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

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take it that under the coming Bill, the Lord-Lieutenant will have no power to initiate action otherwise than by suggestion to the Ministers concerned, who, may, or may not, act on the suggestion. Ordinarily, the Lord-Lieutenant in Council will accept the Minister's advice: but when he differs, and persists in differing, he would be bound in the last resort to refer the matter to the British Cabinet. Ex-concessis, all proceedings of the Irish Legislature or Government will be subject to the ultimate control of the Imperial Parliament.

      It will be necessary to provide for the representation of the Irish Government in the Imperial Parliament (a different thing from the representation of Ireland, which, if the solidarity of the United Kingdom is to be preserved, must be maintained, though, as I have already said, in a proportion “which should be sensibly [pg 079] less than the proportion existing between British Members and their electorates”). Some Member of the Imperial Parliament must answer for that Government; and the question arises whether the Member should be an Irish Member, designated by the Irish Government, as its representative, or a British Minister. In view of the fact that the Acts of the Irish Government will be subject to the control of the Imperial Parliament, and must, therefore, come regularly under the cognizance of the British Ministry, I suggest that the duty should be discharged by the British Home Secretary, pending the time when the establishment of the Federal System (Home Rule all round) will call for a more far-reaching Parliamentary adjustment.

      If the Land Commission (Group VII.) be excluded from Irish control, the number of Ministers in charge of departments would be seven, reducible to six by giving the portfolios of Groups VIII. and IX. to the same Minister, and to five if a separate Minister for Law and Justice be not at once appointed. With the Prime Minister, who might have charge of a department, or, as in Canada, might be President of the Privy Council, a Cabinet of seven or six as a minimum number would be composed; and this would seem to be an adequate number, at all events to begin with.

      The general result of the preceding suggestions should be that responsibility for every agency engaged in the administration of public business in Ireland will attach to a particular Minister, responsible to the Irish Parliament; that interest in Irish public business will be enormously stimulated in Ireland, and that a salutary public control will be effectively exercised. In particular, it may be expected that public money will be husbanded, and when expended, will be spent to the best advantage.

      [pg 080]

      It is not possible within the limits of a paper like this, to enumerate the provisions of law, peculiar to Ireland which the organic changes indicated in the preceding paragraphs may necessitate. An enquiry into that matter (as into the redundancy of Judicial, Executive and Secretariat establishments) will no doubt be undertaken by the Irish Government on a suitable opportunity. But it is probably correct to say that changes of substantive law will not be so much required as changes of practice, whereby the administration of the law may be brought more into harmony, than it is at present, with popular sentiment.

      It is always to be remembered that the scheme of Home Rule or Devolution which is advocated in this paper, does not contemplate the creation of a body of law for Ireland, different from that prevailing in Great Britain. In all matters of status, property and personal rights, the laws of the two countries will, I presume, remain identical; and no legislation of a restrictive, sectional, or sectarian character will be permissible in the one country, which is not permitted in the other. It is also to be presumed that the decrees of English Courts will be as enforceable by Irish Courts and Authorities as they are now, and vice versa; and that, in fact, the Judicial and Executive Organisations will be as available, under the new order of things, for carrying on His Majesty's Government in both countries, as they are now.

      If this be understood, most of the doubts and fears, and forebodings of evil to come from this extension of Irish Local Government, will, I predict, be soon dissipated.

      [pg 081]

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      “In this [the United States] and all other countries where there is a written constitution designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution.” So James Kent wrote in his Commentaries when the foundation of American independence was still within living memory, and an observer in search of constitutional autonomy under the British flag beyond the British Islands would have been driven to find his best example in Barbados. Kent continues: “The judicial department is the proper power in the government to determine whether a statute be or be not constitutional”; for the interpretation of the constitution which is the supreme law of the land is as much a judicial act as the interpretation of an ordinary written law. This is the view most natural to minds trained in English legal and political tradition. It was established in the United States by a decision of the Supreme Court at Washington early in the nineteenth century, and, though not previously free from controversy, has been received ever since; [pg 082] and it has been accepted by British publicists and lawyers as applicable to the decision of causes involving constitutional questions throughout the British Empire. As Chief Justice Marshall said:

      “If two laws conflict with each other, the courts must decide on the operation of each. If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the Legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”76

      The principle, so far as I know, has never been disputed by any English authority, but occasions for its application did not often arise before our own time. In strictness of law the King in Parliament has supreme legislative power, as with or without Parliament he has supreme executive power, in every part of his dominions. But in fact very large powers of government have been granted in various ways and at various times, and in the cases which now concern us are coupled with an effectual understanding, though of a political rather than legal nature, that they shall not be recalled. It may be observed that a grant of this kind is quite possible without representative institutions. Extensive powers of government and jurisdiction, including the highest “regalities” which could be granted to a subject, were conferred on individuals by several of the early colonial charters. William Penn's charter is perhaps the best known of these, and is a striking example. This, however, is remote from the present purpose, as is the still wider subject of the political and semi-political authorities granted by charter to the East India Company and other trading companies. We have now to attend only to the creation of autonomous powers by statutes of the Imperial Parliament.

      The accustomed form in such creations is to confer [pg 083] in express words power to make laws for the peace, order (sometimes “welfare”), and good government of the territory in question. Within the limits prescribed in its constitution, legislative power so created is full and perfect. The Judicial Committee of the Privy Council has repeatedly laid down—not for one Dominion only, but alike for British India, Ontario and New South Wales—that it must not be likened to the merely vicarious authority of a delegate or agent, and is not to be restrained by the rules applicable to agency. So far as it extends, it is a plenary power analogous to that of the Imperial Parliament itself and not to a ministerial authority which cannot be delegated; and this applies to the federated units in a federal system no less than to central or unitary legislature.77 It is, therefore, not quite accurate, though useful in the first introduction of novices to the subject, to liken the enactments of any such local legislature to the by-laws made under statutory authority by a railway company or a town council. Such bodies can make the regulations they are empowered to make, but cannot delegate the framing of any regulation, or the decision of questions arising under it, to the traffic manager or the town clerk. But a local legislature, within the limits of subject-matter originally fixed, can do all that its creator the Parliament of the United Kingdom could have done. The working safeguard against legislation which, by improvidence or oversight, would conflict with Imperial requirements, is the refusal of royal assent by the local Governor on the advice of his Ministers, or, in the last resort,

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