The Framework of Home Rule Part 24

[154] See pp. 10-17, 66-71.

[155] See p. 270-271.

[156] See p. 267.

[157] Cd. 4005, 1908.

[158] This and subsequent figures are taken from an answer to question in the House of Commons, July 25, 1911, and from the current Exports of the Land Commission and Estates Commissioners.

[159] Cd. 4412, 1908. The basis taken was the Poor Law valuation of the lands unsold, multiplied by the number of years purchase of the lands sold under the Act of 1903. On this basis the value of the land neither sold nor agreed to be sold in 1908 was 103,931,848. On the basis of acreage, the estimate worked out at 102,078,448, and on the basis of holdings (regarded as unreliable by the Commissioners) at 92,660,694.

The total sum required from first to last, including sums already advanced under all the various Acts, was 208,366,175.

[160] Pasture land let on eleven months' tenancies (a common form of tenure) counts as untenanted land, and is subject to purchase by the Land Commissioners, compulsorily, if necessary.

[161] But not always. Heavily mortgaged landlords profited most, perhaps, under the Act of 1903.

[162] Only once exercised up to October, 1911: over Lord Inchiquin's estate in Clare, to be acquired for the relief of congestion.

[163] See p. 75. There the loan for compulsory Land Purchase was ultimately raised by the Dominion of Canada, as one of the conditions upon which Prince Edward Island entered the Federation in 1873. Under the Land Purchase Act, pa.s.sed in 1875 by the Island Legislature, with the a.s.sent of the Dominion, three Commissioners adjudicated upon the sales; representing the Island Government, the Landlords, and the Dominion Government respectively.

[164] Finance accounts of the United Kingdom, 1911.

[165] Report of the Commissioners of Public Works, 1910. The amount in 1907-08 was 434,796; in 1908-09, 361,282. The Commissioners have been lending since 1819, and have lent since that date 48,792,319.

CHAPTER XV

THE IRISH CONSt.i.tUTION[166]

I have dealt with the major issues of Home Rule. The exclusion or retention of Irish Members at Westminster, and the powers--above all, the financial powers--of the Irish State, are the two points of cardinal importance. As I have shown, they are inseparably connected, and form, in reality, one great question.

I have endeavoured to prove that from whatever angle we approach that central issue, whether we argue from representation to powers, or from powers to representation, and whether the particular powers we argue from be financial, legislative, or executive; whether we place Irish, British, or Imperial interests in the forefront of our exposition--we are led irresistibly to the colonial solution--that is, to the cessation of Irish representation at Westminster, coupled with a concession to Ireland of the full legislative and executive authority appropriate to that measure of independence, and, above all, with fiscal autonomy.

All the other provisions of the Bill are secondary. They may be divided into two categories, which necessarily overlap:

1. Provisions concerning Ireland only.

2. Provisions defining the Imperial authority over Ireland.

The structure of the Irish Legislature, the position of the Irish Judiciary, the safeguards for minorities, the provision made for existing servants of the State, the statutory arrangements, if any, for the future reorganization of the Irish Police--these and other questions are of great intrinsic importance, and need the most careful discussion; but they are altogether subordinate to those we have already considered.

If it be over-sanguine to hope, in Ireland's interest, that they will be discussed in a calm and dispa.s.sionate way, we can at least demand that those provisions belonging to the second category, which present no appreciable difficulty, will not excite bitter and barren disputes like those of 1893.

It is not within the scope of this volume to discuss exhaustively the secondary provisions of the Bill, or to suggest the exact statutory form which those provisions, major or minor, should take. In this chapter I shall deal briefly with matters which I have hitherto left aside, and incidentally give more precision to the points upon which I have already suggested a conclusion, in both cases indicating, so far as possible, the most useful precedents and parallels from other Const.i.tutions. The result will be the rough sketch of a Home Rule Bill.

PREAMBLE.

"Whereas it is expedient that _without impairing or restricting the supreme authority of Parliament_, an Irish Legislature should be created, etc." So ran the opening sentence of the Home Rule Bill of 1893. The words I have italicized are harmless but superfluous. They have never appeared in the Const.i.tutions granted to Colonies, even at periods when the Colonies were most distrusted. Nothing can impair the supreme authority of Parliament.

EXECUTIVE AUTHORITY.

In all parts of the Empire, power emanates from the Sovereign, and is wielded locally in his name.

Section 9 of the British North America Act of 1867 runs as follows: "The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen." Similar words are used in the South Africa Act of 1909, and in the Commonwealth of Australia Const.i.tution Act of 1900. Curiously enough, these were Acts to legalize the Federation, or Union, of separate Colonies, and were pa.s.sed at a time when the principle embodied needed no affirmation. In earlier Acts for granting Colonial Const.i.tutions, the principle was taken for granted, and implied in numerous provisions, but not stated explicitly.

The most recent unitary Const.i.tution, that of the Transvaal (Section 47), was even more reticent, though the principle was none the less clear. The point is unimportant, and the words used in the Home Rule Bills of 1886 and 1893 (Clauses 5 and 7 respectively), modified to meet a change of Sovereign, will serve very well: "The Executive power in Ireland (or the Executive Government of Ireland) shall continue vested in His Majesty...."

Thereon follow the provisions for delegation of the Royal authority, first to the Sovereign's personal Representative in Ireland, and then through him to the members of the Irish Executive. The simpler these provisions are, the better. What we know as responsible government has never been defined in any Act of Parliament. The phrase "responsible government" has only once appeared in any Const.i.tution--namely, in the preamble of the Transvaal Const.i.tution granted in 1906, and even then no attempt was made at definition, though certain sections, like certain sections in the Australian Const.i.tutions of 1855 and in the later Federal Acts, inferentially suggested features of responsible government.

The system is two-sided. Ministers are responsible on the one hand to the King direct, as in Great Britain, or to the King's Representative, as in the Colonies, and, on the other hand, to the elected Legislature.

Ireland will resemble a Colony in being a dependent State under a Representative of the King--namely, the Lord-Lieutenant. This personage, corresponding to the Colonial Governor, will also have to act in a dual capacity. On the one hand he will be responsible to the King, or, virtually, to the British Cabinet, and, on the other hand, he will be bound by an unwritten law to nominate for the Government of Ireland persons acceptable to the elected Legislature, and in Irish matters to act by their advice in all normal circ.u.mstances.

Let us dispose first of the relation of the Ministers and of other public officials to the Legislature. There will be no question, presumably, of giving statutory power to this relation. It is an unwritten custom--(1) that Ministers must be members of one branch of the Legislature; (2) that they must hold the confidence of the elected branch; (3) that, as a Cabinet, they stand or fall together; and, lastly, (4) that all non-political officials are excluded from the Legislature. The first and the last of these conventions have taken legal form in some isolated cases;[167] the other two appear in no statute that has yet been framed.[168]

Neither have the functions in practice exercised by the Ministry or Cabinet, nor the relations which in practice exist between it and the King's Representative, ever had statutory definition. Whatever form the Home Rule Bill takes, it cannot give legal precision to these things.

The King's Representative always nominates an Executive Council--that is, a Cabinet to "advise" him in the Government, and whether, as in the Bill of 1893, that Council is called an Executive Committee of the Privy Council of Ireland by a.n.a.logy with the Dominion of Canada, where it is the "King's Privy Council for Canada," or whether it is merely an Executive Council is immaterial. That it is, nominally, the const.i.tutional duty of the King's Representative (like that of the King himself) to perform executive acts on the advice of his Ministers is never stated expressly. He is always, and generally in the text of the Const.i.tution, vested with the power of summoning, proroguing, and dissolving the Legislature, and of giving or withholding the Royal a.s.sent to Bills. He also, by unwritten law, wields the prerogative of Pardon, and appoints all public servants; and in all these cases, except in the case of appointing non-political officials, he occasionally has to act on his own personal responsibility.

This personal responsibility cannot be distinguished in practice from his responsibility to the Crown, which appoints and can remove him.

Cases have arisen where the Governor of a self-governing Colony has written home for special guidance on some specific point, and where the answer given has been that he must act on his own responsibility, or follow the advice of his Ministers. All Colonial Governors, however, whether or not their powers are defined in the Const.i.tution, are appointed by Commission from the Crown with powers defined in Letters Patent and Instructions as to their exercise. These Letters Patent and Instructions are not of much importance in the case of a self-governing Colony where responsible advice so largely controls the action of the Governor. Sometimes the executive powers given by Instructions to the Governor are indirectly alluded to in the Const.i.tution, as in the South Africa Act of 1909, where, by Clause 9, under the head of "Executive Government," the Governor-General is "to exercise such powers and functions of the King as His Majesty may be pleased to a.s.sign to him."

In the Australian and Canadian Acts of 1900 and 1867 respectively, the words do not appear. I name this point because in Clause 5 of the Home Rule Bill of 1893, and Clause 7 of the Bill of 1886, a similar course was taken in providing that the Lord-Lieutenant should "exercise any prerogatives, or other executive power of the Queen, the exercise of which may be delegated to him by Her Majesty." The words are not strictly necessary. The Lord-Lieutenant will, of course, have his Letters Patent and Instructions, but the powers of the Crown are theoretically absolute. If the Crown, acting under responsible British advice, should wish to defy the Irish Legislature, it could do so whatever the terms of the Bill.

Naturally, there will be certain Imperial and non-Irish matters in which the Lord-Lieutenant will act primarily under the orders of the British Cabinet, and the Departmental British Minister primarily responsible for Irish-Imperial matters would be the Home Secretary.[169]

The question may be raised, as in 1893 (July 3, Hansard), whether a staff of Imperial officials ought not to be set up to conduct any Imperial business which has to be done in Ireland, on the a.n.a.logy of the Federal staff in the United States. I hope Mr. Gladstone's answer will still hold good--that no such staff is needed; that the Irish officials will be responsible, and ought, on the Home Rule principle, to be trusted, as they are trusted in the Colonies.

The Royal a.s.sent to Bills is always a matter for express enactment in the Const.i.tution, but here the "instructions" of the Governor, and even his personal "discretion," have generally been alluded to in recent Const.i.tutions, whether conferred by Act or Letters Patent. The typical form of words is that the Governor "shall declare his a.s.sent according to his discretion, but subject to His Majesty's instructions."[170] The Home Rule Bill of 1893 left out reference to "discretion," and, on the other hand, is, I think, the only doc.u.ment of the kind in which the "advice of the Executive Council" has ever been expressly alluded to, although the practice, of course, is that the a.s.sent, normally, is given or withheld on that advice. The Transvaal Const.i.tution of 1906 (Section 39) was unique in prescribing that special instructions must be received by the Governor in the case of each proposed law, before the a.s.sent is given. I hope that will not be made a precedent for Ireland. Such precautions only irritate the law-makers, and serve no useful purpose.

Colonial Governors, besides the power of a.s.sent and Veto, may "reserve"

Bills for the Royal pleasure, which is to be signified within two years.

Moreover, Bills which have received the Governor's a.s.sent may be disallowed within one or two years.[171] Neither of these provisions appeared in the Home Rule Bills of 1886 and 1893, and neither appear to be strictly necessary, owing to the proximity of Ireland. Whatever is done, we may hope that the practice now established in Canada, where the Federal Government never disallows a provincial law on any other ground than that it is _ultra vires_, and, _a fortiori_, the similar practice as between Great Britain and the Dominions, may be imitated in the case of Ireland.

To sum up, the terse and simple words of the Bill of 1886 really enunciate all that is necessary:

[Sidenote: Const.i.tution of the Executive Authority.]

"7.--(1) The Executive Government of Ireland shall continue vested in (Her) Majesty, and shall be carried on by the Lord-Lieutenant on behalf of (Her) Majesty with the aid of such officers and such council as to Her Majesty may from time to time seem fit.

"(2) Subject to any instructions which may from time to time be given by (Her) Majesty, the Lord-Lieutenant shall give or withhold the a.s.sent of (Her) Majesty to Bills pa.s.sed by the Irish Legislative Body, and shall exercise the prerogatives of (Her) Majesty in respect of the summoning, proroguing, and dissolving of the Irish Legislative Body, and any prerogatives the exercise of which may be delegated to him by (Her) Majesty."

LORD-LIEUTENANT AND CIVIL LIST.

The restriction as to the religion of the Lord-Lieutenant will, of course, be removed. There is no reason why his term of office should be limited by law. His salary, payable by Ireland, should perhaps be stated in the Act, as in the case of Canada and South Africa, though not in that of Australia. Australia, on the other hand, has a statutory Civil List, and a fixed Civil List was an invariable feature of the old Const.i.tutions given to self-governing Colonies. Canada and South Africa are under no such restrictions, and it would be very inexpedient to impose them upon Ireland.

LEGISLATIVE AUTHORITY.