The Framework of Home Rule

by Erskine Childers

In Trade and Navigation it would be wise to take the same course. The Home Rule Bill of 1886, without giving Ireland representation at Westminster, denied her all powers over Trade and Navigation. The Bill of 1893 gave her powers over Trade within Ireland and Inland Navigation, and these powers at any rate should be given in the coming Bill, together with the larger functions also; though Ireland would naturally leave in operation the great bulk of the statutes concerned, since they intimately affect the commercial and industrial relations of the two countries. For the rest, Ireland no more than the Colonies can be freed from a measure of Imperial control maintained by Acts like the Merchant Shipping Act of 1894.

The Postal Service in Ireland should, as in the Bill of 1886, come under Irish control.

In the Home Rule Bill of 1893 (Section 34) it was laid down that for three years the Irish Legislature should not "pass an Act respecting the relations of landlord or tenant, or the sale, purchase, or letting of land generally." Such a provision repeated in the coming Bill would be inconsistent with the absence of Irish Members from Westminster. But I take it for granted that there is no question of its repetition. At first it might appear that Land Purchase should be distinguished from other branches of land legislation and reserved to the Imperial Government on the ground that it needs Imperial credit. I shall deal with this point fully in Chapter XIV., and only need here to express the view that Land Purchase cannot be separated from other branches of land legislation, or from the Congested Districts Board, or even from the control of the police, and that we are bound to give, and shall be acting wisely in giving, all these powers to the Irish Legislature from the first.

It is necessary perhaps to add that non-representation at Westminster does not in the smallest degree affect the complete legal supremacy of the Imperial Parliament over the subordinate Irish Legislature. This Legislature will in legal language be a "local and territorial" body, like those of the Colonies. It will be the creature of Parliament, and could be amended or even extinguished by it in a subsequent Act. The Bill of 1886 (perhaps because it never reached the Committee stage) said nothing explicit about the supremacy, though the Bill of 1893, while providing for representation at Westminster, repeatedly (and sometimes quite superfluously) affirmed it—in the Preamble, for example, and in a rider to Clause 2. The King's authority, through the Lord-Lieutenant, will be supreme in Ireland, as, through the Governors, it is supreme in the Colonies. Every Irish Bill, like every Colonial Bill, will require the Royal Assent, given through the Lord-Lieutenant, who will correspond to the Colonial Governors. The Lord-Lieutenant, like his colonial counterpart, will have to exercise both his Executive and Legislative functions in a double capacity: in the first instance by the advice of his Irish Cabinet, but subject to a veto by the British Cabinet. This dual capacity has belonged to all Colonial Governors ever since the principle of responsible government was established. As I showed in earlier chapters, it was regarded even by Lord John Russell as impossible and absurd as late as 1840; but it ought by now to be understood by every educated man, and we may hope to be spared the philosophical disquisitions and hair-splitting criticisms which it evoked from men who should have known better in the Home Rule debates of 1893.

Laws framed at Westminster will be applicable to Ireland, as they are frequently made applicable to the Colonies.[89] Conversely, only through the express legislative authority of Westminster will an Irish, like a Colonial Act,[90] be held to operate outside the borders of Ireland.

Apart from the strict legal omnipotence of Imperial sovereignty, it is, of course, impossible to say now what the exact constitutional position of Ireland will be under any form of Home Rule. No Bill can state it fully in set terms. Time, custom, and judicial decisions will build up a body of doctrine. It is so with the Colonies, whose exact constitutional relations with the Mother Country are still a matter of juristic debate, and are only to be deduced from the study of an immense number of judicial decisions and of Imperial Acts passed subsequently to the grant of the original Constitutions. Some of these Acts I have already illustrated. The one Act of general application, namely, the Colonial Laws Validity Act, cannot be read without the rest, though in form it appears to contain a complete set of rules. While giving general power to a self-governing Colony "to make laws for the peace, welfare, and good government of the Colony" (words which will also necessarily appear in the Home Rule Bill), the Act makes void all colonial laws or parts of laws which are "repugnant to the provisions of any Act of Parliament extending to the Colony to which such law shall relate," and this provision will no doubt, be applied, mutatis mutandis, to Ireland, as it was in Section 32 of the Home Rule Bill of 1893. The Irish Legislature, that is, will be able "to repeal or alter any enactments in force in Ireland except such as either relate to matters beyond the power of the Irish Legislature, or, being enacted by Parliament after the passing of this Act, may be expressly extended to Ireland."

It will be noticed that the words "beyond the power of the Irish Legislature" referred to the subjects expressly excepted in the Bill itself. This is one of the points in which the Irish Constitution will bear at any rate a superficial resemblance to that of a Province or State within a Federation rather than to that of a self-governing Colony. The practice of expressly, and in the text of a Constitution, forbidding a self-governing Colony to legislate upon certain subjects, or of expressly reserving concurrent or exclusive powers of legislation to the Mother Country, has fallen into disuse since the establishment of the principle of responsible government. Such restrictions were inserted in the Canadian Union Act of 1840, where the old right of the Mother Country to impose customs duties in the Colonies for the regulation of commerce was reaffirmed, and even in the Acts of 1855 for giving full powers of self-government to the Australian Colonies, which were forbidden to impose intercolonial customs, though they were expressly granted the power of imposing any other customs duties they pleased,[91] but they do not appear in modern Constitutions, for example in the Transvaal Constitution of 1906. As I have indicated, this implies no change in the strict legal theory of Colonial subordination to the Mother Country; for, although the tendency of modern juristic thought is to ascribe "plenary" power to a Colony, restrictions nevertheless do exist in practice, and are contained, express or implicit, in a number of disjointed Acts.

A Federating Colony, on the other hand, like a foreign Federation, has in its own self-made, domestic Constitution to apportion powers with some approach to precision between the federal and the provincial authorities, and in this respect the Irish Bill, in reserving certain powers to the Imperial Parliament, will resemble a federating Bill, and it should follow the American and Australian precedents in leaving residuary powers to the subordinate or Irish Legislature, not, in accordance with the Canadian precedent, to the Parliament at Westminster. That is an indispensable corollary of excluding Irish Members from Westminster.

In speaking of powers reserved or delegated, and of residuary or unallocated powers, I have thus far referred only to powers which must be exercised, or at any rate may need to be exercised, if not by the subordinate legislature, then by the superior Parliament. Those restrictions on the Irish Legislature which are imposed in order to protect the religious or economic interests of a minority within the State, or as a recognition that there are certain kinds of laws which it is morally wrong to pass, fall into an altogether different category. By implication they morally bind the superior Parliament too, and are irrelevant, therefore, to the question of representation. They will be necessary, no doubt, in the coming Irish Bill, though they need not be so extensive as those which are to be found in Clause 4 of the Bill of 1893, some of which are borrowed from the famous anti-slavery amendments of 1865-1869 to the Constitution of the United States.[92] In inserting them we shall again be following the "Federal" rather than the "Colonial" model. No such restrictions have been imposed by the Mother Country upon any self-governing Colony. The nearest approach, perhaps, to such a tendency was the provision in the Transvaal Constitution of 1906 (Section 39), that "any law whereby persons not of European birth or descent may be subjected or made liable to any disabilities or restrictions to which persons of European birth or descent are not also subjected or made liable" should be specially "reserved"—that is, sent home by the Governor—for the signification of the Royal pleasure; but no similar provision appeared in the Act of 1909 for constituting the South African Union. In Federal systems, on the other hand, such restrictions, taking the form of self-denying ordinances, are common, whether appearing in the Federal Constitution itself or in the subordinate State Constitutions. The Constitution of the United States, for example, in addition to the anti-slavery provisions noted above, enacts that the National Government cannot (by Amendment I.) establish any religion or prohibit its free exercise, or (by Amendment V.) take private property for public use without just compensation, or (by Article 1, § 9) grant a title of nobility. Neither (by Amendment XIV. and Article 1, § 10 respectively) can a State do these things. By Article 1, § 10, a State cannot pass a law impairing the obligation of a contract. Exactly similar restrictions appear in many of the individual State Constitutions. Others forbid the establishment of any church or sect; the introduction of armed men "for the suppression of domestic violence"; "perpetuities or monopolies," and a variety of other things. Analogous provisions are to be found in the British North America Act, 1867 (constituting the Dominion of Canada), where the provincial Legislatures are forbidden to interfere with certain rights and privileges of religious bodies in the matter of education. There are no limitations of the kind in the Australian Commonwealth Act of 1900. Australia, no doubt, correctly represents the tendency of modern thought on this matter. Some of the American safeguards have produced great inconvenience. Nor can it be denied that the most elaborately contrived legal safeguards are of less value than the moral safeguard afforded by the sense of honour, justice, and prudence in the community. The existence of these qualities in Ireland, as in other white countries, is the true foundation of Home Rule. Some day Irishmen will ask, as a united country, for the repeal of these statutory safeguards.

That brings me to the penultimate point of importance, which may be held to affect the inclusion or exclusion of Irish Members at Westminster—I mean the question of future constitutional amendment. Here the colonial analogies are a little complicated. Since the Australian Colonies Act of 1850, in the new grant of a Constitution to a self-governing Colony, power has invariably been given to amend its own Constitution, without, of course, detracting from any powers specified in it for preserving the sovereignty of the Mother Country. Canada, when federating in 1867, took the somewhat singular course of making no provision in her Federal Constitution for its subsequent amendment, though, by Section 92 of the British North America Act, she gave her Provinces the exclusive right to amend their own Constitutions, a right which three of them have used to abolish their Upper Chambers. The Dominion Constitution, then, cannot be amended otherwise than by an Imperial Act. Such amending Acts are promoted by the Dominion Government without any specially devised machinery for ascertaining the public opinion of Canadians. Australia, on the other hand, when federating in 1900, made elaborate arrangements, which have been put several times into operation, for the amendment of the Federal Constitution by the Australian people itself, without an Imperial Act. Now, it will follow as a matter of course that Ireland will be given powers, as in both the previous Bills,[93] to amend her own Constitution within certain defined limits, after a certain lapse of time, and without encroaching upon Imperial authority. For my part I would strongly urge that the powers now to be conferred should be much wider; for I believe that Ireland alone can make a really perfect Constitution for herself. But, that point apart, the question arises of the further amendment, outside such permissive powers, of the Home Rule Act itself, which will, of course, contain within its four corners the whole of the Irish Constitution, so far as it can be written down. No special arrangements were made for such a contingency in the Bill of 1893, presumably because Ireland was to be represented at Westminster and would have a share in the making of any amending act. In the Bill of 1886, which excluded the Irish Members, Mr. Gladstone proposed (in Clause 39) that no alteration of the Act should be made (apart, of course, from points left for Irish alteration) except (1) by an Imperial Act formally assented to by the Irish Legislature, or (2) by an Imperial Act for the passing of which a stated number of Members of both branches of the Irish Legislature should be summoned to sit at Westminster.