In every formal proposal for Home Rule in Ireland, weight has been given
to the above considerations, and attempts have been made to meet them by
qualifying the grant of responsible Government. The qualifications
suggested have taken the form of _(a)_ the reservation of certain
powers to the Imperial Parliament, or (_b_) the restriction of the
powers granted to the Irish legislature by prohibiting their exercise in
certain specific ways, or (_c_) the provision of some form of Imperial
veto or control. It is important to consider whether and how far such
checks or "safeguards" are likely to prove effective and lasting.
The "safeguards" proposed by the Government of Ireland Bill, 1886, were
somewhat extended by the Bill of 1893; and the proposals shortly to be
submitted to Parliament, so far as they can be gathered from recent
speeches of Ministers, will not in this respect differ materially from
those contained in the latter Bill. It will therefore be convenient to
take as a basis for discussion the provisions of the Bill of 1893, as
passed by the House of Commons.
The Bill of 1893, after stating in a preamble that it was "expedient
that without impairing or restricting the supreme authority of
Parliament an Irish Legislature should be created for such purposes in
Ireland as in this Act mentioned," proposed to set up in Ireland a
Legislature[32] consisting of the Sovereign and two Houses, namely a
Legislative Council of 48 members to be returned under a restricted
franchise by the Irish counties and the boroughs of Dublin and Belfast,
and a Legislative Assembly of 103 members to be returned by the existing
parliamentary constituencies in Ireland. A Bill introduced into the
Irish Legislature was to pass both Houses; but in the event of
disagreement the proposals of the Legislative Assembly were to be
submitted, after a dissolution or a delay of two years, to a joint
Session of the two Houses. The executive power was to remain in the
Crown, aided and advised by an Irish Ministry (called an Executive
Committee of the Privy Council of Ireland), and the assent of the Crown
to Irish legislation was to be given or withheld on the advice of this
Executive Committee subject to any instructions given by the Sovereign.
The specific reservations and restrictions were contained in clauses 3
and 4 of the Bill, which were as follows:--
"3. The Irish Legislature shall not have power to make laws in
respect of the following matters or any of them:--
"(1) The Crown, or the succession to the Crown, or a Regency; or
the Lord Lieutenant as representative of the Crown; or
"(2) The making of peace or war or matters arising from a state of
war; or the regulation of the conduct of any portion of Her
Majesty's subjects during the existence of hostilities between
foreign States with which Her Majesty is at peace, in respect of
such hostilities; or
"(3) Navy, army, militia, volunteers, and any other military
forces, or the defence of the realm, or forts, permanent military
camps, magazines, arsenals, dockyards, and other needful
buildings, or any places purchased for the erection thereof; or
"(4) Authorising either the carrying or using of arms for military
purposes, or the formation of associations for drill or practice
in the use of arms for military purposes; or
"(5) Treaties or any relations with foreign States or the
relations between different parts of Her Majesty's dominions, or
offences connected with such treaties or relations, or procedure
connected with the extradition of criminals under any treaty; or
"(6) Dignities or titles of honour; or
"(7) Treason, treason-felony, alienage, aliens as such, or
naturalisation; or
"(8) Trade with any place out of Ireland; or quarantine, or
navigation, including merchant shipping (except as respects inland
waters and local health or harbour regulations); or
"(9) Lighthouses, buoys, or beacons within the meaning of the
Merchant Shipping Act, 1854, and the Acts amending the same
(except so far as they can consistently with any general Act of
Parliament be constructed or maintained by a local harbour
authority); or
"(10) Coinage; legal tender; or any change in the standard of
weights and measures; or
"(11) Trade marks, designs, merchandise marks, copyright, or
patent rights.
"Provided always, that nothing in this section shall prevent the
passing of any Irish Act to provide for any charges imposed by Act
of Parliament, or to prescribe conditions regulating importation
from any place outside Ireland for the sole purpose of preventing
the introduction of any contagious disease.
"It is hereby declared that the exceptions from the powers of the
Irish Legislature contained in this section are set forth and
enumerated for greater certainty, and not so as to restrict the
generality of the limitation imposed in the previous section on
the powers of the Irish Legislature.
"Any law made in contravention of this section shall be void.
"4. The powers of the Irish Legislature shall not extend to the
making of any law--
"(1) Respecting the establishment or endowment of religion,
whether directly or indirectly, or prohibiting the free exercise
thereof; or
"(2) Imposing any disability, or conferring any privilege,
advantage, or benefit, on account of religious belief, or raising
or appropriating directly or indirectly, save as heretofore, any
public revenue for any religious purpose, or for the benefit of
the holder of any religious office as such; or
"(3) Diverting the property, or, without its consent, altering the
constitution of any religious body; or
"(4) Abrogating or prejudicially affecting the right to establish
or maintain any place of denominational education, or any
denominational institution or charity; or
"(5) Whereby there may be established or endowed out of public
funds any theological professorship, or any university or college
in which the conditions set out in the University of Dublin Tests
Acts, 1873, are not observed; or
"(6) Prejudicially affecting the right of any child to attend a
school receiving public money without attending the religious
instruction at that school; or
"(7) Directly or indirectly imposing any disability or conferring
any privilege, benefit, or advantage upon any subject of the Crown
on account of his parentage or place of birth, or of the place
where any part of his business is carried on, or upon any
corporation or institution constituted or existing by virtue of
the law of some part of the Queen's dominions, and carrying on
operations in Ireland, on account of the persons by whom or in
whose favour, or the place in which any of its operations are
carried on; or
"(8) 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; or
"(9) Whereby any existing corporation incorporated by Royal
Charter or by any local or general Act of Parliament may, unless
it consents, or the leave of Her Majesty is first obtained on
address from the two Houses of the Irish Legislature, be deprived
of its rights, privileges, or property without due process of law
in accordance with settled principles and precedents, and so far
as respects property without just compensation. Provided nothing
in this sub-section shall prevent the Irish Legislature from
dealing with any public department, municipal corporation, or
local authority, or with any corporation administering for public
purposes taxes, rates, cess, dues, or tolls, so far as concerns
the same. Any law made in contravention of this section shall be
void."
The power to impose taxation other than duties of custom and excise was
to be transferred, subject to a short delay as to existing taxes and to
a special provision in respect of taxes for war expenditure, to the
Irish Legislature (clause II). Two judges of the Supreme Court in
Ireland, to be called "Exchequer Judges," were to be appointed under the
Great Seal of the United Kingdom, and to be removable only on an address
from the Imperial Parliament; and proceedings relating to the reserved
powers or to the customs or excise duties were to be determined by such
judges (clause 19). Appeals from the Courts in Ireland were to lie to
the Judicial Committee of the Imperial Privy Council (clause 21); and
any question as to the powers of the Irish Legislature could be referred
to the same Committee (clause 22). The Royal Irish Constabulary and
Dublin Metropolitan Police Force were gradually to disappear, and police
matters to be regulated by the Irish Legislature and Executive (clause
29). The Irish Legislature was to be prohibited from passing land
legislation for a period of three years (clause 34).
As to these proposals the first observation that occurs is that, in
addition to the matters proposed to be reserved, there are others in
which legislative uniformity throughout the kingdom is greatly to be
desired. To mention but a few such matters, questions of status,
contract and succession, of international trade and navigation, of the
regulation of railways and of industrial labour, and of the criminal
law, should not be differently determined in different parts of the
kingdom; and as life becomes more complex, the number of subjects in
which diversity of laws is a hindrance continues to increase.
In the next place, it is to be noted that the checks proposed affect
legislation only and not administration. If the Bill of 1893 or any
similar Bill should become law, the whole executive power in Ireland
will be in an Irish Ministry responsible to an Irish Assembly; and it is
obvious that many of the wrongs against which the restrictive clauses of
the Bill were directed may be inflicted by administrative act or
omission as effectively as by legislation. To quote a work of
authority[33]--
"An independent Irish Executive will possess immense power. It will
be able by mere administrative action or inaction, without passing
a single law which infringes any restriction to be imposed by the
Irish Government Act, 1893, to effect a revolution. Let us consider
for a moment a few of the things which the Irish Cabinet might do
if it chose. It might confine all political, administrative, or
judicial appointments to Nationalists, and thus exclude Loyalists
from all positions of public trust. It might place the bench, the
magistracy, the police, wholly in the hands of Catholics; it might,
by encouragement of athletic clubs where the Catholic population
were trained to the use of arms, combined with the rigorous
suppression of every Protestant association suspected, rightly or
not, of preparing resistance to the Parliament at Dublin, bring
about the arming of Catholic, and the disarming of Protestant,
Ireland, and, at the same time, raise a force as formidable to
England as an openly enrolled Irish army. But the mere inaction of
the executive might in many spheres produce greater results than
active unfairness. The refusal of the police for the enforcement of
evictions would abolish rent throughout the country. And the same
result might be attained by a more moderate course. Irish Ministers
might in practice draw a distinction between 'good' landlords and
'bad' landlords, and might grant the aid of the police for the
collection of 'reasonable,' though refusing it for the collection
of 'excessive,' rents."
Irish Ministers might even refuse actively to oppose the "moral claim"
of the Irish Catholics to the use of the cathedrals and of the
accumulated capital of the Irish Church.[34]
To contemplate the possibility of action or calculated inaction of the
character above described is not to attribute to Irishmen any special
measure of original sin. In every case where the executive power is
divorced from the ultimate legislative authority such divergencies are
likely to recur; and more than one instance may be found in our own
recent history. In 1859 the Canadian Government warned the Home
Government that any attempt to interfere with the customs policy of the
Dominion was inadmissible, unless the home authorities were prepared to
undertake the responsibility of administering the whole government of
Canada. The Home Government gave way.[35] In 1878 the Governor of Cape
Colony proposed to place the colonial forces under the control of the
officer commanding the Imperial forces. The Cape Government resisted,
and refused to resign; and eventually the Governor, on the advice of the
Home Government, dismissed his ministers. In this case a change of
government occurred after the general election, but in the end the claim
put forward by the Imperial authorities had to be withdrawn.[36] In 1906
the Natal Government proclaimed martial law, and ordered the execution
of twelve natives on charges of murder. The Imperial Government
intervened, and suggested the suspension of the order pending further
consideration. The Natal Ministry immediately resigned; and as there was
no chance of the formation of a new Government, the Imperial authorities
hastily withdrew.[37]
Differences have arisen even on so grave a matter as the succession to
the throne. The union of England and Scotland in 1707 was preceded and
hastened by the so-called Act of Security, by which the Scottish Estates
asserted the right to name a successor to the throne of Scotland, who
should not (except under certain specified conditions) be the person
designated as sovereign by the English law. And during the illness of
King George III. in the year 1788, Grattan, in defiance of the views of
Pitt and of the majority in both Houses of the Imperial Parliament,
carried in the Irish Parliament an address to the Prince of Wales,
calling upon him (without waiting for a Regency Bill) to assume the
Government of the Irish nation, "and to exercise and administer all
legal power, jurisdiction and prerogatives to the Crown and Government
thereof belonging"--words borrowed from the address by which in the
Revolution of 1688 William of Orange was requested to assume the Crown.
Happily, the Viceroy declined to present the address, and a deputation
sent from Ireland to present it found on their arrival that the king had
recovered; but the incident might have led to a conflict upon a matter
so important as the exercise of the royal power.
The fact is that the word "supremacy," so often used in this
controversy, is one of ambiguous meaning. Parliament is supreme in the
United Kingdom, Parliament is likewise supreme in New Zealand; but the
two supremacies are of widely different kinds. Supremacy consists of two
ingredients--authority to enact and power to enforce; and without the
latter the former is little more than a legal figment, which may have no
more practical importance than the theoretical right of veto which is
retained by the Crown. Mr. Balfour, speaking on the second reading
debate of the 1893 Bill, referred to this matter as follows:--
"Legally, of course, the Imperial Parliament would be supreme: no
one has doubted it. But what layman takes the slightest interest
in these paper supremacies? For my part I take no more interest in
the question of whether the Imperial Parliament is on paper
superior to the Irish Parliament, than I do as to the order of
precedence at a London dinner party. The thing is of no public
interest or importance whatever. What we want to know is where the
power lies. Who is going to exercise supremacy? Who is going to be
the _de facto_ ruler of Ireland?"
Special importance attaches to these considerations owing to the heavy
liabilities undertaken by this country in respect of land purchase in
Ireland. At the present time many millions of British money are sunk in
Irish land, and the amount may increase to a sum approaching two hundred
millions. The tenants now pay their annuities because, in the last
resort, the Government can turn them out. Under Home Rule the powers of
Government would rest with men who have led "no rent" agitations in the
past, and who would be dependent upon the votes of those personally
interested in repudiating the debt. The British Treasury can hardly run
such a risk; and some sort of concurrent control, with all its evils and
risks, seems to be necessary. And yet financial independence is the
first essential to genuine autonomy.
But, it may be said, if the Irish Government go beyond the law, the
Irish Courts may be asked to interfere; and in the event of their
refusal, the Bill provides an appeal to the Judicial Committee in
London. No doubt it does, but in practice the person aggrieved might
have very great difficulty in making the remedy effective. He must
obtain a decision in his favour from the Judicial Committee of the Privy
Council, at no small cost of money and personal odium; and the decision
of that "alien" tribunal (as it would be called) must then be enforced
under the jurisdiction of a Government which (on the hypothesis which we
are considering) would be unfriendly, by judges and executive officers
appointed and perhaps removable by that authority, and in the midst of a
population hostile to "foreign" interference. Is it extravagant to
suppose that the complainant would not gain much by his appeal to
Cæsar?
And even if we suppose the Irish Legislature and Executive to confine
themselves within the letter of the Act, are the checks of any real
value? The Irish Parliament might still interfere with contracts, or
might validate contracts now held to be void as contrary to public
policy. They might defeat the Mortmain Acts. They might deal as they
thought fit with internal trade; and the great industries of Belfast and
its neighbourhood might find their views on trade questions of no avail.
The Irish Legislature might create new offences and institute new
tribunals; and the reference in the Bill to "due process of law" would
not necessarily secure trial by jury or by an impartial tribunal.[38]
It is said that legislation of this character would be subject to the
veto of the Crown. But that veto is to be exercised on the advice of the
Irish Ministry subject to any instructions given by the Sovereign; and
so long as an Irish Legislature is entitled to withhold Irish supply, a
veto against the advice of the Irish ministry would surely tend to
become impossible.
Again, it is said that an unjust law passed by the Irish Parliament
might be repealed by the Imperial Parliament. Doubtless the technical
right would exist, as in the case of the Colonies; but no one dreams
that, with "responsible" government existing in Ireland and Irish
representatives at Westminster, it would in practice be used. The
Imperial Government has never been known to interfere with the
legislation of a self-governing colony except where Imperial interests
are concerned, or where a fraud on the colony can be established;[39]
and the same rule would obtain in the case of Ireland.
Lastly, it is said that in the last resort there is the British Army.
But if the civil power in Ireland does not call in the military force,
how can the latter be used to enforce the law? Are the forces to be
controlled from England, and what is this but a counter revolution? It
is hardly worth while to liberate Ireland from the peaceful rule of the
Imperial Government in order to govern her by military force.
But in fact the so-called "safeguards" would not last. Professor
Dicey[40] and Professor Morgan,[41] writing from opposite sides of the
controversy, agree in holding that no colony would tolerate them for a
moment; and it is incredible that Ireland, with a Parliament of her own,
would submit to them for more than a few years.[42] Suppose the majority
of the Irish Legislature to grow weary of the "safeguards," and to
demand their repeal. The Imperial ministry might refuse, but the reply
of the Irish ministry (if in command of a majority in the Irish House of
Commons) would be to resign and to make the government of Ireland
impossible except by force. And if Ireland were still represented in the
Imperial Parliament, the new "sorrows of Ireland" would find eloquent
and insistent expression there. What, then, would England do? What could
she do, except, after a futile struggle, to give way? The truth is, that
if you part with the executive power, all checks and "safeguards" are
futile. Mr. Redmond[43] eagerly "accepts every one of them," and will
accept others if desired; for he knows that they must prove ineffective.
"If," said Lord Derby in 1887, "Ireland and England are not to be one,
Ireland must be treated like Canada or Australia. All between is
delusion or fraud."