England's Case Against Home Rule

by A. V. Dicey

Methods for securing just government.

Though it is from the nature of things almost impossible to take effective steps for ensuring that an Irish executive shall make a right use of its powers, it is an essential feature of the Gladstonian Constitution that the Irish Parliament shall so far at least use its authority justly as to keep within the limits placed upon its competence. Whether these limitations have been wisely drawn, and whether they may not be in some respects too wide and in others too narrow, are inquiries which, though important in themselves, need hardly detain us. The question in comparison with which all matters of detail sink into insignificance is not what are the limitations which the Constitution imposes on the competence of the Irish Parliament, but what is the efficacity of the means provided by the Constitution for compelling the Irish Parliament to respect these limitations? This is the one vital inquiry, for upon the answer to it depends the reality of the constitutional provisions for the maintenance of just legislation. These methods are, as already pointed out, twofold.

1. Veto of Lord-Lieutenant.

The first is the veto of the Lord-Lieutenant. Let us assume, though the truth of the assumption is not quite clear, that this veto is combined, as in the case of the colonies, with a further power of disallowance on the part of the Crown, or in effect of the British Ministry. The result is that the British Ministry, or, to put the thing plainly, the British House of Commons, can put a check on such Irish legislation as may be opposed to the letter or to the spirit of the Constitution. The check is in one sense real, but it must, as in the case of the colonies, be but rarely employed. Its constant use, or its use on occasions of great importance, would seem to Irishmen, and with good reason, to nullify the concession of Home Rule. Suppose, for example, the Irish Ministry carry a measure for artificially stimulating Irish commerce, and the Crown disallows it on the ground that it is contrary to the provision of the Constitution forbidding the Irish Parliament to make any law relating to trade. The Irish Cabinet thereupon resigns. What course is the Lord-Lieutenant to take? If he uses the veto he reintroduces in the most awkward form the interference of the British Parliament with Irish legislation. If he does not use the veto, or, what is in its effect the same thing, if the Act is not disallowed, then the right of veto comes to little or nothing. We may be quite sure that in general neither the Lord-Lieutenant nor the Crown will refuse assent to Bills approved of by the Irish Parliament. The veto in its different forms will, in short, be but a very slight check on unconstitutional or unjust legislation.

2. Action of Privy Council.

The second method by which it is endeavoured to check unconstitutional legislation is the use of the authority vested in the English Privy Council. Privy This method is borrowed from Federalism, as the Lord-Lieutenant's veto is borrowed from the Colonial system. The Privy Council, it should be remembered, may nullify the effect of Irish legislation in two ways:—It may as an administrative body give a decision that a Bill or Act is void. It must, however, be hoped and expected that the Privy Council will rarely adopt this mode of exercising its powers, for such exercise would at once give rise to a direct conflict between the Irish Parliament and the English Privy Council. That body may, however, act simply as a Court of final appeal, and as a tribunal decide whether an enactment Of the Irish Parliament is or is not void. This, we may suppose, is the mode in which the Privy Council will usually put forth its authority. It is easy, bearing the experience of America and Canada in mind, to see how the whole arrangement will, in theory at least, work. A. sues X. in an Irish Court, X. bases his defence on some Act passed by the Irish Parliament. The Privy Council pronounce the Act void, as being opposed to some provision of the Constitution, and give a judgment in favour of A., under which he has a right to recover £10,000 against X. Here it will be said the whole matter is settled. The law was unconstitutional; the law has been treated as void; A. has obtained judgment; A.'s rights are secured. This would be all that was required, but for one consideration. The object of the plaintiff in an action is to obtain not judgment, but payment or execution. What are the means by which judgments of the Privy Council may be put in force where they happen not to be supported by Irish opinion, and are opposed, it may be, to the decisions of the Irish Courts? The answer is simple: the Constitution provides no means whatever. The Federal tribunals of America possess in every State officials of their own, and are supported in the main by American opinion. The Americans are, moreover, to use their own expression, "a law-abiding people." Yet for all this the judgment of the Supreme Court may be worth little if it runs across State sentiment, and if the President should happen to sympathise with State rights. A citizen of colour was unlawfully imprisoned in Georgia; he applied for a habeas corpus. The application ultimately came before Chief Justice Marshall, and the writ was granted. The traditional comment of President Jackson is noteworthy: "John Marshall has given his judgment, let him enforce it if he can." The Executive would not assist the Court, and the Supreme Court was powerless. Switzerland, again, has a Federal tribunal: it is a Court, as would be the Privy Council, which cannot command officials of its own to execute its process; it depends for aid on the Cantonal authorities. This state of things, I am told on good authority, produces its natural result. The judgments of the Federal tribunal can be rendered almost ineffective by the opposition of a Canton.

At this moment the statutes of the Imperial Parliament bind every man throughout the United Kingdom. The Courts in Ireland are bound to give effect to every statute, and the Irish Courts are supported by the Sheriff and his officers, and in the last resort by the power of the United Kingdom. Yet the very difficulty of the day is enforcing judgments which run against Irish popular opinion. Is it common sense to imagine that opposition which defies, often with success, the authority of the Irish Queen's Bench Division, or ultimately of the House of Lords, would not easily nullify the judgments of the Privy Council when not only unpopular in Ireland, but in contradiction to a law devised by the Irish Executive, passed by the Irish Parliament, supported by the Irish Judges? The truth must be spoken: the Gladstonian Constitution will, as regards the restrictions placed under it on the powers of the Irish Parliament, inevitably turn out a mere paper Constitution. The methods for compelling the observance of these limitations have neither of them any real efficacity. The veto can with difficulty and but rarely be used; the judgments or opinions of the Privy Council may have a speculative interest, but will possess no coercive power.

If this be so the guarantees afforded by the Constitution for just legislation are nugatory; they are worth neither more nor less than the pompous securities for every kind of inalienable right which have adorned the most splendid and the most transitory among the Constitutions which have during a century been in turn created and destroyed in France—that is, they are worth nothing; nor is it unfair to conjecture that on this point my opinion agrees with the opinion of many English Home Rulers. They think the limitations on the independence of the Irish Parliament useless and destined to disappear; for their avowed belief is that legislation by an Irish Parliament will in the main be just, and that the laws of the Irish Parliament, because they represent the wishes of the Irish people, will obtain easy obedience in Ireland. If this conviction be sound—and it is the almost necessary basis for a policy of Home Rule—let us act upon it, and not impose restrictions which, if needless, must certainly be noxious. Meanwhile in any case let us dismiss the delusion that restrictions which cannot be enforced are any guarantee for justice. The Gladstonian Constitution admits on the face of it that guarantees are wanted. Most Englishmen agree in the opinion implied in this admission. But if I am right in asserting that the guarantees for justice are illusory, then the Gladstonian Constitution does not secure justice, and is therefore not just.

Does Constitution possess finality?

3rd Question.—Does the Gladstonian Constitution hold out fair hopes of finality?