The New Irish Constitution Part 26

I say that the setting up of four Standing Committees, and the inst.i.tution of the guillotine closure have so far failed to relieve appreciably the pressure of business in the House of Commons. Another method has been tried that might reasonably have been expected to produce more fruitful results. I refer to the prolongation of the session of Parliament. In 1906 we had an autumn sitting. In 1907 we sat until August 28th. In 1908 we had an autumn sitting. In 1909 we sat for practically the whole year. The session of 1910 was agreeably diversified by a strenuously contested General Election at either end of it. In 1911 we had yet another autumn sitting, and this year we are threatened with a continuous session extending from February until Christmas time. True enough, a good part of the work of these sessions was wasted by the action of a House of Lords which has since lost some of its powers for obstructive mischief, but it will be observed that of the first cla.s.s measures destroyed by the Lords, only two-the Education Bill (in a different form), and the Scotch Small Holders Bill-have subsequently made considerable demands on the attention of the House of Commons. The time gained by extending the sittings of these several Parliaments has been chiefly wanted for new legislation.

Even if the House of Lords had found it convenient to pa.s.s the Liberal measures which it rejected, the pressure of business in the House of Commons must have necessitated the resort to autumn sittings in two or three of the years under consideration. Now, it is a commonplace that autumn sittings are permissible only in very exceptional circ.u.mstances.

From the point of view of all Members of Parliament, autumn sittings are an unqualified disadvantage. Members, like other folk, want their holidays, and, unlike other folk, have const.i.tuencies to look after.

Ministers of the Crown who are members of the House of Commons stand in even greater need of holidays than private members, and are not less under obligation to cultivate their const.i.tuencies. In addition, they need leisure for the preparation of the great Government measures that are to figure in the King's Speech, Departmental Bills for the ensuing session, and generally for the overhauling of the work of their departments. It is astonishing that the work of the great administrative departments should have been done so well in recent years when regard is had to the extreme pressure under which Ministers have been working. If Sir H.

Campbell-Bannerman and Mr. Asquith had not had at their command an abundance of administrative talent of a high quality, there must have been during the last six years many cases of failure in the management of the important Parliamentary Offices of State. One of the chief functions of a Parliamentary Minister in charge of a department is the infusion of new ideas, the re-a.s.sembling and adaptation of old machinery, the bringing up to date of an organisation that may have served its purpose well in the past but is no longer adequate to the enlarged requirements of modern times. For such work as this there must be time for cool deliberation. It is scarcely possible for the most capable Minister to devise schemes of administrative reform amidst the excited rumours of the lobbies and the innumerable distractions of life in the House of Commons. Less responsible members of the House of Commons than Ministers find that it is well-nigh impossible to think clearly during the session of Parliament.

Other methods have been proposed for saving time in an overburdened House of Commons. There is the proposal that measures that have reached a certain incomplete stage in one session should be revived at the same stage in the next session of the same Parliament. A Select Committee of unusual authority discussed this matter in 1890. Among the members of the Committee were Mr. Gladstone, Mr. Balfour, Mr. Chamberlain, Mr. John Morley, Mr. Goschen, Sir William Harcourt, the Marquis of Hartington, Mr.

Dillon, Sir Edward Clarke, Mr. T. W. Russell, Mr. Labouchere, and Mr.

s.e.xton. Proposals for abridging the procedure on partly considered Bills had been mooted in 1848, in 1861, and again in 1869, but the objects in view of the earlier Committees entirely differed from those of the Committee of 1890. The proposal emanated from the House of Lords, and the original design was to give the Upper House power to hang up Bills coming from the House of Commons. The Lords complained, as they have often complained since, that Bills were sent up to them at a period of the session too late to admit of the exercise of the Lords' rights of revision and amendment. They urged, too, and with some force, that Bills were frequently sent up to them which had not been adequately discussed in the lower House. They desired, therefore, to possess themselves of the power to hold over such Bills to another session. Needless to say, such a proposal as this excited fierce opposition in the House of Commons, and the deliberations of 1848, 1861, and 1869 came to nothing. The Committee of 1890 set out with wholly different intentions. Its object was merely to obviate reiterated arguments in the House of Commons on the same subjects and to save the time of the House. Thanks in a large measure to Mr.

Balfour's advocacy the Committee reported that the carrying over of Bills should become the practice of the House, as it is indeed the practice of almost every Parliament in Europe. A formidable minority, however, led by Mr. Gladstone, reported against the proposal, and nothing has yet been done to give effect to the wishes of the majority. To this day the "ma.s.sacre of the innocents" is a melancholy feature of our proceedings at the end of a session. I doubt myself whether "carrying over" will ever be adopted as a part of the established and regular practice of the House of Commons. Ministers look with cold disfavour on the proposal. They are generally suspicious of private members' little Bills, and private members themselves are not ordinarily enthusiastic about the legislative bantlings of other private members.

One other remedy has been suggested for hastening the dispatch of business in the House of Commons-the limitation of speeches. For every member who made speeches in the House of Commons half a century ago fifty make speeches now. It is not, I think, that we are more loquacious than our ancestors or more greedy of the ready publicity that is accorded to any sort of speech in Parliament. Many interests are now represented in Parliament that were not directly represented at all in the earlier days, and the problems of a more numerous population and of a more complex civilisation make corresponding demands on the time of the House of Commons. The serious man who represents these great new interests in the House of Commons never consciously squanders the time of the House in unnecessary speech. No doubt the prevailing fashion of oratory is marked by diffuseness and lack of discipline, but it is to the comparatively modern scandal of deliberate obstruction by speech that we owe the guillotine and all its attendant evils. From time to time there has been earnest debate as to whether a time limit to speeches should be fixed.

That any such policy is difficult of achievement is proved by the fact that even the existing Standing Order against irrelevance and tedious repet.i.tion has fallen into almost complete abeyance.

What is the ultimate remedy for the congestion of business in the House of Commons? Who can doubt that it is the delegation of provincial business to provincial a.s.semblies? There has been, I say, no lack of expedients. The setting up of four Grand Committees, the inst.i.tution of the guillotine as a regular feature of House of Commons procedure in regard to every first-cla.s.s measure, the frequent resort to autumn sittings-these methods have been tried and found wanting. Little prospect of relief is afforded by any projected limitation of speeches or by the carrying over of Bills.

Meanwhile, as we have seen, the legitimate claims on the attention of Parliament grow with the needs of a growing population and of an expanding empire. In part it is the problem of new wine in old bottles. Our Parliament was not constructed for its present purposes. Originally it was the legislature for England alone. The provincial affairs of Scotland were first imposed on it, and then those of Ireland. Concurrently, the management of an empire, as varied in its legislative and administrative requirements as the various climates it enjoys, has been added to our responsibilities. You may if you like regard our present House of Commons as an Imperial Legislature stooping from time to time to the consideration of provincial business, or as a provincial Parliament rising in its moments of inspiration to the discharge of high Imperial duties. The same Parliament that has to decide to-day some small matter of purely local Irish or Scottish concern must settle a national strike to-morrow, approve the naval strategy of the Empire, or frame the const.i.tution for a people.

To the executive that is responsible to the same Parliament are entrusted all the tremendous issues of peace and war. It is a supreme testimony to the genius of the British peoples for government that we have voyaged so far without shipwreck everywhere except in the region of Irish affairs.

By all admissions we have made a mess of Ireland. With singular and unwonted perverseness we have refused for more than a hundred years to apply to Ireland the principles of self-government that have justified their application in every province of the Empire that is mainly inhabited by people of our own race. We have risked and we have incurred the disaffection of the Irish themselves; we have imposed on them and on ourselves untold suffering and expense; we have imperilled the whole fabric of our Parliamentary inst.i.tutions.

It is this last aspect of the problem to which earnest consideration is invited in these few pages. The efficiency of Imperial Parliament is a matter of Imperial concern. By no other means than by maintaining Imperial Parliament at the highest pitch of efficiency can we be a.s.sured of good government throughout the empire. I do not myself shrink from any of the logical consequences of the line of argument I have adopted. A truly Imperial Parliament representing England, Ireland and Scotland and, it may be, each of the more important Dependencies of the Crown-that is the goal towards which we should press. But the Irish claim, so far as the claims of the United Kingdom are concerned, was first presented, is most urgent, and must first be satisfied. If we could but rid our minds of party bias, Home Rule for Ireland would be universally regarded as the first step forward in the direction of Imperial efficiency. It is unquestionably a condition precedent to the re-establishment of our control over our own legislative machine.

(II) The Tendency Towards Legislative Disintegration. A Review Of The Statute Book. BY H. DE R. WALKER

The Act of Union between Great Britain and Ireland was the end of a definite epoch of political concentration. England, Scotland, and Ireland had at last been brought under a single Parliament, with equal and complete legislative authority over the whole of the three Kingdoms. But Union was not accompanied by uniformity, especially in the case of Ireland. Ireland, when joined in a legislative union with Great Britain, was in fact left in possession of separate Administrative, Financial and Judicial inst.i.tutions. With the separate judicial system I am not further concerned, but at a time when the grant of extended self-government to Ireland is under consideration, I contend that it is of great utility to observe how far Irish Administration and Irish Finance are actually distinct and separate at the present time. Moreover, whatever may have been the intention of the statesmen of the period of the Union, it has also been found to be necessary, owing to the diversity of the inst.i.tutions, to pa.s.s in the Parliament of the United Kingdom, a large number of statutes solely applicable to Ireland. I do not a.s.sume that what is now separate should in every case be transferred to the new Irish Authority, nor that what is now done in common should not be so transferred; but I do contend that the existing differentiation should largely guide us in connection with the forthcoming proposals. On the other side, our opponents might of course urge that, as we have already got separate laws and separate administration for Ireland, we obtain under existing arrangements all the diversity that is required, and that we have herein an argument against Home Rule rather than in its favour.

We must, therefore, carry the matter a step further. We may say that the separate laws and separate administration, while not conclusive as to the need for Home Rule, will be found to provide a basis for its inception if it can be shown on other grounds to be desirable; but, as it is not my intention to enter upon the general merits or demerits of Home Rule, I pa.s.s on to submit the practical consideration that the separate laws and the separate administration for Ireland, as worked in connection with a single Parliament, not only work badly in themselves, but are prejudicial to the orderly development of Parliamentary government. This is my case, and if I can prove it, we should either do away with these separate arrangements or cease to work them in connection with a single Parliament.

But it will be easy to prove further that the separate arrangements cannot now be consolidated. There is a continuous tendency to accentuate them in accordance with the requirements of the situation. We shall, therefore, be driven to the conclusion that we must have recourse to a separate Parliament for Ireland in order to be able to work these separate arrangements in a satisfactory manner.

In order to substantiate these contentions, I shall discuss the existing position as regards Irish Legislation, at the same time giving some attention to Finance and Administration in their legislative aspects. The uniformity in Anglo-Irish Finances which has been developed during the nineteenth century is still qualified by a certain differentiation.

Separate departments of administration involve separate estimates of expenditure; and separate laws may involve separate grants of money.

The authors of the Act of Union did not attempt to establish uniformity between Great Britain and Ireland in the matter of either administration or finance, but they followed the precedent of the Union between England and Scotland in the concentration of all legislative powers in a single body, the Parliament of the United Kingdom of Great Britain and Ireland.

But Union did not necessarily mean uniformity, and the united Parliament found itself at once compelled to pa.s.s separate and different Acts for the several portions of the United Kingdom.

In this branch of our subject it will be convenient not to confine our attention to the separate Irish laws, but, since many laws are also pa.s.sed separately for England and for Scotland, to take a wider view and consider how far Parliament legislates in common for the whole of the United Kingdom, and how far separately for one or more of its component parts.

And it follows therefrom that any conclusions that we may form as to the delegation of legislative powers are likely to apply in kind if not in degree to England and Scotland as to Ireland. In the administrative sphere, of course, the position is by no means the same as between the three countries. Scotland has at present no important central department at Edinburgh other than its Local Government Board.

It was largely owing to the maintenance under the Union of the separate administration in Ireland, combined with the retention during the first sixteen years of the separate exchequers, that Parliament was obliged to legislate separately for the different portions of the United Kingdom.

These were the years of the Napoleonic wars, when very heavy taxation was imposed; and, not only was a separate Act pa.s.sed, according to the custom of the time, for each article that was to be taxed, but this taxation was, on account of the separate exchequers, imposed by separate Acts for Great Britain and for Ireland. In these circ.u.mstances it is not surprising to find that the most numerous Statutes of the first twenty years of the century were those whose application was confined to Great Britain or to Ireland, and that they considerably exceeded in number those which applied to the whole of the United Kingdom or to England alone. After the amalgamation of the exchequers in 1817, the annual average of Statutes applying to Great Britain dropped at once from thirty-five to seven, and gradually decreased still further, since most of the financial measures were pa.s.sed thenceforward for the whole of the United Kingdom alike. But Ireland, in spite of the financial amalgamation, continued to call for a large amount of separate legislation, and the annual average of Statutes applying solely to Ireland dropped no more than from thirty-one in the decade 1811-20, to nineteen in the following decade, at which point it remained fairly constant during the greatest part of the nineteenth century. Throughout this period, the average annual number of what I call "United Kingdom" Statutes ranged between forty-nine in the decade 1861-70, and thirty-two in 1881-90, and of Statutes that applied solely to England between fifty-eight in 1881-90, and twenty-three in 1801-10. It should be added that the numbers are those of the Public Acts alone, and they would be much higher, particularly in the later years, if the Local and Private Acts were included in the enumeration. But the public Statutes are obviously alone relevant in any enquiry as to the extent to which the Union of the Parliaments has led to legislative uniformity, and it is very significant that, even upon these public matters, Parliament has been unable at any time since the Act of Union, to avoid the necessity for a large amount of separate legislation for Ireland.

The figures up to 1890 are taken from Mr. T. A. Spalding's "Federation and Empire," which contains many interesting particulars, and I have worked out the figures for the two succeeding decades, but not exactly on the same basis. Mr. Spalding includes the Provisional Order Confirmation Acts which were not distinguished from other Public Acts until the middle of last century, but I omit them as not partaking of the character of general legislation, and the number of separate Acts given for England, Scotland and Ireland is considerably reduced by this omission.

In my first table, which gives the total, not the annual average, I divide the Public General Acts into two wide categories: those, which I term "United Kingdom" Statutes, that apply to the Dominions, the Colonies, or India, as well as those which apply to the United Kingdom as a whole; and those, which I term "State" Statutes, that apply to England, Scotland or Ireland alone, to any two of these three countries, or, in a very few cases, only to the Channel Islands or the Isle of Man.

Public General Acts, 1891-1910.

United State. Total.

Kingdom.

1891-1900 295 336 631 1901-1910 252 206 458 Total 547 542 1,089

It will be noticed that there is a curious approximation between the numbers in the two columns, and nearly half the legislative output of Parliament thus takes a form which is at any rate contrary to the spirit of the Act of Union. Excluding financial measures during the few years when the exchequers of Great Britain and Ireland continued to be separate, it would have been antic.i.p.ated that the legislation under the Union would be uniform, or at least tend to uniformity, and it is very significant that, after more than a hundred years, so much separate legislation should still be required for the several portions of the United Kingdom. But I will postpone any further comments on this situation until I have shown how the "State" Acts are divided up as between the three countries and what are the princ.i.p.al subjects with which they deal.

From my cla.s.sification of the "State" Acts according to countries, I have omitted the twenty-one Acts which apply solely to the Channel Islands and the Isle of Man, one Scottish and Irish Act, and one Welsh Act; and, as to Wales, I may take the opportunity to say that I do not prejudge its claim to separate treatment in any measure of Home Rule all round, but that I shall not specifically mention Wales in this paper, partly in order to avoid the repeated enumeration of the four countries in the place of England, Scotland and Ireland, partly because the claim of the Princ.i.p.ality, so far as it may be based on laws and administration that are distinct from those of England, is exceedingly weak. Education, however, is already separately administered, separate Insurance Commissioners have been appointed for Wales, and an important Welsh Intermediate Education Act was pa.s.sed in 1889, just before the period that is covered by the following table.

"State" ACTS, 1891-1910.

England. Scotland. Ireland. Great England Total.

Britain. and Ireland.

1891-1900 140 74 72 17 21 324 1901-1910 78 37 57 14 9 195 Total 218 111 129 31 30 519

The above table shows, so far as mere numbers are concerned, how far the pressure upon the Parliament of the United Kingdom would be removed if it were relieved of the responsibility for English, Scottish and Irish legislation, respectively; and, in view of the relative population of the three countries, we cannot be surprised at the conclusion to be drawn from the figures that the main cause of the legislative congestion lies in the fact that the laws relating exclusively to England and those applying to the United Kingdom as a whole, have to be pa.s.sed by one and the same Parliament. We should, then, seek for some form of delegation which would remove English and Scottish, as well as Irish legislation, from the purview of the existing Parliament; but, in the meanwhile, the figures show that the removal of the Irish business would relieve matters appreciably, and it is probable, without counting the Home Rule Bills, which should not be regarded as exclusively Irish measures, that the Irish legislative proposals take more of the time of the House of Commons than would be represented by the proportion which they bear to the total legislative output.

I now pa.s.s to the subject-matter of the Acts of Parliament; and I again turn to Mr. Spalding's book. He has made a most interesting a.n.a.lysis of the statutes up to the year 1890, from which it appears that Parliament had been unable to legislate by Acts applying over the whole of the United Kingdom whenever it had had to deal with the administration of justice and the laws relating to any of the following subjects: the tenure and occupation of land; the holding, transfer, and devolution of property (including land); the Church; the poor; local government, rural and urban; roads, railways, and ca.n.a.ls; and education.(160) These are the subjects, that is to say, on which Parliament had been obliged to pa.s.s separate laws for the different parts of the United Kingdom, and the study of this centrifugal tendency seemed to me so important that I have continued (on the next page) the a.n.a.lysis for the following twenty years.

The first impression derived from this table is that the division between the subjects on which the legislation covers the whole of the United Kingdom, and those on which it has a narrower application, is much the same as during the earlier period. Parliament continues to legislate separately for the "States" in the matters in which it has been its practice so to do, and this in itself is a very significant consideration in view of the strong contrary inducement resulting from the growing congestion of Parliamentary business. Thus, taking the last three headings on the list, we see that in regard to Education, the Poor, and the Church, all the legislation during the twenty years was of a "State" character, while the very numerous Acts relating to Local Administration were in almost every instance equally limited in their application. When we pa.s.s to Law and Justice, and to Land and Agriculture, we find that the "State"

predominance is not quite so marked, but even so, there were three times as many "State" as "United Kingdom" laws, and we conclude that, though the pressure of Parliamentary business is against it, "State" legislation continues to hold the field over a wide and varied range of legislative activity.

Public General Acts.-United Kingdom.(161)

Date. 1891-5 1896-1900 1901-5 1906-10 Total Imperial. 24 12 13 15 64 Army and 15 25 18 14 72 Navy.

Conditions 10 9 5 10 34 of Employment.

Benefit. 6 5 2 5 18 Finance. 37 30 29 28 124 General 40 21 20 31 112 Administration.

Trade and 6 12 9 18 45 Commerce.

Traffic. 4 1 3 8 Law and 16 4 5 14 39 Justice.

Land and 7 4 1 8 20 Agriculture Local 3 4 1 3 11 Administration Education Poor Law Church Total 168 127 106 146 547

States (England, Scotland And Ireland, Separately, And Combinations Of Any Two Of Them).

Date. 1891-5 1896-1900 1901-5 1906-10 Total Imperial.

Army and Navy.

Conditions of Employment.

Benefit.

Finance. 3 10 4 17 General 7 10 8 7 32 Administration.

Trade and 9 6 9 12 36 Commerce.

Traffic. 4 4 8 Law and 40 43 9 31 123 Justice.

Land and 23 11 7 22 63 Agriculture.

Local 49 55 23 34 161 Administration.

Education. 9 10 11 10 40 Poor Law. 4 15 4 2 25 Church. 3 10 2 1 16 Total. 151 174 77 119 521

At the other end of the scale are the subjects on which Parliament is always able to legislate for the whole of the United Kingdom by a single Statute. The Imperial Laws are those which are promoted by the Foreign, Colonial, and India Offices, and concern our relations with Foreign Powers or with some portion of the British Empire. The Army and Navy laws include not only the Naval and Military Works Acts, but any Acts dealing with the Territorial and Reserve Forces. The next two cla.s.ses may be bracketed together as Labour Laws, but are distinct according as they relate to the conditions of employment of the workers, for instance, in shops, coal mines, or factories, or to the benefits which accrue to them through Workmen's Compensation, Friendly and other Societies, and Old-Age Pensions. In both these cases, also, all the laws apply to the whole of the United Kingdom as do the great majority of the laws in the next two headings of Finance and General Administration. The "State" Acts under Finance are those by which Parliament has made grants towards the local expenditure upon education and towards the relief of the land from local burdens, and has done so separately for the three countries; and the "State" Acts of General Administration deal with the Central Departments which are maintained separately for England, Scotland, and Ireland. The heading of traffic is of dwindling importance, and the enumeration ends with trade and commerce where the "United Kingdom" laws have a slight numerical superiority.

I have confined myself here to a few summary remarks upon the different legislative headings as I have discussed the matter in greater detail elsewhere;(162) nor do I wish to enlarge upon the conclusions that might be drawn from the figures. The South African War is evidently responsible for the greater number of Military Acts in 1896-1900; and the slowing down of the Parliamentary machine during Mr. Balfour's Administration is reflected in the smallness of the total legislative output in 1901-5.

Moreover, since the Unionists were in power throughout 1901-5, and the Liberals throughout 1906-10, there is scope for a direct comparison of the records of the two Governments, but such considerations have no bearing upon our present purpose.

On the contrary, I hope that the opponents as well as the supporters of Home Rule would agree that, since Home Rule involves a division of legislative powers between the Parliament of the United Kingdom and the Irish Parliament, it is not only pertinent, but necessary, that we should make ourselves acquainted with the lines upon which Parliament has, in practice, divided up its legislative business. For, while the point should not be pressed too far, I would suggest that the separate Irish laws, and, for that matter, the separate English and Scottish laws, const.i.tute a kind of internal devolution, which is all the more significant because Parliament has not been actuated by any preconceived purpose; and that the subjects which are now dealt with by "State" laws are, for that very reason, those of which Parliament should naturally be relieved under any scheme of Home Rule. Similarly, it might be claimed that Parliament should retain those powers which it is now able to exercise in common for the whole of the United Kingdom; but the position is not the same in the two cases. In its anxiety to economise time, Parliament does not hesitate to render its measures applicable to the whole of the United Kingdom by appending to them clauses which regulate separately the application of the provisions to Scotland and Ireland; and where these "application clauses,"

as they are called, are long and complicated, it is probable that separate measures for the different parts of the United Kingdom could be adjusted more closely to the local requirements. On the other hand, we may be sure that Parliament would not have pa.s.sed, for instance, separate Local Government Acts for England, Scotland and Ireland, each of which took up much of its time, unless it had been obliged to do so; and we may a.s.sume, whenever such separate Acts are pa.s.sed, that Parliament had some strong reason for its action, though, of course, I do not imply that Parliament has legislated also for England and Scotland on every subject on which it has pa.s.sed an Act that related exclusively to Ireland.