A contemporary observed that, in such a situation, there was ‘inevitable conflict between the autonomy, legislative and judicial, of the Dominions and any attempt made by an extra-Dominion tribunal to which they did not consent and which they did not create, or control, to set aside or override their laws’.228 The removal of this right of appeal to the Privy Council, described by Minister for Finance Ernest Blythe, in 1929, as ‘a bad, unnecessary and useless court’,229 was one of the principal objectives of Cosgrave’s governments and John Hearne was to play an important role in their endeavours. The Free State, however, was to encounter the obdurate resistance of British governments which believed that the issue had fundamental implications for the defining role of the Crown in the Constitution of the Free State and throughout the Commonwealth generally.230
The matter was raised at the 1926 Imperial Conference, when Kevin O’Higgins was persuaded by Lord Birkenhead, who was accepted as a friend of Ireland, to postpone the question until the next Conference, where he would support the Irish demands for abolition of the appeal.231 However, by 1930 both men were dead and the Irish delegates at that year’s Conference were resolute in renewing their demands. The previous year it had fallen to Hearne to prepare the relevant memorandum for the Conference on Dominion Legislation, outlining the Free State’s case.232
Consistent with views expressed in other memoranda, he argued that no question whatever arose as to the power of the Oireachtas to amend Article 66 of the Free State Constitution. However, the matter was not that simple, as the right of appeal was preserved in Article 2 of the Treaty, which accorded the Free State the same status as Canada in the Commonwealth; the right of appeal applied in Canada and, consequently, Article 2 ensured its application in the Irish Dominion. An even further complication was Article 50 of the Constitution, which stipulated that amendments to it must be ‘within the terms of the scheduled Treaty’.233
Hearne suggested that the Free State could seek deletion of the offending Article 66 by agreement with Britain but, according to Hearne, this course of action was unlikely to yield success. Article 2 of the Treaty, with its implicit recognition of the right of appeal, defined the fundamental British conception of the constitutional relationship between the Crown and the Dominions. The Irish, therefore, would be met by assertions that the prerogatives of the King were ‘impregnable and immutable’ and that only an act of the imperial parliament could divest him of them.234
The solution to the impasse proposed by Hearne was the assertion and vindication of a principle he regarded as central to the constitutional conception of the Commonwealth and iterated in other memoranda: the equality of all member states as defined by the Balfour Declaration. The acceptance of this principle meant that the King could exercise no prerogative in any Dominion except on the advice of its government;235 and, by extension, the exercise of any prerogative preserved by Article 2 of the Treaty required the same advice. He contended that it was ‘contrary to the whole Commonwealth notion and to the principle of coequal sovereignty and co-operation … that His Majesty in his capacity of King of any one of the member states can be advised in matters affecting that member by a body external to it’.236 With typical trenchancy, Hearne summarised his opinion and advice:
It would appear, therefore, that an Irish Free State government has a complete case for removing the right of application for leave to appeal to the Privy Council based upon the separate constitutional existence of the member states of the Commonwealth and the inevitable implications of that constitutional fact. The judicial sovereignty of the Irish Free State is as inalienable as the legislative sovereignty or the executive sovereignty. I am satisfied that the Oireachtas cannot legislate away its law-making competency, nor can it legislate away its judicial sovereignty without destroying its status and statehood.237
Two months or so before the 1930 Conference, Hearne informed Martin Eliasoff, second secretary in the Irish High Commissioner’s Office, London, that the government did not consider the Privy Council as a court in the strict sense, as advice was given to the King by a number of privy counsellors and this advice was not the same as a judgement of a court of law. He described the continuance of the right of appeal as ‘a menace to the judicial sovereignty of the Free State’.238
At the 1930 Imperial Conference, the Irish were looking for an amicable solution and were confident that the right of appeal would be abolished.239 The importance of its removal for the Free State government was highlighted during the Conference in a radio address by Patrick McGilligan to the Irish diaspora in America, when he stated that there ‘was no intention of allowing this infringement of our sovereignty to continue’.240 However, on 25 October, McGilligan reported to Cosgrave on the resistance being experienced by the Irish delegation to their demands relating to the Privy Council.241 Among the arguments advanced by the British side to reject Irish demands was the contention that the Treaty settlement ‘had only given the Irish Free State the status of Canada as it had existed in 1921, without the benefits of subsequent constitutional advances achieved by the other Dominions’.242 In effect, the Balfour Declaration and its consequences did not apply to Ireland. The Irish were to be unsuccessful once again, as the British proved unyielding.243 The seriousness of this failure was underscored in a message from McGilligan to Cosgrave at the end of proceedings: ‘Concluding this morning. No agreement reached on Privy Council which is not mentioned in the report. Avoid all publicity, if possible, concerning this.’244
The effect of the failure was to make the Irish angry and resentful.245 These feelings can only have been exacerbated by the outcome of a meeting between Hearne and Seán Murphy, assistant secretary of the Department of External Affairs, and officials of the Dominion Office, held in London on Thursday 23 April 1931. Among the matters discussed was the controversial issue of the appeal. Having listened to the contributions of the British side, Hearne expressed the view to his opposites that the essential issue of its abolition was not being addressed. The two Irish civil servants wrote in their report to Dublin:
Mr Murphy and Mr Hearne consulted together on the whole situation on Monday night and Tuesday morning. Their joint impression was that there was no intention whatever in the Dominion Office to abolish the appeal by agreement and that in all the recent discussions the British government had one objective in view, namely to delay the introduction of bills in the Oireachtas to abolish the appeal or render it ineffectual.246
The reference to bills in the report relates to a decision by the Cosgrave government to pursue a unilateral policy of abolition of the right of appeal.247 Hearne drafted a series of bills to give effect to this course of action.248 The Constitution (Amendment No. 17) Bill proposed the abolition of the right of appeal contained in Article 66. Two other amendments were considered: the Constitution (Amendment No. 18) Bill defined more precisely the extent of the original jurisdiction of the High Court and the appellate jurisdiction of the Supreme Court; and the Constitution (Amendment No. 19) Bill proposed the deletion of the words ‘within the terms of the scheduled Treaty’ from Article 50, thus removing the Treaty as an obstacle to constitutional change. Two other bills were drawn up by Hearne in the event of the government not proceeding with the outright abolition of the appeal; the intent of these bills was to render the appeal de facto inoperative. The Supreme Court (Confirmation of Judgment) Bill permitted the executive council to immediately give statutory effect to any Supreme Court decision and thus give it immunity from interference by the Privy Council. The other proposed law, the Judicial Committee Bill, prohibited the enforcement of a decision of the Privy Council in any case concerning the Free State.249
None of the proposed bills was presented to the Oireachtas while Cosgrave was president. His government was awaiting the passage of the Statute of Westminster which would remove all doubts as to the power of the Free State parliament to enact such legislation.250