§ [TWENTY-SECOND NIGHT.]
§ Bill considered in Committee.
§ (In the Committee.)
§ Legislative Authority.
§ Clause 4 (Restrictions on powers of Irish Legislature).
ruled the following Amendments out of Order, namely—Mr. Butcher (York)—Page 2, line 31, after "law," insert "as such law now exists or as the same may from time to time be altered by Act of Parliament.Mr. Harry Foster (Suffolk. Lowestoft)—Page 2, line 31, after "law," insert "under the laws of the Imperial Parliament.
§ * MR. GERALD BALFOUR (Leeds, Central)
had the next Amendment on the Paper, as follows:—Page 2, line 31, after "law," insert "in accordance with the settled principles and precedents of judicial procedure unalterable save by the Parliament of the United Kingdom.He said that he proposed to move the Amendment in a form slightly different from the form in which it appeared on the Paper, namely—After "law," insert "in accordance with settled principles and precedents of judicial procedure, unalterable by legal enactments other than those of the Parliament of the United Kingdom.He would hardly have ventured, as a layman, to intervene in the Debate were it not for the fact that he had powerful intercessors in the Attorney General and Solicitor General. The sense of this Amendment was the sense which these hon. and learned Gentlemen had put upon the expression "due process of law," and the words of the Amendment were really the words used by them in the Debate the previous night. A great deal had been said about the dangers of definition. They had been told that these words "due process of law" never had been defined, and never would be defined. 1199 The Chancellor of the Duchy of Lancaster went so far as to say that they could not be defined, and that they ought not to be defined, because definition would destroy their value. Of course, if these words could not be defined, it would be unreasonable for any Member of the Committee to ask that a definition should be placed in the Bill. He did not demand impossibilities; his request was a much humbler one. He did not ask for a definition; he asked for an indication—for something in the nature of a signpost, which would prevent the Irish Judges, or any other Judges who might have to interpret the words in the future, from going astray by following English decisions rather than the interpretation of the American jurists. What he desired was that the Judges should have, as it were, a compass to guide them on this mysterious sea of legal interpretation; and for the words of his Amendment which, he hoped, would provide such a compass, he had gone to the Attorney General and the Solicitor General themselves. Two questions had arisen in the course of the Debate upon this subject. The first was, "What was due process of law?" By that he did not mean what would constitute an exhaustive definition; but what was the general character and significance of the expression—"due process of law?" The Attorney General, speaking on the point the previous night, said—He would say that the words 'due process of law' were to be regarded in this way: that due process of law was where the process of law followed certain principles of judicial procedure, or where such process followed sound precedent applicable to the subject-matter and the circumstances affecting it.Similar language was employed by the Solicitor General. He said—'Due process of law' meant a process of law which was according to sound precedent; and, therefore, they did secure trial by jury in all those cases in which, according to the sound general principles of our English Constitution, trial by jury had always been given.It would be seen that his Amendment practically embodied the words of the Attorney General and the Solicitor General. The other question was no less important, and it was one which had given rise to some doubts in the minds of hon. Gentlemen on the Opposition side at all events. It was this—"Does this Bill leave it in the power of the Irish 1200 Legislature to pass laws altering the due process of law? "On that question they had very explicit statements from right hon. Gentlemen on the Treasury Bench. As he understood, it was admitted that the Imperial Parliament could pass laws which would alter the due process of law. But the important question was, Could the Irish Legislature also do this? In dealing with that question, the Solicitor General reminded the Committee that the expression "due process of law" was intended to have a meaning; and that if it were in the power of the Irish Legislature to alter the due process of law, this sub-section would become nugatory and meaningless. If he might venture to intrude his opinion, he did not think that the words would become perfectly meaningless. It appeared to him that even if it were in the power of the Irish Parliament to alter by legal enactment "due process of law," these words would still have a meaning, for they would still prevent the Irish Parliament from passing laws giving an indemnity beforehand to the Executive for depriving any person of life, liberty, or property by illegal means. However, it was not necessary to pursue that subject further, because they had explicit statements from the Government on this question, whether the Irish Parliament would or would not have the power of making enactments altering the meaning of "due process of law." The Solicitor General said on the subject—The section as it stood was plainly a limitation on the legislative power of the Irish Legislature. Due process of law could only be altered according to the will and pleasure of this Parliament.He asked the attention of the Committee to the words "according to the will and pleasure of this Parliament," for those were the words he had introduced into the second part of his Amendment. The Attorney General, on the same point, said—It was said that in spite of the clause the Irish Legislative Body might make any law or might lay down any mode of proceeding they pleased, and that thereupon it became due process of law. He had no hesitation in saying that that argument was absurd on the face of it, one to which no legal tribunal would, or could, for a moment listen.These were strong, and explicit, and clear statements. He would cite one more—from the Chancellor of the Duchy who said— 1201There was another error which pervaded the arguments of lawyers who had spoken in the Debate—that was, that the Irish Parliament could make that due process of law which would not be due process of law. Why, the whole object of the Government was to make it impossible for the Irish Parliament to vary this matter.If the Chancellor of the Duchy was right in saying that the whole object of the Government was to make it impossible for the Irish Parliament to vary the matter, the best way of carrying out that intention was to accept the Amendment, which he now begged to move.
In page 2, line 31, after the word "law," to insert the words "in accordance with settled principles and precedents of judicial procedure unalterable by legal enactments other than those of the Parliament of the United Kingdom."—(Mr. Gerald Balfour.)
§ Question proposed, "That those words be there inserted."
§ * THE ATTORNEY GENERAL (Sir C. RUSSELL,) Hackney, S.
I do not recede from anything I said yesterday on this subject. I see no reason to qualify the citation from my observations which was read by the hon. Gentleman. If I did I should quite candidly make the qualification. But I must say, on behalf of the Solicitor General, that the citation from his argument was not quite complete. It did not fully convey his meaning, but so far as it went it was accurate. We both maintain that "due process of law" means process of law proceeding, to use the words of the Amendment, "upon settled principles and precedents." That is the language we used. We do not think that the addition of these words will add anything whatever to the strength of the language of the clause as it stands—"without due process of law." But if it would save discussion, or save time, we have no objection to take the language, with a slight qualification, of the hon. Member, so that the sub-section would run—Whereby any person may be deprived of life, liberty, or property without the process of law, having regard to settled principles and precedents.But when the hon. Member goes further, and asks us to declare that these settled principles and precedents shall be unalterable save by the legal enactment of the Imperial Parliament we object, for a reason which I hope will be appreciated 1202 by the Committee. The words which the hon. Member propose to introduce would give to these settled principles and precedents a stereotyped character.
§ * MR. GERALD BALFOUR
I bog the hon. and learned Gentleman's pardon. He has quoted the words of my Amendment as I put it down on the Paper. But I was prepared for the objection he has raised, and in order to meet it I altered the Amendment as follows:—In accordance with settled principles and precedents of judicial procedure, unalterable by legal enactments other than those of the Parliament of the United Kingdom.So far as "due process of law" is alterable by the decisions of Judges, this Amendment would not prevent it being so altered.
§ * SIR C. RUSSELL
I do not think the alteration in the Amendment removes my objection, though it somewhat qualifies it, and it would still give a stereotyped character to the principles and precedents. And this gives me the opportunity of pointing out a misapprehension of what I and my hon. Friend the Solicitor General said yesterday. We have not said, and we never intended to say, that the Irish Legislative Body would not have the power to affect legal procedure or due process of law. We said that, under this enactment, it would be out of the power of the Irish Legislative Body to propose anything they pleased and call it "due process of law," and thereby entirely get rid of the restrictions which the clause as it stands is intended to supply. I submit to the hon. Member that, by saying that the due process of law shall be in accordance with settled principles and precedents of legal procedure, we leave it to be dealt with and judged by judicial interpretation, for this being a written constitution it lies within the domain of judicial interpretation.
§ * MR. T. H. BOLTON (St. Pancras, N.)
said, he wished to ask whether the Government would, in the clause dealing with the powers of the Irish Exchequer Judges or any Imperial Judges, who might take their places, give a direct right to every individual citizen of appealing against any Act of the Local Legislature, or any Act of the Executive Government of Ireland, which contravened the limitations laid down by this clause?
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (Mr. Bryce, Aberdeen, S.)
If I understand aright the question of my hon. Friend behind me, he will find when we come to that part of the Bill which deals with the jurisdiction and powers of the Exchequer Judges that every right that anyone can possibly desire to enforce under Clause 4 will be brought before the Exchequer Judges, and when any question arises under Clause 4 in any Court in Ireland that question will be brought up in due course of appeal before the Exchequer Judges or the Privy Council.
§ MR. T. H. BOLTON
said, he did not refer to questions that might arise in some judicial proceedings. He asked, Would it be competent for an individual citizen who felt himself aggrieved to go before the Exchequer Judges?
§ MR. T. H. BOLTON
said, that then they were to understand that the Government, if necessary, so amend this provision as would enable an individual citizen who complained of any act of the Executive Government or of the Local Legislature to appeal direct to the Exchequer Judges or to the Imperial Judges and get redress?
§ MR. A. J. BALFOUR (Manchester, E.)
I am sure we all appreciate the spirit which animates the Attorney General in making this concession to my hon. Friend behind me; and when I cast my memory back to the long Debates we had last night when we endeavoured to induce the Government to introduce words into the Bill carrying out their own intentions, I cannot but regret that the policy which now apparently actuates the occupants of the Treasury Bench did not commend itself to their attention somewhat earlier in our proceedings. It would, if I may venture to say so, have saved a great deal of the valuable time of the Committee, which we have been accused, not by the Treasury Bench, but accused by the Press which supports them, of having wasted. I hope those who make that accusation will now realise that if time has been expended 1204 in amending the Bill that time has been expended more by those who refused to accept Amendments, the justice of which they recognised, than by those who pressed those Amendments on their attention. With regard to the Amendment before the Committee, as I said before, we welcome this recognition of the validity of our contentions, even though it may be a tardy concession. The Attorney General has shown a very wise disposition to embody in the Bill the avowed and explicit views of the Treasury Bench, though I do not quite think—I may, however, be wrong—that the Amendment on the Amendment which he proposes would carry out the avowed intentions of his Colleagues. There was especially one quotation read by the Mover of the Amendment to which I would respectfully call the attention of the Prime Minister and of the Chancellor of the Duchy of Lancaster, who was the author of the statement. The right hon. Gentleman said that an error pervaded the arguments of the lawyers who had spoken on this question, and that that error was to suppose that the Irish Parliament could make that to be due process of law which would not be otherwise due process of law. The whole subject of the Government, the right hon. Gentleman went on to say, was to make it impossible for the Irish Parliament to vary what is now due process of law.
§ MR. A. J. BALFOUR
I am right in saying that it is at the present moment in the power of the Imperial Legislature to vary the due process of law. I wish to know, then, whether there is anything in the Bill as it stands, or will stand if amended by the proposed Amendment of the Attorney General, to prevent the Irish Legislature doing what the Imperial Parliament can now do, and can always do—namely, vary the due process of law? It appears to us to be quite clear that if the words of the Attorney General be accepted something material will be gained in the way of an exposition of 1205 the views of the Government. But I ask them to move one step forward, and to embody in the clause not only the views of the Attorney General and the Solicitor General, but the views of the Chancellor of the Duchy. That would be adequately mot by the words suggested by the Mover of the Amendment. The effect of the Amendment in the form in which it has been moved would be, that while the natural process of devolution—of interpretation—by Courts of Law as to what is due process of law would remain unhampered, as it ought to remain unhampered, if any necessary change in what is due process of law were to be effected, it could only be effected by the action of the Imperial Parliament as distinguished from the action of the Irish Parliament. The Government can effectively insert a full and complete exposition of their uttered opinions into the framework of the Bill by accepting the Amendment as it has been proposed, and, at the same time, shorten this Debate.
§ MR. SEXTON (Kerry, N.)
said, it did not rest absolutely in the hands of the right hon. Gentleman to shorten debate—
§ MR. SEXTON
said, he was not at all certain that the acceptance by the Government of the proposal of the right hon. Gentleman would shorten debate. The obvious effect of the insertion of the words in the clause would be to withdraw the subject of criminal procedure, so far as concerned life, liberty, and property, entirely from the cognisance of the Legislature of Ireland. The Irish Legislature would not be at liberty to amend the due process of law in any practical sense, because the Judicial Committee of the Privy Council, considering what was the due process of law, would be bound to see that the due process of law was in accordance with settled principles and precedents, unalterably, except by the Parliament of the United Kingdom. The Committee had already declared that power over the criminal procedure should be given to the Irish Parliament; but the acceptance of the Amendment would substantially withdraw that power, and whatever might be the peculiar necessities of the country, whatever might be the circumstances that might arise varying the offences by which life and liberty 1206 were justly taken by the law, and the holding of property affected the Irish Parliament if they enacted any provisions to meet those altered circumstances, they would be unable to carry those provisions into effect by being deprived of the power of altering criminal procedure. He understood, as he entered the House, that the Government had agreed to accept some of the words of the Amendment—
§ * SIR C. RUSSELL
Yes, we have agreed to accept "regard being had to settled principles and precedents."
§ MR. SEXTON
said, that if nothing was to be done by the Irish Legislative Assembly except in accordance with this proposal the lines for discussion in that Assembly would be extremely narrow—so narrow that he did not think anything could pass between them. If that did not mean taking away power from the Irish Legislature he did not know what could mean it.
§ MR. SEXTON
Yes; that might please hon. and right hon. Gentlemen opposite, but it did not please him. The Irish Parliament was to have power to make laws, and he thought that to take away the power to legislate in criminal procedure would be to deny that Ireland was a distinct country with separate interests, and to deny one of the fundamental principles of Home Rule. They had had several Gentlemen talking last night about the meaning of the words "due process of law," and if the Court of Interpretation in construing a Statute was to consider not only what was due process of law but also the question of regard being had to settled principles and precedents, and what were principles and precedents, and how far they had been settled, the function of the Interpreting Court would be a difficult one. He thought the matter required further consideration, and feeling the spirit under which he laboured when learned Gentlemen came to the front in Debate, he should be obliged to reserve his right to claim re-consideration of the matter at a later stage of the Bill.
§ MR. J. CHAMBERLAIN (Birmingham, W.)
I am not surprised at the statement of the hon. Gentleman opposite as to the acceptance of the words the Government propose to add, but I think 1207 he is precluded from taking objection to the addition. Last night he listened to the Debate for several hours, and he then appeared to be of opinion that it was an obstructive Debate. He seemed to think that we were indulging in vain repetitions. Well, in the course of—as it now turns out—a most useful discussion, the Attorney General and the Solicitor General again and again used language precisely in accordance with the language which it is now proposed to incorporate in the Bill. If the hon. Member for North Kerry now objects to that language, why did he not do so last night?
§ MR. SEXTON
The right hon. Gentleman is too old a Parliamentarian not to know that language used in debate is one thing and that language to be inserted in a clause in the form of a definition is another.
§ MR. J. CHAMBERLAIN
I cannot make any distinction between language offered to this House by a Member of the Government and the subsequent carrying out of what was understood to be the effect of that language. Our complaint against the Government last night is not that their language was not intelligible to us and satisfactory, but that they refused to put it into the Bill. Well, they have had time for reflection. They, no doubt, pondered over the repetition of our arguments, and they have come to the conclusion that we were right and they were wrong. ["No, no!"] Of course it shows that, but I am not going to throw it in their teeth. They would not have run the risk of offending hon. Members opposite if they had thought that we were wrong. They must have thought that we were right. I am thankful for this change of temper, which, no doubt, will materially assist the further progress of the Bill. I do not think the Committee have hitherto quite appreciated the magnitude of the concession the Government have made, and which I desire most frankly to acknowledge. I do not see very much consequence in the question whether or not the later words of the Amendment proposed by the hon. Gentleman opposite are accepted by the Government or not, and I think I can show that it will not make any difference if they are not accepted. Let us suppose that the words are objected to and we take only those 1208 that the Government have accepted. Then the Irish Legislature will be precluded from making laws except in accordance with the settled principles and precedents of general procedure. They may legislate within the settled principles and precedents, but it is part of the superior Statute that they may not go outside the settled principles and precedents. Therefore, if it be a settled principle and precedent, under certain circumstances, that a man shall be entitled to trial by jury or to indictment before a Grand Jury, the Irish Parliament will have no power to alter the law in those respects. And if it be a settled principle and precedent that a man is entitled to habeas corpus it appears to me the Irish Government will have no power and will be going beyond the principle laid down in the superior Act if they attempt to interfere with the supervision of the habeas corpus. The only legislation that will be left to them will be as to details within settled principles and precedents. If I have rightly understood the extent of the concession, it appears to me to give us all that for which we coutended something like six or seven hours yesterday. Though I regret that a certain amount of time was wasted, it was not by us. I am prepared to accept, thankfully, the concession made. If the view I have expressed is correct, certain Amendments that are on the Paper to restrict the powers of the Irish Legislature will be unnecessary; but if not, and the Government continue to refuse the Amendment of the hon. Member for Leeds, then, of course, they cannot complain if these Amendments are successively brought up, because it will be they who have forced us to raise these questions separately. If, however, as I understand by the words now proposed by the Government these Amendments are all excluded we shall get rid of several important Amendments, and the progress of the Bill will be materially facilitated.
§ * SIR C. RUSSELL
The tone in which several hon. Members of the Committee have received what was intended as a concession by the Government in order to save time does not afford us much encouragement in endeavouring to secure that reasonable progress shall be made with the Bill. The right hon. Gentleman the Member for Birmingham and the right hon Gentle- 1209 man the Leader of the Opposition certainly cannot be allowed to treat this matter as if the Government were making any concession whatever except in point of form. We stated yesterday—and I repeat again to-day—that this concession, in our judgment, gives nothing which the words "due process of law" did not give in the clause as it originally stood. I stand by this position. I cannot allow any portion of the House to be under the impression that this is more than a concession to hon. Members in a matter of form, but does not alter the meaning of the clause as proposed.
§ MR. DUNBAR BARTON (Armagh, Mid)
said, that the Attorney General declared that the words proposed to be inserted in the sub-section would add nothing to its meaning; and in view of that announcement it would be necessary to bring forward separately the Amendments relating to habeas corpus, contracts, indictment by grand jury, bail, and so on. The Chancellor of the Duchy yesterday had said that "due process of law" was a matter that could not be defined and ought not to be defined; but now the Government were prepared to define it, and they were offering to do this notwithstanding the legal maxim quoted by the right hon. Gentleman that there was nothing so dangerous as definition. Further, the Government had repudiated the idea of accepting the opinion of an isolated Judge; but now they were inserting words embodying that opinion; and the very people who had said that the definition could not be given by anyone were themselves offering a definition. He considered the statement of the hon. Member for North Kerry most important—namely, that this power over life, liberty, and property was a fundamental principle of Home Rule. Why was it that the hon. Member was so anxious that this power should not be restricted—why was he so jealous of losing this power of depriving Irish citizens of life and liberty? They had the laws of murder and treason, and what more could they want? He disputed the contention of the Solicitor General last night that the Irish Government could act on precedents and principles, and that these would include historical precedents. In no country had historical precedents been used in deciding legal 1210 questions; and if they could be used there would be nothing to prevent the Irish Legislature following the coercive policy of the present Government in past years. He thought the Government should give a fuller explanation of this word "precedent" before it was finally adopted in the Bill. The concession of the Government did not, in his opinion, meet the dangers pointed out last night as to the lives and liberties of the Irish Loyalists. There was a remarkable difference between the expression "having regard to" and "in accordance with." Under the latter there would be some control over the Irish Parliament; but under the former it might be hold that the Irish Parliament had had "regard to" precedents if it considered them without acting upon them.
§ THE FIRST LORD OF THE TREASURY (Mr. W. E. GLADSTONE,) Edinburgh, Midlothian
I do not speak now of what my hon. and learned Friend the Attorney General proposes to cut off from the Amendment of the hon. Gentleman opposite; but I speak of the words he proposes to admit. The right hon. Gentleman the Member for Birmingham has before him two sets of words—first, "due process of law;" and, secondly, "having regard to the established precedents of principles." We do not want to exclude what meaning my right hon. Friend attaches to the latter words; but we think it is included in the words of the subsection. The question whether it is included in our own words or not has become really a verbal question. The right hon. Gentleman secures the meaning he desires, and we have no disposition to go further into argument.
§ SIR H. JAMES (Bury, Lancashire)
It would be bad faith with the Government if we did not point out that this concession is really of a most substantial kind, and alters entirely the whole complexion of the matter. Take one instance—the suspension of the Habeas Corpus Act. All that would be necessary without these words would be for the Irish Legislature to declare that after a certain day the Act of Charles II. would be suspended. Thereafter, any person could be arrested without process, and detained in custody. But under the Amendment the person could only be arrested with due process of law— 1211In accordance with the settled principles and precedents of general procedure.
§ SIR H. JAMES
I thought they were accepted. Whilst the words proposed remain in the Bill the Irish Legislature can never suspend the Habeas Corpus Act, which is a result we desire to accomplish. It will, therefore, be unnecessary for us to move Amendments to prevent the Irish Government from suspending the Habeas Corpus Act. Without these words it would have been possible to alter criminal procedure in Ireland; but with these words it could only be altered in accordance with settled principles and precedents. These words, I think, would prevent a man in a case of felony from being deprived of the right of going before the Grand Jury. The Irish Legislature, no doubt, would have power in minor matters. Before they would have had full power, but now their powers will be mitigated.
§ * MR. GERALD BALFOUR
said that, so far as he was concerned, he should be prepared to accept the Amendment of the Government, provided the words "in accordance with" were allowed to remain. The words "judicial procedure," he thought, ought also to remain. Did the Government accept them?
§ * MR. GERALD BALFOUR
said, complaint had been made that the concession of the Government was not received in the spirit in which it was offered. That, so far as he (Mr. G. Balfour) was concerned, was not a just complaint. He fully recognised the value of the concession, and was not desirous of spending the time of the Committee unnecessarily.
§ * SIR C. RUSSELL
The words I propose (with the assent of the Prime Minister) to accept are, "in accordance with settled principles and precedents."
§ MR. SEXTON
said, the Amendment only appeared for the first time on the Paper that morning, and a further Amendment had been arrived at, he did not know how, in the course of the day, and now these words were to be inserted in the Bill. He thought it would be admitted that the position of himself and his Colleagues was extremely difficult. 1212 Most of them had not a training in the law, and had had no opportunity of advising with legal authorities on these subjects which were to bind the action of the Irish Legislature, perhaps, for ages yet to come. He had taken the liberty of pointing out to the Attorney General that the words "regard being had to settled principles and precedents" were preferable to the words "in accordance with settled principles and precedents," because he could form some approximate idea of the meaning of the former. He would only say that if the meaning of the Amendment were that the due process of law when enacted by the Irish Legislature must be strictly in accordance with not only settled principles, but also settled precedents, be doubted whether the words would enable the Irish Legislature to attend to the circumstances of criminal procedure as the country might require. If the words "in accordance with" were accepted, he should be obliged to divide the Committee against them. He would agree to the words "regard being had to."
§ MR. A. J. BALFOUR
It seems to me that it would be difficult to manage the business of the Committee on the principle laid down by the hon. Gentleman who has just sat down. We had a discussion last night on the legal bearings of this question; and the hon. Member for North Kerry who, we know, has one of the cutest and clearest heads in the House, and who is as competent to deal with the legal aspect of this question as any eminent Queen's Counsel, was present. He now says he has had no opportunity of conferring with legal gentlemen.
§ MR. SEXTON
I have had no opportunity of conferring with my legal friends as to whether the Amendment should be accepted.
§ MR. A. J. BALFOUR
I believe there are even now in the House legal gentlemen belonging to the Nationalist Party sitting close to the hon. Member who would be prepared to give an opinion on the point. If we are to be broken up into small parties in the House, and if we are to have a Conference whenever a legal difficulty arises, our proceedings must be indefinitely prolonged. We must have confidence in those lawyers whom we select to advise 1213 us; and if we think the two eminent gentlemen opposite are not competent to deal with such a simple question as to whether the words should be "in accordance with" or "in regard to," we cannot have confidence in them.
§ Amendment, by leave, withdrawn.
In page 2, line 31, after the word "law," to insert the words "in accordance with settled principles and precedents."—(The Attorney General.)
§ Question proposed, "That those words be there inserted.
§ MR. SEXTON
I beg to move that the words "in accordance with" be omitted, in order to insert "regard being had to."
§ Amendment proposed to the said proposed Amendment, to leave out the words "in accordance with," in order to insert the words "regard being had to."—(Mr. Sexton.)
§ Question put, "That the words 'in accordance with' stand part of the proposed Amendment."
§ The Committee divided:—Ayes 324; Noes 144.—(Divisiou List, No. 147.)
§ Question again proposed, "That those words be there inserted."
§ MR. CLANCY (Dublin Co., N.)
said, he thought the time had come when some protest should be made against further concessions of this kind. He thought he might, without exaggeration, say that when the Bill was introduced it was accepted as about the minimum that the Irish Nationalists could accept as a working settlement. The whole course of the Committee up to the present moment, so far as he could see, had been in the direction of whittling down the Government proposals. He did not profess to be a great authority on Constitutional questions; but he could not shut his eyes to the fact that legal gentlemen of some repute had staked their reputation on the fact that the Amendment, if carried, would be a serious encroachment upon the power that bad already been given to the Irish Legislature to regulate their own criminal procedure. Looking at the matter as a layman, he himself had 1214 come to the conclusion that if the Amendment were adopted as it now stood the Irish Legislature would be prevented from legislating except in accordance with settled precedents and principles. What was the object of a Legislature? What was the Imperial Parliament doing every day but upsetting settled precedents and principles? As an Irish Nationalist, he objected to the Irish Legislature being prevented from legislating except in accordance with settled precedents and principles, many of which might be shown by experience to be deserving of no other fate than to be set aside. The Amendment would constitute such an encroachment upon the powers of the Irish Legislature that if the right hon. Gentleman the Member for Bury (Sir H. James) were correct it would almost destroy the title of the Bill. He could not but think that the Government had brought much of the difficulty on themselves by introducing such a sub-section as that now before the Committee. The Bill of 1886 contained no such sub-section. He understood that Magna Charta was still the law of the land, and that unconstitutional legislation under the Bill would, therefore, be impossible. He supposed the sub-section had been introduced to please Unionists, who would not be conciliated by any concessions, who would only make use of the successive concessions that had been made to demonstrate the usefulness of their obstructive tactics, and who would go up and down boasting, as they had already boasted in that House, that they had extorted from the Government nine successive Amendments. In his opinion, the Government had made a vast mistake in introducing the sub-section at all, and they had made a still vaster mistake in making concessions on any of the Amendments. If it were in his power now, he should divide the Committee on the question whether the sub-section should stand part of the Bill or not. Most certainly, on the Report stage, he should move to omit the sub-section, not only on the ground that it was spoilt and rendered harmful by the adoption of the Amendment, but that it was useless, that it would be simply a weapon in the hands of the opponents of Irish Nationality, and that it was likely to destroy the effectiveness of the Irish Legislature in the domain of exclusively 1215 Irish affairs which the House of Commons had on several occasions in that Session decided should be within its competence. He had only to announce that those with whom he usually acted—and he thought he might speak for other Members also—would most decidedly divide the Committee against the Amendment, not only as a protest against the action of the Government in giving way on any of these Amendments, but also on the ground that there was a reasonable belief that a vast and unjustifiable encroachment was about to be made on the power of the Irish Government within its proper sphere.
§ EARL COMPTON (York, W.R., Barnsley)
wished to explain why he went into the Lobby with the Irish Members in the last Division, and why he should do so if they went to another Division. He had two reasons. First of all, the words "in accordance with" decidedly restricted the sub-section under discussion, and he did not think it required any further limitation or restriction. In the second place, he looked upon the agreeing to Amendments moved to this sub-section as concessions to those who were trying their very best, night after night, day after day, and week after week, to wreck the Bill. For his part, he was perfectly ready to do everything in his power to hasten the progress of the Bill, and he thought his best way to do that was to remain silent on the subject. He had accordingly remained silent up till now, and had only broken that silence when he thought it right to explain why he was taking part in voting against the Government which he was glad to follow. If there was anything done in the way of Amendment which he thought would improve or increase the power of the Irish Legislature in a reasonable way, then he, for one, should support such an Amendment from whatever side it came. But during all these weeks they had seen Amendment after Amendment put down in order to weaken the Bill; they had heard the Opposition declare they meant to make the Bill more detestable, and he did not think it was reasonable to ask those who were supporting the Bill in its entirety to help the Opposition to make the Bill detestable. Their (the Liberals') object was, and always had been, to do their utmost to give Ireland what they thought 1216 the Irish people had a right to ask for; and what they did ask for at the present moment was, in his opinion, most reasonable. There ought to be elasticity in this as there had been in other matters; and, holding that opinion, he should certainly support the Irish Members in the course they were taking, and he hoped the Government would not be too ready in future to grant concessions to a Party who did not ask for these concessions in order to improve the Bill, but in order to destroy it.
§ MR. SEXTON
I feel constrained to join without qualification in the protest which has been made, and to emphasise the views expressed by the hon. Member for North Dublin in regard to what I must call the unaccountable fatuity of the course of concessions lately pursued by the Government in the hopeless endeavour to conciliate an Opposition who have avowed before the country that their object, and their only object, is to destroy the Bill. The Government, time after time, have yielded to the most audacious conspiracy that has ever avowed itself, and the folly of the course has been made plain from day to day; because upon the concession of each Amendment, although the Government may have declared that it is a concession merely in point of form, the Opposition have availed themselves of it to justify and to vindicate a further course of obstruction. That is not carrying out the will of the people; that is not fulfilling the mandate of the electors. We always understood that the Home Rule measure to be given to Ireland would be a measure entirely satisfactory to the people of Ireland and her Representatives here. Of what use will it be if it be otherwise, and, in the hopeless attempt to save one hour or to relieve yourselves of one speech to be delivered from those (the Opposition) Benches, you day by day incur the fatal danger of alienating the people of Ireland? I beg that this course may be no longer pursued. I have called attention to it again and again. I have spoken, no doubt, with some energy, but, I hope, with perfect respect to the Government and its illustrious head. As a Representative of the Irish people, I am bound to say that if this course of concession be further pursued, the Bill, which, as the hon. Member for North Dublin has said, is unquestionably the minimum which the Irish people 1217 could accept as a settlement of Home Rule, will be rendered unacceptable, and will be no settlement of the question. I greatly fear, and I have little doubt, that the words which have been just accepted, will seriously hamper the Irish Legislature in matters of essential moment—an Amendment put down without notice upon the most unfortunate sub-section dragged by the heels out of the American Constitution which has no revelancy to the case of Great Britain and Ireland, no relevancy to the case of a Parliament unquestionably sovereign here and another Parliament unquestionably subordinate to it in Ireland, provisions which are very well where you have a written Constitution without sovereign authority, Federal Parliaments and Slate Parliaments which will make laws of their own without a Federal veto, but which have no relevancy whatever to the case of Great Britain and Ireland. But you drag in the subsection, and by doing so you give an opportunity and a most tempting occasion for saying, "If you find that this part of the American Constitution is so valuable, why not bring in all the rest?" and so we have had numerous Amendments, and we may have an Amendment to have the whole body of the American Constitution so far as it concerns anything that can be called Constitutional security superimposed upon us. That would be nonsensical and absurd. I say the words which you have now agreed to may give rise to serious consequences. For instance, it may be necessary to have a compulsory measure of Land Purchase in Ireland. The heart of Ulster is set upon it. [A laugh.] The hon. Member for South Tyrone (Mr. T. W. Russell) may laugh; but he knows very well that after having denounced compulsory sale in this House he went over to South Tyrone and blessed it when he required to be elected. I have given a few minutes' further study to these words, and I am satisfied that they would prevent the Irish Legislature from passing a law for the compulsory sale of land, which law alone, especially in the Province of Ulster, would settle the Land Question. Under the Land Clauses Consolidation Act, upon taking a piece of land it is made a settled principle that the price of the land must be increased by a certain percentage, 1218 because the land is compulsorily taken; and by the introduction of these simple words, "in accordance with settled principles," you have made it impossible for the Irish Legislature to deal with the question of the compulsory sale of land as the interest of Ireland would unquestionably desire. I will say no more. I have endeavoured to press upon the Government the gravity of the course that they have pursued. I have failed. I should not have thought it worth while to challenge a second Division on the Amendment; but as the hon. Member is disposed to divide we will join with him.
§ MR. MACARTNEY (Antrim, S.)
said, that after the speech of the hon. Member for North Kerry he wished to ask the Prime Minister whether he did not think it was his duty to the country to report Progress in order to consider whether the Government would not withdraw this Bill?
§ Question put.
§ The Committee divided:—Ayes 310; Noes 165.—(Division List, No. 147.)
§ * MRJOR DARWIN (Staffordshire, Lichfield)
moved the following Amendment:—Page 2, line 32, after "laws," insert "or shall escape liability for acts done or omitted to be done by means of an Act of Indemnity.In moving this Amendment he had chiefly in view those illegal acts which might be committed by the Executive in times of great civil disturbance, when riots or insurrection were taking place. He could not in the least doubt that it was the intention of the Government that no one should be illegally punished in Ireland, and they had been told that the checks under this Act would be applied automatically—that was to say, if anyone took any part in an illegal punishment or proceeding, he would be liable to presecution and punishment. In a previous discussion the Solicitor General stated, as a Constitutional principle, that a subordinate Parliament could not pass an Act of Indemnity excusing any illegal act which that Parliament could not, by previous legislation, have made legal. That was, he believed, an undoubted principle of Constitutional Law—that no legislature, other than the Supreme Legislature, like the Imperial Parliament, could make that legal retrospectively which it could not have 1219 legalised originally. In discussing this matter he would take two cases—that of acts which could, and that of acts which could not, have been legalised originally. As to acts which could not be legalised, he presumed that to mean that the Irish Legislature could not indemnify the Executive which had taken part in illegal punishment without trial, because there would be no power to legislate for punishment without trial. He would not argue the legal aspect, but would take the common-sense view of the meaning of the Bill—that all powers were given which were not excluded. He thought, therefore, the Irish Legislature would have seem to have power to pass an Act of Indemnity to cover any acts of its officers. Legal principles were, no doubt, necessary to the interpretation of an Act; but he must protest against legal principles being a reason for excluding words necessary to giving a plain meaning. That was a bad principle to go upon. The Act would be so worded as to be capable of being read by laymen as well as by lawyers. Constitutional principles might change by fresh decisions over which the Imperial Parliament would have no control; but the words in the Act could not change, and he thought these words had better be inserted. Another reason might also be brought forward. Let them take the case of an insurrection, with illegal punishments followed by an Act of Indemnity. In order to prosecute, in addition to the ordinary procedure, it would be necessary to prove that the Act of Indemnity was invalid, because the act committed could not have been legal. Surely that would increase the difficulty of prosecution? Would it not be better to make the Act of Indemnity invalid without question? They had also to consider how far advisable it would be to allow the Legislature to excuse by Act of Indemnity an act which they could have legalised originally, still dealing with troubles likely to arise at times of riot or insurrection. Here the main check was the sub-section with reference to "due process." He was not going to re-open the discussion upon that question, but he must give an example in order to make his meaning clear. Taking the view of the Government, capital punishment for sheep-stealing could be made legal. Hence, if anyone was executed for sheep-stealing—he 1220 admitted, of course, that this was an extreme case—and executed after trial, then an Act of Indemnity would cover those taking part. Arguing from analogy, a great number of irregularities might be committed which would be covered. If "due process" had the meaning put upon it by the hon. and learned Member for Mid Armagh (Mr. Dunbar Barton), then very few acts, indeed, of any kind would not be covered. He was perfectly well aware that it would be said there could be no harm in giving the Irish Legislature power to excuse acts which they could have rendered legal. He did not think so, however; for if, in a bad time, the Legislature felt they had not power enough, they could legislate to meet contingencies. If such Acts of the Legislature were unjust, they could be vetoed. Well, then, it might be said—"You can veto an Act of Indemnity." But the answer to that was that it would be too late. If the Legislature had no power to pass an Act of Indemnity, they would have to legislate in advance, and an opportunity would be given of considering such measures as might be introduced. He did not deny that at times it would be almost impossible to avoid illegalities; but the Amendment was necessary to ensure that in all cases there should be discussion in Parliament before the officials were freed from penalties. The Government had promised to see to the protection of minorities, and this discussion was necessary for that purpose. The safeguards of the Government for the protection of the Irish minority would be absolutely useless unless they excluded the power of passing Acts of Indemnity. There were other instances which might be cited as well as that which he had given. He did not wish to insult Irish Members; but if this Bill was to become law, he should like to see this power of indemnity withheld from the Irish Legislature. For these reasons he begged to move the Amendment standing in his name.
In page 2, line 32, after the word "laws." to insert the words "or shall escape liability for acts done or omitted to be done by means of an Act of Indemnity."—(Major Darwin.)
§ Question proposed, "That those words be there inserted."1221
§ * SIR C. RUSSELL
I will reply to the hon. and gallant Member in a single sentence. Certain matters might be made the subject of Bills of Indemnity divided in the way in which he has divided them in his speech. One class of Bills of Indemnity might relate to matters which the Irish Legislative Body would have no authority to legalise à priori. Any Bills of Indemnity relating to such matters and passed by the Irish Legislature would be null and void. But the Government intend that the Irish Legislature should have the power by Bills of Indemnity to legalise acts done in cases of necessity and emergency when it would be within the competency of that Legislature to legalise such acts à priori. I, therefore, cannot accept the Amendment.
§ SIR H. JAMES
said, he would like to know whether the Attorney General's object was carried out in the Bill? How were they to determine, according to the principle just laid down, what was and what was not a good Act of Indemnity? He did not see how the principle was to apply. If they took the case of the coinage and considered what might be done, the Attorney General would see that, unless the words of the clause were altered, the distinction which he had drawn could not be observed in practice.
§ MR. CARSON (Dublin University)
said, it occurred to him that a very serious case that had never arisen under their own Constitution, but which had arisen in America, might arise under the Irish Legislature. The Committee had been engaged for many days enacting sub-sections which must give rise to great controversy when the legality or illegality of the Bills passed by the Irish Legislature came to be considered. Again, controversy must arise in every case of new procedure as to whether it was in "due process of law" or not. He would put this case: Suppose the Irish Legislature passed and Act which, primâ facie, was perfectly proper and within their powers, and an official proceeding under the direction of the Executive to act upon that law—it might be to do something that would be an infringement of the liberty of the subject or of the rights of property—could the Irish Legislature pass a Bill indemnifying the official of the Executive in the event of the former 1222 Act being subsequently held to be null and void? He supposed they would be morally justified in trying to indemnify for somethingd one under an Act which they had themselves passed; but he wanted to know, could they do so? This was not a fanciful case. They had the instance of Virginia, where an Act, was passed dealing with people's property; and, although it was vetoed, the Legislature went on indemnifying their officials and dealing with the property as before. If the Irish Parliament could do that—and he saw nothing in the Bill to prevent them—not one of the exceptions mentioned in the Bill was worth the paper it was written on as a safeguard.
§ * SIR J. RIGBY
said, the Government were content with the Bill, being satisfied that the Irish Legislature could not pass such Acts of Indemnity as various hon. Members had supposed.
§ * SIR J. RIGBY
said, the reasons had been given again and again by the Attorney General and himself, and he had no others to offer.
§ SIR J. GORST (Cambridge University)
said, with all deference to the Solicitor General, he would put it to him that, as a question had been asked by the right hon. Gentleman the Member for Bury (Sir H. James) and another by the hon. and learned Member for Dublin University (Mr. Carson), the Committee ought not to be dealt with in that way. He was sure the Solicitor General would see the necessity of giving a fuller explanation of the reasons influencing the Government in opposing the Amendment.
§ MR. A. J. BALFOUR
said, he could understand the feelings of the Government in the matter, for they were open to certain pains and penalties if they ventured to reply to the arguments of the Opposition. But in this case the Government were not asked to reply to the arguments of the Opposition, but simply to state their own arguments. They could hardly be allowed to retire under a dignified silence when asked their reasons for advancing certain legal propositions which many hon. and learned Members—Members who were leaders in their profession—thought were erroneous and objectionable. There could be one explanation—that the Government were afraid of their allies, or that they had no 1223 reasons to give. If they had reasons he hoped they would reply to the questions addressed to them.
§ MR. A. J. BALFOUR
The hon. and learned Gentleman has merely repeated his opinion, giving no reason for it.
§ * SIR J. RIGBY
said, he had shown—and the Attorney General had repeated this—that it was laid down by authorities that a Bill of Indemnity could only be of validity when the Legislature passing it might have legalised the act done beforehand. He had given a particular case, with the names of the Judges, and what he had said had not been contradicted, but was, on the contrary, supported by the right hon. Gentleman (Mr. A. J. Balfour). There could be no indemnity by a Body for an act which they might not have authorised. He hoped that would be considered a plain answer. He had given it now for the sixth or seventh time.
§ * MR. MATTHEWS (Birmingham, E.)
said, he would point out to the Solicitor General that he had not dealt with the concrete difficulty that might arise. The Irish Parliament might pass some Act which would be held afterwards to be in excess of their powers and in violation of Clauses 3 and 4. Under that Statute, before its being declared void, some official of the Irish Parliament might invade the right of liberty or property—an act for which he could be prosecuted, if the Act under which he did this was declared null and void. What they wished to understand was—would it be in the power of the Irish Legislature to make certain acts lawful which would otherwise be held to be unlawful? And would they be able to indemnify against the commission of those acts? They would be told that they had ample authority in these matters in the Imperial Parliament; but upon the subjects given over to them, the Irish Parliament would be as authoritative, as all-embracing, and as capable of dealing with them as they at Westminster. There was the question of the troops in times of riot. Would there be power of indemnity in such cases? The Irish Parliament would have under its jurisdiction the whole Common and Criminal Law. They would control, he assumed, 1224 the law of false imprisonment and trespass. Was it intended that the Irish Legislature should deal with such matters by Bill of Indemnity? Were they to be considered as matters that might have been authorised beforehand, and so capable of being justified by indemnity? What they asked the Solicitor General to do was to point out words in the Bill to prevent that. They had powers to make laws except so far as they in terms restricted them. Where were the terms restricting them from doing what he had suggested?
§ * SIR C. RUSSELL
There are in this Bill certain definite subjects with regard to which the Irish Legislative Body have no concern whatever. There are certain other subjects which they have only power to deal with subject to certain restrictions and qualifications. These two heads exclude from their legislative authority divers matters, and as to which they could not legalise à priori, or subsequently what is done or what is intended to be done. But, as regards other matters, we do not intend that the Irish Legislature shall not have power, if they think proper, to deal with them.
§ SIR H. JAMES
said, supposing there was any attempt to arrest a person who had committed treason, what would be the indemnity? It would have nothing to do with treason—it would have to do with an act of trespass; and because it was attacking a traitor, or attempting to deal with a supposed traitor, their Act of Indemnity would not touch treason. It would be more or less an act of trespass on the land or person of a traitor, and the Bill of Indemnity would go against the trespass. It would be no answer to say—"Oh, it is a bad Bill; the Irish Legislature could not deal with it, because treason is one of the subjects Clause 3 has excepted." But this would happen to be an act of trespass on the person of a traitor, so that, if a lawless act had been done, the Irish Legislature would be enabled to justify and protect the person who had done that lawless act. The answer of the Attorney General that it would be invalid, because the Act had some connection with excepted subjects, would never be held to prevail; and unless this Amendment were accepted, they would give unlimited power to the Irish Legislature to pass Acts of In- 1225 demnity. They were endeavouring to prevent the Irish Legislature using powers beyond what were laid down in this Bill; and if their agents or anybody could act beyond these powers, and the Irish Legislature could step in and make that valid which was invalid, to the extent of protecting such agents for such action, it was useless putting safeguards in the Bill, because they escaped from the prohibitions laid down by the means he had indicated. If the view of the Attorney General was to prevail, let something be put in the Bill to say that which he had himself expressed it to mean. He respectfully asked the Government not to shrink from saying in the Bill what their Representatives had said on the floor of the House.
§ MR. GOSCHEN
inquired whether indemnity could be given by the Irish Legislature to agents of the Irish Government who had committed trespass in attempting to enforce one of these Statutes of the Irish Legislature which had been passed in violation of the restrictions imposed by the Bill? In that case the whole of these so-called safeguards might be evaded.
§ * SIR J. RIGBY
In answer to the right hon. and learned Gentleman the Member for Bury, and to the question just put by the right hon. Gentleman, I have already said that acts that cannot be authorised cannot be indemnified. It may be possible that there will be a distinction between criminal proceedings and civil ones. But take the case of trespass. A man who is an officer of the Executive Government is ordered to go and do something illegal—I do not care what it is, but something they have, nevertheless, effected by Statute and authorised—that Statute dealing with an excepted subject is void; therefore, it is only a pretence of authorisation. Nevertheless, he does it, and afterwards they pass a Bill for indemnity. This is a question, again, of legislation. They have professed to authorise him to do something which they have no power to authorise him to do. He commits trespass upon any individual; and after the Act of Indemnity is given in the widest conceivable words, the man on whom he committed trespass, whether personally, or as regards property, brings his action. What is the result? The other person pleads under the Act of Indemnity. The 1226 answer would be, "You are attempting to make legal ex post facto or take away a man's right of action ex post facto, and that it has been held you have no right to take it away by a prior Act." That action must inevitably result in favour of the plaintiff. Civil liability of an officer of the Executive could not be taken away by any Act of Indemnity, even though the wrong may have been committed in pursuance of a direct order of the Irish Executive.
§ MR. GOSCHEN
asked, would it be in the power of the Irish Legislature in such cases of trespass to vote the money for which the agent would be civilly liable?
§ SIR J. RIGBY
replied, that that had nothing to do with the question they were now upon. The answer was that no Lord Lieutenant or Representative of Her Majesty would allow such a Bill as had been referred to to become law.
§ Question put.
§ The Committee divided:—Ayes 220; Noes 258.—(Division List, No. 148.)
§ * MR. HORACE PLUNKETT (Dublin Co., S.)
moved the following Amendment:—Page 2, line 33, after "taken," insert "any person not otherwise provided for by this Act be deprived of any public office or situation such person may have occupied on the appointed day.He had added to the Amendment as it stood on the Paper by inserting the following words—"not otherwise provided for by this Act." He had made that addition in order to narrow the scope of the Amendment, and he hoped the Government would not now say that its scope was unduly wide. All that the Amendment sought to do was to restrict the legislation of an Irish Parliament for a limited period in respect of a limited number of officials. The Judges, Constabulary, and Civil servants and some who were not Civil servants, but who were paid by the Lord Lieutenant, were provided for in Sections 26 to 30, inclusive, and also in a supplemental paper dealing with the 5th schedule. The Government had accepted a certain responsibility with regard to the persons he had named. The officers with whom this Amendment chiefly dealt were the county officers in Ireland, such as the Secretary and Trea- 1227 surer to the Grand Jury, County Surveyors, and so forth. No doubt one of the first Acts of the Irish Legislature would be, and probably ought to be, a Local Government Act, which would abolish the present Grand Jury system. If the late Government came in again he believed it was their intention to do the same; and all they wished was that the same generosity or fairness that would be extended to these servants by an English Administration should be extended to them by an Irish Parliament. He maintained that, although these men had no legal contract or any agreement for permanent employment, they had a strong moral claim, not only upon Ireland, but also upon this country, and that the same responsibility which this country had to the permanent Civil servants—in a less degree it might be—extended to other classes of servants whose position, although not legally, was practically a permanent position. This position would have been, so to speak, legislated away. Then there arose the very difficult and unpleasant question as to whether these servants would be dealt with fairly by an Irish Parliament. He did not care to go down to the bottom of his dust-bin to find proof that those who would probably take the lead in the Irish Parliament would not deal fairly with these officials who had belonged to what they called the loyal minority in Ireland. There was no doubt that the first Irish Ministry would have a large number of claims, and they ought to be very glad if Parliament would enable them to resist these claims, and so make their position a greal deal easier than it would otherwise be. There was also the probability that the "spoils system" would be imported wholesale from America, and the Irish machine very largely run by machinemen from New York and elsewhere. As a precedent for the course he suggested, he instanced the Irish Church Act, and said that although they did not expect the Government now to go so far as they did, when the Irish Church was disestablished, in respect of compensation, at the same time they did expect them to acknowledge they had some responsibility to those who had not been provided for in the Bill, but who, on moral grounds, had just as good claims 1228 as those who had. He had not dragged in by the heels this Amendment from the American Constitution—it was simply based upon common sense and common fairness.
In page 2, line 33, after the word "taken," to insert the words "or any person not otherwise provided for in this Act be deprived of any public office or situation which such person may have occupied on the appointed day."—(Mr. Horace Plunkett.)
§ Question proposed, "That those words be there inserted."
MR. J. MORLEY
I am not sure, though I listened carefully to what the hon. Member said in this Amendment, that I understand what he is aiming at, because this is a restriction upon legislation. The future Irish Legislature is not to make any law whereby a certain class of persons—whom the hon. Member has not described accurately in detail, and I confess I do not know whom he means—may be deprived of any public; office which they occupy upon the appointed day. Well, but these officials are either liable to dismissal at pleasure or they are not.
§ * MR. H. PLUNKETT
I was not providing in this Amendment against administrative harshness, but simply proposing that if the Irish Legislature wish to abolish the offices in certain restricted cases they should not do so without just compensation.
MR. J. MORLEY
My hon. Friend says the object of the Amendment is not to provide a safeguard against legislative harshness, but what he deprecates is the abolition of office in these cases.
MR. J. MORLEY
Very well; but it can be done in these cases by administrative act now. My hon. Friend admits we have, in a Schedule, and in Clauses 27 and 28, dealt liberally with some classes of existing Civil servants, though less liberally with others. He is now dealing with the cases of those who have no vested interest, whom the Administration of to-day or a future Irish Administration can by an administrative act dismiss. Then why on earth should they think it necessary to legislate? I do not think my hon. Friend has clearly realised or worked out in his own mind 1229 what the words of the Amendment come to.
§ MR. PLUNKET (Dublin University)
I must say that this is a very small concession, and one to which the Government may well he expected to give favourable consideration. What is it my hon. Friend asks for? He is not asking for any interference with any administrative action which the Irish Government might think it necessary to take. His Amendment is a very small and technical one; but it will provide for a class of cases which might very easily occur. What does the Amendment ask? It asks that if the Irish Government of the future should think fit to propose and carry any legislation such as the abolition of the Grand Jury system, involving the dismissal of persons who, in the great majority of cases, would have just as safe a tenure of office as others whom the Government themselves are willing to provide for, without some compensation being given them. If the Irish Legislature abolishes the Grand Jury, with them must, of course, go the servants of the Grand Jury. It would be in the power of the Irish Legislature, passing such an Act as that for the abolition of the Grand Jury to make very inadequate or no provision at all for the position in which these dismissed persons would find themselves. I am sure that no Bill would ever be passed by this Imperial Parliament of such a kind which would not give—I do not mean excessive compensation—but what is described in the clause as adequate and just compensation. What the Amendment is intended to provide is this: that if the Irish Legislature should proceed to carry such a Bill as I speak of, provision would have to be made that these persons so dismissed should not be dealt with in a spirit and way different from that which they would have been dealt with if such a measure were passed by the Imperial Parliament. That is the whole of the Amendment. It is to provide for cases which may never occur, but which, nevertheless, ought to be provided for here. There is a moral claim just as good for the protection of these people as there is in reference to others whose case is provided for. They have brought themselves into relations more or less uneasy with the sentiment which which would be the dominant sentiment of the Irish Legislature of the future 1230 which would not be very friendly or harmonious with the interests of three people. The concession that is asked for is a very small one, and I think myself it might very well be granted by the Government.
§ MR. SEXTON
could not admit the Amendment was either small or technical. It was large, and very practical, and it was also, he would venture to say, extremely bold. If it was adopted the Irish Legislature would not have power to pass any law by which any person might be deprived of any public office or situation which he had occupied on the appointed day without just compensation. The difficulty was, what was the public office to be? The proposer of the Resolution evidently had no doubt that the description of public office should be very, very expansive, and should include every person in Ireland in the employment of any Body in Ireland which might be called a Public Body.
§ MR. SEXTON
thought that all servants of the State were provided for; but the hon. Gentleman proposed, by this small and technical Amendment, as the right hon. Gentleman the Member for Dublin University had described it, to deal with a class of persons not in the employment of the State at all, but in various other employments. Now he said he meant County and Urban Authorities. Did he include Boards of Guardians?
§ * MR. H. PLUNKETT
said, the officers of the Boards of Guardians mostly belonged to the majority, and would be quite safe.
§ MR. SEXTON
said, the hon. Gentleman was a young Member, and did not hear the very different story that was told when it was proposed to amend the constitution of Boards of Guardians in Ireland some time ago. The words of the Amendment would include any person who held office under any Corporation, Board of Guardians, Harbour Authority, or similar Body which exercised any function for the public good. These people held office during pleasure. They had no right to compensation at present, and they might be dismissed by their employers without compensation. It was misleading to speak of just compensation, because that 1231 implied that there was, at the present time, right to compensation which there was not. Then, what would be the effect if this Amendment were carried? One of the first things the Irish Legislature would have to do would be to supplant the Grand Juries by County Councils; and it was obvious that if the Irish Legislature, in the Act establishing County Councils, did not provide that compensation should be given to everyone in the employment of the Grand Juries the Privy Council would void the Irish Act. The result would be that this small and technical Amendment not only cut at, but cut away, the root of all Local Government legislation by the Irish Legislature. That, he thought, would be enough to secure its rejection by the Committee.
§ * MR. W. KENNY (Dublin, St. Stephen's Green)
said, the objection raised by the hon. Gentleman (Mr. Sexton) to the Amendment of the hon. Member for South Dublin was rather a technical one, so far as he could see. The hon. Member, he was sure, would be inclined to admit that certain officers deserved consideration; but he rather objected to the generality of the Amendment. If that were the only objection to the providing of some just compensation to certain of these officers, it might easily be met by a Schedule being made out of those to whom the Amendment was intended to supply. But were not these officers very much in the same position as members of the Civil Service who were provided for in the amended Schedules that had been introduced by the Government? Take the case, for instance, of a County Surveyor in the employment of the Grand Jury of a county. That gentleman might have entered into the employment of the Grand Jury when he was only 25 or 30, just starting upon his profession, and he might have given up his whole life to the service in which he was engaged, and then, at his present age of 45 or 50 years of age, he would be thrown upon the world without pension or compensation. He would say that such an official had quite as strong a claim upon the consideration of the Government as any Civil servant that had passed an examination and spent 15 or 20 years in the service of the State. Several other cases might be given, and he would 1232 appeal to the Chief Secretary to say, at least, that he would give some consideration to this Amendment.
§ MR. A. J. BALFOUR
The Amendment of my hon. Friend is not, indeed, a large Amendment in the sense that it would produce a very great drain upon the funds of the Irish Legislature which this Bill proposes to establish; but it is, undoubtedly, a most important Amendment, so far as the feeling with which the Bill will be received in Ireland is concerned. The hon. Member for North Kerry has endeavoured to show that under the Bill as it stands an Irish County Government Act would be rendered void by the Privy Couneil of this country if it did not provide adequate compensation for one particular official, Mr. Jones or Mr. Smith. [Mr. SEXTON: No.] Well, it came to that. The argument of the hon. Member was that the Irish Parliament might pass a Local Government Act; they might fail to give compensation to one of the officials, and that small failure on their part would void the Act. I do not believe that this Bill is so drawn; if it is, it is very badly drawn; and I think if I am right in my interpretation of Clause 33 any such absurd consequences would certainly be avoided. But so much for the positive argument of the hon. Member for North Kerry against the Amendment. The negative argument and the general tone of his speech which I complain of is that, in dealing with I the real equities of the matter, he never seems to realise that this Bill in substance is a Bill which establishes a legal revolution. It may be a necessary revolution; it may be a beneficial revolution; but a revolution it undoubtedly is; and it is our business—and I am sure the Government are at one with us—to see, if this revolution is allowed to take place, that it shall not carry in its train all those serious consequences to individuals which unfortunately even the best revolutions usually bring with them. The hon. Gentleman talks of these officials as being, as a rule, persons who hold office during good behaviour, who have, therefore, no fixed tenure of office, and entitled to nothing that can be properly described as just compensation. Let me point out that is not the way in which this House, at all events, has 1233 usually treated officials, who, if they have no legal or permanent tenure of office, still have a tenure of office which, under ordinary circumstances, would last through their lives, which prevents them having any other means of livelihood, and which may be expected to last so long as their physical strength holds out. Let me point out, in the second place, that if these men at present hold office during good behaviour, they do not hold it at the will of the Government as a rule, and will not, as a rule, hold it at the will of the future Irish Government. They are officials, not of the present Government and future Irish Government, but of those great Local Bodies, Grand Juries, and other Bodies; and therefore, though undoubtedly it will lay in the power of the Irish Government to dismiss them, or to have them dismissed, to shorten their career, and to cast them and their families out as beggars upon the world, they will not do it by dismissing them, but by destroying their employers. They will put an end to the Grand Jury that employed them; and as a consequence, unless some provision is put into the Act, these officials of the Grand Jury will be dismissed, or may be dismissed, from office at an age when a man cannot take up a new livelihood. Surely, the Government would only be carrying out their own policy by inserting provisions to remove the just alarms of these people. The hon. Member for North Kerry has told us that the first act of the Irish Government will be to bring in a County Council Bill. Very likely it would, and I think very properly. If we may gather from his speech, and the views he takes of just compensation to the people who hold their offices during pleasure, he does not think that just compensation will amount to much. He will not even admit that just compensation can be used on their behalf at all; and if, in that respect, he represents the prevailing spirit of the Assembly of which he will undoubtely be a great ornament, I say the new Irish Parliament will be animated by different principles from those which animate this.
§ MR. SEXTON
I think the right hon. Gentleman misapprehends my view. I never said they might not be compensated. I rather think the Irish Legislature and the Bodies under it would act in 1234 a different spirit; but that is a different thing to saying that, although these persons have no legal right to compensation and such a course would involve burdens upon the public purse, this may be made the occasion of giving them that right which they do not now possess.
§ MR. A. J. BALFOUR
The hon. Gentleman must recollect two things. The first is that the Party to which he belongs has certainly always been animated by active hostility, political and social, to Grand Juries, which they want to disestablish, and through the Grand Juries the officials. [Colonel NOLAN: Not the officials.] The hon. and gallant Gentleman may be an exception; but that is the way I read contemporary Irish history. We must recollect, in the second place, that this House when it dealt with servants of an English Body which corresponds to the Irish Grand Jury—that is, the Quarter Sessions—did insure that compensation which I am sure is only just in such cases. When, therefore, we are going to initiate an Irish revolution, and going to hand over to an entirely new Body the lives and future of these people who entered into their present career under a very different system—be it better or worse than that we are going to establish—before we for ever cut our connection with them and hand them over to the mercies of those who have not shown themselves very tender of them in the past, surely it is our duty, and in the interest of the Government themselves, to introduce words in the Bill which may relieve their apprehensions, and relieve us and our consciences, at all events, of any doubt as to whether we have behaved justly in this matter.
MR. J. MORLEY
The right hon. Gentleman is perfectly justified in saying that in sentiment and feeling on this subject there is no difference between him and ourselves. But I submit to the right hon. Gentleman that this Amendment is absurdly wide. Granted that there may be a class of public servants—not servants of the Executive Government, but of Local Bodies such as the Grand Juries; granted there be such, the language of your Amendment is far too wide, because it transforms every holder of what may be called any public office or situation—it transforms that post from 1235 the moment this Bill becomes law into a freehold. [MR. CARSON: Without compensation.] It gives the holder a right which he would have if the office were a freehold. But surely the Committee must see this is a question of detail. You cannot seriously profess to intend in the case of every servant, every public officer in a situation however humble, to exempt him from any form of legislation or any power of administrative reform? There has been—for the honour of this Parliament and the country I am glad to say it—a very jealous regard for this—that when there has been any reform in the system of government, it should not be carried out at the expense of those who have administered the previous system. I believe we have done all we possibly can do to satisfy the claims of these officials upon the Central Government. At all events, the Amendment does not propose the proper way of dealing with any question that may remain for settlement. The proper place for dealing with it would be on Clause 28; and under the circumstances we oppose the Amendment.
§ MR. W. REDMOND (Clare, E.)
said this, like the majority of the Amendments, was founded on the supposition that the Irish Legislature would do everything that was wrong. He did not think the hon. Member for South Dublin intended by this Amendment to make any suggestion that would be insulting to Ireland; but he was bound to say that it was a tax upon the self-restraint of Irish Members to sit there night after night and listen to suggestions that they were not capable of being entrusted with the smallest details of government in Ireland. He did not believe, notwithstanding the words that had fallen from the Leader of the Opposition (Mr. A. J. Balfour)—to the effect that they would drive these people out as beggars upon the world—he did not believe that the Mover of the Amendment imagined any Irish Parliament would be guilty of any acts of injustice such as they had heard suggested. They had no desire to do it; and, he asked, was it likely they would do this, especially when they considered that the eyes of all the world would be upon their actions and their words—every word spoken in the Irish Parliament would be reported, and carefully reported, 1236 in every newspaper in the world—certainly in this country. Was it likely, he asked them again, that, in these circumstances, they would be guilty of these things? He denied the right of the Leader of the Opposition to assume that everything they would do would be based upon injustice and wrong. It was perfectly true they held strong views upon this matter, and they differed from the Leader of the Opposition; but that did not carry with it the assumption that the setting up of an Irish Legislature must necessarily carry with it the doing of acts of injustice. He said for himself—and he was sure he spoke for many others—that if when an Irish Legislature were set up an attempt were made to do these acts, he should protest most strongly against it, and do all he could to prevent it. It was monstrous to suppose, however, that they would bring their Parliament into discredit, and prove the failure of the Home Rule system, by perpetrating things of this kind. The object of the Amendment was simply part of the general object of the Party in Opposition—that was to make the Bill as objectionable as they could make it. Some people talked of proposing Amendments in a way that would lead one to believe that the first thing the Irish people would do when they got their Parliament would be to erect a guillotine in O'Connell Street, Dublin, and set about punishing every single one of their opponents. As he had said, the Amendment was based on the assumption that they would act on the basis of doing wrong. He put that to the Chief Secretary. The question was—Were they going to have Home Rule, or were they not? If they were not going to trust them with Home Rule in these small matters, then let them withhold it altogether and not give it at all. But if, on the other hand, they believed in the sense of justice, if they believed that they were entitled to govern themselves, then let them banish these groundless suspicions and leave them something to manage when Home Rule was granted.
§ MR. T. W. RUSSELL (Tyrone, S.)
said, there was something in what the Chief Secretary had said. He had said that they should leave this matter over until they had reached Clause 27. That clause did not deal with—
§ * MR. T. W. RUSSELL
Clause 28; very well. The Irish Parliament might-deal with the reform of the Poor Law, and the Medical Officers under the Boards of Guardians would be involved in that. They were told that they should trust the Irish Legislature. Perhaps it did not occur to the Government that they were only prepared to trust men who proved themselves trustworthy; and, that being so, how were they to regard hon. Members on the opposite side as being trustworthy? If they could not trust them, those hon. Members had only themselves to blame. The hon. Member for the City of Cork—[Cries of "Oh!"] He knew all about that; but hon. Gentlemen who asked them to believe in the policy of trust — the Government that asked them to believe in it—asked them to go aboard a vessel manned by pirates. They were not going aboard themselves, however. [A laugh.] The hon. Member for Argyllshire (Mr. Macfarlane) laughed. The hon. Member had once been an Irish Member, and he had trusted the Irish people and their friends so implicitly that he dare not go back again. Well, the hon. Member for Cork (Mr. W. O'Brien) said, two years ago, that the spirit of the Irish people and their Representatives would be, in the end, that they would have to open relentless war upon their foes. Did hon. Members on the Liberal Benches differ from the Members below the Gangway? Again, the hon. Member for East Mayo (Mr. Dillon) gave them fair warning, for he said that when they were out of the struggle they would know how to deal out rewards to the people's friends and punishments to the people's foes. Those who differed from hon. Members opposite saw in these utterances good reason for their distrust. They had "nursed the pinion that impelled the steel," and, until they (the Irish Members) retracted the sentiments of which he had reminded the Committee, they need not expect any sympathy or confidence from the minority in Ireland. If the Chief Secretary would give an undertaking when they reached Clause 28—[Mr. J. Morley dissented]—if an undertaking were given that the question would then be considered, the Amendment might be withdrawn. They from Ulster, the Unionist Members—the only Members, or nearly the only Members, from Ireland who were elected with- 1238 out clerical dictation—represented those medical men to whom he had referred, whose rights and privileges might be imperilled, and who were entitled to protection. He hoped they would have an undertaking, so that when Clause 28 was reached the question might be finally disposed of.
§ Mr. CLANCY (Dublin Co., N.)
said, he desired to say only one word with reference to what had fallen from the Chief Secretary. He regretted to have heard the right hon. Gentleman invite Amendments on this subject. This was a continuance of the policy which had led to the obstruction complained of before; he believed it would lead to further obstruction. They (the Irish Members) would admit of no concession of this character. The Civil Service of Ireland, and the higher offices, were amply protected by Clauses 27 and 28, and to go on protecting every person holding a position in Ireland would be to bind the Irish Parliament in iron fetters in a way that he for one—and he was sure the Irish Members who were Nationalists—would not endure. The assumption upon which all these Amendments were based was that the Irish would cut each other's throats, or the throats of some other set of persons. The idea of some gentlemen seemed to be that they would cut the other people's first and their own afterwards. He did not find fault with gentlemen on the Unionist Benches who went on that assumption; but he appealed to every Home Ruler in the House who did not act upon this assumption to press upon the Government that the policy they were adopting in this matter would, if continued, prove absolutely fatal, and that, by pursuing it, they were walking in a way that would alienate the sympathy of the Irish people from the Bill. He hoped the Amendment would not be accepted, and that they would hear no more about it.
§ MR. J. CHAMBERLAIN
said, the statement to which they had just listened was most interesting. They had sometimes heard it suggested that hon. Members opposite were the masters of the Government, and now they had the hon. Member telling them that the Bill would not be accepted unless the conditions of the Irish Members were agreed to. The hon. Member for North Kerry (Mr. Sexton) said, earlier in the 1239 Debate, that the Government were guilty of "unaccountable fatuity" in yielding to the Amendments proposed by the Unionist Members. The hon. Member who had just spoken — and, indeed, hon. Members from Ireland generally—appeared to be under a misapprehension as to the pledges of the Government. They spoke of the Government satisfying the wishes of Ireland as if that were the only thing to be considered. He would remind them of the declaration of the Chancellor of the Exchequer (Sir W. Harcourt) that the Government had not only to satisfy the people of Ireland, but also the people of England and of Scotland—especially those of Scotland. [Cheers from the Opposition Benches, the allusion being taken as to the success of the Unionist candidate at Linlithgowshire bye-election, announced this morning.] They claimed that the people of England and Scotland should have some consideration in the course of the discussion of the Bill. The moment that the slightest concession was made Members from Ireland got up and said they would put pressure on the Government—
§ Mr. J. CHAMBERLAIN
said, they (the Irish Members) put pressure upon the Government to refuse discussion or concession upon the Amendments brought forward. No great Bill had ever been passed without some concession to the Opposition. He did not wish to stand between the House and the Division; but he might say that he sometimes thought hon. Members opposite were riding for a fall, and he would add that they would not be riding for long.
§ Question put.
§ The Committee divided:—Ayes 211; Noes 253.—(Division List, No. 142.)
§ It being after Seven of the clock, the Chairman left the Chair to make his report to the House at Nine of the clock.