The Framework of Home Rule

by Erskine Childers

Let us dispose first of the relation of the Ministers and of other public officials to the Legislature. There will be no question, presumably, of giving statutory power to this relation. It is an unwritten custom—(1) that Ministers must be members of one branch of the Legislature; (2) that they must hold the confidence of the elected branch; (3) that, as a Cabinet, they stand or fall together; and, lastly, (4) that all non-political officials are excluded from the Legislature. The first and the last of these conventions have taken legal form in some isolated cases;[167] the other two appear in no statute that has yet been framed.[168]

Neither have the functions in practice exercised by the Ministry or Cabinet, nor the relations which in practice exist between it and the King's Representative, ever had statutory definition. Whatever form the Home Rule Bill takes, it cannot give legal precision to these things. The King's Representative always nominates an Executive Council—that is, a Cabinet to "advise" him in the Government, and whether, as in the Bill of 1893, that Council is called an Executive Committee of the Privy Council of Ireland by analogy with the Dominion of Canada, where it is the "King's Privy Council for Canada," or whether it is merely an Executive Council is immaterial. That it is, nominally, the constitutional duty of the King's Representative (like that of the King himself) to perform executive acts on the advice of his Ministers is never stated expressly. He is always, and generally in the text of the Constitution, vested with the power of summoning, proroguing, and dissolving the Legislature, and of giving or withholding the Royal Assent to Bills. He also, by unwritten law, wields the prerogative of Pardon, and appoints all public servants; and in all these cases, except in the case of appointing non-political officials, he occasionally has to act on his own personal responsibility.

This personal responsibility cannot be distinguished in practice from his responsibility to the Crown, which appoints and can remove him. Cases have arisen where the Governor of a self-governing Colony has written home for special guidance on some specific point, and where the answer given has been that he must act on his own responsibility, or follow the advice of his Ministers. All Colonial Governors, however, whether or not their powers are defined in the Constitution, are appointed by Commission from the Crown with powers defined in Letters Patent and Instructions as to their exercise. These Letters Patent and Instructions are not of much importance in the case of a self-governing Colony where responsible advice so largely controls the action of the Governor. Sometimes the executive powers given by Instructions to the Governor are indirectly alluded to in the Constitution, as in the South Africa Act of 1909, where, by Clause 9, under the head of "Executive Government," the Governor-General is "to exercise such powers and functions of the King as His Majesty may be pleased to assign to him." In the Australian and Canadian Acts of 1900 and 1867 respectively, the words do not appear. I name this point because in Clause 5 of the Home Rule Bill of 1893, and Clause 7 of the Bill of 1886, a similar course was taken in providing that the Lord-Lieutenant should "exercise any prerogatives, or other executive power of the Queen, the exercise of which may be delegated to him by Her Majesty." The words are not strictly necessary. The Lord-Lieutenant will, of course, have his Letters Patent and Instructions, but the powers of the Crown are theoretically absolute. If the Crown, acting under responsible British advice, should wish to defy the Irish Legislature, it could do so whatever the terms of the Bill.

Naturally, there will be certain Imperial and non-Irish matters in which the Lord-Lieutenant will act primarily under the orders of the British Cabinet, and the Departmental British Minister primarily responsible for Irish-Imperial matters would be the Home Secretary.[169]

The question may be raised, as in 1893 (July 3, Hansard), whether a staff of Imperial officials ought not to be set up to conduct any Imperial business which has to be done in Ireland, on the analogy of the Federal staff in the United States. I hope Mr. Gladstone's answer will still hold good—that no such staff is needed; that the Irish officials will be responsible, and ought, on the Home Rule principle, to be trusted, as they are trusted in the Colonies.

The Royal Assent to Bills is always a matter for express enactment in the Constitution, but here the "instructions" of the Governor, and even his personal "discretion," have generally been alluded to in recent Constitutions, whether conferred by Act or Letters Patent. The typical form of words is that the Governor "shall declare his Assent according to his discretion, but subject to His Majesty's instructions."[170] The Home Rule Bill of 1893 left out reference to "discretion," and, on the other hand, is, I think, the only document of the kind in which the "advice of the Executive Council" has ever been expressly alluded to, although the practice, of course, is that the Assent, normally, is given or withheld on that advice. The Transvaal Constitution of 1906 (Section 39) was unique in prescribing that special instructions must be received by the Governor in the case of each proposed law, before the Assent is given. I hope that will not be made a precedent for Ireland. Such precautions only irritate the law-makers, and serve no useful purpose.

Colonial Governors, besides the power of Assent and Veto, may "reserve" Bills for the Royal pleasure, which is to be signified within two years. Moreover, Bills which have received the Governor's Assent may be disallowed within one or two years.[171] Neither of these provisions appeared in the Home Rule Bills of 1886 and 1893, and neither appear to be strictly necessary, owing to the proximity of Ireland. Whatever is done, we may hope that the practice now established in Canada, where the Federal Government never disallows a provincial law on any other ground than that it is ultra vires, and, a fortiori, the similar practice as between Great Britain and the Dominions, may be imitated in the case of Ireland.

To sum up, the terse and simple words of the Bill of 1886 really enunciate all that is necessary:

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.