England's Case Against Home Rule

by A. V. Dicey

PART I.

Legislative Authority.

Establishment of Irish Legislature.

1. On and after the appointed day there shall be established in Ireland a Legislature consisting of Her Majesty the Queen and an Irish Legislative Body.

Powers of Irish Legislature.

2. With the exceptions and subject to the restrictions in this Act mentioned, it shall be lawful for Her Majesty the Queen, by and with the advice of the Irish Legislative Body, to make laws for the peace, order, and good government of Ireland, and by any such law to alter and repeal any law in Ireland.

Exceptions from powers of Irish Legislature.

3. The Legislature of Ireland shall not make laws relating to the following matters or any of them:—

(1.) The status or dignity of the Crown, or the succession to the Crown, or a Regency;

(2.) The making of peace or war;

(3.) The army, navy, militia, volunteers, or other military or naval forces, or the defence of the realm;

(4.) Treaties and other relations with foreign States, or the relations between the various parts of Her Majesty's dominions;

(5.) Dignities or titles of honour;

(6.) Prize or booty of war;

(7.) Offences against the law of nations; or offences committed in violation of any treaty made, or hereafter to be made, between Her Majesty and any foreign State; or offences committed on the high seas;

(8.) Treason, alienage, or naturalization;

(9.) Trade, navigation, or quarantine;

(10.) The postal and telegraph service, except as hereafter in this Act mentioned with respect to the transmission of letters and telegrams in Ireland;

(11.) Beacons, lighthouses, or sea marks;

(12.) The coinage; the value of foreign money; legal tender; or weights and measures; or

(13.) Copyright, patent rights, or other exclusive rights to the use or profits of any works or inventions.

Any law made in contravention of this section shall be void.

Restrictions on powers of Irish Legislature.

4. The Irish Legislature shall not make any law—

(1.) Respecting the establishment or endowment of religion, or prohibiting the free exercise thereof; or

(2.) Imposing any disability, or conferring any privilege, on account of religious belief; or

(3.) Abrogating or derogating from the right to establish or maintain any place of denominational education or any denominational institution or charity; or

(4.) Prejudicially affecting the right of any child to attend a school receiving public money without attending the religious instruction at that school; or

(5.) Impairing, without either the leave of Her Majesty in Council first obtained on an address presented by the Legislative Body of Ireland, or the consent of the corporation interested, the rights, property, or privileges of any existing corporation incorporated by royal charter or local and general Act of Parliament; or

(6.) Imposing or relating to duties of customs and duties of excise, as defined by this Act, or either of such duties, or affecting any Act relating to such duties or either of them; or

(7.) Affecting this Act, except in so far as it is declared to be alterable by the Irish Legislature.

Prerogatives of Her Majesty as to Irish Legislative Body.

5. Her Majesty the Queen shall have the same prerogatives with respect to summoning, proroguing, and dissolving the Irish Legislative Body as Her Majesty has with respect to summoning, proroguing, and dissolving the Imperial Parliament.

Duration of the Irish Legislative Body.

6. The Irish Legislative Body whenever summoned may have continuance for five years and no longer, to be reckoned from the day on which any such Legislative Body is appointed to meet.

Executive Authority.

Constitution 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 assent of Her Majesty to Bills passed 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.

Use of Crown lands by Irish Government.

8. Her Majesty may, by Order in Council, from time to time place under the control of the Irish Government, for the purposes of that Government, any such lands and buildings in Ireland as may be vested in or held in trust for Her Majesty.

Constitution of Legislative Body.

Constitution of Irish Legislative Body.

9.—(1.) The Irish Legislative Body shall consist of a first and second order.

(2.) The two orders shall deliberate together, and shall vote together, except that, if any question arises in relation to legislation or to the Standing Orders or Rules of Procedure or to any other matter in that behalf in this Act specified, and such question is to be determined by vote, each order shall, if a majority of the members present of either order demand a separate vote, give their votes in like manner as if they were separate Legislative Bodies; and if the result of the voting of the two orders does not agree the question shall be resolved in the negative.

First order.

10.—(1.) The first order of the Irish Legislative Body shall consist of one hundred and three members, of whom seventy-five shall be elective members and twenty-eight peerage members.

(2.) Each elective member shall at the date of his election and during his period of membership be bonâ fide possessed of property which—

(a.) if realty, or partly realty and partly personalty, yields two hundred pounds a year or upwards, free of all charges; or

(b.) if personalty yields the same income, or is of the capital value of four thousand pounds or upwards, free of all charges.

(2.) For the purpose of electing the elective members of the first order of the Legislative Body, Ireland shall be divided into the electoral districts specified in the First Schedule to this Act, and each such district shall return the number of members in that behalf specified in that Schedule.

(3.) The elective members shall be elected by the registered electors of each electoral district, and for that purpose a register of electors shall be made annually.

(4.) An elector in each electoral district shall be qualified as follows, that is to say, he shall be of full age, and not subject to any legal incapacity, and shall have been during the twelve months next preceding the twentieth day of July in any year the owner or occupier of some land or tenement within the district of a net annual value of twenty-five pounds or upwards.

(5.) The term of office of an elective member shall be ten years.

(6.) In every fifth year thirty-seven or thirty-eight of the elective members, as the case requires, shall retire from office, and their places shall be filled by election; the members to retire shall be those who have been members for the longest time without re-election.

(7.) The offices of the peerage members shall be filled as follows; that is to say,—

(a.) Each of the Irish peers who on the appointed day is one of the twenty-eight Irish representative peers, shall, on giving his written assent to the Lord-Lieutenant, become a peerage member of the first order of the Irish Legislative Body; and if at any time within thirty years after the appointed day any such peer vacates his office by death or resignation, the vacancy shall be filled by the election to that office by the Irish peers of one of their number in manner heretofore in use respecting the election of Irish representative peers, subject to adaptation as provided by this Act, and if the vacancy is not so filled within the proper time it shall be filled by the election of an elective member.

(b.) If any of the twenty-eight peers aforesaid does not within one month after the appointed day give such assent to be a peerage member of the first order, the vacancy so created shall be filled up as if he had assented and vacated his office by resignation.

(8.) A peerage member shall be entitled to hold office during his life, or until the expiration of thirty years from the appointed day, whichever period is the shortest. At the expiration of such thirty years the offices of all the peerage members shall be vacated as if they were dead, and their places shall be filled by elective members qualified and elected in manner provided by this Act with respect to elective members of the first order, and such elective members may be distributed by the Irish Legislature among the electoral districts, so, however, that care shall be taken to give additional members to the most populous places.

(9.) The offices of members of the first order shall not be vacated by the dissolution of the Legislative Body.

(10.) The provisions in the Second Schedule to this Act relating to members of the first order of the Legislative Body shall be of the same force as if they were enacted in the body of this Act.

Second order.

11.—(1.) Subject as in this section hereafter mentioned, the second order of the Legislative body shall consist of two hundred and four members.

(2.) The members of the second order shall be chosen by the existing constituencies of Ireland, two by each constituency, with the exception of the city of Cork, which shall be divided into two divisions in manner set forth in the Third Schedule to this Act, and two members shall be chosen by each of such divisions.

(3.) Any person who, on the appointed day, is a member representing an existing Irish constituency in the House of Commons shall, on giving his written assent to the Lord-Lieutenant, become a member of the second order of the Irish Legislative Body as if he had been elected by the constituency which he was representing in the House of Commons. Each of the members for the city of Cork, on the said day, may elect for which of the divisions of that city he wishes to be deemed to have been elected.

(4.) If any member does not give such written assent within one month after the appointed day, his place shall be filled by election in the same manner and at the same time as if he had assented and vacated his office by death.

(5.) If the same person is elected to both orders, he shall, within seven days after the meeting of the Legislative Body, or if the Body is sitting at the time of the election, within seven days after the election, elect in which order he will serve, and his membership of the other order shall be void and be filled by a fresh election.

(6.) Notwithstanding anything in this Act, it shall be lawful for the Legislature of Ireland at any time to pass an Act enabling the Royal University of Ireland to return not more than two members to the second order of the Irish Legislative Body in addition to the number of members above mentioned.

(7.) Notwithstanding anything in this Act, it shall be lawful for the Irish Legislature, after the first dissolution of the Legislative Body which occurs, to alter the constitution or election of the second order of that body, due regard being had in the distribution of members to the population of the constituencies; provided that no alteration shall be made in the number of such order.

Finance.

Taxes and separate Consolidated Fund.

12.—(1.) For the purpose of providing for the public service of Ireland the Irish Legislature may impose taxes, other than duties of customs or excise as defined by this Act, which duties shall continue to be imposed and levied by and under the direction of the Imperial Parliament only.

(2.) On and after the appointed day there shall be an Irish Consolidated Fund separate from the Consolidated Fund of the United Kingdom.

(3.) All taxes imposed by the Legislature of Ireland and all other public revenues under the control of the Government of Ireland shall, subject to any provisions touching the disposal thereof contained in any Act passed in the present session respecting the sale and purchase of land in Ireland, be paid into the Irish Consolidated Fund, and be appropriated to the public service of Ireland according to law.

Annual contributions from Ireland to Consolidated Fund of United Kingdom.

13.—(1.) Subject to the provisions for the reduction or cesser thereof in this section mentioned, there shall be made on the part of Ireland to the Consolidated Fund of the United Kingdom the following annual contributions in every financial year; that is to say,—

(a.) The sum of one million four hundred and sixty-six, thousand pounds on account of the interest on and management of the Irish share of the National Debt:

(b.) The sum of one million six hundred and sixty-six thousand pounds on account of the expenditure on the army and navy of the United Kingdom:

(c.) The sum of one hundred and ten thousand pounds on account of the Imperial civil expenditure of the United Kingdom:

(d.) The sum of one million pounds on account of the Royal Irish Constabulary and the Dublin Metropolitan Police.

(2.) During the period of thirty years from this section taking; effect the said annual contributions shall not be increased, but may be reduced or cease as hereinafter mentioned. After the expiration of the said thirty years the said contributions shall, save as otherwise provided by this section, continue until altered in manner provided with respect to the alteration of this Act.

(3.) The Irish share of the National Debt shall be reckoned at forty-eight million pounds Bank annuities, and there shall be paid in every financial year on behalf of Ireland to the Commissioners for the Reduction of the National Debt an annual sum of three hundred and sixty thousand pounds, and the permanent annual charge for the National Debt on the Consolidated Fund of the United Kingdom shall be reduced by that amount, and the said annual sum shall be applied by the said Commissioners as a sinking fund for the redemption of the National Debt, and the Irish share of the National Debt shall be reduced by the amount of the National Debt so redeemed, and the said annual contribution on account of the interest on and management of the Irish share of the National Debt shall from time to time be reduced by a sum equal to the interest upon the amount of the National Debt from time to time so redeemed, but that last-mentioned sum shall be paid annually to the Commissioners for the Reduction of the National Debt in addition to the above-mentioned annual sinking fund, and shall be so paid and be applied as if it were part of that sinking fund.

(4.) As soon as an amount of the National Debt equal to the said Irish share thereof has been redeemed under the provisions of this section, the said annual contribution on account of the interest on and management of the Irish share of the National Debt, and the said annual sum for a sinking fund shall cease.

(5.) If it appears to Her Majesty that the expenditure in respect of the army and navy of the United Kingdom, or in respect of Imperial civil expenditure of the United Kingdom, for any financial year has been less than fifteen times the amount of the contributions above-named on account of the same matter, a sum equal to one fifteenth part of the diminution shall be deducted from the current annual contribution for the same matter.

(6.) The sum paid from time to time by the Commissioners of Her Majesty's Woods, Forests, and Land Revenues to the Consolidated Fund of the United Kingdom on account of the hereditary revenues of the Crown in Ireland shall be credited to the Irish Government, and go in reduction of the said annual contribution payable on account of the Imperial civil expenditure of the United Kingdom, but shall not be taken into account in calculating whether such diminution as above mentioned has or has not taken place in such expenditure.

(7.) If it appears to Her Majesty that the expenditure in respect of the Royal Irish Constabulary and the Dublin Metropolitan Police for any financial year has been less than the contribution above named on account of such constabulary and police, the current contribution shall be diminished by the amount of such difference.

(8.) This section shall take effect from and after the thirty-first day of March, one thousand eight hundred and eighty-seven.

Collection and application of customs and excise duties in Ireland.

14.—(1.) On and after such day as the Treasury may direct all moneys from time to time collected in Ireland on account of the duties of customs or the duties of excise as defined by this Act shall, under such regulations as the Treasury from time to time make, be carried to a separate account (in this Act referred to as the customs and excise account) and applied in the payment of the following sums in priority as mentioned in this section; that is to say,—

First, of such sum as is from time to time directed by the Treasury in respect of the costs, charges, and expenses of and incident to the collection and management of the said duties in Ireland not exceeding four per cent. of the amount collected there;

Secondly, of the annual contributions required by this Act to be made to the Consolidated Fund of the United Kingdom;

Thirdly, of the annual sums required by this Act to be paid to the Commissioners for the Reduction of the National Debt;

Fourthly, of all sums by this Act declared to be payable out of the moneys carried to the customs and excise account;

Fifthly, of all sums due to the Consolidated Fund of the United Kingdom for interest or sinking fund, in respect of any loans made by the issue of bank annuities or otherwise to the Government of Ireland under any Act passed in the present session relating to the purchase and sale of land in Ireland, so far as such sums are not defrayed out of the moneys received under such Act;

(2.) So much of the moneys carried to a separate account under this section as the Treasury consider are not, and are not likely to be, required to meet the above-mentioned payments, shall from time to time be paid over and applied as part of the public revenues under the control of the Irish Government.

Charges on Irish Consolidated Fund.

15.—(1.) There shall be charged on the Irish Consolidated Fund in priority as mentioned in this section:—

First, such portion of the sums directed by this Act to be paid out of the moneys carried to the customs and excise account in priority to any payment for the public revenues of Ireland, as those moneys are insufficient to pay;

Secondly, all sums due in respect of any debt incurred by the Government of Ireland, whether for interest, management, or sinking fund;

Thirdly, all sums which at the passing of this Act are charged on the Consolidated Fund of the United Kingdom in respect of Irish services other than the salary of the Lord-Lieutenant;

Fourthly, the salaries of all judges of the Supreme Court of Judicature or other superior court in Ireland, or of any county or other like court, who are appointed after the passing of this Act, and the pensions of such judges;

Fifthly, any other sums charged by this Act on the Irish Consolidated Fund.

(2.) It shall be the duty of the Legislature of Ireland to impose all such taxes, duties, or imposts as will raise a sufficient revenue to meet all sums charged for the time being on the Irish Consolidated Fund.

Irish Church Fund.

16.—(1.) Until all charges which are payable out of the Church property in Ireland, and are guaranteed by the Treasury, have been fully paid, the Irish Land Commission shall continue as heretofore to exist, with such Commissioners and officers receiving such salaries as the Treasury may from time to time appoint, and to administer the Church property and apply the income and other moneys receivable therefrom; and so much of the salaries of such Commissioners and officers and expenses of the office as is not paid out of the Church property shall be paid out of moneys carried to the customs and excise account under this Act, and if those moneys are insufficient, out of the Consolidated Fund of Ireland, and if not so paid, shall be paid out of moneys provided by Parliament.

Provided as follows:—

(a.) All charges on the Church property for which a guarantee has been given by the Treasury before the passing of this Act shall, so far as they are not paid out of such property, be paid out of the moneys carried to the Customs and Excise account under this Act, and if such moneys are insufficient, the Consolidated Fund of Ireland, without prejudice nevertheless to the guarantee of the Treasury;

(b.) All charges on the Church property, for which no guarantee has been given by the Treasury before the passing of this Act shall be charged on the Consolidated Fund of Ireland, but shall not be guaranteed by the Treasury nor charged on the Consolidated Fund of the United Kingdom.

(2.) Subject to any existing charges on the Church property, such property shall belong to the Irish Government and any portion of the annual revenue thereof which the Treasury, on the application of the Irish Government, certify at the end of any financial year not to be required for meeting charges, shall be paid over and applied as part of the public revenues under the control of the Irish Government.

(3.) As soon as all charges on the Church property guaranteed by the Treasury have been paid, such property may be managed and administered, and subject to existing charges thereon disposed of, and the income or proceeds thereof applied, in such manner as the Irish Legislature may from time to time direct.

32 & 33 Vict. c. 42, 44 & 45 Vict. c. 71.

(4.) "Church property" in this section means all property accruing under the Irish Church Act, 1869, and transferred to the Irish Land Commission by the Irish Church Act Amendment Act, 1881.

Public loans.

17.—(1.) All sums due for principal or interest to the Public Works Loan Commissioners or to the Commissioners of Public Works in Ireland in respect of existing loans advanced on any security in Ireland shall on and after the appointed day be due to the Government of Ireland instead of the said Commissioners, and such body of persons as the Government of Ireland may appoint for the purpose shall have all the powers of the said Commissioners or their secretary for enforcing payment of such sums, and all securities for such sums given to such Commissioners or their secretary shall have effect as if the said body were therein substituted for those Commissioners or their secretary.

(2.) For the repayment of the said loans to the Consolidated Fund of the United Kingdom, the Irish Government shall pay annually into that fund by half-yearly payments on the first day of January and the first day of July, or on such other days as may be agreed on, such instalments of the principal of the said loans as will discharge all the loans within thirty years from the appointed day, and shall also pay interest half-yearly on so much of the said principal as from time to time remains unpaid at the rate of three per cent. per annum, and such instalments of principal and interest shall be paid out of the moneys carried to the customs and excise account under this Act, and if those are insufficient, out of the Consolidated Fund of Ireland.

Additional aid in case of war.

18. If Her Majesty declares that a state of war exists and is pleased to signify such declaration to the Irish Legislative Body by speech or message, it shall be lawful for the Irish Legislature to appropriate a further sum out of the Consolidated Fund of Ireland in aid of the army or navy, or other measures which Her Majesty may take for the prosecution of the war and defence of the realm, and to provide and raise money for that purpose; and all moneys so provided and raised, whether by loan, taxation, or otherwise, shall be paid into the Consolidated Fund of the United Kingdom.

Money bills and votes.

19.—(1.) It shall not be lawful for the Irish Legislative Body to adopt or pass any vote, resolution, address, or Bill for the raising or appropriation for any purpose of any part of the public revenue of Ireland, or of any tax, duty, or impost, except in pursuance of a recommendation from Her Majesty signified through the Lord-Lieutenant in the session in which such vote, resolution, address, or Bill is proposed.

(2.) Notwithstanding that the Irish Legislature is prohibited by this Act from making laws relating to certain subjects, that Legislature may, with the assent of Her Majesty in Council first obtained, appropriate any part of the Irish public revenue, or any tax, duty, or impost imposed by such Legislature, for the purpose of, or in connection with, such subjects.

Exchequer Division and revenue actions.

20.—(1.) On and after the appointed day, the Exchequer Division of the High Court of Justice shall continue to be a Court of Exchequer for revenue purposes under this Act, and whenever any vacancy occurs in the office of any judge of such Exchequer Division, his successor shall be appointed by Her Majesty on the joint recommendation of the Lord-Lieutenant of Ireland and the Lord High Chancellor of Great Britain.

(2.) The judges of such Exchequer Division appointed after the passing of this Act shall be removable only by Her Majesty on address from the two Houses of the Imperial Parliament, and shall receive the same salaries and pensions as those payable at the passing of this Act to the existing judges of such division, unless with the assent of Her Majesty in Council first obtained, the Irish Legislature alters such salaries or pensions, and such salaries and pensions shall be paid out of the moneys carried to the customs and excise account in pursuance of this Act, and if the same are insufficient shall be paid out of the Irish Consolidated Fund, and if not so paid shall be paid out of the Consolidated Fund of the United Kingdom.

(3.) An alteration of any rules relating to the procedure in such legal proceedings as are mentioned in this section shall not be made except with the approval of the Lord High Chancellor of Great Britain, and the sittings of the Exchequer division and the judges thereof shall be regulated with the like approval.

(4.) All legal proceedings instituted in Ireland by or against the Commissioners or any officers of customs or excise, or the Treasury, shall, if so required by any party to such proceedings, be heard and determined before the judges of such Exchequer division, or some or one of them, and any appeal from the decision in any such legal proceeding, if by a judge, shall lie to the said division, and if by the Exchequer division, shall lie to the House of Lords, and not to any other tribunal; and if it is made to appear to such judges, or any of them, that any decree or judgment in any such proceeding as aforesaid, has not been duly enforced by the sheriff or other officer whose duty it is to enforce the same, such judges or judge shall appoint some officer to enforce such judgment or decree; and it shall be the duty of such officer to take proper steps to enforce the same, and for that purpose such officer and all persons employed by him shall be entitled to the same immunities, powers, and privileges as are by law conferred on a sheriff and his officers.

(5.) All sums recovered in respect of duties of Customs and Excise, or under any Act relating thereto, or by an officer of Customs or Excise, shall, notwithstanding anything in any other Act, be paid to the Treasury, and carried to the Customs and Excise account under this Act.

Police.

21. The following regulations shall be made with respect to Police, police in Ireland;

(a.) The Dublin Metropolitan Police shall continue and be subject as heretofore to the control of the Lord-Lieutenant as representing Her Majesty for a period of two years from the passing of this Act, and thereafter until any alteration is made by Act of the Legislature of Ireland, but such Act shall provide for the proper saving of all then existing interests, whether as regards pay, pensions, superannuation allowances, or otherwise.

(b.) The Royal Irish Constabulary shall, while that force subsists, continue and be subject as heretofore to the control of the Lord-Lieutenant as representing Her Majesty.

(c.) The Irish Legislature may provide for the establishment and maintenance of a police force in counties and boroughs in Ireland under the control of local authorities, and arrangements may be made between the Treasury and the Irish Government for the establishment and maintenance of police reserves.

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