§ Question again proposed, "That the word 'now' stand part of the Question."
§ Mr. SOMERVELL
I was dealing with the position, as I understood it, of the 1225 Irish Treaty at present, and apart from the passing of this Bill. May I put what I want to say in this way'? It seems to me that at present the Treaty and the obligations under it have three sanctions. There is what I should like to put first, the sanction of the Treaty itself as an agreement made between the parties to it, continuing to bind those parties and the countries which they represent until by agreement its terms are in any way altered or brought to an end. That is the first and, perhaps, the fundamental sanction of all treaties. Secondly, it was made part of the law of this country by the Act of 1922. So far, therefore, as anything that may be done in Ireland is concerned, that gives it the second sanction, that any modification made by that country alone, if it took the form of legislation, would be contrary to the Colonial Laws Validity Act. That is what I call sanction No. 2.
Sanction No. 3 arises from the very remarkable way, as I venture to suggest, in which the sanctity of the Treaty is embodied in the Irish Constitution. The Dáil, sitting as a constituent assembly, set up the present legislature. We are less familiar in this country than they are in more revolutionary countries with constituent assemblies, but the Dáil chose to describe themselves as a constituent assembly. A constituent assembly, as I understand it, is an assembly clothed with authority to set up a Legislature and a Constitution, and to define the limits and powers of their Legislature. A constituent assembly could say that the Constitution which it sets up can only be amended in a particular way, and, if so, it could only legally be amended in that way. It could say that the Constitution might not he amended at all, and in that case it could not legally be amended, and a legal revolution would be necessary to alter it. It could say, as the Dáil, sitting as a constituent assembly, said, that only certain amendments might be made. The only Amendments which the Irish Legislature can constitutionally make are Amendments as defined by Article 50—Amendments "within the terms of the Scheduled Treaty." That is what I call sanction No. 3.
By the passing of the Bill you remove the sanction based on the Colonial Laws Validity Act. Speaking as a, lawyer, I may perhaps venture to doubt whether 1226 those who may contemplate breaking a Treaty are likely to be deterred by the fact that they are also breaking the law. But let it be conceded that what I call the sanction based upon the Colonial Laws Validity Act goes if this Bill is passed. May not that be a blow, not to the forces of legality, not to the forces of those who wish the Treaty upheld, but to those who are anxious that the obligations of the Treaty should not be fulfilled. At present they are in a position to say, "This Treaty is imposed on you under the Colonial Laws Validity Act: that we are fighting, not against a solemn undertaking entered into by you, the Irish Free State, as a separate nation and registered by you, as it was under Clause 18 of the Covenant of the League of Nations, but we are fighting the Colonial Laws Validity Act, and foe that purpose they would be able to bring on the Treaty the odium which that Act may excite." If a case arises when there is a danger that this treaty may be broken—I do not suggest that that is likely but we must consider it, on that basis—are the Government more likely to succeed if they approach the. Irish Free State on the basis that they are bound by this Treaty because it is contained in. an English Statute, or are they more likely to be successful if they approach the Irish Free State on the basis that the Treaty is the foundation of their own Constitution, that it is a Treaty which they have entered into as a separate State, a Treaty which they have themselves registered as a Treaty at Geneva, rightly or wrongly; and contains contractual obligations which they, as a separate State, have undertaken towards this country.
May I summarise the general position in this way? Imperial relationship may be based on the supremacy of the central authority or it may be based on equality and trust. We have decided to base our Empire on equality and trust. Having taken that decision, I suggest that, when trust is requested, it is not the weak course but it is the strong course and the wise course to grant what is demanded generously, freely and without qualification.
§ Mr. DAVID REID
The House has listened with pleasure to a very able speech in support of the Bill, and I am sure the hon. Member may well be satis- 1227 fied with the impression that he has made on the House. I am afraid I do not take quite the same point of view. I speak as a Member for an Irish constituency, but I am not speaking from any local point of view. I only want to deal with it from the point of view of a citizen of the United Kingdom. When we consider this Bill and the position of Ireland, we must consider the surrounding circumstances. The right hon. Gentleman the Member for Sparkbrook (Mr. Amery) was full of benevolent sentiments. I am sure everyone in the House would wish that the relations between all parts of the Empire should be conducted in a spirit of good will. I have no desire whatever to cast any doubt on the good faith or good will of those who have been in control in the Free State since the Treaty, but one must remember that there has been, and is still, a very large minority in the Irish Free State who, so far from approving of the Treaty, dislike it. It has been the cause of severance between parties in the Free State. That minority is a very large one. It is quite within the realms of possibility that it may become a majority at a future election.
Is it not sensible that we should consider, when we have this Bill before us, in the light of those facts what the position is? The last speaker called this a Treaty. As a matter of fact, it was a written agreement between certain individuals and entirely unauthorised. The real analogy is not a treaty made between this country and properly accredited representatives in Northern Ireland, but an ordinary municipal agreement such as an agreement between a corporation and a gas company. Any virtue possessed by the Treaty is due to the fact that it was embodied in the Irish Free State (Agreement) Act. Hon. Members talk of this matter resting on good faith. The Free State authorities do not dispute, I understand, at the moment that the Treaty is binding upon them and that at the moment they can only get rid of it by agreement.
I think that it is also agreed by everybody in the House that if the Bill is passed into law in its present form the Free State can by an Act of the Free State Parliament repeal the Treaty. This Measure is going to be passed in this House by the authority of one of the parties which ratified the Treaty. That 1228 means to say that this House of Commons is going to give to the other parties to the Treaty an option to annul the Treaty. Can anybody say that if we give the other side an option to annul the Treaty and if the other side exercise that option they are breaking any moral obligation? It is open to the Dáil without any breach of contract to exercise that option. That being the case, what is the position if this Bill is passed into law? The Treaty can be repealed. There is a large Republican party in Southern Ireland. If that party comes into power, is there anything to prevent them from legally voting themselves complete independence? Nothing! They can go to the League of Nations and say that they are an independent State.
Let us consider the matter further. We must remember that the Free State is not on the other side of the world but is close to Great Britain. When the Treaty was entered into it contained various reservations in favour of this country to be operated both in peace and in war. I believe that those reservations were made by negotiators on competent naval and military advice. If the Treaty is got rid of, those obligations go. What will be the position then? It has been asked: If the Free State chooses not to observe them, what can you do? While the Treaty is in existence, if it were necessary to impose those obligations, any soldier or sailor acting under orders would be acting in the exercise of a legal right in accordance with the law of the land. I should like an opinion on some of the legal points which arise. Suppose that there is an attempt to exercise the rights of the Treaty and there is opposition. Suppose that a British soldier or sailor is arrested. He would be exercising his duty, and there is no reason to suppose that the Free State would not do their duty under the laws of the Free State. These are questions of very great moment and do not appear to be decided merely by expressing the hope that everything will be done by good will. I disagree profoundly with the policy of the Government, but I do not think that there is anything inconsistent with the Treaty. Surely, if Ireland is to have the status of Canada there is nothing derogatory in the Free State being put into this Bill on exactly the same footing as Canada. I would not 1229 be prepared to subscribe to the doctrine of the right hon. Gentleman the Member for Sparkbrook.
It is necessary that I should intervene at this stage, because my hon. Friend is falling into precisely the same error. If Canada had not made that request and desired this Clause this Parliament would not have been asked and indeed would not have thought for a moment to impose it. Surely it is an entirely different thing for us to attempt to draw the analogy that if Canada says "We want so and so inserted for our protection" the British Parliament should say "We will put something in to protect Ireland against Ireland's request." It is not fair to assume that. It is not only not fair to assume it, but it is an entirely different point, and I hope that my hon. Friend will keep in mind the fact that if Ireland or any other country desired a provision which was not inconsistent it would be all right. It is no good assuming that we are doing for Ireland the same as we are doing for Canada when as a matter of fact it is put in at Canada's request.
§ Sir W. DAVISON
Does the right hon. Gentleman say that this is against Ireland's request? Does that mean that Ireland proposes to tear up the Treaty. If it is passed it can have no other meaning.
Surely I am within the recollection of the House; no one would draw that deduction from it. I merely referred to the statement that we and those who are supporting the Amendment desire to put in an Amendment at the request of Canada. I merely explained why the Canadian request is put in. No, as far as the Government and the Irish Free State are concerned we do not believe that any amendment or any legal document that you could draw up would be so important and so binding as a treaty entered into by two persons, and that treaty could not be altered except by the consent of both persons.
§ Mr. REID
I am sorry that my right hon. Friend has misunderstood me. I was pointing out that the effect of this Bill is to give the Free State power to break 1230 the Treaty. The right hon. Gentleman also misunderstood me on the other point. I say that by the Treaty Ireland agrees to have the same Constitution and status as Canada. If Canada desires this particular Clause, there is nothing derogatory in applying the same Clause to Ireland. The Treaty is binding, but the effect of the Bill is to give the Free State power to nullify the agreement. If you give a person power to nullify an agreement or Treaty, you cannot say that that person is breaking any moral obligation if they break the agreement. You put them in the position to do that. Let me put it another way. Suppose the Solicitor-General made for the right hon. Gentleman a lease for 21 years, and that some time afterwards the right hon. Gentleman came to the Solicitor-General and said: "I would like to have power to break the lease at seven or 14 years," and the Solicitor-General said: "Very well, I will agree and we will have a supplementary agreement to that effect." Could anyone say, in those circumstances, that the right hon. Gentleman was doing anything wrong in determining the lease at one or other of those periods?
§ The SOLICITOR-GENERAL
What would happen supposing I gave my solemn word that I would not exercise my power?
§ Mr. REID
In the conference on Dominion legislation on Page 12 there is a paragraph in regard to the Colonial Stock Act. It calla attention to the conditions prescribed by the Treasury, and says:One of the conditions prescribed by the Treasury which at present govern the admission of such stocks is a requirement that the Dominion government shall place on record a formal expression of its opinion that any Dominion legislation which appears to the Government of the United Kingdom to alter any of the provisions affecting the stock to the injury of the stockholder or to involve a departure from the original contract in regard to the stock, would properly be disallowed.The paragraph proceeds:We desire to place on record our opinion that notwithstanding what has been said in the preceding paragraph, where a Dominion government has complied with tills condition and there is any stock (of either existing or future issues of that Government) which is a trustee security in consequence of such compliance, the right of disallowance in. respect of such legislation must remain and can properly be exercised.1231 May I ask the right hon. Gentleman what is being done with regard to that paragraph? I am unable to find any reference to it. It is a question of ordinary commercial morality. Large sums of money are invested in such stocks, and the Conference thought that it was necessary that certain special provisions should be made.
§ Mr. HEALY
The debate has largely turned on the right of the Irish Free State to alter the Treaty. I cannot speak and do not attempt to speak as to what would be the attitude of the Ministers in Ireland in that respect, nor can anyone here speak for what would be the attitude of the citizens of that country, but I do know that there were three parties to the Treaty—the Irish Free State, Northern Ireland, and Great Britain. The Treaty has already been broken in several respects. The Northern Ireland Government for whom the hon. Member speaks, undertook to pay to Great Britain an Imperial contribution of more than £7,000,000, but so far from Northern Ireland paying that contribution she has received a contribution from this country, as was disclosed to me on Tuesday last by the Chancellor of the Exchequer. The Treaty has been broken in another respect, and a very vital respect so far as we are concerned. There was protection for minorities in the Treaty, and one of the vital Clauses was the acceptance of proportional representation. The minority in Southern Ireland are 9 per cent. of the population for whom the Free State Government have retained proportional representation—
§ Mr. HEALY
The hon. Member knows what I am getting at and he wants to foreclose the facts. I am not going to refer to legislation within the province of the Northern Ireland Parliament. I am referring to the practical effect of the carrying out of the Treaty as between Northern and Southern Ireland, and I think that, will be relevant to the matter under discussion. In the Free State proportional representation has been retained for the protection of the minority, 1232 but in Northern Ireland proportional representation has been set aside. The only protection for the minority there is proportional representation. The effect of proportional representation having been put aside in Northern Ireland has been that, although the constituency of Fermanagh and Tyrone sends two representatives to this House by very large majorities they cannot in those two counties elect a minority upon any rural district council or county council because of the gerrymandering tactics of the Northern Ireland Government. Any agreement, whether it be a Treaty or otherwise, in the Free State rests upon the good will of the people of both sides. The Free State representatives were prepared to carry out their part of the bargain, as was shown by the right hon. Member for Epping (Mr. Churchill) today. Three of the signatories to that Treaty have passed away. They were prepared to keep their bond with you, but you have not kept your bond with them. Let me point out Article 12 of the Articles for a Treaty, which the right hon. Member for Epping showed some reluctance to face. It is specified that the boundary should be formedin accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions the boundaries between Northern Ireland and the rest of Ireland, and for the purposes of the Government of Ireland Act. 1920, and of this instrument, the boundary of Northern Ireland shall be such as may be determined by such Commission.The plain meaning of that to ordinary people is that the wishes of the people in the two counties of Fermanagh and Tyrone were to be consulted, and when you appointed one representative for Northern Ireland and one of the Free State of Ireland and the Chairman as the representative of this House, you did not, in point of fact, ascertain the wishes of the people. You set aside and tore up the Treaty. In practice, how has the Irish Free State treated the minority within their borders?
§ Mr. HEALY
I shall be in order in saying that the Irish Free State has gone a long way in observing the Treaty which was signed in 1921, so far as minorities are concerned. They have appointed to the High Court more than half of the judges from members of the minority, whilst Northern Ireland has not appointed a single member of the minority. [An HON. MEMBER: "What do you mean by the minority?"]. In Southern Ireland it is 9 per cent, of the population and in Northern Ireland it consists of 33 per cent. Nationalists. [An HON. MEMBER: "Who are they?"]. The people I represent in this House. The people of Northern and Southern Ireland believe in the unity of the country and no Treaty that you can make will, I hope, be permanently binding on the people as a whole. You have drawn an artificial boundary in the country, but the aspirations of the whole people is that at some day there will be a united Ireland. This applies just as much to the people who live in the North as to those who live in the South, and, therefore, I support the Bill now before this House because it makes a step forward. If the people in Northern and Southern Ireland can come together mutually they will probably arrive at national unity much quicker.
I know that there exists an element of what may be called separatists, but that element has gathered strength chiefly from the fact that the Treaty was not the spontaneous expression of the wishes of the people. It did not consult the views of those in the six counties or the views of those in the 26 counties. It was something which politicians in this House, in order to relieve themselves of a difficulty, put into force over the heads of the Irish people and, therefore, it does not lie with hon. Members in any part of the House to say that the Irish Free State ought to be bound in the future by chains of legislative iron. You must rely on goodwill on both sides, and on trade between the countries. The Irish Free State is probably your best customer, and if you cannot rely on the goodwill of the people of the Irish Free State, whether they are Republicans or supporters of the Government, it does not 1234 matter what sort of a Treaty, or sanction or legal act, you may pass, it will have no binding effect. Without this goodwill, you will be in exactly the same position as in 1921 when the right hon Member for Epping introduced the Black and Tans, and carried on such a war upon the people in that country that the conscience of the whole world was outraged. The Irish Free State has done everything possible in the spirit and in the letter to carry out the Treaty of 1921. Indeed, most people consider that they have gone a great deal too far, otherwise you would not have treated Article 12 with less respect than the other Articles in the Treaty. I desire to support the Second Reading of the Bill.
§ Mr. ROSS
After listening to the pathetic speech of the hon. Member for Fermanagh and Tyrone (Mr. Healy), it is nice to get back to the Bill, but I should like to congratulate the hon. Member on having spoken at last about Ireland. He and his colleague the senior Member for Tyrone (Mr. Devlin) sit en-bosomed in the heart of the Socialist Opposition, although they claim to be independent. If hon. Members heard the hon. Member for Fermanagh and Tyrone in his constituency saying how independent he was they would have a different view. I can assure hon. Members that the hon. Member goes about Fermanagh and Tyrone saying that he is a terribly independent person, but when he comes here he never votes otherwise than with the Opposition. I congratulate both the Opposition and the hon. Member. He first of all stated that he was here on a very large majority. A mere majority of 4,000 is nothing on this side of the House. He neglected to inform the House that 44,000 people, a very considerable minority, voted against him. He went on to deal with Article 12 of the Treaty. I do not think it would be proper for me to indulge in more than one comment on that Article, or on the way it has been dealt with. The hon. Member's allusion to it was a travesty of the facts. An impartial Commission decided that Northern Ireland should have far more territory than it got. The Irish Free State objected to that, and there was a compromise, in the course of which the Free State succeeded in evading the payment of their share of the National Debt.
1235 Now I come to discuss the Bill. I have understood that we came to this House for two immediate purposes. One was to effect national reconstruction, and and the other to pass routine matters such as this Bill. This Bill is certainly not a matter of national reconstruction. It is an attempt to codify the law, the position between Great Britain and the Dominions. I do not propose to vote against the Bill on Second Reading. I am optimistic enough to hope that the Bill will achieve nothing worse than benevolent futility. I do not think it alters the essential relations between Great Britain and the Dominions to any great extent. But there is one point about which I have real anxiety. I do not propose that there should be an alteration of the Bill as regard Canada, Australia, New Zealand and South Africa, but I would try to safeguard the basis on which the relation of this country and the Free State stands.
The Treaty when it was settled could not have been settled in a more solemn way. The preamble shows how those Irishmen who signed the Treaty on behalf of Southern Ireland looked at it. We have been told that the Free State and Canada were analogous. Then why is the Free State treated differently from Canada? Why is the Canadian constitution safeguarded and the Irish constitution not mentioned at all? Possibly it is more necessary in the case of the Free State than in the case of Canada. What is the position in truth and in fact? I listened with great interest to a maiden speech from the hon. Member for Crewe (Mr. Somervell), who dealt with the matter with great lucidity and with the definite legal knowledge which one would expect from him. As to his conclusions I would wish that they may well he true.
But what is the issue here? Does this Bill release the Free State from its obligations under the Treaty, or does it not? That is a plain question deserving a plain answer. If it does release the Free State, why was this never put before the country at the General Election? It was not an issue; it was not mentioned in the Election. It raises a fundamental point of Unionist policy at all events. It the Bill does not alter the relations between 1236 this country and the Free State, why should there be any objection to making that clear in the Bill? In all politics there is nothing so fruitful of trouble as a Bill which shirks an issue. The Bill in its present form shirks this issue, and I beseech the Government, before the Bill becomes law, to amend it so that we may see what is in it in plain terms and so elect what we will do, whether we are to accept the principle of the Bill or not. Let us know what that principle is. At present the whole thing is wrapped in obscurity.
We had a speech from the right hon. Member for Sparkbrook (Mr. Amery), in which he gave a view of Irish politics so ingenuous that I could hardly believe it possible, coming from a distinguished Member of this House. Since then we have had the speech of an Irish Member the hon. Member for Tyrone. He looks at the Bill with complete honesty from his point of view, as I would expect from him. He says it is a step forward, a step to the unity of Ireland, a step to getting rid of the Treaty. I ask the right hon. Member for Sparkbrook to consider the weighty speech which we have had from the hon. Member for Tyrone, with whom I always profoundly disagree.
Then let us consider our position as a National Government. We are a National Government. It is, perhaps, a little unfortunate that neither of the two Ministers who are in charge of this Bill is a Unionist. The one, the Secretary of State for the Dominions, has had a long and distinguished career in the service of this House; the other is one to whom everyone looks for a long and distinguished career in the service of the House and the country. But can they be expected to appreciate the point of view of the Unionist Member who sits behind them? On arty occasion when the Secretary for the Dominions has embarked upon a consideration of Irish affairs it has not been on the side of the Irish loyalists that he has embarked. We are here to support the National Government, but if I might repeat the phrase which has been used by the Leader of the Unionist party very recently in asking Conservatives and Unionist Members in supporting a Bill, essentially anti-Unionist in principle, as I believe it to 1237 be, I should say, is it quite playing the game'? I think it is not. I seriously ask that this point be considered.
As to Ireland, if this Bill is passed I think it will rekindle the whole embers of Irish bitterness. There are men who will always be glad of an opportunity of embittering the relations between Ireland and the United Kingdom. I think the Bill will give them the opportunity. Whatever may he the precise legal position, whatever may be the true rights of the case, here they will have an excuse for an unending source of trouble to us and to them. Those men who signed the Treaty on behalf of Southern Ireland are not there to defend it. As the right hon. Gentleman the Member for Epping (Mr. Churchill) has said, those signatories to the Treaty are not there to support it. If they were alive, I think they would support their work. I do not believe that any of them would like to think of the State which they did so much to create, as being "the country of the desecrated Treaty."
§ Mr. LLEWELLYN-JONES
I wish to draw attention, in the first instance, to the difference between the situation of Canada and that of the Irish Free State and the reason for Clause 7 of the Bill. I presume that the difference is that Canada is a federal State and there is, therefore, reason why the Bill should contain provisions for dealing with conditions which only exist in a federal State. On the other hand, the Irish Free State is a unitary State, and there are no subordinate Parliaments there whose position and status have to be considered. I rise mainly to deal with the Bill as it affects the Irish Free State, and I do so because I think the vast majority of Members of this House have very little personal or intimate recollection of the struggle of Ireland for Home Rule. My interest in politics was first aroused in the eighties, particularly after the introduction of the Home Rule Bill by the late Mr. Gladstone. I am certain that one of the greatest tragedies in. the history of this country is that Mr. Gladstone's Home Rule Bill did not become an Act of Parliament, and, in saying so, I am not merely expressing the opinion of Liberal Members in this House, because I am sure that there are Conservative Members who will agree that years of tragedy 1238 would have been avoided, had that Bill become an Act at the time.
Already we have heard from the hon. Member for Down (Mr. D. Reid) of the position in Southern Ireland. He said that a large minority in the Irish Free State disliked the Treaty and that there was the possibility that that minority might become a majority. If such a contingency were to happen, I think that it would be one of the greatest disasters to the Irish Free State that could occur. It would create a situation which all in this House would dread to contemplate. Supposing that as a result of the return of a Republican majority to power in the Irish Free State, there was an immediate repudiation of the Treaty, an immediate attempt to set up a Republic and to sever every bond which unites the Irish Free State to the British Commonwealth of Nations, is there anyone who would contemplate such a possibility as that of sending a vast army to Ireland in order to quell what would, of course, be in the nature of a rebellion against this country. I doubt very much whether it would be possible to get a vote of this House in support of any action of that kind. But do we realise that if this Bill is not passed, or if there are introduced into it certain Clauses such as those suggested by the hon. Member who has just sat down, we are going at once to create a very serious situation in Ireland?
We have passed through a serious crisis in this country. I believe there is a great constitutional crisis about to take place in Ireland. Within the next few months there will be a general election in Ireland, and in some respects the auguries are fortunate. There has been within the last few days an understanding between the President of the Irish Free State and one of the members of the old National party. That is all to the good, but, at the same time, anyone who has been in Ireland in the last few months must realise that underground in. all parts of the country there is an agitation going on to upset the present Government; and remember this, that the present Government in Ireland has for the last 10 years been a Government that has done everything in the interests of the State. It has protected the minority in a way which makes us marvel at its courage.
Take what happened a few months ago in County Mayo, where a Protestant was 1239 appointed to a position of trust. In the county itself there was a good deal of opposition, but the Free State Government insisted that the appointment should not be altered and that the Protestant who was appointed was entitled to his appointment, and as a result they have actually had to displace the local authority and to place it in commission. The Government that is prepared to do that is carrying out the terms of the Treaty, not merely in the letter, but in the spirit, but what would be the position if this Bill did not go on the Statute Book, or if we introduced into it the Amendments which have been indicated? We should be giving an enormous amount of power to those who are agitating against the Government in Ireland, and we should be doing more than anything else to bring into power the party which is determined if it can to break every bond which ties it to the British Commonwealth of Nations. I appeal to this House to let the Bill be enacted in the form in which it stands. To do otherwise would place a great responsibility on this House if difficulties arose in the future in the Irish Free State.
§ Mr. MACQUISTEN
I beg to move, "That the Debate be now adjourned." I do so for the following reasons—
§ Mr. MACQUISTEN
I thought I might at least be allowed to give my reasons for moving the Motion, and I was proposing to do so.
§ Mr. RHYS
I think the Debate to-day is of the most momentous importance in our Imperial history. It has ranged almost entirely around the question of the Irish Free State, but I think it would be well, before the Debate closes, to refer for a moment to larger issues, to the whole question of the future of the British Empire as we know it to-day. I hope the Bill will get a Second Reading to-day, because when this question of Dominion statue is out of the way, we shall then be free to go ahead, with no obstacles in the way of obtaining the various trade agreements and Imperial preferences that we all want to see. There is no question 1240 but that at the last two Imperial Conferences a great deal too much time was spent in arguing and quibbling about actual Dominion status. I know very well —I have been to Canada on more than one occasion, and to other Dominions—that it is a matter which has a position of greater importance in the minds of the Dominions than it has in our own minds. If it be that, they are satisfied if we put into the form of an Act the exact status they now require, I think it will be a deed well done, and the way will be cleared for the advance of Imperial unity on new and stronger lines.
With regard to this Bill, if I have one criticism, one form of misgiving, I should really like to see the Preamble of the Bill dealing with the Crown standing as Clause 1 of the Bill. I have a little misgiving about the wisdom of not safeguarding the position of the Crown in that connection, and I would appeal to my right hon. Friend the Secretary of State for Dominion Affairs to see whether or not that can be done. To come back to the question of Dominion status, it is not now a question of being able to stop the Dominions. I recollect some years ago being in a camp where there were some Australians, and, I must say, discipline was not as good as it might have been. A man had been granted leave and applied for two extra days. As I was unable to prevent it, I accorded him the extra two days until I had been able to establish a better form of discipline, and the soldier came back at the end of two days. I believe that that will be the position with the Dominions. They will stand firm with us as an example to the world of what unity can be, and, if I may say so, a great example to the League of Nations.
To come back to the question of Ireland. A great deal of argument has taken place, and I want to appreciate the difficulty of the Dominions Secretary in this matter. The argument has run that Ireland should be accorded the same status as Canada, and that because in the Bill provision is made to safeguard the constitution of Canada, the same provision ought to be inserted on behalf of Ireland. But what is always overlooked, it seems to me, is the fact that that provision safeguarding the constitution of Canada has been inserted at the request of Canada, and has not been inserted at the desire of the United Kingdom. If 1241 we are to treat Ireland upon the same basis as Canada, as is suggested, I think we should appreciate at least, if we cannot agree, with the difficulty of the Dominions Secretary in that respect in asking him to force upon one Dominion that which we should not force upon any other.
I know—and I have always been a strong Unionist, as I still am—that we must recognise that once you have accorded Dominion status to any particular Dominion, it is extremely difficult for the Government of this country to treat any of the Dominions in a separate fashion, but I also believe that when we talk so much about the breaking of treaties and the abrogation of treaty rights, we are apt to overlook a little the extradordinary advance, which, I believe, has been made in the Free State in the last 10 years, when you have had men prepared to lay down their lives for the Treaty. As the hon. Gentleman who has just spoken pointed out, a General Election is about to take place in the Free State, and it is my belief, from what I understand of Irish politics, that the issue at this coming Election is going to he the Treaty or not. You have, on the one hand, the Government party standing firm by the Treaty. You will have the Opposition, whether this Bill be passed or not, saying that the Treaty ought not to stand. I am sure that we shall strengthen the hand of the Government Treaty party in Ireland if we give them credit for meaning that they are going to stand by the Treaty.
If it is not too material, I will put this further point. In my view, we are going to have a vast system of Imperial Preference before very long, and it will be of material advantage to the Free State, whatever party may be in power, to remain within the Empire. Let them remain in, firmly believing that the faith of this country is good and that we are going to trust them to make good in future and not to leave the Empire. If we do that, I believe that this Bill will embrace every section of our Dominions on a future basis of co-operation, and that it will ensure the continuation of the Commonwealth of Nations as we know it to-day, and that we shall not take the course which lost Spain and Rome their empires. Just as democracy at the last General Election in this country faced 1242 great problems, in spite of the pundits who said that it would not, if we are prepared to take a certain risk with great good will, we shall see that our Empire will not go the way of the great empires in the past.
§ Sir CHARLES OMAN
I have only three minutes to speak, but I want to throw a small constitutional bombshell into this Bill. It is called the Statute of Westminster Bill. The right hon. Gentleman, the Secretary of State for Dominion Affairs, called it the Statute of Westminster Bill, but it has no relation to the Statute of Westminster. The only Statute of Westminster to which that name can properly be applied, if you talk of the Statute of Westminster not meaning the second or third or subsequent statute of some reign, is the Statute of Westminster of 1275, which was III of Edward I. It can have no other meaning. I have been spending some weary hours looking through the Norman-French of the Statute of 1275, which deals with many things, but it does not deal with the Possessions and Dominions such as Ireland or Aquitaine, as quite conceivably the Members of the Government introducing this Bill, might think. It deals with many things. It deals with rent and with the hospitality of monks. It deals with officials of the Crown who wrongly extort money from the King's lieges; it deals with lawyers in the service of the King who pervert the truth in the court; it deals with heirs who marry without the permission of their guardians, but it does not deal with anything to do with the King's Dominions.
Therefore, it seems to me that if this Bill is described as the Statute of Westminster Bill, and has no relation to the only thing that can be properly described as the Statute of Westminster, one of two things happen: either the Bill is invalid or the Gentlemen in charge of the Bill must change its title into something which will bring in the proceedings held at Westminster at a much later date. Just as you talk of the Carta when you really mean Magna Carta, or of the Reform Bill when you always mean the Reform Bill of Lord Grey's time, or as you talk of the Act of Settlement when you mean a certain definite Act of Settlement, so, if you have a Statute of Westminster, you can only 1243 mean the Statute of 1275. This Bill has nothing whatever to do with that, and therefore I hold that there is a misdescription of its whole Title.
§ The SOLICITOR-GENERAL
In rising to reply to the debate on this Bill, I almost feel that I am entitled to claim that indulgence from the House of which new Members have bad such plentiful measure during the past week. I claim that indulgence, because I have not lived with this Measure as the Attorney-General and other Ministers of the Crown have. They are acquainted with it in all its aspects. At the same time, I have no doubt at all as to the view which I think the House ought to take, and I would suggest reasons why a Second Reading should necessarily be given to the Bill this afternoon. The Bill has a splendid title, and in spite of what my hon. Friend the Member for Oxford University (Sir C. Oman) has said, I have no doubt that Parliamentarians and constitutional lawyers will be able to distinguish it in future from the Statute of Westminster of 1275. The Bill not only has a splendid title, but is one which, if it be passed, will be regarded as a landmark in the constitutional history of the British Empire.
The Government have no reason to complain of either the tone or the substance of the criticism passed upon this Bill. My right hon. Friend the Member for Epping (Mr. Churchill) said that the Bill needed caution and restraint. I gladly and sincerely accept his admonition that we are dealing with a subject which deserves caution and restraint, but I think I am entitled to remind the House that caution and restraint have been shown in the long process of the evolution of this Measure. Two Imperial Conferences and one Conference of Dominion representatives have taken part in producing it. The Bill is not a hasty draft, it is not even the production of my right hon. Friend the Attorney-General, as the right hon. Member for Epping rather suggested. If anybody chooses to look at the record of the Imperial Conferences he will find that not only did the Imperial Conference of 1926 contemplate that Lord Balfour's formula—if I may put it that way—should be considered in its implications upon existing legislation, 1244 but the conference having prepared the legislation which they thought suitable the next Imperial Conference of 1930, taking their form of words made some Amendments in it, so that almost every single provision of this present Bill is to be found word for word and letter for letter in the schedule to the report of the Imperial Conference of 1930. Therefore, it is not altogether fair, though I do not complain at all of the way in which my right hon. Friend put it, for anybody in the House to suppose that this is a Bill which has been produced either by the Parliamentary draftsmen or by the Attorney-General. It is the product of the mature consideration of the representatives of all the Dominions in at least two conferences, the second of which sat in 1930 and is known by the noble and dignified name which we give to it of the Imperial Conference. It does not become any of us who have, in the past, attached great weight to the deliberations of these Imperial Conferences lightly to pass by anything that the representatives of the Dominions in those Conferences have decided to be right. Indeed, it was for that reason that my right hon. Friend wisely counselled the House not to reject the Bill, and I hope that advice will be accepted.
My hon. and learned Friend the Member for Cardigan (Mr. H. Morris) inquired the reason for not leaving the constitutional position alone. He asked us why it was necessary to put into the framework of an Act of Parliament a constitutional position well known and understood. The answer I suggest is that whatever the merits of that course might be—I am not unaware of the attractiveness of that course —if the Imperial Conferences including Dominion representatives, with our own representatives of all parties in the two successive Conferences were of one mind, it is scarcely possible for this House to go back on that decision as suggested without flouting the opinions arrived at on those two occasions.
The impression has been sought to be produced in this Debate that the Dominions are now at any rate very lukewarm as to the Measure. It is quite true that the Dominions, whose constitutions are of a Federal character, have shown a good deal of anxiety as to the form and 1245 provisions of the Bill necessary to maintain the existing relationship between the Federal or central government and the State. The course which has been adopted in Australia and Canada has been mentioned; the Clauses dealing with those Dominions are the result of discussions with those most vitally concerned. In the case of Canada, Australia and New Zealand there are Clauses preserving the Constitutions of those three great Dominions, but all those Clauses have been inserted at the request of the Dominions themselves for their own protection. So far as South Africa and the Irish Free State are concerned, those two constitutions are framed on the unitary principle, and they have legal powers for the Amendment of their Constitutions. South Africa includes in its Constitution of 1909 the entrenched Clauses for the protection of certain rights which it was thought ought to be inviolably preserved. In the case of the Irish Free State it is bound not by an Act of Parliament or by Letters Patent, but by a Treaty which has been the subject of so much discussion this afternoon, and about which I shall have something to say before I sit down.
§ The SOLICITOR-GENERAL
It is quite true that it is bound by an Act of Parliament, and I shall not forget that. So far as South Africa is concerned, and the addition that was Shade to the Resolution requesting the Imperial Government to pass the Statute of Westminster, that addition was made for the purpose of safeguarding the position in South Africa in regard to the entrenched Clauses. I need not quote the words because they have been referred to already, but the addition to the Resolution in the case of South Africa was arrived at in the light of a declaration of the Prime Minister, Mr. Hertzog, that there was no intention whatever of departing from, or seeking to get rid of the entrenched Clauses. That is a declaration which the Prime Minister of South Africa and the Government of South Africa will carefully observe, and the addition to the Resolution asking this House to pass this Bill is not to be taken as any indication whatever of any lukewarmness or hesitation as to the desirability of passing the Statute of Westminster.
1246 With regard to the other Dominions, every one of them, including the Irish Free State, have sent Addresses from both Houses, or Resolutions having Parliamentary approval, requesting His Majesty's Government to submit this Measure to Parliament. I do want to displace the impression, which I think has been produced, that any one of these Dominions, whatever they may have done in the course of their discussions in their Parliaments, is uncertain as to their attitude towards this Bill. It has not merely been advised by the Imperial Conference in grave session, but it has once more been asked for by the Dominions. If in this House, largely composed of Members of a party which has always attached special significance to the desire of the Dominions, their expressed wishes, repeated lately with emphasis, are to be disregarded, I should indeed despair of binding the Dominions to this country by seeking to obtain a common expression of their desires. We may abandon that hope once and for all if we disregard the Resolutions that have been passed by the different Parliaments of the Empire.
Having spoken of the way in which the Parliaments of the Empire have dealt with this Bill, let me now say a word, with great respect, as to the way in which this House should be asked to deal with it. We are not seeking to dragoon this House. I hope that I have, and I know that my right hon. Friend has, too much respect for our Parliamentary institutions to suppose that we should help the cause of the Empire or of Great Britain by submitting something which we demanded should be passed letter for letter without examination. I may assure the House that whatever Amendments are brought forward shall be considered upon their merits. But let me add this. It must not be supposed that the merits which will be considered will not include the consideration that, if any considerable Amendment were to be made to this Bill involving one of our great Dominions, that matter would have to be submitted to the Dominion concerned before this Bill could pass into law; and I am bound to say, speaking for myself, and I think also for my right hon. Friend the Secretary of State for the Dominions, that it 1247 would be a matter of very grave responsibility to insert any Amendment in this Bill which would go contrary to the expressed desire of any of our Dominions—I am not speaking for the moment of the Irish Free State, but of any of our Dominions overseas.
In that connection, let me refer quite shortly to the proposal that the Irish Free State should be included by express mention. The Irish Free State and South Africa are two Dominions whose constitutions are framed on the unitary principle. If the Treaty or the Constitution of the Irish Free State is, against her expressed wish, to be put into this Bill, a similar course will presumably have to be taken with regard to the Constitution of South Africa, and I do not know whether my right hon. Friend, who, as he has reminded us this afternoon, was so largely responsible for that Constitution, would think it was consistent with the dignity of that Dominion, which he did so much to set on its way, to put into this Bill a provision that its Constitution shall not be broken and its entrenched Clauses shall not be repealed contrary to the good faith and sense of honour that they have as much desire to observe as we.
§ The. SOLICITOR-GENERAL
I am surprised to hear the right hon. Gentleman suggest that the Act of 1909 founding the Dominion of South Africa was not in the nature of a solemn agreement between this country and South Africa—
§ The SOLICITOR-GENERAL
My noble Friend is too technical if he distinguishes between a Treaty and an Act of Parliament. They were both pledges—
§ Mr. MARJORIBANKS
Has not General Smuts himself introduced a Resolution safeguarding the Constitution of South Africa in exactly the same way?
§ The SOLICITOR-GENERAL
What General Smuts has done, or may desire to do, is another matter. I am considering now what this House may he asked to 1248 do. The Noble Lord the Member for Oxford University (Lord H. Cecil) was suggesting, as I understood him, that the Act of 1909, constituting the South African Dominion, was in a different category from the Treaty which is the basis of the Irish Free State. I find it difficult to distinguish in principle for my present purpose between a solemn Treaty which the Irish Free State has said they intend to observe and the South Africa Act of 1909.
Mr. H. MORRIS
Did not the Dominion of South Africa pass the Resolution that there should be no derogation from the entrenchment Clauses of the Act of 1909, in order to ensure the maintenance of the present position? If the Irish Free State passed a similar Resolution, would not the situation he wholly different?
§ The SOLICITOR-GENERAL
When we deal with every Amendment on its merits, we shall be bound to bear in mind the implications which the insertion of a reference to a Treaty under the Bill would have in reference to South Africa. I am not giving a promise to accept any particular Amendment, but I am undertaking—and I hope the House will accept it on behalf of my right hon. Friend—that, with the opportunities for consideration which, no doubt, will be given to all these important matters, every single Amendment shall be considered on its merits without any desire to compel the House to a particular course of action.
I am bound to refer to what the right hon. Gentleman the Member for Epping said with reference to India. I cannot let it pass by, but I am bound to say I could not regard it as wholly relevant to the Bill. He deplored what he called the improvident promise held out to India of Dominion status. He deplored, not only the implication of this Statute of Westminster upon the Indian question; he deplored just as much the implication of the Balfour formula upon the Indian question. I think he said so. I only mention it in passing to show that really no one need think this Bill really is directly connected with the Indian situation. My right hon. Friend and others have dealt with the position of the Crown. It was suggested that, satisfactory as the Preamble might be in reference to the Crown, there is no positive enactment in the body of the Measure. Has it, first of 1249 all, been observed by everyone that, if the position of the Crown does require strengthening, it is immensely strengthened by the Preamble so far as it goes, because not merely will the consent of a single Dominion Parliament, or of this Parliament, be required, but for any alteration of the position of the Crown, if the Preamble does prevail, the consent of every single unit in the Empire is required? So that not only the consent of this Parliament, but the consent of every Parliament in the Empire has to be obtained if the position is to be altered.
My right hon. Friend says that is only in the Preamble and judges do not read Preambles. I take leave to say that the future of the Crown of the British Empire will not be decided by judges in courts of law, but in the hearts of the subjects of the Crown, and, having declared, as we have in the Preamble, a great constitutional principle, I should have thought that it was sufficient-for us to leave that notable declaration where it is in the Preamble without taking the trouble to insert it in the body of the Bill. Perhaps my right hon. Friend will allow me to leave the point upon which I have dwelt and to proceed to the great crux of this question. Undoubtedly the crux of this discussion this afternoon has been the position of Ireland. The right hon. Gentleman the Member for Epping truly said that the Treaty is the title deed of the existence of the Irish Free State. I agree with him. There can be no suggestion of the possibility of a repeal of that treaty. I agree with him. As far as I know, there is nobody in a responsible position, either in this country or in Ireland, to-day who intends to repeal that Treaty. [HON. MEMBERS: "Oh!"] I was very careful, as the House would observe, to say no one, as far as I know, in a responsible position. Let me assume that the Leader of the Opposition, Mr. de Valera, whom an hon. Gentleman has mentioned, is in favour of repealing the Treaty. Whatever I know about Mr. de Valera does not lead me to think that, if he sees any objection to breaking the moral and sacred obligations involved in the Treaty, he will be deterred by the scrap of paper as he will probably regard the Imperial Act of Parliament, but, apart from that gentleman and those who may support him, I believe I am right in saying that 1250 the Government of Ireland at the present time have never suggested by a single word that they have any desire or intention of breaking the Treaty. That is emphatically the position His Majesty's Government would expect that the Irish Free State would adopt.
My right hon. Friend and his allies this afternoon dislike legal forms. They distrust Preambles. My right hon. Friend reminds us how Lord Balfour did not like wooden guns. He himself despises paper safeguards. He anticipates, however, a breach of this Treaty, a repudiation of the moral obligations involved in the Treaty, by the Irish Government. Will paper safeguards, wooden guns, and Preambles and Sections in Acts of Parliament prevent the repudiation of these moral obligations?
§ The SOLICITOR-GENERAL
I beg leave to say that the right hon. Gentleman and those who cheered him have spoken without consideration. If the House had been able to hear the admirable speech of the hon. Member for Crewe (Mr. Somervell) they would have teen reasons for thinking that the Treaty is so deeply embedded in the constitution of the Irish Free State that there must at least be considerable doubt as to whether the legality would be as plain as my right hon. Friend assumes. If anyone would turn to the material Article, Article 50 of the Constitution, they will find that Amendments of the Constitution within the terms of the Schedule of the Treaty may be made by the responsible Houses in Ireland, but that the Treaty and the Constitution which are irrevocably woven together can be made the whole basis of an argument which, I seriously suggest to the House—and as the hon. Member for Crewe suggested —is not at all certain to be decided in the way the right hon. Gentleman suggested just now. But even assuming for a moment he is right that the Treaty might be repudiated after the Statute of Westminster has been passed with legality, whereas now it can only be re pudiated with illegality, I want to say emphatically, that if that be so—and let the House not be deceived by anything I say—we are, of course, then dependent only upon the moral obligations involved 1251 in the maintenance of the Treaty. I do not want to run away from it at all. But I am not going to argue the legal point on the structure of Article 50. I do not want the House to run away with the idea that the question is certain to be decided as I suggest it may well may be: That is to say, that the Constitution is a, rigid one.
Let us face up to the position that what is going to bind the Irish Free State to maintain the Treaty is the sacred and solemn obligations involved in the Treaty. I know that my hon. and right hon. Friends behind me and in other parts of the House will say that that is not enough. All I can say is that the name of the right hon. Member for Epping appears on the Treaty of 1922, and that he and other Ministers at that time asked this House to engage in a much bigger act of faith when they passed that Treaty than we are asking the House to engage in to-day in accepting the moral obligations of the Treaty. In his own words the right hon. Gentleman told us that this Statute of Westminster is but crossing the t's and dotting the i's of constitutional practices which are well known and recognised. Which is the greater leap in the dark, to dot the i's and cross the t's of a Constitution well known and recognised, or to trust the Irish Government in 1922 to carry out obligations into which it had entered? A stupendous revolution in the relations of this country with a country that had been nothing but a source of anxiety within the memory of every hon. Member in this House.
I assert that His Majesty's Government have no intention of condoning or excusing or permitting the repudiation or a breach of the Treaty. It is right also and it is fair to say, whatever some of my hon. Friends may say, that the Irish Free State Government have no more intention than we have of repudiating the obligations involved in that Treaty. My right bon. Friend below the Gangway paid eloquent tributes to the dead Irishmen who had given their lives for the maintenance of the solemn obligations into which they had entered in 1922. Why should we reserve all our bouquets for those who are no longer in need of them? Why should not we pay some tribute to Irishmen as loyal and determined as 1252 those who have given their lives, and who are seeking to maintain the solemn obligations involved in the settlement of 1922? This House should seek by a great act of faith to strengthen the hands of those Irishmen in maintaining the constitution in the Treaty, upon which the happy relations of this country and Ireland at present depend.
The Privy Council, it is true is a question of great difficulty and has been the cause of some bitter and acrimonious words at various times in the Irish Free State. I have not time to develop that question at great length to-day, but let me remind the House of one or two things. The legal position is not always agreed by everybody to be exactly what I, for one, claim it to be. I have no doubt at all, and I believe that all my hon. Friends will agree with me, that it is implicit in Article 2 of the Treaty that the right of granting special leave to appeal to the Privy Council is part of the constitution of the Irish Free State. That is not the opinion of the representatives of the Irish Free State. We differ on that point. I suggest that the right of appeal to the Privy Council is implicit in Article 2, and I believe that every constitutional lawyer in this country would say that that is the case. The Irish Free State is based upon the model of Canada. Canada in 1921 had the right of appeal to the Privy Council and so we say that the Irish Free State has the same right of appeal.
The argument of the Irish Free State is that since 1921 there have been constitutional developments in the relations between the Dominions and Great Britain; that when in 1926 the Balfour Declaration was made granting, not independence but autonomy to our self-governing Dominions, this characteristically British development of the grant of autonomy to our self-governing Dominions resulted in the same position being given to the Irish Free State as to Canada, who, if she pleases, can unilaterally without our concurrence get rid of the right of appeal to the Privy Council. That is not the view of His Majesty's Government, and it is fair to say that the Attorney-Genera and other representatives of the Crown, and the Prime Minister, have made it plain that the right of appeal to the Privy Council is an essential part of the 1253 obligations between this country and Ireland. If we put it into the Bill it will not dispose of the view held by the Irish Free State, and once again we come back to the question as to whether it is better that this matter should be discussed by concurrence and agreement between the two Parliaments and Governments of two equal parties, ourselves and this Dominion, or whether we should try and force our legal view upon the Irish Free State—we may conceivably be wrong in our view, although I do not think we are—and say that we will put it into this Bill and bind the Irish Free State to the view we hold.
I must not attempt to develop that further, because there will be opportunities on Tuesday. I will only say this, that it is 10 years since this House put its foot upon a road which the right hon. Member for Epping described as a narrow and difficult road—I remember his speech very well as I had the honour of hearing it—and that we must be prepared to tread that road to the end, and make a happier and more united Ireland than we had ever known. There is only one way by which that great experiment can be made to fail. Let us grow the bitter weed of suspicion and we shall make ruin of this typically British enterprise in founding a friendly Dominion out of a long hostile country. Having set our hand to the great task of making Ireland a great Dominion, let us set an example of confidence which we should like her to follow, and at the same time complete the task to which 10 years ago we put our hands.
§ Brigadier-General Sir HENRY CROFT
The learned Solicitor-General has said that the Government do not wish to dragoon the House. I take it that that does not mean that they are going to take the Whips off next week, but that it means they have been impressed by the widespread feeling in the House on this matter.
Mr. J. H. THOMAS
I will answer at once. It means that every consideration will be given between now and Tuesday to all that has been said here to-day, and that the Government will be asked to consider the whole situation in the light of the Debate that has taken place.
rose in his place, and claimed to move, "That the Question be 1254 now put," but Mr. SPEAKER withheld his assent, and declined then to put that Question,
Mr. H. MORRIS
In view of the statement made by the right hon. Gentleman, I beg to ask leave to withdraw the Amendment. [Interruption.]
§ Amendment, by leave, withdrawn.
§ Main Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the Whole House for Monday next.—[Mr. J. H. Thomas.]