Uniformity of legislation between the two countries is not desirable in all directions nor has it hitherto been followed. In matters of expropriation, for example, the drastic procedure of the Housing and Town Planning Act has not been adopted in Ireland. Ireland has her own standard in these matters in the case of the Irish Local Government Act, and the Land Purchase Acts, and I am not at all sure that the principles of the English Land Clauses Consolidation Act and Railway Clauses Consolidation Acts as to arbitration and compensation are by any means ideal. Still less has uniformity in the matter of criminal law been the rule hitherto between the two countries. It would be difficult to find a parallel in this country for the Crimes Act of 1887 (which is still on the Statute-Book although it is no longer put in force by proclamation) with its extensions of summary jurisdiction to cases of criminal conspiracy, intimidation, riot, and unlawful assembly, and its provisions for a change of venue.
It is perhaps more open to question whether the [pg 022] words of the 1893 Bill designed to secure to the subject “the equal protection of the laws,” and to prevent legislation discriminating against Englishmen and Scotsmen[29] under certain circumstances, ought not to have been repeated. The words “equal protection of the laws” have been interpreted in the United States in such a way as to secure that legislation, particularly in the exercise of the “police power,” shall be impartial in its operation.[30] On this interpretation, they would for example, have prevented an Irish Legislature from exempting Catholic convents which are used as workshops from the operation of the Factory Acts. But that might be secured in another way, and the words might, if adopted, have operated to prevent much useful legislation. It seems likely enough that discriminating legislation, in so far as it tended to prevent a particular class of persons from residing in Ireland or penalised non-residents, would be held invalid in any case on the ground that it conflicted with the reservation to the Imperial Parliament of such subjects as “trade” and “naturalization.”[31] And, as regards non-residents, it must be remembered that the grant of legislative powers can only be exercised “in respect of matters exclusively relating to Ireland or some part thereof”—words which may be found to be of considerable importance.
The same may be said of the omission in the Bill, to provide, as its predecessor of 1893 provided, for the maintenance of securities for the liberty of the subject and the preservation of his common law rights. It is almost impossible to do this without entering on an [pg 023] uncharted sea of litigation. Modern legislation, especially social and industrial legislation, infringes common law rights at every point. I have ventured elsewhere[32] to describe the modern tendency of industrial legislation as a tendency, inverting Maine's famous aphorism, to advance from contract to status, that is to say, to limit to an increasing extent the contractual freedom of the worker, and to confer on him a certain status by the protection of him against himself.[33] The greater part of our Irish land legislation impaired the obligation of contracts. Professor Dicey criticised the Bill of 1893 for not going further than it did in its incorporation of clauses taken from the Constitution of the United States with the intention of securing the common law rights of the subject. But it may be remarked that many of those clauses have proved an almost intolerable limitation upon the power of the legislatures to deal with the regulation of trade and industry, so intolerable that the Supreme Court has of late made a liberal use of the fiction of “the police power”[34] to enable the legislatures to pass legislation which otherwise might have seemed [pg 024] to “abridge the privileges” of citizens of the United States or deprive them of “liberty or property without due process of law.”[35]
At the same time it must be remembered that, although the Irish Parliament is not debarred from statutory interference with common law rights, its legislation will be subject to rules of interpretation, at the hands of the Judicial Committee, by which statutes are always construed in favour of the subject. It is a well-accepted rule of construction in English courts that common law rights cannot be taken away except by express words.[36] It is something to secure that the interpretation of the new Constitution and of Irish statutes shall, in the last resort, be wholly in the hands of an Imperial Court. The chartered protection of the rights of the individual by a fundamental Act is always difficult and often impossible. In the last resort it depends very much on the interpretation which the judges choose to place upon such an Act.[37]
The Executive Veto.
It is obvious, therefore, that the principal and indeed almost the only safeguard provided in the Bill against inequitable or discriminating legislation[38] is the veto of the Lord-Lieutenant acting on the instructions of the Imperial Government. A political check is preferred to a juristic check. The apostolic maxim “all things are lawful but all things are not expedient,” appears to have been the motto of the draughtsman. Not law but policy will decide what Irish Acts are to be placed on the Statute-Book. It must be admitted that this is the principle most in harmony with precedent if the constitutions granted to the colonies are to be regarded as precedents. No colony would have tolerated for a moment the elaborate network of restrictions in Clause 4 of the Bill of 1893, through the finely-woven meshes of which it would have been hard for any Irish legislation of an original or experimental character to pass. If we are really in earnest about setting up a Parliament on College Green, we cannot do otherwise. The executive veto must be the real check, and in the presence of such a check, English judges would always be very loath[39] to declare the Acts of a legislature ultra vires merely because they infringed common law rights.
Now this check may be exercised on one of two grounds. The Imperial Government may “instruct” the Lord-Lieutenant to refuse his assent either on the ground that the bill in question is politically objectionable, or on the ground that it is, in their opinion, in [pg 026] excess of the powers conferred on the Irish Legislature. It is desirable in every way that the two should be distinguished in order that the Imperial Parliament may be able to hold the Cabinet of the day responsible when its action is purely a question of policy. On the other hand, it is no less desirable that the Cabinet should, in the interests of the public in Ireland, be in a position to test the validity of an Irish Bill which, though unobjectionable on the ground of policy, may be questionable on the ground of law. It is a common error that in all written constitutions the courts, particularly those of the United States, have proprio motu the power of declaring ultra vires any legislative act which infringes the principles of the Constitution. Laboulaye fell into this error in his study of the American Constitution. But the American Courts have no such power. Until a case arises in the ordinary course of litigation, under the statute in question, there is no means of annulling it, and there have been many Acts[40] on the Federal Statute Book which are quite conceivably “unconstitutional” in the letter as well as in the spirit, but have never been declared ultra vires for the simple reason that no one has found his private rights affected. This holds particulars of questions of the distribution of power. It might for example, occur in the case of an Irish Bill which proposed to deal with one of the reserved services. To meet this difficulty and to avoid the trouble which might arise from an Act being placed in the Irish Statute Book[41] and observed in Ireland only to be subsequently declared ultra vires in the course of litigation, it is [pg 027] provided in the Government of Ireland Bill[42] (Clause 29) that if it appears to the Lord-Lieutenant or a Secretary of State expedient in the public interest that the validity of an Irish Act should be tested he may represent the same to His Majesty in Council and the question may then be heard and determined by the Judicial Committee in the same manner as an appeal from a Court in Ireland. It is not necessary to suppose that the executive veto will be a dead letter, and to argue from its disuse in the case of the self-governing colonies is to argue from the like to the unlike. In the case of the provincial legislatures of Canada it has been exercised by the Dominion Government where provincial legislation is inequitable, or contrary to “the settled policy” of the Dominion.
Exempted Powers.
The enumeration of matters in respect of which the Irish Parliament shall have no power to make laws is a little deceptive, inasmuch as many of the matters so enumerated would have been outside its power in any case. Ireland is not, so long as the Act of Union remains on the Statute Book, a sovereign state, and “the making of peace or war” and the negotiation of [pg 028] treaties would, as a matter of international law, have been impossible in her case, even if they had not been expressly prohibited. “Merchant shipping” and “the return of fugitive offenders” would also have been excluded from her authority by the rule of law[43] which precludes a subordinate legislature from extra-territorial legislation. The same may be said of Copyright. The colonies have only been enabled to deal with these matters in virtue of clauses in Acts of the Imperial Parliament.[44] But it would not be true to say that the position of the Irish Parliament is assimilated to that of the legislature of a self-governing colony. The exclusion of subjects relating to allegiance, such as naturalization[45] and treason,[46] and of legislation as to aliens is exceptional. All the self-governing colonies have power to deal with these matters, as also with the subject of naval and military forces. Perhaps the most important exemption in the case of Ireland is that of trade, trade-marks, designs, merchandise marks and patent rights. I cannot help regretting that, inasmuch as the principle has been adopted of giving Ireland general and unenumerated powers, the number of specific exemptions has not been enlarged. It is highly desirable to avoid conflict of laws in the United Kingdom as far as possible. It must be remembered that the Statute Book has, quite apart from the Act [pg 029] of Union, bound Ireland to England by many legislative ties; there is a uniform system of industrial, commercial, and, to some extent, criminal law for the whole of these Islands—Factory Acts, Companies Acts, the law of negotiable instruments, criminal procedure, old-age pensions, and insurance legislation; in all these there is legislative standardization, and the tendency of all modern political unions, notably those of the Australian Commonwealth and the German Empire, is in this direction. Confusion, injustice, and economic inequalities constantly occur in a modern State whose inhabitants are living under a “conflict of laws.” Fiscal considerations point the same way. It may be safely assumed that English opinion will not tolerate any considerable divergence between the fiscal systems of England and Ireland. Moreover, financial considerations apart, the regulation of “trade” is, as in every political union, reserved for the central legislature. But to distinguish between “trade” on the one hand and “industry” on the other is not an easy problem, and Ireland may discriminate against England only less effectively by lowering the standard of the Factory Acts than by a tariff.
The “subject matter” of the Old Age Pensions Acts, National Insurance Acts, and Labour Exchanges Acts has, it is true, been excluded. It seems regrettable that the category is not enlarged to include the Companies Acts, the Sale of Goods Act, the Bills of Exchange Act, and the Factory Acts. It would be highly undesirable to have the “industrial minimum” for the United Kingdom, so laboriously attained by our factory legislation, lowered in the interests of particular interests in Ireland. The advantages of securing uniformity by the inclusion of the three great statutes relating to commercial law is also very obvious. Two of them, indeed, [pg 030] represent a great step in that codification of English law which is the dream of English jurists, they have been adopted as a model in some of our colonies, and it would seem highly desirable that the standard thus attained should remain fixed. In urging this, I do not forget what I have already said, in connection with the subject of constitutional limitations, as to the undesirability of exacting too rigid a degree of uniformity in English and Irish legislation, but constitutional limitations are one thing and exceptions quite another. It is very difficult to subject the whole field of Irish legislation to juristic principles, but it is comparatively easy to exempt from that field the subject matter of particular Acts. The whole question resolves itself into a consideration of the point at which uniformity should be determined. The Bill seems to fix the point much too low.