The question remains what should be the ultimate court of appeal for questions of this kind arising under an Irish Home Rule Act. According to our general forensic habit and tradition, it would be the court to which appeals are taken in the ordinary course from the Court of Appeal in Ireland, namely the House of Lords. It appears however to have been decided that this duty will be more appropriate to the Judicial Committee of the Privy Council. Now it is high time, for quite independent reasons, that these two courts of last resort, which are composed in practice of the same, or very nearly the same members, should be merged in a single tribunal of final appeal for the whole of the British Empire. In the meanwhile the only material difference is that when noble and learned persons are sitting as the House of Lords they can and do express their individual opinions in the form of speeches addressed to the House itself, and when they sit as “their Lordships” of the Privy Council, or “this Board,” only one opinion is given as the Judicial Committee’s advice to His Majesty. For my part I rather think that the suppression of dissenting opinions does not work well in cases of constitutional interpretation. Some decisions of the Judicial Committee within pretty recent memory have been hardly intelligible; one is tempted to conjecture that not all of the reasons for them commanded unanimous assent, and the reasons to which the whole or the greater part of their Lordships could agree were not the best that any of them could have given. Separate and dissenting opinions are freely given in the Supreme Court of the United States, which has dealt with the most delicate constitutional questions ever since its work began. If I were an Irishman I think I should prefer the House of Lords to the Judicial Committee. But, as above said, it is hoped that before very long they will cease to be distinct tribunals. Moreover there is a practical reason, which shall now be mentioned, for making the Judicial Committee the final Court of Appeal in this behalf.
It appears from the published text of the Bill [cl. 29, sub.-cl. 1] that the Lord-Lieutenant or a Secretary of State—in ordinary political language either the Irish Government or the Home Government—may refer a question whether any provision of an Irish Act or Bill is constitutional to be heard and determined by the Judicial Committee of the Privy Council. That Committee is to decide who are the proper parties to argue the case. There does not seem to be any reason to apprehend that the parties interested would make difficulties on the score of expense; they would be either public authorities or representative associations. This provision is really not a novelty but a special declaration, and perhaps an enlargement, of the very wide power given by the Act which established the Judicial Committee in 1833,(82) and empowered the King “to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit”: a power more than once exercised in our own time.(83) It is quite easy, however, for even learned persons who are not familiar with the practice of the Privy Council to overlook the existence of this enactment, and therefore the insertion of an express clause in the Home Rule Bill is judicious. Probably no one will seriously propose to deprive the Crown, as regards Ireland, of a power which it already has throughout the British Empire. But it is a matter from which party politics ought to be rigorously excluded. It should be understood that the power will not be exercised without a considered opinion of the law officers, in Ireland or here, that there is a substantial and arguable question.