A Leap in the Dark / A Criticism of the Principles of Home Rule as Illustrated by the / Bill of 1893

by A. V. Dicey

II. Their Enforcement.

The nature of the Restrictions imposed upon the Parliament, and indirectly upon the Government of Ireland, is of far less importance than are the means provided for their enforcement. A law which is not enforceable is a nullity; it has in strictness no existence.

The methods provided by the Home Rule Bill for keeping the Irish Parliament within its proper sphere of legislative activity are two in number—the veto of the Lord Lieutenant, and the action of the Courts.

The Veto. This is little more than an empty sham, for it must in general be exercised on the advice of the Irish Cabinet; in other words it will never be exercised at all.[73] Were the matter not so serious there would be something highly amusing in the conduct of constitution-makers who, intending to provide against unconstitutional legislation on the part of the Irish Parliament, provide that the Irish Cabinet, who are practically appointed by the Irish Parliament, and who direct its legislation, shall have power to veto Bills passed by the Irish Parliament presumably on the advice of the Irish Cabinet.

The English Ministry no doubt may, if they see fit, instruct the Lord Lieutenant to veto a given Bill. So also the Imperial Parliament has authority to repeal or override any Act, constitutional or unconstitutional, passed by the Irish Parliament. Each power stands on the same footing, neither is meant for ordinary use; either is a means of legal revolution. The veto of the Crown means little in New Zealand; it will at best mean no more in Ireland; but in truth it will mean a good deal less. New Zealand sends no member to Westminster to stay the hand of the Imperial Government whenever it attempts by way of veto or otherwise to put in force the reserved powers of the Imperial Parliament.[74]

The Privy Council and the Courts. The English Privy Council[75] may nullify the effect of Irish legislation in two ways.

It may as an administrative body give a decision that an Act is void.[76] This power can by exercised only upon the application of the Lord Lieutenant or a Secretary of State, and it is a power which we may expect will be but rarely employed, for its use would at once give rise to a direct conflict between the Irish Parliament and the English Privy Council. Let it be noted in passing that this provision for the decision of constitutional questions is foreign to the habits and traditions of English Courts; no judge throughout the United Kingdom ever pronounces a speculative opinion upon the extent, operation, or validity of an Act of Parliament. It is the inveterate habit of our judges to deal with particular cases as they come before them, and with particular cases alone. They will find themselves greatly perplexed when they come to pronounce judgment upon abstract questions of law. This is not all. The proposed arrangement is as foreign to the spirit of American Federalism as it is to the spirit of English law. The Supreme Court of the United States never in strictness pronounces an Act either of Congress or of a State Legislature void. What the Court does is to treat it as void in the decision of a particular case. Tocqueville and other critics have directed special attention to the care with which the Federal tribunals, by dealing only with given cases as they arise, avoid as far as possible coming into conflict with any State. They determine the rights of individuals; they do not determine directly what may be the legislative competence of the State, or for that matter of the Federal, Legislature.[77] The extraordinary power given to the Privy Council violates a fundamental principle of federalism, which by the way is violated in other parts of the Home Rule Bill. It brings, or tends to bring, the central power, represented in this case by the Privy Council, into direct conflict with one of the States of the Federation.[78]

The English Privy Council, or, in strictness, the Judicial Committee of the Privy Council, is under the new constitution constituted a Final Court of Appeal from every Court in Ireland.[79]

The Privy Council also is the Court of Appeal from a new kind of Imperial, or as one may say 'Federal,' judiciary, specially formed for the determination of matters having relation to the competence of the Irish Parliament.

This Imperial or Federal judiciary consists of the two Exchequer Judges of the Supreme Court in Ireland; they are appointed under the Great Seal of the United Kingdom, and therefore by the English Ministry. Their salaries are charged on the Consolidated Fund of the United Kingdom, and they are removable only on an address to the Houses of the Imperial Parliament. They constitute therefore an Imperial not an Irish Court. Before this Court may be brought on the application of any party thereto any legal proceedings in Ireland which inter alia 'touch any matter not within the power of the Irish Legislature, or touch any matter affected by a law which the Irish Legislature has not power to repeal or alter.'[80] With the details of these arrangements I need not trouble my readers; the point to notice is that, whenever in any proceeding in Ireland the validity or constitutionality of an Irish Act can come into question, the matter may, at the wish of any party concerned, and in many cases apparently must be, brought before an Imperial or in effect British Court—the Exchequer Judges—and be determined by them subject to an appeal to another Imperial or British Court, viz. the Privy Council. Note further that to the Exchequer Judges are given special powers for the enforcement of any judgment of their Court. If the Sheriff does not give effect to their judgment, they may appoint any other officer with the full rights of a Sheriff to enforce it.[81]