The New Irish Constitution: An Exposition and Some Arguments. Various

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СКАЧАТЬ of proportional representation or otherwise.52 But [pg 037] to their nomination for the first term by the Imperial Government I see no very cogent objection. Indeed, the expedient has much to be said for it, for the discretion, if wisely exercised, will enable the Imperial Government not only to secure to Irish minorities a degree of representation which no conceivable system of election could secure, but also to appoint men of moderate opinions—one immediately thinks of Sir Horace Plunkett—who, in the strife of extremists, might have no chance of election by either party. It has been argued in some quarters that a Second Chamber is wholly unnecessary, and the example of the single-chamber legislatures in some of the Canadian provinces has been cited. The argument, however, overlooks one really important function of the Senate, namely its duty to provide for the security of tenure of the Irish judges. Clause XXVII. provides that judges appointed after the passing of the Act shall only be removable on an Address of both Houses of the Irish Parliament, and, should the Senate refuse to concur in a demand by the lower House for the removal of a judge, there is no such means of overcoming its resistance in a joint session as is the case with legislation. This is well.

      There is one provision in the Bill53 which will serve to strengthen the position of the Senate as an advisory body and may operate to give it an initiative in the introduction of Government legislation—the provision which enables an Irish Minister who is a member of either House to sit and to speak in both Houses. This is a practice common on the Continent, and not wholly unknown [pg 038] in the case of some of our Colonial Constitutions, and it has much to commend it. The Senate is placed under the same disabilities as to money bills as are imposed on the House of Lords by the Parliament Act. Thereby it is placed in an inferior position to that of most of the Second Chambers in the Colonies, all of which can reject, and some of which may also amend, money bills. The disability is the less surprising having regard to its character as a nominee body—it is when the Second Chambers of the Colonies are elective, that their powers in regard to money bills are considerable.54

      The privileges of the Imperial Parliament are conferred by the Government of Ireland Bill upon the Irish Parliament. In the absence of such grant the Irish Parliament would not have had such privileges—although it might have adopted them by legislation—for the lex et consuetudo Parliamenti are not implied in the grant of a constitution.55 It is not uncommon to prescribe in Colonial Constitutions that the legislature shall have such privileges as are enjoyed by the House of Commons at the time of grant. In the present case, the Irish Parliament may define its privileges, if it thinks fit, by legislation, though it is difficult to imagine any occasion for its doing so. The really important thing is that it cannot enlarge those privileges beyond the scope of the privileges of the Imperial Parliament. This is the one constitutional limitation in the Bill—apart from the “safeguards” as to legislation in regard to religion and marriage contained in Clause III.—and it is by no means unimportant. The powers of the Imperial Parliament—particularly as to the right [pg 039] of the two Houses to commit for contempt without cause shewn—are a sufficiently high standard.

      Irish Representation in the House of Commons56

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      Irish representation at Westminster has always been the riddle of the Home Rule problem. I have no space to examine here in detail the alternative solutions which were put forward in the earlier Home Rule Bills. But there is one general consideration which must always be borne in mind in the theoretical discussion of any solution. It is the very simple consideration that representation is what mathematicians would call a “function” of legislative power—the one is dependent upon the other. If the legislative powers over Ireland reserved to the Imperial Parliament are large, the representation of Ireland in that Parliament must not be small. It is at this point that Mr. Gladstone's original proposal for total exclusion broke down. He reserved to the Imperial Parliament considerable powers of legislation in regard to Ireland and yet proposed to exercise those powers in the absence of Irish representatives.

      It was no answer to cite colonial analogies. The Irish problem is not, as I have pointed out elsewhere, a colonial problem. No one at present proposes to give Ireland complete fiscal autonomy, for example. Nor is it strictly apposite to say that the Imperial Parliament legislates for the Colonies in the absence of colonial [pg 040] representatives. Such legislation is now almost exclusively confined to what I may call enabling legislation in matters in which the Colonies, owing to their status as Dependencies, are unable to legislate. In such matters as copyright, merchant shipping, marriage, extradition, the Imperial Parliament legislates for the Colonies largely because colonial laws cannot operate ex-territorially, and such Imperial legislation is usually effected by means of application clauses which enable the Colonies to adopt it or not as they please. But rarely if ever does the Imperial Parliament legislate for a self-governing colony as it has done and will continue to do in the case of such domestic Irish affairs as old-age pensions, land purchase, Customs and Excise, defence, naturalisation, to say nothing perhaps of industrial and commercial law. I have already indicated my opinion in favour of confining these subjects to the Imperial Parliament, but even were the opposite course taken there would still remain the fiscal question. We cannot continue to tax Ireland unless the Irish representatives are to remain at Westminster.

      The presence of the Irish members at Westminster is imperative if the supremacy of the Imperial Parliament is not to be illusory. Mr. Balfour57 contends that it will be as illusory as it has been in the case of the Colonies. But the Colonies are not represented in the Imperial Parliament, and to differentiate Ireland in this respect is to make all the difference between a legal formula and a political fact.

      There remains the question of inclusion. No one would question the propriety of reducing Irish representation to its true proportions on a population basis—in other words, from its present figure of 103 to one of 70. The real difficulty arises when we consider [pg 041] whether those members, whatever their numbers, are to attend at Westminster in the same capacity as the British members. We are to-day confronted by the same problem as that which vexed the Parliament of 1893: are Irish members to vote upon all occasions or only upon those occasions when exclusively Irish and exclusively Imperial affairs are under discussion? The original text of the 1893 Bill adopted the latter solution. At first it has much to commend it, for it avoids—or attempts to avoid—the anomaly of refusing self-government to Great Britain while granting it to Ireland: if Irish members are to govern themselves at Dublin without the interference of Englishmen, why, it has been pertinently asked, should not the converse hold good at Westminster? But two very grave difficulties stand in the way; one is the difficulty of distinguishing between Irish and non-Irish business at Westminster; the other is the difficulty, even when such distinction is made, of maintaining a single majority under such circumstances. Withdraw the Irish members on certain occasions and you might convert a Liberal majority at Westminster on certain days into a Unionist majority on other days. A Liberal Government might have responsibility without power in British matters and a Unionist Opposition power without responsibility. One Executive could not co-exist with two majorities. Such a state of affairs might have been conceivable some seventy or eighty years ago, when Ministries were not regarded as responsible for the passage of legislation into law. It would be conceivable in France, where Ministries come and go and the Deputies remain. But it would be fatal to the Cabinet system as we know it.

      Another objection to the “in-and-out” plan is the extreme difficulty of classifying the business of the [pg 042] House of Commons in such a way as to distinguish between what is “Irish” and what is not. If that business were purely legislative the difficulty would not be so great, but the House controls administration as well as legislation. Any question involving a vote of confidence in the Cabinet might legitimately be regarded as a matter in which the Irish members had a right to have a voice. The motion for the adjournment of the House, following on an unsatisfactory answer by a Minister, might be regarded as such. Who would decide these things? The Bill of 1893 provided for their determination by the House. In that event the Irish members would presumably have had a voice in determining on what subjects СКАЧАТЬ