Unpacking ‘British Justice’: The Colonial Legal Service and the Post-War British Empire
Dr Helen O’Shea (Dundee University) highlights the role played by Irishmen in the post-war British empire, and urges us to consider just how ‘British’ the justice system was.
Your reliance on British justice and British fairplay is entirely misplaced. Wherever in the world you should look for justice and fair play, that place is certainly not the centre of the British Empire.
Michael Collins to Archbishop Kyrillos of Cyprus, 28 July 1919
Despite this blunt assessment by the ‘Big Fella’ to a pamphlet entitled Cyprus Trusts in British Justice sent to him by Archbishop Kyrillos, ‘British justice’ in Cyprus during the Emergency lay in the hands of several Irish judges, one of whom was Chief Justice of the Supreme Court, Sir Paget John Bourke. With him in Cyprus was his wife, Susan Bourke (née Killeen), daughter of a Clare county registrar and a one-time girlfriend of Michael Collins. The strong presence of Irish judges in Cyprus during the Emergency was no anomaly nor was it without precedent. It was indicative of the continuity of the tradition of Irish judicial participation in empire in the decades following Irish independence. In a 1930 report on the university origins of British Colonial Service appointments, TCD (Trinity College Dublin) was the sixth biggest recruiting university. According to Anthony Kirk-Greene, doyen of the historical study of British colonial administrators, the status of Oxford and Cambridge was ‘an influence shared with Trinity College Dublin and the University of London as each went on to play a calculated and public role in the post-graduate teaching of probationers for Britain’s expanding civil service.’
Although Irish participants in empire came from all types of background, the Irish legal participation in Cyprus was predominantly drawn from TCD graduates, both Catholic and Protestant. Between 1953 and 1957, legal recruitment in the British Colonial Service almost halved, reduced from 50 to 26 appointments. This was not due to a lack of available positions, although opportunities were certainly diminished with Indian independence, but more to a fundamental decline in the attractiveness of such positions. A judicial career in the British colonial service no longer seemed such a lucrative and exotic path. Job security, and indeed physical safety, was now being questioned, given the emergencies in Malaya and Kenya and the independence, not only of India, but of Palestine, Ceylon and Burma as well. As Kirk-Greene emphasises, ‘the morale of the Colonial Service and the sudden decline in attractiveness as a career after its flourishing in the immediate post-war years were manifest in the percentage of posts remaining unfilled when set beside the number of appointments made.’ By 1 October 1954, when the Colonial Service (CS) became Her Majesty’s Overseas Civil Service (HMOCV), Irish judges filled the vacuum, particularly in Cyprus and Kenya, but also in Africa generally. In the Journal of African Law, Antony Allott asserts that during the ‘late colonial scene’ in Africa, ‘colonial legal servants who hailed from Ireland constituted a striking proportion of the membership of the Colonial Legal Service, whether as Crown Counsel, Law Officers or members of the professional judiciary.’
The full impact of the historic high court ruling in London in April 2012, resulting in the ‘Hanslope disclosure’ of thousands of previously concealed colonial records dealing with emergency and extraordinary legal measures in 36 colonies will take years, indeed decades, to materialise but with emergency law proving salient in a post-9/11, post-Arab spring world order and its corollary of inscribing emergency measures into normalcy regimes, the philosophical, ethical, legal and practical issues of emergency law are receiving increased academic attention. Indeed, the heightened public awareness of some of the more grimmer aspects of post-war emergency law and order resulting from the successful financial compensation in June 2013 for Kenyan Mau Mau veterans makes it surely all the more timely to ask how Irish, Welsh and Scottish ‘British justice’ really was.
 Quoted in Deirdre McMahon, ‘Ireland and the Commonwealth, 1900-1948,’ in Judith Brown and Wm. Roger Louis (eds), The Oxford History of the British Empire: The Twentieth Century, Vol. IV, (Oxford, 1999), p. 147.
 Chrissy Osborne, Michael Collins, Himself (Cork, 2003), p. 65.
 A.H.M. Kirk-Greene, Britain’s Imperial Administrators, 1858-1966 (Basingstoke, 2000), p. 21.
 Ibid., p. 65.
 Antony Allott, ‘The Journal of African Law 1957-96: Then and Now.’ The Journal of African Law Vol. 40, No. 2, 1996, p. 145. Also see T. Olawale Elias, ‘Form and Content of Colonial Law.’ The International and Comparative Law Quarterly, Vol. 3, No. 4 (1954), p. 650; Jerry Dupont, The Common Law Abroad: Constitutional and Legal Legacy of the British Empire (New York, 2001), p. 774.
Helen O’Shea was awarded her PhD in history from the University of Edinburgh in 2010 and currently is a lecturer in Modern History at the University of Dundee. She is the author of Ireland and the End of the British Empire: The Republic and Its Role in the Cyprus Emergency (London, 2014). She has recently been awarded a Royal Society of Edinburgh Small Research Grant to begin an analysis of the Scottish contribution to the colonial legal service in the post-war British Empire.