Ambitions of ‘Legal Independence’ in the Irish Free State

AMBITIONS OF ‘LEGAL INDEPENDENCE’ IN THE IRISH FREE STATE

Robert Grendon

In any post-revolutionary state, there is an ambition to bring about a new order in society and the Irish Free State was no exception in the early 1920s. The Irish people were no longer satisfied with the status quo and decided to bring about change. But when the dust and chaos of revolution, and subsequently civil war, began to subside, the onerous challenge of state building emerged. Key to this new constitutional order was the court system. The President of the Executive Council, WT Cosgrave, described the British Court system in Ireland as the monument of an alien government which had impressed itself onto the minds of the Irish people.1 There was a great impetus among figures such as the first Chief Justice, Hugh Kennedy, to change this and create a truly Irish Court system that was separate and distinct from its imperial predecessor.

Like much of the birth of the Free State, the creation of the courts was steeped with conflict and controversy. The Government of Ireland Act, 1920 and the Constitution of the Irish Free State provided for a new system for the administration of justice. One of the main obstacles that had to be overcome for the new state was creating onecentralised court system. Since 1919 there were two separate and competing court systems, the Dáil Courts and the official statutory courts under British jurisdiction. While the Dáil Courts had filled a certain vacuum during the revolutionary period, the decision was made in 1923 that they were no longer required and that they could be wound up.2

Throughout the War of Independence, most legal matters throughout rural Ireland were handled by the Dáil Courts which had been established by the first Dáil to handle the administration of justice within the State. The courts claimed to have both civil and criminal jurisdiction and courts were largely suppressed in Dublin, where the official statutory courts still operated.3 The Dáil Courts had earned a reputation for being fair and efficient at handling local matters, but as the new Government set about forming a

1 Ronan Keane, ‘The Voice of the Gael: Chief Justice Kennedy and the Emergence of the New Irish Court System 1921-1936’ (1996) 31(1) The Irish Jurist 212. 2 Mary Kotsonouris, The Winding-up of the Dáil Courts, 1922-1925: An Obvious Duty (1st edn, Four Courts 2004) 8. 3 Keane (n 1) ‘The Voice of the Gael’ 210.

legitimate state following the Anglo-Irish Agreement, they realised that the Dáil courts needed to cease. The competing court system was the official statutory courts that had already existed under the British administration. Under the Government of Ireland Act 19204, the court system on the island of Ireland had been split into two jurisdictions. Because of this the statutory courts that operated in southern Ireland from 1920 until the Courts of Justice Act 1924 were essentially the courts from the British administration, but they had lost jurisdiction over the new Northern Irish state. Article 75 of the Constitution of the Free State provided that until a new system was established, the existing court system would remain in place. As Cosgrave later set out in a letter to the Judicial Committee, these courts had lost the trust of the people and that they were a glaring bastion of British rule in Ireland that remained after independence.5

Similar to the establishment of the Dáil, the transition from a revolutionary court to the official courts of the Free State was one tainted by the Civil War. One glaring example of this conflict came in 1922 after the attack on the Four Courts. Diarmuid Crowley, who was one of the circuit judges for the Dáil Courts, had ordered the release of certain anti-treaty forces who had been detained following the assault on the Four Courts. Crowley went as far as to decree that Richard Mulcahy, the Minister of Defence was in open rebellion against the state and the government was in fact illegal.6 This decision was ignored by the government and the decisions of the Dáil courts were held to have no bearing in law following R (Kelly) v Maguire.7

As well as this internal conflict and embarrassment, the Free State was under pressure from the British to get rid of the Dáil Courts.8 Figures such as Winston Churchill, the colonial secretary, took particular issue with the existence of the Dáil courts in defiance of the statutory courts. There was also a fear that a failure to establish a centralised court system would be a breach of the Anglo-Irish Agreement 1921. When the constitution of the Free State was finally enacted in 1922, Articles 64-72 provided for the establishment of such a system in line with the requirements under the Anglo-Irish Treaty. While the Government of the Free State accepted that a new judicial order was needed to win over the support of the people, they also accepted that they would have

4 The Government of Ireland Act 1920, s 12. 5 Keane (n 1) ‘The Voice of the Gael’ 212. 6 ibid 214. 7 R(Kelly) v Maguire [1923] 2 IR 58. 8 151 Hansard 1461 (9 March 1922).

to incorporate certain aspects of the British system that worked well and merge it with the successful aspects of the Dáil Courts.

In January 1923, in order to achieve these two goals, Cosgrave appointed the judiciary committee to advise the Executive Council (the cabinet of the Free State) on the formation of the new courts. The judicial committee was chaired by Lord Glenavy, a former Lord Chief Justice of Ireland, but was also comprised of figures such as the future Supreme Court Justices James Creed Meredith and Hugh Kennedy KC, who was acting as the Attorney General for the Free State government.

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It is in their discussions and proposals that we see the push for an independent legal system emerge; a system that was distinguishable from its predecessor both legally and in character. The committee was divided as to how great these changes should be but certain members, especially Kennedy, wanted to draw on the older Irish legal traditions that predated the common law in Ireland as well as drawing on newer systems from beyond the common law world. Kennedy wanted to wipe the slate clean and create an indigenous system. 10 Other members of the committee such as Lord Glenavy were not as revolutionary minded and resisted major change. The revolutionary nature of the changes that Kennedy pushed for varied from grand to small. Ideas such as abandoning the common law and adversarial system, and changes to courtroom attire and decorum were all toyed with, however there was resistance from the more conservative members of the committee.11

While these ideas were ultimately abandoned, we can see that there was an ambition for great change. Much of these greater ambitions had their wings clipped by the Treaty. Article 1 of the Treaty set the Free State’s constitutional status on par with other dominions such as Canada. The constitution of the Free State provided that an existing statute and the common law in its entirety had to be adopted by the Free State. The system envisaged by Kennedy would be alien to modern Irish practitioners and students. Instead of our adversarial system with barristers in horsehair wigs and black robes to mourn the death of King Charles II12 and working with statute and case law, we could have seen an inquisitorial system with attorneys wearing the colourful robes influenced

9 Ruadhán Mac Cormaic, The Supreme Court (1st edn, Penguin 2016) 22. 10 Hugh Kennedy, ‘Character and Sources of the Constitution of the Irish Free State’(1928) 14(8) American Bar Association Journal 445. 11 Mac Cormaic (n 9) 23. 12 The black robes worn by barristers were adopted by the Bar in 1685 following the death of King Charles II.

by the Gaelic Judges of Ireland and working with codified law with a strong brehon influence. 13 Ultimately the committee produced recommendations that were mostly adopted and implemented with the Courts of Justice Act, 1924.

While the committee had gone to great lengths to create a separate and distinct system, there was still one major problem hanging over their heads: the Privy Council. The right to appeal to the Privy Council was viewed by the Protestant minority as a means to protect themselves from the Catholic State, but to the rest of the state it stood as little more than an embarrassment. In accordance with the Anglo-Irish treaty, Article 66 of the Constitution of the Free state permitted appeals to the Judicial Committee of the Privy Council. This had been a major point of contention for nationalists and Article 66 was drafted in such a way so as to limit appeals and establish the supremacy of the Irish courts. Nonetheless the fact that decisions of the Supreme Court in Dublin could be appealed in London undermined the autonomy of the Free State’s courts. Until 1935 following a ruling from the Privy Council itself, the Judicial Committee of the Privy Council stood as a looming reminder to the Irish judiciary that it was administering justice in a dominion and not in an independent state.

While there is a rich history of legal practice on the island of Ireland that predates any British rule in Ireland, as Irish students are told at the beginning of their studies, our legal system is heavily based on the English system. Over the past century we have seen the development of a more distinctly Irish system with departures in areas such as negligence and land law, but as Geoghegan J put it, this has been a gentle evolution rather than anything really revolutionary.14 However, the institutional framework maintains a notably English character. During those early days of state building, ambitious figures were held back by the Treaty and the Constitution of the Free State. Instead of having the freedom to create a unique and fully independent system, they had to create the system of a dominion. As mentioned, we have seen some changes, but nothing monumental. The goal of hearing the voice of the Gael was achieved, but it is heard in a courtroom firmly built on English roots.

13 Mac Cormaic, (n 9) 25. 14 Hugh Geoghegan, ‘Three Judges of the Supreme Court of the Irish Free State, 1925-36’ in Felix M Larkin and NM Dawson (eds), Lawyers, The Law and History: Irish Legal History Society Discourses and Other Papers 2005-2011 (Four Courts Press 2014) 31. 19