The New Irish Constitution Part 2

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 circ.u.mstances. 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 pa.s.sage 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 cla.s.sifying 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 circ.u.mstances. 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 circ.u.mstances, 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 rea.s.sert 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 ent.i.tled 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 a.s.sembly. 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 partic.i.p.ates. Moreover, an impa.s.sable 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 const.i.tution of what has. .h.i.therto 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 subst.i.tute. The great increase of grants-in-aid for administrative purposes has also given the departments a power of indirect legislation by the lat.i.tude 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 a.s.signing 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 mult.i.tude 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 ident.i.ty of local const.i.tutions. 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 a.s.sembly (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.

a.s.suming 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 antic.i.p.ation 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 antic.i.p.ation into regions beyond those of const.i.tutional 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 const.i.tutional changes; nor could antic.i.p.ations in respect of them be now worked out with due regard to vested rights or economical administration. If not so worked out, such antic.i.p.ations 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 const.i.tutional 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 a.s.sume 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.