§ Amendments reported (according to Order).
§ Clause 1:
§ ESTABLISHMENT OF PARLIAMENTS FOR SOUTHERN IRELAND AND NORTHERN IRELAND AND A COUNCIL OF IRELAND.
§ 1.—(1) On and after the appointed day there shall be established for Southern Ireland a Parliament to be called the Parliament of Southern Ireland consisting of His Majesty, the Senate of Southern Ireland, and the House of Commons of Southern Ireland, and there shall be established for Northern Ireland a Parliament to be called the Parliament of Northern Ireland consisting of His Majesty, the Senate of Northern Ireland, and the House of Commons of Northern Ireland.
§ (2) For the purposes of this Act Northern Ireland shall consist of the parliamentary counties of Antrim, Armagh, Down, Fermanagh, Londonderry and Tyrone, and the parliamentary boroughs of Belfast and Londonderry, and Southern Ireland shall consist of so much of Ireland as is not comprised within the said parliamentary counties and boroughs.
§ LORD SHANDON moved, in the heading to Clause 1, to leave out "a Council of Ireland" and insert "an Irish Senate." The noble and learned Lord said: I propose to take a course with regard to this Amendment which I know, having consulted with other members of your Lordships' House, will save you a great. deal of time, because although there appears to be a formidable number of Amendments down in my name they will practically be ruled by your Lordships' view upon this first Amendment.
§ Your Lordships will remember that on Clause 2 of the Bill in Committee an Amendment was passed providing that the Council of Ireland, which was contained as a separate legislative body in the original Bill, should have substituted for it a joint body, consisting of the Senates of Southern Ireland and of Northern Ireland, which should sit together and when so sitting should constitute the Trish Senate. The 29 effect of that was to get rid of a body proposed to be created by the Bill, called an Irish Council. That Irish Council was to be constituted by twenty representatives elected by the House of Commons of Northern Ireland, and twenty elected by the South, and they were to have power to deal with private Bill legislation, and also wit matters connected with railways and such hither matters as might, by concurrent votes of the two Parliaments, be given to their jurisdiction.
§ Your Lordships will remember that two Senates, one for Northern Ireland and one for Southern Ireland, in addition to the Houses of Commons for those two districts, were adopted, and accordingly, assuming that these proposals will remain, we now have in the Bill as it stands a House of Commons for Northern Ireland and a Senate for Northern Ireland and a House of Commons and Senate for Southern Ireland. The effect of my proposal, as it stands in the Bill at present, is to substitute for the Council a body to be called the Senate, to be made up of members from the two Senates in equal numbers. I need not trouble your Lordships now with the manner in which the equal numbers would be brought about, but in substance it canto to this, that although the Northern Senate and the Southern Senate consisted of unequal numbers, there being more in the Southern than in the Northern, there should be the same number elected by the Southern, and so in that way you got equality of the two parts of Ireland. To same extent it was only a matter of name, calling the new thing the Senate of Ireland instead of the Council of Ireland.
§ I would ask leave to explain that the proposal which I make and which I propose to supplement by another Amendment later on would be to make a considerable change as I and several of us conceive for the better—with regard to the composition of this body, whether it be called a Council or a Senate. Several times during the debate I ventured to say that my proposals were intended to be and were democratic, and were intended to be and were an improvement on the proposals in the Bill. The Council constituted by the Bill was the beginning and end of private Bill legislation. There was no provision for any reference either to the Parliament of Northern Ireland or to the Parliament of Southern Ireland to correct the decisions of the Senate, to alter them, 30 or to veto them. If they conceive that what is technically a private Bill ought to pass it passes, and there it ends.
§ We all know that there are private Bills and private Bills. There are private Bills dealing with matters of local and restrictive concern. There are also private Bills which involve the expenditure of large sums of money, incursions into the rights of private property by the compulsory taking of land, and other matters, which, although coming under the head of private Bill legislation, are really and truly of far greater importance and more far-reaching than many of the public Acts which are passed by both Houses of Parliament. I will give you a concrete illustration, and one in which I happen to be concerned. You might have a question of the extension of the boundaries of Belfast, Londonderry, Newry, or Cork. The extension of boundaries, although conferred by a private would have the effect of compulsorily drawing within the area of jurisdiction of the local body very large territories, and might affect private rights by means of taxation and the powers which urban districts possess and rural districts do not.
§ Under our existing procedure although there rarely is an interference with the decisions of a Committee of the House in which the Bill is introduced by the other House, that interference has actually taken place in some instances; and in one in which I was personally concerned. It was a case for the extension of the boundaries of the City of Dublin. The boundaries proposed extended to a large area, and the view taken by the Lords was diametrically opposite to the view taken by the Commons. In the end there was a compromise, and the area was restricted to less than the original proposal and comprised only certain consenting townships. I mention that as a typical illustration of a private Bill of such an important character that Parliamentary control, as distinct from a mere Council or Commission, is essential in the public interest.
§ It is said that the Scottish procedure is in some respects analogous to the procedure of the Senate. My view is that the analogy does not exist. In the case of Scottish Bills there is a Commission. That Commission undoubtedly has power which might be analogous to that of the Council as proposed in this Bill, but there is this very valuable provision which 31 enables a check to be placed on the action of the Commissioners, that if the Lord Chairman of Committees of this House and the Chairman of Committees of the House of Commons report that a particular proposal is one of great importance then it has to come before a Joint Committee of both Houses. There you have in the Scottish procedure a protection which is absent from the proposals in this Bill. I wish to substitute some check which would be of a practical nature in that regard.
§ I might quite easily forecast a case in which the whole of the members of Northern Ireland, or Southern Ireland, plus a small number of members of the other constituent parts of the Assembly, Council or Senate, might pass a private Bill involving, serious interference with private property which, if referred to both Northern and Southern Ireland, might be rejected by the two Houses. Even in that case it would come into operation. It is said that that could not happen because this body will consist of forty or forty-one members and they will act through Committees. No doubt they will act through Committees, but acting through Committees will not alter the essential fact that they are a body much smaller in numbers than even the single House of Commons of Northern Ireland or Southern Ireland, and may arrive at decisions which, if you could apply a proper test, would be rejected by both Houses of Commons.
The proposal that I have put down as supplementary to the Amendment which your Lordships carried, and which is also down in the name of Lord Desart, provides that private Bills—
shall be originated in the Irish Senate, and the provisions contained in the Fourth Schedule to this Act shall have effect with respect to the procedure for the introduction and consideration of such Bills in the Irish Senate, and such a Bill, if passed by the Irish Senate, shall be submitted to the Houses of Commons of Southern Ireland and Northern Ireland, and, if passed by both the Houses of Commons of Southern Ireland and Northern Ireland, on receiving His Majesty's assent as provided by this Act, shall have effect as identical Acts passed by the Parliaments of Southern Ireland and Northern Ireland.
Once your Lordships have admitted the election of Senates by Northern and Southern Ireland the natural procedure was the control which the elected bodies in the North and South should have over these private Bills of enormous financial importance interfering with private property.
§ There is also down in the name of Lord Oranmore and Browne a series of Amendments the effect of which is to delete the use of the word "Senate" and substitute "Council." That is a matter of mere words. But in addition there is down in the noble Lord's name a further proposal which will have the effect of setting up the Council again, of constituting the Council by members of the Senate plus members of the House of Commons. I have no objection to that. The composition of the Council might be improved, but the proposal, while it destroys mine which your Lordships have in part sanctioned, leaves the Council just as it was with regard to these powers and with the same objections which seemed to exist to the Council in the original Bill. It is a point to which I attach some importance. Although the substituted body would have no more power than the Council I believe that the use of the word "Senate" would have a very ameliorating effect in connection with the smooth working of the Bill should it come into operation in Southern Ireland. I am free to admit that if it is to have no more power than the Council then it is a matter only of form.
§ What I have explained is however a point of substance. Once you appoint this Council with the powers given in the Bill, or with the substituted powers contained in other Amendments, it still leaves the difficulty that we have not obtained the protection of the Scottish system. If your Lordships are of opinion that my proposals are to be struck out, there goes out of necessity the proposal which stands in the names of Lord Desart and myself on page 6 (to insert a proviso in subsection (2)), because it is based altogether on the previous Amendment passed by your Lordships, which sets up a Senate and deals with it as such. Accordingly, if your Lordships are of opinion that the Amendment which stands in my name on page 1, line 6—the one I ant now moving—should not pass, it would be perfectly idle to waste your Lordships' valuable time by raising any discussion or taking any Division upon subsequent Amendments.
§ Therefore I move this Amendment which raises in substance, though not in form, all the Amendments I have put down, and also raises in substance, though not in form, the question of the status of the particular Assembly, its functions and the powers of control of Parliament over it. 33 I do not conceal from myself that the Amendments are absolutely destructive, and intended to be destructive, of the proposal in the Bill so far as the word goes, though possibly not on the question of principle, because there would be an opportunity of dealing with it on the Third Reading. But, undoubtedly, if your Lordships were of opinion that my proposal ought not to be entertained and that, so far as it has been carried already into effect, it should be deleted from the Bill, this particular Amendment raises the whole question. I too quite conscious that the support which naturally the noble Lord has may render it difficult for me to succeed in retaining the proposal already embodied in the Bill, but at the same time I put it forward both on sentimental and other grounds. Sentiment plays a large part in Ireland in the operation of many things, and if the proposal does not do any harm to the North, as it does not, it is a mere matter of nomenclature, and I cannot conceive why it should be rejected.
We are all agreed that what we desire is to bring about ultimate union, and that ultimate union will largely be effected by sentiment. The names which you give things show that. The. Commons introduced an Amendment which is a mere mutter of sentiment. That is the power of the Southern Parliament to purchase the Bank of Ireland. That was introduced after discussion in another place, and it can only be considered on the basis of sentiment. It was thought, too, that sentiment would make it look a better thing for Southern Ireland that they should meet again in the Parliament in Dublin. That will not hurt the North. And sentiment also affects the question of the light in which you regard what you call in the Bill the Council, but which up to the present it has seemed might be—I do not say should be—called the Senate. I attach a great deal of importance to the merely sentimental view, and also to the substantial view which is One of procedure.
Page 1, line 6, leave out ("a council of Ireland") and insert ("an Irish Senate").—(Lord Shandon.)
LORD ORANMORE AND BROWNE
As the proposal which is on the Paper in my name to constitute a Council of Ireland is really an alternative to what has been suggested by the noble and learned Lord, I should like to ask the noble and learned I should like to ask the noble and learned 34 Lord on the Woolsack whether it would not be for the convenience of the House, if it is in order, that, I should discuss it now and thus save time.
§ THE LORD CHANCELLOR (LORD BIRKENHEAD)
It appears to me that the Amendment in the name of the noble Lord is a strict alternative to the Amendment which has been moved, and inasmuch as there is no other alternative I should think it plain that the convenience of the debate would recommend the course indicated by the noble Lord. In these circumstances one anticipates that if the noble Lord's proposals were discussed on this Amendment it would not be necessary to re-discuss them.
LORD ORANMORE AND BROWNE
My Lords, in the course of the debates in the committee stage of the Bill the Lord Chancellor asked me whether I and the noble and learned Lord, Lord Shandon, Were running in couples. I was not able at that time to answer the question, but I should now like to take the opportunity of informing him that this was not the case. We were running separately, but we were in pursuit of the same quarry. We were both striving to an end a Bill which in many particulars did not recommend itself to either of us, and the special form of the Amendment which I proposed to insert was some protection for minorities, both in the South and North of Ireland, by giving them Second Chambers for both parts of the country. So far as Southern Ireland was concerned, I think I was able, more or less, to effect my purpose. The noble and learned Lord on the Woolsack suggested that I should have succeeded far better had I proposed as an alternative the re-establishment of the old Irish House of Lords. That would have appealed Juliet more to the people of Ireland. In that I am inclined very much to agree with him, and I wonder if he will bear that in mind with a view to seeing whether the Irish House of Lords could not meet Dail Eireann in Dublin if the Prime Minister arranges for them to assemble there.
I suggested the more composite Assembly in the Bill because it is an Assembly which recommended itself to the Irish Convention. I dare say it was put in largely because they succeeded by that composition in obtaining the provisional consent and approval of Ulster to the scheme, and it certainly has the recommendation that it 35 is much more representative of different interests in the community than the Irish House of Lords would be, and thus is a much stronger Chamber than the other could possibly have been. With regard to Southern Ireland, I was not so successful. I should like to have seen in the Senate for Northern Ireland representation both of the Roman Catholic Church and the Presbyterian Church, and I may say that I have had very strong representations on the part of the Presbyterian Church in Ireland claiming that it ought to have representatives there. But we heard so much about the extremely democratic outlook of the community in Ulster that I thought it better, in framing the Upper Chamber for that part of Ireland, to leave them as much freedom as possible in the choice of the form it would take.
The noble and learned Lord (Lord Shandon) on that drafted a scheme for a joint sitting of the two Senates, conferring on them the powers which originally in the Bill were conferred on the Council of Ireland. I think there was a good deal to be said in favour of the scheme of the noble and learned Lord. At any rate, he knew that his joint Senate would be composed of men of moderate opinion, whereas the Government proposed to select 20 Orangemen and 20 Sinn Feiners and to shut them up in it room With an independent Chairman in the hope that they would eventually form a Constitution for the whole of Ireland. I rather think that after one meeting of that Assembly there would be nobody left to take part in a second performance, except perhaps the Chairman if he had been lucky enough to find refuge in the chimney or somewhere else. There is no doubt that many of the functions of the Council could have been very well performed by that Senate. I am under the impression that even without the Amendment now proposed to be inserted by the noble and learned Lord they would have been able extremely well to discharge the duty of looking after private Bill legislation. We know how well that duty is performed by this House, which is not a representative Assembly, and in this House it is not performed by the most prominent members of the House. It is conducted not by noble Lords on the Front Benches but by noble Lords on both back-benches and sometimes on the cross-benches, and yet we never hear the most rabid radical complain of the decisions which are arrived at.
36 With regard to what the noble and learned Lord said as to the composition of those Private Bill Committees in the Senate, I think that both in my scheme and in his there would probably have been great care taken that the various parties in the House should be fairly represented on the Committees; but there seemed to me—and the Lord Chancellor put it very forcibly to us—the one great drawback, and that was with regard to the duties which they would have to perform as a constituent body. When they went out to explore every avenue which might lead to the Union of Ireland they might find that they had not the same authority as a body which was in close touch with the constituencies. Therefore it seemed to me to be desirable that we should find some means by which the Upper as well as the Lower House could be represented on that Assembly, and I have put down an Amendment by which I propose that thirteen members of the House of Commons of Southern Ireland and thirteen Members of the House of Commons of Northern Ireland, together with seven members of the Senate of each part of Ireland, should form the Council. I do not know if that is an absolutely ideal arrangement, but I think that the seven members of the Senate from each of those parts of Ireland, whom we presume would be moderate men, would somewhat correct the exuberance of the more excited spirits—I was going to say of the wild men—who might form the members of the two Houses of Commons. I suggest here, and I think it is a very important provision, that they should be elected by proportional representation. Unless this is done it would be perfectly impossible for the Northern minority to have any representation on the Senate, but of course the same does not apply to the Southern minority, because our members on the Southern Parliament, if it meets, cannot possibly be more than five or six.
I think that the name "Council" is certainly a better one than the name "Senate," which seems to infer that it is a Second Chamber, whereas this is not so much a Second Chamber as a body to carry out certain necessary legislation with regard to private Bills, more or less to perform the duties of the Transport Minister in this country, and at the same time to try and find out-, by every means in its power, if it is possible to unite the two parts of Ireland. If it were intended that 37 this should be in any shape or form a Second Chamber I should be opposed to it, because I think that any Second Chamber which derives its power mainly, if not altogether, from the Lower Chamber must tend to be in subjection to that Lower Chamber and not to have that independence which is so desirable. I have tried, as briefly as possible, to put my scheme before your Lordship. I am sorry if it comes in conflict with the views of the noble and learned Lord, but it is for your Lordships to decide which of the two scheme; you think is the better one. In view of what is put forward by the Government, and in view of their wishes as expressed in the course of the debate, I have attempted to make this suggestion of a compromise, and I therefore take this opportunity of explaining the alternative scheme which I should like at the proper tune to put before your Lordships.
§ THE LORD CHANCELLOR
It may be inconvenient that I should make my observations at this stage, in the absence from the Amendment Paper of Amendments in my name and moved on behalf of the Government, in relation to the very important topic which is now under debate, and to other equally important subjects which await discussion. I have given the best attention that I could to this question, and it appeared to me that each of these matters had so recently been the subject of elaborate debate and later of decision at the hands of the House that even if I were likely to be successful, as to which I entertain some doubt, it would not be very respectful to ask that decisions reached after so much discussion should be altered or even modified, when no circumstances have intervened which it had not been in nay power to urge when the decision was reached. In those circumstances I have adopted the course of not attempting to ask your Lordships to modify the conclusion then arrived at. That circumstance has sonic advantages, but it has, of course, some obvious disadvantages. We are, for instance, at this moment discussing a proposal made by the noble and learned Lord to which there is only one rival on the Paper. Neither the proposal of the noble and learned Lord nor the proposal of Lord Oranmore and Browne represents the views which the Government originally recommended to the House, and which they still hold; but we must reach some decision as between the only 38 alternatives which, for reasons I have stated, are before us.
I was of opinion, when the noble and learned Lord introduced his original proposal, that, if f may say so with all respect to him, it was almost the worst proposal I had ever heard of constitutionally. It seemed to me to have every defect which those who are considered authorities on this subject have collected from the guidance and warring of those who set themselves to construct or amend Constitutions. In the first place, I am quite unable to agree with his view that there is any practical or obvious advantage in calling that a Senate which is not a Senate, and which indeed is no more a Senate than a House of Commons; which discharges no function which any Senate in the whole history of the world has ever discharged, and which performs functions which no Senate is ever in the least likely to discharge. It is not a Senate: it is a nominated authority called into being under circumstances which the later Amendments make plain.
When the noble and learned Lord says that on grounds of sentiment he recommends this proposal to the House, the only possible reply is that we are to deal with true sentiment and not with false sentiment. There can be nothing but false sentiment which seems to fling a senatorial atmosphere of importance upon a body which is a delegated body discharging strictly delegated and defined functions. The objections to the proposal made by the noble and learned Lord are far more fundamental than those which are concerned with questions of nomenclature. The noble and learned Lord's proposal and time subsequent proposals have as their object to set up this strange body which owes its origin and its parentage to non-representative institutions. It is at the same time to discharge the functions which in the original scheme of the Bill were assigned to the Council—that is to say it is in the last resort, as we all hope, to become the parent of those proposals which will ultimately lead, if our expectations tart proved to be well founded, to Irish unity. One would have thought that if one predicated the qualities that must be possessed by a body which was to discharge efficiently its constitutional functions, at least it must have its own roots in representative soil. You must not, in other words, elect artificially from a body which is itself the product not of 39 one artificiality but of five distinguishable artificialities, and after taking this body so vitiated by its origin for this particular purpose then entrust to it the function of defining what is to be the future constitution of this new united Ireland, and in doing so give birth to the representative institutions which are its inseparable accompaniment. Such a proposal was never made before, of a non-representative body becoming the parent of a representative body. A auto might as well purchase a mule with the object of founding a stud. In history no such attempt has ever been made. It may turn out that even at the outset we are told it is expected it will prove to be inevitable—some spending function, modest no doubt in its inception but with a tendency to grow, will be discharged by the Council, and if and when by identical acts the importance of the Council is increased its powers over expenditure will be correspondingly increased. The objections on these broad grounds to the Amendment proposed by the noble and learned Lord are, in my judgment, so overwhelming that I do not think it, necessary—the noble and learned Lord will acquit me of discourtesy—to deal at greater length with the arguments by which he supported his proposal.
I come now, as I gather that is your Lordships' wish for the convenience of debate. to make a brief observation upon the alternative proposal which Lord Oranmore and Browne has been so good at this stage as to explain to the House. There are proposals contained in this long series of Amendments and collateral Amendments which I should find it difficult possibly to accept, and which I should invite your Lordships to dissent from it it were not for the fact that the proposals of the noble Lord are more acceptable to me than the proposals of Lord shandon, and for the reason which I have already stated—it is the only alternative upon which your Lordships are able to pronounce.
The noble Lord, Lord Oranmore and Browne, has restored, as he has explained, the Council in much the same form as it was in the original Bill, except that he has proposed that a certain proportion of its members should be elected by the Senate. As to that proposal I have nothing more to say than this, nor would your Lordships expect that I should say more. This is a proposal which might very fairly be 40 debated. It contains in itself, again accepting the existence of a Second Chamber, nothing which is extravagant or which may not properly be the subject of consideration, and such consideration will no doubt be given to it in the interval before the matter is discussed in the House of Commons. More than that I do not think it necessary to say at this stage.
The only issue now before us is whether or not the words "Irish Senate" should be substituted for the expression "Council of Ireland." I myself in giving a vote, if the matter is carried so far upon this issue, shall have no hesitation in voting against the Amendment of the noble and learned Lord with the object of giving a very guarded assent, the limitations of which I have made clear, to the proposal which stands in the name of Lord Oranmore and Browne. In so voting I shall be voting not upon the mere question of the name but on the proper grounds explained by the noble and learned lord.
§ THE MARQUESS OF SALISBURY
I presume that the noble and learned Lord, after the expression of opinion front the noble and learned Lord upon the Woolsack. would hardly ask your Lordships to come to a decision upon his Amendment. I have no right, perhaps, to say that to him. I speak only for myself. There is a good deal that has fallen from the lips of the noble and learned Lord with which I agree, but I should prefer the Amendment of the noble Lord rather than that of the noble and learned Lord.
I cannot withdraw my Amendment for the reason that I think it, is a preferable one. I realise I shall not, have the support possibly that I had originally, but I respectfully ask your Lordships' decision upon it, because it rules the whole series of Amendments and rules the question of principle.
§ On Question, Amendment negatived.
§ Clause 2:
§ Constitution of Irish Senate.
§ 2. With a view to the eventual establishment of a Parliament for the whole of Ireland, and to bringing about harmonious action between the parliaments and governments of Southern Ireland, and Northern Ireland, and to the promotion of mutual intercourse and uniformity in relating to matters affecting the whole of Ireland, and to providing for the administration of services which the two parliaments mutually agree should be administered uniformly throughout the whole of 41 Ireland, or Which by virtue of this Act are to be so administered, the Senate of Southern Ireland and the Senate of Northern Ireland shall sit together (except for the consideration of Bills Passed by the House of Commons of Southern Ireland or Northern Ireland as Provided by this Act) and When so Sitting together shall constitute the Irish Senate. The Lord Chancellor of Ireland shall be the President of the Irish Senate and the Irish Senate shall have the power provided in this Act.
§ LORD ORANMORE AND BROWNE moved, in Clause 2, to leave out all words from "administered" to the end of the clause and insert other words. The noble Lord said: I think it is not necessary for me to make another speech on this subject. I do not know whether I intimated, as I intended to do privately, to the Lord Chancellor that there are two absolutely verbal amendments in the clause its it stands in my name on the Paper. The alteration that I desire to make in my Amendment is that the words "elected" and "re-elect" should take the place of "appointed" and "re-appointed." I apologise to the noble and learned Lord and to the House, because I know it is extremely inconvenient to amend an Amendment on the Paper. It has only been pointed out to me within the last five minutes that if I did not put in these words now I should have to move an Amendment on Third Reading.
Page 2, line 3, leave out from ("administered") to end of the clause and insert;
("there shall be constituted, as soon as may be after the appointed day, a Council to be called the Council of Ireland.
§ "(2) Subject as hereinafter provided the Council of Ireland shall consist of the Lord Chancellor or Ireland who shall be President and forty other persons, of whom seven shall be members of the Senate of Southern Ireland, thirteen shall be members of the House of Commons of Southern Ireland, seven shall be members of the Senate of Northern Ireland, and thirteen shall be members of the House of Commons of Northern Ireland.
§ "The members of the Council of Ireland shall be elected in each case by the members of that House of the Parliament of Southern Ireland or Northern Ireland of which they are members, and at any contested election for two or more members of the Council of Ireland the election shall be according to the principle of proportional representation, each elector having one transferable vote as defined by the Representation of the People Act, 1918, and His Majesty in Connell shall have the same power of making regulations in respect thereto as he has under subsection (3) of section twenty of that Act ant that subsection shall apply accordingly.
§ "A member of the Council shall, on ceasing to be a member of that House of the Parliament of Southern Ireland or Northern Ireland by which he was appointed a member Of the Council, cease to be a member of the Council:
§ "Provided that on the dissolution of the Parliament of Southern Ireland or Northern Ireland the Persons who are members of the Council elected by either House of that Parliament shall continue to hold office as members of the Council until the date of the first meeting of the new Parliament and shall then retire unless re-elected.
§ "The President of the Council shall preside at each meeting of the Council at which he is present and shall be entitled to vote in case of an equality of votes, but not otherwise.
§ "The first meeting of the Council shall be held at such time and place as may be appointed by the Lord Lieutenant.
§ The Council may act notwithstanding a vacancy in their number, and the quorum of the Council shall be fifteen; subject as aforesaid the Council may regulate their own procedure, including the delegation of powers to committees.
§ "(3) The constitution of the Council of Ireland may from time to time be varied by identical Arts passed by the Parliament of Southern Ireland and the Parliament of Northern Ireland, and the Acts may provide for all or any of the members of the Council of Ireland being elected by parliamantary a electors, and determine the constituencies by which the several elective members are to be returned and the number of the members to be returned by the several constituencies and the method of election.")—(Lord Oranmore and Broune.)
§ THE LORD CHANCELLOR
There is no need for the noble Lord to apologise. It frequently occurs that this has to be done.
§ On Question, Amendment agreed to.
§ Manuscript Amendments agreed to.
§ THE EARL OF DROGHEDA had on the Paper an Amendment in the last sentence of the Clause, to leave out "the Lord Chancellor of Ireland" and insert "a person appointed by His Majesty." The noble Earl said: I only desire to say, in regard to this, that in view of the opinions held by my noble friends from Ireland and after what was said by the noble and learned Lord on the Woolsack during the last day of the Committee stage on the Bill as to the position of the Lord Chancellor of Ireland I will, with the permission of the House, not move my Amendment.
§ Clause 3:
§ Power to establish a Parliament for the Whole of 1rdand.
§ 3.—(1) The Parliaments of Southern Ireland and Northern Ireland may, by identical Acts 43 agreed to by an absolute majority of members of each Parliament at the third reading (hereinafter referred to as constituent Acts), establish a Parliament for the whole of Ireland consisting of His Majesty and one or two Houses (which shall be called and known as the Parliament of Ireland), and may determine the number of members thereof and the manner in members are to be appointed or elected, and the constituencies for which the several constituencies, and the method of appointment or election, and in the event of provision being made for two houses of one another; and the date at which the parliament of Ireland is established is hereinafter referred to as the date of Irish Union:
§ Provided that the Bill for a constituent Act shall not be introduced except upon a resolution passed at a precious meeting of the House in which the Bill is to be introduced.
§ THE LORD CHANCELLOR moved, in subsection (1), before "each Parliament," to insert "the House of Commons of." The noble and learned Lord said: This is a safeguard against hasty legislation. As the Bill stands at present there are two Chambers in this Parliament, and the Amendment is necessary in order to make it clear that the absolute majority required on the Third Reading is that of the House of Commons only.
Page 2, line 15, after the second("of") insert ("the House of Commons of").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Page 2, line 16, after ("establish") insert ("in lieu of the Council of Ireland")
§ Page 2, line 18, leave out ("one or")
§ Page 2, line 24, leave out from ("in the event of") to ("Parliament") in line 25
§ Page 2, line 23, leave out ("Irish Senate as Constitued by this Act") and insert ("Council of Ireland").—(Lord Oranmore and B[...]e)
§ On Question. Amendments agreed to.
§ Clause 4:
§ THE LORD CHANCELLOR moved, in subsection (1) (12), after "notes," to insert "except so far as negotiable instruments may be affected by the exercise of the powers of taxation given to the said Parliaments." The noble and learned Lord said: In deference to the House of Commons itself, we included this amongst the matters excepted, but it has been pointed out that the inclusion of it might prevent the Irish 44 Parliament making any alteration in the stamp duty so far as stamps on bills of exchange are concerned. I have satisfied myself that this is an Amendment which ought to be put in.
Page 5, line 13, after ("notes") insert ("except so far as negotiable instruments may be affected by the exercise of the powers of taxation given to the said Parliaments").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 5:
§ Prohibition of Bones interfering with religious equality, etc.
§ 5.—(1) In the exercise of their power to make laws under this Act neither the Parliament of Southern Ireland nor the Parliament of Northern Ireland shall make a law so as either directly or indirectly to establish OF endow any religion, or prohibit or restrict the free exercise thereof, or give a preference, privilege, or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status, or make any religious belief or religious ceremony a condition of the validity of any marriage, or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at that school, or alter the constitution of any religious body except where the alteration is approved on behalf of the religious body by the governing body thereof, or divert from any religious denomination the fabric of cathedral churches, or, except for the purpose of roads, railways, lighting, water, or drainage works, or other works of public utility upon payment of compensation, any of other property.
§ Any law made in contravention of the restrictions imposed by this subsection shall. so far as it contravenes those restrictions, be void.
§ (2) Any existing enactment by which any penalty. disadvantage, or disability is imposed on account of religions belief or on a member of any religious order as such shall, as from the appointed day, cease to have effect in Ireland.
§ THE EARL OF WICKLOW moved, at the end of the first paragraph of subsection (1), after "property," to insert "or take any private property for public use without just compensation." The noble Earl said: The object of this Amendment is so obvious that it requires very few words from me to commend it to your Lordships. It has for its object to prevent the Trish Government taking property without paying adequate compensation for it. I am not one of those who think for a Moment that the Irish Government would be likely to do anything of the kind, but it must, I think, be remembered that in parts of Ireland there are a variety of influences that are fortunately altogether foreign to this country, influences actuated very often by 45 bitterness, and it may happen that pressure would be brought to bear on the Parliament of Ireland which would induce it to legalise the acquisition under certain conditions of property for the advantage of certain people without paying adequate compensation. As I say, I do not believe for one moment that they are at all likely to do it, but the less likelihood there is of their doing it the less objection I should think there can be to inserting in the Bill the safeguard for which we ask.
Page 5, line 37, after ("property") insert ("or take any private property for public use without just compensation").—(The Lord of Wicklou.)
THE EARL OF DESART
This question arose somewhat informally in the course of the previous debate, and some observations were made about it by noble Lords and myself. I remember that I ventured to say on that occasion that so far from a protective measure of this kind being unfavourably received by the general agricultural population and the farmers, I believed the very reverse would be the case. For various reasons there has been a good deal of apprehension on this subject among farmers, who are nearly all owners of their own land and very tenacious and very fond of it, and I think they care probably as much as anybody in your Lordships' House can care that they should be secure in the enjoyment of their property and should not, incur any risk of its being taken from them unnecessarily, or frivolously, or because they belong to an unpopular class, or are personally unpopular. I am almost certain that anything which would check that tendency on the part of the Government would be welcomed, and the only cheek on a Government in that sort of matter that I know of is that they will have to pay a reasonable amount for the property they take. I do not think you take the check any further. But so far from this being considered an undue or unfair restriction—it cannot be unfair, it is a fair thing obviously—of the powers of the Parliament, I think it will be received by the farmers at large and most of the people in the rural counties with very great favour, and will not be resented in any sense by the Parliament or the Irish people generally. On the last occasion the Lord Chancellor was I good enough to say that he would consider the matter. I do not know whether we may draw the inference that he has done so.
§ THE LORD CHANCELLOR
The Amendment which the noble Earl has moved has a rather curious history which I was not aware of until recently. The words are taken from Article 5 of an amendment to the American Constitution which was adopted in 1789. I am informed that when the 1893 Home Rule Bill was before the House of Commons this proposal was made for the first time. I do not know whether I am right or not, but I am told that the noble Viscount, Lord Bryce, suggested it at that time. It could not be within my own knowledge but I have heard it so stated, and his mastery of the American Constitution may give some plausibility to the statement. I think, however, he will bear me out that of the minor points that were selected for destructive criticism in the debates on that Bill this particular proposal was singled out for more vehement attack than almost anything in the Bill, and that the Law Officers of that day were in very great difficulty in meeting the criticism that they were transplanting or attempting to transplant into the new Irish Constitution principles which were not likely to be successful in their application there.
In 1912 the great difficulty which had been felt prevented the Government from re-introducing the 1893 provision, and that example was followed by the present Government for the same reason. I should have thought a proposal of this kind was rather open to the criticism that was made about it in 1893, that it was like saying "Thou shalt not steal" within the Constitution. it is quite true that the prohibition is contained in the Decalogue, but there are many other provisions also contained it in so that either directly or by implication the prohibitions there are comprehensive and complete. But it really cannot be attempted with success to set out within the terms of a Constitution the various irregular things which the Government to be created might do if one adopts the hypothesis that it is likely to devote itself-to irregular practice.
This proposition only applies to the taking of property for public use and, by implication, rather suggests that property might be expropriated for private use without any compensation at all. I am not at all sure that so far from adding to the security of the persons concerned it really does not lessen it. In reference to operations which lead to the removal 47 of the lateral support of land or cause subsidence, if authorised by statute, I think the inference could be drawn that they would not be the subject of any compensation at all. A further point arises as to who is to determine what shall be just compensation. I am informed that this provision has been the source of most exasperating and continual litigation in the United States of America, as indeed I should have suspected.
§ VISCOUNT BRYCE
It is quite true that a provision of this kind has given rise to a good deal of litigation in the United States where it prevails. It is to be found, I will not say in all, but certainly in the very large majority of the Constitutions of the different States. As those Constitutions have been constantly changed during many years it may fairly be taken that it is not an offensive proposition and that it does not excite any hostility in the minds of the people who are subject to it, because they continually keep it in their Constitutions and from time to time have renewed and strengthened it. It is perfectly true to say that it has given rise, as any provision of the kind must, to litigation, but that does not mean that it would be wise to do without it, and I believe that things would be worse without it.
My noble friend Lord Desalt made an observation which anyone who knows Ireland will know has a great deal of force. Attempts of this kind are constantly made, and I think the farmers of Ireland would feel that they were a great deal safer if such a provision as this was inserted in the Bill. It ought to be remembered that one of the values of a provision of this kind is that it enables members of a representative body to resist pressure put upon them. If they arc pressed to introduce a thing of this kind they can say, "There is the Constitution; we cannot override it." Any proposition which might prevail owing to local pressure can be resisted if the House is able to say, "We are debarred by the Act which gives us these powers from passing a proposition of this kind."
It may be said, though I do pot think this point has been raised in your Lordships House, that it is one of the cases in which the Lord Lieutenant, under the power of what one might call the veto which is reserved to him, might interfere. It may interest your Lordships to know 48 that that question has arisen in Canada. Within recent years the Legislatures of the Canadian Provinces have passed Acts which did take away private property without compensation, and a question has arisen whether the veto power which is given to the Dominion Government in those cases upon the legislation of the Canadian Provinces ought or ought not to be exercised, and I believe there have been several cases in recent years in which the Dominion Government has exercised that veto. We do not want, if We can help it. to throw that duty upon the Lord Lieutenant: it is rather better that it should be in the Constitution than that an appeal should be made to the Lord Lieutenant to exercise his power. The less the Lord Lieutenant's veto is called into operation the better, and therefore, if the provision is required at all—and I think that several of your Lordships have given reasons for thinking that it is required—it is better to put it in the Constitution than to leave it to the Lord Lieutenant.
As regards what the noble and learned Lord on the Woolsack has said about the criticism which was passed upon this provision during the debates in 1893, my recollection, after this long lapse of time, is not sufficiently clear to say exactly who criticised it, or how valid those criticisms were. But I can assure the noble and learned Lord, who was not then a member of that House, that every possible provision in that Act was subjected to criticism, and I think that the best of the provisions were subjected to just as much as the worst. And therefore I think that in this House, where we are free front those things and where we may sometimes with profit drink of the waters of oblivion, we ought to consider this proposal on its merits, and without any regard to its previous career.
§ THE LORD CHANCELLOR
After what the noble Viscount has said I shall certainly not put your Lordships to the trouble of a Division. The noble Viscount is a very old supporter of Home Rule. and if he warmly recommends what, after all, is a restrictive Amendment in the powers of the new Parliament, I think it would ill become me, as a very new Home Ruler, to enter into any controversy with him on that point. I am furthermore encouraged in that view by the very great authority with which the noble Viscount speaks on constitutional subjects.
§ On Question, Amendment agreed to.49
After Clause 6, insert the following new clause
§ "7.—(l) The Council of Ireland shall have power to make orders with respect to matters affecting interests both in Southern Ireland and Northern Ireland, in any case where the matter.
- (a) is of such a nature that it it had affected interests in one of those areas only it. would have been within the powers of the Parliament for that area; and
- (b) is a matter to effect which, it would, apart from this provision, have been necessary to apply to the Parliament of the United Kingdom by Petition for leave to being in a private Bill.
§ "(2) The previsions contained in the First Schedule to this Act shall have effect with respect to the procedure for making such order.
§ "(3) Any order so made by the Council of Ireland under this section shall be presented to the Lord Lieutenant for His Majesty's assent, in like manner as a Bill passed by the Senate and House of Commons of Southern Ireland or Northern Ireland, and, on such assent being given. the order shall have effect in Southern and Northern Ireland respectively, as if enacted by the Parliament of Southern Ireland or Northern Ireland, as the case may be."—(Lord Oranmore and Browne.)
§ On Question, Amendment agreed to.
§ Clause 7:
Page 7, line 4, leave out ("Irish Senate") and insert ("Council of Ireland").—(Lord Oranmore and Browne.)
§ On Question, Amendment agreed to.
§ Clause 9:
§ Powers of Irish Senate.
§ 9.—(1) The Parliaments of Southern Ireland and Northern Ireland may, by identical Acts, delegate to the Irish Senate any of the powers of the Parliaments and Governments of Southern Ireland and Northern Ireland, and such Acts may determine the manner in which the powers so delegated are to be exercisable by the Irish Senate.
§ (2) With a view to the uniform administration throughout Ireland of public services in connection with railways and fisheries, any powers (not being powers relating to reserved matters) exerciseable by any department of the Government of the United Kingdom at the appointed day with respect to railways and fisheries in Ireland and the power of making laws with respect to railways and fisheries shall as from the appointed day become powers of the Irish Senate, and not of the Governments and Parliaments of Southern Ireland and Northern Ireland:
§ Provided that nothing in this subsection shall prevent the Parliament of Southern Ireland or of 50 Northern Ireland making laws authorising the construction, extension, or improvement of railways where the works to be constructed are situate wholly in Southern Ireland or Northern Ireland as the case may be:
§ Provided also that the appointed day fixed for the Purpose of this subsection shall be a date no earlier than the expiration of the period of two years mentioned in section three (1) of the Ministry of Transport Act, 1919, and all claims arising before the appointed day under section eight of the Ministry of Transport Act, 1919, or determinable as if they were claims so arising shall be satisfied by the Ministry of Transport in accordance with that section. The rates, fares, tolls, dues, and other charges directed by the Ministry of Transport under the Ministry of Transport Act, 1919, and in force On the appointed day, may be charged until fresh provision shall be made by the Irish Senate, or the Parliament of the United Kingdom, with regard to the amount of any such rates, fares. tolls, dues, and other charges.
§ Amendment moved—
§ Page 11, line 12, leave out ("Irish Senate") ail insert ("Council of Ireland")
§ Page 11, line 16, leave out ("Irish Senate and insert ("Council").(Lord Oranmore and Broune.)
§ On Question, Amendment agreed to.
§ LORD STRACHIE (on behalf of Lord BLEDISLOE) moved, 1n subsection (2), after "fisheries" where that word first occurs, to insert "and the administration of the Diseases of Animals Act." The noble Lord said: The object of the Amendment is to provide that the Diseases of Animals Acts in Ireland shall not be administered by the two separate Parliaments of the North and the South, but by the Irish Senate, which acts for the whole of Ireland. I think your Lordships who are interested in agricultural matters will see the enormous importance of providing that there should be no divided administration of matters of so much importance as the protection of the flocks and herds in Ireland. It not only affects Ireland, but Great Britain as well, because it is of the utmost importance that any cattle, or sheep, or swine that are sent to Ireland should come over here with an entirely clean bill of health. There have been cases in which outbreaks of foot-and-mouth disease, and also swine fever, have been caused by the importation of Irish cattle into Great Britain. It is therefore essentially an English as well as an Irish interest to see that the very best possible body should be established in Ireland for administering the Diseases of Animals Acts. There is also a precedent for this, 51 because when Parliament thought fit to constitute a Board of Agriculture for Scotland it was unanimously decided, with the consent of all parties, that, as far as these Acts were concerned, they were to be administered by the English Board of Agriculture in Scotland as well as in England, in order that there might be continuity of administration and uniformity of orders in the two countries. In the same way it would be very desirable that in the case of the North of Ireland and the South of Ireland there should not be different administration or different procedure, and that we should get the guarantee of a united Ireland in regard to any animals exported to this country.
Page 11, line 19, after ("fisheries") insert (and the administration of the Diseases of Animals Acts").—(Lord Strachie>.)
THE EARL OF MAYO
I have a somewhat similar Amendment on the Paper. There can be no doubt that, on account of the want of a natural harrier between the six counties and the rest of Ireland, the Diseases of Animals Acts can only be properly administered by a veterinary service dealing with the whole country, and acting front one centre. I should have thought that any one who understood anything about the moving of cattle and sheep would see that it was essential that one body should deal with those Acts. I have no doubt I shall be faced with the argument that, if you make it a rule in the case of these Acts, why should not you make it a rule with the diseases of human beings? But human beings can talk, and animals cannot. Considering that cattle and sheep and swine constitute Ireland's most important wealth, it is absolutely essential that one body should deal with this matter.
THE EARL OF SELBOENE
I should like to emphasise what Lord Strachie has said. This really is an English and Scottish matter as well as an Irish. I need not dwell on the enormous importance of keeping foot-and-mouth disease out of these Islands, and swine fever down as low as possible. Most unfortunately there are two authorities in these Islands, one for Great Britain and. one for Ireland, and that is one too many already. Mercifully we escaped a third when the Board of Agriculture was established in Scotland, but here, as the Bill is drafted, we are 52 going to have three after all, and I sincerely hope that the Lord Chancellor will accept this Amendment.
§ THE LORD CHANCELLOR
The objection to the Amendment occurs to one at once, that this is one of many very important services which would work less conveniently and less smoothly under the process of division which this Bill effects than under unity of administration. I should have thought. that it would have been possible, on the arguments put forward by the supporters of the Amendment, to justify a proposal that a great many other functions should be entrusted to the joint body, but the noble Earl, Lord Selborne, speaks with very great authority on these matters and with actual experience of the Department, and I do not think that I should be justified in putting your Lordships to a Division upon it.
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Page 11, line 22, after ("fisheries") insert ("and the Contagious diseases of animals")
§ Page 11, line, 23, after ("fisheries") insert ("and the contagious diseases of animals").—(Lord Strachie.)
§ On Question, Amendments agreed to.
§ Amendments moved—
§ Page 11, line 24, leave out ("Irish Senate") and insert("Council of Ireland").
§ page 12, line 4, leave out ("Irish Senate") and insert.("Council of Ireland")
§ page 12, line 7, leave out ("Irish Senate") and insert ("Council")
§ page 12, line 12, leave out ("Irish Senate") and insert("Council of Ireland")
§ page 12, line 19, leave out ("Irish Senate") and insert ("Council")
§ page 12, line 25, leave out ("Irish Senate") and insert ("Council")
§ page 12, line 26, leave out ("Irish Senate") and insert ("Council")
§ page 12, line 28, after ("passed by the") insert ("Senate and")
§ page 12, line 36, leave out ("Irish Senate") and insert ("Council")
§ page 12, line 39, leave out ("Irish Senate") and insert ("Council")
§ page 12, line 42, leave out ("Irish Senate") and insert ("Council").53
§ Page 13, line 6, leave out ("Irish Senate") and insert ("Council")
§ Page 13, line 11, leave out ("Irish Senate") and insert ("Council")
§ Page 13, line 18, leave out ("Irish Senate" and insert ("Council")
§ Page 13, line 20, leave out ("Irish Senate") and insert ("Council")
§ Page 13, line 22, leave out (}Irish Senate") and insert ("Council")
§ Page 13, line 25, leave out ("Irish Senate") and insert ("Council")
§ Page 13, line 31, leave out ("Irish Senate") and insert (Council of Ireland").—(Lord Oranmore and Browne.)
§ On Question, Amendments agreed to.
§ Clause 11:
§ Amendments moved—
§ Page 14, line 2, after ("passed by the") insert ("Senate and ")
§ Page 14, line 3, after ("or the") insert ("Senate and").—(Lord Oranmore and Browne.)
§ On Question. Amendments agreed to.
§ Clause 12:
§ Amendments moved—
§ Page 14, line 10, leave out ("First") and insert ("Second")
§ Page 14, line 18, leave out ("Third") and insert (Fourth").—(Lord Oranmore and Browne.)
§ Page 14, line 19, leave out ("Third") and insert ("Fourth").—(Lord Oranmore and Browne.)
§ On Question, Amendments agreed to.
§ Clause 13:
§ (5) After three years from the day of the first meeting of the Parliament of Southern Ireland or Northern Ireland, that Parliament may alter the qualitication and registration of the electors, the law relating to elections and the questioning of elections, the constituencies, and the distribution of the members among the constituencies, provided that in any new distribution the number of the members shall not be altered, and due regard shall be had to the population of the constituencies other than University constitutes.
§ Amendments moved—
§ Page 14, line 25, leave out ("Second") and insert ("Fifth")
§ Page 14, line 31, leave out ("Second") and insert ("Fifth").—(Lord Oranmore and Browne)
§ On Question, Amendments agreed to.54
§ LORD MACDONNELL moved, at the beginning of subsection (5), to leave out "three" ["After three years"] and insert "Six". The noble Lord said: I raised this point in the Committee stage, and the noble Earl, Lord Crawford, undertook that it should receive sympathetic consideration by the Government before the Report stage. As I have received no communication from the noble Earl I have been compelled to place the Amendment on the Paper again.
Page 15, line 9, leave out ("three") and insert ("six").—(Lord MacDonnell.)
§ THE LORD CHANCELLOR
This Amendment was moved by the noble Lord in the Committee stage and received some support from Lord Desart and Lord Crewe, but was opposed by Lord Dufferin and Lord Selborne. An Amendment was moved in the House of Commons as a Government Amendment but was withdrawn in view of the general opposition expressed to the withholding for so long a period as six years from the Irish Parliaments the right to adopt whatever electoral system they thought best. In pursuance of the assurance which Lord Crawford gave I have made inquiries from those who expressed this opinion in the House of Commons and who have a special claim to speak on behalf of the Northern part of Ireland; and they retain their objections. I cannot believe that there is the slightest prospect of this Amendment being favourably received in another place, and in the circumstances I hope the noble Lord will not persist with it, or if he does that your Lordships will reject it.
§ THE EARL OF MIDLETON
I think the Lord Chancellor has rather summarily dismissed this Amendment. The question was decided with scant consideration in another places. Let us look at the real facts of tin position. Ireland is torn asunder by all sorts of trouble. The Government hope to put this Bill into operation in a few months, and it is proposed that within three years of that time all the safeguards as to registration, qualification of electors, should be entirely abrogated if the Assembly in Ireland desires to make a complete change and undertake some entirely fresh distribution. How often has it been necessary to interfere 55 with election laws and qualification of voters? First there was an interval of thirty-six years; from 1867 an interval of eighteen years, and from 1885 an interval thirty-two years. Can there be any hardship in asking a newly elected Parliament which will not have any traditions behind it to wait for six years before dealing with questions of constitution and the qualifications of those who are to be the voters. It is so dangerous in the early days of these new Parliaments for powers of this kind to be entrusted to them, powers which might be unwisely exercised, that I hope the noble Lord will press his Amendment to a Division.
§ LORD PARMOOR
I am in favour of the Amendment but from a slightly different point of view. The objection to it is that some persons in Ulster do not like proportional representation. But surely, if proportional representation is being introduced in order to protect minorities, it ought not to be altered within the short
§ period of three years, and at least six years should be allowed for the experiment.
§ THE LORD CHANCELLOR
The noble Earl has considered that my treatment of the Amendment was rather summary. I do not think it was: I made what seems to me to be a considered answer. We know that one if the two Parliaments will come into existence at once, and that the Ulster representatives in the House of Commons are unanimously of the opinion that in giving this Parliament we ought not to deprive them for so long a period as six years of the right to adopt whatever electoral system they think best. Is it right, having given them this Parliament, that We should turn round and say, We will not let you make any correction or alteration before six years"?
§ On Question, whether the word "three" shall stand part of the clause?—
§ Their Lordships divided:—Contents, 72; Not-Contents, 77.57
|Canterbury, L. Abp.||Farquhar, V. (L. Steward.)||Erskine, L.|
|Birkenhead, L. (L. Chancellor.)||Sandhurst, V. (L. Chamberlain.)||Hylton, L.|
|Cave, V.||Islington, L.|
|Argyll, D.||Chilston, V.||Killanin, L.|
|Richmond and Gordon, D.||Esher, V.||Kintore, L. (E. Kintore.)|
|Finlay, V.||Mostyn, L.|
|Goschen, V.||Newton, L.|
|Abercorn, M. (D. Abercorn.)||Peel, V.||Oriel, L. (V. Massereene.)|
|Dufferin and Ava, M.||St. Davids, V.||Ormathwaite, L.|
|Ranfurly, L. (E. Ranfurly.)|
|Ancaster, E.||Abinger, L.||Rathereedan, L.|
|Bradford, E.||Annesley, L. (V. Valentia.)||Redesdale, L.|
|Chesterfield, E.||Atkinson, L.||Ribblesdale, L.|
|Eldon, E.||Boston, L.||Romilly, L.|
|Fitzwilliam, E.||Cheylesmore, L.||Saltoun, L.|
|Howe, E.||Clifford of Chudleigh, L.||Somerleyton, L. [Teller.]|
|Jersey, E.||Clinton, L.||Stanmore, L. [Teller.]|
|Kilmorey, E.||Cochrane of Cults, L.||Stewart of Garlies, L. (E.Galloway.)|
|Lovelace, E.||Colebrooke, L.|
|Lucan, E.||Cottesloe, L.||Teynham, L.|
|Onslow, E.||Deramore, L.||Treowen, L.|
|Pembroke and Montgomery, E.||Desborough, L.||Wavertree, L.|
|Plymouth, E.||Dewar, L.||Wigan, L. (E. Crawford.)|
|Reading, E.||Donington, L.||Wolverton, L.|
|Roden, E.||Ebury, L.||Wyfold, L.|
|Vane, E. (M. Londonderry.)||Elphinstone, L.||Wynford, L.|
|Wellington, D.||Abingdon, E.||Lanesborough, E.|
|Devon, E.||Lindsey, E.|
|Aberdeen and Temair, M.||Mayo, E.|
|Crewe, M.||Doneaster, E. (D. Buccleuch and Queensberry.)||Midleton, E.|
|Exeter, M.||Morton, E.|
|Lincolnshire, M. (L. Great Chamberlain.)||Drogheda, E.||Selborne, E.|
|Iveagh, E.||Spencer, E.|
|Linlithgow, M.||Kimberley, E.||Westmeath, E.|
|Sailsbury, M.||kingston, E.||Wicklow, E.|
|Allendale, V.||de Mauley, L.||Northbourne, L.|
|Bangor, V.||Decies, L.||Oranmore and Browne, L.|
|Bryce, V.||Denman, L.||Ormonde, L. (M. Ormonde.)|
|De Vesei, V.||Desart, L. (E. Desart.)||Parmoor, L.|
|Harcourt, V.||Fingall, L. (E. Fingall.)||Penrhyn, L.|
|Hutchinson, V. (E. Donoughmore.)||Greville, L.||Queenborough, L.|
|Hare, L. (E. Listowel.)||Rathdonnell, L.|
|Knollys, V.||Hemphill, L.||St. John of Bletso, L.|
|Holm Patrick, L.||Saltersford, L. (E. Courtown.)|
|Ampthill, L.||Kilmaine, L.||Saye and Sele, L.|
|Avebury, L.||Knaresborough, L.||Shandon, L. [Teller.]|
|Barrymore, L.||Lawrence, L.||Southwark, L.|
|Bellew, L.||MacDonnell, L. [Teller.]||Stanley of Alderley, L. (L. Sheffield.)|
|Braneepeth, L. (V. Boyne.)||Merthyr, L.|
|Buckmaster, L.||Monekton, L. (V. Galway.)||Strachie, L.|
|Chalmers, L.||Monteagle, L. (M. Sligo.)||Stuart of Wortley, L.|
|Cloneurry, L.||Monteagle of Brandon, L.||Swaythling, L.|
|Crawshaw, L.||Morris, L.||Sydenham, L.|
|Crofton, L.||Muir Mackenzie, L.||Vernon, L.|
On Question, Amendment agreed to.
§ Resolved in the "negative, and Amendment agreed to accordingly.
§ Clause 14:
Page 15, line 30, after ("members of the") insert ("Senate and")—(Lord Oranmore and Browne.)
§ Clause 15:
§ Members incapable of election to both Southern and Northern Legislatures.
§ 15.—A member of the House of Commons of Southern Ireland or Northern Ireland shall be incapable of being chosen or elected or of sitting as a member of the Senate of Southern Ireland or Northern Ireland, and a member of the Senate of Southern Ireland or Northern Ireland shall be incapable of being chosen or elected or of sitting as a member of the House of Commons of Southern Ireland or Northern Ireland.
§ LORD ORANMORE AND BROWNE moved to leave out Clause 15. The noble Lord said: This is with the intention of inserting it lower down.
Leave out Clause 15.—(Lord Oranmore and Browne.)
§ Clause 16:
§ Amendments moved—
§ Page 16, line 1, after ("revenue") insert ("or moneys")
§ Page 16, line 2, leave out ("provision") and insert ("provisions")
§ Page 16, line 3, leave out ("matters") and insert ("penalties or for the payment or appropriation of fees for licences or fees for services under the Bill").58
§ Page 16, Page 16, line 4, insert as a new subsection (2) of this clause the words now appearing as clause 17
§ Page 16, line 6, after ("for the") leave out ("public")
§ Page 16, line 7, after ("Government") insert ("of Southern Ireland, or Northern Ireland, or for services administered by the Council of Ireland")
Page 16, line 8, insert a new subsection as follows:—
("(4) Any Bill which appropriates revenue or moneys for the ordinary annual services of the Government of Southern Ireland or Northern Ireland, or services administered by the Council of Ireland, shall deal only with that appropriation").—(Lord Oranmore and Browne.)
§ Clause 18:
§ THE LORD CHANCELLOR
Clause 18 relates to procedure in cases of disagreement between the two Houses, and the solution is taken verbatim from Section 11 of the Act of 1911. It departs from that section in one or two details. The object of this and my two other Amendments to the clause is to insert the words of the Act of 1914.
Page 16, line 17, after ("any") insert ("public").—(The Lord Chancellor.)
LORD ORANMORE AND BROWNE
My Amendment is meant to be in accordance with the provisions of the Parliament Act—namely, that in case of any disagreement between the two Houses the Senate should have certain powers in considering the Bills sent up to it. By some mistake in the Amendment standing in my name it is put "sent up … at least two months before the end of the session" That is rather too long a time, and I should like, with the leave of the House, to substitute "one" instead of "two," which is the time provided for in the Parliament Act.
Page 16, line 17, after ("bill") insert ("which is sent up to the Senate of Southern Ireland or Northern Ireland at least one month before the end of the session").—(Lord Oranmore and Browne.)
§ THE LORD CHANCELLOR
I am not, of course, making myself responsible for the scheme at all, but if you are to have this provision I agree that two months is too long a time.
§ THE LORD CHANCELLOR
The Amendments that follow are, as I have explained, consequential upon my previous Amendment.
§ Amendments moved—
§ Page 16, line 33, leave out ("amendment, if any") and insert ("amendments, if any, so taken to have been carried")
§ Page 16, line 34, after the first ("the") insert ("total number of").—(The Lord Chancellor.)
§ Clause 19:
LORD ORANMORE AND BROWNE
The Amendments standing in my name to this clause are not purely drafting. The Amendment to insert "Senate and," for instance, is to give, to the Senate the same powers, privilege, and immunities as would be enjoyed by members of the House of Commons. I suppose there is no objection. Then as to the Amendment in line 12, the Clause will then read "The law for the time being in force relating to the qualification and disqualification of the members of the Commons of Parliament of the United Kingdom, and the taking of any oath required to be taken by a member of that house, shall, save as otherwise provided by this Act." The reason for this is that priests in Holy Orders are not allowed to be members of the House of Commons, and if this provisions remains without this exemption being made it would prevent any ecclesiastic from being a member of the Senate. It is proposed that the Archbishops and Bishops of the Roman Catholic Church, and of the Church of Ireland, should be members of the Senate, and this provision is put in to enable them to become so.
§ Amendments moved—
§ Page 17, line 1, after ("of the") insert ("Senate and")
§ Page 17, line 2, after ("and the") insert ("Senate and")60
§ page l7, line 12, after ("shall") insert ("save as otherwise provided by this Act")
§ Page 17, line 13, after ("of the") insert ("Senate and")
§ Page 17, line 14, after ("of the") insert ("Senate and")
§ Page 17, line 17, after ("of the") insert ("Senate or")
§ Page 17, line 18, after ("of the") insert ("Senate or")
Page 17, line 20, after subsection (3) insert the following new subsection:—
("(4) A member of the House of Commons of Southern Ireland or Northern Ireland shall be incapable of being chosen or elected or of sitting as a member of the Senate of Southern Ireland or Northern Ireland, and a member of the Senate of Southern Ireland or Northern Ireland shall be incapable of being chosen or elected or of sitting as a member of the House of Commons of Southern Ireland or Northern Ireland; but a Minister of Southern Ireland or Northern Ireland who is a member of either House of the Parliament of Southern Ireland or Northern Ireland shall have the right to sit and speak in both Houses, but shall vote only in the House of which he is a member.")
§ Page 17, line 21, after ("of the") insert ("Senate or")
§ Page 17, line 28, after ("of the") insert ("Council of Ireland or the Senate or")
§ Page 17, line 35, after ("of the") insert ("Senate or").—(Lord Oranmore and Browne.)
§ THE LORD CHANCELLOR
I suggest it will not be found inconvenient if, where we have, as here, a large number of consequential Amendments to one clause, they are put en bloc.
§ Clause 20:
Page 18, line 28, leave out ("Second") and insert
("Fifth").—(Lord Oranmore and Browne.)
§ Clause 39:
§ Establishment of courts.
§ 39. The Supreme Court 14 Judicature in Ireland shall cease to exist, and there shall be established in Ireland the following courts, that is to say a court having jurisdiction in Southern Ireland, to be called the Supreme Court of Judicature of Southern Ireland, a court having jurisdiction in Northern Ireland, to be called the Supreme Court of Judicature of Northern Ireland, and a court having appellate jurisdiction throughout the whole of Ireland. to be called the High Court of Appeal for Ireland.61
§ VISCOUNT CAVE moved to leave. out "Supreme Court of Judicature of" and insert "High Court of Justice in." The noble and learned Viscount said: The list of Amendments standing in my name looks formidable, but in fact the Amendments are all connected and your decision upon the first will, I think, practically rule the result as to the whole. I should like to say a few words as to how they came to be put upon the Paper. They were suggested to me by a very high legal authority in Ireland. I did not at once set them down, but I thought it right in Committee to mention the purport of the change which I was asked to propose in the Bill in order to ascertain the general view of the House. I did mention them in discussion in Committee, and many noble Lords expressed their agreement with them and no one expressed dissent. That being so, I put them upon the Paper. I now understand that objections have been raised to the Amendments, but in view of the undertaking which I gave I think I should be breaking faith with some noble Lords if I did not move the Amendments in order that your Lordships' opinion may be expressed upon them. Whether I shall go further must, of course, depend upon the general sense of the House.
§ The purport of the Amendment is exceedingly simple, and may be explained without technicality in a very few words. The Bill proposes that there shall be three successive appeals from a decision of either of the High Courts in Ireland. Under the Bill there is to be first a decision by the High Court, then an appeal to a Provincial Court of Appeal, then an Appeal to a Court of Appeal for Ireland, and then a final appeal to the House of Lords. There is a further peculiarity about it, that one Judge (the Lord Chief Justice of each Province) is to be a member of three out of the four tribunals. It is proposed that he shall sit-first as a Judge of first instance, then as President of the Provincial Court of Appeal, and then as a member of the Court of Appeal for Ireland—a very unusual and I am afraid rather unworkable arrangement. The main objection which I feel to the proposal is that it will throw a very great expense upon those who go to law in Ireland. The expense of three consecutive appeals is quite enough to bring ruin upon one who has not very large means. We in England, and those who are concerned in Scotland, are content with three tri- 62 bunals—that is to say, with two appeals—but the Irish provinces will be much smaller than either England or Scotland, and it is proposed to give to each of them four tribunals or three appeals. That is the whole matter, and all that these Amendments propose is to remedy that state of things by deleting the appeal to the Provincial Court of Appeal and giving an appeal direct from the High Court either of Southern or of Northern Ireland to the Court of Appeal for Ireland. Incidentally that would effect the further change that the Lord Chief Justice, who now appears in three tribunals, will only appear in one, or, if your Lordships think fit, may appear in two. But the short effect is to cut out au appeal, so that every case will be determined either in the Court of Appeal for all Ireland or in the House of Lords it self.
§ I have heard only one practical argument against the proposal, if it be an argument, and that is that there is already an additional appeal in Ireland—namely, to a Divisional Court. It is true that in some cases, although not in all, there is to-day that extra appeal in Ireland. It is only given, I think, where new trials are applied for. We had the same practice here, but we found it a fifth wheel of the coach, and we abolished it I think about thirty years ago. If Ireland desires to retain it of course I could have no personal objection, bat I think it would be a mistake, and I should like to hear your Lordships' view about it. If your Lordships desire to retain it, it could be done very simply by leaving out the proviso on page 33 which would abolish the Divisional Courts, and otherwise adopting the Amendments which I propose. But it seemed to me to be such an obvious thing that at all events one ought to make this proposal, and see what is said about it.
§ I ought to add that the proposal involves some change in the constitution of the Court of Appeal for Ireland. It is proposed by the Bill that the Court shall consist of the Lord Chancellor and the two Chief Justices, with power to add a Judge front each Province in cases of importance. Under my proposal one must provide for the present Court of Appeal, and I simply propose that the Court of Appeal shall consist of the Lord Chancellor and two Lords Justices—namely, the two existing Lords Justices to begin with—adding that the Master of the Rolls should 63 have power, as now, to sit in the Court of Appeal for all Ireland. I hope I have not embarrassed the matter by technicality. I think it is a very simple point, and I beg to move the first Amendment.
Page 32, line 5, leave out ("Supreme Court of Judicature of") and insert ("High Court of Justice in").—(Viscount Care.)
THE MARQUESS OF DUFFERIN AND AVA
I need hardly tell your Lordships that I should not have intervened in this debate on this very complicated subject had I been successful in in my search for a noble, and as I hoped, learned Lord who would be willing to express to your Lordships the opposition of the North of Ireland to the noble Lord's Amendments. I was unsuccessful, and those associated with me thought it better that those views should be put before you by myself, however inadequately, rather than not at all.
The principle of self-government has been granted to Northern Ireland by your Lordships, and surely that principle should be followed to its full length and a complete judicial system should be given to her. The proposed Amendment would throw upon the Court of Appeal in Ireland a quantity of work which is no part of its functions and which it could not successfully deal with, but which could have been successfully dealt with by the Courts of Appeal in Northern and Southern Ireland, as was the original proposal in the Bill.
An enormous amount of business at present is transacted in the High Court of Justice in Ireland, by far the greater proportion of which conies from the North of Ireland owing to the fact that the North of Ireland is an industrial community. The effect of the Amendment will be to reduce the judicial establishment to three Judges, and one of these Judges can at any time be removed by the Lord Chancellor if he has need of his services in the Court of Appeal. Much of the business which under the proposed Amendment would conic before the Court of Appeal would consist of appeals from orders of a single Judge, and would be business which should be very promptly dealt with. But there will be delays not only owing to the congestion of the Court, but owing to the fact that appeals from the North cannot be dealt with while the Courts are sitting 64 in the South. Delay, inconvenience, and expense will also accrue from the offices of the Court of Appeal being in Dublin. The Courts, staff, and offices in Dublin represent a complete judicial system, the advantages of which will wholly accrue to Dublin.
The original proposals of the Bill were framed to place the North of Ireland on an equal footing with the South of Ireland, except that the number of Judges was proportionately smaller, but this Amendment would further reduce the number of Judges. The Judges of the North would merely become local Judges of an establishment which is centralised in Dublin, and I am told that this experiment was tried in the North of England and was abandoned because it was a failure. A Court of Appeal which is itinerant, as this one will be, is not likely to be a success, and I am told that the Assizes, owing to pressure of time and the very human desire on the part of the Judges to get to their homes, would create an atmosphere which would be unsuitable to a Court of Appeal, which requires care and deliberation. As I ventured to point out the other day, this question of jurisdiction should surely rest with the people in the case of the North of Ireland, and there should be no thought as to what the Judges in the South of Ireland think about it.
There will be five Judges, but four of those are of different religion and hold different political views to the North, and one of them has never worked on the Northern circuits at all. The interests of the Northern and the Southern part will continue long after these Judges have passed away, and I am sure you will all agree with me that Judges are for the public and not the public for the Judges. The practice in the Irish Courts differs from that which prevails in English Courts, as the Divisional Courts have acted as intermediate Courts of Appeal similar to those proposed in the Bill, in Northern and Southern Ireland, with the result of lessening the number of appeals to the House of Lords. The proposed Amendment would impose the English system upon Ireland, which is not ready for it, and that would result sometimes in chaos. I would remind your Lordships that the Irish litigant will not be able to afford the luxury of an appeal to the House of Lords.
May I, in conclusion, say that I have it 65 on very high authority that the provisions in this Bill have only been come to after very careful deliberation by judges and lawyers who understand Ireland and the working of the law in that country. They think that the system proposed by the noble and learned Lord will not work. I desire to impress upon your Lordships that this question is looked upon as a very vital one in the North of Ireland, and I ask that you will allow the people of the North of Ireland to have the sort of judicature that they wish to have, and reject this Amendment.
§ VISCOUNT FINLAY
I think everyone must approach an Amendment which is intended to limit the number of appeals with sympathy, but I confess that on examining this matter I did not think that it would be desirable to eliminate the Court of Appeal in the South and in the North of Ireland. If anything is to be eliminated, I suggest that it ought to be the Court of Appeal for all Ireland. There may be counterbalancing reasons which make that impossible or inexpedient, but I cannot help thinking that my noble and learned friend who has moved this Amendment has a little underrated the extent to which the Irish system throws the work at present upon the Divisional Courts in Ireland. It has been said that it is only a question of new trials going before the Divisional Courts. I think, however, that if my noble and learned friend will look at section 51 of the Supreme Court of Judicature (Ireland) Act, 1887, he will find that it means a good deal more. He will find that it involves a complete mass of litigation much wider than that which used to be covered in England by sending motions for new trials to the Divisional Court. Were the Amendment carried I am afraid the Court of Appeal for all Ireland would be absolutely flooded by the number of appeals which would fall to be disposed of, and that, as a matter of business, the plan would not work. I doubt whether the Court of Appeal for all Ireland would be able to deal with the mass of business that would necessarily go to it. If I rightly followed my noble and learned friend, he proposed that that should be obviated by re-introducing the Divisional Courts, but it is a serious matter for consideration whether that would make so symmetrical a system as the proposal to have Courts of Appeal in North and in South Ireland.
66 I sympathise so much with the desire to shorten the course of appeals that I should be very glad if possible to eliminate the Court of Appeal for all Ireland. If that were done, you would have in the South of Ireland a Court of Appeal, and in the North of Ireland a Court of Appeal, and if you were taking an action further, you would have the House of Lords here to see that the law was made uniform. But I am hardly in a position to appreciate what reason there may be why there should be a Court in Ireland in order to enable you to bring any conflicting decisions in the South and the North of Ireland into harmony, and to provide for uniform legislation. With regard to my noble and learned friend's observation as to the change in the composition of the Court of Appeal for Ireland which his Amendments render necessary, I cannot say that I think that change is desirable. It is highly desirable to have a Court of Appeal which is so framed as to commend the confidence and sympathy of all parts of the country with which it has to deal, and an endeavour has been made to achieve that object by the provision of the Bill as to the composition of the Court of Appeal for all Ireland—the Lord Chancellor, the Chief Justice of the South, the Chief Justice of the North, and persons nominated by the respective Chief Justices. That is the nature of the provision, and one can see that there is a very praiseworthy object behind it. It is a provision which seems at first sight one of a very unusual character, but on the whole I would much rather keep the provision for a Court of Appeal for all Ireland as it is in the Bill than have what my noble and learned friend proposes. Unless there are very strong reasons to the contrary—and there may be—I feel very strongly that it would be better if the appeal to the Supreme Court in Ireland could be eliminated. Then you would have one appeal in Ireland which would be either to the Court of Appeal for the North or to the Court of Appeal for the South, as the case may be, and if you desire to go further there would be an appeal to the House of Lords here. I cannot think that my noble and learned friend's proposal, with the object of which I very much sympathise, would work very well in practice.
§ LORD BUCKMASTER
My Lords, I feel sure that the cause which the noble Marquess desires to advocate has not suffered through his inability to obtain 67 any person of legal experience in this House, beyond the noble and learned Viscount who has just sat down, to embrace and espouse it. His real reason is I think this. He wants the Northern Province to have united and complete control over the whole of this system of the administration of justice, and he thinks that is best secured by giving to it an independent Court of Appeal which will be able to decide the whole of the appeals arising in the Northern Province without regard to what may happen in the Southern District. I submit that the proposal of the Bill as it stands is cumbrous and costly and ineffective.
The noble and learned Viscount who has just spoken urges your Lordships to reject the Amendment upon the ground that he anticipated that the Court of Appeal for the whole of Ireland would be so overwhelmed with business, and that if the noble Viscount's Amendment were accepted it would be unable to function efficiently. Let us consider for a moment what happens in this country. In this country there are two Courts of Appeal and no more. To those two Courts of Appeal the whole of the appeals are brought from all our Courts of first instance. The work of our Divisional Courts is now almost entirely confined to appeals from County Courts and what are called Crown cases. They no longer have the power of considering questions of new trials, alterations of damages, and similar matters now dealt with by the Divisional Court in Ireland. All those matters are dealt with by our Courts of Appeal. In addition there is thrown upon our Courts of Appeal the burden of deciding a large number of original appeals from County Courts, with the result that they really discharge work I should have thought far more onerous than would be thrown upon the Supreme Court of Appeal for Ireland, and drawn from a population enormously greater in number and of course of far greater commercial activity.
If our two Courts of Appeal can keep abreast of their business, is it really soberly to be argued that one Court of Appeal in Ireland will be unable to do it? Yet that is the whole of the argument of the noble and learned Viscount who has just sat down. When you measure it in relation to the only standard by which it can be fixed I submit that argument fails. And what is left? There is really nothing 68 left excepting the idea (which I understand and try to appreciate) urged by the noble Marquess, that Ulster really wants to be secluded in this as in other matters. I think this Bill has attempted as far as possible to give effect to that desire, whether or not to the prejudice of the whole Bill and to the future of Ireland I will not now say. But in this matter at least it surely is possible to maintain one Court where the Judges may meet together and sit and decide as one body the appeals as they come up from each province.
The noble Marquess desires as sincerely as anybody else that there should be in the future—and I know he would with every one else desire that that future should not be too far distant—some healing and settlement of this long disturbing strife in Ireland; yet directly even the mildest measure is proposed for that purpose you find that it is resisted. The noble and learned Viscount who has just sat down has soberly suggested that the best way of securing it is to destroy the only Court in which the Judges may sit together—the only element of unity that I can find left in the Bill beyond the Council—
§ LORD BUCKMASTER
—and to provide that from the Court of Appeal of one of the Provinces there should be an appeal direct to your Lordships' House. I sincerely hope that your Lordships will see your way to accept the Amendment of the noble Viscount. I am satisfied that it is in the interests of the litigants of Ireland. I believe it is in the interests of Ireland as a whole, and I can see no adequate reason urged why it should be refused.
THE LORD CHANCELLOR (who was indistinctly heard)
My noble and learned friend has certainly contributed to the discussion the quality of enthusiasm which I thought was somewhat lacking from the speech of the noble and learned Viscount, who, if I understood him aright, thought that in our present knowledge of the feeling of Ireland it was doubtful whether the Amendment was altogether necessary. The matter is by no means so simple, in my judgment, as one might infer from the speech of the noble and learned Lord, Lord Buckmaster, who pointed out with truth, and I entirely agree with him, that the Irish Court of Appeal ought to be preserved 69 for reasons which are not quite consistent with the ordinary arguments of mere administrative or judicial convenience. In other words, it is quite true that if one did away with the Irish Court of Appeal—I deal now with the first point raised by the noble and learned Viscount, Lord Finlay—you would undoubtedly reduce in some cases the number of appeals in Ireland, but one of the reasons why it is proposed to maintain the Irish Court of Appeal is that those who make these proposals think that it is highly desirable that there should be a tribunal which is representative of the whole of Ireland on the appellate side. When once we reach that decision and regulate our conduct and our proposals by it, we are face to face with a further question, Shall we or shall we not have a Court of Appeal in the North. and a Court of Appeal in the South?
Let us approach that question under no delusions. I say, with a full knowledge of legal opinion in the North, that they would far rather do what the noble and learned Viscount, Lord Finlay, indicated, abandon the Irish Court of Appeal altogether, than abandon their own Court of Appeal. There is no doubt whatever about that. The reason they take that view is, I think, an intelligible one. They have asked throughout that they shall have a complete superior Court of their own. Your Lordships have already decided after long argument that a Supreme Court ought to accompany the grant of a separate Parliament and Government, or at any rate that when you are setting up a separate Parliament and Government for the people of that country they should have a complete superior Court of their own; and I confess, my Lords, I should require more powerful arguments than those to which we have listened to lead me to resist that application.
On practical grounds I do not know whether my noble and learned friend Lord Buckmaster has considered some of the objections which are suggested. The Northern Court would be a Court truncated and deprived of many real and important functions. It would have no appellate jurisdiction except as regards magistrates and other subordinate tribunals. All appeals from that Court would lie to the common Court of Appeal for all Ireland constituted as at present. That 70 Court will normally consist, as the noble Viscount, Lord Cave, told the House, of the Lord Chancellor and the two Lords Justices. Their appointment would naturally be governed by considerations of fitness for office in relation to Ireland as a whole and not in relation to Northern Ireland in particular. It is felt very strongly in the North—whether it be right or wrong I will not now consider—that they are entitled to a Supreme Court in reality as well as in name, and that it is an indispensable part of that Supreme Court that it should possess its own appellate tribunal, and I do not think the arguments used against it are strong enough to justify the denial of that desire.
It is said that there will be four appeals. While this objection possesses a good deal of force do not let us exaggerate it. In the first place, the number of appeals from Ireland is already extraordinarily small. It so happens that the House is engaged at present in Irish appeals. I do not know how many there are, but I think I am right in saying that in the two years that I have been Lord Chancellor I only remember one batch of Irish appeals before the present, which consisted of some five or six appeals. It is, of course, a mischief if you have a multiplication of appeals, but where the total number is so limited the mischief is not as grave as it would otherwise be. And no answer has been made, nor, I think can be made, to Lord Finlay's point, that there exists already in Ireland a very great number of cases in which there are four appeals. The only difference which this Bill makes is that, instead of one of the appeals being heard by a Divisional Court, it is heard by the Court of Appeal in the North, or the Court of Appeal in the South, as the case may be. A section of this Bill in terms cancels a section of the Irish Procedure Act, upon which the jurisdiction of the Irish Divisional Court depends.
I am sorry that one must be so technical when one deals with this subject, but I may summarise the objections which I express to the Amendment of Lord Cave in the following way. His proposal is based principally upon the objection that there will be four appeals. It is highly doubtful whether the number of cases in which there will be four appeals will not positively be reduced in consequence of the change which is contained in this 71 Bill. In the second place, it is based, as I understand it, upon a belief that, as a matter of administration, it is a better and a smoother scheme. All that we know is that one of the parties on whom it is to be tried—and that party in whose case it is certain that it will curate into existence at once, or at a much earlier stage than it may come into existence in the other part of Ireland—most vehemently objects to the proposal which the noble Viscount makes. I cannot think it is wise at this period of our debates to introduce a preliminary Amendment, depending upon so slender a foundation, which requires to be followed by some 30 or 40 others. And the proposal is regarded with dismay by the legal community in the North of Ireland. I received this morning a communication from what, I believe, is the Solicitors' Society of Ulster, setting out a long series of powerful arguments against this proposal, which, if time allowed, I would have repeated to your Lordships, and they represent far more forcibly, but in somewhat more technical language than I have used, the overwhelming desire of the legal community in the North that they should have their own Court of Appeal, with the necessary complement of the Court of First Instance.
§ LORD PARMOOR
I quite agree with what the noble and learned Lord on the Woolsack has said with regard to the necessity of a Court of Appeal for the whole of Ireland, but I think the views he has expressed on that point are really consistent with the attitude of the noble Marquess. If you have a Court of Appeal for the whole of Ireland the need for an independent Court for the North or the South at once disappears. When we arrive at that stage in the argument surely what was said by the noble Viscount who moved the Amendment is unanswerable. It must be, as regards judicial matters, nothing less than an unfair obligation upon litigants—because that is what it comes to, and, after all, judiciaries are put on foot in order that litigants may be satisfied—it is an unfair obligation on litigants that they should be liable to the possibility of four appeals. One has to look upon it from this point of view—supposing a litigant starts and is found to be right in the first instance. What is his position? If there are three possible appeals in front of him I can only say, from my experience of litigation, that probably 72 he will repent ever having tried to enforce his rights at all.
§ LORD PARMOOR
I do not think so, not the appeals I am dealing with. Supposing you have an appeal from the Court of First Instance in Ireland, as it is now, to the Court of Appeal in Ireland, and from the Court of Appeal in Ireland to the House of Lords—there you have three appeals. In certain circumstances there may be a larger number of appeals. I think it is a great misfortune, because I agree with what was said by the noble and learned Lord, Lord Buckmaster on a former occasion, that the multiplication of appeals really becomes a denial of justice, and particularly a denial of justice to poor men. The only other point I have heard made in this debate, as against the Amendment of the noble Viscount, is that if one Supreme Court of Appeal had to deal with all this business it would be overwhelmed. Surely that is really unthinkable. After all, Ireland is only a small country, about 4,000,000 or 5,000,000 inhabitants, and to suppose that a population of that kind cannot adequately deal with its litigation with one Court of Appeal is really to say what is out of accord, at any rate with all our experience in this country. Two Courts of Appeal in this country deal with a mass of litigation which will be six or seven times as great as could arise in the whole of Ireland. And it is quite incredible that one Court of Appeal in Ireland could not adequately discharge all these duties.
The real reason for the opposition to the noble Viscount's Amendment is this—and I appreciate it. Ulster wants to be independent as regards her judicial system. Well, the answer to that has been given by the Lord Chancellor. He says it cannot be independent, and there is to be one Supreme Court of Appeal for the whole of Ireland. When you once get to that position I should like to ask the noble Marquess what it is he thinks Ulster will obtain, if those who desire to become litigants in Ulster should be put to this infliction—I call it nothing less than an infliction—of an undue multiplication of appeals.
§ LORD PARMOOR
I suggest that the litigants will, and I suggest that that is the experience of litigants who have too large a number of appeals. But that is not the point I was making for the moment. I was saying that if there is to be a Supreme Court of Appeal in Ireland, then why do you want an Appeal Court of the Northern and Southern Provinces as well? I noticed that Lord Finlay attacked that provision, but it has been supported by the Lord Chancellor, who held that there should be one Supreme Court of Appeal for the whole of Ireland.
§ LORD PARMOOR
That is what I said. But it is because the noble and learned Lord differed from the noble Viscount—and I admit I am entirely in favour of the views put forward by the noble and learned Lord on the Woolsack—that it appears to me that opposition to the noble Viscount's Amendment really fades away. You must have, a Supreme Court of Appeal common to both Provinces, and I admit I see no reason whatever why, in addition to that, there should be a Court of Appeal in either Province, thereby multiplying appeals, and inflicting what I should call an intolerable hardship upon poor litigants.
§ THE EARL OF CLANWILLIAM
The one thing which confirmed me in my decision to vote for Lord Cave's Amendment is an expression which fell from the noble and learned Lord on the Woolsack, in which he said that there was an overwhelming desire evinced by the legal profession in the North of Ireland to have this added Court. I am not a legal luminary, and therefore I am only going to say a few words from the point of view of the unfortunate litigant. There is no question that this added Court will add to the expense of people in the North of Ireland 74 who have the misfortune to go to law. Lord Dufferin has said that there is a vital desire on the part of the people of the North of Ireland to have this extra Court. My noble friends in the North of Ireland amongst whom I live have informed your Lordships of a desire for all sorts of changes in the constitution and the last thing we hear is this vital desire for this extra Court. It is true that I have not been in Ireland for two or three months, but I should be extremely surprised if my noble friends will be as popular as they are now with the people in the North of Ireland, who from a financial point of view are certainly the hardest-headed men in the world—if any of your Lordships have had financial dealings with them you would learn that—when they discover that they will have to pay considerably more for their litigation if this Bill becomes law.
§ THE MARQUESS OF SALISBURY
Many of us feel in great difficulty as to the vote we, should give. We sympathise with a great deal that the noble and learned Viscount said, but I confess that in these matters we ought to be governed a good deal by the wishes of those who are concerned. After all, this Bill is supposed to be a boon to Ireland. As to whether it is we perhaps might not all agree, but at any rate at this stage we must proceed on that assumption, and to impose a legal system upon the North of Ireland of which she entirely disapproves would hardly seem the way to make that boon welcome. The North of Ireland might find hereafter that she is not so satisfied with the boon. As the case is now presented by her representatives in your Lordships' House, that she thinks she will not be happy unless she gets a full judicial system established, we can hardly do anything but accept her decision, and though I have great reluctance to multiply appeals and feel the force of what Lord Cave said I shall, if it goes to a Division, feel bound to vote against the Amendment.
§ On Question, whether the words "Supreme Court of Judicature of" shall stand part of the clause?—
Their Lordships divided: Contents, 88; Not-Contents, 73.75
|Canterbury, L. Abp.||Reading, E.||Dewar, L.|
|Birkenhead, L. (L. Chancellor.)||Roden, E.||Dynevor, L.|
|Selborne, E.||Donington, L.|
|Marlborough, D.||Vane, E. (M. Londonderry.)||Elphinstone, L.|
|Richmond and Gordon, D.||Erskine, L.|
|Farquhar, V. (L. Steward.)||Faringdon, L.|
|Sandhurst, V. (L. Chamberlain.)||Harris, L.|
|Abercorn, M. (D. Abercorn.)||Churchill, V.||Hylton, L.|
|Dufferin and Ava, M.||Finlay, V.||Lee of Fareham, L.|
|Exeter, M.||Milner, V.||Mostyn, L.|
|Salisbury, M.||Peel, V.||Newton, L.|
|St. Davids, V.||Oriel, L. (V. Massereene.)|
|Abingdon, E.||Ormathwaite, L.|
|Ancaster, E.||Abinger, L.||Penrhyn, L.|
|Bradford, E.||Ampthill, L.||Queenborough, L.|
|Chesterfield, E.||Annesley, L. (V. Valentia.)||Ranfurly, L. (E.Ranfurly.)|
|Curzon of Kedleston, E.||Askwith, L.||Rathereedan, L.|
|Dartmouth, E.||Avebury, L.||Romilly, L.|
|Devon, E.||Bledisloe, L.||St. John of Bletso, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Boston, L.||Somerleyton, L. [Teller.]|
|Cawley, L.||Stanmore, L.|
|Eldon, E.||Chalmers, L.||Stewart of Garlies, L. (E. Galloway.)|
|Howe, E.||Clements, L. (E. Leitrim.)|
|Jersey, E.||Clinton, L.||Stuart of Wortley, L.|
|Kilmorey, E.||Clwyd, L.||Sumner, L.|
|Lindsay, E.||Cochrane of Cults, L.||Teynham, L.|
|Lovelace, E.||Colebrooke, L.||Treowen, L.|
|Lucan, E.||Cottesloe, L.||Wavertree, L.|
|Lytton, E.||Cozens-Hardy, L.||Wigan, L. (E. Crawford.)|
|Onslow, E.||Crawshaw, L.||Wolverton, L.|
|Pembroke and Montgomery, E.||Deramore, L.||Wyfold, L.|
|Plymouth, E.||Desborough, L.||Wynford, L.|
|Argyll, D.||De Vesci, V.||Islington, L.|
|Wellington, D.||Harcourt, V.||Killanin, L.|
|Hutchinson, V. (E. Donoughmore.)||Kilmaine, L.|
|Aberdeen and Temair, M.||Kintore, L. (E. Kintore.)|
|Crewe, M.||Knollys, V.||Knaresborough, L.|
|Lincolnshire, M. (L. Great Chamberlain.)||Lawrence, L.|
|Barrymore, L.||Monckton, L. (V Galway.)|
|Linlithgow, M.||Bellew, L.||Monteagle, L. (M.Sligo.)|
|Drogheda, E.||Brancepeth, L. (V. Boyne.)||Monteagle of Brandon, L.|
|Fitzwilliam, E.||Buckmaster, L.||Oranmore and Browne, L.|
|Iveagh, E.||Clanwilliam, L. (E Clanwilliam.)||Parmoor, L.|
|Kingston, E.||Clifford of Chudleigh, L.||Phillimore, L. [Teller.]|
|Lanesborough, E.||Cloncurry, L.||Rathdonnell, L.|
|Lindsey, E.||Crofton, L.||Redesdale, L.|
|Mayo, E.||de Mauley, L.||Ribblesdale, L.|
|Midleton, E.||Decies,L.||Saltersford, L. (E. Courtown.)|
|Morton, E.||Denman, L.||Saye and Sele, L.|
|Spencer, E.||Desart, L. (E. Desart.)||Shandon, L.|
|Westmeath, E.||Ebury, L.||Southwark, L.|
|Wicklow, E.||Emmott, L.||Stanley of Alderley, L. (L. Sheffield.)|
|Allendale, V.||Fingall, L. (E. Fingall.)||Strachie, L.|
|Bangor, V.||Greville, L.||Sudley, L. (E. Arran.)|
|Bryce, V.||Hare, L. (E. Listowel.)||Swaything, L.|
|Cave, V. [Teller.]||Hemphill, L.||Sydenham, L.|
|Chilston, V.||Holm Patrick, L.||Vernon, L.|
On Question, Amendments agreed to.
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
§ VISCOUNT CAVE
I do not move any of the other Amendments, all of which are consequential on the one just decided.
§ THE LORD CHANCELLOR
There are Amendments not on the Paper, of which Lord Oranmore and Browne has given me 76 private notice. The first is on page 32, line 23, to leave out "Fourth" and insert "Seventh." This and the others are consequential on his earlier proposal.
Page 32, line 23, leave out ("Fourth") and insert ("Seventh").—(Lord Oranmore and Browne.)
§ Clause 41:
Page 32, line 37, leave out ("Fourth") and insert ("Seventh").—(Lord Oranmore and Browne.)
§ Clause 47:
Page 36, line 28, leave out ("Fourth") and insert ("Seventh").—(Lord Oranmore and Browne.)
§ Clause 48:
Clause 48, page 37, line 4, leave out ("or the House").—(Lord Oranmore and Browne.)
THE LORD CHANCELLOR moved, after Clause 53, to insert the following new clause—
54. Any decision of the House of Lords or of the Judicial Committee of the Privy Council as to the validity of any law made by or having the effect of an Act of the Parliament of Southern Ireland or Northern Ireland, and any decision of the Judicial Committee of the Privy Council on any other question of law which is to be determined by the Judicial Committee of the Privy Council under this Act shall be final and conclusive and binding upon all Courts.
The noble and learned Lord said: This Amendment was put down to fulfil a pledge given in the Committee stage to the noble and learned Lord, Lord Phillimore.
After Clause 53, insert the said new clause.—(The Lord Chancellor.)
§ Clause 54:
§ Amendments moved—
§ Page 40, line 25, leave out ("or deemed under Act to be in")
§ Page 40, line 28, after ("including") insert ("clerks of the Crown and Peace and").—(The Lord Chancellor.)
THE EARL OF MIDLETON had on the Paper an Amendment, after Clause 71, to insert the following new clause—
72.—(1)On the passing of this Act the Speaker of the House of Commons of the United
Kingdom shall communicate with the members returned by constituencies in Southern Ireland and in Northern Ireland respectively to serve in the Parliament of the United Kingdom, and shall invite them to state whether they accept the constitution established under this Act. Such acceptance shall be signified in writing to the Speaker and certified by him to the House of Commons for record in the proceedings of that House.
§ "(2) If within two months after the date of such communication by the Speaker, such acceptance is certified by the Speaker as regards a majority of such members returned by constituencies in Southern Ireland or Northern Ireland, this Act shall come into operation on the appointed day in manner and subject as provided by this Act, but, if at the end of the said period, a certificate has been given by the Speaker as regards a majority of the members so returned by constituencies in one part of Ireland, but not as regards a majority of the members so returned by constituencies for the other part of Ireland, His Majesty in Council may by order provide—
- "(a) for postponing the issue of a proclamation for summoning the Parliament for the other part of Ireland for such time as may be specified by the Order.
- "(b) for the exercise in the meantime of the powers of the Government of the other part of Ireland by the Lord Lieutenant with the assistance of a Committee consisting of such persons (who shall be members of the Privy Council of Ireland) as His Majesty may appoint for the purpose and of the powers of the Parliament of such part of Ireland by a legislative assembly consisting of the members of the said Committee, together with such other persons as His Majesty may appoint for the purpose—
§ "(3) Provided that at any time within two years after the passing of this Act His Majesty may issue a Proclamation for summoning a Parliament to meet for the other part of Ireland, but unless the Lord Lieutenant, within one month of the date for which such Parliament was summoned to meet. certifies that a majority of the members of the House of Commons of that Parliament have signified in writing to him that they accept the constitution established under this Act, His Majesty in Council may provide for the dissolution of that Parliament, and the provisions of the second subsection of this section in regard to the exercise of the powers of the Government and Parliament of the part of Ireland affected shall have effect."
§ The noble Earl said: I might perhaps remind the House that the noble Lord, Lord Askwith, at the close of the Committee stage, introduced a clause with the 79 object of securing that this measure should not come into operation unless it is desired by the part of Ireland concerned. That of the noble Lord took rather a stronger form than mine. Your Lordships, by a narrow majority, omitted Clause 70, which gave the power to the Government, in case, after summoning a Parliament, not more than half the members of one part of Ireland or the other took the Oath, practically to place the whole of the Government of that part of Ireland in the hands of the Lord Lieutenant. Lord Askwith suggested a different form. He suggested that the provision should not come into operation unless, within a year after the passing of this measure, the provisions should have been accepted by a majority of the members of both Parliaments returned to serve. Both of these proposals had one difficulty in common—namely, the necessity of calling a General Election, which in the present unfortunate state of Ireland might not obtain a true representation of public opinion, and basing the decision of the Government on the result.
§ The Government clause also had another difficulty, as it proposed that the matter might be put to the electors once, and if refused by them the Government could ask the Lord Lieutenant to undertake control; and then it might be put a second, or a third, or a fourth time. I think your Lordships would agree that of all subjects this is one upon which we most want to come to some finality in Ireland, and not to keep the whole or any part of the country in a continuous state of unrest. Lord Askwith provided against that, because his clause made the decision, once given, final. What I venture to suggest is a compromise between these two extreme opinions.
§ I should personally infinitely prefer that that part of Ireland, if any, which does not accept the Act, should remain under the authority of the Imperial Parliament, but that is not regarded by the Government as possible, for the reasons which they have advanced several times during the debate. They hold if one part of Ireland, the North for instance, accepts and the South refuses the Act, that the administration of the South can no longer be by Great Britain. I am not going to argue that question, but I take it as being the basis on which they have proceeded throughout, and we shall endeavour to 80 accommodate legislation to it. Therefore what I ask your Lordships to agree to is that we should not have a General Election in Ireland as soon as the Bill passes, but that application should be made to the existing Irish representatives, who are now bound, though they do not appear, to serve at Westminster. They were not long ago elected as representatives of the Irish people, and application should be made to them to say by a majority, both in the North and the South, whether they do or do not accept the conditions of the Bill and are prepared to work it.
§ I have suggested that application should be made to them by the proper authority to deal with all members of the British Parliament—namely, the Speaker of the House of Commons. I have heard that the Government object to the Speaker as that authority. I cannot myself see that there can be anything derogatory to the dignity of the Speaker in making an announcement to each Member that he should forward his acceptance or refusal of the Constitution which the British Parliament has or will have provided for Ireland. If Members do not accept it, or do not make reply, then in accordance with the Government scheme we fall back upon government of that part of Ireland by the Lord Lieutenant. I think, considering the state of Ireland, that you should allow a second chance, and that that second chance should not be given through the men who, having been elected, have declined to accept responsibility, but should be by an appeal to the constituencies—an appeal which instead of being made at this moment of excitement and trouble, due to all that has been going on during the last few months, should be made under the clause at any time within two years which the Government may select. I think after that even the most sanguine member of the Government will agree with me in his heart, even though he may not be able to do so on this floor, that if those who at present represent Ireland will not take the Bill, and if the men elected at the best time at which the Government can call an election will not accept it, then we may regard this Bill for those purposes as dead, and it is of no use keeping the whole of Ireland in a state of unrest and trouble, trying to induce them to accept a measure which they are determined to have nothing to do with.
§ The effect of my Amendment would be, while giving two opportunities to the 81 Government to test the willingness of the South or of the North, as the case may be, to accept the measure, that after that the measure should, as far as that part of the country is concerned, be null and void. There are one or two Amendments in the drafting of my new clause which will be necessary. We have had very little time since the Committee stage, and even with the utmost endeavour we have not been able to get all our drafts complete. For instance, in the second paragraph on page 19 of the Amendment Paper, sub-head (a) should go out. There is no reason for it. In sub-head (b) the words "in the meantime" should also be deleted because they are unnecessary. Then in subsection (3) it is necessary, after the words "Provided that," to insert the words "after the appointed day has been duly fixed under this Act for the part of Ireland in respect of which such acceptance has not been certified by the Speaker and." Those are only drafting words. They enable the clause to come in all respects into harmony with the rest of the Bill.
§ The procedure will be as follows. First will come the decision of the Government as to the appointed day. Then, by the clause which is now numbered 72 and which was inserted on the motion of Lord Salisbury, this House and the other House will decide whether or not for the one part of Ireland, or the other part, or both parts, it is possible to put the Act in motion. If that fails and no action is taken the Government will have their second opportunity after a General Election in Ireland, and again the same process will be gone through. Therefore about this very doubtful question whether either or both parts of Ireland desire this measure, you will have two opportunities of testing their opinion, and before the appointed day is fixed an opportunity for this House and the other House, by Resolution, of affirming whether or not the measure should be put in force.
§ I trust that your Lordships will understand from this explanation that what I am endeavouring to do is not to press the views which we hold upon the House. We hold, and always shall hold, that it is unwise and altogether undesirable to start a Parliament in the North if you cannot simultaneously start a Parliament in the South. We believe that that will cause the utmost irritation, and would be the cause of untold trouble to the Government 82 in the future. But they have elected to take that responsibility against the advice of all of us and against the opinions of every public organ in the South of Ireland, and therefore we are endeavouring to make the machinery for it as little irksome as possible. If this lamentable and absurd conclusion is arrived at, that the people who do not want a Parliament are to have one given to them, in order to satisfy people who are exasperated by that Parliament being given and their own being cut down, we desire to avoid that that position shall be put to the South in a form which is most likely to obtain a negative. If you read your newspapers you will see that a general election at the present moment would be one of the greatest absurdities you can imagine, and the result would be a travesty of public feeling. You should avoid that, and wait for a better time, and then, much as we dislike it, leave the Government in a position on their responsibility of establishing one Parliament in the North as soon as events prove favourable, and of governing as they desire, though not as we desire, the rest of Ireland through the Lord Lieutenant during the period of that second occasion. We desire to give to Ireland as far as we can rest from the imposition of this measure or the attempt at imposition, and to throw back upon the Government after two years the responsibility of endeavouring, as I hope they will endeavour, to consider the wishes of the South of Ireland more than they have done up to now in the attempts which they are making to placate and conciliate the country.
After Clause 71, insert the sail new clause.—(The Earl of Midleton.)
§ THE LORD CHANCELLOR
The Amendment proposed is, after Clause 71, to add the words printed on the Paper as altered in manuscript. I will confine myself to indicating the attitude which the Government propose to take up in relation to this proposal. The situation is not a particularly easy one because we are in disagreement with the proposal contained in subsection (1), that "on the passing of this Act the Speaker of the House of Commons of the United Kingdom shall communicate with the Members returned by constituencies in Southern Ireland and in Northern Ireland respectively to serve in the Parliament of the 83 United Kingdom, and shall invite them to state whether they accept the Constitution established under this Act." Such a proposal is entirely novel to me, and I cannot think that it is a course that either Mr. Speaker or any British authority could be usefully directed to take in relation to any persons who, having been elected for the British House of Commons, have studiously abstained from making any attempt to attend and have not concealed that they are not prepared to take the oath of allegiance. It is proposed that Mr. Speaker is to make a communication to those Members, and if he does not receive a reply from them certain inferences are to be drawn. So far as we are concerned, we prefer our own plan.
The noble Earl has talked more than once of the Bill coming into operation in a few months. I think the noble Earl knows that it is in the power of the Government, as circumstances seem to recommend, to make a very much longer postponement than that, a postponement quite long enough to give us an opportunity of judging whether or not an election in the South of Ireland would lead to such a pandemonium as we know would take place if there were an election to-morrow. In the latter part of subsection (2) of the proposed new Clause 72 your Lordships will see that the noble Earl's Amendment contains these words—His Majesty in Council may by order provide…for the exercise in the meantime of the powers of the Government of the other part of Ireland by the Lord Lieutenant with the assistance of a Committee consisting Of such persons … as His Majesty may appoint.Although that is not worded precisely as our proposals in the original Bill were worded, and although we prefer our own words, still what the noble Earl does is to make good, if I may say so with respect, what appeared to me to be the most extraordinary position that was reached in Committee. Your Lordships ought to appreciate that by accepting the noble Earl's Amendment we shall in effect be giving expression to the realisation of some such provision as was contained in the clause which I think I called the "Crown Colony clause" which was struck out in the Committee stage, and which is the only effective method for regulating the Government of the South of Ireland at all on the hypothesis that the South of Ireland did not undertake its functions under the Bill. The noble Earl's proposal does make 84 good that startling defect in the Bill as it left this House after the Committee stage. Though I am by no means enamoured of the proposals contained in subsections (1) and (2) I think it is necessary that the defect which existed in the Bill should be made up in such a manner as not to destroy not only the substance but the whole meaning of the Bill, and I, in the absence of any other proposal, will certainly not vote against the noble Earl.
The noble and learned Lord said "in the absence of any other proposal." I have another proposal.
Would I be in order if I were to explain that proposal now, or had I better wait till afterwards?
§ THE LORD CHANCELLOR
The point has already arisen in the course of the debate. Whilst the noble Lord knows that I give no rulings on Order, your Lordships did think it convenient that Lord Oranmore should explain his Amendment though the House had actually before it Lord Shandon's Amendment. What the noble Lord suggests would, I think, meet the wishes of your Lordships.
I thought it would be more convenient if I explained my proposal at the present moment. I differ somewhat from the noble Earl, Lord Midleton, on this particular point. The Amendment which he moved does undoubtedly go a great way to provide certain safeguards for the South and West of Ireland, but I do not approve of the principle of Crown Colony government. My proposal will be very much the same as the noble Earl's in many respects, but in substitution for Crown Colony government it would leave the twenty-six counties under the Parliament of the United Kingdom. The noble Earl said the Government had definitely stated they would not entertain such a proposal. I was unaware of that, and do not remember anything that was said to that effect. I remember most distinctly we were told that in no circumstances would the Government entertain any proposals which prevented Ulster setting up her Parliament in the North of Ireland, but I do not remember anything definitely being said which ruled out 85 altogether allowing the remaining portion of Ireland to remain under the United Kingdom. That is a proposal which I very much prefer to Crown Colony government.
I would prefer to say to the elected representatives of the South and West of Ireland, Either you can accept this Bill, or you can remain as you are now under the Parliament of the United Kingdom. That would seem to me a far mom likely proposal to be acceptable than the one of establishing Crown Colony government. We are told at present that there is a spirit of madness ruling Ireland, and it would be better to leave her alone as she now is under the United Kingdom until in saner times Irishmen can say what they really want. The proposal of Crown Colony government, on the other hand, hardly seems to me one which would eject the evil spirit at present ruling Ireland and pave the way to peace and understanding. What would the Government be a party to? They are about to pass a Bill which would force, not only on those who they say are victims of madness, but also on all sections of the community of all political creeds a Bill which not a single one of them wants. At the same time they would be holding at their heads a pistol of Crown Colony government, and saying "If you do not swallow this Bill you will be dosed with Crown Colony government until you do." Can such a policy as that be likely to produce a peaceful acceptance? I maintain rather that it would be likely to induce representatives in Ireland to take any Oath of Allegiance, or to do anything to set up a Parliament. Afterwards they would refuse to regard any oath as binding and would say that it had been forced upon them and that they would carry out in the Irish Parliament; whatever had been decided upon by Dail Eireann. You cannot, I maintain, force self-government on anybody. You can only offer it, and if it is accepted when offered, then those who accept it would be honourably bound to attempt to work it.
My Amendment would offer self-government to the South and West of Ireland, but it would not attempt to force it upon them: It would allow them to remain as they are at present, a part of the United Kingdom. Further, I contend that the adoption of my Amendment would throw upon the Irish people themselves the responsibility of saying what they want and what they do not want. This is a responsibility which they have always 86 tried to avoid. Throw this responsibility on them and make them say whether they desire this form of government or whether they do not, and then let them abide by the decision. If they are allowed to remain part of the United Kingdom there is some chance at all events of the finality of which the noble Earl, Lord Midleton, spoke, but I can see no chance whatever of finality in saying to them, "Either you accept this form of Government, or you accept Crown Colony government for all time." That, to my mind, would never bring finality. It would be impossible that such a condition as that could go on for all time. Something else would have to take its place, and I maintain that there would be no finality in it whatever. I think my alternative is a far better one, and one much more likely eventually to bring about an understanding and peace than the policy of introducing Crown Colony government. I hope that the Government will see their way to accept my alternative rather than the one which has been moved by the noble Earl.
§ THE MARQUESS OF SALISBURY
I share to a very large extent the view of my noble friend who has just sat down. I deeply regret that in the Committee stage your Lordships thought fit—with wisdom, of course, much superior to my own—to reject the Amendment moved by my noble friend Lord Askwith. I believe that was the proper solution, and that the matter should have been submitted to the judgment of the people of Ireland and by their decision the event should have been governed. But your Lordships thought otherwise, and as a loyal member of your Lordships' House it is my duty to accept the decision to which you came. The question is, What can be done in that direction, but on a much humbler scale?
There are two suggestions now before your Lordships—the suggestion of my noble friend Lord Midleton, and that of my noble friend Lord Farnham. Lord Midleton has the advantage of having submitted his Amendment to the House, and I think his Amendment has a much greater chance of acceptance than the Amendment suggested by my noble friend Lord Farnham. For myself, I confess that if I could have had my way I would have been glad to see Lord Farnham's Amendment included in the Bill, but the Amendment of my noble friend Lord Midleton does secure certain things which are desirable. 87 It secures, in the first place, that you shall not impose on the North of Ireland or on the South of Ireland a system of which they disapprove. The people of Ireland are to be asked first of all through their representatives who are entitled to sit in the House of Commons, and a second time through the representatives who will be elected for the Dublin House of Commons and for the Belfast House of Commons. If on both those occasions the representatives of the people of Ireland reject the Bill, the proposed Parliament will not come into being, and that portion of the Bill will come to an end. That is what is proposed by my noble friend's Amendment, and that appears to me to be a very valuable provision, because I cannot believe that it is good statesmanship to impose upon any part of Ireland a Parliament which she rejects. That appears to me to be elementary.
Then there is another proposal, that when the decision has been given there shall be a certain degree of finality. My noble friend who has just sat down thinks that it will not be final, and in one sense I agree with him. I do not imagine for a moment that Crown Colony government would be permanent, but I think that, when we have had a couple of years to consider them, anything so foolish as the present proposals of the Government cannot form a permanent settlement of this question. There is no element of settlement. in this Bill. All the wonderful things that were said about settling the Irish question must be entirely laid aside, I am quite sure, so far as this Bill is concerned.
Therefore as my noble friend Lord Midleton has proposed this clause (which has been very carefully drafted), and as I understand the noble and learned Lord on the Woolsack does not intend at the present moment to resist it, I for my part shall support it, I cannot say that it is half a loaf, but it is part of a loaf, and part of a loaf is better than no bread.
§ THE LORD CHANCELLOR
I agree with the noble Marquess who has just sat down that the proposal of Lord Farnham is one which is really incompatible with the framework of the Bill. By that proposal the whole spinal cord of the Bill is at once destroyed. I do not know if that was the intention or not of the noble Lord in drafting it. I shall not now reply to the 88 very gloomy predictions with which the noble Marquess closed his speech. He may be right or he may not be. I refuse to penetrate into the future with the same confidence as the noble Marquess. Some one once said of a prophet, "It is no use arguing with him; you can only believe him of disbelieve him." I do not choose to believe or to disbelieve my noble friend.
§ Clause 72:
§ LORD ORANMORE AND BROWNE had on the Paper an Amendment to leave out subsection (3). The noble Lord said: I only propose to move a verbal Amendment instead of that which stands on the Paper in my name. I desire to substitute the words "Council of Ireland" for "Irish Senate" in line 17, so as not to alter the Amendment that was inserted at the instance of the noble Marquess, Lord Salisbury.
Page 55, line 17, leave out ("Irish Senate") and insert ("Council of Ireland").—(Lord Oranmore and Browne.)
§ Second Schedule:
§ Amendments moved—
§ Page 59, line 22, leave out ("for") and insert ("of")
§ Page 59, line 30, leave out ("Bodies")
§ Page 59, line 31, leave out ("the")
§ Page 60, line 4, leave out ("Elected by the method of Proportional Representation")
§ Page 60, line 5, in the first column, leave out ("Bodies") and insert ("Description of Senators")
§ Page 60, line 5, in the third column, leave out ("Mode of Election") and insert ("Electors")
§ Page 60, line 6, in the first column, leave out ("the")
§ Page 60, line 6, in the first colunm, leave out ("and") and insert ("or")
§ Page 60, line 6, in the third column, leave out ("By")
§ Page 60, line 6, in the third column. leave out ("Archbishop") and insert ("Archbishops")
§ Page 60, line 7, in the first column, after ("Sees") insert ("situated wholly or partly")
§ Page 60, line 9, in the third column, after ("Sees") insert ("situated wholly or partly")
§ Page 60, line 10, in the first colunn, leave out ("The")
§ Page 60, line 10, in the first column, leave out ("and") and insert ("or")
§ Page 60, line 10, in the third column, leave out ("By")
§ Page 60, line 10, in the third column, leave out ("Archbishop") and insert ("Archbishops")89
§ Page 60, line 11, in the first column, after ("Sees") insert ("situated wholly or partly")
§ Page 60, line 12, in the third column, after ("Sees") insert ("situated wholly or partly")
§ Page 60, line 14, in the first column, after ("taxpayers") insert ("or ratepayers in respect of property in")
§ Page 60, line 14, in the third column, leave out ("By")
§ Page 60, line 15, in the third column, after ("taxpayers") insert ("or ratepayers in respect of property in")
§ Page 60, line 18, in the third column, leave out ("By")
§ Page 60, line 20, in the first column, after ("taxpayers") insert ("or ratepayers in respect of property in")
§ Page 60, line 21, in the third column, after ("taxpayer") insert ("or ratepayers in respect of property in")
§ Page 60, line 22, in the first column, insert ("representatives of County Councils in")
§ Page 60, line 26, in the third column, leave cut ("By").—(Lord, Oranmore and Browne.)
§ Third Schedule:
page 60, line 31, leave out ("for") and insert ("of").—(Lord Oranmore and Browne.)
§ Fourth Schedule:
§ Amendments moved—
§ Page 61, line 2, leave out ("persons belonging to the bodies named") and insert ("the electors speeilied"}, and leave out ("First") and insert ("Second")
§ Page 61, line 11, after ("years") insert ("Provided that where a particular qualification is required under Part III. of the Second Schedule for a senator to be elected by any of the classes of electors specified in that part of the said Schedule, such a senator shall cease to hold office on ceasing to have that qualification. The disqualification of persons in Holy Orders shall not apply in respect of any Archbishop or Bishop of the Roman Catholic Church or Church of Ireland elected as a senator of the appropriate class")
§ Page 61, line 17, leave out ("or") and after ("in capacity") insert ("or otherwise").
Page 61, line 24, after the third rule insert a new rule as follows:—
("4. At any contested election of five or more members of the Senate of Southern Ireland, the election shall be according to the principle of proportional representation, each elector having one transferable vote as defined by the Representation of the People Act, 1918, and His Majesty in Council shall have the same power of making regulations in respect thereto as he has under subsection (3) of section twenty of that Act and that subsection shall apply accordingly") (Lord Ornamore and Browne.)
§ Seventh Schedule:
THE LORD CHANCELLOR moved, at the end of Clause (1) (b), to insert—
(c) The existing Lord Chief Justice of Ireland, if he becomes Lord Chief Justice of Southern Ireland, shall so long as he holds that office be entitled to retain the rank and title of Lord Chief Justice of Ireland and to exercise any jurisdiction in respect of and on behalf of His Majesty as visitor to any college or other charitable foundation exercisable by him on the appointed day.")
The noble and learned Lord said: This is a necessary Amendment, and I do not think there can be any controversy in regard to it.
Page 67, line 7, at end insert the said new paragraph (e).—(The Lord Chancellor.)
§ On Question, Amendment agreed to,