§ Bill, as amended, further considered.
§ MR. PARKER SMITH (Lanark, Partick)
said, he should require to recapitulate some of the observations he had made five minutes before midnight last night in introducing his Amendment. That Amendment was to the effect that, at he prerogatives of the Queen shall be exercised by the Lord Lieutenant, and that he shall, "as representing Her a, Majesty" (instead of "in Her Majesty's name," as provided in the clause), summon, prorogue, and dissolve the Irish Legislature. This might sound like a verbal Amendment, but he did not think the Government would so regard it. The scheme of the Bill was that two particular phrases should be used, so that when the Lord Lieutenant was to "represent Her Majesty" it meant that he was to act on the advice of the Imperial Government; but when the words "in Her Majesty's name" were employed they were intended to signify that what ever had to be done should be done on the advice of the Irish Executive. The particular prerogative given by the clause stood on a different footing from gall the other prerogatives delegated to the Lord Lieutenant under the Bill, because the latter might be withdrawn from time to time; but in the present case the prerogative was not delegated; it was absolutely given by Act of Parliament, and could only be withdrawn by Act of Parliament. He wished to point out what would be the effect of his Amendment. There might be cases in which some foreign complication occurred as to which it might be of the first importance to the Imperial Parliament to prorogue the Sittings of the Irish Legislature. There might also be cases in which it might 862 be important to summon the Irish Legislature; while in the case of a divergence between the two Governments it might be essential to the Imperial Government that it should have power to dissolve the Irish Legislature, so that an appeal might be made to the Irish constituencies. It seemed to him it would be a satisfactory solution of the difficulty if the prerogative were left on the footing of other prerogatives. If it were delegated, with the power of recalling it at any time, it would be satisfactory.
In page 3, line 29, to leave out the words "in Her Majesty's name," in order to insert the words "as representing Her Majesty."—(Mr. Parker Smith.)
§ Question proposed, "That the words proposed to be left out stand part of the Bill."
§ THE CHIEF SECRETARY FOR IRELAND (Mr. J. MORLEY,) Newcastle-upon-Tyne
said, as far as he understood the explanation of the hon. and learned Member, the object of the Amendment was to reserve to the Imperial Parliament the power of deciding when the Lord Lieutenant should dissolve the Irish Legislature. The hon. and learned Member contended that the Imperial Government ought to have the opportunity and the means of signifying when they thought the Irish Legislature should be dissolved. Apart from the other objections to this proposal, the hon. and learned Member must see that, if it were adopted, it would take away from the Irish Government or the advisers of the Lord Lieutenant the responsibility for what was undoubtedly one of the most important, solemn, and decisive acts in which any Government could take part in advising either the Sovereign or the Lord Lieutenant. What, he asked, would be the effect on the position of that House if there were some Body outside it—he wished it to be understood that he was not now thinking of "another place"—but some entirely different Body, the Ministers of which had the power of compelling the Government of Her Majesty to advise the Sovereign as to when it was proper to dissolve the Imperial Parliament. Such a state of things would entirely contravene the whole spirit and working of our Parliamentary Institutions. It was true that circumstances might arise in which 863 according to the views expressed by the hon. and learned Member, a Dissolution of the Irish Legislature would be deemed necessary; but if such a crisis should arise, it would be easy for the Government or Imperial Parliament to signify to the Lord Lieutenant that such a view was entertained. He confessed, however, that he could not contemplate the possibility of such a power being exercised except under the most remarkable and extraordinary circumstances, and unless they arose he could not imagine a case in which such a power could ever be exercised. He should like to know, supposing the Irish Government were averse to a Dissolution, and a Dissolution were, nevertheless, forced upon them in the way the hon. and learned Member thought desirable, what would be the effect of such a step on the part of the Imperial Government upon the electorate of Ireland? He could hardly conceive anything that would be more certain to turn public opinion in Ireland against that Party in Ireland who were in the minority of the Irish Legislature, and who were accomplices in such an invasion of the natural and Constitutional privileges of the advisers of the Lord Lieutenant. On these practical grounds, and without going into the details referred to by the hon. Member, the Government must oppose the Amendment.
§ SIR H. JAMES (Bury, Lancashire)
said, he thought that some protest ought to be made against one of the arguments used by his right hon. Friend the Chief Secretary. The right hon. Gentleman had said that they in the Imperial Parliament would not tolerate any other Body in interfering in such a way with the advice of the Imperial Ministers as to bring about a Dissolution of the Imperial Parliament. So far he agreed with his right hon. Friend; but he wished to know whether the right hon. Gentleman put it to the House that there was a complete analogy between the Imperial Parliament of the United Kingdom and a subordinate Parliament in Ireland?
§ SIR H. JAMES
said, at any rate, for the purpose of the clause, the Irish Parliament was to be in an equal position to the supreme Parliament, but he (Sir H. James) had never before heard that there 864 was any claim for announcing a Dissolution of the subordinate Parliament such as existed in the Imperial Parliament. His right hon. Friend had said the Imperial Government ought not to have the supreme power asked for by the Amendment, because the Lord Lieutenant might, on the advice of the Imperial Government, dissolve the Irish Parliament, and at the same time he had said what an extraordinary and repulsive thing it would be to the Irish Legislature if they should provide positively in this Bill that this power should be maintained by the Imperial Parliament. He (Sir H. James) could not see where his right hon. Friend's indignation should come, seeing that in the same breath he said that on a crisis the Lord Lieutenant might advise the Imperial Executive. He (Sir H. James) did not see what course the hon. and learned Gentleman would take in regard to dividing the House. He quite saw that there might be different views on the one side and the other, but he did not think that those of the right hon. Gentleman the Chief Secretary were the views that should prevail.
*MR. BABTLEY (Islington, N.)
said, this short discussion showed how they were drifting in this Bill. At the commencement of the Debates the Prime Minister had continually stated that the Irish Legislature was to be a subordinate one, and when he (Mr. Bartley) had brought forward an Amendment to secure that it should be actually styled in the Bill subordinate, it was distinctly stated that it would be such in reality, and that it was, therefore, unnecessary to put in the words. But an incidental remark just made by the Chief Secretary showed that the Government would not accept the proposed words, because in their own minds they meant that this was not to be a subordinate Legislature in all matters that concerned it, but was to be co-ordinate with the Parliament at Westminster.
§ MR. SEXTON (Kerry, N.)
said, that if the Debate was short it had disclosed a great deal of ignorance also. He entirely failed to understand the hon. Member (Mr. Bartley) when he said the House was drifting in a certain direction. In what sense did the refusal of the Amendment show that the Irish Parliament was not to be a subordinate Parliament? The hon. Gentleman said the House was 865 drifting, and that the admission that the Irish Parliament was a subordinate Parliament had been given away by the refusal to adopt the present Amendment, and that, consequently, the Irish Parliament would not be subordinate. The Irish Parliament, like every other Parliament of the Empire, except that in which they sat, would be a subordinate Parliament. He did not hear cither from the hon. Gentleman (Mr. Bartley) or from the right hon. Gentleman the Member for Bury (Sir H. James) the fact or the usage of limiting the Session of Parliament in any of the Colonies by the will of the Imperial Ministry. This was no new experiment that was being engaged in—
§ MR. SEXTON
The gentleman who cheered that was very young. He might as well stay there and learn something. He showed more a willingness to follow parental example than a Constitutional knowledge to sneer at what he did not understand. The Irish Parliament would not be alone. There were about 20 others in the Empire. There were seven in Australia, one at the Cape, eight or nine in Canada, and there were others in various other places in the Empire.
§ MR. SEXTON
Could the noble Lord who cheered ironically name one of these in which either the beginning of a Session, or the end of a Session, or the duration of a Session of Parliament was determined by the Imperial Ministry? If the noble Lord could not, he had better allow the argument, properly so-called, to proceed. Was it really seriously proposed that after a Parliament was established in Ireland to look after Irish affairs Ministers responsible to the Imperial Parliament, and knowing less then, he supposed, of Irish affairs than they did now—which was saying a great deal—that they were to say when the Session of the Irish Parliament was to begin and end, and when the Parliament, created by the electors in Ireland, was to be dissolved? The beginning and end of the Sessions should be determined by the convenience and necessities of Ireland. The Irish people know better than the Imperial Parliament could know when their own Parlia- 866 ment should begin and end, and the Irish Ministers were the persons to say when the Irish Houses should meet, when their business was done, and when it was that it was expedient that their functions should cease. The proposal to place these matters in the jurisdiction of Ministers in England was absurd, and he thought it right that one Irish Member at least should speak in the Debate, and say that the proposal raised in the Amendment was one that would not be tolerated.
§ MR. BYRNE (Essex, Walthamstow)
said, the hon. Member for North Kerry (Mr. Sexton) asked them to point out any other subordinate Parliament to winch such a provision as that which it was now sought to incorporate in the Bill applied. Well, he (Mr. Byrne) would venture to suggest, by way of reply, that this was essentially a new experiment, and he would ask the hon. Member for North Kerry, in turn, if he could point to a single subordinate Legislature that had representation in the Imperial Parliament? The hon. Member said—"How can you know as well as Ireland when the Prorogation of the Irish Legislature should take place?" He (Mr. Byrne) begged to protest against that form of expression. Since Clause 9 had been passed Nationalist Members ought to use the expression "we," and not "you," in speaking of this House, for they would be Members of it, and the Imperial Executive would represent them equally with the other parts of the United Kingdom.
§ MR. A. J. BALFOUR (Manchester, E.)
said, he did not think that the matter was so simple as the hon. Member (Mr. Sexton) seemed to suppose. The hon. Member had quoted Colonial precedents, as hon. Members invariably did when they suited their purpose, and repudiated them when they did not. But as the hon. Member who had just sat down had so well pointed out, in reality there was no analogy between Ireland and the Colonies. There was one difference that had escaped his hon. and learned Friend, to which attention should be invited—a difference that was vital. Here was an operative veto to be given on the advice of a Minister responsible to the Imperial Parliament. Let them suppose that the veto was used, and that the. Ministry in Ireland resigned. The Lord 867 Lieutenant would find himself saddled with an ex-Ministry that had the confidence of the Legislature, and to whom no successor would be found which would have that confidence. How were they to get out of the deadlock unless they allowed the Lords Lieutenant to ascertain whether the deliberate voice of the Irish people was or was not in harmony with the representation of the Legislative Assembly? He assented to what had fallen from the hon. Member for North Kerry as to those cases in which they would be dealing with purely Irish affairs—when the Viceroy, for instance, was acting on the advice of the Irish Cabinet, and on that alone, and where the matter was a purely domestic one. There would be a good deal then to be said for the hon. Member's view. But by the whole structure of the Bill it was evident that crises would arise in which the Lord Lieutenant would act as a Member not of the Irish Government, but of the Imperial Government, and he thought that when those crises did arise they ought to allow the Imperial Government, acting through the Lord Lieutenant, to have power not merely to say—"We will have this Bill and we will not have that Bill," but to say— "We will take the voice of the Irish people; we will dissolve the Legislature, and find out what their views are, and let them shape your future policy."
§ MR. SEXTON
said, that if a Bill passed, it would not be open to the Lord Lieutenant to evade giving his assent by dissolving Parliament; but if the Government resigned, there would be no Irish Cabinet, and the Lord Lieutenant might, of course, dissolve.
§ MR. A. J. BALFOUR
said, he was assuming that the Lord Lieutenant refused his assent, acting on the advice of his colleagues in Great Britain, saying—" We will not allow you to pass this Bill. "Thereupon, he assumed that the Irish Ministry would resign or would be dismissed by the Lord Lieutenant, who, however, could not form another Government having the confidence of the Irish Assembly.
§ MR. A. J. BALFOUR
Then they were to have the Lord Lieutenant in 868 three capacities. He found it hard enough to swallow the Lord Lieutenant in two capacities. Now, it appeared, they were to have him acting in three. If they were to have the Lord Lieutenant sometimes the mouthpiece of the Irish Government, sometimes the mouthpiece of the English Government, and sometimes acting on his own responsibility, he would be a veritable official Cerberus with three heads. The Lord Lieutenant would find it difficult to carry out the multifarious duties which would devolve upon him. It appeared to him that the case he had stated was one which deserved the attention of the Government, and which could not be so lightly dismissed as the hon. Member for Kerry (Mr. Sexton) had attempted to dismiss it.
§ MR. W. E. GLADSTONE
The right hon. Gentleman has spoken of the Lord Lieutenant acting in three capacities, and has referred to him as a Cerberus barking in Dublin. If that comparison holds good we have such a Cerberus in every self-governing colony, because in all such colonies the Lord Lieutenant will sometimes act on the advice of the local Executive, will sometimes exercise the veto on his own responsibility, and will sometimes refer to the Imperial Government for his instructions. So will it be in Ireland. I do not deny that the crisis, with the arrival of which the right hon. Gentleman feeds and entertains his imagination, may possibly in some remote case occur. He says it is a certainty. I do not admit it to be a certainty, but, at all events, the Bill provides for it. The right hon. Gentleman says that in consequence of some extremely rare and highly improbable case the exception now proposed ought to be agreed to. If we are to act upon that proposal it will be exactly like the case of a physician recommending all the Members of this House to be in a state of constant physic when they are in good health. We provide for the regular action of the Irish Government, and we decline to frame our Bill on the supposition that extreme and improbable cases will habitually occur.
§ *MR. BLAKE (Longford, S.)
denied that in the suggested case of a conflict between the Viceroy and his Cabinet the latter would be called upon to resign. If the Irish Executive, upon whose re- 869 sponsibility a Bill had passed through both Houses of the Irish Legislature, felt that it had with it the Irish people, its position would not be weakened but strengthened by the circumstance of the supposed conflict. To suggest that because the Irish Government found that the Imperial Government declined to permit the Viceroy to give his assent they would resign was to put them in an illogical and utterly inconsequential position. In rare instances in the Colonies—and he believed such instances would be rare in Ireland—Bills had been disallowed or the Royal action had been reserved, but it had never been suggested that it then became the duty of the Colonial Government to resign. The Irish Government, instead of resigning in such a case, would rather adhere to their offices, and at the appropriate time decide whether they would take the judgment of the Irish people as to whether they should persist in presenting the measure to which the Imperial Government had refused to assent. If the Irish Ministry resigned for this or any other reason it would be the duty of the Viceroy to try and find other advisers, and if he failed to do so he would be bound to recall his old advisers; and so to act upon advice as to a Dissolution, or any other Irish political question.
§ COMMANDER BETHELL (E.R., Holderness) York,
said, the argument used by the hon. Member who had just sat down was directed against the Irish Legislature being placed in any subordinate position at all. The hon. Gentleman said that in case of a difference of opinion between the Irish and the British Parliament it would be the duty of the Irish Parliament to persist in the course it had pursued and to appeal to the Irish people. It seemed to him (Commander Bethell) that the Amendment showed that the Constitutional system in vogue in Great Britain was not necessarily good for a country which was not a Sovereign Power. It was because Ireland was not a Sovereign Power that difficulties of this kind had perpetually cropped up.
§ Question put.
§ The House divided:—Ayes 127; Noes 83.—(Division List, No. 278.)
§ SIR H. JAMES (Bury, Lancashire)
said, he wished to move an Amendment 870 providing that there should be annual Sessions of the Irish Legislature. No doubt such a provision was made in the Schedule, but the difficulty was that under the 29th section of the Bill the Irish Legislature might repeal that provision. He wished to make it clear that the provision could not be repealed by the Irish Legislature. The Schedule which directed that the Irish Legislature should meet once a year, being merely a part of the Election Law, might, under the provisions of Clause 29, be repealed by the Irish Legislature, and then the Irish Government would have their hands free to summon or not to summon the Irish Legislature as they might think fit. Such a state of things they would all deplore. He hoped they would not have that proposal described as an insult to the Irish people, for this was a duty imposed on all subordinate Parliaments by the Statutes which created them. He had before him the Constitution of British North America, under which both the Dominion and the Provincial Parliaments were bound to meet every year, and a similar provision was embodied in the Constitution of New South Wales and Victoria. As it was evident that the Government intended that a like obligation should be imposed on the proposed Irish Parliament, he hoped that they would get rid of all doubt by accepting his Amendment.
§ Amendment proposed, in Clause 5, page 3, line 30, after the word "summon," to insert the words "at least once in every year."—(Sir H. James.)
§ Question proposed, "That those words be there inserted."
§ MR. SEXTON (Kerry, N.)
said, it was undoubtedly necessary, and it was indeed the intention of the Irish Members, that the Irish Legislature should assemble every year, but he thought that the provisions of the Bill as they stood in the 29th clause and in the Sixth Schedule would sufficiently secure that object. The right hon. Gentleman seemed to be under the impression that this was a matter of Election Law; but if he would look to the Definition Clause he would find that the point did not come within the Election Law, nor could that part of the Schedule that applied to it be altered by the Irish Legislature.
§ SIR H. JAMES
said, the words of the 29th clause were to be read subject to the Sixth Schedule, which incorporated the Election Laws.
§ *THE ATTORNEY GENERAL (Sir C. RUSSELL,) Hackney, S.
said, that while he agreed within the hon. Member for North Kerry (Mr. Sexton) that the summoning of the Irish Legislature did not come within the Election Law, and that the portion of the Schedule which related to it was sufficient, nevertheless, as the Amendment merely expressed what was undoubtedly the intention of all Parties—namely, that the Irish Legislature should sit every year, the Government saw no objection to accepting it.
§ Question put, and agreed to.
§ MR. AMBROSE (Middlesex, Harrow)
said, he desired to move the addition of the following words at the end of the sub-section:—And at the expiration of forty days from the date of such instrument of delegation having been so presented to the two Houses of Parliament, but not before, such delegation shall become effective and binding, unless in the meantime an Address has been presented by both of the said Houses praying Her Majesty to revoke or cancel such delegation.The 3rd and 4th clauses proposed to codify the general powers conferred by the 2nd clause, and not a little jealousy was displayed in the exceptions made in reference to the Army and Navy and educational questions. But while the House had shown its appreciation of the importance of qualifying the powers of the Legislature, the framers of the Bill appeared to have utterly forgotten that the powers of the Executive were quite as important, if not more important, than the powers of the Parliament. By the 5th clause it was proposed to give to the Government of the day the power of delegating to the Lord Lieutenant the prerogatives of the Crown, and apparently there were no restrictions to that power of delegation; while the Lord Lieutenant, who would have the exercise of these prerogatives, would be subject to the control of the Irish Executive and of the Irish Parlia- 872 ment. The effect of delegating the prerogative of the Crown would be practically to place such a prerogative as that of the exercise of mercy in the hands of the Irish Legislature, who would thereby obtain the power of condoning such criminal offences as they might think fit. The framers of the Bill assuredly could not have realised the full extent of their 5th clause. These prerogatives covered an enormous field, and the House ought certainly to keep these matters in its own hands. When the Bill was in Committee he proposed that the delegation of these powers should be in a certain form, and should be laid upon the Table for a certain period before it took effect, so that the House and the country might know what powers were intended to be conferred on the Irish Executive. The right hon. Gentleman the Prime Minister, however, while not exactly accepting the Amendment, introduced some words by which, as he said, the object of his proposal was accomplished. These words at the end of Sub-section (1) of the clause read—And every instrument conveying any such delegation of any prerogative or any other Executive power shall be presented to the two Houses of Parliament as soon as conveniently may be.That, however, did not give to this House any control over the delegation, whatever it might be. He thought the House would object to any delegation of the prerogative of mercy, and it certainly would object to any delegation of the prerogatives of the Crown with reference to the Army and Navy, or in regard to education. The object of his Amendment was to give the House some control over the delegations before they should become effective; for when once the thing was done it would be very difficult to withdraw it, and such a withdrawal could only create a sense of injury on the part of the Irish people. The Amendment brought before the Committee was not the same as the present Amendment, which was based on Section 41 of the Endowed Schools Act, 1869, and it certainly seemed to him that what they wore entitled to do in regard to the administration of a charity they ought certainly to do under the new Constitution the House was now creating. He begged to move the Amendment standing in his name.
In page 3, line 33, after the words "may be," to insert the words "and at the expiration of forty days from the date of such instrument of delegation having been so presented to the two Houses of Parliament, but not before, such delegation shall become effective and binding, unless in the meantime an Address has been presented by both of the said Houses praying Her Majesty to revoke or cancel such delegation."—(Mr. Ambrose.)
§ Question proposed, "That those words be there inserted."
§ MR. W. E. GLADSTONE
I think it is quite plain from the language of the 5th clause that those are delegations to the person and not to the office of the Lord Lieutenant. It appears to me that there are three objections to this Amendment, each of which is fatal. In the first place, there is no precedent for any provision in the slightest degree resembling that which is now proposed. It is perfectly true that in many cases of what may he termed subordinate legislation reservations of Parliamentary power are made which enable Parliament to intervene in cases where it is thought that powers which may be called into exercise and may arise out of circumstances involving an infinity of detail have not been judiciously used. But hero the case is totally different. It is most proper that every facility should be given for appealing to the Imperial Parliament to intervene to prevent the misuse of its functions by the Executive Government. The hon. and learned Gentleman says that the provision made in the clause is not enough, and that these instruments of delegation should be submitted to this Parliament before they should come into effect. The hon. and learned Gentleman thereby raises a question of a high Constitutional nature, belonging exclusively to the functions of the Executive Government. It is provided in the clause that all such delegations shall he forthwith submitted to Parliament, but the hon. and learned Gentleman contends that the delegations must be submitted before they take effect. That is a very high Executive duty which the hon. and learned Member wishes to transfer to this Parliament. An important Constitutional question is involved in this proposal. Suppose a delegation is framed in a, careless manner and escapes the notice of Parliament for 40 days owing to pres- 874 sure of business, whoso fault will it be if the faulty instrument becomes operative? It will be the fault of the Imperial Parliament, because that Parliament will have had the final determination of the matter. The business of a deliberative Assembly does not fit it for the discharge of Executive functions. The second objection is that if the Lord Lieutenant dies while this Parliament is not sitting no action can be taken under this Amendment until Parliament meets again, and until 40 days after that. The third objection has reference to public emergency, which is a circumstance which ought to be taken into view and provided for. How can the prompt meeting of such an emergency be reconciled with the stipulation that no action is to be taken until after the lapse of 40 days? In view of all these objections, which appear to mo to be fatal, I can hardly believe that the proposal of the hon. and learned Gentleman will receive the general support of the House.
§ MR. TOMLINSON (Preston),
said, the observations of the Prime Minister appeared to show what enormous confusion and difficulties would arise under this Bill. Apparently, if the Government had their way, they were to delegate any powers they might think proper, and all the House was to be allowed to do was at some subsequent period—perhaps months afterwards—to move a Vote of Censure, and the result would depend solely on whether the opponents of the excessive delegation could secure a majority. The Prime Minister had dealt with the Amendment as if it merely raised the question of a flaw in the delegation. But other questions than those relating to mere flaws were likely to arise, and no doubt the Mover of the Amendment had largely in his mind the question of what it was right to delegate. As to the difficulty suggested as likely to arise from the death of a Lord Lieutenant, surely that could be overcome by the insertion of words continuing existing powers until Parliament had an opportunity of deciding. And, finally, in regard to cases of public emergency, it was difficult to see how they could be provided against, especially in the event of a conflict of opinion between the subordinate Legislature and the Imperial Parliament. This Amendment exposed 875 the dangers likely to arise from the passing of the Bill.
§ Question put, and negatived.
§ MR. HANBURY (Preston)
rose to move—In page 3, line 33, at end, to add,—"Provided always that the Lords Lieutenant of counties shall be appointed by the Lord Lieutenant Of Ireland as representing Her Majesty.The Lord Lieutenant of a county held an essentially and entirely military office. He was the head of the reserved forces in the county; his position, indeed, was that of General of the district, reporting to the War Office, and recognising no other authority. Therefore, the Lord Lieutenant of a county was in a wholly and entirely different position from any other Executive officer. That being the case, he should have supposed that the Lord Lieutenant of a county, if there was no mention of him in the Bill, would have been appointed directly by the Secretary of State in England, or perhaps by the Secretary for War. But he understood the Chief Secretary to say the other day, in answer to a question put by him, that the Lords Lieutenant of counties would he appointed by the Lord Lieutenant, subject to instructions given by Her Majesty. He had three objections to raise to that mode of appointment. In the first place, he was not at all clear as to what "subject to instructions given by Her Majesty" might mean. That phrase was not to be found in the Bill; but, so far as he could gather from the Chief Secretary, it seemed to mean that the Lord Lieutenant, when he first went to Ireland, would have instructions given him by the Home Secretary. Those instructions were not, he understood, to be given to the Lord Lieutenant from time to time, but were general instructions given to the Lord Lieutenant when he first entered into Office. But it would he utterly impossible to give to the Lord Lieutenant general instructions beforehand as to the men whom he should appoint to the various offices; and, therefore, the Lord Lieutenant must clearly have instructions given to him from time to time. Then, again, these instructions were to be given by the Home Secretary. But the office of Lords Lieutenant of counties was a purely military office, with which the Home Secretary at present had nothing to do. There was a further 876 difficulty. If he were correct in interpreting the words "subject to instructions given by Her Majesty," the Lord Lieutenant would make these appointments on his own initiative, because he could not have instructions given to him beforehand. The result would be that the Lord Lieutenant would make appointments pleasing to the Executive of the Irish Government. But, as all military matters were taken out of the hands of the Irish Government, why should they enable the Lord Lieutenant to act on the advice of his Irish advisors in an essentially military matter? There was another reason why the Lord Lieutenant would be almost bound to consult the Irish Executive. In England, and he supposed in Ireland, the Lord Lieutenant of a county had a double capacity. He was a military officer reporting to the Secretary for War, and he was Custos Rotulorum, a purely civil office under the Home Secretary. That would happen in Ireland. As a military officer the Lord Lieutenant would be under the War Office, and as Custos Rotulorum he would be under the Lord Lieutenant. It would clearly be impossible to have two officers of State, for the might disagree, and if the offices were amalgamated the appointments must be put in the hands of either an Imperial Secretary of State or the Irish Executive. It was quite clear that the office was, and would always remain, a purely military office; and, that being so, he desired by the Amendment, which he bogged to move, to secure that the appointment would continue to be made by the Imperial Government.
In page 3, line 33, at end, add,—" Provided always that the Lords Lieutenant of counties shall be appointed by the Lord Lieutenant of Ireland as representing Her Majesty."—(Mr. Hanbury.)
§ Question proposed, "That those words be there added."
§ MR. SEXTON (Kerry, N.)
said, that the hon. Member in the opening of his speech had stated that the Lords Lieutenant of counties in Ireland were essentially and entirely military officers, and at the end of his speech he distinctly showed that their functions were partly-civil and partly military.
§ MR. SEXTON
said that, therefore, the Amendment of the hon. Member could not be considered as if the functions of the Lord Lieutenant were purely and solely military. The hon. Member had spoken, in tones almost of horror, of the probability that the Lord Lieutenant of Ireland might choose the Lords Lieutenant of counties upon the advice of Ministers responsible to the people of Ireland. He should suppose that if such a thing were to happen it would be no great calamity. If the office were a purely military one, it would stand upon a different footing. But after the very lucid speech delivered the other day by the Secretary of State upon the question of the use of a military force in Ireland, he should imagine that no difficulty would arise, even if the Lords Lieutenant of counties were appointed by the Lord Lieutenant. The Home Secretary made it clear in that speech that when the question arises for the use of a military force, the power to call them out will rest on the Local Authorities; and the question whether the force would be used or not would, he presumed, be one for the Secretary of State for War, acting on the advice of the Military Authorities. It was perfectly true that the functions attaching to the office of Lord Lieutenant were both military and civil; but while the military functions attached to the office—which was the sole justification for this Amendment— were functions obsolete and unreal, his civil functions were very real and important to the welfare of the Irish people. The Lord Lieutenant of each county was Custos Rotulorum for the county. He might preside over meetings of local Magistrates—a function which was not only purely civil, but, to some extent, in opposition to military functions. The Lord Lieutenant of a county in Ireland, like the Lord Lieutenant of a county in England, advises the appointment of Justices of the Peace; and not only does he advise them, but at the present time he practically controls them. [Nationalist cheers.] The House was familiar with the repeated and strenuous efforts made by Members in different parts of the House to accelerate the pace of the Lord Chancellor in dealing with 878 appointments to the Commission of the Peace. That House during the present Session had found it necessary to pass a Resolution declaring in effect that the Lord Chancellor ought not to be, or need not be, controlled in the appointment of Justices of the Peace by the advice of the Lords Lieutenant. Some effect— not much—had followed. They in Ireland, who since the opening of the present Parliament had done all in their power with a view to having something done to popularise the Petty Sessions Bench by appointing persons to the Commission of the Peace who would have the confidence of the country, had found that after the lapse of a year or more a miserable and paltry addition of not quite 100 had been made to a Bench where there were already some 4,000 or 5,000 landlords and others—principally Tories. Why did he bring this matter before the House, and why was it relevant? Because it showed that even the present Lord Chancellor, who was an official disposed to do what be could, found himself so hampered, controlled, and overpowered by this jurisdiction, and found himself unable to act fully up to the Resolution which had been passed. Therefore, he asserted that whilst the military functions of the Lord Lieutenant were obsolete, his civil functions, especially in regard to controlling appointments to the Commission of the Peace, were, at any rate in Ireland, a very real and important power. If the Amendment of the hon. Gentleman was accepted it was the Home Secretary, or some such officer, who would appoint the official who would control the appointments to the Commission of the Peace. Was that autonomy? Was that Home Rule? Was there anything more local, or was there anything which could be more fittingly controlled by a Government responsible to the people of Ireland, than the appointment of persons who, upon the local Benches, were to administer local law? But the proposal was that the persons who still control this matter were to be appointed by the Home Secretary. So far as the office of Lord Lieutenant of a county could be held to be a military office, he had no objection that the functions should be exercised under Imperial control. But what about the civil functions? If this officer was still to have those 879 functions attached to his office they could not assent to the proposition that he should be appointed under Imperial authority. If, however, they agreed that he was to be appointed by the Home Secretary, then it would be necessary that the civil functions should be separate from his office, or that they would be assured that the Irish Parliament might pass an Act whereby the office of custos Rotulorum might be an office separate from the Lord Chancellor of the county, and whereby the Lord Chancellor might act without advice in appointments to the Commission of the Peace, and that if he was to take any advice it should be the advice of persons other than those responsible to the Imperial Government.
§ *THE ATTORNEY GENERAL (Sir C. Russell,) Hackney, S.
There is really no substantial difference between the hon. Member for Preston and the Government in this matter; and I think my hon. Friend who has just sat down has rather argued the question under a misapprehension as to the different functions discharged by Lieutenants of counties. My hon. Friend has argued as if the civil and military functions were necessarily combined in the same person. That is not so. Although the ordinary course is that the two functions are discharged by the same person, there are, I am informed, cases in which one person is the Lieutenant of the county and another the custos Rotulorum. They are two separate offices, created by separate instruments, and each having distinct duties to perform in the county. The hon. Member for Kerry (Mr. Sexton) is right in saying that the military functions of the Lieutenants of counties would be under the direction of the Imperial Executive, and it is clearly so provided in the Bill. The hon. Member for Preston seems to doubt that. If he will look to the 3rd subsection of Clause 3, he will see that it reserves to the cognisance of the Imperial Government all matters relating to the Army, Navy, Militia, Volunteers, and other Military Forces. As to the question of the appointments of the Lieutenants of counties, I should say that they would be made by the Secretary of State for War, probably on his own Executive responsibility. If upon the advice of the Irish Government he should 880 desire to invest in the same person the character of custos Rotulorum, there is no reason why lie should not do so; and if, on the other hand, there is a desire that different persons should be appointed, there is no reason why that should not be done. Again, the hon. Member for Preston seems to think that the instructions to the Lord Lieutenant from the Executive Government must be given once for all. That is not so. They will be given as the necessity for them arises. If, for instance, a question arose as to the appointment of a person to fulfil the military character of Lieutenant of of a county, the Lord Lieutenant would be advised by the Executive officer in charge of military affairs.
§ MR.MACARTNEY (Antrim, S.)
said, he should like to point out, in reference to what had fallen from the hon. and learned Gentleman, that it was not the case that in Ireland the offices held by the Lords Lieutenant of counties were divided, for there the Lords Lieutenant of counties, without an exception, also held the office of Custos Rotulorum. He understood that what the Attorney General said was that the Minister for War should appoint the Lord Lieutenant so far as his military duties were concerned; but who was the other Minister who was to recommend appointments so far as concerned the civil duties of a Lord Lieutenant of a county? The suggestion was that he should be appointed on the advice of an Irish Ministry. If the two duties were to be made separate, then the Lord Lieutenant would be appointed by the intervention of two Ministers; and, with great respect for the Attorney General, he might say that he had never heard of a case in Ireland where the office of Custos Rotulorum was separated from the other duties of the Lord Lieutenant. He could quite understand the difficulty the Government was in with reference to the filling up of such offices. If Home Rule should ever be established in Ireland, there would be some difficulty in finding gentlemen to discharge the duties of that important office. In future, either the Minister for War or the Irish Cabinet would have the appointment of Lords Lieutenant; but they would have to find them in some other strata than at present. He could quite understand what the selections would be like that would meet with 881 the approval of the butchers and bakers and candlestick makers who were to constitute the majority of the two Houses of Parliament, and the fit and proper persons for the office of Lord Lieutenant of a county would no longer be found in Ireland.
§ MR. J. CHAMBERLAIN (Birmingham, W.)
I rise to ask a question. I understand my hon. and learned Friend the Attorney General to say that the person who fulfils the military functions of the Lord Lieutenant of a county will in future be appointed in Ireland on the advice of the Imperial Government, but that the person who fulfils the function of Custos Rotulorum will be appointed in future on the advice of the Irish Government. Supposing that to be the case, it certainly seems to me to meet the claim of the hon. Member for Preston. Then I ask myself where in this Bill is it provided that the person who fulfils the military functions of the Lord Lieutenant of the county shall be appointed on the advice of the Imperial Government? My hon. and learned Friend say sit is provided for by Sub-section 3 of Clause 3, which excludes from the purview of the Irish Parliament legislation connected with the Navy, Army, Militia, Volunteers, and other military matters. Then the question I want to ask my hon. and learned Friend is this—Does he say that with regard to every matter which is excluded from the purview of the Irish Legislature by Clauses 3 and 4, and as to which they are prohibited from legislating, that the Irish Executive is equally prohibited from advising? Is that the position? Does my hon. and learned Friend say that with regard to all these matters it will be illegal for the Irish Executive to advise or assist the Lord Lieutenant? If not, then his answer is no answer at all. We want to know whether Executive Acts are included in the provisions which deal with Legislative Acts?—whether,when you say that the Irish Parliament shall not legislate, do you also say that the Irish Executive shall not advise? Unless my hon. and learned Friend goes so far as to say that the Irish Executive will not, have the power to advise the Lord Lieutenant upon any matter contained in Clauses 3 and 4 he has given no answer at all, and the Government will not have carried out what was stated to be their intention 882 —namely, to preclude the Irish Executive from advising the Lord Lieutenant as to the appointment of persons who fulfil military functions.
§ MR. T. M. HEALY (Louth, N.)
said, the right hon. Gentleman the Member for West Birmingham (Mr. J. Chamberlain) had laid down the strictest doctrine that he had ever heard. He had said that the Irish Government was to be prohibited from advising, and that it was to be made illegal if they did so.
§ MR. J. CHAMBERLAIN
I beg the hon. Gentleman's pardon. I did not say anything of the kind. I asked my hon. and learned Friend the Attorney General whether if, as he had stated, the Amendment was met by Sub-section 3 of Clause 3, the Irish Executive would not have the right of advice in all the matters contained in Clauses 3 and 4?
§ MR. T. M. HEALY
said, that the right of advice was one thing, and the right of accepting or rejecting that advice was another thing; and what the right hon. Gentleman complained of was that it was not made illegal for the Irish Government to advise in these matters. What he understood the Attorney General to say was this—that the Lord Lieutenant would act upon the advice of the Imperial Government, and not on the advice of the Irish Government; but if all Birmingham was massed together it could not prevent the Irish Government, no matter what mean persons they might be in the royal estimation of the right hon. Gentleman the Member for West Birmingham, from tendering advice, and he presumed they all knew that there would be some anxiety on the part of the two Governments to run on the same lines. It did not follow that the advice would be taken at all. They might offer advice to the French or Chinese Government, or tender good advice to the Birmingham Town Council or the Warwickshire County Council; but it did not follow that the advice would be taken. There was no obligation on the part of the Imperial Government to accept the advice of the Irish Government. As he understood the view presented by the Attorney General, the Amendment was entirely out of Order, because it was already provided for in Clause 3. The hon. Member for Preston laid down the doctrine that this was a military office, and that, therefore, being a military office, it ought to 883 be excluded from the control of the Irish Government. Why did the hon. Member not move an Amendment that drummer boys, or quartermaster sergeants, or corporals, or gentlemen connected with the Yeomanry or the Navy should not be appointed by the Irish Government? So far as the military functions of a Lord Lieutenant of a county were concerned, they were an anachronism. The Lord Lieutenant of the county which he represented was Lord Massereene. Well, he should like to get a sketch of Lord Massereene to discover how he spent his time; and he believed if they found out about Lord Massereene they would be far from consulting him in connection with any military function, although he believed he once held an appointment in the Antrim Militia. What the Opposition wanted was the control of the Magistrates. It was in the Lord Lieutenant's function of Custos Rotulorum that they wanted to attack him; and the hon. Member for Antrim, with his fine aristocratic qualities, like all the gentlemen who came over to Ireland a few years ago, said that under the Irish Parliament they would have to take these men out of a now strata. They all knew that that was the object of the Bill. The object of the Bill was, as he understood, to give to the Irish people as a whole the control of their own affairs, and to give the landlord such control as their numbers entitled them to, and no more.
§ [At the conclusion of the hon. Gentleman's speech there appeared to be some disorder in the Strangers' Gallery.]
§ *MR. SPEAKER
Serjeant, will you see who was clapping his hands, and exclude him from the House as a stranger?
§ MR. A. J. BALFOUR
The hon. and learned Member who has just sat down gives us a very fair idea of the amount of sweetness and light that can be introduced into our Debates on this Bill, and I cannot honestly say that the loss the House has sustained from the long silence of Nationalist Members has been so great as at one time may have been supposed. I do not think there is any great divergence as to the broad principles upon which we ought to proceed. It is admitted, in the first place, that the Lord Lieutenant and Custos Rotulorum are two offices which are almost invariably 884 associated in one individual; it is admitted he has a double function—a military and a civil function. If the view of gentlemen who are going to control the new Irish Government in the future is that they should return to the old system under which local justice on a large scale was administered by an unpaid Magistracy, appointed, as they are to be appointed, chiefly from one political Party, then the evils which Irish reformers had felt to be incidental to that system will probably re-appear in a new and aggravated form; and you will return to an ascendency of a new order of men, and under conditions far more tyrannical than the form of magisterial ascendency which was endeavoured to be put an end to by paid Magistrates. I will assume that you can distinguish between the Lord Lieutenant in his civil capacity and the Lord Lieutenant in his military capacity, and I will assume— though the case is doubtful—that it is the Lord Lieutenant in his civil capacity— or, I would rather say, the Custos Rotulorum—who recommends the Magistrates, and I will proceed to consider what you are going to do with the Lord Lieutenant in his military capacity. The learned Attorney General has laid down the proposition that the Lord Lieutenant of Ireland must never act upon the advice of his Irish Ministers in any of those cases which are excepted from their jurisdiction by Clause 3 and Clause 4 in this Bill. I hope that is the intention of the Government, but I see nothing whatever in this Bill to make that intention operative or effective. There is an Amendment lower down on the Paper standing in the name of the noble Lord the Member for Rochester (Viscount Cranborne) which puts in explicit language what I understand to be the implicit theory of the Government. He proposes to lay down that the Lord Lieutenant shall not do any act upon the advice of the Executive Committee until he has received Her Majesty's instructions in respect, of any matters upon which the Irish Legislature are disabled from legislating under Sections 3 and 4. If that Amendment is accepted it appears to me the pious opinion of the Attorney General would be effectually carried out; but as the Bill stands it is only a pious opinion, and there is nothing to prevent the Lord Lieutenant from taking the 885 advice of his Executive Committee, which nobody can prevent them from tendering, even though it relates to matters with which the Irish Government are not, by this Bill, allowed to meddle. I hope the Government will accept words to make the Bill square with the professions of the Attorney General. My hon. Friend who moved the Amendment has thought it right—and I agree with him—even if the proposition advanced by my hon. Friend were accepted, to mention explicitly the Lord Lieutenant. I think he has good reason to do so, because the functions of Lord Lieutenant and Custos Rotulorum are partly military, and therefore reserved to the Imperial Government, and partly civil, and therefore reserved to the Irish Executive. Unless you point out in the Bill that you mean to reserve the Lord Lieutenant as military officer to the Imperial Government great difficulty will be found in deciding between his duties. When these offices of Lord Lieutenant and Custos Rotulorum are always held by the same person, if you wish to introduce a new system in which the duties should be cut in half, one to be labelled "military" and the other "civil," then I say you ought to have words in your Bill to indicate your intention. I hope the Government will carry out what they and we agree should be our policy, and if they do I do not see why we should not bring the discusssion to a close satisfactory to every Party.
§ *MR. DANE (Fermanagh, N.)
said, that, as had been stated by the hon. Member who moved this Amendment, these two offices were quite distinct. The Lieutenant of a county was more or less a military officer; the Custos Rotulorum in Ireland up to 1877 was the custodian of the Rolls of that Court. The office of Custos Rotulorum was a very ancient office, created so far back as the time of Henry VIII., and in the 1st of William and Mary there was a statutory enactment providing that the office of Custos Rotulorum should be created under the Sign Manual of the Sovereign, and prescribing that the duty of that office should be to appoint a fit and proper person as the Clerk of the Peace of the particular county, to be the custodian of the deeds enrolled in that county—in other words, the custodian of the Rolls of the particular 886 county; and although it might be that was still the practice in England, he was not aware that it was the practice in Ireland. He was inclined to think that in Ireland, under the provisions of an Act passed by that House in 1877, the position, or at least the duties, of Custos Rotulorum were entirely taken away, because under that Act, which was entitled "The County Court Officers Act, 1877, "the duties which were formerly vested in the Custos Rotulorum of counties to appoint Clerks of the Peace and to carry out the duties appertaining to their offices were taken from the Custos Rotulorum and vested in the Government. Since 1877 the office of Clerk of the Peace had no longer belonged as of right to the Lieutenant of a county as Custos Rotulorum, but was now vested in the Government of the day, and the appointment to that office was now exercised by the Government under the hand of the Lord Lieutenant. He found that by 1 & 2 William IV., c. 17, the power of appointing Custodes Rotulorum in Ireland ceased to be under the Sign Manual of the Sovereign, and was delegated to the then Lord Lieutenant of the day. At all events, it was clear that up to 1877 the Lord Lieutenant in Ireland had the power by Letters Patent to appoint the Custodes Rotulorum of the several counties in Ireland, but his contention was that the office, or, at any rate, if not the office, the duties and position, of Custos Rotulorum in Ireland ceased on the passing of the County Court Officers Act of 1877. The duties of a Lieutenant of a County in Ireland were entirely different to those of Custos Rotulorum. The Lieutenants of counties were appointed under Patent by the Lord Lieutenant or Governor General of Ireland, and their duties were of a military character. They nominated to all the appointments in the Militia Force, and they submitted to the Lord Chancellor the names of gentlemen fit and proper to be appointed to the Commission of the Peace. The Commission of the Peace, which was issued by the Lord Chancellor, was, under the old regime, lodged in the office of the Custos Rotulorum of the county, and was gazetted in the Gazette as having been so lodged. There was practically no longer any Custos Rotulorum. What existed was simply the Lieutenant 887 of the county appointed by the Lord Lieutenant of Ireland under the Patent of the Great Seal of Ireland. He thought it very desirable that the House should know what exactly would be the position of the Lieutenants of counties under this Bill. The Attorney General stated that these two offices might be filled by two different persons. That might be so in England, but in Ireland no one had ever known different persons to hold the offices of Lieutenant and Custos Rotulorum. They had always been held by the same person; therefore, it was very desirable they should know exactly how these offices would stand in future. It was a very important thing, having regard to the powers the Lieutenants of counties in Ireland had imposed on them, to know whether that power would be under the control of the Irish Executive acting on the advice of the Irish Privy Council, or whether those powers would be delegated from the Imperial Government to the Lieutenants of counties, who would, therefore, be answerable to that House for the appointments they made? If it should be thought desirable that the Lieutenants of counties should no longer have power to nominate Justices of the Peace, then some provision should be put in the Bill to that effect; but in the important office of Lieutenant of a county who had, as such, command of the local force and the nomination of the officers to the local Militia, it was essential they should know which Government was to have control of the Lieutenants in future. Were they to be under the control of the Imperial Government or of the War Department, or was the matter to be relegated to the Irish Lord Lieutenant acting upon the advice of his Irish Executive, the governing members of whose Privy Council would, no doubt, be some of the hon. Gentlemen below the Gangway, who had been so pronounced in their language as to what they would and would not do when this Bill became the law of the land? He should like to hear from the Treasury Bench how this matter was to be regulated. It would be some satisfaction to know that the Government who produced this Bill, which dealt so vitally with the interests of the loyal classes in Ireland, knew what it was they had been doing, and that when they proposed to confide 888 to the Irish Executive and the Irish Lord Lieutenant the control and government of this matter the people of England and Scotland should, at any rate, know what it was it was intended should be left in the hands of the future Irish Parliament.
§ MR. J. MORLEY
The hon. and learned Gentleman has asked me under what authority at this moment the Lieutenants of counties are chosen by the Lord Lieutenant. The answer to the hon. and learned Member is a perfectly clear and simple one. The Lieutenants of counties in Ireland are appointed by the Lord Lieutenant under a section of the Militia Act, 1882, which vests power in Her Majesty with reference to the appointment of the Lieutenants and Vice Lieutenants of counties, this power, subject to any direction from Her Majesty, to be exercised by the Lord Lieutenant of Ireland. As the right hon. Gentleman the Leader of the Opposition has said, there is no difference whatever of views between the gentlemen opposite, ourselves, and the gentlemen below the Gangway so far as the Lieutenant of a county is a military officer, or represents the persons controlling, to some extent, the military forces of the Crown. There is no contention in any part of the House that the nomination of that officer should be withdrawn from the Imperial control. We do not think that the words of the hon. Member for Preston are necessary, and the words themselves are not strictly accurate. For instance, these are not Lords Lieutenant of counties, but Lieutenants. However, as we are agreed— though we do not think the words are necessary—we are willing to accept the Amendment of the hon. Member for Preston, making the words correct by leaving out the word "Lords" before "Lieutenant."
§ The word "Lords" omitted.
§ *MR. BLAKE (Longford, S.)
thought that not a single person dissented from the view that, as far as the civil functions of persons who would be Lieutenants were concerned, those officers ought to be appointed on the advice of the Irish Executive; and nobody dissented from the view that in their military capacity the Irish Executive should have nothing whatever to do with the appointment. But there was a difference of opinion as 889 to what the existing state of things was. They heard some hon. Gentlemen say that the Lord Lieutenant qua Lord Lieutenant had certain civil powers, and it was very important that they should not stereotype the powers of the Lord Lieutenant, if they comprised civil powers; in this Act while they were recognising the fact that the appointment of that personage as a military officer ought to be with the Imperial Executive. He trusted it was perfectly understood that the view upon which the Amendment was made was that the offices were now actually separate, or, if not separate, that no introduction of these words indicated that it should not be within the competence of the Irish Legislature to set up a separate officer for the discharge of all civil functions which might be found to be in the hands of the Lord Lieutenant at this day. They could not interfere with his military functions; but it must be understood that the Irish Legislature had full right to pass an Act which should deal with all those civil functions which were, in one way or another, exercised by the Lord Lieutenant, had full right to separate them and provide, if necessary, for their discharge, an officer who should be appointed under the advice of the Irish Executive.
§ MAJOR DARWIN (Staffordshire, Lichfield)
said, as this was originally his Amendment, he hoped he might be allowed to say a few words upon it. He had endeavoured on every single stage of the Bill to bring this question before the House, and only two days before the conclusion of the whole subject had he been able to get any answer from the Government. He spoke at some length a week ago, and no reply was vouchsafed to him. With regard to what the hon. Member for North Kerry had said about the duties of a Lord Lieutenant being obsolete, he thought that was an entire mistake, because, under certain circumstances, these duties might become of very great importance. How it was possible to make it certain that the Lord Lieutenant, in appointing the Lord Lieutenant of a county, would act upon the advice of the Imperial and not the Irish Executive he could not conceive. It was a good thing to have this Amendment accepted, but it seemed to him by no means a certain safeguard that the Lord Lieutenant would not be in- 890 fluenced to a great extent by the Irish Executive. In the Amendment which he originally proposed he suggested that the Lords Lieutenant of counties should be in all cases appointed by the Secretary of State for War. That would have been a far better arrangement for carrying out the views of this Amendment.
§ Amendment, as amended, agreed to.
§ MR. T. H. BOLTON (St. Pancras, N.)
moved the following Amendment:— Page 3, lines 37 and 38, leave out "or as may be directed by Irish Act. "This matter, he said, was, to a certain extent, discussed in Committee; but anyone who referred to the pages of the official Parliamentary Debates would see that the discussion was not a long discussion and was rather unsatisfactory, and it was in the hope that the Government might have possibly re-considered the matter, rather than with the view of having any lengthened discussion upon if, that he ventured to bring it before the House at this stage. The sub-section of the clause to which the Amendment referred provided—There shall be an Executive Committee of the Privy Council of Ireland to aid and advise in the government of Ireland, being of such numbers and comprising persons holding such offices under the Crown as Her Majesty may think fit, or as may be directed by Irish Act.The Amendment he was proposing was that the words, "or as maybe directed by Irish Act," might be omitted. He would remind the House that in the Home Rule Bill of 1886 there was no such provision as that which he was asking to have omitted. In the Bill of 1886 the words of the clause were—The Executive Government of Ireland shall continue vested in Her Majesty, and shall be carried on by the Lord Lieutenant on behalf of Her Majesty with the aid of such officers and such Council as to Her Majesty may from time to time seem fit.He did not find there was any such provision as that contained in the present Bill in any of those Colonial Constitutions which formed the subjects of Acts passed by this Parliament; therefore, there was no precedent, as far as the term "precedent" might apply, for this proposal of the Government. He considered that unless this Amendment were adopted there would be practical 891 inconvenience connected with the proposal of the Government. If a hard-and-fast rule were laid down by the Irish Legislature that the holders of particular offices should ex officio be Members of the Cabinet, that would largely limit the discretion of the Lord Lieutenant in selecting the fittest men to fill these offices. Men might be fitted to fill administrative offices, whilst at the same time it might be undesirable that they should be Members of the Cabinet. The course he suggested would give greater freedom to the Lord Lieutenant in selecting Members of his Government and greater elasticity in the Party arrangements which would be necessary to a responsible Government; therefore, for practical purposes, it would be much more convenient that this clause should be amended as he proposed. Why insert it at all? What good did it do? Whether the offices were selected by the Lord Lieutenant for Cabinet rank or fixed by the Irish Legislature, the Government as a whole, and every Member of it, must have the confidence of the Representative Body, and it was perfectly unnecessary to limit or put restrictions on the discretion of the Viceroy in selecting his Council. The Prime Minister a short time since made some observations on another Amendment, which bore to a certain extent on this question. The right hon. Gentleman doubted whether it was desirable to transfer Executive duties to Parliament. He (Mr. Bolton) could not imagine higher Executive functions than the chief Executive Authority of a country selecting the Ministers to carry out Executive duties, and he understood from what the right hon. Gentleman said that he was not favourable to the transfer of Executive powers to a representative Assembly. That argument bore upon the present subject, because the proposal in the Bill was that the Queen should not have full power to select her advisers—having the confidence of the Irish Legislature, of course—but that the Legislature itself should limit that discretionary control by fixing the particular offices which should confer Cabinet rank. Another serious objection was that as the sub-section at present stood it was uncertain what it meant. In the sub-section the words were— 892Comprising persons holding such offices under the Crown as Her Majesty may think fit, or as may be directed by Irish Act.Which of these two alternatives was it to be? The Solicitor General read it as—Holding such offices under the Crown as Her Majesty may think fit until the Irish Legislature shall otherwise enact.That was the reading which the Solicitor General put before the House when the subject was considered in Committee on July 4. He had the greatest possible respect for the Solicitor General and for his opinion, but he must say he did not follow him in his reading of the subsection. He supposed the English language had some definite meaning even in Acts of Parliament. Here the words were clear and precise; and if they were to give the grammatical meaning to those words, the meaning was that these duties should be discharged by officers appointed by Her Majesty or under Irish Act. If the Solicitor General intended that the appointment should rest with Her Majesty until the Irish Legislature should pass an Act to take this matter from the entire control of Her Majesty and provide for it in another way, then words should be used to carry that intention out. At present it was uncertain; and as the words seemed to him to be useless, unnecessary, and objectionable, he ventured to move that they be omitted.
In page 3, lines 37 and 38, to leave out the words "or as may be directed by Irish Act."— (Mr. T. H. Bolton.)
§ Question proposed, "That the words proposed to be left out stand part of the Bill."
§ MR. W. E. GLADSTONE,
who was indistinctly heard, said: I am very sorry the hon. Member has thought it necessary to take the course he has. This question was decided in July last, and I am bound to say that the hon. Member has done nothing on the present occasion to render the views he entertains more satisfactory. If the Irish Privy Council were under the control of the Executive, as that of England is, there would be no necessity for a clause of this kind, but some provision has to be made, or else the Lord Lieutenant might, on occasions, be without advisers. Consequently, 893 Her Majesty intervenes in her Imperial capacity, and supplies the deficiency. This is a provision that grows out of the necessity of the case, and it is intended as a temporary provision; but the hon. Member for North St. Pancras (Mr. T. H. Bolton) desires to make it permanent. The doctrine of the hon. Member is that, though a responsible Irish Government is to be recognised, yet the Irish Legislature is to be deprived of the powers necessary for responsible Government. Is that a rational proposition? The hon. Gentleman has, in support of his proposition, advanced no argument except that the Irish Legislature might pass an absurd Act. That is the charitable supposition of the hon. Member, and that is the policy which the hon. Member has thought fit to pursue all along in regard to this Bill in his irresponsible capacity, and this comes from an hon. Member who, it was understood, was returned to Parliament to support the Bill. That is the position the hon. Gentleman assumes in his irresponsible capacity, which I presume will last for a certain time. It is impossible for the House to know what constitution of the Irish Executive Committee will be found desirable; but we may assume that some grains of common sense, which abound so much in the mind of the hon. Gentleman, may prevail even in the minds of the Members of the Irish Legislature, and we may hope that his perception and his charity—if it can—will be enlarged. The business, functions, and offices of the Executive Committee are purely Irish affairs, and ought to be placed within the competency of the Irish Legislature. If the Irish Legislature passes absurd Bills it will itself in the first instance suffer, and it will have the same means for mending its way as is possessed by other Legislative Bodies. The British Parliament has made shameful mistakes in the past, and it must be remembered that in Ireland, as in England, we can rely upon the people to correct the mistakes of the Legislature. The Amendment completely traverses the whole intention of the Bill, and we cannot be parties to reversing the decision already arrived at.
MR. A. J. BALEOUR
I fail, Sir, entirely to understand the line which the right hon. Gentleman has thought proper to take. He has attacked, I will not 894 say with unusual violence—because he not infrequently shows a good deal of violence in his attacks—but he has attacked with great violence the hon. Member opposite for bringing forward a subject which was undoubtedly discussed on the Committee stage. This is, however, exactly one of the topics on which discussion ought to be repeated, because it is one of those on which the Government have never attempted a rational reply, on which they have not even now succeeded in finding a rational reply, and on which we might have had some reason to suppose that the consideration of the plain meaning of the English language would have induced the Government to attach some weight to the arguments which have been advanced. The solitary answer given by the Prime Minister is that this Amendment is very improper, because the Irish Government, if they are to be illumined by any rays of common sense, must be thought sufficiently endowed with that valuable quality to be able to make some regulation as regards the holders of office. The right hon. Gentleman is angry with anyone who supposes that the Irish Legislature could make mistakes in this matter, but he has been unable to finish his own speech without telling us that the British Government has made infamous mistakes.
§ MR. W. E. GLADSTONE
I did not say "infamous." That is a, favourite word of the right hon. Gentleman.
§ MR. A. J. BALFOUR
I used the word "infamous," but I learn from my friends near me that the exact word employed by the right hon. Gentleman was "shameful." I give the right hon. Gentleman any benefit he may derive from that substitution of the Anglo-Saxon for the Latin. The right hon. Gentleman thinks it absolutely absurd for us to suggest for a moment that the Irish Legislature would be guilty of folly.
§ MR. A. J. BALFOUR
Why does the right hon. Gentleman allow a licence to himself which he will not allow to the hon. Gentleman the Member for North St. Pancras? The fact remains that we are not allowed to contemplate these grave errors of judgment by the new Irish Legislature. I do not wish again 895 to raise the question of policy involved in the sub-section. For my own part, I shall be prepared to accept—not to agree with, but to accept—more or loss the decision the House arrived at in Committee. What we say is that the words of the Government do not carry out their own view. The intentions of the Government, as expressed on the Committee stage, and as repeated by the right hon. Gentleman to-day, are these—that after the Bill is passed, and before the new Constitution begins to work, there must evidently be an interval in which there will not be a Committee of the Privy Council to advise the Lord Lieutenant, and they would provide for that interval by enabling the Crown in the first instance to appoint the officers who are to constitute the new Irish Cabinet; but that when the Irish Government is fully equipped the Irish Legislature should name the officers which are to carry Cabinet rank. That may be a good or a bad policy, but it is not the policy of the Bill. The policy of the Bill is that there are to be two co-ordinate powers—Her Majesty and the Irish Legislature—and that each is to have an equal finger in the pie in settling the constitution of the Irish Cabinet. That is an absurd position. We have pointed out before, and point out again, that according to no known interpretation of the English language does the word "or" mean "until." If the Government mean "until" why do they not say so? During the seven weeks that have elapsed since this matter was discussed before surely the Government could have studied the grammar of their own Bill and seen what must be the inevitable conclusion to be drawn from the words they have adopted, and it is not too much for us to ask them on this the proper stage to put the Bill in a shape in which it will carry out, at all events, their own intentions. Why the right hon. Gentleman should think this a favourable opportunity for attacking the hon. Member for St. Pancras simply because he has endeavoured to make sense of the right hon. Gentleman's own measure really passes my comprehension.
§ SIR H. JAMES (Bury, Lancashire)
I should like to say that I think the Prime Minister was very ungrateful to the hon. Member for North St. Pancras. This Amendment will have the effect, it 896 may be, of saving a great deal of confusion and conflict again hereafter. I cannot conceive that the Government can do other than listen to arguments to show how that condition of things can be avoided. The Prime Minister said, as I understand, that the Member for North St. Pancras should not have brought forward this Amendment, because he had been returned to Parliament to support this Bill. Well, I do not know what pledges hon. Members could have given to support this Bill. I know there were two Members who declined to support the Bill; one of them was the present Secretary of State for Scotland, who, when asked whether he would pledge himself to support the Bill that was to be brought in by the Prime Minister for the better government of Ireland, declined to do so until he had seen the Bill, and he said it would be very unreasonable for anybody to pledge himself until he knew its contents. The other Member who refused to pledge himself was the hon. Member for North St. Pancras, who refused altogether to give any adhesion to any Home Rule Bill, and who came into Parliament free in respect to that matter. I am sure if the Prime Minister had known the position the hon. Member occupied he would not have wished to introduce into this discussion such an assertion respecting the hon. Member. May I point out, in addition to what has fallen from the Leader of the Opposition, that I have never been able to understand the construction put upon this clause by the Solicitor General. We pointed out before that you must look at the words not only as they appear hero, but at other words that are now introduced info this sub-section, so that after the words "as Her Majesty may think fit" you must introduce the words "from time to time," and so the section will read—that these officers are to be nominated—As Her Majesty may from time to time think fit, or as may be directed by Irish Act.I am sure the Solicitor General has good reason for what he says, and I do not wish now to come into conflict with him; but I do say that any ordinary human being reading these words "as Her Majesty may from time to time think fit, or as may be directed by Irish Act" could never put that construction 897 upon them which the hon. and learned Gentleman and the Prime Minister have put upon them. I have no doubt of the intentions of the Government, but they are not expressed in the Bill, and you cannot ask the Judges to get rid of what would be nonsensical. Judges cannot remedy the error on the part of the House by making what is nonsense into sense. The result of the clause as it stands will be alternate nominations to these offices —one by the advisers of the Crown and another by the Legislature. This will give rise to immense conflict. It is this friction and conflict that we anticipate. With their eyes open the Government are adding this to the others. The Executive Government is a Government to advise the Crown; the Crown is responsible, according to the Constitution, for the nomination of persons whose duty it is to advise the Crown, and it should not be left in the hands of the Legislature to say who should be the advisers of the Crown. That selection should be made by the Crown under the Constitutional rule of seeking those advisers from the majority of the Irish Legislature. This extraordinary departure from the Bill of 1886, which is said to have been introduced for a temporary purpose only, will create a permanent change. For all time you are going to say the Crown shall be fettered by the choice of individuals, and they make the designation of office equivalent to the choice of individuals. If you limit the elasticity of the choice of individuals, and go on and say that the Irish Legislature shall choose the office and the Crown shall not, then again comes the limitation upon the Crown. I say is it an exceptional thing. We have no such power. We have never said that holders of certain offices must be advisers of the Crown. Under the circumstances, it is wrong for the hon. Member for North St. Pancras to ask the Government to do something to prevent the confusion that will inevitably arise if this Amendment is not accepted?
MR. SEXTOX (Kerry, N.)
Notwithstanding what the right hon. and learned Gentleman has said, I think it is somewhat surprising that the hon. Member for North St. Pancras should be the Member of this House to move this Amendment, having already moved it in Committee.
§ MR. SEXTON
He supported it in Committee, and there is very little difference in the two. If the hon. Gentleman had not the originality to move it in Committee—
§ MR. T. H. BOLTON
said, he had the Amendment on the Paper, but there was another Amendment dealing with the same point which had priority.
§ MR. SEXTON
The distinction upon a matter of fact has now been greatly reduced, because it appears lie put the Amendment down in Committee, and now returns to it on Report. The hon. Member was returned to this House by the electors of North St. Pancras after a discussion of this question which lasted for several years; we discussed nothing else for several years; upon the basis that Ireland was to have a Legislature of her own and an Executive Government responsible to that Legislature—and I greatly mistake the Liberal electors of North St. Pancras if they did not intend, when they elected the hon. Gentleman, that the Executive Government responsible to the Irish Legislature was to be chosen by the will of the Irish Legislature as the Executive Governments for every colony and dominion of the Crown are chosen.
§ *MR. SPEAKER
The whole matter is rather a digression. It is not relevant to the matter before the House what the electors understood when they elected the hon. Gentleman.
§ MR. SEXTON
I presume one is entitled to comment on the action of a Member of this House from the point of view of those who elected him. [Cries of "Order!"] The Speaker's language has been carefully guarded, and I intend to obey the Speaker in a larger sense than even he imposes upon me, and I shall not pursue the question. The right hon. Gentleman the Member for Bury appears to me to have misapprehended the force of the clause. He says the Executive Committee in Ireland will be the Ministers of the Crown, and the Crown is responsible for their appointment, and that this clause proposes to fetter the choice of individuals by the Crown. I submit with every confidence this clause 899 does nothing of the kind. This clause only says what offices are to be held by persons who are to be the Executive Government of Ireland. Suppose even an Irish Act had been passed dictating what offices should be held by the persons who are to be the Government of Ireland even after the Act had been passed, the appointment of individuals that fill those offices will still be the act of the Crown. Therefore, there is nothing whatever in the clause limiting the choice of the Crown in the appointment of individuals.
§ SIR H. JAMES
Suppose the Irish Government passed an Act saying there should be only three officers, that would fetter the choice of the Crown, because there would be only three advisers.
§ MR. SEXTON
In the first place, the Crown could veto the Act. One cannot fail to observe in the course of these discussions how very frequently gentlemen, even right hon. and learned Gentlemen, ignore the powers and safeguards of the Act which it is not convenient for them to refer to, and fix themselves entirely on others. I am entitled to take all the powers of the Act into view, and to say that if the Irish Parliament did pass an Act as I think so unsuitable as one providing only three offices entitling persons to Cabinet rank in Ireland, the Imperial Government would be here; they would review the Act, and if it fettered the Crown, veto it, and thereby urge the Irish Legislature to make a more fitting enactment. To return to the main argument of the right hon. Gentleman, that this clause fetters the discretion of the Crown in the choice of individuals, again I submit with every confidence it does nothing of the kind, because the power contemplated is only to enable the Irish Legislature to pass an Act to say what offices shall be Cabinet offices. And even if the Act had become law the function of appointing individuals to fill these offices would still be the function of the Crown. Apart from legal formularism, what is practically the course of the Constitution in regard to the appointment of the Cabinet in England and in every Colony and Dominion of the Crown? You say the appointment is with the Crown. How is it in practice? Why, the Crown has no choice in the matter either here or anywhere else. The people elect the Chamber and dictate who are to be the 900 Government. That excites merriment amongst the minor politicians of the Birmingham school. But the people elect the majority of this House, and the Crown—put it in what form you please —the Crown has to appoint the Ministers whom the majority will accept. What is the rule in England and in every Colony and Dominion and Dependency of the British Empire will also be the rule in Ireland, and that is the substance of the matter. The right and the power of the Irish Legislature to say what persons shall be the Ministers of the Crown in Ireland is their inevitable right according to Government usage. At the same time, this clause does not in form withdraw from the Crown the right of nominating individuals, yet in substance, whatever the language of the clause, the power in operation will be the same as the power in Canada, Australia, the Cape, or anywhere else. As to the grammar of this clause, of which a great deal has been said, it is suggested that as the clause is drawn it simply gives an alternative between Her Majesty and the Irish Act, and that they may come into conflict with each other. The one reply is that Her Majesty may veto any Irish Act, and that puts an end to any chance of conflict. If you are to have two powers one must necessarily act first, and the other comes second. For some time after the passing of the Home Rule Act an Irish Act cannot be passed. There will be a Government in Ireland for some months before there is a Legislature; and after there is a Legislature some time will elapse—years may elapse —before an Act can be passed; therefore, it is evident that within that period Her Majesty, and Her Majesty alone, can exercise the power designated in this clause, because no other authority will be in existence for the purpose, or, at any rate, can make its will effective. Therefore, the power of Her Majesty stands first, and that disposes of the argument that this is simply an alternative. On the contrary, it gives Her Majesty priority. Then comes the Irish Act, and it is evident that the intention, whatever astute grammarians may say, is that there is a period within which Her Majesty will act first, and then comes the Irish Act. I submit that this is not the simple alternative, but the provision of two powers, one to act within the period when there 901 is no second power, and the second acts after the legislative function comes into existence, and it cannot be contended that the power of Her Majesty comes after the passing of the Irish Act. The power will remain after the passing of the Irish Act, because Her Majesty will have to assent to that Act The supposition put forward by the right hon. and learned Gentleman (Sir H. James), that under the clause as it is drawn, and after Her Majesty has assented to the Irish Act giving Ireland the same powers as are exercised in every Colony of the Crown with regard to the Cabinet, Her Majesty would desire again lo interfere with the operation of an Act to which the Royal Assent has been given—which is the argument of the grammarians in this matter—is a useless and somewhat irritating artifice. The language of the clause is as clear as need be, as clear as it usually is in an Act of Parliament, and much more clear than in many of the Acts with the framing of which the right hon. Gentleman the Member for Bury had a good deal to do.
§ MR. BYRNE
said, he thought it a great pity that a discussion should be necessary as to the true meaning of the clause. As far as be was concerned, he differed entirely from the last speaker, who, he thought, put a wrong construction on the words as they stood. The question was one of principle, and the powers were not alternative but collateral. That, to his mind, speaking as a lawyer, was quite clear. But to put the matter beyond doubt the words might be altered so as to read—And comprising persons holding such offices under the Grown in the first instance as Her Majesty may think fit, and afterwards as may be directed by Irish Act.If the Government would accept those words they would express what the Government had declared they meant, and what the hon. Member for North Kerry thought they meant. If those words were adopted they would then be able to divide on the question of principle, and not on the question of obscure English. He would move to insert those words.
§ *MR. SPEAKER
The hon. Member cannot move those words here. They would come before the Amendment already before the House.
§ MR. MACARTNEY (Antrim, S.)
said, that whatever substance there might be in the Constitutional theory of the hon. Member for North Kerry it was not the principle on which the Prime Minister had based his opposition to the Amendment. The right hon. Gentleman had distinctly told them that the clause was drafted in this particular way in order to meet the peculiarities of the Irish Privy Council, and he had told them that in the previous discussion those peculiarities had been fully ventilated, and that the House had decided on them. He (Mr. Macartney) must demur most strongly to that presentation of the case. The Government, in opposing the Amendment, had said nothing at all about the peculiarities of the Irish Privy Council. There were no such peculiarities, and no Member of the Government had been able to point any out. Even supposing that the Irish Privy Council was a Body vicious in its character, and origin, and practice, that would be no ground for drafting a clause which was ridiculous and nonsensical, and which was without precedent. There were two plain courses, either of which the Government might have taken. They might have followed the precedent the House had set in regard to all other subordinate Constitutions—that was to say, they might have left the regulation of the Cabinet Offices in the Irish Legislature to the Crown, or they might have left it entirely to the Irish Legislature; but they had not taken either of those plain courses. They had taken a course most incongruous and inconvenient, and which threw upon the whole of this important section the most obvious criticism. The hon. Member for North Kerry had attempted to argue—as the Solicitor General had done previously—that there could be no possibility of conflict between Her Majesty's Representative in the exercise of the veto and the Irish Parliament. He (Mr. Macartney) could not agree with that. Supposing the Irish Legislature proposed, from motives of economy, to reduce the 903 number of Cabinet Offices to three—the Crown having previously appointed eight—and supposing the Crown thought that was not a competent Dumber of advisers, would the hon. Member for Kerry be prepared to say that would not be not only a probable but a reasonable cause of friction between the Lord Lieutenant, as representing Her Majesty, and the Irish Parliament?
§ MR. MACARTNEY
Putting aside motives of economy, supposing from motives which they might easily imagine to prevail in Ireland the Irish Government wanted to find a large number of offices of lignity, with fat salaries attached, for supporters who could not easily be left out—for there were many leaders of the Irish race, not only here, but in the United States, South America, and elsewhere—one of the first acts of the Legislature would he to promote a Bill, which would, of course, pass through both Houses without the slightest difficulty, to enlarge the offices which would give Cabinet rank. That would be the converse of the economical theory which had been urged. It might be Her Majesty's Government would say that in the interests of economy the Imperial Parliament through the Crown would have to enforce the veto. There, again, was a probable cause of friction. The clause as it stood was drawn in such a way that even from the Prime Minister's point of view it was objectionable, because it would create at the very commencement of the new Government in Ireland a situation in which friction might arise between the Irish Executive and the official who would represent the Crown in Ireland. On these grounds he thought the Amendment of the hon. Member for North St. Pancras a reasonable one. Either that ought to be accepted or the Prime Minister ought deliberately to say that they would not retain under the control of the Imperial authority any method of interfering with the suggestions and wishes of the Irish Parliament, and would allow that Parliament not only to nominate those who were to fill the offices of Cabinet rank, but to create the offices which were to carry Cabinet rank. That would be plain and distinct, and would wipe away a cause of friction. What was the cause of the 904 ambiguity in the clause? It could not rest on the peculiarity of the Irish Privy Council; therefore, it must in some way he a reservation to the Imperial power. It, however, was manifestly impotent.
§ MR. J. MORLEY
said, he had listened very carefully to the criticisms passed upon the wording of the subsection, and to the suggestions which had been made—by the hon. Member for Essex amongst others—for more clearly setting forth what they had declared to be the intentions of the Government in the sub-section. So far as the chief argument of the right hon. Gentleman the Member for Bury (Sir H. James) was concerned—namely, that there might be concurrent nominations under an Irish Act and by Her Majesty, it had been answered sufficiently by the hon. Member for North Kerry, who had pointed out that an Irish Act must first receive the assent of Her Majesty. He thought the argument was a good one, but he would not go into it further. There were three ways of fixing these offices: By Her Majesty acting on the advice of the Secretary of State; by the Irish Legislature; and, what would be the most probable course, by Her Majesty authorising the Lord Lieutenant, in the first instance, to do what was contemplated in the sub-section. The Government thought that this would be mot by amending the clause as follows:—Comprising persons holding such offices under the Crown as Her Majesty, or, if so authorised, the Lord Lieutenant, may think fit, save as may be otherwise directed by Irish Act.When the proper time came, he would move that Amendment.
§ MR. BOUSFIELD (Hackney, N.)
said, the course the Government had taken was, no doubt, strictly in accordance with the precedent that had been set by them, and which had been followed almost from day to day throughout the Sittings on the Bill, in their treatment of Amendments. An Amendment was moved. Then, first of all, the Prime Minister got up and jumped upon the Mover of it, treated him with contumely and scorn, dragged in a number of personalities that had nothing to do with the question, and said in the strongest terms that ho objected to the Amendment, and would have nothing to do with it. Then after a time one Law 905 Officer rose to holster up the position, to the best of his ability—poor, unfortunate man, he hoped they pitied him! Another Law Officer followed, as a rule, to take part in the same uncongenial work—though that precedent had not been exactly followed to-day—and in the end the epidermis of the Government having been thoroughly penetrated by the arguments of the Opposition, they consented to do what from the first they refused to do. The hon. Member for St. Pancras had pointed out that there was an ambiguity in the words of the clause, and the Leader of the Opposition had referred to the drafting; but the Prime Minister and the hon. Member for North Kerry had brought in all sorts of Constitutional questions, and had treated the Amendment as raising the question of the Prerogative of the Crown, though that had nothing to do with the matter.
§ *SIR C. RUSSELL
said, the hon. Member had been but a short time in the House. If he had been more familiar with their proceedings he probably would not have made the observations they had just hoard from him. While he (Sir C. Russell) admitted that some of the Amendments had been directed to improving the drafting of the Bill, ho did not admit that any one Amendment that had been accepted had in any material sense altered the main outline and character of the measure. The hon. Member did not appear to have read the Amendment.
§ SIR C. RUSSELL
Then it was all the worse for the hon. Gentleman's memory. The hon. Member appeared to think that the Government had accepted the Amendment.
§ MR. BOUSEIELD rose. [Cries of "Order!"]
§ *SIR C. RUSSELL
said that, so far from being an acceptance of the Amendment of the hon. Member for North St. Pancras, the Amendment of the Government was a negation of it. He did not think that when the Government showed a desire to meet the criticisms of the opponents of the Bill consistently with the maintenance of the spirit of the clauses they should be met with observa- 906 tions such as those of the hon. Member opposite.
§ MR. BOUSFIELD
stated that he had risen to make a statement, though, on reflection, he feared that it would not come within the limits of a personal explanation.
*MR. GIBSON BOWLES (Lynn Regis)
said, he had heard great pretensions put forward by old Members; but be had never before heard the pretension that old Members had a monopoly of irrelevancy and strong language. He thought that the Parliamentary apprentices might claim some freedom in discussion. When the example of travelling into personalities and irrelevancy was set by so old and eminent a Member as the Prime Minister some of the poor apprentices might be excused for wandering into the same paths; but he (Mr. Gibson Bowles) would not do so. He hoped to set a better and more courteous example than that set by the Prime Minister, the Attorney General, or oven the Solicitor General. The Attorney General bad truly said that the words proposed by the Irish Secretary were by no means an acceptance of the Amendment. They not only did not make the clause better than it was before in regard to the point to which the Amendment was addressed, but they made it worse. They first proposed that the Executive Committee of the Privy Council should be composed of such persons holding such offices as Her Majesty or the Lord Lieutenant might think fit; but Her Majesty and the Lord Lieutenant were thrown overboard, for they went on to say—Save as may be otherwise directed by Irish Act.Under those words Her Majesty and the Lord Lieutenant would only be able to do that which they were permitted to do by Irish Act; therefore, the Amendment of the hon. Member for North St. Pancras was the more necessary. The insincerity of the clause was as palpable as its inconvenience. It professed to set tip a Committee of the Privy Council, but nothing was more certain than that the Privy Council would have nothing to do with it's nomination, and would commit nothing to it. It was no Committee of the Privy Council. They might call it a Cabal or a Committee of the Irish Legislature. That would be comprehensible and in 907 keeping with its character, but it would never be a Committee of the Privy Council. The persons composing the Committee were not to be nominated by the Crown, hut were to be the holders of certain offices. It was not the person, hut the officer, who became ex officio a Councillor; and this difficulty would arise: If the Postmaster General were an ex officio Councillor the gentleman who hold the office might be eminently qualified as a Postmaster General and not eminently qualified as a Privy Councillor. What were they going to do?—to nominate the man because he would make a good Postmaster General, or refrain from nominating him because he would make a bad Privy Councillor? This showed the inconvenience of the proposal. It was practically preventing the Sovereign from calling to her Council a person whom she might think to be a good Councillor. Further, it would impose a man upon her as Councillor because ho held a certain specified office—and the specification of the office was not to rest with Her Majesty or with the Lord Lieutenant save in so far as the Irish Legislature might think fit. He was surprised to find the Government, instead of endeavouring to meet the views of the hon. Member for St. Pancras, offering suggestions which would have the effect of rendering the clause even worse than it was.
§ MR. DARLING (Deptford)
could not agree with the hon. Member who had just sat down as to the effect of the word "save" introduced by the Chief Secretary—no doubt on the advice of the Attorney General. He did not believe it would have the disastrous consequences the hon. and learned Gentleman anticipated. It reserved to the Crown the power to appoint the Ministers in the first instance, and it appeared to him that the Chief Secretary had been well advised in using the word "save." He did not think the hon. Member for North St. Pancras had anything to complain of, as the Chief Secretary's proposal would go a long way towards bringing about the result ho desired to effect.
§ MR. COURTNEY (Cornwall, Bodmin)
said, he should like to point out to the hon. Member that if the Amendment were not withdrawn the Government's Amendment could not be moved. He thought it would be worth while to try and get rid of the present obscurity; and the Amendment of the Government, although it was not very elegant, would have that effect.
§ MR. J. CHAMBERLAIN (Birmingham, W.)
I rise with some hesitation to support the view of my right hon. Friend, and to suggest to the hon. Member that ho should follow his advice and withdraw the Amendment, in order that we may discuss the suggested Amendment of the Chief Secretary.
§ MR. T. M. HEALY (Louth, N.)
remarked that the Nationalist Members might refuse to allow the Amendment to be withdrawn.
§ MR. SPEAKER
It can only be withdrawn with the consent of the House. Does the hon. Gentleman consent to withdraw?
§ MR. T. H. BOLTON
In deference to the advice of the right hon. Gentleman, I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
To leave out from "Crown" to "Act," in order to insert—"As Her Majesty, or, if so authorised, the Lord Lieutenant may think fit, save as may be otherwise directed by Irish Act.—(Mr. J. Morley.)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. W. E. GLADSTONE
I am anxious to say a pacifying word with reference to the speech I contributed to the Debate. When I heard the speech of my right hon. Friend the Member for Bury (Sir H. James) I at once saw I might have gone too far. After a little further consideration, I say frankly I think I was wrong in making a distinction between the hon. Gentleman (Mr. T. H. Bolton) and his constituents. If the hon. Gentleman has taken the precautions my right hon. Friend suggested he stands rightly enough with his constituents; but, if he has not, it is not a 909 matter on which I am entitled to call him to account. I, therefore, think the remark I made in haste was ultra vires. I withdraw it, and I regret it.
§ MR. SEXTON (Kerry, N.)
said, the Amendment unquestionably made clear what had always been the intention—namely, that when an Irish Act was passed it alone should be the directing power.
§ DR. MACGREGOR (Inverness-shire)
said, there was such a division of opinion between the lawyers on the one side of the House and the other that he thought a new Member like himself might draw attention to it. He thought it was Sydney Smith who said—"When doctors differ who shall decide?" He supposed that by doctors were meant Doctors of Law. He did not imagine that the world had ever before seen such a division of opinion among lawyers as had been apparent on this Bill. He used to think it strange that it was possible to drive a coach and horses through an Act of Parliament. He now saw a reason for it—there were too many lawyers in the House.
§ MR. SPEAKER
The remarks of the hon. Gentleman are not very pertinent to the Amendment before the House.
§ DR. MACGREGOR
said, he was coming to the Amendment; but he thought that, on Report, one might make general remarks.
§ MR. SPEAKER
The hon. Gentleman is mistaken. There is a specific Amendment now before the House. The hon. Member's remarks must be confined to that Amendment.
§ Question put, and negatived.
§ Question, "That those words be there inserted," put, and agreed to.
§ *VISCOUNT CRANBORNE (Rochester)
rose to move the following Amendment:—Page 3, line 38, after "Act," insert, "(3) The Lord Lieutenant shall not do or omit to do any act upon the advice of the Executive Committee, or until he has received Her Majesty's instructions thereupon—He said he did not think any Member of the House had any doubt that the matters which were excluded from the cognisance of the Irish Legislature ought likewise to be excluded from the Irish Executive. Much difficulty, however, arose from the fact that the Lord Lieutenant had two or three different capacities under the Bill, and the Amendment was au attempt to distinguish between the Imperial capacity and the local capacity of the Lord Lieutenant. There was no doubt that the Irish Executive ought to be debarred from dealing with the excepted subjects. The right hon. Gentleman the Chancellor of the Duchy (Mr. Bryce) appeared to be under the impression that the Irish Executive must either act in virtue of an Irish law, or in virtue of no law at all. The right hon. Gentleman was, therefore, of opinion that it was impossible for the Trish Executive to deal with the excepted subjects.
and it shall be unlawful for any Executive officer in Ireland, except by the direction of the Lord Lieutenant acting under Her Majesty's instructions as aforesaid, to do or omit to do any such act.
- (a) in respect of any of the matters upon which the Irish Legislature are disabled from legislating under Section 3 of this Act; nor
- (b) Whereby any person or corporation would be injuriously affected in respect of any of the matters in regard to which they are protected as against legislation by the Irish Legislature under Section 4of this Act;
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (Mr. BRYCE, Aberdeen, S.)
I do not assent to that description of my views.
§ *VISCOUNT CRANBORNE
said, the statement made by the right hon. Gentleman in a former Debate was—The Irish Executive could not have protection in an Irish Act for violating the rights and liberties safeguarded by those clauses. Such an Act would be ipso facto void, and if without such an Act they took action they would violate the law.That having been the right hon. Gentleman's language, he did not think he had misquoted him, and he thought the right hon. Gentleman was entirely wrong in his view. The law did not take account of the discretion of the Irish Executive. Of course, if that Executive broke the law it might be called to account; but he submitted that it was in the matter of the discretion of the Executive that the difficulty would arise. Take, for example, Sub-section 2 of Clause 3. That sub-section made it impossible for the Irish Legislature to deal with the 911 conduct of Her Majesty's subjects in respect of the powers granted to Her Majesty for preventing war. A case might arise similar to that of the Alabama. War might break out between France and Italy with reference to the temporal power of the Pope. A privateer might be fitted out in an Irish port for the purpose of assisting Franco against the Italian Government. He submitted that unless the Lord Lieutenant exercised a great deal of care and put the law into operation, Great Britain might be made responsible for his inaction to the tune of £3,000,000 sterling at a subsequent period of our history. He wanted to make it clear in the Bill that the Irish Executive must not give advice to the Lord Lieutenant, and that the Lord Lieutenant could not take any advice from that Executive on such a subject; but that he must consult the Imperial Government on the matter. Extradition was also included among the excepted subjects. No doubt, the Law of Extradition was, at the present moment, put in force by the Secretary of State; but the precautious taken by the police in order to arrest a man on ex tradition really depended upon the way in which the Executive did their duty in Ireland. In a case of extradition the sympathy of the Irish people might be enlisted, and the Irish Executive might advise the Lord Lieutenant not to exercise his authority with sufficient care. The result might be that the criminal might escape, and the Imperial Government would be held responsible. The same argument applied to a case of treason, and to a case of armed and drilled forces. Unless the Lord Lieutenant put the law in force there would be no advantage whatever in excluding those subjects from the purview of the Irish Legislature. With reference to Clause 4, he thought it had been assumed by Members of the Government that any oppressive action taken under an Act of the Irish Legislature would render that Act invalid. It would be in the power of the Irish Legislature to forbid Party processions in Ireland, and the Legislature might go to the length of interfering with free speech in Ireland. He ventured to assert that if the Irish Executive liked it could oppress the minority in Ireland to a most tremendous extent, and could put an end to free speech altogether, so far as that 912 minority was concerned. That was the political aspect of the question; he now came to the individual side of it. Not long since the Chief Secretary held that he had a right to refuse police assistance to the Sheriff. The Courts of Justice, however, held a different view, and the Chief Secretary in consequence proposed to make a little change in the law in order to put himself in the right. What the right hon. Gentleman proposed to do could undoubtedly be done by an Irish Legislature; and there was nothing in Clause to prevent the Lord Lieutenant, in virtue of such a change in the law, from limiting or even refusing police protection altogether in these cases. An Act of that nature would be perfectly legal as this Bill stood; but it might be made to work the greatest hardship in many cases. The most grievous wrong might be inflicted on owners of property, and on persons desirous of performing their legal obligations. He would like to cite some cases in which oppression might take place. Lot them take a case in which disputes had occurred in Ireland in regard to the payment of rents, and relative to the administration of the Land Laws. It was easy to imagine what might take place under an Irish Executive. An unpopular or unsympathetic landlord might wish to enforce payment of his rents on what might be called a hard plan. There were such landlords in England and Scotland as well as in Ireland. Public opinion in Ireland would be arrayed against him; pressure would be brought to bear upon him to abstain from doing that which he was legally entitled to do; pressure would also be applied to the tenants to prevent them meeting their legal obligations; public meetings would be held to denounce the landlord, and eventually the Government itself would be approached with a view to inducing it not to allow this oppressive man to evict his tenants for non-payment of their rents, and the Irish Members would be reminded of all they had said on this subject in bye-gone days. In the end, police assistance would be refused, and the Executive would strain every nerve to use their discretionary powers in order to beat down the resistance of the landlord and to assist his tenants in ignoring their legal obligations. The Irish Executive would approach the Lord Lieu- 913 tenant; and, if he acted on their advice, the tenants would have to submit to intimidation, and the landlord would be deprived of his rights. But if the Lord Lieutenant had to act upon the responsibility of an English Ministry this House would have that control over the Government of the day which the House knew so well how to exercise, and they would be able to prevent popular feeling in Ire-laud from committing a grievous wrong on those desirous to fulfil their legal obligations or to exact their legal rights. There was one other branch of the subject upon which he desired to address the House. Under the existing law, without any change whatever, the Executive possessed enormous powers of oppression. How, he would ask, were the powers of the Court of Exchequer in criminal matters to be carried out in defiance of the declared wishes of the Irish Executive? The Executive Government of the day had only to enter a nolle prosequi in order to put an end to a prosecution; in a ease in which they might be in reality the defendants they would be able to bring to a summary end the whole procedure. The Exchequer Judges, or any other Court in Ireland, might commit a man to prison for default in payment of a fine, or for disobedience to their orders; but the Executive would be able forthwith to release the offender. Therefore, if the exercise of the prerogative of mercy was to be left to the Lord Lieutenant, acting on the advice of the Irish Executive, it would be useless to send a man to prison for contumacy, as he might be at once released. Surely this was a matter in which the Lord Lieutenant should be compelled to act on the responsibility of Imperial Ministers. He did not wish to destroy the discretion of the Lord Lieutenant, but he did desire to make him responsible to this House. It was said that Parliament was omnipotent, and that it could override any legislation passed by the Imperial Parliament. That, no doubt, was technically accurate; but, even under these circumstances, the Government had felt it necessary to put into the Bill most careful provisions, limiting the legislative power of the Irish Parliament. If it was the intention of the Government that the Lord Lieutenant should act on the responsibility of the 914 Imperial Government, the drafting of their Bill did not show it; and as this Bill, if it ever became law, would he, as it were, a Treaty between the two nations, and would be referred to whenever any difference of opinion arose between them, he desired that the matters which he had referred to should be made clear upon the face of the Bill itself. He ventured to say that the protection of direct responsibility to the Imperial Government was in this matter necessary in the highest degree, and that right hon. Gentlemen opposite, in view of all their professions, were not justified in refusing to accept his proposal, the terms of which had been purposely made its wide as possible. He begged to move the Amendment.
In page 3, line 38, after the word "Act," to insert the words—"(3) The Lord Lieu-tenant shall not do or omit to do any act upon the advice of the Executive Committee, or otherwise than as representing Her Majesty—
§ Question proposed, "That those words be there inserted."
§ *SIR C. RUSSELL
said, he had listened with careful attention to the speech of the noble Lord, and, recognising as he did his great acuteness generally, he was bound to say that in this instance he had failed to show that acuteness, either in drafting his Amendment or in advancing reasons in support of it. In substance, although not in form, this Amendment was debated in Committee at no inconsiderable length on a Resolution of a, cognate character proposed by the hon. Member for the Guildford Division of Surrey. He-mentioned that not as challenging the right of the noble Lord to again raise it, but in order to explain that if ho did not refer to some of the topics involved in the Amendment, it was because his right 915 hon. Friend the Chancellor of the Duchy of Lancaster had already done so. The fault which he had to find with the noble Lord was that he appeared to assume that there would be an irreconcilable antagonism between the Lord Lieutenant in his capacity as Representative of the Empire and in his character as local Governor; but the Government could not conceive that there would be any such irreconcilable or conflicting position. What had been done by this Bill had been to leave it entirely to the Imperial Executive to determine to what extent, in what form, and under what conditions powers should be exercised by the Lord Lieutenant as representing the Queen. But why, he might ask, in reply to an interjection which fell from the lips of the right hon. Gentleman the Member for West Birmingham, should not the Lord Lieutenant receive advice from every quarter as long as his responsibility remained? Why should ho not be in a position to confer with the Irish Executive even in relation to matters on which the Irish Legislative Body had no legislative powers? His responsibility was untouched, and he would have to exercise that in pursuance of instructions. A great part of the speech of the noble Lord was addressed to showing that under the powers given to the Irish Legislative Body gross oppression might be exercised. Yes; it was true that the wise administration of a bad Act might work less evil than the partisan administration of a good Act, but this Amendment would not touch that point. As to the action of the Chief Secretary in refusing to supply police protection to Sheriff's who were making seizures at night, the law of this country was clear that distresses were not to be made unless within certain defined hours; and his right hon. Friend consequently thought he was justified in refusing the assistance of the police on such occasions when the seizures were made during the prohibited hours. Now he came to the effect of the Amendment. He took it that, although the noble Lord had made some verbal alterations in its form as it appeared on the Paper, the sense was intended to be the same.
§ *Sir C. RUSSELL,
continuing, said, it appeared to him that the Amendment was not a workable proposal. It meant 916 that the Lord Lieutenant should not do any act, or omit to do any act, upon the advice of the Irish Executive contrary to Clauses 3 and 4 until he had received Her Majesty's instructions thereupon. That was tantamount to saying that the Lord Lieutenant might, as representing Her Majesty, do such acts if authorised.
§ SIR C. RUSSELL
Of course that was not the noble Lord's meaning, but what he did mean was that any matters embraced in Sections 3 and 4, as being excluded from the legislative power of the Irish Legislature, should not be dealt by the Lord Lieutenant, until he had received Her Majesty's instructions. That would be entirely wrong, and foreign to the provisions of the Bill. Let them take, for instance, the question of the extradition of criminals. Was the Lord Lieutenant to be prevented using his power for the arrest of a foreign offender until he could get instructions from London?
§ *VISCOUNT CRANBORNE
If the hon. and learned Gentleman rests his reply on these words, I must call his attention to the alteration. In matters of extradition the Lord Lieutenant would, of course, be responsible for his action to the Secretary of State in this House.
§ SIR C. RUSSELL
said, the noble Lord had told them that, so far as meaning went, the alteration of the words of the Amendment did not affect it. It was the same as regards other classes of offences of that kind to which he need not further allude. The broad answer to this Amendment, and to all Amendments of this class, was that the Bill gave to the Imperial Executive complete and unrestricted power to fix the limits and extent of the delegation, and to determine the conditions and circumstances under which the delegated authority should be exercised by the Lord Lieutenant. There was a broad, clear, and distinct line between Imperial and Irish authority; but it was not intended that the Lord Lieutenant should be debarred from using such means as the circumstances of the time might require and the agencies at his command might furnish, although the agencies might be furnished by the Local Authority.
§ MR. J. CHAMBERLAIN
I have to thank my hon. and learned Friend for having dealt, with the question which I put in the early part of the Debate; but I am not quite sure that my hon. and learned Friend has correctly appreciated the question. He will recollect that it arose out of the discussion as to the powers of the Lord Lieutenant in regard to the appointments of Lieutenants of counties. I understood my hon. and learned Friend to say that the Lord Lieutenant, in making such appointments, must act as the Representative of Her Majesty, and that he must so do because military matters are excluded by Clause 3. My question then was—Must the Lord Lieutenant act as representing Her Majesty in regard to all the matters which are excluded from the purview of the Irish Legislature by Clauses 3 and 4? That question has not been answered by my hon. and learned Friend. He said it would be absurd that the Lord Lieutenant should not acquaint himself with the opinions of the Irish Executive, although he is not bound to act on those opinions. But surely that will depend upon the manner and the form in which these opinions are tendered to him. If they tender advice to him as the Ministers, he is constitutionally bound to follow it or to dismiss them. The hon. and learned Member for Louth, as is his wont, misrepresented my question. He ridiculed the idea that the Members of the Irish Executive were not to send a halfpenny postcard to the Lord Lieutenant. I never suggested anything of the kind. It is not the point whether the Lord Lieutenant may acquaint himself privately with the opinions of certain gentlemen as individuals, but whether he is to ask for and accept advice from these gentlemen in their Ministerial capacity. Granting that the Lord Lieutenant may hear in an informal way the opinions of Members of the Irish Executive, is ho bound to follow them? The Attorney General says he is not. But I should like to put it a little more stronger. It is admitted that the Lord Lieutenant is obliged to act at different times in two capacities. Ho acts in one capacity as a person advised by the Irish Executive, and he acts in the other as representing Her Majesty. In which capacity must he act in dealing with these excluded matters? In regard to these excluded matters, 918 is he to be compelled, without any choice or discretion of his own, to act as representing Her Majesty? If he is, in what part of the Bill is it so stated; and why do the Government object to an Amendment which says so? The point is already adopted by the Government in accepting the Amendment of the hon. Member for Preston. Why do the Government, having accepted the Amendment of the hon. Member for Preston with regard to one of the excluded subjects, refuse to accept an Amendment with regard to the others? The Government have made it perfectly clear that in the matter of the appointment of Lieutenants of counties the Lord Lieutenant is to act as representing Her Majesty. My hon. and learned Friend says that he is also undoubtedly to act as representing Her Majesty in all the other accepted subjects. But why does my hon. and learned Friend refuse to say so in the Bill?
§ MR. SEXTON
said, he would be glad that the noble Lord should explain how he supposed any Executive officer in Ireland could act at all with any certainty if his Amendment wore accepted, because he proposed to make it unlawful for any Executive officer in Ireland, except by the direction of the Lord Lieutenant as representing Her Majesty, to do, or omit to do, any of the acts defined in the Amendment. If the Amendment were adopted it would be necessary for every Executive officer in Ireland, of whatever degree, from the highest to the lowest, on receiving any order from the Lord Lieutenant, to do any act, or to omit to do any act, to satisfy himself whether the Lord Lieutenant was acting on the advice of the Irish Executive or as representing Her Majesty, unless he wished to run the risk of a prosecution for doing an illegal act. That would be an impossible state of things. He would point out to the right hon. Gentleman the Member for West Birmingham (Mr. J. Chamberlain) that there was a fundamental difference between Clause 3 and Clause 4 of the Bill. Clause 3 defined an Imperial sphere of legislation, and it was clear that as no law could ever be made upon any of the subjects defined in Clause 3 by the Irish Legislature when the instrument of delegation was issued defining the duties of the Lord Lieutenant he would be instructed that he was to act in all matters 919 defined in Clause 3 upon Imperial instruction and not upon Irish instruction; and it was evident, therefore, that the Lord Lieutenant, in any Executive action arising out of those subjects, must act upon Imperial authority. It would be open to the House of Commons at any time, if the instruction was imperfect in that respect, to amend it. If the Government issued an improper instruction of delegation they could be called to account, and they would be obliged either to amend the instruction or go out of Office. So much for Clause 3. Now they came to Clause 4. He was surprised that the right hon. Gentleman the Member for West Birmingham, so acute in intellect, which he had applied so extensively to this Bill, had failed to take note of the fundamental difference between the two clauses. Clause 3 was the subject of Imperial legislation; Clause 4 was the subject of Irish legislation. The subjects dealt with in Clause 4 wore life, liberty, property, religion, education, and corporate institutions. The Irish Parliament might make laws upon every one of these subjects, and undoubtedly would; but Clause 4 said that any law they might make in connection with those subjects should not violate certain principles. When the Irish Parliament passed a Bill upon any of the subjects mentioned in Clause 4, such a Bill, if it did not violate any of the principles laid down, would receive the Royal Assent and become the law of the land. If, on the contrary, such a Bill violated any of the principles laid down in the clause, the Bill was ultra vires, and though the Royal Assent was given to it, it might be declared void on the initiative of any person who might be injuriously affected. The Lord Lieutenant, in regard to any of the matters mentioned in Clause 4, would have to act on the advice of the Irish Executive; and, therefore, the Amendment of the noble Lord did not apply itself to the case. The second part of the Amendment was unconstitutional, because it proposed that the Lord Lieutenant should not do any act in regard to Clause 4 whereby any person or corporation should be injuriously affected. The words "injuriously affected" did not occur in Clause 4, and it was quite possible that if the Irish Legislature passed a law upon any subject dealt with in Clause 4, the Lord 920 Lieutenant, under this Amendment would have to take upon himself to say whether or not the Act would injuriously affect any person, although such person may be injuriously affected legally. It was conceivable that a person might be "injuriously affected" by force of law, and through the proper operation of the law. The Amendment, if it were passed, would cast upon the Lord Lieutenant a responsibility which it would be impossible to discharge.
§ SIR H. JAMES
The arguments of the hon. Member for North Kerry very strongly support the substance of the Amendment; and if the noble Lord who moved the Amendment can only, obtain the assent of the Government to a portion of the position taken up by the hon. Member he might very well be satisfied with the work he has done. The first objection of the hon. Member for North Kerry was that it would be impossible for an Executive officer in Ireland to satisfy himself in any case whether he was receiving instructions from the Lord Lieutenant in his Imperial or his Irish capacity. But that is a duty cast upon the Lord Lieutenant. He must tell the Executive officers when he gives his orders whether the instructions are from the Imperial Government or the Irish Government. You cannot legislate on the hypothesis that the Lord Lieutenant will disobey that duty. But the main question is, what will be the relations of the Lord Lieutenant and the Irish Executive in regard to all the matters excluded by Clause 3? The Attorney General, I respectfully submit, has not attempted to meet the interrogatories put to him by my right hon. Friend the Member for West Birmingham. It is admitted by the hon. Member for North Kerry, as it is admitted by my hon. and learned Friend the Attorney General, that with respect to all matters excepted by Clause 3 from the Irish Legislature, the Irish Executive shall have no power to advise the Lord Lieutenant.
§ MR. SEXTON
My conclusion was that the way to amend the provision was to amend the instrument of delegation.
§ SIR H. JAMES
The instrument of delegation will follow the Statute, and will be the creature of it; and it is necessary to have the limitation in the Bill. I cannot understand the position of the Attorney General as to the Con- 921 Stitutional functions of the Lord Lieutenant. The hon. and learned Gentleman's view is that the Lord Lieutenant must take the advice of the Imperial Executive in respect of matters excepted in Clause 3. But while the line is clear in that clause between matters excepted from and matters delegated to the Irish Legislature, the hon. and learned Gentleman invites the Lord Lieutenant to be always passing that line. He says— "What is to prevent the Lord Lieutenant from discussing these matters with the Irish Executive?" That would be putting the Lord Lieutenant from a Constitutional point of view in an absurd position. Of course, the Lord Lieutenant could talk the matter over with his friends at his club. But that is not the point. The Lord Lieutenant must act upon advice constitutionally given. As the Representative of the Sovereign, he must act upon the advice of some Minister who will he constitutionally responsible for his action. My hon. and learned Friend places the Lord Lieutenant in this position. He is to take advice in regard to the accepted matters under Clause 3, from the Imperial Executive; but still at the same time he may, to use the colloquial phrase of the Attorney General, talk them over with the Irish Executive. But are they to speak to him as the Executive Government or as individuals? If the Irish Ministers are to speak only as individuals in discussing matters with the Lord Lieutenant, their advice counts for nothing; but if they speak as the Executive Government he must accept their advice or dismiss them. If they speak as Constitutional Advisers, and their advice clashes with that of the Imperial Government, which is to prevail? What is the use of discussing matters with the Irish Executive if their advice is not to be regarded? Let mo give a concrete instance. Clause 3 excepts treason and treason-felony from the cognisance of the Irish Legislature. Supposing a person were convicted of that offence in Ireland, and that great sympathy was felt for him in the country, according to the view of the Attorney General the Lord Lieutenant could not pardon the man or mitigate sentence except on the advice of the Imperial Executive. What, then, would be the use of consulting the Irish Executive if he had to say, "I cannot 922 listen to your views"? The Government shrink from putting into the Bill what they admit to be the case—that the Lord Lieutenant must take the advice of the Imperial Government. The Government have accepted the Amendment of the hon. Member for Preston on the ground that it refers to a matter excepted under Clause 3, and that, therefore, the Irish Executive cannot advise the Lord Lieutenant in that matter; by a well-known legal maxim the insertion of that one head includes everything else. Having accepted an Amendment in respect to one of the excepted matters in Clause 3, why do you leave out of your consideration the 20 other matters in Clause 3? In the great confusion resulting from the fact that the House has not been allowed to adapt the later clauses of the Bill to the clauses which have been amended, no point will stand out more prominently and injuriously than that of the functions of the Lord Lieutenant as set forth in this clause unless the clause is properly amended.
§ MR. WYNDHAM (Dover)
(who rose amid cries of "Divide!") said, that the House could not divide until some answer had been given, not only to the Leaders of the Opposition, but to the hon. Member for North Kerry.
§ It being half-past Five of the clock the Debate stood adjourned.
§ Debate to be resumed To-morrow.