(II) The Tendency Towards Legislative Disintegration. A Review Of The Statute Book. By H. de R. Walker
The Act of Union between Great Britain and Ireland was the end of a definite epoch of political concentration. England, Scotland, and Ireland had at last been brought under a single Parliament, with equal and complete legislative authority over the whole of the three Kingdoms. But Union was not accompanied by uniformity, especially in the case of Ireland. Ireland, when joined in a legislative union with Great Britain, was in fact left in possession of separate Administrative, Financial and Judicial institutions. With the separate judicial system I am not further concerned, but at a time when the grant of extended self-government to Ireland is under consideration, I contend that it is of great utility to observe how far Irish Administration and Irish Finance are actually distinct and separate at the present time. Moreover, whatever may have been the intention of the statesmen of the period of the Union, it has also been found to be necessary, owing [pg 389] to the diversity of the institutions, to pass in the Parliament of the United Kingdom, a large number of statutes solely applicable to Ireland. I do not assume that what is now separate should in every case be transferred to the new Irish Authority, nor that what is now done in common should not be so transferred; but I do contend that the existing differentiation should largely guide us in connection with the forthcoming proposals. On the other side, our opponents might of course urge that, as we have already got separate laws and separate administration for Ireland, we obtain under existing arrangements all the diversity that is required, and that we have herein an argument against Home Rule rather than in its favour.
We must, therefore, carry the matter a step further. We may say that the separate laws and separate administration, while not conclusive as to the need for Home Rule, will be found to provide a basis for its inception if it can be shown on other grounds to be desirable; but, as it is not my intention to enter upon the general merits or demerits of Home Rule, I pass on to submit the practical consideration that the separate laws and the separate administration for Ireland, as worked in connection with a single Parliament, not only work badly in themselves, but are prejudicial to the orderly development of Parliamentary government. This is my case, and if I can prove it, we should either do away with these separate arrangements or cease to work them in connection with a single Parliament. But it will be easy to prove further that the separate arrangements cannot now be consolidated. There is a continuous tendency to accentuate them in accordance with the requirements of the situation. We shall, therefore, be driven to the conclusion that we must have recourse to a separate Parliament for Ireland in [pg 390] order to be able to work these separate arrangements in a satisfactory manner.
In order to substantiate these contentions, I shall discuss the existing position as regards Irish Legislation, at the same time giving some attention to Finance and Administration in their legislative aspects. The uniformity in Anglo-Irish Finances which has been developed during the nineteenth century is still qualified by a certain differentiation. Separate departments of administration involve separate estimates of expenditure; and separate laws may involve separate grants of money.
The authors of the Act of Union did not attempt to establish uniformity between Great Britain and Ireland in the matter of either administration or finance, but they followed the precedent of the Union between England and Scotland in the concentration of all legislative powers in a single body, the Parliament of the United Kingdom of Great Britain and Ireland. But Union did not necessarily mean uniformity, and the united Parliament found itself at once compelled to pass separate and different Acts for the several portions of the United Kingdom.
In this branch of our subject it will be convenient not to confine our attention to the separate Irish laws, but, since many laws are also passed separately for England and for Scotland, to take a wider view and consider how far Parliament legislates in common for the whole of the United Kingdom, and how far separately for one or more of its component parts. And it follows therefrom that any conclusions that we may form as to the delegation of legislative powers are likely to apply in kind if not in degree to England and Scotland as to Ireland. In the administrative sphere, of course, the position is by no means the [pg 391] same as between the three countries. Scotland has at present no important central department at Edinburgh other than its Local Government Board.
It was largely owing to the maintenance under the Union of the separate administration in Ireland, combined with the retention during the first sixteen years of the separate exchequers, that Parliament was obliged to legislate separately for the different portions of the United Kingdom. These were the years of the Napoleonic wars, when very heavy taxation was imposed; and, not only was a separate Act passed, according to the custom of the time, for each article that was to be taxed, but this taxation was, on account of the separate exchequers, imposed by separate Acts for Great Britain and for Ireland. In these circumstances it is not surprising to find that the most numerous Statutes of the first twenty years of the century were those whose application was confined to Great Britain or to Ireland, and that they considerably exceeded in number those which applied to the whole of the United Kingdom or to England alone. After the amalgamation of the exchequers in 1817, the annual average of Statutes applying to Great Britain dropped at once from thirty-five to seven, and gradually decreased still further, since most of the financial measures were passed thenceforward for the whole of the United Kingdom alike. But Ireland, in spite of the financial amalgamation, continued to call for a large amount of separate legislation, and the annual average of Statutes applying solely to Ireland dropped no more than from thirty-one in the decade 1811-20, to nineteen in the following decade, at which point it remained fairly constant during the greatest part of the nineteenth century. Throughout this period, the average annual number [pg 392] of what I call “United Kingdom” Statutes ranged between forty-nine in the decade 1861-70, and thirty-two in 1881-90, and of Statutes that applied solely to England between fifty-eight in 1881-90, and twenty-three in 1801-10. It should be added that the numbers are those of the Public Acts alone, and they would be much higher, particularly in the later years, if the Local and Private Acts were included in the enumeration. But the public Statutes are obviously alone relevant in any enquiry as to the extent to which the Union of the Parliaments has led to legislative uniformity, and it is very significant that, even upon these public matters, Parliament has been unable at any time since the Act of Union, to avoid the necessity for a large amount of separate legislation for Ireland.
The figures up to 1890 are taken from Mr. T. A. Spalding's “Federation and Empire,” which contains many interesting particulars, and I have worked out the figures for the two succeeding decades, but not exactly on the same basis. Mr. Spalding includes the Provisional Order Confirmation Acts which were not distinguished from other Public Acts until the middle of last century, but I omit them as not partaking of the character of general legislation, and the number of separate Acts given for England, Scotland and Ireland is considerably reduced by this omission.
In my first table, which gives the total, not the annual average, I divide the Public General Acts into two wide categories: those, which I term “United Kingdom” Statutes, that apply to the Dominions, the Colonies, or India, as well as those which apply to the United Kingdom as a whole; and those, which I term “State” Statutes, that apply to England, Scotland or Ireland alone, to any two of these three [pg 393] countries, or, in a very few cases, only to the Channel Islands or the Isle of Man.