PRIVY COUNCIL CASES

Hokitika Guardian, 26 May 1930, Page 8

PRIVY COUNCIL CASES

EIGHT TO APPEAL FROM

IRELAND

NO BAR IN CONSTITUTION

(Christchurch “Press” correspondent.)

LONDON, April

The Judical Comnm/iee 01 the Privy Council inis now delivered judgment in tlie case of Performing Right Society .Limited v. Or nan District Council of Bray. This was an appeal against a decision of the Supreme. Court of the Irish f ree State , and its importance lies in the constitutional question involved. Their Lordships found that there is nothing in the constitution of the Irish Free State to prevent appeals from the Irish Courts to the Privy Council. ’ The Society brought an action against the Urban District Council of fßray for an alleged infringement of copyright in two musical pieces by allowing their uand to play them in August, 1926.

The Society succeeded in the Court of First Instance, but on the appeal to the Supreme Court the judgment in their favour was reversed on the ground that the Copyright Act of 1911 was not in force in the Irish Free State at the date the alleged offence was committed.

The Lord Chancellor (Lord Sankey) said that their Lordships disapproved of the decision given by, the Supreme Court, but were satisfied thatby reason of the provisions of the Act 1929; the Society was not entitled to any relief claimed. Accordingly the Committee reversed such parts of the Supreme Court’s order that directed the Society to nay any costs, and the Committee did not give any costs of the appeal to them or to either party.

THE CONSTITUTIONAL QUESTION

If their Lordships, said Lord Sankey were to advise that the decree of tile oupreine Court should be discharged the result might be idirectly to restore the order of the trial judge against the Council. For that reason, although the basis on which the decree of the Supreme Court was rested had common ded itself neither to the Irish Legislature nor to the Committee, their Lordships were not in a position to recommend that it be discharged altogether.

In the circumstances their Lordships were of the opinion that the proper course was to discharge the order of the Supreme Court appealed from in so far as it directed payment of costs, but not further, or otherwise, and their Lordships would fyjumbly advise his Majesty accordingly. Dealing with the constitutional question as to whether + he Committee had jurisdiction to hear the appeal, the Lord Chancellor said that their Lordships were of the opinion that it had been decided by the constitution df the Irish Free State itself. They could not think that the words “his Maiestv in Council,” as used in the Trish Free State constitution and in both Acts or Parliament to which it was scheduled meant anything other than the Privy Council.

DUBLIN COMMENT

The “Irish Independent” (Dublin) comments:—

A quarter of a century ago tlio judges of the unprecedented step of declaring in a formal resolution that the j udicial,Committee of the Privy Council “by the ignorance it has shown of our history, our legislation, and our practice, has displayed every characteristic of an alien tribunal.” The experience of four years shows that the Saorstat has equally good reasons for suspecting the competency otf this tribunal to review the decisions of the Irish Supreme Court. It was always understood' that the Judical Committee should not, and would not, entertain appeals except in cases involving unusually large claims or constitutional principles by the highest importance. On neither of these grounds could the action of the Judical Committee in entertaining two of the three appeals heard from the Saorstat Courts be defended. The amount in•'■'lved in the Bray case would at most be only a few guineas—probably not one per cent, of the costs to both parties. And as the litigation arose out of a situation that cannot recur, there was no question of any principle worthy of an hour of the time of any Superior Court.

The Bray case is likely to be historic inasmuch as it is almost certain to be the last appeal from the Saorstat to this outworn tribunal that has too long survived the feudal spirit from which it sprung. On the first day of the hearing the British Lord Chancellor, Lord Sankey, put forward the ludicrous claim that his English Committee over which he presided might give a direction to the Saorstat Courts as to the "fd’dity of the legislation of the Oireachtas, and might remit the case to a, Saorstat judge, with a direction as to his finding. Whether Lord Sankey maintained that attitude to the end is not known, because the judgments of Judical Committee are delivered nn'v b v one member, and dissenting judgments are not allowed for the enlightment of the public. At any rate I

the decision, as announced gives Lord Sankev’s futile threat a wide berth.

CONFIDENCE IN IRISH COURTS

In one respect ’ the judgment constitutes a challenge. ft implies that in hearing appeals the advice on which his Majesty will act is the advice of the English Privy Council. That may be the ancient theory; but their Lordships must be made to realise that it is not the presefit-day practice. The only body competent to advise his Majesty, or his ' Majesty’s representative in the Saorstat, in matters relating to the SaorStat is. the Executi\ e Council in Dublin.

However, the-’hvholo question is to become solely ond for the constitutional historian. It was laid down at the last Imperial Conference that “it was no part of the policy of his Majesty’s Government in Great Britain that questions affecting judical appeals should be determined otherwise than in accordance with, the wishes of the part of the Empire primarily affected.” To implement this decision steps will be taken by the Saorstat delegates to the coming Imperial Conference to abolish such appeals for all ifuture time. The Tric-ii neople have complete confidence in their own Courts, and are not likely to regret the passing of a system that enables an English tribunal—unpractised in our laws, and without a thorough knowledge of our history and Institution’s—to review the decisions of. the Saorstat Supreme Court.