HL Deb 21 July 1893 vol 15 cc169-83
THE DUKE OF ARGYLL

rose to call attention to certain Articles in the Constitution of the United States; and to ask Her Majesty's Government whether in any new measure for the better government of Ireland they will provide for the life, liberty, and property of minorities in that part of the United Kingdom, some security not less definite and express than the security provided in the American Constitution oven for the emancipated Negroes? He said, the House was conscious of the magnitude of the contest in which they were all more or less engaged, and of the great issues which were at stake; but on that occasion he would confine himself strictly to the point raised in the question—the effect of any possible measure of Home Rule for Ireland on the personal liberty of the subject in that country. He had carefully respected the usages of Parliament, and in his question there was no allusion to any Bill which might now be under discussion in the other House; nor would he refer to any of the Debates going on there at the present time. But there was by implication an accusation in his question that the scheme of the Government would not provide security for the life, liberty, and property of the minority in Ireland. In 1881, when he was a Colleague of Mr. Gladstone's, the Liberal Party was agreed that personal liberty and freedom of action were at stake in the Irish Question, and the Government of that day put into the mouth of the Sovereign the statement that certain measures were then necessary to secure protection of life and property and personal liberty of action. Subsequent to that period, in 1886, Mr. Gladstone made the remarkable declaration that the subject was one which went down to the very roots and foundations of our whole civil and political Constitu- tion. But when they looked at the Bill of 1886 they found that it provided no security whatever for the life, liberty, and property of the minority in Ireland. And the question now arose how far they were entitled to assume that the Bill which was likely to come up to them would be a reproduction of the Bill of 1886? On that question the conduct of the Government seemed to have been characterised by great evasiveness and concealment, and during the whole of the contest since 1886 Mr. Gladstone and his friends had confined themselves almost entirely to the general phrase that the new Bill would establish a Government in Ireland for all exclusively Irish affairs. They had never offered the slightest definition of what Irish affairs meant, and he had a right to suppose that the present scheme, as regarded this matter, was framed upon the Bill of 1886. Mr. Gladstone had distinctly declared that all Irish affairs were to be put under the control of the Irish Legislature, and Lord Turing and Lord Rosebery had made it clear that in their view Irish affairs embraced everything except foreign affairs. They had, therefore, arrived at this result—that the intention of the Government, as announced during the last seven years, was that the Irish Home Rule Parliament was to have complete power over the personal liberty, property, and freedom of action of all Irishmen on all domestic matters; and the question now arose whether he was entitled to assume that the Bill, which was likely to come up to them in a short time, was drawn on those lines. In a remarkable speech at Leeds, in October, 1888, Lord Rosebery said— I know it is said, 'Where are your Bills of 1886? As to that, I have to say this—that I am not aware of any vivifying machine which can bring into existence again Bills which have been killed by a majority of the House of Commons, ratified by the decree of a General Election. If anybody can tell me of any incubator of that description, any hatching machine that will enable a Bill under these distressing circumstances to be presented to Parliament again, I shall be grateful to him. The whole object of that speech was to tell the people of this country that the Bill of 1886 was dead and gone, and he ridiculed the idea of its being reproduced. In a letter to The Times on November 29, 1890, Mr. Gladstone wrote— For me to propose any measure except on the lines which I have already laid down would be fatuity as regards myself, and treachery to the Irish people. There was a distinct declaration by Mr. Gladstone that his new measure, whatever it was to be, was to be drawn on the lines of the Bill of 1886. That declaration by Mr. Gladstone was in direct contradiction of the declaration made by Lord Rosebery. The Marquess of Ripon at the same period stated that no human being could foretell what the Bill of the Government was likely to be. He had always looked upon Lord Spencer as the Nathaniel of the Cabinet, and in a speech delivered before the last General Election his noble Friend said— The policy of Mr. Gladstone in 1886 was still to the front, and although they might alter some small details in the Home Rule Bill, he assured them that nothing further would be done. Here were speeches by leading Members of the Government, diametrically opposite to each other; but they, at any rate, served to throw a considerable light on the competence of the Government to give any opinion at all upon this great Constitutional question, because it was quite clear that the retention of the Irish Members changed the Bill from a Provincial to a Federal Constitution; and if there were two things more different from each other than a Provincial and a Federal Constitution he did not know what they were. That was the way the constituencies were treated. Coming to the position in which they were now placed, their Lordships had every reason to believe that the Bill which was to come to them would, in regard to these matters, be drawn on the lines of the Bill of 1886; that it would be a Bill affording no security whatever for individual life, liberty, and property in Ireland—a Bill restricting the Irish Parliament in foreign and various other affairs which might be called Imperial, but it would give no individual security whatever to Irishmen. The nation was thus placed in an extraordinary position. Unlike all Continental countries, we had no written Constitution; and it was, therefore, all the more important that their Lordships should look closely at what was threatened. Almost all countries had some barriers interposed between dangerous invasions at the pass- ing will of chance majorities and our fundamental laws. We had no such barriers, and it, therefore, behoved us all the more to examine what we had. The only thing we had in the nature of a Constitutional Act was the Act of 1700. Anything more simple, and in some respects more grand, than the clauses of that Act did not exist; but it was utterly valueless as a security such as we wanted. It was said, however, that there was the supremacy of Parliament, and that, they were assured, was sufficient security. Lord Rosebery said during the last General Election— I have the greatest doubt whether any Act of Parliament can do away with the supremacy of Parliament over the entire Empire. That was the doctrine held by the Government, and it was held out as an ample security to the people of Ireland, because Parliament could not divest itself of its supremacy. This doctrine of the supremacy of Parliament was a mere dogma, a pure logomachy, and it had no practical bearing on political affairs. They were told to look at the Colonies. But the Colonies were practically independent, and the Crown had no real power of interfering if the Colonial Legislatures should assail individual liberty. They had imposed hostile tariffs against our goods, which the people would say to a man, if they were polled, was an act against the policy of the country. At this moment the Australian Colonies were levying differential taxation; but it was quite obvious that differential taxation, carried to a certain extent, might be confiscation of private property. The Colonial Office knew, however, that if they were to interfere with domestic measures there would be a quarrel, and probably a Declaration of Independence, and no Government of this country would ever fire a shot in anger if any one of our great Colonies set up its independence. Therefore, the doctrine of Imperial supremacy as a security for individual liberty in Ireland was a pure delusion and dream; it was an abstract doctrine which had no reality. There was one Act of Parliament which asserted this supremacy in the strongest terms—the Act which declared that the Imperial Parliament had full power of legislation overall the Colonies in all matters whatsoever. But what was that Act? It was the Act of 1766, which produced the Declaration of American Independence, and that Act might just as well he repealed to-morrow, for it was an absolute dead letter—an Act on which they could not depend for a moment for any security in favour of individual liberty. It had been stated during the past seven years that the Irish Members were to be kept in the Imperial Parliament. That, of course, increased the difficulty; and if the Imperial Parliament was powerless, as he ventured to say it was, even at the present moment, it would still be more so with a separate Parliament for Ireland. But there were methods of securing the liberty of the subject which it would be well for the Government to consider. He recognised the absurdity of the mother of all the Parliaments in the world going elsewhere for examples of Constitutional liberty. It was with a positive sense of humiliation that he had put the present Notice upon the Paper of the House referring to the American Constitution. It was not he, but the Government, who had been so constantly referring to the Constitutions of foreign countries. During the past seven years he had hoard references to Norway and Sweden, to Russia and Finland, to Austria and Hungary, to Turkey and the Balkans, and, lastly, he believed, to Denmark and Iceland. If we had to break up our old Constitution and frame a new one, as the Government wore now doing, and if, above all, we were to frame that Constitution upon a Federal basis, then America must be our great example. In that country personal liberty was the object; that was the great end of the powers of the American Constitution. In this country our fight was formerly against the Crown; in America they were fighting against local majorities. That made all the difference. The Americans had studied Constitutional Law to an extent to which it was never studied in this country. The Stamp Act was passed in 1765, the Declaration of Independence followed in 1766; but the American Constitution was not drawn up until 1787, so that the Americans had 22 years' experience of Home Rule. In other words, they had experience of a system of Government in which 13 separate States retained their sovereignty and independence as regarded all domestic affairs. During almost all that time those States were under pressure from a common enemy. The experience of the Americans during that period was that they were going to the bad; the confederacy was breaking down. It had been breaking down, not merely because it was weak in face of a common enemy, but because, in domestic affairs, they were departing from a great principle of Constitutional Law which the founders of the Republic laid down, and it was this that drove the American Federation to adopt the Constitution of 1787. In regard to the complete failure of the Home Rule system in America, when that Constitution was established, Mr. James Madison, speaking in the famous Federalist of what would have been the state of things if the Home Rule experiment had been prolonged, said— In fine, the world would have seen, for the first time, a system of Government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. And in Kent's Commentaries on the American Constitution occurs this passage— The first effort to relieve the people of this country from a state of national degradation and ruin came from Virginia. And again— The inevitable consequence in every case in which a member of such a confederacy chooses to be disobedient is either a civil war or an annihilation of national authority. Following the experiment of Home Rule, the American States determined to found a Union. They drew up their first Constitution, consisting of only seven Articles. It established a supreme Magistrate, who not merely reigned, but governed. Then there was a supreme law, a supreme Executive, and a supreme Judiciary. Direct relations were established between the Central Government and every city; and every individual citizen of the United States came under the direct protection of the Federal Government as regarded his life, liberty, and property. The Federal Government did not protect individuals through the Governments of the States, but directly through its own Executive and Judiciary. There a machinery was set up which, he was sorry to find, had not been recognised by Her Majesty's Government. They were not going to set up, as was known from their previous declarations, a supreme Executive and a supreme Judiciary; but the people of Ireland were to be left absolutely to the local Government as regarded life, liberty, and property. But, besides that enormous machinery, there was the immensely important declaration that no State should pass any law interfering with the validity of contracts. The Supreme Court of the United States had ruled that questions as to charters of property came under the Federal Government. There had been many cases in which the States had endeavoured to interfere with individual property; but these had been checked in every way. The refusal of Her Majesty's Government to introduce such a clause as was to be found in the American Constitution was owing to the fact that they did not want to protect the property of the individual in Ireland, but to leave that property at the mercy of the local Legislature. The Government said that they did not want to encourage litigation; but that was absurd, because the litigation which had taken place in America showed that the clause was necessary and effective there. In two years after their Constitution was passed the Americans found that the seven original Articles were not enough to protect the liberty of the subject; and they adopted 10 other Articles, forming a Bill of Rights, which gave security for individual property and liberty not against the States, but against the Federal power. So the matter stood until the Civil War of 30 years ago, when three more Articles were added to the Constitution. Mr. Bryce and many others had fallen into a grievous error in supposing that all the Articles 13, 14, and 15, dealt with slavery, and were for the protection of the slaves. Article 14 applied to all persons and secured individual life, liberty, and property against legislation by the various States. Individual life, liberty, and property were not to be invaded by any of the States. Were the Government going to offer to our Irish fellow-subjects any securities comparable to those which were to be found in the American Constitution for their lives, their liberties, and their property? The House had the best reason to believe that they were not, because they knew the lines upon which the Bill of 1886 was drawn, and that no securities of the kind he had indicated were to be found in that measure. He did not know what answer the noble Earl opposite (the Earl of Kimberley) would give him. The noble Earl might say that the Home Rule Bill was being discussed in the other House of Parliament, and was not now before their Lordships, or perhaps he might not think it worth while to answer it at all. The noble Earl, however, might at least tell their Lordships how far he maintained the general principles of the Bill of 1886, and how far the Government were determined to provide for the security of the minority in Ireland. They would know that if the noble Earl declined discussion it was because he did not wish to avow that the accusation involved in the question was a true one. They were all in a very serious position. Much complaint had been made of the violent language which had been used against the Government Bill; but the explanation of what was called violent language was very simple. Men in Ireland felt that this was not merely a political question like the extension of the franchise, or taxation, or any other reform such as had been before Parliament during the present century. What the people in Ireland felt, and what their Lordships felt with them, was that everything which made life valuable was at stake in this controversy. What did Mr. Lecky the historian, a man of absolutely judicial mind, say of the Government's proposal, as far as they knew anything of it? He called it a "a policy of infamy." He was not addressing their Lordships in a passion as Irishmen were entitled to speak, but coolly, looking at the political prospects before them; and he would say that if his accusation was true, if the Government were going to propose a new Constitution which held out to the people of Ireland none of the securities for individual freedom of action which had been the great desire of Englishmen for more than 1,000 years, their conduct deserved all the epithets which had been applied to it. All he could say was, that if the Government were going to propose a Constitution for Ireland which gave no security for the minorities, and if the noble Earl declined to enter upon any discussion of such a question as this, and would give no answer, then in the contest about to commence those who were opposed to Her Majesty's Government would go with confidence to the country, knowing that they could appeal with confidence to the hearts and consciences of the British people.

THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OF STATE FOR INDIA (The Earl of KIMBERLEY)

My Lords, the noble Duke has made, as he always does, an interesting speech; but I should have listened to it with still greater interest if it had had any practical end. My noble Friend knows as well as possible that I am not in a position to give answers about a Bill that is now before the other House of Parliament. Nothing can be better established than the sound usage that when a Government makes a proposal in one House in the shape of a Pill the other House should wait until the Bill comes before them for discussion. The noble Duke has spoken as though the principles of the Bill were unknown to him, as if the Bill were not known to every one of your Lordships and to every person in the country—

THE DUKE OF ARGYLL

said, that he did not know how the Bill stood at present in the least degree.

THE EARL OF KIMBERLEY

I cannot imagine that my noble Friend has not read the newspapers; but, if he has not, I should recommend him to make himself acquainted with the reports of the Debates in the other House in connection with that measure. The Bill has not passed through all its stages, and we do not know what its final form will be, but we know in what shape it was first proposed; and if this were the proper time and place for me to do so, I, as a Member of the Government, would be perfectly prepared to discuss and defend it. But until the proper time arrives, and the Bill comes before this House, no noble Lord shall extract any statement with regard to the measure from me. My noble Friend says that if I decline to discuss the Bill, or to give him an answer, he will suppose that I hold, and will take that refusal as an avowal of, certain opinions. When the time comes I will avow my opinion. I will not conceal anything. I know perfectly well that when the Bill comes before your Lordships' House it will be strongly attacked. There are many noble Lords—my noble Friend among them—ofgreat power of speech and great eloquence who are certain to bring before us all the arguments which can be brought forward, and then it will be for myself and my Colleagues to meet that attack in the best way we can; but I do not intend to anticipate that time by a single moment. The noble Duke has pressed upon Members of the Government their former utterances. One might almost have supposed one was in a church, and was being preached at. In the course of the last seven years a great variety of speeches have been delivered upon the subject of Home Rule, not only on this side but on the other, and many of those speeches have been not only violent, but virulent, and in many of them the speakers have expressed opinions directly contrary to what they now say; and if one were to pass one's time in taunting them with what they have said we should not advance business one whit. We have practical business in hand. I admit that everything that can be brought forward against the policy of the Government is useful in the proper time and place; but I do not think there is any advantage in carrying, as it has boon carried, to an extreme extent the more bandying backwards and forwards utterances that were made long ago. The question with which we shall have to deal at the proper time is the justice and propriety of the measure which Her Majesty's Government have laid before Parliament, and when that measure comes before this House will be the proper time for me to answer the arguments which may be brought forward against it by noble Lords opposite, and not now, when it would be entirely contrary to the usages and practice of Parliament. Therefore, at the present time, I must entirely decline to answer the question of the noble Duke.

THE DUKE OF DEVONSHIRE

My Lords, it is certainly difficult and probably impossible to carry on a dis- cussion on such a matter as this, when one of the parties to the controversy absolutely declines to take any part in it. It might, however, have been convenient to the House and of advantage to the country if, without entering into the discussion of any details with regard to the measure now before the other House of Parliament, a Member of the Government had availed himself of the present opportunity to express the opinion of the Government upon one of the most vital principles that could come under discussion—namely, whether security is to be given to the minority in Ireland for the protection of their lives, liberty, and property. Her Majesty's Government might have given us some assurance upon this point without committing themselves to details. It is important that before we come to discuss the measure we should form for ourselves, and assist the country to form, some clear idea of what the present position under our constitution is for the security of life, personal liberty, and property, and in what matter that provision is likely to be affected by any such changes as are about to be proposed. The noble Duke has stated some of the provisions which the Constitution of the United States contains for the protection of liberty and property. We are all aware that our Constitution contains no such elaborate provision. The sole and only security which our system of Government provides is the authority and action of the Imperial Parliament. The necessary conditions are the enactment of just laws; an independent, upright, and impartial Judicature; and an Executive Government having the power to carry into effect the decrees of the Judiciary. Every one of the powers of the Executive comes from Parliament, and Parliament alone. It is Parliament which directly makes the laws under which we live, and which is responsible for the justice or injustice of them. It is Parliament which effectually controls the character and constitution of the Judicial Body. It is Parliament which directly controls the action of the Executive Government, whose duty it is to carry into effect the decisions of Parliament. The sole security which we at present possess—and the ample security, as I believe it to be—isthe power and authority which Parliament possesses, and the spirit and temper in which it exercises that power. I do not say that this is the most perfect system of securing the liberty and freedom of a people which can possibly be devised. It may be theoretically inferior to that of other countries with written Constitutions, such as the elaborate system possessed by the United States. But, speaking generally. I believe that we may say that during our experience, and during our recent history, the security which we possess for the exercise of our personal liberty and for the enjoyment of one property has been found to be adequate and sufficient. It may be questioned, and has been within recent years, whether, under the present system, the people of Ireland, during the administration of what were called the Coercion Acts, have enjoyed adequate personal protection. Noble Lords on the Ministerial side of the House and their friends have considered that the rights, and liberties, and personal freedom of individuals were unjustly interfered with by the laws passed by Parliament. But the action of the Opposition at that time was entirely confined to influencing the specific action of Parliament, and, through Parliament, the action of the Executive Government. No one has ever suggested the adoption of any other securities for the protection of individual liberty, or than those which we possess in the supreme and unquestioned authority of Parliament, Undoubtedly, the Bill of 1886, and, as far as we know it, the measure which is now proposed, will, as regards Ireland, alter and modify materially the character of the securities, for personal freedom and protection of property which are now possessed by the Irish people. The powers now exercised by the Imperial Parliament would, under such provisions, be vested in an Assembly of another and admittedly an inferior character, with more limited powers and authority than the Imperial Parliament. Surely, before we come to the discussion of the details of the particular measure, it is important for us to consider whether those rights and privileges of individuals in the matter of personal liberty and security for property will be, under any arrangement which can be proposed, so adequately guarded as they have been under the safeguards provided by the authority of the Imperial Parliament. Under the Bill of 1886 the Irish Parliament could alter the laws which regulate these matters. They could appoint the Judges and regulate the constitution of the Judicial Bench; and, more important than all, the Irish Parliament were left to appoint and control the Irish Executive. Will it be said by anyone that a minority in Ireland, under such a system, will possess the same amount of protection in the matter of personal liberty and property as it possesses now, when it can appeal, not to an inferior authority, but to the Imperial Parliament? The change which it was and still is proposed to make is a change of precisely the same character as a proposal that the enactment of the laws affecting our personal liberty and property should be placed in the hands of the London County Council, or of any other Municipal Body in the United Kingdom, and that the appointment of the Judges to administer the laws and the control of the Executive to carry them out should be entrusted to the same Body. Would any one of us have the same confidence that we should enjoy our liberty and security, and that our rights would be amply and effectually preserved, if we were placed under the sole authority of any Local Body whatever, as we have now when the laws are made, the Judges appointed, and their decrees enforced by an authority responsible to Parliament and to Parliament alone? Under those circumstances, it does not seem to me superfluous that with respect to a change, whether for good or for evil, of so wide-reaching and momentous a character, affecting the personal liberty of every individual in Ireland, we should consider, before we come to deal with the details of the Bill, whether in any change that we are going to make we ought not to keep to those safeguards which have been found essential by the people of the United States; whether, by the creation of a Judicial Body independent of the will of the Legislative Assembly, additional security may be found for the uprightness and independence of the Judiciary; whether it is possible, as in the United States, to separate, to a greater or less extent, the Executive authority from the Legislative authority, or whether we are to rely solely upon the Legislature and have a Judicature and Executive dependent on the good pleasure of that Legislative Body, which will be admittedly of an inferior character to that which now possesses the power. Though it would have been useful if Her Majesty's Government had been disposed to follow the noble Duke in the discussion he has raised, I do not propose myself to go into any of the analogies which he has brought before the House. I believe that, unless the Government are prepared to propose and Parliament is prepared to adopt changes of a still more far-reaching description than those which have been already proposed, it will be impossible, under, any scheme for establishing a separate Legislature and Executive for Ireland, to afford to the people of Ireland a security for the safety of their liberty and property as good as that which they now possess. I believe that whatever provisions may be introduced, founded upon the analogy of the Constitution of the United States, or that of Continental States, we shall never be able to give to the minority of Ireland as good and complete security as that which they now possess in the supreme authority of Parliament. A discussion, however brief, would have been of value in helping to draw the attention of the people of this country to the vast magnitude and importance of the change proposed. This change, I think it will be admitted, is mainly founded upon the necessity for some administrative alteration in Ireland; but when it, comes to be seen that this change—mainly proposed for administrative purposes—involves fundamental alterations in the security which every subject of the Crown in Ireland possesses, then I think the country will be disposed to question whether, without any adequate precautions, it is desirable to introduce such a change at all. Without going in to details, there is one observation which I think I may lay before your Lordships. The Lord President has said that the provisions of the present Bill are entirely within our knowledge, and that it is mere affectation to profess to ignore them. I will not deny that we know the present proposals in the Bill, and we know that Her Majesty's Government think it necessary, for the purpose of affording due security for life, liberty, and property, to introduce some restrictions upon the legislative power of the Parliament which they propose to establish in Ireland. Well, that admission shows that, at all events in their opinion, the Irish Parliament, and consequently the Government which will be dependent upon the Irish Parliament, is not one to which, without duo protection, the lives, liberties, and property of the minority in Ireland can safely be entrusted. But it may be said that after the emancipation of the Negroes in America the United States made Constitutional Amendments which solely dealt with an additional restriction upon the legislative powers of the States, and that, therefore, we were simply following the precedent set by the United States in introducing these legislative restrictions upon the Irish Parliament. That answer, if given, would be a totally inadequate answer. The legislative restriction imposed after the War of Secession upon the action of the State Legislatures was amply sufficient for the purpose, because the Constitution of the United States already contained adequate provisions for securing the independence of the Judicial Authority, and also the independence of the Executive. It is not sought to introduce into this measure any similar provisions for the authority and independence of the Judicial Body or of the Executive Body; and, therefore, the restriction which is merely placed upon the legislative action of the Irish Parliament has no value whatever, will give no real protection, and can only be a delusion so long as no steps are taken in order to secure the other two protective provisions necessary for the restriction of the legislative powers of the Irish Parliament. I regret that the Government have not thought it worth their while to enter upon what I think might have been a useful discussion, and need not necessarily have been of a highly controversial character, on a point upon which it is so important we should have some clear idea before we enter upon the full discussion of a measure which is itself so important. Considering, however, the action which Her Majesty's Government have thought it proper to take, I doubt very much whether it would be in your Lordships' power to prolong to any great length the discussion which the noble Duke has initiated.