Creative ambiguity can be a useful tool for negotiators in complex circumstances. An example of ambiguity found in the agreement for an Anglo-Irish Treaty signed in London on 6 December 1921 is enshrined in Articles 1 and 11–12. Irish nationalists took these to mean that the agreement constituted Ireland as an all-island Irish Free State, only giving Northern Ireland a right to exclude itself subsequently from that state and in the manner specified in that agreement, so that (as Article 12 put it), ‘the powers of the Parliament and the Government of the Irish Free State shall no longer extend to Northern Ireland’ (emphases added). The Sinn Féin negotiators had insisted all along that those partitioning the island should formally recognise in principle the intrinsic unity of Ireland.

United Kingdom unionists preferred to interpret the agreement as having from the outset excluded Northern Ireland from the new state, albeit providing for Northern Ireland to be included after one month unless it formally indicated in the meantime that it wished to remain outside the Irish Free State. Unionists pointed to words in Article 11: ‘Until the expiration of one month from the passing of the Act … the powers of the Parliament and the Government of the Irish Free State shall not be exercisable as respects Northern Ireland’ (emphasis added). In practice, Northern Ireland could remain outside the Irish Free State either way.

However, if creative ambiguity can help to get a complex treaty across the line of agreement, it may also have unforeseen or negative consequences. This has been very evident from recent disputes over the Northern Ireland Protocol of the ‘Brexit’ agreement. Further ambiguity in the Anglo-Irish Treaty of 1921 was likewise problematic. Under Article 12, should Northern Ireland resolve to be separate from the Irish Free State,

Each side construed the meaning of those words differently.

The Irish negotiators had convinced themselves that they had won a major concession – that this mechanism would ensure large transfers of territory from the six counties of Northern Ireland into the Irish Free State. The British thought otherwise, and they were convinced that the Privy Council would back their interpretation. Privately, the greatest lawyer on either side, Lord Chancellor Birkenhead (F. E. Smith), appeared to have something of a bad conscience about the matter. Nearly three years after the agreement, he wrote bluntly to his fellow negotiator with the Irish, Austen Chamberlain:

In his first sentence, Birkenhead’s reference to ‘consideration’ highlights the fact that the Irish believed there was a deal done. The deal was that in return for the nominal recognition of essential Irish unity that the Treaty afforded Sinn Féin, the Irish allowed for Northern Ireland to opt out of the Irish Free State – but only provided that the British facilitated significant adjustments to the border created at Westminster more than a year earlier.

Prime Minister Lloyd George himself was dismissive of the existing borderline created by the Government of Ireland Act 1920. On 10 November 1921 he wrote to James Craig, leader of the Ulster unionists, warning that if Northern Ireland remained in the United Kingdom,

He soon added another warning:

These were clear and prescient indications that Lloyd George regarded the Irish border as both unsettled and unsettling. The leader of the Irish negotiators, Arthur Griffith, had pointed out that elections already showed clear nationalist or republican majorities in the counties of Fermanagh and Tyrone, and he and Michael Collins expected these counties – along with portions of counties Down and Londonderry – to be allowed to be transferred into the Irish Free State. It never happened. Indeed, it was partly because of the deaths of Griffith and Collins in 1922 – and partly because of the civil war that raged that year and in 1923 – that the Boundary Commission ultimately came to nothing and the border remained where it was.

One might say, from Birkenhead’s British perspective, that the lawyers got things precisely right. He was confident that the Boundary Commission – and ultimately the Privy Council – would follow precedent in such matters and construe the powers of the commission very narrowly. The Irish in 1921 virtually ignored the possibly significant role of the Privy Council. But as ambiguities gave rise to administrative and political problems, the referral of Article 12 to the Privy Council by the British government in 1924 led to what Cabinet Secretary Thomas Jones described in quotation marks as a ‘beastly awkward’ decision. In July that year, Jones observed in respect to the drafting of the Treaty that ‘though there were half a dozen famous lawyers among the plenipotentiaries, it is notorious that a lawyer cannot draft his own will clearly’.Footnote ⁴

It is not evident who Jones had in mind as ‘famous lawyers’. Of the five Irish plenipotentiaries, one was a solicitor and one a barrister. Éamonn Duggan had become a solicitor in Ireland in middle age and had a modest practice – when the British were not interning him for his republican activities. He was a TD (member of Dáil Éireann, the revolutionary parliament set up by Sinn Féin after that party swept to victory in Ireland in the 1918 UK general election). George Gavan Duffy TD had passed all his law examinations in England magna cum laude and was admitted a solicitor there in 1907. Griffith had urged him to return to live in Ireland: ‘[b]oth your skill as a solicitor and your name would be of material assistance’. He did not return immediately but was on the non-resident executive of Sinn Féin in 1908–10.Footnote ⁵ He was a member of Roger Casement’s legal team in the latter’s trial for treason in London in 1916, when F. E. Smith, later Lord Birkenhead, prosecuted the case. According to George Gavan Duffy’s son, George’s partners in his solicitors’ firm told him that if he persisted in Casement’s defence he would have to leave the practice. Subsequently, ‘without notice, his name was removed from the firm’.Footnote ⁶ He then moved to Ireland and, obtaining exemptions as a qualified solicitor, was called to the Bar in Dublin in 1917. He was elected a Sinn Féin MP in 1918, and represented many republican clients.Footnote ⁷ After independence he was to pursue a legal career rather than a political one, and in 1946 was appointed president of the Irish Free State’s high court. According to Hogan, he earned ‘a remarkable reputation’ as a judge.Footnote ⁸ But it is hard to see how in 1921 Jones might have thought either Duggan or Gavan Duffy to be of much professional value in matters of constitutional or Dominion law. Even Éamon de Valera, the Sinn Féin leader and president of Dáil Éireann in Dublin, privately described the two men as ‘mere legal padding’.Footnote ⁹ De Valera himself, for reasons long debated and contested, did not participate in London in the treaty negotiations.

The two leading secretaries on the Irish team, Erskine Childers and John Smith Chartres, also had some legal education. It seems that the pair undertook most of the drafting of documents on the Irish side, with occasional assistance from professional advisers who visited the delegates’ rented Irish headquarters in Hans Place. Theirs were remarkable appointments. By late 1921, the Anglo-Irish Childers was close to de Valera. The latter described Childers as ‘an intellectual republican’ and said privately that he was sent to London partly to give Robert Barton (the fifth delegate and a near cousin and close friend of Childers) ‘added strength’ as ‘a retarding force’.Footnote ¹⁰ Childers had studied classics and law at Cambridge, but was never called following his admission to the Inner Temple in 1892. Instead, he worked in England as a civil servant and soldier. He had a ‘cultivated English accent’.Footnote ¹¹

Childers had written a book, published in 1911, exploring models of home rule for Ireland. In it he stated that ‘nobody of sense, in or out of Ireland’ supposed that Ireland’s best interest lay outside the Empire. Ironically, in 1921 nobody on the Treaty team was more sensitive than Childers to the possibility of imperial considerations overriding republican ambitions.Footnote ¹² For his part, from his surviving diaries it is evident that Childers thought of himself as something of a constitutional or Dominion expert, drawing up policy documents for his side on matters such as ‘Law and Fact in Canada’, and was enraged at being sidelined during the Treaty negotiations.Footnote ¹³ That Childers was left outside the conference room door in Downing Street was partly due to the fact that he and Griffith did not agree and did not get along well with one another, and partly due to the fact that some of the British delegates intensely disliked him. This had a consequential effect because it also meant that corresponding British officials were excluded more often than otherwise, as Jones noted: ‘[t]he Treaty was not drafted as an Act of Parliament would be drafted. Officials were frequently excluded from the Treaty negotiations, chiefly because of Childers’.Footnote ¹⁴ Chamberlain certainly did not share Childers’ assessment of his own skills, remarking to Birkenhead on one occasion that a certain document ‘is not Collins or even Griffith. It is a second rate attorney’s – in other words Erskine Childers’ draft’.Footnote ¹⁵

Chartres, born in England to Irish parents, was admitted to King’s Inns in Dublin in 1884, but not called to the Bar until 1908, by Middle Temple in London. Before World War I, Chartres was employed by the London Times as its ‘head of intelligence’ (news research, indexing and reference), at a time when Edward Grigg (who later became Lloyd George’s private secretary and who in 1921 helped his fellow official Lionel Curtis to draft the boundary commission proposal) worked for The Times as head of its colonial department. Chartres had a practice at the Bar and wrote books on the judicial interpretation of statutes.Footnote ¹⁶ Both he and Childers were employed gathering intelligence for British government departments immediately before their respective conversions to Irish republicanism. Each helped to run guns to the Irish Volunteers (the emerging ‘IRA’). From 1917 Chartres also contributed articles to Arthur Griffith’s latest weekly paper, Nationality, under the pen name Haud Immemor (‘not forgotten’).Footnote ¹⁷ By late 1921, Chartres had moved to Berlin as a Sinn Féin representative, but was then requested to go to London for the Treaty talks. According to Nancy Power, who assisted him in Berlin, Frank Pakenham was ‘misled’ about Chartres’ claim to expertise: ‘John Chartres did not pose as a constitutional lawyer. In a conversation with a friend at the time he emphasised that he had explained to Arthur Griffith that, while willing to do his best, he was not a constitutional lawyer but a common lawyer.’Footnote ¹⁸

And who on the other side, among the seven British plenipotentiaries, was a ‘famous lawyer’? Neither Chamberlain, nor Winston Churchill fitted Tom Jones’ description. Prime Minister Lloyd George himself had been a solicitor, but he owed his fame to politics rather than to law. Laming Worthington-Evans MP was the head of a firm of solicitors with personal expertise in company law, but his fame outside that circle was not great. Gordon Hewart was respected as legal counsel and in 1919 had become attorney general for England and Wales. To that extent, he was by 1921 ‘famous’ as a lawyer, although – according to an unflattering profile by Professor Robert Stevens of the University of Oxford – his subsequent career as lord chief justice of England was ‘not distinguished’.Footnote ¹⁹ Hamar Greenwood, who was chief secretary for Ireland during the War of Independence, was a king’s counsel and bencher of Gray’s Inn. He was infamous in Ireland for his association with the undisciplined Crown forces known as Black and Tans and ‘Auxiliaries’, but not particularly famous in Britain as a lawyer.Footnote ²⁰

In reality, of the seven British and Irish plenipotentiaries who were qualified to practise law, there was just one who was undoubtedly a ‘famous lawyer’. This was F. E. Smith, Lord Birkenhead, who would be ‘remembered as a great lord chancellor’ of England and Wales. He was an accomplished practitioner, and also for years an ‘apparently extreme’ supporter of Ulster’s unionists. He had attended some militant unionist rallies in Ulster against Home Rule and he earned the nickname ‘Carson’s galloper’.Footnote ²¹

The Legal Advisory Committee

There was at least one Irish lawyer who foresaw that the ambiguities in the Treaty might not all work out well for the Irish side. This was John O’Byrne. He was among the members of a small ‘Constitutional and International Law Committee’ that the Dáil ministry set up in early October 1921, under the auspices of the Minister for Home Affairs, Austin Stack. The committee’s membership was drawn from a small band of lawyers who were prepared to run new courts set up by the Dáil. The junior barrister James Nolan-Whelan was employed as its secretary. The committee was intended to advise on all legal matters relating to the Treaty negotiations.Footnote ²²

Nolan-Whelan soon sent Stack a list of lawyers who had agreed to attend the committee’s first meeting. There were just three names on it, all junior counsel: Charles Bewley (who later claimed to have been the first barrister to appear in the Dáil courts), James A. Murnaghan and John O’Byrne. He also pointed out ‘the objections to a large committee’.Footnote ²³ Bewley would later write in a memoir that he lunched every day at Hans Place during a visit to London in November 1921, but it was Nolan-Whelan, Murnaghan and O’Byrne whom in December 1921 Griffith in Dáil Éireann described as ‘the constitutional lawyers associated with the plenipotentiaries’. It is not obvious in what particular way any of these merited being described specifically as a constitutional lawyer. However, as well as being a practitioner, Murnaghan was part-time professor of jurisprudence, Roman law and international law at University College Dublin. O’Byrne and Murnaghan would subsequently be appointed members of the committee tasked in 1922 with drafting the Free State Constitution.Footnote ²⁴

John O’Byrne’s Role

John O’Byrne (1884–1954) was then a junior counsel. He was to be appointed to the Irish Supreme Court in 1940 by a Fianna Fáil government, and his career has been favourably sketched by a current judge of that chamber.Footnote ²⁵ O’Byrne wrote, as will be seen later, that in 1921 he warned Griffith about ambiguities in the draft article relating to the proposed boundary commission. Before being called to the Bar, he had been a respected official of the Irish Land Commission. When he was called in 1911, a regional paper commented that his academic distinctions were ‘convincing evidence that he is a lawyer of unquestioned ability, who will bring to the practice of the law a mind deeply versed in the knowledge of legal lore’. Because of his academic distinctions, he was first amongst others to be called in January 1911.Footnote ²⁶ On O’Byrne’s death in 1954, Chief Justice Conor A. Maguire stated that ‘his success at the Bar had been immediate; among a group of very brilliant juniors he quickly had climbed into, and won, his place in the front ranks of lawyers, and he had acquired one of the biggest practices at the junior Bar’.Footnote ²⁷

O’Byrne had appeared before Maguire in 1920, when the latter sat in the Dáil Courts as a land settlement commissioner.Footnote ²⁸ This aspect of O’Byrne’s life has received little attention. As a young man he had joined the Irish Republican Brotherhood and was, in the words of Denis Gwynn, ‘one of the early Sinn Féiners’.Footnote ²⁹ During the Great War, when it was said to be difficult to find senior lawyers who were not reluctant to represent members of the nationalist Volunteers in Ireland, O’Byrne became known as one of a number of junior counsel who acted willingly for them. He was active not only in the revolutionary courts set up by Dáil Éireann, seemingly both as counsel and as a judge, but also continued to act as a barrister in the Crown courts, where his clients included Irish county councils that were defying the British by refusing to submit their accounts for audit.Footnote ³⁰ In 1924, he was to be appointed attorney general of the new state, being permitted to become a king’s counsel immediately beforehand in an otherwise ‘unprecedented appointment of a junior counsel’ to that office.Footnote ³¹

Michael Collins, one of the five Irish negotiators in London, was also friendly with Crompton Llewelyn Davies and his Irish wife Moya O’Connor, the latter a daughter of an Irish nationalist MP. Davies was a wealthy partner in a leading City firm of solicitors in London, had once been an adviser to Lloyd George and had worked as solicitor to the Post Office. The couple appear to have been radicalised by the events of 1916 in Ireland, and Davies was subsequently dismissed for his sympathies with Irish republicans.Footnote ³² Moya wrote that they were introduced to Collins in 1918 by Art O’Brien, president of the Sinn Féin organisation in England and Wales, and thereafter ‘from 1918 until his death we saw Mick very often, both in London and Dublin’.Footnote ³³

Nolan-Whelan attempted to furnish relevant documentation to the Irish delegates in accordance with Dáil Éireann’s wishes. On 21 October, he wrote that he was advised from London (by whom is unclear) that ‘authorities as to ratification [are] listed in Halsbury’s Laws of England sub title Constitutional Law’, and that he intended to provide promptly the judgments in the best cases listed there as well as any more recent authorities.Footnote ³⁴ However, the delegates’ principal source of information on Dominion constitutions and on the slowly increasing autonomy of countries such as Canada, Australia, New Zealand and South Africa may have been Hessel Duncan Hall’s recent book on the Commonwealth, with each member of the Irish delegation being equipped with a copy if it.Footnote ³⁵

Constitutional Considerations

On 18 November 1921, more than a month into negotiations, Thomas Jones sent the Irish delegates a draft treaty, or ‘tentative suggestions for a treaty’, as Griffith described the document. On 21 November, Birkenhead, in the presence of Chamberlain, asked Jones to impress on Griffith the need for as few changes to the draft as possible:

The manner in which favourable references to the Irish Free State enjoying the same Dominion status as Canada might implicitly ‘wrap up’ the new state in the jurisdiction of the Privy Council, and thus determine how Article 12 on the Boundary Commission might be construed, were of considerable significance but had been expressed somewhat coyly. Jones seems to have been concerned that the Irish might be disadvantaged in that respect. He noted in his diary: ‘I mentioned the point of the Sinn Féin leaders having some technical adviser to help them and the Lord Chancellor suggested Frank Russell, the son of Lord Russell of Killowen [1832–1900], and “a much better lawyer than his father”. He was a Home Ruler and could give them first rate technical advice.’Footnote ³⁷

The Irishman Charles Russell had been the first Roman Catholic to be appointed Lord Chief Justice of England and Wales.Footnote ³⁸ His son Francis Xavier obtained a first in jurisprudence at Oxford, where in 1887 ‘his brilliant speech in favour of home rule caused A. V. Dicey, notwithstanding his disapproval of the proposed reform, to write a letter of congratulation to Russell’s father’. Birkenhead had been so impressed by Frank as a barrister that in 1919 he caused him to be appointed a high court judge in chancery in England.Footnote ³⁹ It would have been remarkable had Frank actually given advice to the Irish delegates as Birkenhead suggested. He might well have guided them wisely on the tricky Treaty articles concerning the Boundary Commission and the oath. But there appears to be no evidence that he was consulted. If Pakenham is correct, at the outset of the peace talks Minister Austin Stack – who declined to attend them as a delegate and who was hostile to the very idea of an agreement that did not give Sinn Féin pretty much all that it demanded – had himself pressed the Irish negotiators to consult ‘some authority of recognized standing, a foreigner if need be, even an Englishman if a man like Lord Bryce could be obtained’.Footnote ⁴⁰ The octogenarian Bryce, formerly chief secretary for Ireland (1905–1907), was actually not an Englishman but a liberal Ulster-Scots Presbyterian. He was also a barrister and academic whose study of the US constitution, The American Commonwealth, had become a classic. His essay, ‘Flexible and Rigid Constitutions’, has been praised in modern times by Judge David Edward of the European Court of Justice as ‘a precedent for the constitution of the European Union, in both its federal and regional aspects’.Footnote ⁴¹ In the event, Bryce also does not appear to have been consulted in 1921.

On 23 November 1921, at a sub-conference in Downing Street attended by Griffith, Collins and Barton for the Irish and Lloyd George, Chamberlain and Birkenhead for the British, it was agreed that Birkenhead should meet Griffith and Collins again the following day at the House of Lords and – according to what Childers wrote that Barton told him – Collins ‘suggested bringing a constitutional lawyer, naming Chartres’. In a letter to de Valera later that day, Griffith stated that it was Birkenhead who suggested the Irish bring such a lawyer. The British Cabinet Secretary Thomas Jones noted ‘[a] further conference arranged for Thursday morning’.Footnote ⁴² Childers was fuming about his exclusion from this.Footnote ⁴³ Jones made a contemporary note of the Thursday conference, at which Ireland’s relationship to the Crown was discussed. In the room were Lord Chancellor Birkenhead, Attorney General Hewart, Griffith, Collins, Gavan Duffy and John Chartres: ‘the last two as constitutional lawyers’, wrote Jones. He added that ‘Chartres started some historical disquisition and was shut up brusquely by F.E.’ This image of Birkenhead ‘brusquely’ silencing one of the Irish ‘constitutional lawyers’ surely speaks of the relative status of the advisers on each side. Jones told his diary: ‘it was hard to see how any formula can reconcile our position and theirs’.Footnote ⁴⁴

Meanwhile, Childers had had to wait outside in the private secretary’s room where Lionel Curtis, second secretary to the British team, engaged him in conversation. Curtis and Childers had attended the same private school, Haileybury College near Hertford, and both fought for the British in the Boer War and wrote much about South Africa. Curtis was an influential public servant who had been called to the Bar and who had developed special expertise in respect of the constitutional and Dominion structure of the British Empire.Footnote ⁴⁵

The junior counsel John O’Byrne was also asked by Griffith that week to draft objections to certain points that Griffith had written out on matters concerning defence, but Griffith ‘asked me nothing’, complained Childers.Footnote ⁴⁶ Remarkably, Chartres departed for a mission to Berlin that weekend and was absent for the final sessions of the peace conference.

O’Byrne’s Warning

On an urgent return journey to Dublin for a crucial Cabinet meeting, just three days before the Anglo-Irish Treaty agreement was signed on 6 December 1921, Griffith had a signal discussion with John O’Byrne about the Boundary Commission provision. Some time before his death in January 1954, O’Byrne recalled their conversation that day:

The die was cast. The stress on Griffith and his colleagues was terrible and the meeting in Dublin, after a long journey by rail and boat, was fractious and unhelpful. It was a hybrid event, at times a formal Cabinet session but at times also including Childers and others. Childers claimed at it that the status of the new state as envisaged in the draft Treaty at that point would be lower than that of a Dominion and said that the word ‘exclusively’ in one clause was particularly significant: ‘A.G. said that we should have a constitutional lawyer to interpret “exclusively”. I said two such lawyers had been brought by him to London and had been there for some time and could have been consulted.’Footnote ⁴⁸

Faced with an ultimatum to sign within hours the draft as it then stood or have the British immediately resume war in Ireland, the Irish delegates signed articles of agreement on 6 December 1921. The agreement for a treaty was still subject to approval by the UK parliament and by Dáil Éireann.Footnote ⁴⁹ John O’Byrne sailed back into Dun Laoghaire on 8 December with the delegates. Also on board was James Nolan-Whelan.Footnote ⁵⁰

Birkenhead’s Bulgarian Precedent

British ministers spun the 1921 agreement as a victory,Footnote ⁵¹ not least to beat down their more intransigent die-hard imperialist and unionist opponents in England. Chamberlain and others were soon representing Article 12 on the Boundary Commission as far less significant than its unionist critics feared.Footnote ⁵² Birkenhead soon wrote a brilliant, if from an Irish nationalist perspective outrageous, legal opinion on the import of the Article. He did so during 1922, for a former Conservative prime minister Arthur Balfour. At the time Balfour seemed poised to withdraw his support from Lloyd George’s Liberal–Tory coalition government and to rally Tory critics of the Anglo-Irish Treaty. By summoning up his great professional expertise in order to deny plausibly that the agreement could mean Northern Ireland losing any of its counties, Birkenhead’s political intervention kept Balfour on side for the government. This legal opinion proved useful again in 1924, when published strategically to further British political interests.Footnote ⁵³

Perhaps only a brilliant lawyer could have made the arguments for Balfour that Birkenhead did, in terms more exquisite than John O’Byrne might have imagined when he warned Griffith of the article’s weakness. Birkenhead’s letter to Balfour was a masterpiece of special pleading and political advocacy.Footnote ⁵⁴ Indeed, on 24 October 1921 at the seventh session of the peace talks, Birkenhead had made some reference to his interest in international law and Griffith had deferred to him as follows: ‘On a point of international law I cannot say. You are an authority.’Footnote ⁵⁵

How well matched were Griffith’s advisers to Birkenhead? Did Professor James A. Murnaghan’s expertise as a part-time professor in international law extend to familiarity with the Treaty of Berlin that established the principality of Bulgaria, for example? This was a most germane ‘precedent’ according to Birkenhead. In his opinion, as expressed in his letter to Balfour, ‘the main purpose [emphasis added]’ of Article 12 of the Anglo-Irish Treaty was to preserve Northern Ireland as an entity if its parliament desired. He claimed that Northern Ireland under the Treaty was ‘regarded as a creature already constituted’ and thus not brought into existence by the Treaty (a contestable argument). He added that it was ‘by way of proviso that a modification of boundaries is contemplated’ and wrote: ‘[t]his seems to me to differ in no way from the ordinary precedents set in innumerable Treaties between European States during the 19th century’. He argued that the only difference between the Bulgarian and Northern Ireland circumstances was that in the case of Bulgaria there was just one document (the Treaty of Berlin), whilst in the case of Ireland there were two (the Government of Ireland Act 1920 and the Treaty). The lord chancellor then delivered his coup de grâce:

Birkenhead proceeded in the same letter to articulate for Balfour what he felt would have had to have been stated in Article 12 if substantial changes in the Irish border had been intended. He concluded: ‘I have no doubt that the Tribunal, not being presided over by a lunatic [under Article 12 the British appointed the Boundary Commission’s chairman], will take a rational view of the limits of its own jurisdiction and will reach a rational conclusion.’ This was an ingenious, not to say disingenuous, argument from no less a legal expert than the lord chancellor. Even if one cannot say for certain that he was simply using his professional position for political ends, it is difficult to conclude that he acted honourably by signing the agreement for a Treaty. For he was well aware that the Irish took an entirely different view of Article 12, a view that he categorised as ‘honest if hotheaded’, a phrase ostensibly doctored out of his opinion for Balfour when the Tories published it in 1924.Footnote ⁵⁶ It is clear from Birkenhead’s correspondence cited above, and from a letter sent to Churchill by Lionel Curtis,Footnote ⁵⁷ that the terms of the provision for the appointment of the Boundary Commission in Article 12 of the Treaty were such that the British were confident that any outcome of the Boundary Commission’s deliberations would not involve extensive reductions in the area of Northern Ireland.

That confidence was evidently supported by what they regarded as a silent term of the Treaty itself, one that meant implicitly that the Privy Council in London would be the arbiter of any dispute but one that would be ‘difficult to explain to public’ if made more explicit.Footnote ⁵⁸ The British thought that Privy Council judges could be depended upon to take the same view as Birkenhead if it came to interpreting Article 12 and that this would render the Boundary Commission of marginal significance. Just as Chamberlain later alleged to a receptive Pakenham that Griffith had done a ‘secret’ deal with Lloyd George on the Boundary Commission, the British soon claimed that the Irish had accepted the Privy Council’s jurisdiction during the 1921 negotiations, but had specifically requested that no reference be made to it in the text of the Treaty. Their claim, like Chamberlain’s to Pakenham, ‘was only raised at a time when leading members of the Irish delegation – Collins and Griffith – were no longer in a position to contradict [or even to qualify] this version of events’, both men having died in August 1922.Footnote ⁵⁹

There was certainly a lack of clarity in respect of aspects of the Anglo-Irish Treaty, but these fudges were at least partly deliberate and political. That such fudges may also return to haunt the parties that made them is a fact of which we have been forcefully reminded in respect to the post-Brexit Northern Ireland Protocol that was agreed between the European Union and Britain in October 2019.Footnote ⁶⁰