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GAZETTE
SEPTEMBER 1976
ADDRESS TO MEMBERS OF THE
AUSTRALIAN BAR ON THEIR VISIT
TO IRELAND — FOUR COURTS,
DUBLIN, JULY 12th, 1976
by Hugh 0'Flaherty, Senior Counsel
Introduction
Some short time ago when I agreed to address you I
did so in ignorance of something that Sir Robert Menzies
had written :-
,T have no doubt, and most lawyers would, I think
agree, that the High Court of Australia, is and has been
for a long time, composed of a body of judicial lawyers
which has no superior in the English-speaking world".
1
Ideally you should be addressed by somebody with
an academic or jurisprudential turn of mind but I must
define my area of competence. It is concerned with
active practice within this building, or its environs. My
remarks, therefore, will centre around some aspects of
our common profession.
I will attempt to delineate some aspects of Irish law
but in so far as a comparison is to be made with
Australian law you will have to fill in the lacuna.
We all share the inheritance of the Common Law.
In the year before American Independence, Edmund
Burke had delivered his famous speech on Conciliation
with America.. One of the things that he high-lighted
as pointing to the "untractable spirit" of the Americans
was their education in law. He said that in no country
in the world was the law so generally studied. "The
profession itself is numerous and powerful; and in most
provinces it takes the lead. The greater number of the
deputies sent to the Congress were lawyers". He said
that as many of Blackstone's Commentaries were sold in
America as in England.
The Australian settlers appear to have taken to the
law with as much relish as the American Founding
Fathers and, to this day, it appears that the law and
politics there go hand in hand. It appears that the three
parties in the centre of the Constitutional storm in 1975
were lawyers, namely, the then Prime Minister Mr.
Whitlam; the Attorney General and the Governor
General.
After you leave here you go to England, the home of
the Common Law where, too, they have a high opinion
of their judges. "If justice had a voice, she would speak
like an English Judge". This was quoted unblushingly
by Lord Denning in 1955.
2
We think as highly of our
judges but we do not express our sentiments so effusively.
Historical Evolution
It is essential first to consider the historical evolution
of the State. Before 1920 the Imperial Parliament at
Westminster exercised legislative power over the whole
of Ireland. The Government of Ireland Act, 1920, made
provision for a Parliament of Northern Ireland with
limited jurisdiction over the counties of Antrim, Armagh,
Down, Fermanagh, Derry and Tyrone and the parlia-
mentary boroughs of Belfast and Derry. It tried to set
up a Parliament of Southern Ireland with jurisdiction
over the other 26 counties.
Articles 11 and 12 of the Treaty between Great
Britain and Ireland which was signed on December 6,
1921, were given the force of law in the 26 counties —
the Irish Free State (Saorstat Eireann) now known as
the Republic of Ireland,3 — by the Constitution of the
Irish Free State (Saorstat Eireann) Act, 1922. This Act
was passed by Dail Eireann as a Constituent Assembly
on October 25, 1922. Article 43 provided that laws
actually in
force
at the coming into operation of the
Constitution should continue to be of full force and
effect to the extent to which they were not inconsistent
with the Constitution and subject, of course, to the power
of the Oireachtas (Parliament) to repeal or amend them.
The original intention was that the Parliament should
have the power to amend the Constitution for a period
of 8 years from the date of its coming into operation,
and that, after that, a referendum would be required.
But the very provision limiting the time to 8 years was
itself extended to 16 years as the period in which the
Oireachtas was to be entitled to amend the Constitution
by ordinary legislation.
4
There were 27 Acts in all ex-
pressed to be Acts to amend the Constitution in the
15 years of its existence. With the accession of Mr. de
Valera to power, after the general election of 1932,
the appeal to the Privy Council was removed, as was
the oath of allegiance to the British Crown and the way
was paved for the enactment of a new Constitution
which was put to a plebiscite and was enacted on the
1st July, 1937, and came into force on the following
29th December. It, too, contained power for the Parlia-
ment to make amendments but only for a period of
three years and that Article was, itself, incapable of
amendment. In other words, on this occasion, it was
made absolutely clear that once the three years had
elapsed from its enactment, the Constitution could only
be amended by way of referendum.
5
Article 50 of the Constitution provided that to the
extent to which they were no inconsisent therewith the
laws in force immediately prior to the coming into
operation of the Constitution should continue to be of
full force and effect until they should be repealed or
amended by enactment of the Oireachtas.
Article 34 of the Constitution provided for a Court
of Final Appeal to be called the Supreme Court and
Courts of First Instance which should include a High
Court "invested with full original jurisdiction in and
power to determine all matters and questions whether of
law or fact, civil or criminal".
6
In fact the new Courts
were not formally established until 1961.
7
Article 58 of
the Constitution
8
provided that the existing Courts with
their pre-existing jurisdiction should continue but when
you read in the Irish Reports references to the "former"
Supreme Court or High Court it is a reference to the
Court (consisting of the same personnel) which held
sway prior to the enactment of the Courts (Establishment
and Constitution) Act 1960. There are six members of
the Supreme Court presided over by the Chief Justice.
9
There are 8 members of the High Court Bench presided
over by the President who ranks second only to the
Chief Justice in the judicial hierarchy. High Court
judges are available to sit on the Supreme Court if
required and
vice versa.
It would be the reverse of historic fact to say that the
Common Law, having been planted here, has had an
uneventful progress ever since. During the last century,
for example, jury rigging was taken for granted. The
1. Sir Robert Menzies:
Afternoon
Light.
( L o n d o n: Penguin
Books Ltd., 1969).
2.
The Road to Justice
( L o n d o n: Stevens & Sons Ltd.).
3. T h e Republic of Ireland Act 1948 (No. 22 of 1948).
4. See Constitution (Amendment No. 16) Act 1929 (No. 10
of 1929) a nd
The State (Ryan and others) v. Lennon
and
others
(1935) I.R. 170.
5. Article 51 of the Constitution (omitted f r om every official
text of the Constitution published a f t er the expiration of
the 3 years).
6. Article 34. Sec. 3.
7. Courts (Establishment a nd Constitution) Act 1961 (No.
38 of 1961).
8. This was also one of the transitory provisions of the
Constitution which does not a p p e ar in any text printed
since 1942.
9. M r. Justice Walsh is also President of the
L aw
Commission.
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