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The New Irish Constitution: An Exposition and Some Arguments. Various
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isbn 4064066101381
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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 law43 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 naturalization45 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.
Of course, one way of dealing with the question would have been to grant Ireland only particular and enumerated powers of legislation, as has been done in the case of the provincial legislatures of Canada. There is much to be said for this. It seems the line of least resistance; it is always easier to add to powers which appear deficient than to withdraw powers which have proved excessive. But it undoubtedly invites litigation and it is very difficult, if not impossible, to define what are exclusively Irish matters without in the last resort using some such general term (as is used in the British North America Act) as “generally all matters of a merely local nature.”
The great economy shown by the draughtsman in the number of the exceptions from the powers of the Irish legislature, as well as in the number of the restrictions upon the exercise of those powers, means, as we have already indicated, that the whole weight of control [pg 031] over the Irish legislature is thrown upon the executive and legislative veto of the Imperial Government. Is it sufficient to rely upon the paramount power of the Imperial Parliament to override by statute Irish legislation which may be inequitable or inexpedient, and upon the exercise of the veto of the Imperial Government? These checks are the exercise of a force majeure, which is often invidious and always difficult. Above all they are political. The exercise of them depends on the party in power in Great Britain, and as such it may excite resentment among the Irish people as an invasion of the autonomy granted to them. On the other hand, exceptions and restrictions are a legal, not a political, check—they operate through the agency of the courts of law without the intervention of political considerations. Moreover—and this perhaps is the most important consideration—they rest upon the consent of the Irish people expressed in the terms of the Home Rule Act to which their representatives are a party. For an Irish Parliament to defy them would be to defy the very Act which was the charter of its existence. But they invite litigation. It all resolves itself into a question of hitting the mean between the dangers of litigation on the one hand and of political pressure on the other. Probably, however, the occasions of conflict will be few and unimportant, and the temper of the Irish Parliament may be much more conservative than its critics imagine.
The Executive
The new Bill is remarkable for the explicitness with which it invests Ireland with control over the Executive. For the first time in the written constitutions of the Empire we have a statutory Executive, and not only [pg 032] is it a statutory Executive, but it is to be a Parliamentary Executive defined by statute. In the earlier Bills nothing was more remarkable than the brevity and allusiveness with which this question of the Government of Ireland was treated. “The Executive power in Ireland shall continue vested in Her Majesty the Queen” was the language employed in the Bill of 1893. Under that Bill the Government of Ireland would have continued, even after its passage into law, to be in the hands of the English Cabinet and it would have rested with that Cabinet to determine how large or how small a part of the prerogatives of the Crown should be delegated to the Lord-Lieutenant. Paradoxical as it may seem, it would have been quite possible for a Unionist Government, coming into power immediately after the Home Rule Bill had passed into law and an Irish Parliament had met at Dublin, to retain in their own hands the Executive authority in Ireland without any breach of statutory obligations.