NILQ 63(3): 365–95

The Privy Council appeal as a minority safeguard for the Protestant community of the , 1922–1935 Dr ThomaS mohr Lecturer in Law, School of Law, University College

Introduction he secession of the Irish Free State from the in 1922 left a Tconsiderable number of Irish Protestants on the southern side of the border. In 1926 there were just over 200,000 Protestants in the Irish Free State out of a total population of just under 3 million. 1 This was a considerable reduction from the just over 300,000 Protestants out of a total population of just over 3 million who had been recorded in the 26 counties in the census of 1911. 2 It is difficult to attribute this considerable disparity in numbers to anything other than the traumatic nature of the birth of the Irish Free State. A reduction of one-third in just 15 years cannot be explained by considerations of high mortality, low fertility, religious conversions or even the withdrawal of British security forces in 1922. Kevin O’Higgins, Minister for Home Affairs, admitted to the Dáil in 1922 that: [C]ertain people differing from the majority in religion, and perhaps also, and I am not sure of that, even in political outlook, were driven from their homes and from their positions in greater numbers than I was aware of until quite recently. 3 Despite this dramatic drop in numbers, a significant number of southern Protestants remained in the new Irish Free State. Many southern Protestants were Unionists and continued to identify with that tradition after the creation of the new state. The ‘abandonment’ of a large number of loyal British subjects in the southern and western parts of remained an emotive issue at Westminster and in the British media for many years. Yet, it was argued that the minority community had not been left without important safeguards of their religious and political rights. The necessity for these safeguards was recognised by the Irish provisional government itself. Kevin O’Higgins recognised the real fears that existed within the minority community and expressed some sympathy for its position at the break-up of the Union ‘when the thing they looked to and

1 In this context, the term ‘Protestants’ includes Protestant Episcopalians, Presbyterians, Methodists and Baptists. The decline in the Protestant population of the 26 counties that would eventually form the Irish Free State is discussed in Robert E Kennedy, The Irish: Emigration, Marriage and Fertility (University of California Press 1973) 110–38. 2 Ibid. 3 Dáil Debates , vol 1, col 572 (21 September 1922). 366 Northern Ireland Legal Quarterly 63(3) felt was a buttress and shelter for them is suddenly swept away and they find themselves in the awful position of being at the mercy of their fellow countrymen’. 4 minority safeguards On 6 December 1921 British and Irish representatives signed the document popularly known as ‘the Treaty’ in Ireland. 5 The months that followed saw the gradual crystallisation of the institutions of the new self-governing state in the 26 counties of the south and west of the island of Ireland. Some of the most important institutions were designed to ensure that southern Protestants would have a significant voice in the political affairs of the new state. The new Irish Parliament, or Oireachtas, included an upper house of parliament, or Seanad, which was to be elected from a single electoral area that spanned the entire Irish Free State. 6 The lower house, or Dáil, was to be elected on a proportional representation voting system. Both measures were designed to ensure that the Protestant population, scattered throughout the territory of the new state, would be able to elect representatives to the Oireachtas. In addition, eleventh-hour amendments provided that three representatives from