One of the most important elements in the problem of Home Rule must be the relation between the spheres of legislation to be retained by the existing Parliament, and those to be allocated to the subordinate Irish Legislature. Such demarcation will be applied later to the other local Parliaments which may be created for England, Scotland and Wales. The creation of subordinate legislatures, together with the retention of a central Parliament, must necessarily lead to the study of federal systems already in existence in the Empire, and of the mutual relations of similar bodies within such federations. It is true that a certain influential school of political thought is rather disposed to compare the position of the future Irish Parliament to that of the Dominion Parliaments in their relations with the Parliament at Westminster. The effort, however, to draw an analogy between Ireland in her relations with Great Britain, and the relations existing between the three Dominions and the United Kingdom is most misleading. The difference between those dominions and Ireland is indeed far more striking than the similarity, whether they are compared either from the point of view of area, of present and future population, or of geographical position. The narrowness of the strip [pg 413] of sea that separates Ireland from Great Britain places it from a military and naval standpoint in a very different position to that of Canada, Australia, or South Africa. Whereas the great distance at which these Dominions are situated imposes upon them the necessity of creating their own defensive forces, a separate Irish Navy or Army would have no raison d'etre. Again, not only the distance but the different environment and climate of these Dominions, and, particularly in the cases of Canada and South Africa, their greater non-British population, naturally promote the development of a sense of national entity and therefore of a desire for a greater measure of national independence than is felt or demanded by Ireland, in spite of her strong national sentiment. Supposing for argument's sake, that the whole of the Canadian, Australian, and South African Dominions formed geographically with Great Britain one continuous territory such as the United States of America, it is clear that there would have been no call for granting the various Dominions the almost sovereign powers which they now enjoy. What would most probably arise in such a hypothetical case would be a single federal complex, comprising a central authority or parliament and a large number of state legislatures.
As a matter of fact the form of government of these various Dominions and their relations to the Mother Country are largely a geographical accident. It is impossible to conceive a system of “Home Rule all round” in which England, Scotland, Wales and Ireland would have the same positions and powers as Canada, Australia and South Africa, and would maintain the same relations towards each other as all three Dominions now occupy towards the United Kingdom. Nor could such an idea be entertained by any one [pg 414] framing a constitution, intended to be the commencement of the federalisation, first of the United Kingdom and afterwards in due time of the British Empire, when circumstances and the growth of public opinion render it possible to secure the representation of the Dominions in an expanded Imperial Parliament.
In a truly federal system such as those of Canada and Australia, the citizens who elect representatives direct to the Federal Parliament to deal with the broader issues and interests of the Commonwealth, are naturally fully represented. If the Irish Legislature is to be precluded from dealing with Imperial matters, it is obviously only just that the Irish people, as citizens of the Empire, should send a proportionate number of representatives to the Imperial Parliament to express their views on Imperial subjects, and, under a perfect federal system, the expression of their views would be confined to Imperial subjects. This would consequently necessitate the continued presence of a certain number of Irish members at Westminster. In view of the fact that the “in and out” system, which caused so much criticism of Mr. Gladstone's Bill, has been in force for over forty years in the Hungarian Parliament at Budapest, in which the Croatian representatives are only entitled to vote on matters affecting the whole Kingdom, while precluded from voting on those affecting Hungary alone, it is evident that the practical inconvenience cannot be anything like so great as has been imagined. But whatever inconvenience might result to the Government from the presence of Irish representatives in such circumstances, it certainly cannot be allowed to outweigh the injustice of leaving such a large section of the British electorate, as is the Irish people, unrepresented in a chamber which deals with matters that may very seriously affect their [pg 415] interests. Mr. Asquith's hint at the possibility of such a change in the Standing Orders of the House of Commons as will distribute legislative business between English and Scotch Standing Committees, suggests a method of combining the retention of the Irish members at Westminster, with their exclusion from participation in other than Imperial matters.
Of course in framing a new constitution to meet at once the legitimate national aspirations of the Irish people and the requirements of the Imperial power, we cannot pedantically follow any existing model or precedent, or drive any analogy too far. It is not intended, by drawing attention to the fact that the local rather than the Dominion Legislatures constitute the better models, in any way to impair the prestige of the future Irish Parliament, or to lessen the readiness to meet all reasonable demands of the Irish party and people, or to withhold powers necessary to make self-government a success. But it is essential to bear in mind that the primary condition of permanent success is a measure that will work with the least possible friction on both sides while satisfying legitimate Irish demands.
With these points in view, it is therefore proposed to examine shortly the constitutions of the three dominions already referred to, with the object of showing what are the powers reserved by them for the Federal Governments and what are those attributed to the different States comprised in the federations, in order to deduce from them some parallel applicable to the case of Ireland—of course, as already indicated, with such modifications as may be rendered necessary by special circumstances.
It will be well to begin with the Canadian Constitution as the oldest, dealing afterwards with the Constitutions [pg 416] of the Australian Commonwealth (1900) and of the South African Union (1909).
The British North America Act, 1867, expressly sets forth the classes of subjects which can be dealt with by the Federal Parliament “for greater certainty, but not so as to restrict the generality of the foregoing terms of this section,” that is to say, the liberty given to the Central Parliament “to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.” Thus, in Canada, the “residuary” or unspecified classes of subjects are reserved for the Central or Federal Parliament.
Section 92 provides that in each province the legislature may exclusively make laws on the following subjects:
The amendment of the Constitution of the Province, except as regards the office of Lieutenant-Governor;
Direct taxation within the province for provincial purposes;
The borrowing of money on the sole credit of the province;
The establishment and tenure of provincial offices, and the appointment and payment of provincial officers;
The management and sale of the public lands;
The establishment, maintenance and management of prisons, hospitals, asylums, charities, in and for the province;
Municipal institutions in the province;
Shop, saloon, tavern, auctioneer, and other licences, for provincial, local or municipal purposes.
Local works and undertakings, excepting:—
“(a) Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province.
“(b) Lines of steam ships between the province and any British or foreign country.
“(c) Such works as, although wholly situate within the province, are before or after their execution declared by the [pg 417] Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces.”
The incorporation of companies with provincial objects; marriage and property and civil rights in the province;
The administration of justice in the province, civil and criminal jurisdiction, together with the imposition of punishment by fine, penalty, or imprisonment, and generally all matters of a merely local or private nature.
Subsequent paragraphs provide that the provincial legislatures may exclusively make laws in relation to education, provide for uniformity of laws in certain provinces, and also deal with agriculture and immigration, with the proviso, however, that such laws shall have effect only so long and as far as they are not repugnant to any Act of the Canadian Parliament.
In the case of the Australian Commonwealth, it is the powers of the Central Parliament that are strictly defined and restricted, contrary to the course followed in the Canadian Constitution. As an indication of the powers left to the State Parliaments it may be well to specify the powers of the Central Parliament as set forth in the Constitution Act, Paragraphs 51 and 52:
Paragraph 107 provides that every power of the Parliament of a Colony shall, unless exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliament of the State, continue as before. Paragraph 109 stipulates, however, that when a State law is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Certain powers specifically granted to the State Parliaments are set forth in the following paragraphs, which are of sufficient interest to be cited textually:
“112. After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.
“113. All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.
“114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.
“115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.
“117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
“118. Full faith and credit shall be given, throughout the Commonwealth to the laws, the Public Acts and records, and the judicial proceedings of every State.
[pg 419]“120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.”
In South Africa where, owing to local circumstances, a purely federal system was held to be inappropriate, the powers granted to the subordinate provincial legislatures are much more restricted than in Australia and Canada. In the “South Africa Act, 1909,” Paragraph 59 simply provides that the (Central) “Parliament shall have full power to make laws for the peace, order, and good government of the union,” a formula similar to those used in the Canadian and Australian Constitutions as also in the Gladstonian Home Rule Bills. On the other hand, several paragraphs in Section 5 dealing with the provinces almost recall the centralising tendencies of France, such as for instance, the provision that the Governor-General in Council is to appoint the administrator, or Chief Executive Officer, of the province, in whose name all executive acts relating to provincial affairs shall be done—an official who presents a certain resemblance to the French Prefect.
The powers reserved to the Executive Committee of the Provincial Council, presided over by the Administrator, comprise:
Taxation within the province;
The borrowing of money on its sole credit;
Education, other than higher education;
Agriculture;
Hospitals, charitable, municipal and other local institutions;
Local works and undertakings within the province, other than railways and harbours and bridges connecting two provinces;
The imposition of fines, penalties, or imprisonment for enforcing provincial laws and generally all matters which, in the opinion of the Governor-General in Council, are of a merely local or private nature in the province.
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.
[pg 422]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:
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.”
If the Canadian example be followed the Imperial Parliament will retain powers of control of such a far reaching character over Irish legislation, as ought to dispel the fears of timid souls who are reluctant to entrust the Irish people with the task of working out their own destiny. The Canadian veto has not been a dead letter, but has exercised its restraining influence, both actively and passively, over the Provincial Legislatures, which have naturally been averse to allowing matters to come to a crisis necessitating its use. Further, to follow precedent, the interpretation of the powers to be granted by the new Irish Constitution should rest in the last resort in an appeal to the Privy Council.
With both these safeguards inserted in the Home Rule Bill much of the objection commonly felt against the creation of an Irish Parliament, an objection largely due to loose thinking, should disappear. It may be argued that both in Canada and Australia disputes do [pg 426] occasionally occur between the State Legislatures and the Central Parliaments as to their respective rights. That is one of the inevitable disadvantages of a federal regime, but, as a very distinguished Canadian statesman once said to the writer, the counterbalancing advantages of a de-centralized system far outweigh all such drawbacks. No student of current politics can be blind to the fundamental fact that the amalgamating of the Parliaments of Scotland, Ireland and England into one legislature, without at the same time unifying the legislation of those countries, has produced a state of congestion and overwork which cannot be permanently tolerated. In existing circumstances neither matters affecting the whole Empire nor local legislative needs can secure a sufficient expenditure either of energy or time to do them justice. By partially reversing the process of unification through a devolution of powers to local legislatures we should be following a precedent that has proved successful in other parts of the Empire and in foreign countries while at the same time putting our action into harmony with the true process of evolution.