thomas Esmonde at cols 422–4 and Mr Bagwell at cols 428–9.
89 Seanad Debs, vol 2, no 19, cols 854–84, 5 March 1924.
90 It became s 36 of the 1924 Act.
91 Seanad Debs, vol 2, no 55, cols 1154–55, 20 March 1924. This became s 101 of the 1924 Act.
92 Mac Cormaic (2016), at 32, sums up the situation thus: ‘the rhetoric of rupture belied the relative modesty of the changes, at least at the apex of the courts system’.
93 See Chap 5 below, 90–1.
94  IR 1, heard on 3–4 November 1924 and decided on 9 December 1924.
95  IR 15, heard on 13 and 16 June 1924 and decided on 3 July 1924.