1. The Statute of Westminster in British Imperial History

The enactment of the Statute of Westminster in 1931 represents one of the most significant events in the history of the British Empire. The very name of this historic piece of legislation, with its medieval antecedents, epitomizes a sense of enduring grandeur and dignity.Footnote ¹ The Statute of Westminster recognized significant advances in the evolution of the self-governing Dominions into fully sovereign states. The term “Dominion” was initially adopted in relation to Canada, but was extended in 1907 to refer to all self-governing colonies of white settlement that had been evolving in the direction of greater autonomy since the middle of the nineteenth century.Footnote ² By the early 1930s, the Dominions included Canada, Australia, New Zealand, South Africa, Newfoundland, and the Irish Free State.

The significance of the Statute of Westminster has seen it ranked next to the American War of Independence as a turning point in British Imperial history.Footnote ³ It has even been suggested that if the former had existed in 1776, the latter might never have occurred.Footnote ⁴ The contribution of the Statute of Westminster to the advance of the Dominion autonomy has long been emphasized by historians. For example, one commentator concluded “The general effect of the Statute was to close the chapter of Commonwealth history which recorded the attainment of self-government and self-determination [of the Dominions], and to still any questionings that might yet arise as to the validity of that attainment.”Footnote ⁵

The significance of the Statute of Westminster Act, 1931 in the evolution of the Dominions is reflected in textbooks on public international law. In the 1920s, these textbooks had been unsure how to classify the British Dominions as self-governing entities. Could they be considered as constituting fully sovereign states? A lengthy examination of this specific question, conducted as late as 1929, concluded that although significant advances had been made by the Dominions in the early twentieth century, “it is impossible to admit that the Dominions are persons of International Law of identically the same kind as those which are called ‘independent sovereign States.’”Footnote ⁶ This uncertainty evaporated after the enactment of the Statute of Westminster. Henceforth, the Dominions were firmly classified as enjoying the status of sovereign states.Footnote ⁷

No history of the former Dominions in the twentieth century would be complete without some reflection on the significance of the Statute of Westminster. One Canadian work concludes: “The Statute of Westminster … essentially established the complete lawful autonomy of Canada.”Footnote ⁸ An Australian text adds “This enactment removed the last formal restrictions on the sovereignty of the Commonwealth of Australia.”Footnote ⁹ South African historians recognize that “the Statute of Westminster opened a new period in the constitutional history of South Africa.”Footnote ¹⁰ A New Zealand text passes judgment on Wellington's decision not to immediately adopt key provisions of the Statute of Westminster by concluding “New Zealand was content to remain a ‘Dominion’” while “Canada, South Africa and the Irish Free State became sovereign, independent states in 1931.”Footnote ¹¹

The only exception to the emphasis placed on the historical significance of the Statute of Westminster concerns works written in what was once the sixth Dominion of the British Empire. This was the Irish Free State, which formally joined the ranks of the Dominions in 1922.Footnote ¹² It is not uncommon for general histories of Ireland in the twentieth century to offer the Statute of Westminster little more than a passing reference or to ignore it completely.Footnote ¹³

The marginalization of the Statute of Westminster in many general works of Irish political and constitutional history, something unthinkable in Canadian or Australian equivalents, is particularly unfortunate when the proper context of this historic piece of legislation is fully appreciated. The Irish Free State played an important role in the creation of the final text of the Statute of Westminster at successive imperial conferences in the 1920s and 1930s. In addition, parliamentary debates at Westminster reveal that this historic legislation was largely perceived at the time of its enactment as an incident in Anglo–Irish relations rather than a key moment in the development of the British Empire or Commonwealth.Footnote ¹⁴ The other Dominions were certainly mentioned in these parliamentary debates. Supporters and opponents of the Statute of Westminster tended to refer to the wishes of like-minded authorities in the Dominions to support their arguments.Footnote ¹⁵ Canada and Australia were often used as examples in the context of hypothetical arguments.Footnote ¹⁶ However, the discussions on the actual impact of the Statute on Australia, Canada, New Zealand, and even South Africa never received anything like the level of attention given to the Irish Free State. The lengthy discussions on the internal politics of the Irish Free State have no parallel with respect to any of the other Dominions.Footnote ¹⁷ Stanley Baldwin, leader of the Conservative party and former prime minister, expressed a sense of frustration in the House of Commons when he complained “There is a, tendency, in concentrating on Ireland, to lose sight of the fundamental question here, which is the question of Imperial relationship.”Footnote ¹⁸ These considerations ensured that the debates on the enactment of the Statute of Westminster could be seen as the last in a series of great parliamentary debates on the future of Ireland, which were a major feature of British politics in the late nineteenth and early twentieth centuries.

This article will examine the impact of the Irish Free State on the enactment of the Statute of Westminster and the related issue of the impact of the Statute of Westminster on the Irish Free State. The examination of these related issues will permit analysis of the Statute of Westminster as it was seen at the time of its enactment in 1931. This will illustrate why British politicians of the 1930s were more concerned with the effect of this far-reaching legislation on the Irish Free State than on its significance to the development of the Empire as a whole. It will also examine why the enactment of the Statute of Westminster promoted the development of Irish sovereignty in the 1930s that finally led to the adoption of the current Irish Constitution. This article will argue that the impact of the Statute of Westminster on the Irish Free State was significant even if this reality is not always recognized in scholarship on modern Irish history. However, it is important to note that this ambivalent and often dismissive attitude toward the Statute of Westminster is not limited to historical accounts. The Irish courts have acknowledged the importance of the Statute of Westminster for the other former Dominions, but insist that its provisions had no direct effect on Irish law. The Irish Supreme Court in Re Article 26 and the Criminal Law (Jurisdiction) Bill, 1975 held “the Statute of Westminster, 1931, should be regarded as declaratory of the law [in Ireland] and not as making any change in it.”Footnote ¹⁹

A similar sense of ambivalence toward the Statute of Westminster was shown by Irish governments in the 1920s and 1930s. In 1931, the Irish government gave formal consent for the enactment of the Statute of Westminster while simultaneously denying that this measure had any legal impact on the Irish Free State. This article will attempt to explain the reasons behind this ambivalent attitude. It will also attempt to show why this stance toward the Statute of Westminster remains relevant in the spheres of Irish law, politics, and history.

2. Key Provisions of the Statute of Westminster

Maurice Gwyer, British procurator general and treasury solicitor, is often credited with having first suggested the name of this historic piece of legislation.Footnote ²⁰ The great distinction of the elevated title of “Statute of Westminster” was its association with the imposing majesty of English legal history. This allowed the Statute to weather a tide of accusations of being inconsistent with British constitutional tradition, in that it regulated imperial relations by statutory means instead of by unwritten convention, by anchoring it to ancient legal antecedents.Footnote ²¹ The name also had the great merit of making no reference to the contents of the Statute. This was highly advantageous, as the provisions of the Statute were often condemned as sounding the death-knell of imperial unity.Footnote ²²

The name “Statute of Westminster” did provoke a number of supercilious comments as to the accuracy of its historical provenance. The Statutes of Westminster of 1275, 1285, and 1290 had dealt with such matters as the fixing of “legal memory,” trial by jury at nisi prius and the prevention of sub-infeudation after the alienation of the fee simple.Footnote ²³ The establishment of self-governing Dominions across vast oceans was beyond the wildest fantasies of the medieval English. A clumsy attempt was made to delay the passage of the bill on the basis that its title was inappropriate. It was argued that its contents had little in common with previous Statutes of Westminster.Footnote ²⁴ Such quibbles were brushed aside by the solicitor general Thomas Inskip who concluded that the “splendid title” of “Statute of Westminster” was eminently suitable for “a landmark in the constitutional history of the British Empire.”Footnote ²⁵

The most important provisions of the Statute of Westminster (henceforth “the Statute”) that concerned all of the Dominions were found in Sections 2, 3, and 4 of the act. Section 2 of the Statute ensured that laws created in the Dominions would no longer occupy a subservient position to statutes passed by the Imperial Parliament. Previously, any Dominion law could be declared null and void if it was in conflict with a statute passed by the Imperial Parliament that extended to that Dominion. This position was recognized at common law and regulated by statute in the form of the Colonial Laws Validity Act, 1865. The provisions of the Colonial Laws Validity Act had actually been put into practice as recently as 1926 when Section 1025 of the Canadian Criminal Code, 1888 was struck down as being incompatible with certain statutes passed by the Imperial Parliament in London.Footnote ²⁶ Section 2 of the Statute repealed the effect of the Colonial Laws Validity Act, 1865 with respect to the Dominions, and ensured that no Dominion law could ever again be struck down on this basis.

Section 3 of the Statute confirmed that the Dominions had the power to make laws that extended beyond the bounds of their own frontiers. There was a body of opinion that argued that the Dominions had always had the power to legislate with extraterritorial effect, but this was contradicted by a number of important judgments.Footnote ²⁷ The Statute provided clarity on this important issue.Footnote ²⁸

The Statute confirmed the power of the Imperial Parliament to legislate for the Dominions. However, Section 4 provided that this power could only be used if the Dominion or Dominions in question had requested and consented to the legislation.Footnote ²⁹ An American commentator noted that this provision “conjures up ghosts of the stuggle which led to the War for the Independence of the American Colonies in 1776.”Footnote ³⁰ In fact, as far as the Dominions of the twentieth century were concerned, this provision was not so revolutionary. It was nothing more than the formal enactment of a convention that had been recognized at the 1926 imperial conference and had been followed in practice for several preceding decades.Footnote ³¹

The Preamble to the Statute reflected decisions made at the special imperial conference held in 1929 which, among other issues, discussed succession to the Crown.Footnote ³² The wording that was finally agreed recognized “any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.” These provisions would prove to be of some significance when King Edward VIII abdicated in 1936. Before 1931, a single imperial statute passed at Westminster would have sufficed to recognize the abdication of Edward VIII and the accession of his brother George VI. Now, legislation had to be passed by each of the Dominion Parliaments to recognize the succession.

The Statute also contained a number of minor provisions that were of general interest. Section 5 of the Statute removed certain limitations on the power of the Dominion Parliaments to legislate in relation to merchant shipping. These limitations were reflected in Sections 735 and 736 of the Merchant Shipping Act, 1894. These restrictions had been activated as recently as 1925, when part of an Australian statute, the Navigation Act, 1912, was deemed null and void on the grounds of incompatibility.Footnote ³³ The restrictive provisions were replaced with a common position based on voluntary agreement. This would later be enshrined in the Commonwealth Merchant Shipping Agreement of 1931.

Section 6 of the Statute removed the restrictions imposed by Sections 4 and 7 of the Colonial Courts of Admiralty Act, 1890 on the Dominions. Although it is not indicated in the text, this section of the Statute did not actually apply to the Irish Free State. The report of the special Imperial conference of 1929 recognized that the 1890 Act had never applied to the Irish Free State, where admiralty matters were governed by the Courts of Admiralty (Ireland) Act, 1867.Footnote ³⁴

3. The Irish Free State

The focus of this article is on the relationship between the Statute of Westminster and the Irish Free State. The particular emphasis on the impact of the Statute on Irish affairs in contemporary parliamentary debates is hardly surprising when it is considered that, in contrast to most of the other Dominions, the full provisions of this historic measure applied without any restriction or qualification to the Irish Free State in 1931. The most important provisions of the Statute, Sections 2 to 6, were not adopted by Australia until 1942Footnote ³⁵ or by New Zealand until 1947.Footnote ³⁶ These provisions never applied to Newfoundland as a separate Dominion. Newfoundland ceased to be self-governing as a consequence of a financial serious crisis in 1933.Footnote ³⁷ Canada agreed that its Constitution, at that time composed of imperial legislation, would remain unaffected by the provisions of the Statute.Footnote ³⁸ Even South Africa passed a parliamentary resolution protecting certain entrenched provisions within its Constitution, the South Africa Act, 1909, from the impact of the Statute.Footnote ³⁹ No equivalent action to exempt the Irish Constitution, or key aspects of it, from the impact of the Statute was ever undertaken by the Irish Parliament.

The special position of the Irish Free State with respect to the provisions of the Statute was an important consideration in ensuring that British parliamentary debates focused on this particular Dominion more than any other. The Irish also played a leading role in creating some of the most important provisions of this historic piece of legislation. These and other considerations require substantial consideration of the influence of the Irish Free State in any history of the Statute of Westminster. However, there were other special features of the Irish Free State that set it apart from Australia, Canada, and even South Africa. The Irish Free State did not consider itself as constituting a self-governing Dominion. This, in turn, led it to deny that the Statute had any impact on Irish law.

The self-governing Irish state consisted of twenty-six counties in the south and west of the island of Ireland that had formerly been part of the United Kingdom. The Irish Free State was born out of an armed struggle against Crown forces that began with the Easter rising of 1916. The conflict recommenced in 1919 and only concluded in 1921 with the signature of the “Articles of Agreement for a Treaty between Great Britain and Ireland.”Footnote ⁴⁰ Article 1 of the 1921 Treaty provided that the Irish Free State would remain within the British Empire where it would enjoy the same constitutional status as the existing Dominions. Article 2 specifically linked certain key aspects of the constitutional status of the Irish Free State to that of Canada, the “eldest Dominion.” Although it was clear that the Irish Free State was intended to be the latest addition to the existing Dominions, its origins in armed conflict and its former position as a part of the United Kingdom could never be entirely forgotten. It was difficult to reconcile this history with British perceptions as to the identity and history of the colonies of white settlement. These ensured that the Irish Free State was placed in a unique position among the Dominions of the British Empire. Indeed, there was an influential body of opinion throughout the Empire and within successive British governments that was reluctant to treat the Irish Free State in the same way as the other Dominions.Footnote ⁴¹ There was a corresponding body of opinion within the Irish Free State in the 1920s and 1930s that, coming from a different perspective, also rejected the very idea of an “Irish Dominion.” The contention that the Irish Free State had come into existence as a Dominion was seen as incompatible with Irish identity and history.Footnote ⁴²

4. Irish Influence on Origins of the Statute of Westminster

Any analysis of the relationship between the Irish Free State and the Statute of Westminster must include a brief outline of the origins and provisions of this famous piece of legislation. The momentum behind the creation of the Statute was created in a number of imperial conferences that took place between 1926 and 1930. The imperial conferences were occasions in which the self-governing entities of the British Empire met to discuss matters of common interest in the late nineteenth and early twentieth centuries. The Irish had played a significant role in shaping each of the formal reports of the imperial conferences that preceded the enactment of the Statute. They had objected to the restrictions on the legislative sovereignty of the Dominions in a preparatory memorandum that was circulated at the imperial conference of 1926.Footnote ⁴³ Detailed consideration of these matters was postponed until a special “conference on the operation of Dominion legislation” was convened in 1929. The British government made a determined effort to limit Irish demands for reform at the 1929 conference. It proposed a number of legal mechanisms for continuing the supremacy of imperial legislation considered fundamental to the unity of the British Empire. Although these proposals received staunch support from New Zealand, they were unacceptable to Canada, South Africa, and the Irish Free State.Footnote ⁴⁴ The position advocated by the Irish government was finally accepted. The 1929 conference accepted that the overriding effect of imperial statutes over Dominion laws, as reflected in the Colonial Laws Validity Act, 1865, should come to an end.Footnote ⁴⁵

The Irish Free State was also a driving force behind the provisions of the Statute that recognized the power of the Dominion Parliaments to pass extraterritorial legislation. In the early 1920s, the Canadians attempted to persuade the British government to recognize that the Dominions could legislate with extraterritorial effect.Footnote ⁴⁶ These efforts did not bear fruit. The Irish Free State revived this issue at the imperial conference of 1926 and at the special conference of 1929, using very different tactics than their Canadian predecessors. Instead of requesting concessions from the British government, the Irish presented this restriction on Dominion sovereignty as a deviant theory that required to be put to rest by clarifying the true position.Footnote ⁴⁷ The British government saw the demand for identical legislative powers to those enjoyed by the Imperial Parliament at Westminster as an extravagant claim. It assumed that the other Dominions would accept limited powers to pass extraterritorial legislation.Footnote ⁴⁸ This assumption proved to be incorrect when the Canadians and South Africans refused to accept the limitations that were proposed.Footnote ⁴⁹ Although the British were particularly reluctant to recognize that the Irish Free State enjoyed full powers to pass extraterritorial legislation, the strong support provided to the Irish by Canada and South Africa made it impossible to refuse this concession. Section 3 of the Statute provided: “It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.”Footnote ⁵⁰

Those who were hostile to the general scheme of the Statute often blamed the Irish Free State and South Africa for its introduction.Footnote ⁵¹ In Australia, former Prime Minister William Hughes deplored the fact that the British government “had listened to men who, in some instances, were newcomers to the table of the Empire, and had acceded to their demand that there should be such a modification of the existing relations between Great Britain and the countries they represented as would permit those countries to pose before the world as independent nations”.Footnote ⁵² John Hartman Morgan, a leading authority on British constitutional law with strong unionist sympathies, noted with complete approval that the Statute of Westminster was often called the “Statute of Dublin” in loyal New Zealand.Footnote ⁵³

5. Irish Difficulties with the Statute of Westminster

Although the Irish played a central role in securing the most important reforms contained in the Statute of Westminster, it is important not to exaggerate Irish influence over the Statute as a whole. There were aspects of the Statute that caused some misgivings in Dublin. These included the provisions on the succession to the Crown. Westminster had previously enjoyed a monopoly on passing statutes relating to the succession to the Crown. The British wished to retain this exclusive power, and advocated that an exception be made on this matter in the proposed Statute. This exception proved to be unacceptable and the British put forward a compromise proposal that would cover matters connected to the Crown together with the law of prize and the discipline of armed forces outside their own country. It was proposed that a formal agreement be concluded between all the governments whereby each would covenant to take no action for the purpose of altering the relevant areas of law without the consent of all. The agreement would be ratified by each Dominion Parliament and given the force of law by an imperial statute. The Canadians objected to this solution on the grounds that it savored of federalism and gave Westminster an overriding position.Footnote ⁵⁴ Although the Irish had little enthusiasm for legal provisions that recognized the legislative dominance of the Parliament at Westminster, they seemed prepared to make a special exception in relation to succession to the Crown.Footnote ⁵⁵ This was a subject that the Irish government did not want to raise in the Irish Parliament. The Canadians voiced fears during the 1929 conference that parliamentary debates on matters relating to the Crown would raise difficult political and religious questions, especially given the exclusion of Catholics under legislation relating to the succession.Footnote ⁵⁶ These difficulties were far more acute in the Irish Free State than in Canada.Footnote ⁵⁷ As events transpired, the Irish Parliament would be obliged to pass such legislation in 1936 when Edward VIII abdicated from the throne.Footnote ⁵⁸

There were other aspects of the Statute that caused some disquiet in Dublin. The Irish Free State, with some support from South Africa, made an unsuccessful attempt in 1929 to secure complete abolition of Westminster's powers to legislate for the Dominions irrespective of considerations of consent.Footnote ⁵⁹ The retention by Westminster of a technical power to legislate for the Irish Free State was emphasized by domestic opponents of the Irish government, even though Irish consent was unlikely to be forthcoming.Footnote ⁶⁰ The retention of this power by Westminster seemed inconsistent with the principle of the equality of the Dominions and the United Kingdom that had been accepted at the imperial conference of 1926.Footnote ⁶¹ However, the formal abolition of Westminster's power to legislate for the Dominions in all circumstances was almost inconceivable for most British and Dominion statesmen. The Canadian prime minister, Richard B. Bennett told his Parliament that no imperial conference “has for a single moment thought of renouncing the supremacy of the Imperial Parliament, lest it be taken as a termination of the ties that bind together under the Crown all the overseas Dominions.”Footnote ⁶² It is unlikely that the Statute could have been enacted without some provision guaranteeing the possibility of new imperial legislation for the Dominions in some shape or form. As events transpired, this provision permitted the passage of a number of important legislative acts in subsequent decades. These include such measures as the Australia Act, 1986 and the “patriation” of the Canadian Constitution in the Canada Act, 1982.

The most important difficulty that the Irish government had with the Statute of Westminster was that it was enacted as a British imperial statute that purported to extend to the Irish Free State along with other Dominions. Although the Irish government saw British recognition of enhanced autonomy as a positive development, it would have preferred that this be achieved without resort to imperial legislation. The alternatives of drawing up a formal agreement, something akin to an international treaty, or merely recognizing the changes in a report of an imperial conference, were not acceptable to the other Dominions.Footnote ⁶³

The Irish had not had everything their own way in the negotiations that hammered out the final form of the Statute. The inclusion of the Irish Free State in the provision that defined the term “Dominion” for the purposes of the act caused some disquiet among Irish commentators who refused to accept that their state was a Dominion.Footnote ⁶⁴ However, as far as the Irish government was concerned, these drawbacks were easily outweighed by the beneficial provisions of the Statute. If sacrifices were required to win the support of other Dominions for these reforms, this was a price that the Irish government was prepared to pay.

6. The Statute of Westminster and the Anglo–Irish Treaty of 1921

The Irish had particular reason to welcome the provisions concerning the removal of limitations on legislative sovereignty contained within the Statute. Many aspects of the settlement imposed by the Anglo–Irish Treaty of 1921 were unpalatable to Irish nationalists. The Treaty made it clear that the Irish Free State would remain part of the British Empire. In addition, the Irish Free State was to be a constitutional monarchy and not a republic. The king and his representative, the governor general, were recognized as significant institutions in Irish internal affairs by the 1922 Constitution.Footnote ⁶⁵ The Constitution of the Irish Free State also included an oath to be taken by all members of the Irish Parliament and government. The reference to the king in this oath provided one of the most divisive issues in Irish politics in the 1920s and 1930s.Footnote ⁶⁶ These aspects of the Treaty settlement were exacerbated by British claims concerning limits on extraterritorial jurisdiction and insistance that the Irish Free State was still subject to imperial legislation enjoying superior status to Irish law under the Colonial Laws Validity Act, 1865.Footnote ⁶⁷ In 1922, the Irish were forced to accept that the decisions of the Irish Supreme Court were subject to an appeal to the Judicial Committee of the Privy Council, the final appellate court for much of the British Empire.Footnote ⁶⁸

Soon after the signature of the Anglo–Irish Treaty of 1921, the British demanded that the Irish give a legal guarantee that they would continue to adhere to its provisions. This guarantee was to be enacted alongside the substantive articles of the Irish Constitution of the Irish Free State. The Irish Constitution of 1922 was enacted by parallel statutes, one passed by an Irish constituent assembly in Dublin and the other by the Imperial Parliament at Westminster. It was agreed that both statutes would provide that any provision of the Constitution, any constitutional amendment, and any law made under the Constitution that was inconsistent with the provisions of the 1921 Treaty, would be rendered void and inoperative.Footnote ⁶⁹ This provision, sometimes called the “repugnancy clause,” was a serious impediment to the expansion of Irish sovereignty in the 1920s and early 1930s.Footnote ⁷⁰

The dual origins of the Irish Free State and its Constitution also proved to be problematic in the interwar years. The British and Irish each considered the statute enacted by their own Parliaments as enjoying primacy. The Irish were convinced that they had created their own self-governing state and their own Constitution by means of a statute passed by their constituent assembly. However, they were well aware that the British were equally convinced that the Irish Free State and its Constitution had been created by an imperial statute passed at Westminster in the same manner as the other Dominions of the British Empire. The Irish knew that the only way to remove the limitations of the Treaty settlement while avoiding a serious clash with the British was to find a means of doing so that was compatible with the British theory as to the legal origins of the Irish Free State. This was not easily done, as a result of the barrier imposed by the “repugnancy clause.” The obvious answer for the Irish was to pass an amending statute that removed this “repugnancy clause;” however, this was not possible because British imperial statutes outranked Dominion laws in terms of legal hierarchy. It may be recalled that this position was maintained by means of a rule of common law and also by means of the Colonial Laws Validity Act, 1865. This ensured that the limits on Irish sovereignty imposed by the 1921 Treaty were protected by a double padlock of repugnancy clause and supremacy of British imperial statutes. This padlock remained unbreakable throughout the 1920s.

The great significance of the Statute of Westminster to the Irish Free State lay in its potential to remove this padlock. Section 2 of the Statute proposed the removal of the supremacy of British imperial statutes over Dominion laws. If this were done, the British would not be able to challenge the removal of the “repugnancy clause” and subsequent amendment of constitutional provisions that reflected the settlement imposed by the 1921 Treaty. Although many Irish nationalists favored a radical revision of the Treaty settlement, the Irish government in power in 1931 only targeted key aspects that were particularly repugnant to Irish sovereignty. The most important of these was the policy of seeking the abolition of the appeal to the Judicial Committee of the Privy Council from the Irish courts.

7. The Irish Appeal to the Privy Council

In the early twentieth century, the “Judicial Committee of the Privy Council” heard appeals from most of the scattered territories that made up the British Empire. The awkwardness of its name ensured that it was often called by its short, although not entirely accurate, name of the “Privy Council.” The Privy Council was the final court of appeal for the self-governing Dominions which, by 1922, included the newly created Irish Free State. Irish governments were never reconciled to the existence of an appeal to a court in London that could overrule the decisions of the Irish Supreme Court. British ministers were forced to apply intense pressure before their unhappy Irish counterparts finally agreed to recognize the Privy Council appeal in Article 66 of the Constitution of the Irish Free State. The appeal was seen as an integral aspect of Dominion status, and as a safeguard for unionists who remained in the Irish Free State.Footnote ⁷¹ A series of unfortunate decisions in the mid 1920s further alienated the Irish government from the Privy Council.Footnote ⁷² By 1926 the Irish government began to block appeals to the Privy Council by various means.Footnote ⁷³ Before long, the government was openly advocating the formal abolition of the appeal. A determined effort to secure British agreement for the abolition of the appeal from the Irish courts was defeated at the imperial conference of 1930.Footnote ⁷⁴ This reverse only reinforced the Irish desire to abolish the hated appeal to the Privy Council.

There were individuals in the United Kingdom who were equally convinced that the Irish Free State should not be permitted to abolish the appeal, which, they predicted, would form the first step in a wholesale revision of the settlement imposed by the 1921 Treaty. These persons were determined that the application of the Statute had to be limited with respect to the Irish Free State in order to protect the Privy Council appeal and the entire settlement imposed by the 1921 Treaty. The British government anticipated that the House of Lords was almost certain to introduce an amendment of this nature.Footnote ⁷⁵ Edward Harding, the undersecretary at the Dominions Office, told the Irish high commissioner in London that he would be surprised if the House of Lords passed the Statute without an amendment relating to the Irish Free State.Footnote ⁷⁶ Matters were not helped by the fact that the government's own leader of the House of Lords, Lord Hailsham, was widely known to oppose granting legal concessions to the Irish Free State.Footnote ⁷⁷ The British prime minister, Ramsay MacDonald, promised that the provisions of the Parliament Act, 1911 would be set in motion in the event of an amendment by the House of Lords. He added that the worst-case scenario would be delay of approximately 18 months in enacting the Statute.Footnote ⁷⁸ This was hardly encouraging news for an Irish government facing an election within the next 9 months. However, as events transpired, the main challenge took the more serious form of a proposal for amendment in the House of Commons. A successful amendment there would have had far more devastating consequences than mere delay. The Irish government could never accept a diluted version of the Statute, and the survival of the entire initiative would have been placed in jeopardy.

8. Attempts at Amendment in the House of Commons

On November 20, 1931, Colonel John Gretton MP proposed an amendment to the Statute of Westminster bill that was specifically aimed at the Irish Free State. Gretton was a wealthy Staffordshire brewer and one of the leading “die-hards” in the British Conservative Party. The “die-hards” were a group of Conservatives associated with staunch opposition to reform of the House of Lords and equally uncompromising opposition to concessions to Irish, and later Indian, nationalists.Footnote ⁷⁹ Gretton had resigned as Conservative whip in 1922, in protest at the policies of the coalition government led by Lloyd George. He was outraged by the political settlement in Ireland that had culminated in the signing of the Anglo–Irish Treaty of 1921. A little less than 10 years later, Gretton sought legal advice as to the effect of the Statute on the Irish Free State. He also entered into correspondence with the Dominions secretary, James Thomas, on this matter.Footnote ⁸⁰ Thomas explained that the Irish Free State would still be obliged to maintain the Treaty settlement on moral grounds after the enactment of the Statute. He insisted that these moral considerations stood “on a higher plane than an obligation imposed by law.”Footnote ⁸¹ Gretton was unimpressed by these assurances, and joined forces with such figures as Lord Carson, Lord Danesfort, “Annesley” Ashworth Somerville and John Hartman Morgan to circulate letters and hold public meetings that urged the amendment of the Statute with respect to the Irish Free State.Footnote ⁸² Gretton's proposed amendment was given additional force when it was endorsed by one of the British signatories of the 1921 Treaty. This person was Winston Churchill.

The original intention of the die-hard members of the House of Commons was to place the amending provisions in Section 7 of the bill. This provided “Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930.” The proposed amendment would insert the additional words “or to the Irish Free State Constitution Act, 1922.”Footnote ⁸³ By the time the amendment was finally introduced, it had been decided to place it in a section of its own and to expand the scope of protection: “Nothing in this Act shall be deemed to authorise the Legislature of the Irish Free State to repeal, amend, or alter the Irish Free State Agreement Act, 1922, or the Irish Free State Constitution Act, 1922, or so much of the Government of Ireland Act, 1920, as continues to be in force in Northern Ireland.”Footnote ⁸⁴

This amendment had been drafted following the provision of legal advice from John Hartman Morgan. Morgan, like the great majority of British lawyers, considered the Irish Free State to have been created by imperial statute. As far as he was concerned, the Treaty settlement had been given force of law by the Irish Free State (Agreement) Act, 1922 and the Irish Free State Constitution Act, 1922. Morgan believed that the removal of the limiting provisions of the Colonial Laws Validity Act, 1865 would allow the Irish Free State to alter or repeal these imperial statutes. This would give the Irish Parliament the additional power to legislate contrary to the 1921 Treaty, and, therefore, allow the Irish Free State to repeal or amend the provisions of the Irish Constitution relating to such matters as the Privy Council appeal and the position of the king. It was hoped that removing the Irish Free State (Agreement) Act, 1922 and the Irish Free State Constitution Act, 1922 from the effect of the Statute would ensure the preservation of the legal settlement with the Irish Free State.Footnote ⁸⁵

Colonel Gretton introduced his amendment by distinguishing the Irish Free State from the other Dominions. He argued that its position as the youngest and “least firmly established” Dominion set it apart from the others. Gretton also argued that the geographical position of the Irish Free State differentiated it from the more distant Dominions and made it a “special case.”Footnote ⁸⁶ Having made these points, Gretton and his supporters argued that their amendment was actually designed to remove an unfortunate distinction between the Irish Free State and the other Dominions that was inherent in the existing provisions of the Statute. The other Dominions had moved, by various means, to ensure that the Statute would not interfere with the provisions of their own Constitutions.Footnote ⁸⁷ Colonel Gretton and his supporters argued that their proposed amendment would ensure that the Irish Free State Constitution, which had incorporated the text of the 1921 Treaty, would be similarly unaffected by the passage of the Statute.

Those who opposed Gretton's amendment insisted that its effect was not to place the Irish Free State in the same position as the other Dominions. The great difference was that Canada, Australia, New Zealand and South Africa had all consented to the measures that safeguarded their Constitutions. The amendment concerning the legal position of the Irish Free State was proposed without any request or initiative from Dublin. Indeed, the Irish government had made clear its fervent opposition to acceptance of Gretton's proposal.

In the words of the Times, there was an “unfriendly atmosphere” in the House of Commons on November 20, 1931 when Colonel Gretton's proposed amendment to the Statute was introduced. The House was sparsely attended, and the Dominions secretary, James Thomas, and the solicitor general, Thomas Inskip, were the only representatives of the government who were present. The attendance was largely composed of die-hards who loudly demanded that the Statute be amended in relation to the Irish Free State. There seemed a real possibility of a government defeat that would have put the entire Statute in jeopardy.Footnote ⁸⁸ Thomas managed to calm the situation by announcing that “every consideration” would be given to the arguments behind the amendment, and stating “the Government will be asked to consider the whole situation in the light of the Debate that has taken place”.Footnote ⁸⁹ These assurances proved sufficient to buy time and stave off the immediate threat to the British government and to the Statute of Westminster itself.Footnote ⁹⁰

9. The Irish Response

Thomas' promise to consider Gretton's amendment caused much anxiety on the part of Irish government. The Irish took the threat of amending the Statute very seriously. An Irish memorandum noted that British acceptance of this amendment would “destroy the whole basis of the Irish Free State as we have conceived it” and set 9 years of government policy at naught.Footnote ⁹¹ The Irish prime minister in 1931 was William Thomas (W.T.) Cosgrave.Footnote ⁹² Cosgrave's government had largely adhered to the settlement enshrined in the 1921 Treaty and adopted a policy of constructive engagement with the Commonwealth. This was reflected in the importance placed by the Irish government in attending the imperial conferences of the 1920s and early 1930s. Cosgrave and his Cumann na nGaedheal Party had been in government since 1922, but by the early 1930s were facing a serious political challenge from Eamon de Valera and his supporters.Footnote ⁹³ De Valera had been president of the underground government during the Anglo–Irish conflict of 1919–1921 and had opposed acceptance of the 1921 Treaty from the outset. In 1926, he founded a new political party, Fianna Fáil, and committed it to a program of extensive constitutional reforms that would radically alter the settlement enshrined in the 1921 Treaty and in the Constitution of the Irish Free State.Footnote ⁹⁴ By late 1931, it had become clear that de Valera had a good chance of winning an approaching general election.

It was not obvious to members of the Irish government that Thomas' apparent willingness to consider the proposed amendment to the Statute was based on a need to play for time. W.T. Cosgrave responded to the perceived threat by writing a letter to Prime Minister Ramsay MacDonald on November 21 that demanded resistance to Gretton's proposal.Footnote ⁹⁵ Cosgrave insisted that the Statute of Westminster reflected agreements that had been approved by all participants at the imperial conference of 1930. However, the central theme of the letter concerned the position of the Anglo–Irish Treaty. Cosgrave wrote that the Irish government had reiterated time and again “that the Treaty is an agreement which can be altered only by consent.”Footnote ⁹⁶ He asserted that the Irish people believed in the solemnity of the Treaty, but added that any attempt by the British Parliament to alter its terms would undermine Irish faith in the sanctity of this instrument.Footnote ⁹⁷

Patrick McGilligan, the Irish minister for external affairs, echoed Cosgrave's initiative by writing his own letter to James Thomas. This letter followed the same approach as that sent by Cosgrave, although McGilligan placed greater emphasis on the danger of giving in to “reactionaries.” McGilligan warned that there were “forces at work in both islands whose hatred for this country is so bitter that no consideration of general interest would stop them in their endeavour to overthrow the institutions built up here with so much toil and difficulty.”Footnote ⁹⁸ McGilligan also authorized John Dulanty, the Irish high commissioner in London, to impress upon James Thomas the “serious ill consequences” that would follow the acceptance of an amendment to the Statute relating to the Irish Free State.Footnote ⁹⁹ It was, however, Cosgrave's intervention that made the real impact.

Cosgrave's letter was deplored by members of the Fianna Fáil opposition. They were disturbed by Cosgrave's commitment to securing bilateral consent before amending the Treaty settlement. Seán MacEntee, a leading figure in Fianna Fáil, called it “one of the most utterly foolish letters that ever passed from a spokesman of the Irish people into the hands of a British politician.”Footnote ¹⁰⁰ However, Cosgrave's emphasis on the solemnity of the Treaty and the need to maintain a position of good faith at the heart of Anglo–Irish relations had a different impact on a British audience. The British government was sufficiently impressed with the contents of the letter as to actually read out the vital paragraphs to the House of Commons.Footnote ¹⁰¹ Ramsay MacDonald declared that he agreed with every word of the letter.Footnote ¹⁰² Austen Chamberlain, one of the British signatories of the 1921 Treaty, revealed that he had been disinclined to intervene in the debate until the effect of Cosgrave's letter stirred him into open opposition to Gretton's amendment.Footnote ¹⁰³ Even die-hard unionists seemed touched by Cosgrave's integrity.Footnote ¹⁰⁴ The Morning Post, a unionist newspaper, described Cosgrave's letter as a “trump card.”Footnote ¹⁰⁵ One unionist member of Parliament, Arthur Shirley Benn, claimed that he had actually torn up his speech supporting Colonel Gretton's amendment on hearing Cosgrave's letter.Footnote ¹⁰⁶

Cosgrave was not without his admirers at Westminster. His government had received considerable praise for restoring stability to the Irish Free State. The Cosgrave administration and, perhaps more importantly, Cosgrave himself, enjoyed a certain amount of esteem even among die-hard unionists. Most of those who supported Gretton's amendment made sure to praise Cosgrave's record of adherence to the terms of the Treaty.Footnote ¹⁰⁷ However, there were discordant voices that cast doubt on the apparent stability achieved by Cosgrave's government. Winston Churchill asserted that the Irish government had been forced to introduce public order legislation of such an extreme nature that it almost amounted to martial law.Footnote ¹⁰⁸ It was well known that Cosgrave's majority in the Irish Parliament amounted to a mere handful of seats, and that this precarious position would be sorely tested in the approaching election. There was a real possibility that Cosgrave might be replaced by de Valera in a matter of months. The political situation in the Irish Free State exerted a powerful influence throughout the debate on the Statute of Westminster.

The prospect of a de Valera government strengthened the resolve of those who supported the amendment of the Statute with respect to the Irish Free State. Supporters of Colonel Gretton's amendment refused to be convinced by the argument that the provisions of the Anglo–Irish Treaty rested on a moral plane that transcended questions of law. They highlighted the importance of maintaining existing legal controls even if it became clear that a future Irish government would defy them. Supporters of the amendment often asked whether de Valera would recognize the moral sanctity of the Treaty on which so much emphasis was laid. They also questioned the logical basis of handing the Irish the legal power to legislate contrary to the Treaty and then telling them that the exercise of such a power would be considered immoral.Footnote ¹⁰⁹

Supporters of Gretton's amendment also argued that its acceptance would actually strengthen the position of the Cosgrave administration in relation to its domestic opponents. It was argued that the removal of the legal bonds of the 1921 Treaty would ensure that the status of the Irish Free State would become the focus of every subsequent Irish election. Supporters of the proposed amendment concluded that this development would only be of benefit to Cosgrave's opponents. It was also argued that the retention of certain legal limits would provide continued grounds for restricting calls for radical change by those who did not recognize any moral dimension to the Treaty. These arguments were clearly out of line with political realities in the Irish Free State. If Gretton's amendment had been enacted, it would have been seen as a snub to the Cosgrave administration and its policy of constructive engagement with the Commonwealth. This is evident in the dismay with which the Cosgrave administration greeted the proposal. The proponents of Gretton's amendment were too intent on safeguarding the Treaty settlement to contemplate pragmatic means of extending the survival of the Cosgrave administration vis-à-vis their more extreme domestic opponents.Footnote ¹¹⁰

10. The Final Fate of Colonel Gretton's Amendment

The British government could never accept the proposed amendment to the Statute of Westminster, notwithstanding the strength of unionist opinion that lay behind the efforts of Gretton and Churchill. This was made clear in internal memoranda drafted for the benefit of the British government. These memoranda noted that the British government had accepted Irish arguments based on the moral sanctity of the Treaty that existed “on a higher plane than any legal sanction” at recent imperial conferences.Footnote ¹¹¹ The introduction of legal safeguards at this eleventh hour would be seen as a reversal of the agreements reached at these conferences.Footnote ¹¹² Acceptance of the amendment would have forced the British to violate established constitutional practice by enacting imperial legislation for a Dominion that no longer consented to the measure.Footnote ¹¹³ British officials also argued that it was difficult to see how their government could justify placing legal safeguards in the Statute relating to the Anglo– Irish Treaty without making similar demands with respect to the “entrenched clauses” in the South African Constitution that were designed to protect the rights of the English-speaking minority and the black majority. It was obvious to British officials that the latter course “would arouse the most violent opposition from General Hertzog, and cannot be contemplated for one moment.”Footnote ¹¹⁴

The British government would have faced serious opposition from the Dominions even if attempts to amend the Statute of Westminster were limited to the Irish Free State. Their Irish counterparts had long feared that an attempt would be made to introduce an amendment to the Statute of Westminster that would deny the Irish Free State the full benefit of this historic measure. In early 1931, Irish ministers went to the trouble of trying to secure advance support from the other Dominions in resisting a possible amendment of this nature. These efforts met with some success. Patrick McGilligan was able to tell the Dominions secretary, James Thomas, that Prime Minister Bennett of Canada had assured him that “the Free State would have the support of all members of the Commonwealth if the House of Lords were to attempt to tack on to the Statute of Westminster a provision saving the right of appeal in the Free State.”Footnote ¹¹⁵ The British took this claim seriously and concluded that any attempt to limit the effect of the future Statute of Westminster with respect to the Irish Free State would meet opposition from Canada, Australia, and South Africa in addition to the Irish Free State itself.Footnote ¹¹⁶ In late 1931, the administration in London was a coalition government that had recently emerged from a general election and was attempting to deal with a continuing financial crisis. Civil servants were forced to make decisions without meaningful ministerial guidance, which led to mishandling of some aspects of the enactment of the Statute.Footnote ¹¹⁷ The British government was also struggling to meet a deadline of December 1, 1931 in enacting the Statute.Footnote ¹¹⁸ In these trying circumstances, the British government could not afford a serious clash with the Irish Free State that might drag in the other Dominions.

The desire not to undermine the Cosgrave administration on the eve of a general election provided the British government with an additional incentive to defeat Gretton's amendment. The positive record of the Irish government in adhering to the Treaty was often emphasized. The great exception to this otherwise positive record was the attitude toward the Privy Council appeal. One memorandum noted that the Irish had acted as “very wrong-headed people” and had only themselves to blame for the creation of suspicions on this issue.Footnote ¹¹⁹ However, British memoranda were prepared to concede that the Irish position was “honestly held.”Footnote ¹²⁰ It was noted that the Statute would do no more than place the Irish Parliament in the same position as the Imperial Parliament, which had always enjoyed the legal right to legislate contrary to the terms of the 1921 Treaty.Footnote ¹²¹ One memorandum summed up by asking whether the future relations of the members of the Commonwealth were to be based on trust and confidence or not. Using an American analogy, it asked whether the British government intended to deal with this issue “in the spirit of Chatham or of Lord North”?Footnote ¹²²

The supporters of Gretton's amendment were in no doubt that removal of the limiting effect of the Colonial Laws Validity Act, 1865 by the Statute of Westminster would give the Irish Free State the power to legislate contrary to imperial statutes that protected the settlement imposed by the 1921 Treaty. Some of the opponents of the amendment, most notably Thomas Inskip as solicitor general, denied the accuracy of this legal argument.Footnote ¹²³ Stanley Baldwin, then lord president of the council, claimed that he had received legal advice that concluded “the binding character of the Articles of Agreement will not be altered by one jot or tittle by the passing of the Statute.”Footnote ¹²⁴ It is curious that none of the supporters of Gretton's amendment asked for a detailed explanation of these conclusions. The advice in question was based on perceptions that the signing of the 1921 Treaty had created a contractual relationship between the United Kingdom and the Irish Free State that was unaffected by the enactment of the Statute.Footnote ¹²⁵ This argument was not tested in public in 1931. Instead, Stanley Baldwin was content to provide the blithe, although vague, conclusion “That Treaty will be just as binding, so I am advised after the passing of this Statute as before” and added “this country has every security.”Footnote ¹²⁶ Although Baldwin's prognostications had a calming effect in 1931, they would later return to haunt him.

Contemporary accounts indicate that an amendment to the Statute of Westminster was a seen as a real possibility when Gretton revealed his initiative on November 20.Footnote ¹²⁷ This possibility had evaporated when the debate resumed 4 days later. The determined efforts of the British government undermined die-hard efforts to win support outside their traditional consituency. Thomas had spent the previous weekend meeting with the editor of the Times and also with the media magnate Lord Beaverbrook. These meetings had yielded undertakings that leading articles would appear in the Times and the Daily Express supporting the enactment of the Statute without amendment. The leadership of the Conservative Party was mobilized to counter the influence of Winston Churchill.Footnote ¹²⁸ The amendment was finally defeated by 360 votes to 50. It was often asserted in 1931, and in the years that followed, that the amendment had been defeated by the argument that the Statute would not undermine the settlement imposed by the 1921 Anglo–Irish Treaty and by the emotional impact of Cosgrave's letter of November 21.Footnote ¹²⁹ These arguments are not convincing. As illustrated earlier, constitutional practice and Dominion pressure ensured that the British government could never accept Gretton's amendment. Nevertheless, Cosgrave's intervention was useful in limiting support for Gretton's initiative. The Cosgrave administration has often been accused, from the 1920s to the present, of displaying a postcolonial psyche that craved the approval of former masters.Footnote ¹³⁰ However, the positive reputation that had been cultivated by the Cosgrave government was vital to the process of advancing the status of the Irish Free State at the imperial conferences of the 1920s and early 1930s. This positive image proved its worth during the final enactment of the Statute of Westminster.

11. Attempts to Amendment in the House of Lords

The only serious blot on the record of the Cosgrave administration, as far as the British were concerned, was its position with respect to the appeal to the Privy Council. In addition to numerous instances of blocking the appeal, members of the Irish government had made repeated declarations advocating its abolition in the very near future.Footnote ¹³¹ This issue provoked the second attempt at amending the Statute of Westminster with respect to the Irish Free State.

The amendment introduced in the House of Lords by Lord Danesfort did not seek to replicate the attempt made by Colonel Gretton to exclude the entire settlement enshrined in the 1921 Treaty from the effect of the Statute of Westminster. Instead, Danesfort confined his amendment to safeguarding the specific issue of the appeal to the Privy Council from the Irish courts. His proposed amendment would have inserted the following provisions into the Statute:

Danesfort was one of the most obdurate of the “southern unionists,” persons of a unionist persusion who hailed from the territory of the Irish Free State, in the House of Lords. He made it clear that his amendment was motivated by a desire to safeguard the position of the unionist minority in the Irish Free State. Danesfort was in no doubt that the appeal to the Privy Council was an effective safeguard for the southern unionists who continued to reside in the Irish Free State.Footnote ¹³³ He seemed prepared to accept Cosgrave's sincerity when the Irish premier wrote in his letter of November 21, 1931 “The Treaty is an agreement which can only be altered by consent.” However, Danesfort noted that this statement was not sufficient to safeguard the appeal to the Privy Council, given that members of the Irish government had argued that the appeal to the Privy Council was not strictly required by the 1921 Treaty.Footnote ¹³⁴ He also pointed to statements made by Cosgrave himself that advocated abolition of the Privy Council appeal.Footnote ¹³⁵

Danesfort's amendment was, in many respects, a poorly drafted provision. The reference to the Articles of Agreement of 1921 as “the Treaty” was particularly regrettable, given the stance of many British legal authorities on the legal nature of this instrument. Even though British officials, for the sake of convenience, often referred to the agreement reached in 1921 as a “treaty,” it was often asserted that it was nothing of the sort in strict legal terms.Footnote ¹³⁶ The reference to the “Supreme Court of Southern Ireland” was also an unfortunate, if not atypical, error. There was no such legal entity as “Southern Ireland” in existence in the 1930s. In any case, the proposed amendment had little chance of acceptance. Lord Hailsham spoke for the government when he made clear that the amendment would never be acceptable to the Dominions as a whole. The imposition of this provision against the will of the Irish Free State would be seen as incompatible with the insistence of the Dominions that they enjoyed a position of equality with the United Kingdom. Hailsham made it clear that acceptance of the amendment would damage Anglo–Irish relations, and would also have wider ramifications throughout the Empire.Footnote ¹³⁷ Lord Midleton, a peer from the south of Ireland, added that even if the amendment were passed, it would prove ineffective as “We all know that we are not going by force of arms to reaffirm the right of appeal to the Privy Council.”Footnote ¹³⁸

The British and Irish governments had long anticipated that the Irish appeal to the Privy Council would exert a powerful influence over the passage of the Statute of Westminster. The Irish had openly announced their intention to unilaterally abolish the appeal in the aftermath of their failure to secure multilateral agreement on this issue at the imperial conference of 1930.Footnote ¹³⁹ Nevertheless, the Irish government had not introduced any legislation seeking to put this objective into action in the year preceding the enactment of the Statute. Public attention on this controversial issue seems to have declined during this period of inertia. The failure of the Irish government to follow through on its promises ensured that the much-anticipated abolition of the appeal could only be mentioned in the conditional tense. The most Danesfort could do was to call upon Cosgrave to pause before deciding whether to execute a measure that would be seen as a “gross breach of faith.”Footnote ¹⁴⁰

The fears expressed by Churchill, Gretton, and Danesfort were not without foundation. The Cosgrave administration had already drafted its proposed legislation for abolishing the Irish appeal to the Privy Council.Footnote ¹⁴¹ The Irish government decided to postpone the publication of this draft legislation in the period preceding the parliamentary debates on the Statute. As events transpired, the Cosgrave government never had the opportunity to enact this proposed legislation. It lost power in a general election that occurred within weeks of the enactment of the Statute of Westminster.

12. The Impact of the Statute of Westminster on the Irish Free State

The Statute of Westminster was finally passed on December 11, 1931. The Cosgrave government had played a leading role in the creation of the Statute, and openly claimed credit for this achievement. A press statement issued by the Irish government boasted “it must be said that while very valuable help was received from Canada and South Africa the brunt of the task was admittedly borne by our Government.”Footnote ¹⁴² More importantly, the Irish government had ensured that the final form of the Statute applied without restriction or qualification to the Irish Free State. The Cosgrave administration trumpeted the final enactmentment as representing “the end of an epoch” and as marking a “mile-stone on the onward march of this nation.”Footnote ¹⁴³ However, the Cosgrave adminisration did not get the credit that it must have expected for this achievement. There were a number of reasons for this development, which had a long-term impact on Irish politics.

The first reason concerns the reaction of Cosgrave's opponents in the Irish Parliament. Although is unlikely that Irish ministers expected much credit from the parliamentary opposition, they must have been chagrined at accusations that their efforts had actually retarded the advance of Irish sovereignty.Footnote ¹⁴⁴ Seán T. O'Kelly, a future Irish president, accused the Cosgrave administration of having “worked with all their might to bind us more closely to the British Empire, politically, economically and financially.”Footnote ¹⁴⁵ Much Irish criticism of the Statute of Westminster focused on its status as a British imperial statute that purported to apply to the Irish Free State. The government was accused of having recognized British hegemony and of having “used its power to fasten for ever upon us, in so far as they can do so, this Dominion status.”Footnote ¹⁴⁶ Seán Lemass, a future Irish prime minister, insisted “What one British Parliament has enacted another British Parliament can repeal … without the consent of the Parliament of this State or of this Dominion.”Footnote ¹⁴⁷ Fossilized fears of “Imperial federation,” a movement that sought to convert the British Empire into a single state, still lingered in some nooks and crannies of Irish political life. Although this movement was in obvious decline in the 1930s, the Statute of Westminster was sometimes portrayed in Ireland as a possible cornerstone for a future imperial constitution.Footnote ¹⁴⁸ Patrick McGilligan was forced to refute speculation of this nature on numerous occasions, notwithstanding the obvious reality that the Statute had placed the final nail in the coffin of grandiose dreams of imperial federation.Footnote ¹⁴⁹

The second reason for the failure of the Cosgrave administration to win electoral credit for securing the statute concerns the stance taken by Irish ministers in relation to this historical piece of legislation. Patrick McGilligan emphasized “The passing of this Statute writes no new Constitution for this State.” He added “Everything that is there I claim, and have claimed, we possess already.”Footnote ¹⁵⁰ McGilligan and his governmental colleagues argued that the reforming provisions of the Statute were simply declaratory of powers that the Irish Free State had enjoyed since its foundation.Footnote ¹⁵¹ The legislative limits imposed by the common law and reflected in the Colonial Laws Validity Act, 1865 had applied to the other Dominions, but had never applied to the Irish Free State. The limits on extraterritiorial jurisdiction that had applied to the other Dominions had never applied to the Irish Free State. The Imperial Parliament could never pass imperial legislation for the Irish Free State after 1922, in contrast to the other Dominions. The Privy Council appeal should never have applied to the Irish Free State even though it was a key institution in the other Dominions. The stance maintained by the Irish government in 1931, like that of their parliamentary opponents, denied that the Irish Free State had ever really constituted a Dominion.Footnote ¹⁵² This is reflected in Patrick McGilligan's statement to the Seanad (the Irish senate) in 1931: “We have a peculiar position, quite different from the position of the Dominions.”Footnote ¹⁵³ McGilligan went further in presenting the Irish Free State as enjoying greater autonomy than the other Dominions when he declared that his country was “the first of the Commonwealth States to have attained a position of equality with Great Britain.”Footnote ¹⁵⁴

There are a number of difficulties with the position that the provisions of the Statute of Westminster were merely declaratory of a position of autonomy that had been enjoyed by the Irish Free State since the time of its foundation. If the Irish Free State already enjoyed the autonomy granted by the Statute of Westminster, why did it devote so much time and effort in bringing key aspects of this measure into being at successive imperial conferences? Any contention that these efforts were motivated by an unselfish desire to advance the position of the other Dominions must be rejected as unreal and inconsistent with the history of the imperial conferences. The alternative explanation, that the Irish merely wished to gain British recognition of their pre-existing position, is also problematic.Footnote ¹⁵⁵ First, it should be emphasized that the provisions of the Statute did not apply retrospectively. In addition, the actions of the Cosgrave administration in shelving the publication of key constitutional reforms in order to facilitate the enactment of the Statute of Westminster in 1931 are difficult to reconcile with the confident declarations of pre-existing autonomy that followed once the Statute was safely in force.Footnote ¹⁵⁶ Finally, the Irish government had not always claimed all aspects of the enhanced autonomy offered by the Statute of Westminster. For example, it should be remembered that Section 3 of the Statute provided that the Dominion parliaments could enact legislation that had extraterritorial effect. This was not a power that was claimed by Irish Free State at the time of its foundation. In 1922, the Irish government actually rejected a proposed amendment to the draft Irish Constitution that would have confirmed that the Irish Parliament enjoyed the power to legislate with extraterritorial effect.Footnote ¹⁵⁷ Kevin O'Higgins, the minister for home affairs, pointed out that a provision of this nature would be meaningless unless it was recognized by other countries.Footnote ¹⁵⁸

These difficulties have not prevented the Irish courts from maintaining the position that the Statute of Westminster was merely declaratory of a legal position enjoyed by the Irish Free State since the time of its creation.Footnote ¹⁵⁹ However, the adoption of this stance in 1931 was not conducive to winning popular acclaim for the achievements of the Cosgrave administration. Where was the merit in achieving new autonomy if the State had always enjoyed such autonomy from the time of its foundation? The argument that the achievement lay in securing British recognition for the pre-existing situation as an “Act of Renunciation” was less likely to capture the attention of the public.Footnote ¹⁶⁰ What little credit was derived from this argument was easily outweighed by the government's inability to answer awkward questions on the right to secede from the Empire and by the public nature of the failure to remove the appeal to the Privy Council.

The third reason for the failure of the Cosgrave administration to win popular acclaim for securing the advantagous provisions of the Statute was its loss of power a few weeks after the enactment of the Statute of Westminster. The new government led by Eamon de Valera soon moved to remove the key features of the 1921 Treaty settlement. Over the next 5 years, the de Valera administration dismantled the settlement imposed by the 1921 Treaty piece by piece. A deeply controversial parliamentary oath that mentioned King George V was removed.Footnote ¹⁶¹ The powers of the governor general, the king's representative in the Irish Free State, were diluted.Footnote ¹⁶² The appeal to the Judicial Committee of the Privy Council, a vital policy objective for the Cosgrave administration, was finally abolished.Footnote ¹⁶³ The Irish had never had any enthusiasm for the provisions of the Statute that required legislation from each Dominion with respect to succession to the Crown. Nevertheless, this aspect of the Statute actually proved to be beneficial to the Irish. In 1936, Eamon de Valera made use of the need for legislation to recognize the abdication of King Edward VIII to remove all references to the king from the text of the Constitution of the Irish Free State.Footnote ¹⁶⁴ De Valera cut the Gordian knot in 1937 when he abolished the Irish Constitition of 1922, regarded by many Irish nationalists as too closely associated with the 1921 Treaty, and replaced it with the Constitution that remains in force in Ireland today. These reforms did much to solidify Fianna Fáil dominance of Irish politics for the next seven decades.

Although the Statute of Westminster was of inestimable importance in facilitating this program of constitutional change, de Valera was careful not to justify his reforms by reference to its provisions. De Valera did examine the possibility of doing so soon after coming to power in 1932.Footnote ¹⁶⁵ Open reliance on the provisions of the Statute would have allowed de Valera to circumvent a number of obstacles presented by domestic Irish law. Many legal commentators argued that the Irish constituent assembly of 1922 was a very different entity from subsequent Irish parliaments.Footnote ¹⁶⁶ This argument suggested that subsequent Irish parliaments could not amend the statutory provisions enacted by the constituent assembly. These included the infamous “repugnancy clause” that rendered Irish laws void and inoperative if found to be incompatible with the provisions of the 1921 Treaty.Footnote ¹⁶⁷ The provisions of the Statute of Westminster ensured that no such obstacles existed with respect to the amendment of the restrictive provisions of the British imperial statute that also purported to enact the Irish Constitution of 1922. By a strange twist of fate, the Statute of Westminster offered greater autonomy to the Irish Free State than was provided by Irish domestic law. However, de Valera was informed by his legal advisors that the use of the provisions of the Statute to justify his program of constitutional reforms would sacrifice key principles that were held dear by many Irish nationalists.Footnote ¹⁶⁸ This approach would have conceded that the Irish Free State itself had been created by means of imperial statute, that it was not autochtonous and that the Irish Free State had come into existence as a Dominion of the British Empire. All of these claims were and remain anathema to many Irish people.

De Valera finally decided to follow the counsel of his legal advisers and did not rely directly on the legal provisions of the Statute in initiating his constitutional reforms. Instead, he tended to base his arguments, at least when speaking before a domestic audience, on the principle of co-equality and the general enhancement in the status of the Dominions.Footnote ¹⁶⁹ From the Irish perspective, the Statute was useful in that it reflected British recognition of the changed situation within the Commonwealth.Footnote ¹⁷⁰ However, even in this limited context, the Irish were reluctant to place too much emphasis on the Statute. For example, de Valera had considered making extensive use of the Statute in the early drafts of his speech on the introduction of legislation for the abolition of the Privy Council appeal. De Valera seems to have thought better of this, and all references to the Statute of Westminster were removed from the speech that was finally delivered.Footnote ¹⁷¹

The ambiguous stance adopted by de Valera did not limit the utility of the Statute of Westminster in inhibiting the British government from successfully challenging the legality of these measures. This became apparent in 1935, when the Judicial Committee of the Privy Council rejected a legal challenge to key aspects of de Valera's program of constitutional reform. In Moore v. Attorney General, the Privy Council held that it had to be assumed that the Irish Free State was acting under the authority of the Statute of Westminster in initiating these constitutional reforms, notwithstanding its refusal to justify its actions by reference to the provisions of that historic piece of legislation.Footnote ¹⁷² The court summarized the significance of the Statute to the advance of Irish sovereignty in a single sentence: “The simplest way of stating the situation is to say that the Statute of Westminster gave to the Irish Free State a power under which they could abrogate the Treaty, and that, as a matter of law, they have availed themselves of that power.”Footnote ¹⁷³

The supporters of Colonel Gretton's attempt to amend the provisions of the Statute of Westminster in relation to the Irish Free State made no attempt to hide their dismay and fury in the aftermath of this decision. They focused their ire on Thomas Inskip, who now held the office of attorney general. Inskip had been among those who had insisted that the enactment of the Statute would not confer unfettered powers upon the Irish Free State to abrogate the settlement embodied in the 1921 Treaty. He raised the argument that the 1921 Treaty had created a contractual relationship between the United Kingdom and the Irish Free State that was unaffected by the enactment of the Statute of Westminster, in his submissions to the Privy Council in Moore v. Attorney General.Footnote ¹⁷⁴ This argument had failed to persuade the Privy Council to rule against de Valera's program of constitutional reform.Footnote ¹⁷⁵ Winston Churchill subjected Inskip to a deluge of criticism, blaming him, among others, for giving the government “wrong advice both legal and political.”Footnote ¹⁷⁶ Stanley Baldwin, who had only returned to the post of prime minister a month earlier, was not allowed to forget the assurance that he had given in 1931 that the provisions of the 1921 Treaty would remain “just as binding” after the enactment of the Statute.Footnote ¹⁷⁷ Churchill was convinced that the blatant incompetence displayed by the British government in 1931 had nullified his own efforts, along with those of his former colleagues in the Lloyd George administration, during the negotiations that had preceded the signing of the 1921 Treaty.Footnote ¹⁷⁸

13. Wider Perspectives

Perceptions of the Statute of Westminster are often influenced by the historical context of the former Dominion that is the focus of a particular piece of scholarship. In Canada, the Statute is often placed alongside the 1926 Balfour declaration, which recognized the equality of the Dominions with the United Kingdom, as a key incident in an evolution toward full sovereignty.Footnote ¹⁷⁹ The status of the Statute in Canada has always been less controversial than in other former parts of the British Empire. This is reflected in the practice of celebrating Statute of Westminster Day every December 11, the date of enactment of this historic piece of legislation, which is marked by flying the Union flag alongside the Canadian flag over federal buildings.Footnote ¹⁸⁰ In Australia, the Statute tends to be associated with the impact of the Second World War, as reflected in the preamble of that country's Statute of Westminster Adoption Act 1942.Footnote ¹⁸¹ The adoption of the main provisions of the Statute were even given retroactive effect from September 3, 1939, the day in which Australia entered the Second World War.Footnote ¹⁸² In South Africa, the conferring of greater powers of self-government on the dominant white minority is often presented as a prelude to the imposition of apartheid. The enhanced autonomy offered by the Statute released the South African Parliament from the restriction of certain entrenched clauses of the South African Constitution, including provisions designed to safeguard voting rights.Footnote ¹⁸³ This eventually allowed non-white South Africans to be gradually deprived of a meaningful right to vote.Footnote ¹⁸⁴ The position of New Zealand as the last Dominion to adopt the most important provisions of the Statute, which it did in 1947, is used to illustrate the relative longevity of imperial sentiment in that country.Footnote ¹⁸⁵ According to Prime Minister Peter Fraser, this restraint had been motivated by a desire to avoid allowing enemy propagandists to misrepresent such a measure as evidence of the disintegration of the British Commonwealth, a claim that had also been made in Australia prior to 1942.Footnote ¹⁸⁶ New Zealand finally adopted the operative provisions of the Statute of Westminster in order to facilitate constitutional reform that included the abolition of its upper house of Parliament.Footnote ¹⁸⁷ The unfortunate fate of the Dominion of Newfoundland is reflected in the position that the significant provisions of the Statute never applied until it became a Canadian province in 1949.Footnote ¹⁸⁸ In the United Kingdom, the Statute of Westminster is used as an interesting example of limits on the principle of parliamentary sovereignty.Footnote ¹⁸⁹ The examples of Irish scholarship that do give some attention to the Statute of Westminster almost invariably associate it with the abolition of the settlement imposed by the 1921 Anglo–Irish Treaty.Footnote ¹⁹⁰

However, the Statute of Westminster also has a wider historical significance that is of relevance to all of these countries as part of a larger community. It has already been noted that the enactment of the Statute facilitated the recognition of the Dominions as sovereign states in leading works on public international law. Few authorities before the outbreak of the First World War were prepared to recognize that the Dominions had any separate status or personality under international law. The 1912 edition of Oppenheim's International Law maintained that the Dominions “have no international position whatever; they are, from the standpoint of the Law of Nations, nothing else than colonial portions of the mother-country.”Footnote ¹⁹¹ The participation of separate Dominion delegations at the peace talks that followed the First World War did much to change this position. The Dominions were founding members of the League of Nations with the exceptions of Newfoundland, which declined separate representation, and the Irish Free State, which had not yet come into existence.Footnote ¹⁹² Nevertheless, these developments did not result in the immediate recognition of the Dominions as sovereign states. The 1920 edition of Oppenheim's International Law admitted that the Dominions now enjoyed “a position in International Law,” but added that it “defies exact definition.”Footnote ¹⁹³ As mentioned earlier, an examination of the question as to whether the Dominions constituted sovereign states in 1929 produced a definite conclusion in the negative. P.J. Noel Baker concluded that the Dominions could be considered “part sovereign States,” but confidently concluded “they are not wholly ‘independent sovereign States’ like France or Belgium.”Footnote ¹⁹⁴

The Dominion experience of a slow evolution to the status of sovereign states, in which the Statute of Westminster acts as a useful symbol, is difficult to reconcile with constitutive theories of state recognition in public international law. These theories maintain that the creation of a new sovereign state and its endowment with legal personality is derived from acts of recognition by other states.Footnote ¹⁹⁵ The process by which a state obtains full independence has little relevance in the context of constitutive theories. The main obstacle in applying this approach to the former Dominions lies in the absence of clear acts of recognition from other states that these self-governing enities were now sovereign states and not autonomous parts of the British Empire. It is impossible to explain the sovereign status of the former Dominions without some reference to the history of their slow evolution toward full sovereignty. The evolutionary process followed by the Dominions is only compatible with declaratory theories of state recognition. This approach maintains that recognition is no more than an acceptance by states of an already existing situation.Footnote ¹⁹⁶ The advance of Dominion autonomy, in which the Statute of Westminster was a key part, supports the contention that the process of transformation toward full sovereignty is not reliant on acts of recognition by other states.

Champions of declaratory theories of state recognition faced their own barriers in recognizing the full extent of Dominion autonomy before 1931. These difficulties were based on the importance of unwritten custom to Dominion autonomy in the early twentieth century.Footnote ¹⁹⁷ The declaratory appraoch has been heavily influenced by traditional postivist thought on the supremacy of the state.Footnote ¹⁹⁸ Austinian theories of tacit recognition of custom can never be fully reconciled with the evolution of the Dominions toward greater autonomy.Footnote ¹⁹⁹ In the early twentieth century, it had become clear that Westminster could only legislate for a Dominion if it had the consent of that Dominion. It was never possible to pinpoint the exact moment in which this custom came into existence or when the Parliament at Westminster became aware of this reality. Evidence of tacit recognition through enforcement by the courts cannot apply to the Dominions, as this custom was never challenged in the context of litigation. The Statute of Westminster removed the barriers that prevented traditional positivist thought from recognizing the legal status of important aspects of Dominion autonomy.

This is not to say that all the provisions of the Statute of Westminster were merely declaratory in nature. In particular, the removal of the position under which Dominion laws could be declared null and void on the grounds of incompatibility with British imperial statutes was a new and important advance in Dominion autonomy. The Statute was an important step in the evolution of the Dominions in becoming fully sovereign states, but it was only one step among many. A failure to recognize this reality has led to some exaggeration of the significance of the Statute of Westminster in historical and legal scholarship emanating from former parts of the British Empire.Footnote ²⁰⁰ Even courts have occasionally fallen into this trap.Footnote ²⁰¹ The Statute tempts scholars and lawyers with a neat and tidy shortcut that avoids having to describe a lengthy and complex evolution from colonial status to full sovereignty. The only exception to this trend concerns scholarship focusing on the Irish Free State, which has not always recognized the full significance of the Statute in the development of Irish sovereignty. The Irish courts maintain the position that the Statute of Westminster had no direct impact on Irish law.Footnote ²⁰²