Taking the Canadian Constitution as the most workable model, let us consider in the light of that instrument what powers it would be reasonable to hand over to an Irish Legislature. There are two ways of proceeding in framing any such Constitution. One is to grant general powers with specific limitations, the course followed by Mr. Gladstone in his two Home Rule Bills. The second is to specify the powers to be given to the subordinate Legislature, outside of which it cannot act. Good reasons may be advanced for both methods; but in view of the difficulty of accurately foreseeing all the needs and necessities to be provided for by a new legislative body and the great risk of overlooking important matters, the inclusion of which later on might encounter very serious obstacles, the method of giving general powers with exceptions and restrictions specified in the Act seems the more workmanlike of the two.
If the latter course be adopted, following the precedent created in the Bills of 1886 and 1893, the new Legislature will acquire general powers to make the necessary laws for the peace, order and good government of Ireland. The powers thus granted in general terms will of course be very extensive, comprising, as they must, the liberty of raising taxes, borrowing money, and dealing with education, public worship, property and civil rights, land, factory and company laws, the administration of justice, licensing, etc., etc.
In connection with taxation the important question arises whether the power should be granted to any unit of a federal state to impose Customs Duties. In the models we have referred to no local legislature is entitled to deal with Customs or Tariffs. Indeed all three Constitutions expressly provide that there shall be free trade within the limits of the federation. It is [pg 421] inconceivable that a British Parliament should ever grant, or that the Irish representatives should ever ask for, powers which would enable Ireland to set up a radically different fiscal system to that adopted by the rest of the United Kingdom. Thus the precedents established by the Constitutions of the different Dominions would undoubtedly have to be followed. There is a further question to consider, namely, how and to what extent it will be possible to reconcile any conflict that may arise between the powers exercised by the central and local legislatures in collecting taxes. For instance is the income tax to be retained as a purely Imperial tax, or is the Irish Parliament to have power to levy, either in substitution for it or in addition to it, an income tax of its own? The same question arises with regard to excise duties. As no income tax is imposed in any of the three self-governing Dominions referred to, their constitutions throw no light on this point. Nor does the Constitution of the German Empire, as there the income tax is a state and not an Imperial tax. A solution of this problem might be possible on two lines. One by allowing the Irish Government to impose its own income tax, paying a fixed contingent to the British Treasury. The second method would be to allow the Irish Parliament to make additions to the British tax, in the way that German municipalities are allowed to make additions to the State income tax. Something of this kind seems contemplated under the Government Bill.
In the Dominions licenses for the sale of alcoholic liquors, excise duties, and land taxes are all imposed by the States. They might also be very well made State, that is to say Irish, taxes in Ireland. The future financial relations between Ireland and Great Britain, however, are dealt with in another chapter.
In considering what subjects would naturally be withdrawn from the jurisdiction of the future Irish Legislature, as of other subsequent British local legislatures, it will be well to see which of these exclusions are common to the Canadian and Australian Constitutions. These are: trade and commerce, indirect taxation, borrowing money, postal, telegraphic, and telephonic services, naval and military defence, lighthouses, etc., quarantine, fisheries, census and statistics, currency, coinage and legal tender, banking, other than State banking, weights and measures, bills of exchange and promissory notes, bankruptcy and insolvency, copyrights patents and trade marks, naturalization and aliens, marriage and divorce. There are also a few differences in the matter of exclusions between the two Dominions. For instance, Canada's list of reservations for the Central Parliament begins with “The Public Debt and Property,” for which there is no exactly corresponding heading in the Australian Constitution. This Canadian list also includes navigation and shipping, savings banks, the criminal law and penitentiaries. On the other hand the subjects reserved for the Central Parliament in Australia, comprise, inter alia, bounties, insurance, other than State insurance, trading or financial corporations, invalid and old-age pensions, immigration and emigration, “external affairs,” control of railways for military and naval transport purposes, railway construction and extension, industrial conciliation and arbitration, etc.
The essential exclusions from the jurisdiction of State Legislatures are, of course, national defence, treaty making powers, laws affecting foreign trade and shipping, lighthouses, coinage and legal tender, trade marks, patents and copyrights to which might very well be added factory legislation, company legislation [pg 423] and the laws affecting negotiable instruments. It would seem a pity to break up the legislation on subjects that are less of local than of general interest, thus adding to their legal difficulties by diversity of legislation. As regards factory laws the question of the position under international conventions of an Irish Legislature demands specially careful consideration. There are, at present, two international conventions relating to factory laws, namely, those concerning the prohibition of white phosphorus in match manufacturing, and night work by women in industrial occupations. It is likely that they will shortly be followed by others regulating the hours of work of women and young persons and prohibiting night work by boys under eighteen. It is desirable that the advantages of such conventions should be retained for the Irish industrial worker.
The justification of most of the exclusions just enumerated is sufficiently obvious and their enforcement in most of the Dominion Constitutions show that by common consent they have been accepted as reasonable, as for instance those dealing with national defence, treaty-making, peace and war, and the rights and privileges of the Crown.
There remains, perhaps the most important point of all, namely the control or power of restriction to be exercised by the Imperial Parliament over the legislation of the new Irish Legislature by means of a veto. The Canadian Constitution confers upon the Dominion Government the same powers of disallowance of Acts of the provincial legislatures as belonged to the Imperial Government prior to 1867. According to Sir John Bourinot (“Parliamentary Procedure”), the Minister of Justice in 1868, laid down certain principles of procedure which have been generally followed up to [pg 424] the present time. On receipt of the Acts passed in any province they are immediately referred to the Minister of Justice who reports upon them. If the Minister considers an Act free from objection and his report is approved by the Governor-General in Council, such approval is forthwith communicated to the Provincial Government. The Minister of Justice makes separate reports on those Acts which he may consider: (1) as being altogether illegal or unconstitutional; (2) as illegal or unconstitutional in part; (3) as, in case of concurrent legislation, clashing with the legislation of the general Parliament; (4) as affecting the interests of the Dominion generally. It has also been the practice (adds Sir John Bourinot) in the case of measures only partially defective, not to disallow the Act in the first instance, but, if the general interest permits such a course, to give the local government an opportunity of considering the objections to such legislation and of remedying the defects thereof. In his book “How Canada is Governed,” Sir John Bourinot makes some pertinent remarks upon the method of dealing with such cases:
“The Governor in Council can within one year from its receipt disallow an Act of a provincial legislature, and consequently prevent it becoming law.... As a rule it is the wiser policy to obtain an opinion from the Courts in all cases of doubt ... rather than use a political power which is regarded with suspicion by the provinces. The law allows such reference to the Supreme Court in Canada.”
In Australia, where the powers of the States were established long before the Commonwealth came into existence, there is no direct power of veto, but in 1903 and subsequently, Acts were passed by the Commonwealth Parliament giving the High Court jurisdiction in matters arising under the Constitution or involving [pg 425] its interpretation. Thus, in the words of Mr. W. Harrison Moore, Dean of the Faculty of Law in the University of Melbourne, in his “Constitution of the Commonwealth of Australia,” “the Commonwealth Government and the State Governments are in their relations independent and not hierarchical. There is no such general supervision of the State in the exercise of the powers belonging to it as is enjoyed by the Dominion Government over the Provinces of Canada.... The observance by the Commonwealth Government and the States of the limits set to their powers is secured by the action of the courts whose judicial duties may involve the determination of the validity of the authority under which acts are done, whether that authority is the Crown, a subordinate legislature, or any whatsoever save the Imperial Parliament.”