§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (LORD BIRKENHEAD)
My Lords, in discharging the duty which falls upon me to-day of asking the House to give a Second Reading to a Bill to make provision for the restoration and maintenance of order in Ireland, it appears to me that the greatest service I can render will be to give a brief explanation of the proposals which are contained in the Bill.
1022 I may, however, preface such explanation by dealing with one general criticism of the proposals which was made by one speaker in the debate on Irish affairs which took place in this House a short time ago. The usefulness of this Bill, if my memory serves me right, was disparaged by the observation that it did not meet the real difficulty with which we are to-day confronted in Ireland, and it was suggested that the real difficulty is that you cannot discover, or render available, the necessary evidence to secure convictions; and it was asked, What is the use of a Bill which will vary and render more drastic the method of procedure if you are forced to admit that you cannot by any Bill render available for the purposes of giving evidence witnesses who are at this moment victims of intimidation?
As far as that observation goes, it is well founded, but its legitimate scope is strictly limited. We cannot, indeed, by legislation cure all the mischiefs with which we ere confronted to-day in Ireland, but we can, by legislation—or so at least the Government believe—deal with one particular form of the mischief, and it is our object and our only object in bringing forward these proposals to deal with the limited but extremely important class of cases in which the mischief is not that the witnesses are not available, but that you cannot procure tribunals who will give an honest and fearless decision. It is not by any means true to say that in any of the cases which are pending before the Courts to-day, or which in different circumstances could and would and ought to be brought forward, our only difficulty is that of the intimidation of witnesses or of juries. There are many cases which are awaiting trial to-day and which ought to be tried, in which, if we are once secure in the possession of fearless and impartial tribunals, there will be no difficulty in procuring the convictions which the evidence not only justifies but requires.
At the present moment the intimidation with which your Lordships are somewhat familiar, has spread until it has infected the jurymen. This has seldom happened in our history, but it is the fact that menacing and deliberate messages are sent today to those who are discovered to be upon the jury list, warning them that attendance for the purpose of discharging their duties will involve those who so attend in peril of their lives. The result is that there are many persons at this moment awaiting 1023 trial in Ireland who are entitled, as every man accused of crime is entitled, to have their cases pronounced upon at the earliest possible moment, who cannot be tried and are being detained in custody for the simple reason that the legal machinery of criminal trials in Ireland cannot be made effective.
It is the object of this Bill—which I hope, in the exceptional and urgent circumstances in which we are met, your Lordships will pass through all its stages to-day—to provide a method by which all these and similar matters may be dealt with. It will, I hope, be a sufficient recommendation of the Bill that the Irish Executive is convinced that, proceeding as the Courts proposed to be set up will proceed under the strictest rules of legal evidence, there are many cases of outrage, murder and attempted murder which have engaged the attention of the authorities in regard to which it will be possible, with the aid of an impartial tribunal, to reach a decision upon the evidence which is forthcoming.
If your Lordships will be so good as to follow me while I deal with the provisions of the Bill I will attempt a very short explanation of them. Section 1 (1) provides that where the Government is of opinion, having regard to disorder existing in a particular district in Ireland, that the ordinary law is inadequate, the King in Council may issue Regulations under the Defence of the Realm Consolidation Act, 1914, for securing the restoration and maintenance of order in Ireland. That, of course, is a proposal which enables Regulations made under the Defence of the Realm Consolidation Act to be perpetuated as long as the existing state of affairs in Ireland continues. There is a proviso to the far-reaching effect that all such Regulations shall be laid before both Houses of Parliament as soon as may be after they are made, with the consequent provision that if an Address is presented to His Majesty in either House praying that a Regulation may be annulled it shall be so annulled.
Subsection (2) provides that the provisions of the principal Act with respect to trial by Courts-Martial or Courts of Summary Jurisdiction, and the punishment of persons committing offences against the Defence of the Realm Regulations, shall extend to the trial of persons alleged to have committed, and the punishment on conviction of persons who have committed, crimes in Ireland, whether before or after the passing of this Bill, including 1024 persons committed for trial or against. whom indictments have been found. The object of that subsection is to cover the case of persons against whom these charges are made. There is a proviso that any crime, when so tried, shall be punishable with the punishment assigned to the crime by statute or common law; making it plain that no special penalty will be within the competence of these Courts. It is provided, in the second place, that when trying a person charged with a crime punishable by death, the Court-Martial shall include as a member of the Court one person (who need not be an officer, or, if an officer, need not possess such qualification as is mentioned in subsection (3) of Section 48 of the Army Act)—that qualification involves the tenure of a commission for twelve years—nominated by the Lord Lieutenant, being a person certified by the Lord Chancellor of Ireland or the Lord Chief Justice of England to be a person of legal knowledge and experience. The result of that provision will be that any Court-Martial which is trying a person on a capital charge will have, as a member of it, a person who may or may not be an officer but is possessed of special legal knowledge.
§ THE MARQUESS OF SALISBURY
What is the reason for the Lord Chancellor and the Lord Chief Justice of England figuring in this subsection?
§ THE LORD CHANCELLOR
I will give your Lordships the reason for the insertion of that provision. Whether it is right or wrong I do not know, but I specially asked that my name should not be inserted, for the simple reason that I have taken a very large Parliamentary part in these matters and I thought it was on the whole preferable that my noble and learned friend the Lord Chief Justice of England should appear in my stead.
§ THE MARQUESS OF SALISBURY
It is not quite that. The point I ventured to put to the noble and learned Lord on the Woolsack was why there should be two authorities, one English and one Irish.
§ THE LORD CHANCELLOR
The reason is that it was thought desirable that members of the Irish Bar, having with great public spirit utterly declined to appear before the Sinn Fein Courts, should be allowed such opportunities of 1025 employment as this subsection affords. But it was thought right to make provision for the contingency that a sufficient number might not be available from the Irish Bar. In subsection (3) it is added that Regulations so made may also provide that a Court of summary, jurisdiction, when trying a person charged with a crime or with an offence against the Regulations or when hearing and determining any application with respect to a recognisance, shall, except in the Dublin metropolitan police district, be constituted of two or more resident magistrates, and that a Court of Quarter Sessions, w hen hearing and determining an appeal against a conviction of a Court of summary jurisdiction for any such crime or offence, or against an order made on any such application, shall be constituted of the Recorder or County Court Judge sitting alone. That is a very intelligible subsection.
Let me add a word as to its object. The intimidation which has been applied to jurymen has also been applied to many ordinary magistrates and has proved equally effective. The result is that it is impossible to deal with many cases which demand immediate treatment, and it is proposed that these powers should he given to two or more resident magistrates, except in the case of the Dublin metropolitan police district where the difficulty has not yet made itself felt. It is provided in paragraph (b) that the regulations may confer on a Court-Martial the powers and jurisdiction exerciseable by justices or any other civil Court for binding persons to keep the peace or be of good behaviour, for estreating and enforcing recognisances, and for compelling persons to give evidence and to produce documents before the Court. That paragraph only means that if you establish a substitute tribunal you must give to that tribunal powers which are necessary to enforce respect to its procedure.
Paragraph (c) empowers persons authorised to summon witnesses to issue warrants, and paragraph (d) imposes fines. Paragraph (e) authorises the conveyance of persons who have been sentenced, and paragraphs (f) and (g) deal with matters of relatively less importance. Paragraph (h) authorises the trial without a jury of any action, counterclaim, civil bill issue, cause, or matter in the High Court or a County Court in Ireland which, apart 1026 from this provision, would be triable with a jury.
Paragraph (i) requires a moment's explanation. It says that the Regulations so made may provide for the retention of sums payable to any local authority from the Local Taxation (Ireland) Account, or from any Parliamentary grant, or from any fund administered by any Government Department or public body, where the local authority has in any respect refused or failed to perform its duties, or for the purpose of discharging amounts awarded against the local authority in respect of compensation for criminal injuries, or other liabilities of the local authority, and for the application of the sums so retained in or towards the purpose aforesaid. It is well known to your Lordships that many local authorities have declined to issue a rate to meet the burden imposed for compensating those who have suffered as the result of outrages. Such are the important proposals of this Bill. It is a drastic Bill but it is a necessary Bill, and I am persuaded that your Lordships will not be unwilling to accelerate its progress through this House.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
A PRIVY COUNCILLIOR (standing on the steps of the Throne)
If you pass ti Bill you may kill England, not Ireland.
Cries of "Order!" "Order!"
§ LORD SHANDON
My Lords, any criticism I desire to make is purely of a legal character. I do not propose to discuss the question of the necessity for or the effect of this Bill, but I wish to direct your attention to some purely legal considerations which I think are worthy of attention. The noble and learned Lord on the Woolsack has stated that this is a drastic measure. From the point of view of any constitutional lawyer it is indeed a drastic measure. The effect of the Bill will be to give to the Irish Executive power to do what under Continental systems is known as "proclaiming a state of siege." There is no difference. There is a power to suspend ordinary tribunals; the military authorities are given jurisdiction over civilians, and there is a removal of jurisdiction from various Courts which has been traditional for many years. The Bill gives this power to the Irish Executive in a manner not only never subject to 1027 experiment in England but not even recognised in Continental jurisprudence.
Subsection (2) of Clause 1 was mentioned by the Lord Chancellor. Its object is to safeguard against what otherwise might have been the result of passing the Bill as it stood in its original form. There is nothing in the Bill limiting its operation in point of time. The powers given to the Irish Executive extend over the whole area covered by the Defence of the Realm Act, 1914; and other matters are added, notably the subsection which provides for Regulations to be made giving "such incidental, supplemental, and consequential provisions as may be necessary for carrying out the purposes of the Act." It would be difficult to frame wider language than is used in the Bill.
With regard to procedure, let me take France as an example. Your Lordships will find it in the Act of the French Legislature of 1878. The procedure is most particular and careful. In the first place it is enacted that when a state of siege is proclaimed it shall only be proclaimed by an Act of the Assembly. It must contain a definite date for ending, and when that time for ending comes along there is no power—the Code is so expressed—to keep it alive, except by passing another Act of the Constituent Assembly. A state of siege arises in two cases: one, where there is a foreign war, and the other where there is armed rebellion against the civil law, which I take it would be the case in the present state of affairs— in that latter case, and to that latter case I am solely directing your Lordships' attention, the procedure is as I have stated. There is a limitation of time, and when the time comes the law disappears unless there is an extension by Act of the Assembly. If there should be a difference of opinion between the Senate and the General Assembly, the Act must disappear, because the two Houses do not concur.
We have a procedure somewhat similar with regard to other Statutes. It is the procedure by means of the Expiring Laws (Continuance) Act. That procedure is closely analogous to the procedure of the French nation when putting in force drastic powers such as the present. That procedure has worked in the past with regard to a vast number of Irish Statutes for the purpose of exceptional legislation for preserving the peace. It has, however, been abandoned in this particular instance.
1028 It is quite true, as the noble and learned Lord has pointed out, that the Proclamation is to be laid on the Table of the House, and that either House may move for its rejection; but, my Lords, that is a totally different state of things, from the legal point of view, from that which has been adopted hitherto in this country, with one exception, and certainly in France. The objection to it is this, that there is vested merely in the Executive authority, even though it may be subsequently controlled, the power of putting this extraordinary (I speak in the technical sense) legislation into operation, and although there is power to object to the Proclamation, the power which creates the Proclamation is to remain, and apparently it is to remain indefinitely.
If that be the construction of the Statute, then I think you are employing methods in excess of what would be necessary, no matter how bad the state of affairs in Ireland. I said there was one case in which similar procedure was adopted, and that proceeding was in the Crimes Act of 1887. In that case there are also Proclamations which, with regard to procedure, do suspend the ordinary law, and they can be criticised, I think, speaking from recollection, in the same way. The two Statutes are totally different. In the case of the Crimes Act of 1887 the whole object was the setting up of civilian tribunals and civilian tribunals only, which would have the jurisdiction conceived to be necessary for the preservation of order; but even in that case a right of appeal was given, either to the ordinary tribunals, or, in the case of recognisances, to a special Court. Can any situation, having regard to the state of English law and to our views of the law, necessitate the provision in the first clause. It seems to me—I speak with all the prejudices which lawyers have in connection with those matters—not to be necessary.
It does not stop there. The next subsection to which I direct your attention is that under which Courts-Martial are to be set up. The Courts-Martial are to be constituted, as I understand, under the Army Act, and undoubtedly it was stated that those officers who would be selected would be officers of experience and reliability. Presumably—and I gather it specially from the observation of the Lord Chancellor—these Courts will be set up in very large numbers to meet the 1029 present situation, and it will require a fairly large number of additional civilian lawyers to take part in them. I do not profess to have any very special knowledge with regard to the composition of these Courts-Martial, and if any member of the House has been the service I accept correction from him in the matter, but I am under the impression that although the desire of the Army authorities is to get the best tribunal that can be obtained, in the hurry and trouble of military operations it is not possible to do so at all times, and you may, with the best intentions in the world, not have that authority and skill which up to the present the law has required when men are tried for capital offences. I do not for one moment suggest that I think any member of a Court-Martial set up in this country would willingly act contrary to what he considers just; I am merely emphasising, as well as I may, the extraordinary alteration which you are making in the law, which up to the present we have revered as one of the most admirable matters in connection with our Constitution.
It is provided further that Courts-Martial arc to have jurisdiction exercise-able by justices or any other civil Court for binding persons to keep the peace or be of good behaviour, for estreating and enforcing recognisances, etc. This jurisdiction, I think it probable, is one of the most ancient which we possess with regard to enforcing the observance of the peace. Up to the present I am not aware that in England or in Ireland that jurisdiction has ever been handed over to the military authorities. A provision, I think, was inserted in the Crimes Act, 1887, by which special tribunals could exercise that jurisdiction, but they were civil and not military tribunals. Nor, my Lords, can I see the necessity for it. It is no part of my argument to show what else might be done. I should at the same time wish to indicate that there are other methods possible, which, from the point of view of the Government, would be equally effective and at the same time would not violate our Constitution. With regard to the jurisdiction of binding to the peace, it has been entrusted in the past to resident magistrates, and it seems undesirable and unnecessary that that jurisdiction should be suddenly given to Courts-Martial.
With regard to the Courts-Martial themselves, I suggest that before adopting them 1030 and before handing over to them this enormous power over civilians, every method should be exhausted for the discovery of an alternative tribunal. It was suggested in another place that it was not thought right that the Irish Judges should be constituted into special Courts. I say nothing about that. It may be it is so. There may be many reasons why it should be preferable not to constitute a Court of the ordinary High Court Judges, but seeing that the idea has been adopted of creating certain gentlemen members of the Courts-Martial if they have that necessary experience which the Bill desires, there is no reason, I suggest, why it would not be possible to get such tribunals that at any rate the civilian view would be more likely to operate.
When I say "civilian view," I deprecate any unfair criticism of military tribunals, but there is no doubt whatsoever that a civil tribunal, with its traditions of special law and traditions of liberty of the subject, has unquestionably an atmosphere quite different from that of the military tribunal which is specially convened for the purpose of dealing with disorder. And—here is a very interesting part of the Bill—those who have themselves come into collision with the civilians will be the necessary witnesses. It is not the same tribunal but it is the same authority which is not only operating to keep order but which has also to adjudicate on the individuals who have been taken into custody. Anything which could have avoided that would seem to me to have been desirable— not that it is my view that this Bill was, in its general form, desirable. I rather take the view, which is shared by many of varying politics in Ireland, that it may not prove sucessful, but I ant merely criticising it from what I conceive to be the purely legal standpoint.
The next provision to which I respectfully take exception, and which, I think, certainly could have been avoided, is the power authorising Court-Martial to inflict fines. That, however, is only subsidiary and would follow from the transfer to them of the judicial powers which are given in the earlier part of the Bill. Another provision which, in my opinion, has also gone somewhat in excess of what is reasonable in any view of the Statute, is paragraph (i) of subsection (3) of Clause 1—provide for the retention of sums payable to any local authority from the Local Taxation 1031 (Ireland) Account, or from any Parliamentary grant, or from any fund administered by any Government Department or public body, where the local authority has in any respect refused or failed to perform its duties, or for the purpose of discharging amounts awarded against the local authority in respect of compensation for criminal injuries…I may have misunderstood the speech of the noble and learned Lord, but I think he drew attention only to the latter part of the parargaph which I have read, with regard to compensation for criminal injury, as being the object of the paragraph.
But it goes far beyond that. The portion which enables money to be withheld extends to bodies which have refused, or failed, to perform their duties. What "refusal" or "failure" may be is not defined in the Bill. The judge of it must be the Government authority which decides to withhold the grant. I do not at all suggest that members of the Government will act in any way except, as they consider, reasonably, but even Government Departments are liable to error and may take too wide a view of the operation of this paragraph with regard to the retention of the money for the purpose of paying awards for malicious injury. The object of that is quite apart from, and quite outside, my present criticism. It has merely to provide the money which the local authorities refused to provide, as the noble and learned Lord explained, but with regard to the other matters the situation seems to me to be quite different. These moneys do not represent English moneys. They are moneys which the Irish bodies are entitled to get in relief of various forms of taxation. If they are not given to those Irish bodies the demands will have to be met by taxation in some other form, and we shall then be face to face with the old objection that we are punishing the innocent and not the guilty, because the taxpayers who have to bear the burdens and who—I say it with some confidence—all over Ireland still represent a majority who are against outrages and against evil-doing, are the people who will suffer. If it was necessary or desirable that this should be done it would be another matter, but, as I said, these moneys are only returns, by means of fiscal processes, of cash which has been raised in the ordinary course from Ireland and in respect of which there is a large excess over Irish ordinary needs.
The next matter in which it seems to me the Bill may unnecessarily change the 1032 law at the will of the Executive, controlled, of course, in the manner I have mentioned, is with regard to inquests. It is proposed that all inquests in future shall be held by Courts-Martial. I quite take the view, of course, that inquests have broken down for the same reason that other tribunals have broken down in Ireland. I am not discussing that at all. I am simply discussing the necessity of transferring this power from, I think, the most ancient civil authority and Court in our Kingdom to a body which certainly has not had a very large experience in connection with such matters. There was, I think, at one time a legal view that possibly Justices of the Peace in the old days might exercise the functions of coroners. You have got paid Justices of the Peace upon whom unquestionably you can rely. Why then hand over this civil jurisdiction to the military authorities, when you have civilians who are quite capable of discharging the function? The reason I direct criticism to this point is that this portion of the Bill seems to me to raise a very big Constitutional question, and I do not like, even with regard to one Bill, that we should tamper with the ancient Constitution of the Kingdom. I would remind your Lordships of a very singular analogy with regard to the French Court. The same question arose in Algiers and they met it with the provision in the case of Algiers that where communication could not be easily obtained the Governor might exercise temporarily the functions which the Assembly otherwise would have exercised.
As I have said, this is an enormous change with regard to a portion of the British Isles which, under the Act of Union, is a constituent part of the great body which, in theory at any rate, controls the working of the British Empire. It has been pointed out in many quarters that the situation is so delicate that there should be the most scrupulous avoidance of anything which might tend unnecessarily to exacerabate the situation. I have pointed out many things which seem to me to err against that view, and I should have failed in my duty to the House if I had not done so.
§ LORD MORRIS
My Lords, I should like to say one or two words in relation to the measure now before the House. I regret exceedingly that I was not here a little earlier so that I might have had the advantage of hearing those who preceded 1033 me in the debate. I say at once that I intend to record my vote against the principle contained in this Bill. I can conceive of nothing more vicious and nothing more likely to perpetuate the troubles that we are now suffering from in connection with the Government of Ireland. There is no more vicious principle than ex post facto legislation, and that is what I take this to be. The effect of this Bill will be to try parties for the commission of offences under a procedure which did not exist when the offences were committed, and it may come back, probably in another shape and at another time, upon those who are responsible for it, and may be used as a precedent by those who succeed us.
It might be well for me to say now that I am entirely in accord with those who last week in this Chamber propounded the policy of the very largest and broadest measure of Home Rule for Ireland. Anyone who will read the debate on that occasion— I think it was on Thursday —and will note the words of Lord Salisbury, who went out of his way to emphasise the fact that he did not speak merely for himself but for others, and will also note what the Earl of Midleton said, will conclude that a very great change has taken place in regard to the question of giving Ireland the right to look after her own local affairs.
§ THE MARQUESS OF SALISBURY
There is nothing that I said that could lead the noble Lord to that conclusion.
§ LORD MORRIS
I am very sorry if I have misread the debate and the remarks made by the noble Marquess, Lord Salisbury, on that occasion; and I shall be very clad indeed to take back the words that I said in regard to him, especially when I have time to make reference to the debate. I have always been in favour of Home Rule for Ireland, but not of a Home Rule that would in any way lessen the British connection. I am an Empire man, I believe in the British Empire, and it is because of this that I want to see peace in Ireland.
Where the mistake is made is that too many think that the Irish, and those who represent them, ask for something very novel and very new. As a matter of fact they are asking only for what the Nationalist Party, which stood for Nationalism and Home Rule for Ireland by constitutional 1034 means, asked for, and for something that this country twice decided that they should have, and which this Chamber—I think on more than one occasion—voted against. The great Liberal Party of England, led by Mr. Gladstone (the greatest friend that not only Ireland but every other country which needed reform ever had), on more than one occasion decided to give Home Rule. Even to-day it may not be too late to bring about a settlement between the North and the South. The case of Ireland is entirely different from that of any other country. It is entirely different from the case of Poland, or of the Union of Scotland or any other Union, because it has been held by the highest constitutional authorities in this country that the Union of Ireland with this country was brought about by fraud. That is a very bold statement to make, but great constitutional authorities have said that if the document could have come before the Courts of England it would have been set aside for fraud.
The struggle that is proceeding in Ireland to-day is a struggle that has been going on, as was stated in this House last week, for more than 120 years. Some persons endeavour to make out that it is purely a religious affair, and that Home Rule is wanted by no one in Ireland except by Roman Catholics. Nothing could be further from the fact. This is really a Protestant movement. The man who stands highest to-day in the memories of the Irish race is Robert Emmet, the son of an Anglican clergyman. Moreover, Isaac Butt, who founded the Home Rule Party, was a Conservative and a Protestant; and Parnell, educated in the University of Cambridge, was a Tresbyterian; while Gladstone, the man who disestablished the Irish Church, and the great reviewer and historian Macaulay, who stood for Home Rule, were also Protestants. It is well to understand, therefore, that this is a great constitutional movement in Ireland. The trouble in that country to-day is not a mere novelty or something new.
I listened with a great deal of interest to the very able address of the Duke of Northumberland on this question last week, and, with those who took part in that debate, I also wish to say that I do not regard the. trouble in Ireland as entirely the result of Bolshevism. Lord Shandon, who took part in the debate on 1035 that occasion, did, I think, incline to that way of thinking. I have a very high regard for his opinion on that matter, but my own view is that once the treaty was broken —the treaty made between Redmond and the Government of this country—there was born the present trouble in Ireland. A solemn treaty entered into between the Government and Redmond was broken, and that led to the wiping out of the Nationalist Party and the birth and election of the Sinn Fein Party.
I have no sympathy whatever with the Sinn Fein Party or any other Party who would endeavour to bring about a constitutional change by the shedding of blood. I hate and loathe and abominate force in every shape, but one has to be careful, and upon a very close study and analysis of this whole movement it may be found that the misguided people who are now urging on Sinn Fein to commit these abominable crimes find precedents for what they are doing in what was done in the past by those who occupied high positions in this country, and who were prepared to organise in order to defy Parliament. The trouble is that too many assess these people too highly. We take them at their own valuation. Personally I believe that Ireland to-day, even with all its troubles and difficulties, might be united if a generous and full measure of Home Rule were offered by those who are responsible for the Government of that country and who are able to carry out their promise. An entirely new dawn would then break over Ireland.
I do not believe in this measure for the reasons that I have already given. It is ex post facto legislation; it is dealing with parties 'and with crimes that were committed when an entirely different class of procedure existed. You have no right to pass a law to punish a person for an offence by a procedure that did not exist when that offence was committed. That is the principle I lay down. Further, in another place very strong argument was put forward that this Bill should be of a limited character, and should not be placed permanently on the Statute Book. I appeal to the Lord Chancellor, who I understand has this Bill in charge, whether it would not be wise to show that this is not intended to be permanent but that it is only intended to deal with cases as they arise from time to time; and, further, that this Bill should not apply to any case 1036 that has occurred, or that will have occurred, previous to its becoming law.
§ THE EARL OF MIDLETON
My Lords, I think the closing sentences of the noble Lord's speech will have been not only very surprising to your Lordships, but will appear in rather a surprising manner to himself when he reads them to-morrow morning. Does the noble Lord really propose that the crimes committed, let us say, yesterday—grave crimes—should remain unpunished because it has been discovered that no jury can be empanelled and that they cannot be tried?
§ LORD MORRIS
No; I would punish them immediately, but not under a law that you are going to pass to-morrow.
§ THE EARL OF MIDLETON
But the noble Lord knows from the statement of the Lord Chancellor that in those circumstances they cannot be punished, and therefore he desires that they should go unpunished.
§ THE EARL OF MIDLETON
The noble Lord talks—with great respect to him—as if the object of the Bill was to create things which had not been offences before into crimes and then to punish them under a new Act. This, as I understand it, is purely a Bill brought in because, as the Lord Chancellor explained to your Lordships on Thursday, the state of crime in Ireland was unprecedented in any country that he knew of, and presented more difficulties than had ever faced the Roman Empire. I am not father to that statement, but if the Government in their responsible Minister come down and make statements of that kind I confess I am astonished to hear a man who has been Prime Minister of one of His Majesty's Dominions urging your Lordships so to emasculate the Bill that it would leave unpunished all those who have been guilty of these grievous crimes
§ THE EARL OF MIDLETON
I have risen merely to ask the noble and learned Lord whether he can give us, in his reply, some guidance as to the scope of the Bill 1037 beyond what he has done up to the present moment. Your Lordships will have gathered, from the speech he has addressed to us, his entire determination that the law shall be restored; and the Prime Minister, by successive speeches, has declared that under no circumstances will His Majesty's Government allow any steps to be taken towards Ireland becoming a republic. My Lords, there are evidences that although no republic has been established, Sinn Fein has been clothing itself with a great many of the attributes of a republic. I want to know whether the noble and learned Lord will tell us if it is proposed not merely to use this measure for the prevention and the punishment of crimes, but whether the attempt to set up republican courts opposed to His Majesty's Courts and intended to replace them will also come within the scope of the Bill.
The Lord Chancellor mentioned that jurymen could not be obtained. I have heard within the last few days—not from the county with which I am connected, but from various counties —that notices, one of which I hold in my hand and which I propose to read without giving any names either as regards the persons who signed it or the persons to whom it is addressed or the county to which it refers, have been issued. I an anxious to ascertain the attitude of the Government with regard to it. The notice to which I refer is as follows:—Sir,—As directed by the guardians of this union at their meeting, I beg to forward to you the enclosed copy of a resolution passed by them.I am, Your obedient Servant,Clerk of the Union.Proposed by [...] seconded by [...] That we, the elected representatives of the people of [...] District, call on all persons holding offices of commissions of the peace to resign their offices immediately in view of the fact that the Irish Republic is established and has appointed republican justices. A copy of this resolution to be forwarded to all British J.P.'s in the district.I want to ask the noble Lord whether the persons who move such resolutions and sign such orders, ordering His Majesty's justices to resign and informing them that they are acting in contravention of the law of the Irish Republic, would be made amenable under the scope of this Bill.
I have only two other observations with which to trouble your Lordships. I have over and over again in this House, speaking 1038 on behalf of those with whom I am associated, urged upon the Government that the opposition to law and order in Ireland was going at such a pace that it would soon reach a point at which they could not arrest it. There have been two Governments in Ireland for many months past. There are two now—a legal Government which talks, and an illegal Government which acts. Many of the most loyal members of the population in the South and West of Ireland feel that if such a measure as this, which must provoke an immense amount of feeling, is going to be used spasmodically and temporarily, their case and the case of the peace of the country will be worse hereafter than it has been before. If this measure is intended to do any good, it can only do so if it is worked unflinchingly and without fear of consequences. Those who have urged such steps in the past, which have been ignored, can take no responsibility for the failure of the Government, if failure there be, under the existing conditions. His Majesty's Government have left the matter until it lies with them to decide whether they have now the force with which to repress that which they have allowed to grow up.
But I ventured to say the other day, and I hope your Lordships will allow me to say it again, that if you are to get any permanent advantage from a measure of this kind it must surely be realised that there are two sections in Ireland at this moment— the irreconcilables, who, I think, were mixed unfortunately with the others in the speech of the noble Lord who has just sat down, and those who wish, without distinction of class or creed, to end the struggle by arriving at a settlement. I think it is most important that His Majesty's Government should endeavour to detach those who are desirous of a settlement from those who have an irreconcilable hatred of British rule and are anxious to continue the system of murder and terrorism which is in vogue at present. Just as we objected in 1918 to coupling conscription with the promise of Home Rule, so there are many members of this House who object now to the idea of coupling special measures for the prevention of crime with a measure promising Home Rule. The Government have elected that particular method of dealing with the question, and if they are to continue their present measure they must convert it into a effective measure, which 1039 will give satisfaction to some class in Ireland. At present, in the Home Rule Bill which they have introduced, they have unfortunately failed to conciliate the support of any class or section of the people in the South and West of Ireland. I would again urge that on this subject we may have some statement from His Majesty's Government before this Bill passes into law. The Prime Minister spoke in the most considered manner on Thursday night, and made no allusion to it. The noble and learned Lord made a somewhat scanty allusion, and I would ask him to assure us that there will be a determined effort, not in the nature of a dole, but in the nature of a settlement which those who are loyal to the Government—who are a great number in the South and West of Ireland—can accept, and those who are disloyal will find it difficult to refuse.
§ LORD MORRIS
I should like to make an explanation in answer to the noble Earl. He asked me whether I intended that those who committed crime in Ireland should go unpunished. Certainly not. I say that those who have committed crime or any offences should be tried under the law existing at the time when those offences are committed. There has been nothing shown to me that the law is in any way defective, or that the juries cannot be had. We have no statement to that effect, but, even if the jurymen do not attend, I presume a way can be found by which they can be brought.
§ LORD PARMOOR
My Lords, the noble and learned Lord on the Woolsack described, and I think properly described, this Bill as a procedure Bill. But as a procedure Bill the effect of it is to place all civilians in Ireland entirely under the jurisdiction of the military Courts. I think that is a most reactionary proposal, which ought not to have been made. I do not know whether the noble and learned Lord remembers that when a similar proposal was made in the early days under the Defence of the Realm Acts it was owing to the action of this House that civilians were exempted from the authority of the military Courts. So that when the proposal was made affecting all parts of the United Kingdom the English people objected to it, and I think quite properly, and the result was an amendment introduced while the Bill was in this House. I cannot help thinking 1040 that there could not be any more reactionary proposal, particularly having regard to the present conditions in Ireland, than making the military Courts supreme.
There is only one other point to which I wish to refer, and it is in reference to the speech of the noble Lord who has just sat down. The effect of this Bill will be to play into the hand of the irreconcilables. What we all want, I believe, is not to increase the number of irreconcilables in Ireland, but, by some generous offer, to bring about a settlement of the whole question at the earliest possible moment. Does any one believe that a Bill of this kind, taken by itself, is calculated to bring about a settlement which I believe all reasonable people, both in Ireland and in England, desire at the present moment? It is unfortunate that this Bill has been introduced in this form. But it was as a matter of procedure that I rose, only in order to make my protest, at this stage of our juridical system, against placing the whole of our civilian population in Ireland under Courts-Martial and military law—not that I am attacking these Courts, but I think they are wholly unsuited for civilian procedure.
§ THE MARQUESS OF SALISBURY
My Lords, I desire to ask the noble and learned Lord on the Woolsack one question only of detail. In that very lucid explanation which he gave of the Bill he said that in one clause there was a provision for the diversion of the money paid in aid of local taxation in order to meet, among other things, the compensation for criminal injuries, and that appears on the face of the Bill. How does that fit in with the Criminal Injuries Bill which, I understand, is now before another place? Can the provisions contained in this Bill work without that Bill, and, if that be so, when may your Lordships expect to have the Criminal Injuries Bill laid upon the Table of the House? The sands of the present session are rapidly running out, and, if that very necessary provision in the law is delayed until after the recess one cannot help being somewhat anxious for those who have suffered injury, and who, no doubt, rely upon the provisions of that Bill in order to receive justice. No doubt the noble and learned Lord will explain that point when he rises to reply.
With the exception of that relatively small point I desire to offer no criticisms 1041 on the Bill. I do not mean to say that I have any right to approve all its provisions in detail. I do not look upon it from that point of view. This is a measure submitted by the Executive Government as essential to the restoration of law and order in Ireland. Upon them rests the responsibility of the proposal, but I entertain no doubt whatever that your Lordships ought to afford them the fullest support when they come before you with a demand such as that. We desire, quite as much as the Government do—perhaps more consistently than the Government do—the full restoration of law and order in Ireland, and, if they come before us and ask us to pass this Bill, we ought not to hesitate for a moment to give them the full powers which they demand.
I cannot conceal from myself, not only the immense gravity of the situation in Ireland, but the very critical moment in which we stand in respect to this Bill. The Government have elected, and I strongly think have rightly elected, to do their utmost to restore law and order in Ireland. They must not fail. The responsibility is very great. For what position will they be in if they do fail? I am not going to specify their position, but it is perfectly certain that at such a moment as this the Government must, so far as is humanly possible, make such proposals to Parliament to achieve it that they cannot fail. Unless they have made such proposals, or unless they keep your Lordships and the other House of Parliament until they do make such proposals, they will incur what is almost the greatest responsibility it is possible for a Government to incur.
I must say a few words with reference to the other branch of the subject. The noble Lord who spoke from the cross-benches laboured under a strong misconception of my own personal view, though my own views are not of the least importance. It is not that I desire not to meet all the legitimate claims of Irishmen. Every one of us would be only too delighted, of course, if we could bring to an end this eternal Irish question. Alas! my Lords, the difficulties have hitherto proved to be insuperable. if your Lordships will cast your minds back you will recollect that various Bills have been introduced. There was Mr. Gladstone's first Bill and his second Bill, Mr. Asquith's Bill, and the Bill of the Convention, of which my 1042 noble friend Lord Midleton was so eminent a member; they all failed—that is to say, they failed in this sense, that in the case of every one of them most good judges are of opinion that they would have failed entirely had they passed into law. I believe that is quite indisputable. Now there is the present Government of Ireland Bill, and, as far as I can judge, it is going to follow in the steps of all its predecessors. That is the situation.
Then my noble and learned friend Lord Parmoor said, "Let us have a generous measure." How easy it is to use these adjectives. All your Lordships would wish to be as generous as can well be, but the truth is, as the Prime Minister himself showed with the greatest success the other day, that the difficulties in the way of a generous measure are quite as great as the difficulties in the way of the measures which have already been submitted. What is the use of blinking the facts? You cannot give the Irish independence. You are not going to give them a republic, and every limited form, apart from other objections to it, seems to be absolutely unwelcome. That is the real fact, and yet there is talk of generosity. We are practical men and must face the facts.
I apologise to your Lordships for having diverged merely to correct what I venture to think might be a misapprehension. The business before us this evening is the Bill to restore law and order in Ireland, and I repeat that I doubt whether, except my noble and learned friend and possibly one other, there will be any dissentients when the Question is put from the Woolsack that we ought to give the fullest support to the Government that is in our power in the restoration of law and order in Ireland.
My Lords, the main effect of this Bill will be to establish Courts-Martial for the administration of the law in Ireland. When I obtained a copy of the Bill I turned to the tenth chapter of the fourth volume of Lecky's "History of Ireland in the Eighteenth Century," and there I found a description of what happened in Ireland when Courts-Martial were last established there. I should have thought that any Government, knowing what Lecky had said on the most impartial weighing of evidence, would of all things have avoided the re-establishment 1043 of Courts-Martial in Ireland. I mean to impute no intentional misconduct to any member of future Courts-Martial, but the Courts-Martial of 1798 were also constituted of honourable men. If your Lordships will refer to the pages of the historian you will find what a scourge of God Courts-Martial were in Ireland. I, too, am entirely in favour of the restoration of law and order in Ireland, and it is because I think that it is not through Courts-Martial that it is to be done that I say these few words to your Lordships to-day.
I entirely agree with my noble and learned friend Lord Shandon when he says that the restoration of law and order in Ireland should be placed, if possible, in the hands of civilians and they should deal with it; they have never been found wanting when you have tried them hitherto. I fear that the dispute in Ireland, which has attained enormous magnitude, has attained that magnitude because the Government did not take advantage of the warnings of men who knew what was going on, and I agree with Lord Shandon that you should employ the civilian element and not the military in the restoration of law and order.
I heard with the utmost satisfaction the remarks which fell from the noble and learned Lord on the Woolsack last week. It was the first time that I have heard in this House from high authority the necessity of making the restoration of law and order, not by force but by conciliation, also part of the Government's policy. I read to-day with the utmost satisfaction an address or communication made by the Chief Secretary for Ireland to the Sunday Times, in which he sets forth his idea as to how law and order can be re-established in Ireland. I wish to say that, as far as my observation goes, the present Chief Secretary for Ireland has conducted his work with the utmost prudence and feeling for the people. This is what he says—There are three fundamentals governing the situation, and they are fundamentals accepted by every political Party in Great Britain. They are, first, that Ireland must remain within the Empire—Nobody denies that—Secondly, that the question of defence forces and treaties must remain under the authority of the House of Commons at Westminster—1044 In its widest acceptance no one will contradict that—Thirdly, the six counties of Ulster must not be coerced.We have all accepted as a fundamental principle that no coercion should be applied to Ulster. Let me say one word. The six counties of Ulster include a large proportion of Nationalists, and they should have an opportunity of saying whether they will be in an Irish Parliament or not. I say this with the intention of assuring your Lordships that there are many Irishmen strongly determined to remain within the Empire, but we hope that the method of securing this shall not be such as to antagonise the great mass of our less fortunate fellow-countrymen. My desire is that the question may be reconsidered and that Lord Shandon's suggestion may be adopted—namely, to rely more on the civilian than the military element.
§ LORD CHEYLESMORE
My Lords, I do not wish to discuss the question as to whether it is right or wrong to set up Courts-Martial in Ireland, but I hope that if they are set up they will have the support of the Government. I can only speak as one who was sent in 1916 to preside at Courts-Martial for some weeks. During that time I had to sentence several men to death who had committed murder. Within a few days every one of those men were reprieved, and I believe are at the present moment free in the country now. If Courts-Martial are started in Ireland and are supported in that way, it will reduce the whole system to a farce.
§ THE LORD CHANCELLOR
My Lords, the noble and gallant Lord is, of course, entitled to speak with the highest possible authority on the subject of Courts-Martial, and he rendered, as every one knows, the greatest possible service to the country in the discharge of the function of which he has just spoken. I should have welcomed his observations snore if he had given me more precisely the period to which he referred, because either in that period or shortly afterwards I was asked and did advise five successive Chief Secretaries as to the ultimate view which was adopted in connection with Courts-Martial. I do not happen to recall, in the period in which I gave that advice, more than one of the cases to which he refers. I think if you take the whole period of Courts-Martial 1045 the statement he has just made would be found likely to give a somewhat misleading impression. I, however, give the noble and gallant Lord the assurance he has asked for in the most positive manner I can. It certainly is the intention of the Government, in all cases where Courts-Martial have not fallen into an obvious error, to give them every possible support in their power.
The debate has ranged over a great variety of topics and the decision has been approached from many angles. It will hardly be expected that I should attempt to pursue all these topics in detail. There have been two schools of thought. The first one is that this Bill is either unnecessary or unsuitable; and it was expressed by Lord Shandon, Lord MacDonnell, Lord Morris, and Lord Parmoor. I may perhaps be allowed to make a few observations upon this view. A doubt was expressed, I think by Lord Shandon, as to whether the situation justified these proposals. The only possible reply to make is that the situation would almost justify any proposals of this character.
Countless suggestions have been made that these matters should be dealt with by civilians. It is sufficient in reply to ask, By what? Is it suggested that they should be tried by Irish civilians? Noble Lords will hardly perhaps credit it, but there would be an extraordinary lack of enthusiasm amongst Irish civilians to be singled out, without the protection of the military, to discharge these duties; and I assure the noble Lord that if be tried to provide panels for these Courts he would find his task extremely uninviting.
There are other obvious and most elemental objections to dealing with matters of this kind under existing, circumstances by civilian Courts. I do not suppose the noble Lord himself would suggest that we should import English civilians, who would be looked upon and described as aliens, in order to deal with the situation as it exists in Ireland at the present moment. Lord Shandon made a great complaint because these Courts-Martial, upon which we have decided, were given the right of entreating; recognisances and binding over to keep the peace. The noble and learned Lord must be perfectly well aware that once we have made up our minds to establish these Courts we should render them impotent if we did not supply them with the ordinary machinery 1046 by the use of which alone they could discharge the functions committed to them. He appeared to think that it is a terrible thing that the old traditional method of investigation by coroner's jury should be suspended; and spoke of the age in history of this method of trial in Ireland.
No one regrets this supersession, this breach of continuity with the past, more than the Government; but the noble Lord did not suggest a substitute. Does he suggest that we are to continue impotent face to face with one scandal after another in which coroners' juries give verdicts which he knows are disgraceful to themselves and disgraceful to the institution. No. Let them recognise, as we hope in changed conditions they will recognise more fully than to-day, their duties and responsibilities, and no one will be more glad to restore to them all their historical duties than the Government.
We were then favoured by Lord Morris with a speech which was a retrospect of the recent history of the Irish question rather than a contribution to the special subject under debate. Lord Morris resented a suggestion made that he was in favour of not bringing to justice the men who at this moment are awaiting trial, and who, under existing circumstances, cannot be tried. He resented this; but he added by way of greater explanation that he had not heard of any single circumstance which convinced him that you could not obtain tribunals to try these men. The noble Lord has been singularly inattentive to the records which are readily and daily obtainable. He could easily obtain the fact that it is impossible to obtain juries to try any of these crimes. Unless we had imported into this Bill the section of which the noble Lord complains it is the fact that, whatever the number may be, fifty or it may be sixty men, against whom we think we are in a position to give evidence which would convince any honest and impartial tribunal of the guilt of the accused—the proposal in effect comes to this, that we should release all these men at once with an admission that it is not in our power, by existing machinery or any which can be substituted, to bring them to justice. We are not prepared to assent to that course.
Lord Midleton asked me two or three questions. He asked, in the first place, whether the Republican Courts which are now being held with apparent impunity 1047 in so many parts of Ireland will come under the scope of this Bill. They certainly will. But a distinction must be borne in mind. If the Court is wholly without any of the insignia of the republican authority, if it is held under the appearance of an ordinary arbitration, it will be very difficult to frame a regulation which would make it amenable to justice. But in the majority of cases—I am dealing with civil proceedings only—as I understand, to-day, these proceedings are held ostensibly under the authority of the Irish Republic, and there will be no difficulty at all in framing Regulations to deal with them; and I entirely agree with those who take the view that the first step in the assertion and vindication of the authority of the Government in Ireland is that those should be repelled who are openly assuming to themselves the right to set up and administer Courts of justice in Ireland.
The noble Earl read an extract from a letter written by a clerk to a board of guardians giving certain directions or purporting to give directions to justices of the peace in Ireland. Undoubtedly a Regulation ought to be, and would be, framed which would make such acts punishable and cognisable by the Courts-Martial which will be set up. I do not think that in such a case the person proceeded against ought to be the clerk who sends such a letter, but those who passed the resolution and gave directions.
§ THE LORD CHANCELLOR
The noble Earl asked me a final question, or made a final suggestion. He said, "Do not fail to distinguish between the two parties in Ireland—the party which means illegality and murder, and the party which would assent to a reasonable settlement if one were possible"; and he asked me if I could not indicate to-day the better terms which might be made available. My Lords, we have indicated our proposals and we have put them on record. It has more than once been stated by the Prime Minister in another place, and by myself here, that there are certain inflexible principles which cannot and will not be disregarded by the Government in the further fortunes of this Bill, and if there is any body in Ireland which can claim to speak and can show that it does speak on behalf of those who to-day are controlling the destinies of Ireland, and which, consistently 1048 with those principles, makes this proposal and suggests this or that variation of the Government's Bill, we should be mad if we did not listen to such people; but I should be misleading your Lordships if I did not state that I can see no prospect of any such development in the situation, and I believe that if any moderate section of Sinn Feiners were to come forward tomorrow, and to make such and such a statement, unless we were strong enough to protect them there would be murder, in the same way as our officers are being murdered in Ireland. If it should prove in time that we are able, as we believe will be the case, to repress those who are adopting violent courses in Ireland, we will always consider any proposal, consistently with our fundamental principles, which may be brought forward by those who show that they speak on behalf of a large and representative body of opinion.
Lord Salisbury asked me a question, and made some general observations upon this Bill. He asked me whether subsection (3) paragraph (i) can operate until the Criminal Injuries Bill has become law. The Criminal Injuries Bill, as the noble Marquess knows, has actually been introduced in the House of Commons and will be proceeded with, but there is no hope that it can be passed through all its stages until the autumn, though it is hoped that it will be early in the autumn, and I imagine it will be before your Lordships soon after the House reassembles. The subsection to which the question relates, (3) (i), meets the immediate needs in the interval before that Bill becomes law, and will make it possible to intercept Exchequer grants in the interval, where such interception is necessary in order to pay the compensation.
The noble Marquess gave a history of the fate of various Home Rule Bills and made a prediction in relation to the present Home Rule Bill. The noble Marquess is at an advantage in this House when he adopts the rôle of prophet, because he is by no means without power of giving considerable effect to his predictions, and therefore any prophecy which he makes will be received by me with respect. At the same time the rôle of prophet is an uncertain one; its rewards are by no means considerable, and its risks are very apparent. The noble Marquess may be right or wrong, but we shall know a little more definitely in the autumn.
1049 The noble Marquess, however, made a speech helpful to the progress of this Bill, though I would venture to demur to his claim that he and those who agree with him have reverenced the cause of law and order more consistently than the Government. I do not believe that claim can be substantiated. He made the claim, and Wray find considerable argument to support it, that the Government had not been strikingly successful up to the present in dealing with the situation. I do not make my answer to that charge to-day, because such observations as I desire to put forward on the other side were fully made by me on a recent occasion; but I cannot help thinking that the more the extent of our difficulties is examined and re-examined, the more indulgent and the less violent will be the denunciation of our admitted failure to cope with all the mischiefs with which we are assailed.
§ On Question, Bill read 2a: Committee negatived.
§ Then (Standing Order No. XXXIX having been suspended) Bill read 3a, and passed.