Chapter V: Section 4: of the Bill of 1893, according to which the powers of the Irish (1)

Legislature should not extend to the making of any law

“whereby any person may be deprived of life, liberty, or property
without due process of law in accordance with settled principles
and precedents or may be denied the equal protection of the laws
or whereby private property may be taken without just
compensation.”

These impressive words bristled with legal controversy. Did they, for example, secure to the subject the preservation of the right to trial by jury? In the States of America it has been authoritatively laid down(28) that, in the absence of further defining words in the State constitutions, they do not. Such procedure is indeed safeguarded in the Federal Courts, but only in consequence of express words. In the case of the States, Cooley, a great authority, says that “whatever the State establishes will be due process of law,” and Story regarded the words by themselves as simply securing a judicial hearing—that is to say, as they stand they merely secure the separation of legislative and judicial functions and prevent the State Legislature from passing laws which are in effect judicial decrees.

What the words would really have secured to the subject in Ireland was very doubtful. The object of the draughtsman appears to have been to secure to the subject in Ireland all the protection of the law, including trial by jury, which he would have enjoyed at the date of the passing of the Bill, understanding by law both common law and statute law. If the Imperial Parliament had, subsequent to the date of the Act itself, passed legislation limiting trial by jury or other common law rights, this would, presumably, have provided the Irish Parliament with a new “settled principle and precedent,” enabling it to go further. In other words, the clause might have operated to secure a certain standardization of legislation as between the two countries.

The Argument Against Restrictions.

But it seems to me that such standardization is best secured by definitely reserving certain subjects of legislation to the Imperial Parliament rather than by imposing upon the exercise of such legislation by the Irish Parliament constitutional limitations which are certain to raise great doubts and provoke excessive litigation. It would be far better to reserve criminal law, as has been done in Canada, in the case of the provincial legislatures—though not without difficulty—than to lay down certain abstract principles. Moreover, is it desirable to maintain such uniformity of legislative principle? There is a great deal to be said for reserving certain subjects of legislation to the Imperial Parliament, but to impose on the whole sphere of legislation entrusted to the Irish Parliament the same principles as those governing the English Statute-Book, or the common law, is to subject almost every conceivable Irish statute to the challenge of litigious politicians. This is what has happened in the United States. The clause, as it stood, might quite conceivably have prevented the Irish legislature from extending the procedure of the Summary Jurisdiction Acts to cases where it was not so extended in England—a most mischievous result, seeing that this procedure is the sanction by which nearly every new statute extending the scope of industrial or public health legislation or conferring powers on local authorities is enforced.

Uniformity of legislation between the two countries is not desirable in all directions nor has it hitherto been followed. In matters of expropriation, for example, the drastic procedure of the Housing and Town Planning Act has not been adopted in Ireland. Ireland has her own standard in these matters in the case of the Irish Local Government Act, and the Land Purchase Acts, and I am not at all sure that the principles of the English Land Clauses Consolidation Act and Railway Clauses Consolidation Acts as to arbitration and compensation are by any means ideal. Still less has uniformity in the matter of criminal law been the rule hitherto between the two countries. It would be difficult to find a parallel in this country for the Crimes Act of 1887 (which is still on the Statute-Book although it is no longer put in force by proclamation) with its extensions of summary jurisdiction to cases of criminal conspiracy, intimidation, riot, and unlawful assembly, and its provisions for a change of venue.

It is perhaps more open to question whether the words of the 1893 Bill designed to secure to the subject “the equal protection of the laws,” and to prevent legislation discriminating against Englishmen and Scotsmen(29) under certain circumstances, ought not to have been repeated. The words “equal protection of the laws” have been interpreted in the United States in such a way as to secure that legislation, particularly in the exercise of the “police power,” shall be impartial in its operation.(30) On this interpretation, they would for example, have prevented an Irish Legislature from exempting Catholic convents which are used as workshops from the operation of the Factory Acts. But that might be secured in another way, and the words might, if adopted, have operated to prevent much useful legislation. It seems likely enough that discriminating legislation, in so far as it tended to prevent a particular class of persons from residing in Ireland or penalised non-residents, would be held invalid in any case on the ground that it conflicted with the reservation to the Imperial Parliament of such subjects as “trade” and “naturalization.”(31) And, as regards non-residents, it must be remembered that the grant of legislative powers can only be exercised “in respect of matters exclusively relating to Ireland or some part thereof”—words which may be found to be of considerable importance.

The same may be said of the omission in the Bill, to provide, as its predecessor of 1893 provided, for the maintenance of securities for the liberty of the subject and the preservation of his common law rights. It is almost impossible to do this without entering on an uncharted sea of litigation. Modern legislation, especially social and industrial legislation, infringes common law rights at every point. I have ventured elsewhere(32) to describe the modern tendency of industrial legislation as a tendency, inverting Maine’s famous aphorism, to advance from contract to status, that is to say, to limit to an increasing extent the contractual freedom of the worker, and to confer on him a certain status by the protection of him against himself.(33) The greater part of our Irish land legislation impaired the obligation of contracts. Professor Dicey criticised the Bill of 1893 for not going further than it did in its incorporation of clauses taken from the Constitution of the United States with the intention of securing the common law rights of the subject. But it may be remarked that many of those clauses have proved an almost intolerable limitation upon the power of the legislatures to deal with the regulation of trade and industry, so intolerable that the Supreme Court has of late made a liberal use of the fiction of “the police power”(34) to enable the legislatures to pass legislation which otherwise might have seemed to “abridge the privileges” of citizens of the United States or deprive them of “liberty or property without due process of law.”(35)

At the same time it must be remembered that, although the Irish Parliament is not debarred from statutory interference with common law rights, its legislation will be subject to rules of interpretation, at the hands of the Judicial Committee, by which statutes are always construed in favour of the subject. It is a well-accepted rule of construction in English courts that common law rights cannot be taken away except by express words.(36) It is something to secure that the interpretation of the new Constitution and of Irish statutes shall, in the last resort, be wholly in the hands of an Imperial Court. The chartered protection of the rights of the individual by a fundamental Act is always difficult and often impossible. In the last resort it depends very much on the interpretation which the judges choose to place upon such an Act.(37)

The Executive Veto.

It is obvious, therefore, that the principal and indeed almost the only safeguard provided in the Bill against inequitable or discriminating legislation(38) is the veto of the Lord-Lieutenant acting on the instructions of the Imperial Government. A political check is preferred to a juristic check. The apostolic maxim “all things are lawful but all things are not expedient,” appears to have been the motto of the draughtsman. Not law but policy will decide what Irish Acts are to be placed on the Statute-Book. It must be admitted that this is the principle most in harmony with precedent if the constitutions granted to the colonies are to be regarded as precedents. No colony would have tolerated for a moment the elaborate network of restrictions in Clause 4 of the Bill of 1893, through the finely-woven meshes of which it would have been hard for any Irish legislation of an original or experimental character to pass. If we are really in earnest about setting up a Parliament on College Green, we cannot do otherwise. The executive veto must be the real check, and in the presence of such a check, English judges would always be very loath(39) to declare the Acts of a legislature _ultra vires_ merely because they infringed common law rights.

Now this check may be exercised on one of two grounds. The Imperial Government may “instruct” the Lord-Lieutenant to refuse his assent either on the ground that the bill in question is politically objectionable, or on the ground that it is, in their opinion, in excess of the powers conferred on the Irish Legislature. It is desirable in every way that the two should be distinguished in order that the Imperial Parliament may be able to hold the Cabinet of the day responsible when its action is purely a question of policy. On the other hand, it is no less desirable that the Cabinet should, in the interests of the public in Ireland, be in a position to test the validity of an Irish Bill which, though unobjectionable on the ground of policy, may be questionable on the ground of law. It is a common error that in all written constitutions the courts, particularly those of the United States, have _proprio motu_ the power of declaring _ultra vires_ any legislative act which infringes the principles of the Constitution. Laboulaye fell into this error in his study of the American Constitution. But the American Courts have no such power. Until a case arises in the ordinary course of litigation, under the statute in question, there is no means of annulling it, and there have been many Acts(40) on the Federal Statute Book which are quite conceivably “unconstitutional” in the letter as well as in the spirit, but have never been declared _ultra vires_ for the simple reason that no one has found his private rights affected. This holds particulars of questions of the distribution of power. It might for example, occur in the case of an Irish Bill which proposed to deal with one of the reserved services. To meet this difficulty and to avoid the trouble which might arise from an Act being placed in the Irish Statute Book(41) and observed in Ireland only to be subsequently declared _ultra vires_ in the course of litigation, it is provided in the Government of Ireland Bill(42) (Clause 29) that if it appears to the Lord-Lieutenant or a Secretary of State expedient in the public interest that the validity of an Irish Act should be tested he may represent the same to His Majesty in Council and the question may then be heard and determined by the Judicial Committee in the same manner as an appeal from a Court in Ireland. It is not necessary to suppose that the executive veto will be a dead letter, and to argue from its disuse in the case of the self-governing colonies is to argue from the like to the unlike. In the case of the provincial legislatures of Canada it has been exercised by the Dominion Government where provincial legislation is inequitable, or contrary to “the settled policy” of the Dominion.

Exempted Powers.

The enumeration of matters in respect of which the Irish Parliament shall have no power to make laws is a little deceptive, inasmuch as many of the matters so enumerated would have been outside its power in any case. Ireland is not, so long as the Act of Union remains on the Statute Book, a sovereign state, and “the making of peace or war” and the negotiation of treaties would, as a matter of international law, have been impossible in her case, even if they had not been expressly prohibited. “Merchant shipping” and “the return of fugitive offenders” would also have been excluded from her authority by the rule of law(43) which precludes a subordinate legislature from extra-territorial legislation. The same may be said of Copyright. The colonies have only been enabled to deal with these matters in virtue of clauses in Acts of the Imperial Parliament.(44) But it would not be true to say that the position of the Irish Parliament is assimilated to that of the legislature of a self-governing colony. The exclusion of subjects relating to allegiance, such as naturalization(45) and treason,(46) and of legislation as to aliens is exceptional. All the self-governing colonies have power to deal with these matters, as also with the subject of naval and military forces. Perhaps the most important exemption in the case of Ireland is that of trade, trade-marks, designs, merchandise marks and patent rights. I cannot help regretting that, inasmuch as the principle has been adopted of giving Ireland general and unenumerated powers, the number of specific exemptions has not been enlarged. It is highly desirable to avoid conflict of laws in the United Kingdom as far as possible. It must be remembered that the Statute Book has, quite apart from the Act of Union, bound Ireland to England by many legislative ties; there is a uniform system of industrial, commercial, and, to some extent, criminal law for the whole of these Islands—Factory Acts, Companies Acts, the law of negotiable instruments, criminal procedure, old-age pensions, and insurance legislation; in all these there is legislative standardization, and the tendency of all modern political unions, notably those of the Australian Commonwealth and the German Empire, is in this direction. Confusion, injustice, and economic inequalities constantly occur in a modern State whose inhabitants are living under a “conflict of laws.” Fiscal considerations point the same way. It may be safely assumed that English opinion will not tolerate any considerable divergence between the fiscal systems of England and Ireland. Moreover, financial considerations apart, the regulation of “trade” is, as in every political union, reserved for the central legislature. But to distinguish between “trade” on the one hand and “industry” on the other is not an easy problem, and Ireland may discriminate against England only less effectively by lowering the standard of the Factory Acts than by a tariff.

The “subject matter” of the Old Age Pensions Acts, National Insurance Acts, and Labour Exchanges Acts has, it is true, been excluded. It seems regrettable that the category is not enlarged to include the Companies Acts, the Sale of Goods Act, the Bills of Exchange Act, and the Factory Acts. It would be highly undesirable to have the “industrial minimum” for the United Kingdom, so laboriously attained by our factory legislation, lowered in the interests of particular interests in Ireland. The advantages of securing uniformity by the inclusion of the three great statutes relating to commercial law is also very obvious. Two of them, indeed, represent a great step in that codification of English law which is the dream of English jurists, they have been adopted as a model in some of our colonies, and it would seem highly desirable that the standard thus attained should remain fixed. In urging this, I do not forget what I have already said, in connection with the subject of constitutional limitations, as to the undesirability of exacting too rigid a degree of uniformity in English and Irish legislation, but constitutional limitations are one thing and exceptions quite another. It is very difficult to subject the whole field of Irish legislation to juristic principles, but it is comparatively easy to exempt from that field the subject matter of particular Acts. The whole question resolves itself into a consideration of the point at which uniformity should be determined. The Bill seems to fix the point much too low.

Of course, one way of dealing with the question would have been to grant Ireland only particular and enumerated powers of legislation, as has been done in the case of the provincial legislatures of Canada. There is much to be said for this. It seems the line of least resistance; it is always easier to add to powers which appear deficient than to withdraw powers which have proved excessive. But it undoubtedly invites litigation and it is very difficult, if not impossible, to define what are exclusively Irish matters without in the last resort using some such general term (as is used in the British North America Act) as “generally all matters of a merely local nature.”

The great economy shown by the draughtsman in the number of the exceptions from the powers of the Irish legislature, as well as in the number of the restrictions upon the exercise of those powers, means, as we have already indicated, that the whole weight of control over the Irish legislature is thrown upon the executive and legislative veto of the Imperial Government. Is it sufficient to rely upon the paramount power of the Imperial Parliament to override by statute Irish legislation which may be inequitable or inexpedient, and upon the exercise of the veto of the Imperial Government? These checks are the exercise of a _force majeure_, which is often invidious and always difficult. Above all they are political. The exercise of them depends on the party in power in Great Britain, and as such it may excite resentment among the Irish people as an invasion of the autonomy granted to them. On the other hand, exceptions and restrictions are a legal, not a political, check—they operate through the agency of the courts of law without the intervention of political considerations. Moreover—and this perhaps is the most important consideration—they rest upon the consent of the Irish people expressed in the terms of the Home Rule Act to which their representatives are a party. For an Irish Parliament to defy them would be to defy the very Act which was the charter of its existence. But they invite litigation. It all resolves itself into a question of hitting the mean between the dangers of litigation on the one hand and of political pressure on the other. Probably, however, the occasions of conflict will be few and unimportant, and the temper of the Irish Parliament may be much more conservative than its critics imagine.

The Executive

The new Bill is remarkable for the explicitness with which it invests Ireland with control over the Executive. For the first time in the written constitutions of the Empire we have a statutory Executive, and not only is it a statutory Executive, but it is to be a Parliamentary Executive defined by statute. In the earlier Bills nothing was more remarkable than the brevity and allusiveness with which this question of the Government of Ireland was treated. “The Executive power in Ireland shall continue vested in Her Majesty the Queen” was the language employed in the Bill of 1893. Under that Bill the Government of Ireland would have continued, even after its passage into law, to be in the hands of the English Cabinet and it would have rested with that Cabinet to determine how large or how small a part of the prerogatives of the Crown should be delegated to the Lord-Lieutenant. Paradoxical as it may seem, it would have been quite possible for a Unionist Government, coming into power immediately after the Home Rule Bill had passed into law and an Irish Parliament had met at Dublin, to retain in their own hands the Executive authority in Ireland without any breach of statutory obligations. The Bills of 1886 and 1893 left it in the discretion of the Crown to decide what the powers of the Lord-Lieutenant should be. Following Colonial precedents, the Constitution would have had to be supplemented(47) by prerogative legislation in the shape of Letters Patent defining those powers. Moreover, these powers were to have been vested not in the Lord-Lieutenant in Council, but in the Lord-Lieutenant alone. Something was indeed, said about an “Executive Committee” of the Irish Privy Council to aid and advise in the Government of Ireland—this was the only hint of responsible Government that the Bill contained—but nothing was said of the powers or constitution of the Committee nor of the extent to which the Lord-Lieutenant was bound to act on its advice. Its constitution was left to the discretion of Her Majesty. Its powers would, of course, as in the case of the Colonies, have been decided by the tacit adoption of the unwritten conventions of the English Constitution that the advisers of the Governor must command the confidence of the Legislature which votes supplies.

Very different is our new Bill. The Executive power does indeed continue “vested in His Majesty the King,” and nothing is to affect its exercise—in other words, it is to continue in the hands of the Imperial Government—_except_ “as respects Irish services as defined for the purpose of this Act.” The exception is a new departure and the general effect of the whole clause (Clause IV.) is expressly to hand over in statutory terms “all public services in connection with the administration of the Government of Ireland” except the reserved services and such services as those in regard to which the Irish Parliament have no power to make laws. The effect of this is to hand over an executive authority co-extensive with the legislative authority.(48) Moreover, in regard to Irish services, the Executive power is to be exercised by the Lord-Lieutenant _through_ Irish Departments, and the heads of these Departments are given the Parliamentary title of “Ministers” and, what is more remarkable, it is expressly provided (a provision to be found in only one or two, and those the latest, of our Colonial Constitutions) that:

“No such person shall hold office as an Irish Minister for a
longer period than six months, unless he is or becomes a member of
one of the Houses of the Irish Parliament.”

Never in any constitution that emanated from the practised hand of the Parliamentary draughtsman has there been such a complete transfer in express statutory terms of the executive power. Taken together with the comparatively unrestricted grant of legislative power, it constitutes a grant of a larger measure of self-government than is to be found in any of the earlier Bills.

At the same time there is here no cause for alarm. It must be remembered that the Lord-Lieutenant will exist in a dual capacity—like a constitutional king he will be bound in Irish matters to act on the advice of his Irish Ministers but, like a Colonial governor, he will also in all Imperial matters be bound to obey the instructions of the Imperial Government. In regard to legislation the position here is quite clear: he may veto measures which his own Ministers have promoted if the Imperial Government think it advisable so to instruct him. In regard to the executive, he will, of course, enjoy less latitude; it is quite clear that the Imperial Government will, under this clause, find it practically impossible to interfere in purely Irish administration. The Irish Government will, of course, be carried on in the name of the Crown, and it will enjoy the same prerogatives at common law as the Imperial Government in such matters as the use of the prerogative writs _mandamus_ and _certiorari_, and the immunity from actions in tort. Ireland has its own Petitions of Right Act.

At the same time a distinction must be drawn between the prerogatives relating to the exercise of Irish services and prerogatives which cannot be so defined. Some of the latter may be delegated to the Lord-Lieutenant by his patent, and these he will exercise not on the advice of the Irish, but of the Imperial, Government. Moreover, there are certain powers conferred by statute on the Lord-Lieutenant, or the Lord-Lieutenant in Council, such as the power of proclaiming disaffected districts under the Crimes Act, of suspending the operation of the Irish Habeas Corpus Act, and of controlling the constabulary, not all(49) of which will be exercisable on the advice of Irish Ministers. Prerogatives not so exercisable will no doubt be exercised on the advice of the Secretary of State for Home Affairs who is even now the medium of formal communications between the Lord-Lieutenant and the Crown. The Chief Secretary(50) will, of course, disappear altogether; he will be replaced by the Executive Committee. The Lord-Lieutenant will, of course, cease to be a member of the English Ministry; his position will be assimilated to that of a Colonial Governor, and his tenure fixed for a term of years so as to make his tenure of office independent, as it must be in the exercise of his new constitutional duties, of the fortunes of English Parties.

The Irish Legislature

The constitution of the legislature itself calls for little comment. It follows with some fidelity the features of Mr. Gladstone’s Bills, but the substitution of a nominated Senate for the “Council” or “Order” elected on a property franchise is a new departure. Nomination of late has fallen into some discredit both in theory and in practice.(51) Colonial experience is not encouraging. Nomination by the Crown means in practice nomination by the Governor, on the advice of the Cabinet of the day, and Ministries in Canada and New South Wales have put this prerogative to such partizan uses as to reduce the Upper House to a very servile condition. When nomination is for life and not for a fixed term of years the evils of this system may be mitigated, but they are not removed. The one thing that can be said about the proposed Senate is that its powers in legislation are of such a limited character that an Irish Executive would be under little temptation to “pack” it. A Senate of only forty members compelled to meet in joint session a House of Commons of 164 members every second time that it rejects or objectionably amends a bill is not likely to prove a very formidable obstacle to legislation. But the nomination by the Executive is in any case somewhat objectionable, and it would seem better to provide that at the end of the first term of eight years the Senators should be appointed by some system of election, whether on a basis of proportional representation or otherwise.(52) But to their nomination for the first term by the Imperial Government I see no very cogent objection. Indeed, the expedient has much to be said for it, for the discretion, if wisely exercised, will enable the Imperial Government not only to secure to Irish minorities a degree of representation which no conceivable system of election could secure, but also to appoint men of moderate opinions—one immediately thinks of Sir Horace Plunkett—who, in the strife of extremists, might have no chance of election by either party. It has been argued in some quarters that a Second Chamber is wholly unnecessary, and the example of the single-chamber legislatures in some of the Canadian provinces has been cited. The argument, however, overlooks one really important function of the Senate, namely its duty to provide for the security of tenure of the Irish judges. Clause XXVII. provides that judges appointed after the passing of the Act shall only be removable on an Address of both Houses of the Irish Parliament, and, should the Senate refuse to concur in a demand by the lower House for the removal of a judge, there is no such means of overcoming its resistance in a joint session as is the case with legislation. This is well.

There is one provision in the Bill(53) which will serve to strengthen the position of the Senate as an advisory body and may operate to give it an initiative in the introduction of Government legislation—the provision which enables an Irish Minister who is a member of either House to sit and to speak in both Houses. This is a practice common on the Continent, and not wholly unknown in the case of some of our Colonial Constitutions, and it has much to commend it. The Senate is placed under the same disabilities as to money bills as are imposed on the House of Lords by the Parliament Act. Thereby it is placed in an inferior position to that of most of the Second Chambers in the Colonies, all of which can reject, and some of which may also amend, money bills. The disability is the less surprising having regard to its character as a nominee body—it is when the Second Chambers of the Colonies are elective, that their powers in regard to money bills are considerable.(54)

The privileges of the Imperial Parliament are conferred by the Government of Ireland Bill upon the Irish Parliament. In the absence of such grant the Irish Parliament would not have had such privileges—although it might have adopted them by legislation—for the _lex et consuetudo Parliamenti_ are not implied in the grant of a constitution.(55) It is not uncommon to prescribe in Colonial Constitutions that the legislature shall have such privileges as are enjoyed by the House of Commons at the time of grant. In the present case, the Irish Parliament may define its privileges, if it thinks fit, by legislation, though it is difficult to imagine any occasion for its doing so. The really important thing is that it cannot enlarge those privileges beyond the scope of the privileges of the Imperial Parliament. This is the one constitutional limitation in the Bill—apart from the “safeguards” as to legislation in regard to religion and marriage contained in Clause III.—and it is by no means unimportant. The powers of the Imperial Parliament—particularly as to the right of the two Houses to commit for contempt without cause shewn—are a sufficiently high standard.

Irish Representation in the House of Commons(56)

Irish representation at Westminster has always been the riddle of the Home Rule problem. I have no space to examine here in detail the alternative solutions which were put forward in the earlier Home Rule Bills. But there is one general consideration which must always be borne in mind in the theoretical discussion of any solution. It is the very simple consideration that representation is what mathematicians would call a “function” of legislative power—the one is dependent upon the other. If the legislative powers over Ireland reserved to the Imperial Parliament are large, the representation of Ireland in that Parliament must not be small. It is at this point that Mr. Gladstone’s original proposal for total exclusion broke down. He reserved to the Imperial Parliament considerable powers of legislation in regard to Ireland and yet proposed to exercise those powers in the absence of Irish representatives.

It was no answer to cite colonial analogies. The Irish problem is not, as I have pointed out elsewhere, a colonial problem. No one at present proposes to give Ireland complete fiscal autonomy, for example. Nor is it strictly apposite to say that the Imperial Parliament legislates for the Colonies in the absence of colonial representatives. Such legislation is now almost exclusively confined to what I may call enabling legislation in matters in which the Colonies, owing to their status as Dependencies, are unable to legislate. In such matters as copyright, merchant shipping, marriage, extradition, the Imperial Parliament legislates for the Colonies largely because colonial laws cannot operate ex-territorially, and such Imperial legislation is usually effected by means of application clauses which enable the Colonies to adopt it or not as they please. But rarely if ever does the Imperial Parliament legislate for a self-governing colony as it has done and will continue to do in the case of such domestic Irish affairs as old-age pensions, land purchase, Customs and Excise, defence, naturalisation, to say nothing perhaps of industrial and commercial law. I have already indicated my opinion in favour of confining these subjects to the Imperial Parliament, but even were the opposite course taken there would still remain the fiscal question. We cannot continue to tax Ireland unless the Irish representatives are to remain at Westminster.

The presence of the Irish members at Westminster is imperative if the supremacy of the Imperial Parliament is not to be illusory. Mr. Balfour(57) contends that it will be as illusory as it has been in the case of the Colonies. But the Colonies are not represented in the Imperial Parliament, and to differentiate Ireland in this respect is to make all the difference between a legal formula and a political fact.

There remains the question of inclusion. No one would question the propriety of reducing Irish representation to its true proportions on a population basis—in other words, from its present figure of 103 to one of 70. The real difficulty arises when we consider whether those members, whatever their numbers, are to attend at Westminster in the same capacity as the British members. We are to-day confronted by the same problem as that which vexed the Parliament of 1893: are Irish members to vote upon all occasions or only upon those occasions when exclusively Irish and exclusively Imperial affairs are under discussion? The original text of the 1893 Bill adopted the latter solution. At first it has much to commend it, for it avoids—or attempts to avoid—the anomaly of refusing self-government to Great Britain while granting it to Ireland: if Irish members are to govern themselves at Dublin without the interference of Englishmen, why, it has been pertinently asked, should not the converse hold good at Westminster? But two very grave difficulties stand in the way; one is the difficulty of distinguishing between Irish and non-Irish business at Westminster; the other is the difficulty, even when such distinction is made, of maintaining a single majority under such circumstances. Withdraw the Irish members on certain occasions and you might convert a Liberal majority at Westminster on certain days into a Unionist majority on other days. A Liberal Government might have responsibility without power in British matters and a Unionist Opposition power without responsibility. One Executive could not co-exist with two majorities. Such a state of affairs might have been conceivable some seventy or eighty years ago, when Ministries were not regarded as responsible for the passage of legislation into law. It would be conceivable in France, where Ministries come and go and the Deputies remain. But it would be fatal to the Cabinet system as we know it.

Another objection to the “in-and-out” plan is the extreme difficulty of classifying the business of the House of Commons in such a way as to distinguish between what is “Irish” and what is not. If that business were purely legislative the difficulty would not be so great, but the House controls administration as well as legislation. Any question involving a vote of confidence in the Cabinet might legitimately be regarded as a matter in which the Irish members had a right to have a voice. The motion for the adjournment of the House, following on an unsatisfactory answer by a Minister, might be regarded as such. Who would decide these things? The Bill of 1893 provided for their determination by the House. In that event the Irish members would presumably have had a voice in determining on what subjects they should or should not vote, and they would have been masters of the situation under all circumstances. By their power to determine the fate of Imperial Ministries they might have determined the exercise of the Imperial veto on Irish legislation and reduced it to a nullity. It may, indeed, be urged that the Irish vote often dominates the situation at Westminster even under present circumstances, but it must be remembered that it is now exercised in the consistent support of the same administration, whereas under an “in-and-out” system its action might be capricious and apt to be determined solely by Irish exigencies of the moment.

There remains the plan of the inclusion of Irish members for all purposes. This at least has the advantage of simplicity. If Irishmen constantly attended at Westminster without distinction of voting capacity they would be less likely to regard their presence there as an instrument for reducing to impotence the exercise of the Imperial veto upon Irish legislation. It is quite conceivable, indeed, that once Home Rule is granted Irishmen will be Imperialists at Westminster without becoming Nationalists at Dublin—the natural conservatism of the Irish character may reassert itself. Close observers of Irish thought are inclined to believe that the grant of Home Rule will act as a great solvent in Irish political life, and that with the iron discipline of Nationalism relaxed, and its cherished object attained, lines of cleavage, social, economic, and industrial, will appear in Ireland and vastly change the distribution of Irish parties both at Dublin and at Westminster. Ulster “Unionists” may be found voting with a Liberal Government on education questions and Irish “Nationalists” against it. Irish representatives at Westminster may become more, rather than less, closely identified with British interests. And it should be remembered that it would be no new thing for members from one part of the United Kingdom to be voting on measures which solely concerned another part of the Kingdom. This is happening every day. As Mr. Walker points out elsewhere, a process of legislative disintegration has been going on within the walls of the Imperial Parliament itself, which is already being forced to legislate separately for the three separate parts of the United Kingdom. He estimates that during the last twenty years no less than 49.7 per cent. of the public general Acts have applied only to some one part of the United Kingdom instead of to the whole.

The Government of Ireland Bill adopts the principle of total inclusion, but qualifies the anomaly which is involved in the presence of Irish members voting on non-Irish questions by reducing the representation of Ireland to the number of forty-two, and thus to a figure far below that to which Ireland is entitled on the basis of population. At the same time it must be admitted that the anomaly is not thereby removed. The position of Irish members voting on purely English legislation after the grant of Home Rule will indeed—numbers apart—be more anomalous than it was before it. An anomaly can be tolerated so long as it is universal in its operation, and Scotch and English members can at present view with equanimity the spectacle of Irish members voting in their own affairs so long as they themselves exercise the same privilege in those of their neighbours. Reciprocity of this kind produces a certain unity of thought in a deliberative assembly. But the anomaly at once becomes invidious if Irishmen are placed in a privileged position. It is perhaps more theoretical than real, as the actual weight that could be thrown into the scale of the division lobby by a Nationalist majority (taking the present balance of parties in Ireland) of about twenty-six cannot be considerable, even if, as is very doubtful, it were consistently exercised.

Still the anomaly remains. Is it possible to meet it by some extension of Home Rule to the legislative affairs of England and Scotland?

The Further Extension of Home Rule

The anomaly, however, remains. How is it to be met? Obviously it is but a temporary difficulty if, as the Prime Minister has suggested in his speech on the first reading, the Bill is to be regarded as but the first step in a general devolution of the legislative powers of the Imperial Parliament. But everything depends on how far that devolution is to be carried. The Prime Minister’s reference to a change in the Standing Orders suggests a further development of the Committee system already in operation in the case of the Scottish Standing Committee by which the House has delegated a certain degree of provincial autonomy to a group of members. It would be possible to extend this to the creation of a Standing Committee for England and Wales. Under such a system Irish Members would be excluded from the Committee stages of legislation which was neither Irish nor Imperial. But there remains the Report stage, which is always apt to resolve itself into a Second Committee stage(58) in which the whole House participates. Moreover, an impassable limit is set to this process of domestic devolution by the necessity that the Government of to-day should command a majority in each of these Committees. A Liberal Ministry would probably find itself in a minority in an English Standing Committee, and a Unionist Ministry would, with equal probability, find itself in a minority in a Scottish Committee. Committees have become not so much a sphere for the legislative initiative of the private member as a new outlet for Government business. Contentious bills introduced or adopted by the Government are referred to them, and the moment this is the case the Minister in charge who is confronted in Committee with amendments which he does not care to accept may invite the whole House on the Report stage of the Bill to disallow them. The House itself, jealous of any surrender of its prerogatives, is only too apt to turn the Report stage into a second Committee stage. The responsibility of a Government department for the preparation and execution of legislation is to-day so indispensable that effective legislative devolution is almost impossible without devolution of the executive also. A Committee to which the Minister in charge of the Bill is not responsible is not in a position to exercise effectual control over legislation. Indeed it seems impossible to contemplate a devolution of legislative power without a corresponding devolution of executive power. So long as we have but one Executive in the House of Commons it is impossible to have two or three legislatures within the walls of that House. Moreover, it is just as imperative to restore the diminishing control of members of Parliament over administration as it is to re-establish their authority in legislation. There is a growing and regrettable tendency to confer upon Government departments both legislative and judicial powers—powers to make statutory orders and to interpret them, which is depriving our constitution of what has hitherto been regarded by foreign students as one of its most distinctive features—the subordination of the executive to the legislature and to the courts. The distinction between Gesetz und Verordnung,(59) between statute and order, is fast disappearing in the enormous volume of statutory orders. Powers to make rules under particular statutes are entrusted to Scotch, Irish, and English Departments which have the effect of diminishing the control of the House of Commons without transferring it to any representative substitute. The great increase of grants-in-aid for administrative purposes has also given the departments a power of indirect legislation by the latitude they enjoy in the distribution of them such as is further calculated to diminish the control of the House of Commons over questions of Irish and Scotch policy. Rarely do any marked departures by the departments come under the review of the House of Commons; the claims of the Government over the time-table of the House, fortified by certain rulings of the Speaker,(60) may and frequently do preclude any examination of them. In the words of a famous resolution, one may say “the power of the Executive has increased, is increasing, and ought to be diminished.”

But it is no remedy for this state of things to provide for administrative devolution alone. To devolve the authority which a great Department of State, such as the Board of Agriculture, exercises over the whole of Great Britain by the simple process of assigning its Scotch business to the Secretary for Scotland, does not increase the control of Scottish members over the executive. This process of administrative devolution, which is always going on, is not accompanied by any measure of legislative devolution; the Secretary for Scotland is not thereby brought under the control of the Scotch Standing Committee.

To create a new Scottish or Irish Department does not increase Parliamentary control over Scottish or Irish administration; rather it diminishes it. The heads of a Scottish Education Office, Local Government Board, and Department of Agriculture have been made responsible not to the House of Commons but to the Secretary for Scotland. Like the Chief Secretary for Ireland, he is a Prime Minister without a Cabinet and without a Legislature, and his policy is determined primarily not by Scottish or Irish opinion, but by the alien issues of imperial politics. Obviously there will never be any remedy for these anomalies until we have a Legislature with an executive responsible to it.

Scottish Home Rule

At the present moment we have in the case of Scotland devolution in a state of arrested development. This process of disintegration is reflected in separate Estimates in finance and in distinct draftsmanship in legislation. In legislation, indeed, marked changes have also taken place under cover of alterations in the Standing Orders of the House of Commons. An itinerant delegation of Scotch members has been set up to deal with private bill procedure in Scotland, and domestic devolution within the walls of the House of Commons has taken the shape of a Scotch Grand Committee. Few or none of these changes have any preconceived relation with the others; they represent experiments framed to meet the exigencies of the moment, but they all bear eloquent witness to a fact which has changed the whole aspect of the Home Rule problem and made that aspect at once more practical and less intimidating—the fact that the House of Commons has found itself increasingly incompetent to do its work. The fact is disguised by a multitude of expedients, all of them, however, amounting to a renunciation of legislative authority. These changes represent the _disjecta membra_ of Scottish Home Rule—they have no coherence, they point not so much to a solution of the problem as to its recognition.

None the less, I think the Irish Government Bill does provide us with a prototype. There is nothing in it, with the exception of the financial clauses, which forbids its adoption in the case of Scotland and of England. But I think, as I have already indicated in another connection, that the category of reserved subjects ought to be considerably enlarged so as to secure the maintenance of the existing uniformity of legislation in commercial and industrial matters. There are, however, undeniable difficulties in the way of an identity of local constitutions. Legislation in regard to land is exempted from the control of the Irish Legislature to an extent which Scotland would hardly be prepared to accept. Control over legislation relating to marriage is retained in the case of Ireland; I doubt if it would be tolerated in Scotland, whose marriage law differs(61) from that of England to a far greater extent than is the case with the marriage law of Ireland. In common law England and Ireland have the same rules;(62) it is only in statute law that they differ. In Scotland the common law is radically different. There will, therefore, be some difficulty in finding a common denominator for the Imperial Parliament—and in avoiding, even under “Home Rule All Round” a certain divergence in the legislative capacities of the members from Scotland and Ireland, with the attendant risk of an “in-and-out” procedure.

II.—Irish Administration Under Home Rule. BY LORD MACDONNELL OF SWINFORD

[The following article was, at my request, written by Lord
MacDonnell before he became acquainted with the provisions of the
Home Rule Bill. We agree in thinking it desirable that the article
should appear without alteration as an expression of the views
which Lord MacDonnell had formed on the subject.—THE EDITOR.]

I am asked to state my opinion as to the changes of Administrative Direction and Control which should be introduced into the system of Irish Government in the event of a Home Rule Bill becoming law.

As I write (in March) I am not acquainted with the provisions of the promised Bill and my conjectures in regard to them may, in some respects at all events, fall wide of the mark. But there are cardinal principles which, presumably, must govern the Bill, and lend to conjecture some approximate degree of accuracy. Among such principles are the establishment of a representative assembly (Mr. Birrell has told us there will be two Houses), with powers of legislation and of control over the finances allocated to Ireland; the maintenance of the supremacy of the Imperial Parliament; and the preservation of the executive authority of the King in Ireland.

Assuming then that the Bill will, in essence, be a measure of devolution under which the supremacy of the Imperial Parliament will be preserved, the Executive Power in Ireland will continue vested in the King (as under the Bills of 1886 and 1893) and a representative body controlling the Finances (and consequently the Executive) will be established, an intelligent anticipation may be made of the organic changes in the existing system of Irish Government which are likely to be required when the Bill becomes law.

I do not propose to push this anticipation into regions beyond those of constitutional or organic change. It may happen that re-arrangements of the Civil Service in Ireland, Inter-Departmental Transfers of the Executive Staffs, and reductions of redundant establishments, may ensue on the creation of the Irish Legislature.(63) But these changes, if they take place, will not be organic or constitutional changes; nor could anticipations in respect of them be now worked out with due regard to vested rights or economical administration. If not so worked out, such anticipations would be either valueless or harmful.

I shall therefore not attempt on this occasion to allocate establishments, or to suggest scales of pay, for the departments of the future Irish Government which I shall suggest in the following paragraphs. But I shall, as opportunity offers, point to such retrenchments of higher administrative posts as appear to follow from the organic changes I shall indicate as necessary.

The dominating constitutional change will, of course, be the establishment of a Parliament which, operating through a Ministry responsible to it, will control and direct the various departments engaged in the transaction of public business. It is unnecessary to consider here how that Parliament will be recruited, though I may express my conviction that justice to minorities, the mitigation of political mistrust, and the promotion of efficiency in the Public Services, urgently require the recruitment to be on the system of proportional representation. But I assume that when recruited, the Parliament’s general procedure will be fashioned on the model of the Imperial Parliament at Westminster. To that end the first thing the new Parliament will have to do is to create its own establishment of officers and clerks, to frame its Standing Orders relating to the conduct of public business, and to settle any subsidiary rules that the Westminster precedents may suggest.

Having thus provided itself with the requisite machinery for the exercise of its powers, the Irish Parliament would naturally next proceed to bring under its supervision the various existing agencies for the direction and control of the public business of the country.

At present the business of Civil Government in Ireland is carried on through the following forty-seven Departments, Boards, and Offices, which I group with reference to the degree of control exercised over them by the Irish Government at the present time.

DEPARTMENTS, ETC., UNDER THE CONTROL OF THE IRISH GOVERNMENT.

(1) Royal Irish Constabulary.
(2) Dublin Metropolitan Police.
(3) Prisons Board.
(4) Reformatory and Industrial School Office.
(5) Inspectors of Lunatics.
(6) General Registry of Vital Statistics.
(7) Registry of Petty Sessions Clerks.
(8) Resident Magistrates.(64)
(9) Crown Solicitors.
(10) Clerks of Crown and Peace.
(11) Office of Arms (Ulster King of Arms).

DEPARTMENTS, ETC., UNDER THE PARTIAL CONTROL OF THE IRISH GOVERNMENT.

(1) Land Commission.
(2) Commissioners of charitable donations and bequests.
(3) Public Record Office.

DEPARTMENTS, ETC., NOT UNDER CONTROL OF THE IRISH GOVERNMENT, BUT HAVING THE CHIEF SECRETARY AS EX OFFICIO PRESIDENT.

(1) Local Government Board.
(2) Department of Agriculture and Technical Instruction.

DEPARTMENTS, ETC., NOT UNDER THE CONTROL OF THE IRISH GOVERNMENT EXCEPT AS REGARDS APPOINTMENTS AND, IN SOME INSTANCES, THE FRAMING OF RULES OF BUSINESS.

(1) Board of National Education.
(2) Board of Intermediate Education.
(3) Commissioners of Education. (Endowed Schools).
(4) National Gallery.
(5) Royal Hibernian Academy.
(6) Congested Districts Board.

BOARDS EXERCISING STATUTORY POWERS IN IRELAND BUT NOT UNDER CONTROL OF THE IRISH GOVERNMENT.

(1) Public Loan Fund.
(2) Commissioners of Irish Lights.
(3) Queen’s University, Belfast.
(4) National University.

DEPARTMENTS, ETC., NOT CONTROLLED BY THE IRISH GOVERNMENT.

(1) The Judiciary.
(_a_) The Supreme Court of Judicature and its officers.
(_b_) Recorders.(65)
(_c_) County Court Judges.
(2) Registry of Deeds.
(3) Local Registration of Titles.
(4) Railway and Canal Commission.
(5) Commissioners of Public Works.
(6) General Valuation and Boundary Survey of Ireland.
(7) Treasury Remembrancer’s Office.
(8) National School Teachers’ Superannuation Office.

ENGLISH CIVIL DEPARTMENTS WORKING IN IRELAND AND NOT UNDER THE CONTROL OF THE IRISH GOVERNMENT.