§ Section sixteen of the Act passed by the Irish Parliament in the Session held in the twenty-first and twenty-second years of the reign of George III., entitled "An Act for the better securing the liberty of the subject," is hereby repealed.
§ Motion made, and Question proposed, "That the Clause be read a second time."
§ Mr. BUTCHER
I beg to move the Second Reading of this new Clause. The object of this Clause is an important one. It is to take away from the Irish Lord Lieutenant and from the Irish Privy Council the power, which is given to them by the Section referred to, by proclamation to suspend the Habeas Corpus Act in Ireland. I say that power ought not to be given to any Executive either in Ireland or anywhere else. If such a power were ever to be exercised, it only ought to be used on the rarest possible occasions.
§ Mr. BUTCHER
I am glad to have the concurrence of the hon. Gentleman behind me. That power ought to be exercised not by the Executive, but by the act of the Legislature itself. That is a proposition so self-evident that it is hardly worth giving any time to supporting it. I need only say that in Great Britain at this moment there is no power to suspend the Habeas Corpus Act by the act of the Executive, and why in Ireland, under a Home Rule Bill, there should be power to suspend the Habeas Corpus Act by an act of the Executive, rather than by the Legislature, I cannot conceive. This Act is rather a curious one. It is an Act passed by the Irish Legislature in 1781, just before Grattan's Parliament came into existence in 1782. It is called—An Act for the better securing the liberty of the subject.In substance, it is an Act establishing the principles of the Habeas Corpus Act which was passed in Great Britain in 1679. The first fifteen Sections of that Act are right enough. They give a man a right to habeas corpus, and prevent arrest and imprisonment without trial. But Section 16, which is the Section I ask the Committee to repeal, has these extraordinary provisions—Provided always, That it shall and may be lawful to and for the Governor or Governors for the time being——that is the Lord Lieutenant—and the Privy Council of this Kingdom——that is Ireland—to suspend this Act, by a Proclamation under the Great Seal of this Kingdom"——that is of Ireland—during such time only as there shall be an actual invasion or rebellion in this Kingdom or Great Britain …It goes on to say:—and that no judge or justices of the peace shall bail or try any person or persons charged with being concerned in such invasion or rebellion, without an order from the Lord Lieutenant, or Lord Deputy and Privy Council of this Kingdom for the time being, signed by six of the said Privy Council, any law, Statute, or usage to the contrary in any wise notwithstanding.That is, indeed, a strange Section. I ask the Committee to consider that this is a 870 power to be exercised by the Lord Lieutenant and the Privy Council in Ireland. On whose advice is it exercised I When this subject came up for discussionn in 1893 it was suggested by the Law Officers of the Crown—I think Sir Charles Russell was one and Sir John Rigby the other—that the power of suspending habeas corpus in Ireland could only be exercised on the advice of the Imperial Executive. I do not think that was a true reading of the Section, but supposing it was, why should the Imperial Executive in England be entitled to suspend the Habeas Corpus Act in Ireland? In that I should have the concurrence of every hon. Gentleman from Ireland, namely, that no English or British or Imperial Executive should be entitled to advise the Lord Lieutenant of Ireland to suspend the Habeas Corpus Act, and put Irishmen in gaol without charge or conviction. But, supposing that this power is to be exercised, not upon the advice of the Imperial Executive, but upon the advice of the Irish Executive, then I say, though in this perhaps I shall not have the concurrence of Members from Ireland, it is an additional reason why the power should be taken away. The Irish Executive, if it ever comes into existence under this Bill, will be, to a large extent, a perfectly untried Executive. It will rest upon them to say whether a state of rebellion exists such as would justify them in exercising this power. There might be some local riot in the province of Ulster or elsewhere, and they might magnify it in their minds into a rebellion, and issue a proclamation and take the power to arrest and put in gaol, if they can do it, everyone who opposes them in Ulster. There might possibly be physical difficulties about enforcing that, but it would be within their constitutional rights to issue this proclamation and to arrest anyone they thought fit and put him in gaol without a trial.
Again they might say that a state of rebellion existed if there was a refusal to pay taxes. I am not going to anticipate what may occur if this Bill should ever pass, but it is at least possible that there may be some refusal to pay taxes imposed by an Irish Parliament; and for my part, considering the way this Bill has been carried through. I should say they would be justified. But, be that so, or be it not, I think the refusal is likely to take place, and I myself should resist being arrested without trial by suspending habeas corpus. If this refusal to pay taxes should occur, the Irish Executive may say, "Here is a 871 rebellion against the Crown, and we must at once issue a proclamation," and they would hunt up this Statute of 1781 unless we repealed this Section, and the Irish Lord Lieutenant and the Irish Privy Council would issue their proclamation, saying, whereas a state of rebellion exists, therefore we suspend the Habeas Corpus Act. That is a state of things which would be perfectly intolerable. We should not permit such a thing in England. The English Executive have no such power, and do not ask for such a power, and if they did ask for it I do not believe there is a single Member in the House who would give it to them, and if you would not entrust the Imperial Executive of this country, why should you entrust the Executive in Ireland? If this Section remains on the Statute Book the Irish Privy Council and the Lord Lieutenant will have that power, and I ask the Committee to take it away from them.
Another observation I wish to make is this. The power of suspending habeas corpus in Ireland by a proclamation, although it is on the Statute Book to-day, has certainly never been exercised since the time of the Union in 1800. It has lain dormant. [An HON MEMBER: "What about 1882?"] That was not done by proclamation but by Act of Parliament. That is the point of the whole Amendment. I am not saying that cases may not arise—conceivably they may, though very extreme ones, I believe—when it may be necessary to suspend the Habeas Corpus Act, but if so, the whole point of my argument is that it should be done by Act of Parliament and not by proclamation. Therefore, I say if this is a power which you would not entrust to the English Executive, and if it has not been exercised by the Executive of the United Kingdom for 112 years, you should put it out of the power of the Irish Executive, or indeed of the English Executive, if they have any power over the matter, to put that Section into operation, and you should say that no Executive, either that of the United Kingdom or that of Ireland, should be allowed to suspend the Habeas Corpus Act in Ireland by proclamation, and therefore it is necessary to repeal that Section.
§ Mr. FARRELL
I view the Amendment with very great suspicion for this reason. This has existed and has affected the liberties of Irishmen and Irish Nationalists for all the time the hon. and learned Gentleman has been in this House, and we have never heard one single word of protest from him against it.
§ Mr. FARRELL
And for that reason you want to strike out of this old Irish Act a Section which may be altogether inoperative. We have not yet heard the Attorney-General's decision on that point, but so long as it was used against Irish Nationalists and Irishmen, and in the interests of law and order there was no protest made. But we are threatened with rebellion in Ulster. It is the constant theme of the speeches of hon. Members above the Gangway that when the Bill passes into law we are to have a rebellion in Ulster. The hon. and learned Gentleman himself admitted it. He is preparing for this great rebellion by taking out of the hands of the Irish Parliament the power to deal with rebellion. And that is in the interests of the freedom and the liberty of the subject! We heard nothing from the hon. and learned Gentleman about the suspension of the Constitution in Ireland under the famous Coercion Act of 1887 passed by a Unionist Government, by which the liberties of many of my colleagues and myself have been frequently taken away without trial by jury, by a mere scrape of the pen of the Executive, and the Lord Lieutenant proclaiming whole counties and provinces in Ireland, and there has never been the slightest protest. But now when there is going to be set up this Parliament with power to manage the affairs of the whole country it must be crippled, not in the interests of the liberty or the freedom of the subject, but in the interests of revolution and rebellion in the North of Ireland. I sincerely hope the Government will reject the Amendment.
§ Mr. HUME-WILLIAMS
I have listened with great attention to what has fallen from the hon. Member, and he seems to be full of grievance as to Acts of Parliament passed in this House, but that is not the question. The question is whether or not you are going to repeal the power, which has not been exercised for at least 100 years, of the Lord Lieutenant, apparently of his own motion, or, at any rate, on the 873 suggestion of his Executive, to suspend habeas corpus, and thereby do away with a privilege which every Parliament in the world has fought for for centuries. If there is one instance of the liberty of the subject which is appreciated and which is vital to any well civilised country, it is that there should be the right to bring up people out of prison for trial. [Cheers.] Very well then, if you agree in that, why do you propose to leave power to deprive them of that power? The suggestion is not to take any such right from the Irish Parliament. If they think fit to do it, they can. The suggestion of the new Clause is to take the power out of the hands of an individual. [An HON. MEMBER: "No."] The suggestion of the Clause is quite plain. It is to give the power, if it is a power that should be exercised, in the hands of the representative body, and to take it out of the hands of an individual. That is the very thing which this Parliament and every Parliament has struggled for centuries to retain, and if you are going to leave this power in the hands of an individual, it is retrograde legislation. It is reviving a thing very properly dead, and it is entirely inconsistent with the whole scheme of your Bill. You are proposing to give liberty to Ireland, and to entrust the people with the management of their own concerns. I ask you to put this power in the hands of the Irish Parliament, and to take it out of the hands of the Lord Lieutenant. It is a just Clause, and I venture to hope that, following the precedent of Mr. Gladstone's Bill in 1893. the Government will see their way to accept it.
§ Sir RUFUS ISAACS
The hon. and learned Gentleman (Mr. Butcher) who moved the Clause has, I think, quite correctly stated the position of the law, and I have not the slightest desire to come into conflict with him. I agree also with the hon. Member opposite (Mr. Hume-Williams), that there have been many struggles in the past to retain this power in the hands of Parliament. It is unnecessary to enter into these matters The particular power to which the new Clause refers is one which everybody agrees has never yet been put into force.
§ Sir RUFUS ISAACS
I do not know what the hon. Gentleman refers to in connection with the opening of letters.
§ Mr. W. THORNE
Is it not a fact that unless the Habeas Corpus Act is suspended the Post Office is not supposed to open people's letters, even if they suspect that they contain revolutionary matter.
§ Sir RUFUS ISAACS
Really that has nothing whatever to do with it. The question is that there should be this power reserved to suspend the Habeas Corpus Act. This must not be confused with the point put by my hon. Friend the Member for Longford (Mr. Farrell). Of course, the power of dealing with the Habeas Corpus Act will belong to the Irish Parliament. The Irish Parliament, of course, shall determine what shall be done with regard to the Habeas Corpus Act if it should think fit to change the law. That is our view.
§ 9.0 P.M.
§ Sir RUFUS ISAACS
Certainly, by Act of Parliament. This provision to which the Amendment refers has lain dormant, if not dead, for a considerable period, and it is one it is not necessary to revive. There is a good deal of force in what was said by the hon. Gentleman who proposed the new Clause, that this power would not be exercised. It never has been exercised, and never would be exercised. It is not contemplated that it ever should be exercised, and I think we might very well accept the principle of the proposal which has been put forward, and having made it perfectly plain that the power to deal with this matter must be with the Irish Parliament, and that we are in no way interfering with what their view may be when they consider this question, I suggest to the hon. and learned Member that I am not satisfied that the words on the Paper are quite the best to be used for the purpose. I do not say they would not be effective—I think they would—but I would prefer to consider the words and make the Clause quite plain. We will accept the principle, subject to that. If the hon. Gentleman will accept the statement I am making that I do agree with the view which he has put forward, that I accept the principle of the Clause and that I accept the substance of it, it is a mere question of what words shall be used to carry it out in the phraseology used in the Bill. If he will accept that, I will undertake to bring up on Report words embodying what he has stated.
§ Mr. MITCHELL-THOMSON
I am glad that the Government have accepted this Amendment. It is really a restriction of a power which has never been exercised since it was conferred. I imagine that my hon. and learned Friend will accept the assurance of the Government, but before he withdraws his Motion I want to enter a caveat against the supposition that we accept entirely the position as stated by the Attorney-General and his Friends. We do not accept on this side of the House his hypothesis that the Irish Parliament ought necessarily to have power to deal with the Habeas Corpus Act. I only want to guard those on this side of the House against that supposition, because it might be said afterwards, if we moved an Amendment to prevent the Irish Parliament from dealing with the Habeas Corpus Act, that we compromised ourselves when we accepted the assurance of the Attorney-General.
§ Sir RUFUS ISAACS
The hon. Gentleman does not dispute what I have put forward, that under the Bill, as now drafted, the Irish Parliament will have the power.
§ Mr. MITCHELL-THOMSON
I do not dispute that proposition, and I may add that I think it is wrong, and when we have an opportunity I shall endeavour to take that power away from the Irish Parliament.
§ Mr. BUTCHER
After the fair way in which the Attorney-General has accepted the substance of the Clause, I will withdraw the Motion on the undertaking which he has given to bring the Clause up on Report in a form which he thinks will better meet the object I have in view. I desire entirely to associate myself with what has just fallen from my hon. Friend, that we do not think the Irish Parliament ought to have the power to alter the law relating to habeas corpus as it is in the United Kingdom at this moment. We think that should be part of the fundamental laws of the United Kingdom which the Irish Parliament should not have power to alter. That is quite a different question from that to which I referred, namely, whether if a very urgent state of affairs arose in which it might be necessary for the Irish Parliament to suspend for a time the action of the Habeas Corpus Act, they should have power to do it. It may be that they should have power to do it. I wish to enter the strongest possible caveat against its being supposed that we acquiesce in giving the Irish Parliament, or any other Parliament, power to alter the law regulating Habeas 876 Corpus as now existing in the United Kingdom.
§ Clause, by leave, withdrawn.