HL Deb 06 December 1920 vol 42 cc1024-124

House again in Committee (according to Order).



May I ask the Lord Chairman whether it would not be for the general convenience if we could work from the old Bill? The Bill has been reprinted, and the Amendments on the Paper are all according to the pagination of the old Bill.


I understand that the Bill has been reprinted only so far as we have gone through it in Committee, but obviously it would be more convenient to deal with the Bill as we started with it.

Clause 24:

Discussionresumedon the Amendment (the first of a series) moved by Lord BALFOUR OF BURLEIGH —namely, at the beginning of subsection (1), to leave out "either to impose an additional Income Tax or Super-Tax (hereinafter referred to as a surtax) on," and insert "to grant relief from Income Tax and Super-Tax or either of those taxes to."


I desire to offer to the Committee a few observations on the subject of the Amendment of my noble friend. The object that my noble friend has in view is to get rid of the double taxation which Clause 24 in the Bill would impose on all persons resident and domiciled in Ireland. Your Lordships are aware that under the provisions of the Bill Income Tax and Super-tax are reserved to the Imperial Parliament. If the Bill passes into law in its present form these taxes would be collected by the officers of the Imperial Revenue, and Income Tax and Super-Tax would be in Ireland as they are in England. That is the effect of Clause 20 of the Bill. But Clause 24 is one which, as it stands, gives power to the Irish Parliaments to impose, in addition to the Imperial Income Tax and Super-Tax, a local Irish Income Tax and Surtax, as it is called, which is a Super-Tax in everything except the name, on all persons who are resident and domiciled in Ireland. I will use for brevity the expression "Income Tax" as including Super-lax. One Income Tax, as it stands at present, is quite enough, and to have a second Income Tax would be a burden which might seriously affect not only the individuals immediately concerned, but also the prosperity of Ireland itself.

My noble friend proposes to amend the clause in a manner upon which I shall afterwards say a few words. I have on the Paper an Amendment to omit Clause 24 altogether. It has been suggested that any Amendment such as I have put down would be the subject of privilege as between your Lordships' House and the Home of Commons. Whether privilege exists is immaterial at this stage. Supposing privilege to exist the practice has been that the matter should be discussed in your Lordships' House, and if your Lordships thought fit to make an Amendment, a question of privilege might be raised by the Commons, or the Commons might, as in certain cases they do, waive their claim of privilege. Strictly speaking, therefore, it is not necessary at this stage to consider the question of whether the case of privilege would apply to such an Amendment as I have on the Paper; but as the suggestion has been made I think it might be convenient if, in a very few sentences, I state to your Lordships the grounds on which I have arrived at the conclusion that privilege would not apply to a proposal to leave out this power in Clause 24. Your Lordships will observe that it is a proposal to confer upon a Parliament to be set up in Ireland the power of imposing an additional tax. That; is a question of what should be the Constitutional. Powers of the Irish Parliaments which this Bill is to set up in Southern Ireland and Northern Ireland.

The subject of privilege has always been the imposition of taxes within the limits of our Constitution as it exists. After a long struggle it may be taken, I think, as settled Constitutional law that the privilege of the Commons applies to any proposal to impose a tax. It applies not only to the imposition of a tax it applies to its incidence and to everything connected with the collection of the tax, or the liability to it. It would apply also to cases where the Imperial Parliament, our Parliament, delegated to a local authority the privilege of rating. That would be a burden on the subject imposed within the limits of the Constitution under the authority of Parliament. Taxing Acts in the Imperial Parliament, of course, are passed through the Legislature under the rules of our Constitution as to privilege, but we are now dealing with something very different. This is a proposal to alter the Constitution by transferring from the Imperial Parliament to the Parliaments to be erected in Ireland the right to impose certain taxes. As you have a proposal of that kind you stand on different ground altogether from that which you occupy when you are dealing with proposals to impose burdens within the limits of our Constitution as it exists.

When you have a proposal to alter your Constitution by erecting another Parliament and to transfer to that other Parliament a power of taxation which at present is vested in the Imperial Parliament, you are on a different plane altogether. You are not dealing merely with the imposition of a tax, as to which the privilege of the Commons applies. You are dealing with a proposal to alter the Constitution, and whether the Constitution ought to be altered in that respect is a matter with which, I submit, your Lordships' House is entitled to deal as freely as it can do with any subject which forms the matter of legislation brought before this House. The power to impose the proposed tax is not within the limits of the Constitution, as we know it, with reference to which privilege has grown up. The proposal is this —that the Imperial Parliament is asked to alter the Constitution by parting with its prerogative of taxation in certain respects and transferring it to the Parliament to be created. It would, my Lords, be very startling if you were debarred from dealing by Amendment or otherwise with such a proposal.

To all Taxation Acts of the Imperial Parliament the Commons privilege applies While the House of Lords might reject a Bill for taxation they could not amend it, but a change of the Constitution is another matter altogether. This is really a proposal to transfer the functions of our House of Commons to a new Parliament. It is not a question of imposing a tax or a rate within the limits of our Constitution. It is a question of changing the supreme taxing authority. It never could be contended that the proposals with which we are dealing constitute a Money Bill within the terms of the Parliament Act, with which we have become lately so familiar. The question is what is the extent to which the common law privilege might be applicable to the case, and while the matter is not very relevant at this stage, I hope your Lordships will think that I have done right in giving my grounds for the conclusion to which, after some consideration, I have arrived, that the common law privilege has no application.

Now on the merits, I put it to your Lordships that Clause 24 is open to the very gravest objection. Let me read to your Lordships the material words of Clause 24. Clause 20, as I have said, reserves the Income Tax as it exists for the Imperial Parliament. Then Clause 24 reads — The Parliament of Southern Ireland or of Northern Ireland shall have power either to impose an additional income tax or super-tax (hereinafter referred to as a surtax) on individuals resident and domiciled in Southern Ireland and Northern Ireland respectively in respect of the total income of those individuals from all sources, or to grant relief from those taxes or either of them to such individuals, and the surtax may be imposed or the relief given either generally to all such individuals or to individuals whose total income exceeds, or is less than, such amount as may be determined by the Act imposing the tax or granting the relief, and in the case of the imposition of a surtax, whether or not the individuals are liable to income tax or super-tax. The rest of the clause deals, in other subsections, with what is matter of machinery. Your Lordships will observe that this liability to a second Income Tax and Super-Tax is imposed upon all persons who are resident and domiciled in Ireland.


It may be imposed.


I said liability. Whether the tax will be imposed will be a matter for the Irish Parliament. The question we are concerned with is whether the power of imposing that second burden should be conferred upon the Irish Parlia- ment The word "resident" needs no explanation, but those who are to be subject to this second taxation are to be "domiciled" as well as resident in Ireland. I am not going through the various interpretations put upon it by law, but I suppose "domiciled" popularly may be best explained by saying that a man's home is in Ireland. Not only are all persons having their homes in Ireland and resident there liable to have this taxation imposed upon them, but the tax, you will observe, may be imposed in respect of the total income of those individuals from all sources —that is to say, whether the income comes to them from Ireland where they live, or from Great Britain or any other part of the world whatever. It is to be liable in any case to this second income Tax and Super-Tax.

The incidence of the income made subject to this second burden is very startling. We have, of course, in this country taxation of what are termed foreign possessions. If a man had property abroad, for a very long time, until I think the year 1914, the liability to taxation depended upon the question whether the proceeds of that foreign property had been remitted to the owner in the United Kingdom. There are a great many authorities on the question of what constituted a remittance. Since 1914 the matter has been tightened somewhat, because in the case of securities, stocks, shares, and rents it was deemed proper to say that even if the amounts were. not remitted the tax should be imposed, because it was found that a practice was growing up on the part of the owners of accumulating the amounts in foreign countries, and thus escaping taxation, and some time afterwards, in a manner which could not be traced, the accumulations found their way to be applied for the benefit of the owners. With regard to all other property —with regard to the sugar plantations, of which we heard in the old day, or rubber plantations, of which we have heard more in recent years —the rule would apply. With regard to any business abroad the old statutory limitations would apply, and the Income Tax would only apply to what was remitted to this country.

But Clause 24 knows nothing of these limitations at all. All property, although not a penny may ever come to Ireland, is to be assessable to this second Income Tax and Surtax. The persons liable to this taxation will be between the upper and nether millstones. When they have been broken to pieces by Imperial Income Tax they will be ground to powder in the mill of Clause 24. The Super-Tax is here called a Surtax, but I do not know that the change of name will very much alleviate the plight of those who have to pay. I do most earnestly invite your Lordships to get rid of this second burden upon persons resident and domiciled in Ireland. Just consider the case of these persons. We all know what Income Tax and Super-Tax is, and I do not know what our feelings might be if we were told that we were to be liable to a second burden of the same nature. It is to the possibility of such a second burden that this clause proposes to subject all such persons resident and domiciled in Ireland.

I think I may say, for the persons who will feel the weight of this tax if it should be imposed by the Irish Parliament, that almost without exception they have been distinguished alike in clear and dark days by their unswerving loyalty to the British Crown. Why should they be singled out for a burden of this kind? All I ask is that they should not have a greater burden imposed upon them than is imposed upon other people. I ask your Lordships in this matter to do justice to the individuals. I think that I may also put it upon even broader grounds. I believe that the prosperity of Ireland itself is very much concerned in removing such a liability. Ireland has many attractions as a place of residence, and surely in the interests of the country it is not desirable to discourage persons from making their home there. If you have an enactment the effect of which may be to penalise those who make their home in Ireland is it not obvious that you are doing something to detract; from the chances of the country doing well under any new Constitution which may be conferred upon it? The effect of the working of Clause 24 might be to inflict a penalty upon those who have made their home in Ireland. So far from doing that, I think we ought to encourage in every possible way the residence in Ireland of people who would bring their money there, who would spend it in Ireland, and who would promote the prosperity of the countryside. This tax will tend to drive out all those —and they are many —who are already resident in Ireland and whose home and domicile are in Ireland. The liability to a second taxation may lead them to consider whether they ought not to move to another country which has not such liabilities attached to residence.

I think that I may say the same with regard to residence for the purpose of business. In a great many cases business may be rendered profitable only if the proprietor of the business resides on the spot and gives his personal attention to it; at all events, the business might have a much better chance of success under such circumstances. Suppose a man thinks of starting a business in Ireland. He feels that in order to make it successful he ought to reside there and give to it his personal attention, but if he makes his home there and becomes a domiciled Irishman for the purpose of attending to that business he will be subject to the second taxation. Surely in these circumstances the possibility of such an impost might have a most unfortunate effect. A man may be ready to put his money into a business in Ireland, but if to make it successful he has also to reside there and that may entail the second Income Tax and Sur-Tax he will think twice or thrice about it before he undertakes such an enterprise. The burden of taxation and the possibility of taxation under Clause 24, on the top of the liability to the Imperial Income Tax, may have the effect of preventing many people setting up business in Ireland who would otherwise do so with great advantage to that country. I most respectfully appeal to the House to lighten this Bill by striking out Clause 24.

My noble friend Lord Balfour of Burleigh deals with Clause 24 in a somewhat different way. By a series of Amendments he takes away altogether the power to impose new taxes, and converts it into machinery for giving relief in Ireland from the Imperial Income Tax which, under Clause 20, is reserved for the Imperial Parliament. I am at one with my noble friend in desiring to get rid of Clause 24, and what I would suggest very respectfully for his consideration is whether he would take the course of allowing the omission of the clause to be put first. I believe that may be done by arrangement. Then he could bring forward his proposal on Report, or as a new clause. I have written out a clause as it would stand according to my noble friend's Amendment, and he might now, or if the Lord Chairman thinks it better on Report, move that as a new clause. But that is a totally different matter. That is a question of giving certain relief to persons domiciled in Ireland from the Imperial Income Tax. Different questions may arise with regard to that. I would ask my noble friend whether he would have any objection to the Amendment for the omission of the clause being put first. If the clause is amended it would be difficult for me to say "omit it." Logically, my Amendment conies first. I think that I have sufficiently explained the matter, and I strongly put it to your Lordships that this Bill would be greatly improved by getting rid of this possibility of double taxation.


Although I have on a previous occasion said a few words in this House, they were so few that I feel justified in craving that indulgence which your Lordships invariably extend to a maiden speech. It has been made abundantly clear in the course of the present debate that those of us who have any claim to represent Southern Ireland in your Lordships' House are unanimous in our dislike of this Bill as a whole. It would be surprising if that were not the case. But there are two other points on which we are equally unanimous, and which should, I think, be made equally clear. The first is that we do not desire to escape one penny of our fair share of taxation, whether it be for Imperial or domestic purposes.

The second point is this. Much as we dislike the Bill, if and when it comes into law we are resolved to accept it loyally, and, so far as those who have hitherto been our political opponents in Ireland enable us, we are prepared to co-operate to the utmost of our ability in the work of establishing on a firm and sound basis the new Ireland which will come into being, and of promoting the union of North and South. It is in this spirit that we approach the discussion of the financial clauses of the Bill. But we fear that if the provisions of the clause now being debated by the House become operative all those who belong to the propertied class in Ireland will be debarred from any such cooperation, because in a very short time they will have been taxed out of existence. The loss of our own co-operation may be a very small matter although our extinction would inevitably entail a certain amount of local unemployment which, for no selfish motives, we are intensely anxious to avoid. Every one, however, will agree that the disappearance of any large number of men who either in agriculture or industry hold a considerable financial stake in the country would cause the most terrible and widespread unemployment and would deal a fatal blow at the prospects of Ireland. We fear this possibility not so much because we are afraid of any senseless or vindictive legislation on the part of those who will represent the majority in Southern Ireland. We feel that it is absolutely unfair that Ireland should be exposed to any such risk, but lack of generosity has never been an attribute of the Irish nation, nor has the folly that would kill a golden goose which is already sufficiently emaciated.


Hear, hear.


What we are afraid of is that under the present proposals the resources of Ireland will not suffice to provide for her Imperial contribution and domestic expenditure without having recourse to additional taxation, and under this Bill the form that such taxation is certain to take is that of this unholy Surtax. I know that in framing the clauses of the Bill the Government naturally had at their disposal much information which is not readily accessible to us, that they made the most careful examination into the financial position of Ireland, and that they were actuated by the desire to be not only just but generous. I should have felt sure that they were satisfied that, after paying her Imperial contribution, Ireland would have an ample margin to meet her domestic needs were it not for the provisions of this clause, which certainly seem to indicate a doubt in their minds on this point; otherwise it is difficult to see on what grounds of justice or expediency these provisions have been inserted.

Even in this country estimates are apt to prove incorrect, and nowadays it is seldom indeed that they are found to have erred on the side of caution. How much more is that likely to be the case when one is dealing with a country almost wholly lacking in that wealth of administrative and financial experience which exists in England, and one, moreover, which will be receiving its first cheque-book. I fervently hope that these gloomy forebodings are unnecessary, that the Government are satisfied and are right in their calculation, and that those who will administer the finances of Ireland may even be so fortunate as to find that their Budget justifies them in taking advantage of the power to remit taxation which is generously conferred upon them by this clause. But I fear that the unhappy Chancellor of the Irish Exchequer will find, when he draws near to it, that this radiant vision is only a mirage, and if the Government are wrong and we are right then this clause is an invitation to direct taxation of an absolutely crushing nature.


Hear, hear.


I recognise that the clause specifically provides that the Surtax need not necessarily be imposed only upon those who are already subject to Super-Tax or even to Income Tax, but all the circumstances make it only too probable that those are the persons upon whom the bulk at any rate of the tax will fall. I do not see how they can possibly sustain this additional burden. It will indeed be a more humane method of wiping out an entire class than that employed in Russia, but I believe it will be equally effectual.


Hear, hear.


The last thing this House desires, and the last thing the Government desire, is that all those who have attained prosperity in Ireland and all those who are fortunate enough to derive funds from outside sources should be driven from the country, but I feel most strongly that this is no imaginary danger and that Clause 24 will in practice have that effect. It is for that reason that I beg you Lordships to give your most earnest and, if possible, your most sympathetic consideration to this Amendment.


I confess I am somewhat puzzled by what I believe to be a novel proposal made by the noble and learned Viscount, Lord Finlay. It would mean deferring the whole of the proposals of Lord Balfour of Burleigh to the Report stage. I venture to think that it would be better if your Lordships first discussed Lord Balfour of Burleigh's Amendments as they are on the Order Paper, and then asked the opinion of the House on them before going into Lord Finlay's Amendment. I much prefer. Lord Balfour of Burleigh's Amendments to that proposed by the noble and learned Viscount, and I believe that all of us in Southern Ireland much prefer them if I may, therefore, I will confine myself to discussing Lord Balfour of Burleigh's Amendments.

From what the noble Viscount, Lord Peel, said on Thursday last when this clause was being discussed, it seemed to me that he did not realise how very apprehensive we who live in Southern Ireland are of the powers proposed to be granted. In fact, he appeared to be inclined to rate or even to scold us for harbouring such fears, and as other members of your Lordships' House may not be able to realise our fears, I propose briefly to indicate why we, rightly or wrongly, think that if this clause is unaltered it will bring ruin and disaster, not only to individuals but to the community. As the noble and learned Lord said, this clause proposes to give power to the Parliaments to impose a Surtax in addition to Income Tax and Super-Tax, unlimited in extent, on all incomes no matter from what sources derived, on all who are resident and domiciled in Ireland.

May I emphasise what the noble and learned Lord said by giving an example of what might happen in two almost parallel cases. First of all, take a man who has a large house in England with a large park, gardens, and pleasure grounds. He spends a large sum every year in entertaining his friends and in maintaining and improving his property. The whole of the income with which he does this is derived from Ireland —namely, from Dublin house rents and from investments in commercial and industrial concerns in or near Dublin. He never goes to Ireland; he never spends a penny in Ireland if he can help it. He pays 12s. in the £ Income Tax and Super-Tax in England, and because he is not resident or domiciled in Ireland escapes the Irish Surtax. The second example is a man with an equally large house, gardens, pleasure grounds, and coverts in Ireland. He also spends a large amount of money in maintaining them. The whole of the income on which he does this is derived from sources out of Ireland —from London House property, from industrial concerns and from investments spread all over the world. That man also pays 12s. in the £ in Income Tax and Super-Tax, but in addition to that the Irish Parliament is empowered to take the rest of his income, the remaining 8s. in the £. What is this man to do in these circumstances? If he retains his residence or domicile in Ireland he may he taxed out of existence. He must dispose of his lands. But who would buy a large house in Ireland, because the purchaser would be liable to a similar penalty? It seems to me that all that man can do is to destroy his house, either by taking the roof off and blowing it up, or setting fire to it, or in any other way that will render it uninhabitable.

The ancestors of these men who have lived in and about their homes for 300 years, and perhaps in the existing houses for 200 years, and who have taken root there generation after generation and endeavoured to improve and beautify their homes —these men love Ireland just as passionately and earnestly as any Sinn Feiner or any Nationalist, although they may vary perhaps in their feelings as to how Ireland should be governed and how its prosperity should be increased. It would break the hearts of those men to destroy their houses and leave their homes, but as their incomes are independent of Ireland, of course they can do it. But what of the men whose income is entirely dependent upon Ireland —the commercial and professional men, and the large farmers. They, too, must live; they, too, must make arrangements, under the circumstances, to realise all their assets and to leave the country. Under these circumstances the sales must be forced sales. These men will not be able to realise their assets, and to many of them it will mean ruin.

We believe that the imposition of this Surtax must mean driving all capital out of the country. I know that Lord Peel said that it is absurd to suppose that any Government would be so mad as to adopt a tax which would of necessity drive all capital out of the country. But, rightly or wrongly, we feel that unless the possible area of obtaining revenue is considerably widened the Southern Parliament must be compelled to use the whole of its powers in regard to this Surtax in order to raise the necessary revenues to carry on the services of the country. Lord Peel said he did not understand our contradictory methods —at one moment asking for powers to increase taxation, and at another moment asking to restrict them. I cannot help thinking that he really understands what we mean. We really and seriously believe that if this clause is put into operation in its present form, capital will be driven out of the country, and bankruptcy and ruin will supervene, and that very soon, because the limit to be obtained by this Surtax will be reached within two, three, four, or perhaps five years, but even if it be prolonged for a year or two bankruptcy is inevitable. Then Southern Ireland will come back to England and say, "You have forced a form of Home Rule upon us which we do not want; you have given us certain powers of taxation of which we have taken full advantage, and of which we have made use to the fullest extent granted under the Act; but even with all this we are unable to make both ends meet. You must help us out of this by more financial assistance." And you will be obliged to give it. But in the meantime the loyal and stable elements of all classes and of all religions will have been ruined and driven out of the country. The Lord Chancellor said — For twenty-five years Ulster has been the victim and plaything of every political party in England. But for fifty years the loyal minority has been the victim and plaything of English political parties. Every bid for the Irish vote made by English political parties has been paid for by the loyal minority. In every successive Land Act, from 1870 to 1909 inclusive, their rights and privileges and their estates have been taken from them bit by bit, and their incomes whittled away. If this clause as it stands is put into operation it will be the crowning act of injustice. This is the reward for generations of loyalty to the Empire. It is a bitter and humiliating thing to say, but it is true, it has not paid to be loyal if one has lived in Ireland, out of Ulster.

These are our fears. Lord Peel thought fit to consider them groundless, but he gave us no adequate reason for those opinions. I submit that we are justified in thinking that, unless some other means than this is found to provide the necessary revenue you must bring bankruptcy on the country, and in doing so ruin that section of the community for whom you profess so much sympathy and whose interests you say you wish and intend to protect. I earnestly hope that the Lord Chancellor, or some member of the Government will be able to remove from our minds these fears. What Lord Peel said on I Thursday did not convince us. Over and over again we have been assured that we have the deepest sympathy of everyone, but we ask for something more than oral sympathy; we want something tangible. You have now a great opportunity. If you amend this clause and widen the area of taxation, you will prove that you really mean what you have so often said, and will show that your sympathy is not confined to empty words.


After the moving and impressive speech of the noble Marquess who has just sat down there seems to me but little more that can be said on this matter, but I want to say a few words from the point of view of an Englishman and for the purpose of pointing out the mischief of which this clause is part. I have more than once asked myself in the course of this debate whether this Bill is ever intended to operate at all, or whether it is merely introduced in order that it may be said "We have attempted to give self government to Ireland, and Ireland is so ungracious that she throws the gift back in our face." Because it has seemed to me that unless you give to the Parliament in Ireland some real power of raising revenue it cannot possibly discharge its functions as it should. The only effective power is this power of extracting from men who have already been subject to the double burden of Income Tax and Super-Tax in this country a further tax which is to be levied upon the residue of their income and made acceptable under the name of a Surtax. Our taxation is submitting men to the thumb screw, but this taxation submits them to the rack. If the tax is to be made effective there can, as I apprehend, really be no remedy left for the men who suffer it other than that which was pointed out by the noble Marquess. It will break up the associations, it may be, of centuries, and they will be compelled to leave their country.

The noble Viscount, when we were discussing a kindred matter on the Motion for enlarging the powers of taxation which the Irish Parliament possesses, pointed out that they had other taxes that they could raise, and he was so kind as to satisfy my curiosity when I asked him what they were. I must say that my curiosity is unabated still. He said there was a turnover tax.


I only made two or three suggestions on the spur of the moment.


If the noble Viscount wishes me to pass them by as matters of no moment I gladly will.


No, no.


Very well, we will treat them seriously. One is a tax on turnover. I ask you for a moment to consider what the position would be of a business man in Ireland if he finds —take the big business for manufacturing stout —that there is to be a tax on the whole of his turnover, while his brother proprietors —Barclay and Company —over here are free from any such tax at all. The injustice of the thing will become obvious, and the result will undoubtedly be that he will proceed to loosen his anchor in Ireland and take himself elsewhere. The truth is that if you are going to apply discriminating taxation of this kind, taxation which will submit the people in Ireland to a burden which people in a corresponding position in England do not have to endure, you are making the government of Ireland hateful from the very start, and are seriously impeding any hope of a satisfactory and wholesome settlement coming out of this arrangement.

I find it extremely difficult to know what to do with this Amendment, and for this reason. As the Bill stands, to vote for this Amendment means to take away from the Irish Parliament practically all form of taxation altogether. There is nothing left, unless it be what I trust the noble Viscount will not think me discourteous if I call fancy forms of taxation which have never been tried anywhere at all up to the present moment. What is to be done? How are we to vote upon it? I sincerely hope that this discussion, and the discussion that took place the other night, may induce the Government to do now what, so far as I understand, they have never done up to the present moment —take steps to consult the opinion of the people who represent the South and West of Ireland, who would be only too willing to give you the benefit of their counsel and advice as to the best way in which you can use this measure for the purpose of restoring peace and some semblance of prosperity to their torn and most unhappy country.


Being in Committee I have the privilege of saving another word. There are two questions that have been rather mixed up in the discussion that has taken place. There is the question of procedure and the question of merits. The question which the noble Viscount gave prominence to in the early part of his speech was the question of procedure. He said that if my Amendment were withdrawn it would be free to the House to say whether the clause should be inserted or not, and that would be an easier way for the House to deal with it.

A matter of opinion must, of course, be decided by the noble Lord in the Chair, but I am pretty sure I am right in this. When you have two proposals, one to amend a clause and one to strike it out, you usually take the amendment of the clause first, and then the question of whether it shall stand or not as a clause hereafter. If you say "No" to the clause and the House decides to delete it, you clearly cannot at this stage of the Bill proceed to amend it. That will have to be done at a subsequent stage in a new clause. I am largely in the hands of the House and those who are responsible as to whether it will be better to withdraw my Amendment or not. Personally I am of opinion that it would be better to take the opinion of the House upon my Amendment and then decide whether or not the larger Amendment of the noble Viscount should be accepted. So much on the matter of procedure.

I should like to say that I very cordially concur with what the noble and learned Lord who has just spoken has said on this subject. The noble Viscount who represents the Government in regard to this part of the Bill made a condemnation of my Amendment the other night, part of which was on the same lines as the noble Lord, Lord Buckmaster, has stated to-day. He said that the subordinate Parliament would have no revenue, and that probably is so, but that does not touch the question of the hardship of the raising of the revenue in this particular way. No single speaker, I think not even the noble Viscount, said it was a just tax, and no single speaker in this discussion has attempted to defend the proposals which are in this clause. I frankly say it does not matter to me whether the clause as a whole is or is not deleted, but I think that even if we delete this power of new taxation we shall do good rather than harm, for this reason. I think it would give the Government the opportunity in another place of reconsidering the financial provisions of the Bill to some extent.

I differ from the noble Viscount, Lord Finlay, that his Amendment is less one of privilege than my own. I doubt very much whether there is privilege concerned in either, because I have always understood —and I am not a professional in the matter —that the question of privilege is only concerned when you are putting a tax on the British taxpayer. My Amendment certainly does not propose to put on any new tax, but if we had voted for the Amendment of the noble Lord, Lord MacDonnell, the other night, we should directly or indirectly have been obliging a reconsideration of the financial provisions of the Bill; we should have been insisting upon a further tax on the British population. My opinion is that it would be better on a matter of procedure to take the Division on my Amendment first if there is to be a Division. All the other Amendments are consequential and there will be no second Division, because if the first Amendment is carried the others will follow consequentially.

As a last word I wish to say that I think it will be desirable to accept this Amendment. From what we see in the newspapers and from what we hear I think there is a possibility of more agreement about this Bill than there has been in the past. I think if we send it back to the other place with this clause either altered or struck out, it will give the other place a chance for meeting a demand for some revenue which I agree they must have, and enable the subordinate Parliament to raise it in a less invidious way than this. Perhaps if we take this Amendment we may be laying the foundations for that very extension of the Bill in the direction of peace which was the subject of the very eloquent speech of the noble Viscount, Lord Grey of Fallodon, the other night. Under all the circumstances I think I shall be interpreting the wishes of the House if I adhere to my Amendment, leaving the question as to whether the clause as amended shall stand part of the Bill to a later decision.


My only anxiety in this matter is to get the clause into the best possible form. The difficulty I feel about the course which Lord Balfour of Burleigh has suggested is this. If the clause is amended as proposed I do not think the House will want to strike it out. The object of my Amendment is to strike it out because it gives this double power of taxation. The clause as amended would take away this double power of taxation altogether, but would give a power to remit a portion of the Imperial Income Tax, which is the only Income Tax left if the Amendment is carried. What I would suggest is that we should have both Amendments —that we should strike out the clause and substitute for it, as a substantive clause if the House so desires, the power of remission with regard to the Imperial Income Tax which is the substance of the Amendment. The words are all there in the terms of the Amendment.

I wish I could agree with Lord Balfour of Burleigh as to what the limits of privilege are. It is thoroughly settled that it does not apply merely to the imposition of taxes. Beyond all question it applies to modifying in any way the incidence of the tax. I think he will find that there is not the slightest doubt about it. I have given my own views as to there being no privilege about the proposal to strike out this clause altogether, and I am only anxious to get the matter straight.


I gather that on the substance of the matter Lord Finlay and Lord Balfour of Burleigh are agreed. They want to prevent the possibility of this extra Surtax being imposed upon Irishmen. The difference between the two noble Lords is only a difference as to the method of achieving that end. Lord Balfour of Burleigh is in possession of the House and has moved his Amendment. If it goes to a Division I cannot doubt that a majority of your Lordships will support him. But there is an additional reason why we should do so, apart from the fact that he has submitted his Motion for your judgment, and it is that it changes the Government's clause less than the Amendment of Lord Finlay does. We always seek moderation in your Lordships' House and do not desire to go further than is absolutely necessary. The Government clause proposes that the new Irish Parliament should have power not only to remit taxation but also to raise it in respect of Income Tax, and as the important part in the agreement of the two noble Lords is to prevent them raising it, we may leave that part of the Government clause which allows the Irish Parliaments to remit it if they think fit. It is not a matter of great importance between the two noble Lords, as the matter stands, and I think we may go to a Division and settle it.


We are all grateful to the noble Lord for moving this Amendment —certainly the Irish taxpayer should feel very grateful indeed. The prospect of obtaining relief from taxation is certainly one which positively makes one's mouth water, but I hardly think that your Lordships who are unconnected with Ireland need be in any hurry to be jealous of those of us who are connected with that country. It strikes me that the possibility of the Irish Parliaments being in any position, out of the pittance which they will receive under this Bill, to apply any funds to the relief of taxation is remote in the extreme. It is more likely that those Parliaments will be compelled to explore other sources of revenue in order to save themselves from bankruptcy.

There are those who are fond of saying that if Home Rule is granted to Ireland and an Irish Government is set up the first thing that Government would do is to pass unjust and vindictive legislation and to impose inequitable taxes. I do not believe an Irish Government would do anything of the kind. It is a little doubtful whether this Bill, imposing as it does partition on Ireland; a particularly hated thing in Ireland, and giving to the Irish people so small a share in the management of their own finances, will ever become operative. But if it does, and a Parliament for Southern Ireland materialises, I believe that that Parliament will be particularly careful to act with the greatest justice and impartiality in order to prove that Irishmen can manage their own affairs just as well as any one else.

We must not lose sight of the fact that these two Parliaments, when they come into being, will be particularly short of cash and the temptation to supplement their resources by so simple a method as the imposition of a Surtax may quite possibly prove almost irresistible. We are, therefore, particularly grateful to the noble Lord for proposing to put temptation out of their reach. In view of what has been going on in Ireland lately your Lordships and His Majesty's Government are prob- ably disinclined to make any concession whatever to Irishmen, but I should like to ask the House to consider what we Irishmen are giving up under this Bill and what we are getting in exchange. Ireland at this moment has a right to representation in the House of Commons larger in numbers than that to which her population entitles her, and man for man Irishmen have actually a larger say in the management of the affairs of the Empire than have Englishmen or Scotsmen. I do not say that that is as it should be. At the present moment it is true that the privilege of sitting in the House of Commons does not seem to be appreciated by the representatives of Ireland. But supposing that the elected representatives of Ireland were to come here in a body and were all to agree on demanding some concession for their country —it is supposing a good deal —how long would any Government be able to refuse to grant them the concession? I believe there is no concession to Ireland which the representatives of Ireland could not get if they combined to ask for it. Under this Bill we are to give up that representation, and to receive instead forty-six members of the House of Commons and two Parliaments in Ireland, which the majority of us do not want in the least. In spite of our greatly reduced representation in Parliament the House of Commons will continue to tax us. The House of Commons will provide the two Parliaments in Ireland with an allowance with which they will be expected to carry on the business of governing the country. If they find that allowance insufficient for their purpose they are empowered to impose certain Taxes, among other the Super-Tax.

Consider the position of the unhappy payer of Super-Tax if he becomes liable also to Surtax. It seems to me that there is nothing to prevent that unfortunate individual from being called upon to pay under all three Taxes —the Income Tax, the Super-Tax and the Surtax —an aggregate of 20s. in the £. Will anybody be found to argue that that is fair treatment to apply even to an Irishman? Some of us were at first a little tempted to support the Amendment in the name of the noble and learned Viscount, Lord Finlay, but after all what is there to be gained by taking away from the new Irish Government the power to grant relief to the taxpayer even if, as I ventured to point out, it is not likely in the near future that they will be able to exercise that power? I hope very much that your Lordships will accept the Amendment of the noble Lord, Lord Balfour of Burleigh. It seems impossible that the Parliaments of Ireland will ever have sufficient funds to grant the relief, but if at some future date, by dint of careful economy, they do find themselves in a position to give the relief we should all like to receive, then I think we shall have more cause to feel grateful to the noble Lord for having moved his Amendment than we have at the present moment, and we shall have reason to congratulate ourselves that we had the good sense to follow his lead and vote for the Amendment for moving which in your Lordships' House we thank him.


Before we go to a Division we ought to be quite certain what we are voting about. I am ready to vote against the proposal that an Irish Parliament should be allowed to impose this proposed Surtax on individuals. I agree with every word that noble Lords from Ireland said about that and I am prepared to vote with them. Undoubtedly, if the Amendment of the noble and learned Viscount, Lord Finlay, were moved, we should be voting with them and doing nothing else. Just now the noble Marquess, Lord Salisbury, said that he did not see much difference between the proposals, but as I read the thing there is a difference. Let me read the words at the beginning of the clause as they will be if the Amendment to strike out words and the consequential Amendments to insert words are carried. They will then read thus — The Parliament of Southern Ireland or of Northern Ireland shall have power to grant relief from Income Tax or Super-Tax or either of those taxes to individuals resident and domiciled — I do not pretend to be quite clear about it, but it appears to me that this is giving the Irish Parliament power to exempt individuals in Ireland from English Income Tax and Super-Tax. I believe that will undoubtedly be the effect of the clause if the Amendment is adopted. With all good will to the noble Lords from Ireland, while I am perfectly ready to vote against extra taxes being imposed —


I understand that is already in the clause. What my noble friend Lord Balfour of Burleigh leaves in the clause is already there.


I do not know. I should very much like to hear the noble and learned Viscount, Lord Finlay, on it again, but my opinion is that the Irish Parliament cannot interfere with the English Income Tax and Super-Tax. I am not prepared to vote for the Amendment, though I am prepared to vote for any Amendment for the relief of noble Lords from Ireland.


I apologise to the House for speaking again. I think there is no doubt that the effect of the Amendment of the noble Lord, Lord Balfour of Burleigh, is that the Irish Parliament will have power to remit the Imperial Tax and the amount remitted will be made good from the Irish Consolidated Fund, but it will be the remission of the Imperial Tax and of that only. It is not now in the clause. What is in the clause is power to impose an Irish Tax and power to remit that Irish Tax. The clause will be altered so as to turn the power to impose an Irish Tax into a power to grant remission from an English Tax. I think the House should realise what it is doing. I am most anxious to get the matter straight as it is important.


May I make it clear from our point of view? The noble and learned Viscount is right, no doubt, in saying that it is a reduction of an Imperial Tax, but if this Bill is passed Ireland has to pay, according to the Bill, £18,000,000 a year to Great Britain. No change of the Tax will affect that £18,000,000. The only effect will be that if Ireland could make economies and was able to reduce taxation she would have the power to do so. That seems to me to be eminently fair.


I spoke on the proposal on Thursday last and I do not wish to repeat what I then said, but out of courtesy to noble Lords I think that I ought to say something. I do not propose to follow the elaborate argument of the noble and learned Viscount on the question of privilege, because that really does not appertain to me and I never raised the question when I was speaking. I think a few words are due also out of courtesy to other noble Lords, and more particularly to the noble Earl, Lord Drogheda, whose forcible plea on behalf of Southern Unionists I think made a good deal of impression on your Lordships' House.

I am going to sum up the case as rapidly as I can. I shall deal purely with the Amendment and not with the further question of relief which I understand may be raised on another Amendment. The whole argument of noble Lords is this —that if this special power is given to the Irish Parliaments they will use it in an unjust and vindictive way. They know Ireland much better than I do, and if they think that Irish Parliaments are unfit to be trusted with this kind of taxation they will no doubt give expression to their views. But I wish to say quite shortly that that does not seem to me a strong argument in view of the overwhelming vote your Lordships gave in favour of the Second Reading of the Bill, because it does not require a Chancellor of the Exchequer of any ingenuity to act vindictively if he really wishes to do so. You cannot stop every hole, and in spite of what the noble and learned Lord, Lord Buckmaster, said, they have a great deal of freedom in raising other Taxes, and in regard to Taxes which have been raised before and are now handed over to them, they have complete power of wiping out (if they choose to commit such a stupendous act of folly) the wealthy people of taxable capacity in their own country.


Noble Lords from Ireland specially said that we were not afraid of any senseless or vindictive legislation on the part of the majority in Southern Ireland. What we were afraid of was that they would not be able to relieve us from a Surtax because their finances would not be sufficient.


I was fully aware of the argument by noble Lords. If the noble Earl had waited I would have dealt with it. But that argument was used by a number of members from the South of Ireland, that they were afraid of penal taxation. I will only say one word upon that. They have complete command over Death Duties, and if you wish to exercise penal taxation you can do it quite as well by Death Duties as by Income Tax. Further may I say, regarding the arguments used by the noble and learned Lord to the effect that if this punitive taxation were put on it would prevent people setting up business there and prevent Ireland being used as a place of residence, I should have thought that those arguments were just the arguments which would appeal to any Chancellor of the Exchequer as forcibly as they appealed to the noble and learned Lord, and one would hope that one of the results of this Bill would be, when there was no longer any motive for disturbance in Ireland, that a more reasonable frame of mind would prevail.

It is, I agree, a question of general policy, with which I am not now dealing, and it is a question also of knowledge of the country. I am going, however, to confine myself to the financial arguments, because on that point I can meet the arguments of noble Lords. They have said again and again that Ireland will be in such an unfortunate financial position that, not out of vindictiveness but out of financial necessity, she will be forced to put on an extra Surtax to the 12s. What that will yield of course I am not in a position to say. The financial position is entirely different from that, because as the financial matters are handed over to the Irish Parliaments they will have a surplus of £7,500,000 on an expenditure of about £14,000,000. Just think what would be the position of a Chancellor of the Exchequer in this country if he had a 50 per cent. surplus on his Budget. Yet that will be the position in Ireland, and if that is so what possible financial reason can there be for the Chancellor of the Exchequer to put wholly unnecessary taxation precisely on those classes of persons on whom he might have to rely if there was really financial strain. That is the financial argument —that on financial grounds no one in his senses could possibly put on such a Surtax.


Then why leave it in the Bill? Why have a Surtax at all?


That is a fair question, and I will give it an answer. The reason is this, that it does not follow that that will always be the situation. Noble Lords are looking upon the Income Tax and Super-Tax as if they were fixed in this country for all time. I do not say that I am extremely hopeful that there will be very much reduction in the Income Tax or Super-Tax in this country in the very near future, but we are legislating not for to-day but for the future, and it may happen that in the future Income Tax and Super-Tax may be largely reduced in this country. It might quite well happen that the Irish Government did not want to have exactly the same rates of Income Tax and Super-Tax as the British Government, and the whole of this clause is for the purpose of giving as much freedom to the Irish Government as it is possible to give it in the matter of these taxes. I have explained the administrative reason why it is impossible to hand over the administration of the Income Tax to the Irish Government. Then is the Government to give them, short of controlling the Income Tax, the widest possible freedom in dealing with it; and it is a proposal also which deals not with existing circumstances to-day but possibly for a great many years to come.

There is only one other point before I sit down, and it is the argument of the noble Earl, Lord Midleton. It is an interesting point and it was this. I think he voted for giving general freedom of taxation to Ireland, and he said that he was going to vote against this particular proposal of the Government because if the Irish Government were, as it were, headed off the general sources of taxation they would be more likely to concentrate upon this particular tax. Surely if that is so he ought rather to support the Government, because he is not going to cure that difficulty by still further curtailing the financial responsibility of the Irish Parliament. That is, I think, a very short statement of the position of the Government. It all rests upon the confidence which you have in the way in which the future Irish Government would be conducted; and if you have so little confidence in the way in which they will deal with this power I do not see why the Second Reading was carried by so large a majority. I am, however, conscious, of course, that there is no very great support in this House for the proposal of the Government, and in fact I think if your Lordships went to a Division there would probably be an overwhelming expression of opinion against it. Under those circumstances —and as your Lordships know the Government wish to act with moderation, as they were counselled to do by Lord Salisbury —the Government do not wish to put your Lordships to the trouble of a Division, and I can assure your Lordships that your strong expression of opinion upon this particular matter will be very fully and carefully considered by the Government.


I must say that I desire to be quite clear as to what point we are dividing upon.


We are not going to divide.


I want to be quite clear what it is we are going to do. I am very much obliged to Lord St. Davids for making clear to us the difference between Lord Finlay's Amendment and the Amendment of Lord Balfour. As I understand, the Bill gives power to the Irish Parliament to put on a Surtax and take that Surtax off. Lord Balfour's Amendment deprives the Irish Parliament of the power of putting on the Surtax, but gives them the power of taking off some of the existing Imperial Income Tax and Super-Tax. I am not in favour of that. I think my view is met by Lord Finlay's Amendment.


I do not know whether I can save trouble if I deal with that particular point. I thought your Lordships were going to deal with Lord Balfour's Amendment. Of course, the point raised by the noble Earl is quite plain. This power of relief will not enable the Irish Government to alter the Imperial Income Tax and Super-Tax. All it does is this. If persons or classes of persons in Ireland are paying say 6s. in the £ and 3s. Super-Tax it enables the Irish Government to give them relief out of other taxation, and so ease the burden on them. It does not give them ally power whatever to alter the existing rate of the Imperial Income Tax or Super-Tax. I think that makes the point quite clear.

On Question, Amendment agreed to.


I understand that the remaining Amendments are consequential.

Amendments moved —

Page 25, line 3, leave out from "respectively") to the end of line 5.

Page 25, line 6, leave out ("or the relief") and insert ("and such relief may be").

Page 25, line 7, leave out ("exceeds or").

Page 25, line 8, leave out ("imposing the tax or").

Page 25, line 9, leave out from ("relief") to the end of subsection (1).

Page 25, lines 12 to 15, leave out subsection (2).

Page 25, line 22, leave out ("the levying and collection of any such surtax and").

Page 25, line 25, leave out ("the proceeds of the surtax shall be paid into and").

Page 25, line 32, leave out ("levy and collect such surtax or").

Page 25, line 35, leave out ("collected or").

line 36, leave out ("collected or"). (Lord Balfour of Burleigh.)

On Question, Amendments agreed to

Clause 24, as amended, agreed to.

Clauses 25, 26, 27, 28 and 29 agreed to.

Clause 30:

Irish Church Fund.

30. The Irish Church Temporalities Fund shall belong to and be apportioned between the Governments of Southern Ireland and Northern Ireland in such manner as may be determined by the Joint Exchequer Board, and the parts apportioned to the several governments shall be managed, administered, and disposed of as directed by Act of the appropriate Parliament:

Provided that all existing charges on that fund shall, if and so far as not paid, be paid out of the Exchequer of the United Kingdom, and be made good by means of deductions from the Irish residuary share of reserved taxes in accordance with regulations made by the Treasury.

THE EARL OF MAYOmoved, in the proviso, to leave out from "Kingdom" to the end of the clause. The noble Earl said: This Amendment deals with the Church Temporalities Fund. As that Fund is in a totally bankrupt condition the whole of its liabilities would fall upon the Irish Government. I do not know whether the Government here are aware of that fact. The liabilities of the fund exceed its assets, and the Amendment which I propose would prevent the existing charges being borne by the Irish taxpayer.

Amendment moved —

Page 29, line 25, leave out from ("Kingdom") to the end of the clause. —(The Earl of Mayo.)


The proposal of the noble Earl is a direct attempt to lay a special charge upon the British taxpayer, and I think a most unfortunate one. These matters are wholly Irish, and if there is any deficiency in the Irish Church Temporalities I think that deficiency should be made good from Irish sources. The noble Earl wants it to be made good from British sources. I can only say that the Government must oppose that absolutely, because it would lay a further charge on the British taxpayer for a purely Irish service.


I shall not press this to a Division, because I know I should be badly beaten, but I must protest against this most strongly. It further waters down some of the money that we are told we are to have so much of. A portion of the £7,500,000 has gone already by a few words from the noble Viscount.


The noble Earl is insatiable. He wants more contributions from the English taxpayer.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clauses 31, 32, 33, and 34 agreed to.

Clause 35:

Future consideration of the transfer of Customs and Excise.

35. If at any time after the date of Irish union an address for the purpose is presented by both Houses or the House of the Parliament of Ireland, the Joint Exchequer Board shall forthwith take into consideration the transfer to the Parliament and Government of Ireland of the powers of imposing, charging, levying and collecting customs duties and excise duties reserved by this Act, and report thereon and on the methods by which in case of such transfer the payment of the Irish contribution to Imperial liabilities and expenditure can be secured, and shall cause a copy of their report to be laid before the Parliament of the United Kingdom and the Parliament of Ireland.

TILE EARL OF SELBORNEmoved to leave out Clause 35. The noble Earl said: We had a debate last week in which the Government opposed a proposal of my noble friends behind me to transfer the Customs at once to the Irish Parliament. That debate was a fairly full one, and I have no intention of repeating the arguments to the House which I then addressed to it. But the Government on that occasion, according to my recollection, took their stand on a very clear expression of principle. It is because this clause seems to me to be inconsistent with the principle on which the Government then took its stand that I move that the clause should be deleted from the Bill.

What does this clause do? It makes no promise to the Irish Parliament, but it holds out a distinct hope that if the Parliaments of North and South Ireland can agree on a scheme by which control of Customs shall be transferred from the Imperial Parliament to these two local Parliaments, the Imperial Parliament will consider favourably their proposal. I do not believe that it is possible, consistently with the safety and interests of the United Kingdom, to give Customs to any local Parliament, be it Irish, Scottish, or English. I know that my noble friends the Peers from Ireland believe that on this question hangs the possibility of a real agreement and settlement (so-called) between the two nations. I believe nothing whatever of the kind. Although it might patch up a temporary settlement I think that if the Customs were transferred to Ireland it would be the beginning of a new stage in the age-long tragedy between the two countries. I do not believe it possible for Ireland to control its own Customs without friction arising between the two Islands that would be more dangerous than any friction that has hitherto existed. It is because I think two sets of Customs-Houses within these Islands is absolutely incompatible with the welfare or prosperity of the two Islands that I move this clause be omitted.

Amendment moved — Leave out Clause 35. —(The Earl of Selborne.)


The noble Earl has been a very consistent critic of this Bill throughout, and has always attacked any proposals which might interfere with any Federal solution of the question of the Government of these Islands. He is also strongly, on general grounds I understand, against at any time allowing Ireland to control its own Customs. This clause does not go so far as that. It contemplates the position that might possible arise when the two Parliaments become one, and when, therefore, a totally different situation has arisen in Ireland as regards general feeling both between themselves and, let us hope, this country, than exists at present. This does not prejudice the case in any way. It does not suggest even that the Customs should be handed to Ireland, but it leaves the door, not open but, shall I say, ajar. All it does is to suggest that if an Address is presented by the Irish Government a Report can be made by the Exchequer Board to the Imperial Government on the particular point. It was probably felt that if such a question as the handing over of the Customs was the one bar to complete goodwill and reconciliation between the two countries, that might not possibly be too great a price to pay, if it would really secure it. But this does not do that. It leaves the matter open to report, and possibly to that limited extent the noble Earl might not object to the clause.


I cannot agree with my noble friend who has just spoken, that this clause only leaves the door open. It seems to me that, if anything, it is a pledge that the matter would be seriously considered. If the thing was not done, if the people in Ireland considered this as really no pledge at all, they would undoubtedly complain that faith had not been kept with them. I do not think it does leave the matter quite like that; if I thought it did, I should be bound to vote for the noble Earl's Amendment.


The position in Ireland with regard to the transfer of the administration of the Customs and Excise is this. The idea is that there should be a permanent free trade arrangement between Great Britain and Ireland, that it would be entirely unnecessary to have Customs barriers to carry out that arrangement, and it is hoped that there would be very little difference between the existing arrangements if the transfer was effected. It always has been the expectation of Irish Nationalists that the administration of Irish Customs and British Customs should very closely approximate to what they are now, and that the real difference would be to transfer to the Irish Parliament the power of informing themselves that the administration of Customs was conducted in a manner satisfactory to Ireland. The idea of making Britain the antagonist of Ireland in regard to Customs has never been felt by Ireland. Inasmuch as the question has been decided I think I need say no more at present, but so long as you keep the administration of Excise and Customs in British hands and exclude Ireland from the administration altogether you will never settle the. Irish question.


I hope that noble Lords, especially noble Lords from Ireland., will not agree to the Amendment moved by the noble Lord, Lord Selborne, and delete this clause from the Bill, because after all I entirely agree with what the noble Viscount said, that it leaves the door ajar. This is a clause that looks very far into the future. If we are going to have a peaceful and proper agreement in the future between the two countries it is quite right that this matter should be taken into consideration, and there is no reason in the world why there should not be free trade between the two countries over this Customs business. I see the noble Lord smiling, but it is possible for an arrangement to exist between the two countries. That is a very different thing from imposing Customs on articles coming from abroad. I hope that your Lordships will not throw out this clause but will give Ireland a chance of being able in future to impose, levy, and to collect its Customs and Excise duties. I lay great stress upon this matter because there are in it the germs of a peaceful solution of a very much debated question in the country from which I come.


Clause 35 certainly does not impose in any way whatsoever an obligation on the Imperial Parliament to make this change. The question will have to be considered by the Joint Exchequer Board, who will report thereon and on the methods by which in case of such transfer the payment of the Irish contribution to Imperial liabilities and expenditure can be secured, and they are to cause a copy of their Report to be laid before the Parliament of the United Kingdom and the Parliament of Ireland.

Certainly this Bill has not been favourably received by Southern Ireland. I have spoken against several of its clauses myself, but the deletion of this clause, containing as it does the possibility at any rate of some future adjustment of this question of finance without binding the Imperial Government to it, would certainly carry dissatisfaction still further. The clause in no way does more than this. We have heard much of the great business capacity and the great loyalty of Northern Ireland to the Empire —two facts that I, for my part, freely and at once concede. I would also wish to be able to claim that we are making an incorrect assumption if we think that there is no business capacity and loyalty in the South of Ireland. But both North and South will have to combine to consider this matter. There seems to be in this clause what is always regarded as a protection —I mean the interference in any question of the Northern Parliament, then of the Joint Exchequer Board, and, finally, there is the all-powerful interference of the Imperial Parliament. I ask your Lordships not to delete this clause. It is quite true that it does not go far enough, but it goes some way and the deletion of it would cause intense dissatisfaction in Ireland.


Before the House actually divides, I would like to say why I differ from my noble friend who moved this Amendment. This matter has been discussed until it can be discussed no longer in Ireland. There was but one feeling on the part of all the Southern representatives at the Convention, except those who were acting together and are present in this House. That feeling was that no settlement would be secured on the question of Customs unless they were finally at some time to become the property of the Irish Government. I should have thought my noble friend would have been satisfied that the contingency is a pretty remote one, or the Government would not have put Clause 35 into the Bill. It assumes a union between the two parts of Ireland. I cannot imagine anything more unlikely than that union will ever result from this Bill which sets up two Parliaments that will be mutually very disinclined to give in to each other. Therefore I look upon the contingency as remote.

On the other hand, my noble friend anticipates very great friction between Ireland and England as the result of any separate Customs arrangements. Logically I dare say he is correct, but logic has never governed Ireland and never will. The suggestion was made —and I believe it is an extremely possible one to carry out —that you should have an agreement of free trade in the products of the two countries between Ireland and England for a term of years from the commencement. I quite admit if Ireland had separate Customs with regard to foreign products that would not prevent the necessity of putting up Customs-houses, but as I told your Lordships the other day the Customs Department in this country do not anticipate any serious difficulty in that respect.

There is a great deal of practical ground for this Amendment. There is no question that the difference in the habits of the two populations is very great, and the ability to bear Customs duties is quite different in many parts of Ireland from what it is in this country. But the case I put forward is this, that if you desire this Bill to have any effect at all in Ireland and you decide to exclude any possibility of Ireland obtaining Customs and Excise you may regard the Bill as dead before it ever reaches Ireland. For that reason I must vote with the Government.


I think the contingency is very remote that this clause will ever come into operation, but at the same time it leaves us, if not with a probability, at any rate a possibility that at some time Ireland will be given control of her own taxation. I would remind the noble Earl that if this Bill is thrown out the 1914 Act comes into operation automatically. That Act contains a provision of much the same kind, but that is a matter to be considered when the expenditure and revenue of Ireland balances. It balanced long ago, and therefore if you omit this clause it would be necessary to eliminate that provision in the Act of 1914. It would be necessary, too, to contradict everything that has been said by the Prime Minister to the Convention. In fact, to omit this clause would do away with all possibility of peace in Ireland. The one thing that we who more or less represent the South and West of Ireland know is that this Bill, or any Bill for granting a measure of self-government to Ireland, has not the remotest chance of making a settlement and of being a success until you give the Irish Parliament, or the Irish Parliaments, control of their own taxation.


To give the Irish Parliaments control of their own Customs may be a good thing or a bad thing. What I submit to your Lordships is quite impossible is that the Irish Parliaments should have free trade with England and a Customs barrier against foreign countries. That has been actually suggested by Lord MacDonnell and my noble friend behind me. Let me follow that out in a single case —potatoes. The Irish grow a great many potatoes, and they want (let us say) to protect themselves against French potatoes. But they have free trade with England and therefore there is no duty against the English potatoes. All that the potato merchant in England does is to import potatoes from France, because there would be no duty against potatoes in England, and to transmit them to Ireland. The whole thing breaks down at once.

On Question, Amendment negatived.

Clause 35 agreed to.

Clause 36 agreed to. Clause 37:

Clause 37:

Establishment of courts.

37. The Supreme Court of Judicature in Ireland shall cease to exist, and there shall be established in Ireland the following courts, that is to say, a court having jurisdiction in Southern Ireland, to be called the Supreme Court of Judicature of Southern Ireland, a court having jurisdiction in Northern Ireland, to be called the Supreme Court of Judicature of Northern Ireland, and a court having appellate jurisdiction throughout the whole of Ireland, to be called the High Court of Appeal for Ireland.

THE EARL OF DESARTmoved to leave out Clauses 37 to 42, and insert the following new clause —

"37. —(l) Until the establishment of a Parliament for all Ireland, all matters relating to the Supreme Court of Judicature of Ireland shall be reserved matters and the Lord Chancellor of Ireland and all judges of the same court shall be appointed in the like manner, and hold office and enjoy the same salaries, rights, powers and privileges as heretofore, and their jurisdiction shall extend over Northern Ireland and Southern Ireland, and over all inferior courts situated therein, but the law shall be administered by the said court in accordance with any statutory enactments having special force within Northern Ireland or Southern Ireland respectively.

"(2) The rule making authority in Ireland established by the Judicature (Ireland) Act, 1877, and the Acts amending and extending the same shall in addition to the powers now possessed by them have power and authority to make rules providing for the sitting from tine to time of the Divisional Courts and of the Courts of Appeal, in the city of Belfast as well as in the city of Dublin.

"(3) Rules shall further be made giving power to the said court to assign at any stage any cause or matter originating in the court sitting in Belfast to time court sitting in Dublin or originating in the court sitting in Dublin to the court sitting in Belfast. All writs of execution, injunctions, habeas corpus, or any other writ, process, or proceeding by which orders of the said court are now enforced, and all commissions of assize and other commissions now issued to judges of assize shall continue to issue as heretofore under rules to be made by the said authority.

"(4) There shall be established in Belfast for the purpose of discharging such business as the rules making authority shall allocate to them such offices and staff as may be prescribed by the Lord Lieutenant.

"(5) The extra cost occasioned by the operation of this section shall be certified by an officer nominated by the Treasury, and shall be chargeable in respect to the services of Northern Ireland, and shall be paid and borne by the vote for such services in Northern Ireland.

"(6)"Originating" in subsection (3) of this section shall mean commenced by writ, summons or process in the offices in Belfast or Dublin.

"(7) The provisions of this Act as to existing judges and existing pensions shall after the date of Irish union with the necessary modifications extend to the judges who at that date are judges of any of the said courts and to any pensions which at that date are payable to any person on account of service as such judges."

The noble Earl said: The object for which I have put down this Amendment, which is connected with the future arrangements for the Judicature and the administration of the law in Ireland, is quite obvious. My purpose is, so far as may be possible under the changed Parliamentary conditions in Ireland, to preserve the system, the administration, and the working of the law as nearly as may be as it is. I have felt it my duty to put this down, not only because I felt that it is desirable, but that I know there is a very large body of business and commercial opinion in Ireland that looks with consternation upon the changes that are proposed to be made in consequence of the creation of the two Parliaments.

I hope I shall not be too sanguine in saying that I think the noble and learned Lord on the Woolsack will probably agree that, as a general proposition, where you have a system of law that has been more or less uniform for centuries, where there has been a common Judiciary and a common Bar —a profession and an administration united —and where the law is not changed and the Judiciary continues to be appointed by the same authority, it is undesirable, with a population of 4,000,000, to divide that Judiciary, to divide that profession, to divide that administration, giving a separate Judiciary and a separate administration to I ¼millions of people. That, as an abstract proposition, most people would agree upon. The question, therefore, that I have endeavoured to consider, and on which I hope to obtain the opinion of the Lord Chancellor, is whether the creation of these two Parliaments involves the necessary consequence that that should be done which is proposed to be done in this Bill. It does not, I confess, appear to me to be so, and if I should be right in that I do not see why you should disturb the existing arrangements more than in some small details because of the possible operation of this Bill.

In my judgment, and as far as my intention goes, this has nothing whatever to do with politics. That at any rate is not my idea, and I beg my noble friends from Ulster and the Government to accept that personal assurance. I have regarded it purely and solely from the point of view of the administration of justice, and the advantages to the business men of the country, who are, or who may be, litigious. I do not see that it is necessary to change the whole judicial system because of these two Parliaments, or that, by leaving it as it is, you would alter in any way thestatusof the Northern Parliament of the Southern Parliament,or the position of the inhabitants of the Northern or Southern province under these Parliaments. Of course, I recognise that it may be said, and truly said, that usually when you create a Parliament, which is in a sense sovereign, the administration of the law is one of the things which it should supervise and control. But I think that the circumstances are so unusual in this case that you cannot apply logically that provision —or you would not apply logically that provision. I should perhaps have been in a better position to deal with this question, and to deal with it possibly more shortly, if I had had the advantage of hearing some exposition from the Government of the grounds on which they thought it necessary to make these very drastic changes.

I hope the noble and learned Lord will not for a moment think I am complaining. In the very lucid statement he made on the Second Reading he naturally directed himself to the more controversial political aspects of the question, but it is a fact that on this particular subject we have not heard any exposition from the Government of the course they have adopted, and I cannot but observe that this course was not adopted in the year 1914 in the Amending I Bill when it was proposed equally to create a partition of Ireland. In the same way a partition of Ireland would have extended the Northern Province to the whole of; Ulster, and therefore the new Province, or the separated Province rather, would have had a larger population than is the case under this Bill where only six counties are included. I may he stupid, or I may be unwise, or perhaps I ought to appreciate the reasons. At any rate I can call that in aid, that when the Government of that day —I think my noble friend Lord Crewe was responsible for the Bill in this House —adopted the course of partition they did not think it necessary to alter the judicial arrangements.

The effect, it seems to me, will in many ways be so injurious to the interests of justice and to business that I cannot but submit, if it be possible to avoid it, if it is not a necessary consequence of the Bill, it should be avoided. You have judicially in Ireland a united Bar and a united body of solicitors. The Bar have the right of audience in all Courts in Ireland; the solicitors have the right to practice in all Courts of Ireland; and I have been trying to work out in my own mind what would be the consequence of altering that. Take the Bar, in the first instance. The existing barristers' rights are safeguarded under the Fourth Schedule, front which I infer that future barristers would have to elect specifically in which area or province they will practice, and they will not have the right of audience in the other one. In regard to solicitors, it is specifically stated I that while all existing solicitors shall become solicitors of the Supreme Court of both Southern and Northern Ireland, any person who is afterwards admitted to the Supreme Court of Southern Ireland or Northern Ireland is a solicitor only of the Court to which he is admitted. So that it will in effect ultimately separate the Bar and the solicitors' profession.

You have also as regards the Bar an old-established Inn of Court, the King's Inn. That is, I understand, like the Inns of Court here, responsible for the examinations, the education and call of barristers. The King's Inn has funds, and has the means of doing this. Is it proposed —I do not know —to have a separate Inn of Court for the Northern Province by which the same functions are to be performed, and is it to be endowed with funds to provide for its examinations and its examiners or not? Equally with regard to the solicitors' profession, is there to be a separate Incorporated Law Society in the North, and are solicitors to be admitted and educated, and is provision to be made for that, and if so, how? I am sorry to be obliged to put my speech in so interrogatory a form, but the answers to these questions are important and have a bearing on the view your Lordships may take of the matter.

Then you will have to a large extent, as it seems to me, to duplicate the officers attached to the Courts. It is quite true that in any case you must make arrangements for the sitting of the Judges continuously in Belfast, and you must make arrangements for such officers as are required to attend them, but by transfer I should have thought that could be done in a more simple way than a complete establishment for all these offices both in the North and in the South. I think it is deplorable to create judicially a small Bar in a small Province. I think you lose a great deal by it. I do not want to press that, because that is a question of feeling, but it is a conviction I have myself. You will lose breadth, you will lose experience of different classes of people, and on the whole I believe that the administration of justice will to some extent suffer judges are a reserved service until Irish union; therefore there is no difference in their appointments. They are appointed by the King in either case, and whether they are allotted to the Northern Province or the Southern Province does not appear to be a very serious matter. A Judge is not, or ought not to be, a politician. What you want is a lawyer. I can understand the argument that for Parliamentary purposes the majority should have the preference, which is the argument I think for Ulster, so that they may be properly represented and have their proper share of authority, but ] cannot see that that in any way applies to judicial officers who are not politicians. Some day we hope there may be Irish union. If Irish union comes all this elaborate machinery created for the two Provinces will have to be reconsidered, and no doubt there will be vested interests that will have grown up which will also have to be regarded and dealt with in some way. It is a question of whether it is a necessary consequence. You always come back to that. Is it, or is it not? If not, I submit that all considerations render it undesirable.

I do not want to sit down without referring to one or two details, I do not say small details, because they are important. There will be all the inconvenience of service of writs out of the jurisdiction, and things of that kind. There is one matter that is very serious, and I confess I do not see how it is to be got over; it may be that it is unavoidable. There is no country in which it is more necessary than in Ireland to have the opportunity of changing the venue from North to South. I have no hesitation in saying that it is absolutely necessary in many cases if justice is to, be done at all, whether it be in civil or criminal cases. As I read the provisions of the Bill, that must disappear. I regard that as so serious a matter in the real interests of justice that I should be very glad if the Lord Chancellor could say, either that it could still be done or that there were any means of providing that it should be done consistently with the establishment of these two Parliaments. Is there any real object in depriving the Lord Chancellor of nearly all his functions in the historical office always held by a distinguished lawyer where he has for many many years performed certain functions of great importance and great dignity to the public advantage? As far as I can make out without going into details, there is really, with the exception I think of charities or lunatics or one or two other things, very little left to him except his salary.

Then in regard to the new tribunals to be created, I am not quite sure whether I follow it altogether, but it seems to me that you have added one Court of Appeal. There is under this Bill to be the Court of trial, then —perhaps the Lord Chancellor will tell me about this, because I cannot quite make it out —there is a Divisional Court for some purpose; there is an appeal from the Divisional Court to the Provincial Court of Appeal, from the Provincial Court of Appeal to the Court of Appeal for Ireland, and from the Court of Appeal for Ireland to the House of Lords. If my view is right you have added a Provincial Court of Appeal, and I do not know why If there is a Divisional Court. I should have thought you should have gone direct to the Court of Appeal for Ireland.

It is undesirable in a small country like Ireland to have two complete Jurisdictions, one of them containing a population less than that of the West Riding of Yorkshire. Yon have historical continuity, your law known and administered by experienced Judges, a Bar who are accustomed to act together, and it seems to me undesirable to scrap it if it can be avoided. Without derogating at all from the independence of the Parliaments, either of Northern or Southern Ireland, you might have carried on the common flow of justice perfectly without giving umbrage to one Province or the other.

I hope no one in Ulster will think that this is part of a plan of the Southern Unionists to attack the independence of the Northern Parliament. I can give my personal assurance that I have never looked at it in that light, and speaking also for a large body of business opinion in Ireland they have never looked at it in that light. They regard with consternation this disturbance of the Courts, and I hope, even at the last hour, that this question will be reconsidered. The impressive manner of the Lord Chancellor may convince me that I am wrong, and that there is some reason for it which I cannot controvert. I am the last man to be dogmatic. But this is an important matter. If the only reason for it is that it would appear to derogate from the dignity of the Northern Parliament, but in practice does not do so, I think the decision ought to be on the balance of advantage to the whole community and the administration of justice, which in my opinion is the central and most important feature of any organised society. If that can be secured it will not be too much to ask our friends in Ulster to sacrifice the form for the substance and allow that which has given satisfaction to Ireland, which has a great history behind it and is clung to by nearly every practitioner of the law, to be maintained.

Amendment moved — Leave out Clauses 37 to 42, and insert the said new clause. —(The Earl of Desarl.)


Before the Lord Chancellor deals with the Amendment I should like to refer to another suggestion which is not quite the same as that of the noble Earl, but which is quite relevant to the clause with which he is dealing. I know of no precedent for a State with its own Parliament not having its own Judges. In every State in Australia, in every Province in South Africa and in every Province in Canada you find the Judges belonging to the State or Province; and it is only natural that they should be, for by adopting that course you are not only increasing the confidence in Judges but avoiding friction in every way. Although that is my view on the general question I think these clauses as to the Judicature are capable of great improvement. I will put to the House exactly how the matter stands under the Bill. A litigant in Southern or Northern Ireland goes first to the High Court of Justice for the Province. From that Court there is an appeal to the Court of Appeal for the Province. From there —the noble Earl is mistaken in thinking that there is a Divisional Court because they are abolished by one of the subsequent clauses —


I am not quite clear on that point, because you will find later on something about the Divisional Court. I am not certain whether it is abolished for all purposes.


There is some doubt whether Clause 40 does not in substance do away with the Divisional Court in nearly all cases. Let us assume that they go. From the Court of Appeal of the Province there will be an appeal to the Court of Appeal for Ireland, and from that Court to the Home of Lords in case of need. The unfortunate litigant in Ireland may have, therefore, to pass through four tribunals before he gets a decision. We in England have only three tribunals to pass through —the High Court, the Court of Appeal, and the House of Lords. Scot- land is in the same position; and it is strange you should impose upon the smaller districts of Northern and Southern Ireland the great burden and expense of four tribunals before getting a final decision. I suggest to the Lord Chancellor that he should consider this point. The right way of dealing with it in my opinion is to dispense with the Provincial Court of Appeal. In that I am in agreement with Lord Desart. You will then have a High Court in the Province, the Court of Appeal for the whole of Ireland, and from there an appeal to the House of Lords.

I should like to add that in that case you should and ought to improve the proposed constitution of the Court of Appeal for Ireland. I do not much like the proposal that it should consist of the Lord Chancellor and some one nominated by the Lord Chief justice for Southern Ireland and some one nominated by the Lord Chief Justice for Northern Ireland. That is not the right way to constitute what should be a great Court. And, if you abolish the intermediate appeal, you would be able without the least increasing expense to form a strong Court of Appeal of Judges permanently allotted to sit in that Court who would then deal with all the appeals from the whole of Ireland. I put down some Amendments on this point, but I do not move them to-day because it seems better that your Lordships should consider first the wider question which the noble Earl has raised, but I propose to put down some Amendments for the next stage of the Bill and I hope the Lord Chancellor will give them his consideration.


I should like to add a few words in support of the Amendment. I agree entirely with Viscount Cave as to the constitution of Irish Courts. There can be no doubt that having four Courts —the High Court, the Court of Appeal, the High Court of Appeal, and the House of Lords —is in itself necessarily not only a cumbrous method but so expensive that it might really mean a denial of justice. These are matters, however, which might be dealt with subsequently as regards the constitution of the Courts.

The noble and learned Viscount's objection to the Amendment is framed in this way. He says that wherever you have an independent Legislature, or a semi-independent Legislature, you ought to have also the power of appointing the Judges.

He gave the analogy of Australia and Canada. I do not think that that analogy has any bearing in the particular case, and on this point I wish to say it word or two as to the hearing of Clause 46, which is one of those proposed to be omitted. As I. understand Clause 46 —I have no doubt the noble and learned Lord, the Lord Chancellor, when he replies, will tell me if I am wrong, because this is a matter of the adjustment, of the administration of justice —the Judges will be appointed after the Bill is passed precisely in the same way as they are appointed at present. Not only will they be appointed in the same way, but there will be no change until there has been a union between the two Parliaments. Therefore, so far as the question of the appointment of Judges is concerned no alteration is suggested by the Bill. I am aware that their functions will be somewhat different and that there will be differentiation in terminology as between the North and the South. I think that is an answer to what the noble Viscount has said.

It might have been thought a proper thing to give the appointments, in some form, to the North and the South respectively, but that is not done. Personally I am glad it is not done, because think that a common judiciary is of enormous importance to the proper administration of justice in Ireland. While that provision exists, what reason is there for the division of the Court itself as between the North and the South? It is contemplated, at some time or other, that the distinction should be done away with, but if in the meantime the apointment of Judges is carried on as it is at present, there I do not think the objection raised by the noble and learned Viscount applies in this particular case. I put down an Amendment to leave out Clause 37 in order to raise the question. Without pledging oneself to all the terms of the noble Earl's proposal (which I have no doubt he would be the first to admit is capable of amendment), the principle is right and I shall certainly support it.


It is, I imagine, necessary that a debate upon this Amendment should largely drift into the discussion of legal and technical matters, and consequently I fear it invites —indeed, it almost provokes —interference in the debate by people who have been accustomed to the administration of the law. It seems to me that there are two things which this Amendment covers. The one is the general question of principle, as to whether or not you could assent to two distinct systems of judiciary in the North and the South of Ireland, and the other is a question of detail as to whether the detailed provisions of the Bill relating to the establishment of Courts and other similar matters could not be amended, even assuming that the general scheme were retained. I am strongly in favour of this Amendment, and I wish to tell your Lordships in a few sentences why.

No one will deny, that the establishment of a strong judicial system in Ireland is essential. If it were possible to secure respect throughout Ireland for the administration of the law half the difficulties of the Irish Government would be solved, and the fact that, that administration has not hitherto been universally respected is partly due, as I think, to mistakes that could be remedied, and partly to prejudices and ill-feeling which it would take a long time to remove. The part that I think could be remedied is this. I think, and I have always thought —and the noble and learned Lord, I know, will bear me out in this —that immense harm has been done to the administration of justice in Ireland, and not infrequently in this country too, by the use of judicial office as a reward for political service. I believe that there is nothing that tends to undermine the administration of justice more completely than that. It is particularly true in a country like Ireland, which is torn by political dissension, and if you are going to set up a new system for the administration of justice there, it certainly would be of the highest importance, if it were possible, to get the appointment of the Judges made so that no one could say they had been used not as the recognition of true legal eminence but as a reward for political fidelity. I say this with the less hesitation because, if the noble and learned Lord will permit me to say so, the power that he has exercised in this matter has, I believe, been absolutely unexceptional in its exercise, and as an old political opponent and one who has often spoken very strongly upon this matter, I think such a small recognition, if he will allow me to make it, is only what is due. But you cannot be certain, unless you can do something to put this matter outside the moving and contending forces of politics, that such a desirable result will be secured.

The first reason why I support the Amendment is that it seems to me that if you could establish one general system for the administration of justice over the whole of Ireland you would be far more likely to get rid of that danger than you would be if you retain two small judiciaries. The next reason is this. It has been pointed out by the noble Viscount, and no one can answer it, that the system which is established by this measure imposes a very grievous burden upon the Irish litigant. The idea that you are assisting in the determination of justice by multiplying the possibility of appeal I believe to be a profound mistake. If you want to set up the best conceivable form of Courts the way to do it is so to strengthen your tribunals at the base that appeals will be as few as possible, and instead of thinking that you should always be attempting to remedy mistakes that have been made in the lower Courts you should try to limit the possibility of those mistakes as far as possible, and at the same time limit the possibility of appeal. There is no use our pretending that the law is really the same for the rich man and for the poor if the rich man, with unlimited funds at his disposal, can drag the poor litigant from Court to Court until his funds are exhausted; nor, indeed, is it always fair to the rich mean that he can equally be dragged by a wholly impecunious opponent from one Court to the other in an unending chain of appeal. I am quite certain that for the best administration of justice the fewer Appeal Courts you establish the better; and this establishes a series of Appeal Courts under the burden of which, it seems to me, the unhappy litigant in Ireland may well be pressed to death.

There are one or two smaller matters which I will only mention in passing. One is the provision that you must appoint, or the Lord Chancellor may appoint if he considers it advisable, five Judges to sit in the Court of Appeal, and if he is unable himself to sit the Court is to consist of four Judges. Four is, of course, the most undesirable number you could possibly obtain for a Court of Appeal, because by sonic strange means if you set four men in a Court of Appeal they develop differences of opinion which never arise if there are three or five, and they invariably result in an division of opinion, and the effect is that the judgment of the Court below stands and the appeal and everything connected with it is simply a waste of time and money. The only result is to throw a heavier burden upon the unhappy litigant, because the case has to be heard again, a procedure which has always met with my uncompromising opposition, because it seems to me hard that, owing to the composition of the Court, with which the litigant has no concern and over which he has no control, you nevertheless throw upon him an expense which may be many hundreds of pounds.

I know that in this and other matters I may be only expressing my individual view. I think that three is as strong as five for a Court of Appeal. I do not believe you obtain judicial strength by multiplication of numbers. If you select your three men well you will get the finest Appeal Court that you can possibly desire, and you do not make it at all stronger by putting two more men to sit in it. The noble and learned Lord will, I know, realise that my criticism is not intended in any unfriendly spirit, and I hope that, the Government will give it some consideration and see whether the grievances which I have pointed out are not capable of remedy. For the rest I would suggest to the noble and learned Lord that the bigger your Courts within limits the better is your chance of getting better men. It is better to have one system of law administered in a small country like Ireland than to have two courts with two sets of rules and two separate schools for training lawyers. Disadvantage must always ensue when you split an entity, which by long tradition has been one, into two parts which cannot be united. I hope that the Amendment of the noble Earl will be accepted. It may perhaps be necessary to make some alterations in his proposal, but certainly the proposal in the Bill requires amendment.


It appears to me very doubtful whether the Amendment would be practicable in the new state of things, because you have the Lord Lieutenant, and I suppose in this connection he will be guided very largely by the advice of the Secretary for Ireland, but when you have two Parliaments in Ireland who is to advise the Lord Lieutenant on questions which will arise I feel considerable difficulty about it.


Having regard to the position which I at one time occupied as the head of the Irish Judiciary I wish to say a few words in support of the Amendment of the noble Earl. I wish to press this upon your Lordships, that my feelings with regard to it are precisely the same as those of the noble Earl. I look at the matter entirely apart from any question of politics, and entirely with a view of assisting the Government by any suggestions which I can make. I quite agree with what the noble Viscount has said that it would be an improvement if there was only one Court of Appeal. It seems to me to be the very minimum of improvement which ought to be carried out.

I respectfully differ from the view put forward that this is founded on precedent. I think I can show that there is no precedent for this particular proposal in the Bill. In the case of Canada, she had a complete judiciary for Lower Canada and a complete judiciary for Upper Canada. When there came to be union between the two Canadas it was quite rational that they should retain their two Courts and at the same time have a Canadian Court of Appeal. The present case is actually the converse. Here we have one Court which has functioned for the whole of Ireland, and it is to my mind not exactly following a precedent at all but making a precedent to set up two separate and independent tribunals, one in this very limited area in the North and another in the South of Ireland. The rational thing surely pending the transitional period would be to leave the judiciary as they are functioning in the North and the South and when the question came which arose in Canada that would be the time, if it ever arose, for separating the judiciary. I cannot see any precedent in the Canadian procedure for this case. The circumstances are different. The size of the place is different, and the whole matter can be summarised in this way, that in the case of Ireland you are disturbing the existing system, whereas in the case of Canada you were preserving the existing circumstances.

But then there are from a practical point of view very great objections to setting up these separate tribunals. We, of course, have always had certain necessary divisions in the case of common law matters between the North and South, because cases had to be tried in the North relating to the North and cases relating to the South had to be tried in the South. The advantage of having a. complete interchange of powers and having one appeal and one appeal only, if an appeal was necessary is manifest to any one who has had practical experience of this small country, Ireland. With regard to section 40 I think the noble Viscount is slightly in error. I think that only deals with the section of the Judicature Act with regard to new trial motions. Otherwise the offect of this does seem to be to set up three Courts of Appeal in Ireland. The proposal of the noble Earl is very simple, and I do not think it can possibly offend any susceptibilities either in the North or in the South. The Judges are to be appointed as heretofore, and I have never heard any suggestion that the Judges on the Bench, whatever their political views, did not lay entirely aside those views while discharging their legal duties, and did not give a. fair interpretation of the law in deciding the eases which came before them. I see no reason why that is not to be expected to continue in the future.

The effect of having a separate system of Rules and gradually diverging methods of dealing with cases certainly, in a small country like Ireland, would be deplorable. I have not heard the explanation for this change. Perhaps there may be good reasons for it. I do not think that there can be any coercive reasons with regard to double Courts of Appeal, and I should be surprised if there was coercive reason with regard to the other change. It is very difficult to explain this matter in a non-legal tribunal. Worry, confusion and an unsatisfactory condition of affairs will arise if you have this double system in Ireland. It would be wearisome to your Lordships for me to explain it, but I think in a general way you can quite understand that in a vast country like Canada or Australia it does not matter, but in a tiny country like Ireland, with this separate section set up, containing about a million inhabitants or less, it can lead to nothing except expense, delay, confusion, and unsatisfactory dealing with law. As I began I end by saying that my suggestions were not intended in any sense whatsoever as hostile to the principle of the Bill, but were put forward solely in the hope of advocating what seems to me to be a more inexpensive procedure.


I hope that your Lordships will forgive me for intervening in this debate, because I am not learned in the law, and the noble and learned Lord, Lord Buckmaster, rather suggested that it was out of place —


I suggested it by way of apology for speaking myself.


I beg the noble and learned Lord's pardon. I did not understand it in that way. It is necessary that Peers from Ulster should give their views on this Amendment, and therefore I trust that your Lordships will forgive me for speaking. I hope that you will reject this Amendment. We in Ulster look upon it as absolutely vital that we should have our own judiciary, and we regard this Amendment as striking at the very root of the Bill itself. This question was very carefully debated in another place, and the clause was only inserted after a most exhaustive examination of the position. There are any number of precedents for a Province of thestatusof Ulster having its own judicature, and. there is absolutely no precedent for such a Province not having its own judicature. There are the cases of Canada, of Cape Colony, and of Natal. The two latter, before the Union of South Africa, had their own High Courts, and after the Union those High Courts became divisions of the Supreme Court of South Africa.

The effect of this Amendment is to provide a single judiciary for the Parliament of Ireland. The Acts which will be passed by the Northern Parliament will be certain at times to come under the review of the Courts, and it is absolutely essential that we should have the utmost confidence in those Courts. This is not a political question, but any one who lives in Belfast, or indeed in Ireland, knows what the words Dublin and Belfast mean. I do not know whether I can put it clearly to your Lordships, but you will never get people in the North to believe that judgments given in Dublin by Dublin judges were above suspicion. That is a fact which must be faced. At the present time many people in Belfast and in the North of Ireland, rather than submit their cases to a Judge, and especially to a Dublin jury, prefer to have them settled by private arbitration. It has been suggested that two judiciaries may entail very much increased expenditure, but we believe that there will be so many facilities for litigation that its cost will be cheapened. I ask your Lordships to remember that the Ulster Parliament will have to pay the cost of its own judiciary. It is not as if they were to get money out of the South of Ireland, or even out of the Treasury. It is the Northern Parliament itself which will have to pay all the expenses.

I do not know whether your Lordships are aware —I would not be aware of it had I not been told —that the procedure in the Irish Courts is very much out of date, and we hope, if we have our own judicature, that we will be able to bring it more into line with the procedure in England. At the present time, unless with the consent of the litigant, a commercial case cannot be tried by a Judge alone without a jury, and in the County Court it is impossible to have a case tried in which the amount involved exceeds £50. The Law Society, which represents all the solicitors in Ulster, desires that this clause should remain as it is. They wish to have their own separate judicature. The Chamber of Commerce and many other public bodies are also of that opinion. From where does the opposition come? It comes from some barristers and some solicitors in Dublin, who naturally get work acting as agents for solicitors in the North, and it comes from certain Judges —who, I may point out, are amply protected in the Bill. One can understand the Judges being adverse to it. They have their own houses in Dublin, and naturally they do not want to have to go to the North. In England you have your own local Bar, and therefore I presume the barristers in Ireland will be in exactly the same position as their professional brethren in this country.


May I point out that the local Bar in Manchester and Liverpool has a right of audience in any Court in any part of England, but in this case Southern barristers will not have a right of audience in the Northern Courts of Ireland, and Northern barristers will not have the right of audience in Southern Ireland.


I do not think that this ought to be settled by what barristers think or do not think. It is a question for the people themselves. Even if barristers do suffer, the judiciary surely should be framed according to the wishes of the people themselves, and so as to give confidence to those who are likely to have commercial relations with it. Belfast is the largest. City in Ireland, but is in the same position judicially as any small provincial town in England. Under this Bill, Belfast will have the judicial advantages which are at present, given to Birmingham and Glasgow. I wish in conclusion to impress upon your Lordships that we in Ulster look upon it as absolutely vital that we should have our own judiciary, and that unless we have our own judiciary we shall find it impossible to ad m blister the Act.


The last thing I wish is to deal a blow to this Bill. Except in one connection I have supported His Majesty's Government in every Division, and I hope to do so again except on this matter. But I would point out to the noble Marquess who has just spoken —and my answer will also meet the point taken by the noble Viscount, Lord Finlay —that the proposal of the noble Earl is to make this a reserved service; that is, to make things remain as they are until there is a union of the two countries and to make the appointment vest in the Lord Lieutenant who, I understand, in this matter will be advised by Ministers of the Empire sitting in London.

I must confess that the opposition of the noble Marquess somewhat reminds me of one of Mr. Birmingham's famous novels, where the result of a successful resistance by Ulster was that Ulster insisted that it should no longer be governed by England but be governed by itself. If Ulster does not want Home Rule and only yields to this Bill because she must have one, why should not Ulster be content with things remaining as they are so far as the Judges are concerned? I should have thought it was what Ulster would have desired more than anything else both in her own interests and the interests of the Unionists in the South of Ireland. The point about Belfast is met directly by the proposition of the noble Earl that there shall be sittings in Belfast which, with deference to the noble Marquess, will not make Belfast equal with Birmingham and Liverpool, but will put Belfast in a superior position to Birmingham and Liverpool which at present do not having sittings of that kind.

If this Amendment is lost I shall certainly, follow the noble Viscount who sits in front of me in his Amendment, which proposes to get rid of the Court of Appeal, but I confess that I hope this Amendment cried. I want to point out how very crude acrid inadequate the present proposals are. There are to be two sets of Courts but there is to be one Bar and one body of solicitors. Who is to discipline that Bar? Who is to discipline those solicitors? At the present moment there is one Inn of Court, the King's Inns, and the Judges are, I apprehend, as they are in England, the visitors of that Inn, and from the action of the Benchers of that Inn a final appeal lies to the Judges. Is that appeal in future to be to the Judges of Northern Ireland or the Judges of Southern Ireland? The Courts can keep control over solicitors and they effect discipline by striking a solicitor off the Rolls or suspending him from practice. Is the Court of Northern Ireland to strike a solicitor off the rolls and the Court of Southern Ireland to hear the case solemnly and to decide it in the opposite direction, or is it to bevice versa? Imagine the scandal that will take place if there are different decisions taken with regard to the same solicitor by the Courts of Southern Ireland and the, Courts of Northern Ireland.

Then there is a point which appeals, perhaps, only to Judges: what is to happen about the authority of eases? If the Court of Northern Ireland has cited to it a case decided by its Southern brethren, is it to say "We are not bound by that, and we shall not follow it"? Are we to have authoritative constructions put upon old laws, not upon new, by Courts in Northern Ireland in one way and in Southern Ireland entirely divergent and different I cannot help thinking that, this matter has not been thought out. Of course, one cannot expect His Majesty's Government to give way to-day, but I trust there will be such strong feeling in support of this that ultimately we may have the present position of the Irish Judicature preserved.


It can hardly be said that there has manifested itself to-day the strong feeling upon one side which the noble and learned Lord hopes to see at a later stage in the Bill. In fact, the chief impression which I gather from a very balanced debate upon this difficult subject is that there are many who take one view but there are also many who take the other view. The noble Earl who moved the Amendment said with perfect truth that. I did not deal with this topic at all on the occasion when I moved the Second Reading. The omission was not due to any lack of appreciation on my part of the importance of the topic. In fact, I had prepared a careful note upon it, but, to be perfectly frank, I was so dismayed at the length which the oration I delivered on that occasion had already assumed that I somewhat reluctantly abandoned the few observations which I proposed to make upon that subject.


I hope the noble and learned Lord does not think that I made any complaint.


No, indeed not. The noble Earl spoke with very great feeling upon the effect upon the Bar, solicitors, and the Bench, and acknowledge gladly that in all that he said there was no tinge of any desire except to secure a conclusion which in his view would conduce to the administration of justice in its most efficient and impartial form. What the noble Earl said of the position of barristers and solicitors is open, I think, to the observation that, very important as those matters are, and certainly very important to those of us who belong to the legal profession, any loss of prestige to our colleagues in Ireland, if indeed there ultimately emerges a loss, would be the cause of as much regret, as he knows, to us as to himself.

But we are surely bound to approach this discussion upon the basis of the acceptance of the principle of the Second Reading. Everybody must concede that on the Second Reading your Lordships reached the conclusion that there were to be two Parliaments, one for Northern Ireland and one for Southern Ireland. I will discuss the question upon the hypothesis that the Southern Parliament for the moment is coming into existence, because that is the more complicated and difficult case; the other ease is perfectly simple. Most unhappily neither here no indeed in another place are there many, if there be any, repersentatives of those who at the present moment would be likely to constitute the majority in the Parliament for Southern Ireland. If we had the advantage or at any rate if we had the convenience of the presence amongst us of those who are likely to constitute the majority in the Southern Parliament I cannot think that any one will dispute the high degree of probability and indeed almost the certainty that they would insist just as strongly as Ulster —I will say a word about Ulster in a moment —upon their right to have their separate judiciary and their own individual Courts. I do not believe that anyone who under, stands the trend of opinion among the majority of those in the South will dispute that view. I know, of course, it is not entertained by those of my noble friends who sit in this House and represent the South of Ireland, but I very much doubt whether it will be disputed that that view would be held by those who are certain to control the majority.

The views of Ulster are well known, and they have been expressed to-night by the noble Marquess, Lord Dufferin and Ava. I am in a position to tell your Lordships in the clearest language at my command that opinion in Ulster, I will not use the exaggerated expression "is unanimous," but is overwhelmingly on the side of the proposals that are contained in this Bill. And when the noble Earl said that business opinion in Ireland is in favour of his Amendment I think I must remind the noble Earl that the businesses of Belfast play, as he well knows, a very considerable part in the total business importance of Ireland.


I said a large body of business opinion in Ireland.


There are few proposals that cannot command the support of some body of opinion in Ireland. But it would be the business opinion in the South that the noble Earl means. Well, there is every indication, as far as business men in the North are concerned, that this Amendment would fill them with consternation and, indeed, would destroy at once the whole of the limited satisfaction that they feel with the Parliament that we are to assign to them. If I am right in my surmise as to the view which would probably be taken by a Parliament in Southern Ireland, and if I am right, as I most undoubtedly am, in the statement I made as to the view taken to-day by the representatives of Ulster, then what is this Amendment inviting us to do? It is inviting us, with the same gesture as that with which we set up these two Parliaments in Ireland, against the wishes probably of both of them —certainly against the wishes of that, one of them as to whose constitution we are more certain —to do what no Parliament possessing functions comparable to these has ever been asked to do in any part of the Empire of do not think that we can justify such a course.

The noble and learned Lords who have spoken have attempted —it seems to me with great unsoundness —to distinguish the case of the area of each of these Parliaments From the area of judicial influence which has been conceded to separate States in America, in Canada, in Australia and in South Africa. It is no answer to say, as Lord Shandon does, that these places are much larger than Ireland. We are dealing with distinctions which go deep down in the roots of human nature, and which are far more important than the geographical considerations which have so much exercised the mind of the noble and learned Lord. All the world over the view has been taken that almost mechanically side by side with the concession of Parliamentary power there shall be given the responsibility in the matter of the administration of justice. And when it is said that the Amendment of the noble Earl at the present moment would secure, as was said by Lord Phillimore, the appointment of Irish Judges until the moment of union, to be administered on the advice of the Lord Lieutenant, I do not, as at present advised, so read the Amendment of the noble Earl, but I make no point of that, because he could not doubt so alter it as to make it produce that consequence.

But my objection is not based on that. It is based on the consideration that such a proposal could not possibly or reasonably survive the setting up of a Parliament in Dublin. If such a Parliament met they would say at once "You have given us great responsibilities; you have conceded to us, or it was part of your proposal to concede to us, the administration of justice, and we are not prepared to submit to the stigma and humiliation that we alone in the Parliaments of the British Empire should not be able, on the advice of our responsible Ministers, to name the Judges who shall administer justice in our Courts." We could not, of course, resist that claim, coming, as it would come, from the North of Ireland and the South of Ireland. Nor am I quite prepared too hurriedly to reject the view that there is something to be said for the probability— I exclude, for the moment, the making of political appointments —that the very different type and temperament that is to be found in the South and in the North might well produce on the Bench a difference in personality —not necessarily based upon inferiority on one side and superiority on the other —but a difference of type corresponding to the immense and temperamental difference which everyone knows exists between the South and the North. Of this I am sure, that it would be a bad thing for the administration of justice in the North and a bad thing for the administration of justice in the South if each of the Parliaments applied itself to its task with the feeling that it had been badly, inadequately, distrustfully treated, and was prepared to discover causes of resentment and causes of misunderstanding owing to judgments that might be given, either in the South in the one case, or in the North in the other.

The noble Earl asked me how it was proposed to deal with questions of discipline. That is, perhaps, a small point, but I would reply to him by saying this has never been found to be an insuperable difficulty where a new state has come into existence, either in the United States of America or in our own Empire. There is no difficulty at all among the great and experienced practitioners and judicial persons who will come into existence in Ulster in setting up disciplinary bodies comparable to those which have discharged those duties in England and in Ireland in the past. The last speaker, Lord Phillimore, said you may have the scandal of different Courts in the South and in the North giving different; decisions. It is, of course, always troublesome when Courts below do not always give the same decision, but we are familiar with that circumstance even in higher Courts, and in this Bill Courts of Appeal are provided, and it would be one of the functions of those Courts of Appeal to arrive at a true conclusion, if they were presented with such differences of opinion; and unless we are to suppose that either the Courts in Northern Ireland or the Courts in Southern Ireland disloyally refused to accept the ruling of the Appellate Courts the difficulty would be resolved, and we should know what the true solution of it would be.

I was asked a number of other questions which deal with detailed modifications of the proposals of the Government. I was much impressed by what the noble Earl said on the subject of the numbers of the Courts of Appeal —four or five. The noble Viscount is right there agree entirely with what was said by my noble friend Lord Cave, and repeated by Lord Buckmaster, on the unwisdom of the multiplication of Courts of Appeal. I agreed with much other (as it seemed to me) sound doctrine which the noble and learned Lord, Lord Buckmaster, enunciated, and I am specially grateful to him for the very kind reference he was good enough to make to myself in that particular respect. I have looked at Lord Cave's Amendments, and it appears to me at the moment that they give effect to his expressed object, but if (on the assumption that your Lordships do not adopt this Amendment.) between now and the Report stage he will put down his Amendments I would not wish nor, I think, would be ask me to give a final answer now, but my impression is that we shall be able to accept the suggestion made by the noble Viscount. I am not at all in disagreement with his criticism that it is not the best constitution for an Appellate Court that the Lord Chief Justices of the Provinces should nominate a member. I think that at least ought to be very carefully considered.

I will also pay attention to the objection which my noble friend Lord Buckmaster took to the constitution of the Court in the absence of the Lord Chancellor. I may say that the arguments used in different directions rather met at this point. And Lord Desart somewhat ignored the provisions of the Bill when he said that the Lord Chancellor's principal duty under modern conditions was to draw his salary. I can assure the noble Earl that the task of presiding over a Court of Appeal is a very considerable competitive occupation. But I will say no more on this point about the office of Lord Chancellor. I greatly regret and, I may say, resent the encroachments that are made on the office of Lord Chancellor, and. as I read through these provisions in their original form I confess I murmur to myselfProximus ardet Ucalegon. I confess I feared most of these changes were inevitable, but I noticed that by an Amendment which has been carried by the noble and learned Lord, Lord Shandon, the Lord Chancellor was made the President of the Joint Senate which I think the noble and learned Lord set up. At a proper time I shall attempt to show your Lordships that the noble and learned Lord, unlike his usual behaviour, has not really thought out a tolerable or a. practicable scheme in this Amendment, which was proposed somewhat hurriedly and carried, and that the joint. Senate, whatever other course may be adopted, is not really one to whom these functions can be committed. But whether the Council of the original Bill is reconstituted or whether some other body takes its place, it would be quite possible for the noble and learned Lord to maintain his view as to the position of the Lord Chancellor by adding to the functions which he still retains the presidency of a body which might easily prove to be the most important body in the next few years in Ireland, and, if it succeeded in its ultimate task, the most important and illustrious in Irish history.

I think I have dealt with most of the points that have been raised, and would only add in conclusion that your Lordships resisted a most formidable attempt to deny to Ulster the Parliament which we have now given to her, and your Lordships were quite clear and quite firm in your conclusion. Having given that Parliament, when they tell us —as they unanimously tell us through their representatives —that they think the gift incomplete unless they are given judiciary, complete if they are allowed it, and when they are able to point at the same time to an invariable and unbroken course of precedents of many years all over the British Empire, I hope that your Lordships will not accept this Amendment.


Might I ask if the noble Lord has any plan or suggestion in his mind with regard to the difficulty about change of venue? It is a matter which I look upon as being a very grave One.


I am sorry I forgot it. I tell the noble Earl at once that there will be a very considerable difficulty. He knows as well as I do that under the existing system that difficulty was becoming a very serious one. I had occasion when I was Attorney-General in England, in consultation with the Irish Law Officers, on several occasions to suggest that the venue should be changed from Dublin to Belfast. I do not know whether the noble Earl knows that those invitations to the authorities in Belfast were being received with a degree of enthusiasm which diminished every week, and I do not believe that in Belfast they would indefinitely have consented to try crimes coming from the South of Ireland under the very terrible circumstances of which we are aware as existing at the present moment. The noble Earl has raised a point which I had not specifically thought of, and I should be very grateful it he would allow me an opportunity of considering it.


I see the difficulty. It is a very important matter.


It is a very important one. I quite agree.


The noble and learned Lord has put with great force the instances of Canada and America, where you started Parliament with a judiciary, and justice naturally followed, but I do not think there is any case where you had

Birkenhead, L. (L. Chancellor.) Roden, E. Cozens-Hardy, L
Sandwich, E. Deramore, L.
Northumberland, D. Selborne, E. Desborough, L.
Sutherland, D. Shaftesbury, E. Dewar, L.
Wellington, D. Strafford, E. Dynevor, L.
Vane, E. (M. Londonderry.) Fairfax of Cameron, L.
Abereorn, M. (D. Abercorn.) Faringdon, L.
Bath, M. Farquhar, V. (L. Steward.) Harris, L.
Dufferin and Ava, M. Sandhurst, V. (L. Chamberlain.) Hylton, L.
Bertie of Thame, V. Lee of Farcham, L.
Bradford, E. Cave, V. Montagu of Beaulieu, L.
Chesterfield, E. Esher, V. Oriel, L. (V. Massereene.)
Curzon of Kedleston, E. Finlay, V. Ormathwaite, L.
Doncaster, E. (D. Buccleuch and Queensberry.) Hood, V. Penrhyn, L.
Milner, V. Ranfurly, L. (E. Ranfurly.)
Eldon, E. Peel, V. Rathcreedan, L.
Fortescue, E. Redesdale, L.
Grey, E. Abinger, L. Riddell, L.
Howe, E. Addington, L. Ritchie of Dundee, L
Lindsay, E. Annesley, L. (V. Valentia.) Roundway, L.
Lovelace, E. Armaghdale, L St. Leven, L.
Lucan, E. Avebury, L. Somerleyton, L. [Teller.]
Lytton, E. Balfour, L. Stanmore, L. [Teller.]
Malmesbury, E. Clements, L. (E. Leitrim.) Stuart of Wortley, L.
Onslow, E. Clinton, L. Sumner, L.
Pembroke and Montgomery. E. Clwyd, L. Tweeddale, L. [M. Tweeddale.)
Plymouth, E. Colebrooke, L. Wigan, L. (E. Crawford.)
Aberdeen and Temair, M. Hutchinson, V. (E. Donoughmore.) Harlech, L
Crewe, M. Hemphill, L.
Lincolnshire, M. (L. Great Chamberlain.) Holm Patrick, L.
Ashton of Hyde, L. Islington, L.
Barrymore, L. Killanin, L.
Drogheda, E. Bellew, L. Kiltnaine, L
Iveagh, E. Buckmaster, L. Lawrence, L.
Kingston, E. Clanwilliam, L. (E. Clanwilliam.) MacDonnell, L.
Mayo, E. [Teller.] Clifford of Chudleigh, L. Monteagle, L. (M. Sligo.)
Midleton, E. Crofton, L. Monteagle of Brandon, L.
Morton, E. de Mauley, L. Oranmore and Browne, L.
Reading, E. Decies, L. Ormonde, L. (M. Ormonde.)
Wicklow, E. Denman, L. Parmoor, L.
Desart, L. (E. Desart.) [Teller.] Pentland, L.
Allendale, V. Phillimore, L.
Bangor, V. Farnham, L. Rathdonnell, L.
Bryce, V. Fingall, L. (E. Fingall.) Shandon, L
De Vesci, V. Greville, L. Southwark L.

the existence of a united Judiciary and a unified Bar and all the rest of it in one country and where you separated that country into two sections with the avowed intention of uniting them at some future time. I do not think that is really within the precedent quoted in support of it. I believe the position is altogether unique. The law is the same; the Judges will be appointed in the same way; it is all there in existence before you create the double area, and you create the double area with the intention some day of uniting them both. I think this differentiates the case very much from those that have been quoted.

On Question, whether Clause 37 shall stand part of the Bill? —

Their Lordships divided: —Contents, 75; Not-Contents, 4S.

Resolved in theaffirmative, and Amendment disagreed to accordingly.

[The sitting was suspended at a quarter before eight o'clock and resumed at a quarter past nine.]

Clauses 38 to 42 agreed to.

Clause 43:

Prorisions us to Lord Chancellor.

43.—(l) The provisions relating to the tenure of office by a judge of the Supreme Court of Southern Ireland or Northern Ireland, shall apply to the office of Lord Chancellor of Ireland.

(2) Nothing in this Act shall affect any jurisdiction exercised by the Lord Chancellor in respect of and on behalf of His Majesty as visitor of any college or other charitable foundation; but save as aforesaid, the Lord Chancellor shall not exercise any excutive functions, and the Lord Chancellor shall cease to be Keeper of the Great Seal of Ireland, and the custody thereof and such executive functions as aforesaid shall be transferred to the Lord Lieutenant.


had on the Paper an Amendment in subsection (2), after "Chancellor" where that word first occurs, to insert "and existing Lord Chief Justice of Ireland." The noble Lord said: I have two Amendments on the Paper with regard to the position of the Lord Chief Justice of Ireland. I do not know that it is necessary that both should be accepted, and I should prefer to take the second Amendment which I propose to move after Clause 43, to the effect that the existing Lord Chief Justice of Ireland shall, if he consents, be the first Lord Chief Justice of Southern Ireland, but shall retain his present title and rank and Alan continue to hold and exercise all non-judicial offices and duties annexed or appertaining to the office of Lord Chief Justice of Ireland.


If the noble and learned Lord prefers the second of his Amendments there would be obvious considerations of convenience which would make it better to move it.


I will take the second Amendment.


That will hardly do.


My first. Amendment is really declaratory—namely, that the Lord Chief Justice of Ireland should have reserved to him the position which he has with regard to a number of nonpolitical, accademic, and other bodies, and that his name should be put in after that of the Lord Chancellor. I shall be glad if that can be accepted.

Amendment moved—

Page 37, line 16, after ("Chancellor") insert ("And existing Lord Chief Justice of Ireland"). —(Lord Phillimore.)


This Amendment, and the next in the name of the noble and learned Lord, contains certain proposals with reference to the existing Lord Chief Justice of Ireland. On reflection he will see that they will not properly come into the body of the Bill. They are transitory provisions as to existing judges, and such transitory provisions belong properly to Schedule 4 of Part III, under which the existing Lord Chief Justice will become the Lord Chief Justice of the Supreme Court of Southern Ireland unless he elects to retire or be transferred to the Supreme Court of Northern Ireland. The effect of the Amendment to Clause 43 would be to preserve the jurisdiction of the present Lord Chief Justice as a visitor of any college or charitable institution. I think the noble and learned Lord has called attention to a useful sphere of activity on the part of the Lord Chief Justice and one which is consecrated by many years' tenure, and I am very willing to attempt to meet his wishes.

With regard to his second Amendment he now proposes that the existing Lord Chief Justice, if he becomes Lord Chief Justice of Southern Ireland, should retain his title and rank. So far as that goes I see no objection to the proposal. It would be exposed, of course, to the superficial criticism that he is called the Lord Chief Justice of Ireland whereas, in fact, he would become, Lord Chief Justice of Southern Ireland. But after all mankind is very much influenced by titles, especially when they have their roots in history. The title of the Lord Chief Justice of Ireland has been a distinguished title, and if the present holder of the office would feel some solace in the face of the changes by which he is confronted, I would certainly make a great effort to meet the views of the noble and learned Lord in that respect.

The latter part of the Amendment of my noble and learned friend, I think, goes too far. It proposes that the existing Lord Chief Justice should continue to "exercise all non-judicial offices and duties annexed or pertaining to the office of Lord Chief Justice of Ireland." In the absence of some very satisfactory and precise definition of what my noble and learned friend has in his mind I think would be dangerous to accept the proposal, because it might have the effect—I am groping about after his meaning—of depriving the Lord Chief Justice of the Northern Supreme Court of privileges and powers which are incidental and ought properly to be annexed to his office. With the aid of the draftsman, attempting to give effect to what I believe to be the fundamental purpose of the noble and learned Lord, I have drafted an Amendment which I think may possibly meet his views. I should propose that in the Fourth Schedule on page 67, line 7, at the end, to insert the following paragraph (c)— The existing Lord Chief Justice of Ireland if he becomes Lord Chief Justice of Southern Ireland shall so long as he holds that office be entitled to retain the rank and title of Lord Chief Justice of Ireland and to exercise any jurisdiction in respect of and on behalf of His Majesty as visitor to any college or other charitable foundation exercisable by him on the appointed day.


I understand that would tike the place of both my proposals?




So far as I can judge, that would be quite satisfactory. If know that the proposals I made would have been satisfactory to the Lord Chief Justice, but of course he is not here. On the understanding that tire Lord Chancellor will be good enough to move his Amendment at the proper time I will withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 43 agreed to.

Clause 44 agreed to.

Clause 45:

Transitory provisions.

45. The provisions set out in Part III. of the Fourth Schedule to this Act shall have effect with respect to existing judges and officers of the Supreme Court of Ireland, existing barristers and solicitors and pending proceedings.


The two Amendments which I move in this clause are drafting Amendments.

Amendments moved—

Page 37, line 3o, after ("Ireland" (insert ("including officers attached to that court")

Page 37, line 31, leave out ("and solicitors") and insert ("solicitors and solicitors' apprentices").—(The Lord Chancellor.)

Clause 45, as amended, agreed to.

Clause 46:

Provisions as to judicature after Irish Union.

46.—(1) All matters relating to the Supreme Court of Southern Ireland, the Supreme Court of Northern Ireland (including the registration of deeds), and the High Court of Appeal for Ireland shall be reserved matters until the date of Irish Union…

THE LORD CHANCELLORmoved, in subsection (1), to leave out "(including the registration of deeds "). The noble and learned Lord said: This is con sequential on my Registration of Deeds Amendment.

Amendment moved—

Page 37, line 34, leave out ("including the registration of deeds").—(The Lord Chancellor.)

Clause 16, as amended, agreed to.

Clause 47 to 49 agreed to.

Clause 50:

Special procision for decision of constitutional Questions:

50.—(l) If it appears to the Lord Lieutenant or a Secretary of State expedient in the public interest that steps shall be taken for the speedy determination of the question whether any Act, or order having the effect of an Act of Parliament of Southern Ireland or Northern Ireland, or any provision thereof, or any Bill introduced in either of those Parliaments, or any provision thereof, or any legislative proposal before the Council of Ireland is beyond the powers of such Parliament or Connell or whether any service is an Irish service within the meaning of this Act or not, or if the Joint Exchequer Board, or any two members of the Board, in the execution of their duties under this Act, are desirous of obtaining the decision of any question of the interpretation of this Act, or other question of law, which arises in connection with those duties, the Lord Lieutenant, Secretary of State, or Board, or members thereof, as the case may be, may represent the same to His Majesty in. Council, and thereupon, if His Majesty so directs the said question shall be forthwith referred to and heard and determined by the Judicial Committee of the Privy Council.

(2) Upon the hearing of the question such persons as seem to the judicial Committee to be interested may be allowed to appear and be heard as parties to the case, and the decision of the Judicial Committee shall be given in like manner as if it were the decision of an appeal, the nature of the report or recommendation to His Majesty being stated in open court.

(3) Nothing in this Act shall prejudice any other power of His Majesty in Council to refer any question to the Judicial Committee or the right of any person to petition His Majesty for such reference.

LORD PHILLIMOREmoved, at the end of subsection (1), to insert "and such determination shall be final and conclusive." The noble and learned Lord said: I sent a communication on this subject to the Lord Chancellor, but he has been too busy, I know, to make any answer to me. I will tell your Lordships how I view this clause. With regard to the Dominion of Canada we have a similar provision, from which no doubt this is borrowed, enabling the Judicial Committee of the Privy Council to answer questions of law put to it by authoritative people. There is no objection to that, because the same tribunal is the ultimate tribunal on appeal in any case from the Colonies, and therefore if the Judicial Committee, consulted by the Governor-General, advise; such a course is legal and can be pursued, if the same point arises in an actioninter panesthe Judicial Committee follows its own ruling and decides in the same way.

But with regard to the Government of Ireland we have two different Courts. The Judicial Committee is not the final Court of Appeal but the House of Lords is, and I fear you might have under these circumstances a determination by the Judicial Committee that some course was lawful, that some act of either the Northern or Southern Parliament was within the scope of the powers entrusted to it, and then in an action raised between two subjects, which came to the House of Lords, the House of Lords might come to a different conclusion. It is true that the constitution of the two tribunals is not very different; that every Law Lord is a member of the Judicial Committee as it is, and I think almost always will be, but it is not every member of the Judicial Committee who is a Law Lord, and the two bodies might any time be composed of different members to say nothing of the constitutional possibility of other than Law Lords speaking and voting on Judicial matters in the House of Lords, and coining to a very different conclusion than that intended by the Judicial Committee. In order to prevent this I have put down a few words. I am not tied to those words, but my object is merely to see that when the Judicial Committee has been consulted in this way, and has decided whether an Act is or is not constitutional, its decision shall be final and conclusive and the same points cannot be differently decided by the House of Lords.

Amendment moved—

Page 40, line 2, at end insert ("and such determination shall be final and conclusive").—(Lord Phillimore.)


The object of this Amendment is to secure that there shall not be conflicting decisions of the ultimate Appeal tribunals in relation to the validity of the Statutes passed by the Parliaments of North and South Ireland. Clause 50 of the Bill enables questions as to the validity of Acts of the Irish Parliaments, or of Irish legislative proposals, to be referred to the Judicial Committee of the Privy Council. Under Clause 48 an appeal from the High Court of Ireland to the House of Lords is allowed in any case where a decision of the Irish Courts involves a decision as to the validity of any Irish law and the decision is not otherwise subject to appeal. My noble and learned friend is quite right. A question may arise as to the validity of Irish law. Then in that case there is an appeal to the House of Lords, and so the result is that a question of the validity of Irish law may fall to be determined by either of two tribunals. At the present a decision given by the Judicial Committee is not binding upon the House of Lords, and is not binding upon itself. The decisions of the House of Lords, as your Lordships are aware, are binding upon any other judicial assembly of this House, however it may be constituted, and binding for all time. That, of course, is the distinction between the two assemblies. I quite agree with the noble and learned Lord that inconvenience might arise, but it is only a theoretical possibility, so deep is the respect naturally paid by the Privy Council for decisions of the House of Lords, and by the House of Lords for decisions of the Privy Council, as indeed is natural seeing thepersonnelof the two bodies is the same, or almost the same. In practice, my noble and learned friend, who is a most distinguished member of both will agree, these difficulties do not assume a very acute form. But I quite agree that there should not even he a theoretical possibility of their arising.

I should, therefore, suggest to my noble and learned friend, whose vigilance has discovered this risk, that the matter ought to be met by means of a new clause, and not by an amendment of existing clauses. I do not propose to put down a new clause at this stage, because I should like to have my noble and learned friend's views upon it before I put it down. I suggest that something like the following be put down— Any decision of the House of Lords or of the Judicial Committee of the Privy Council as to the validity of any law made by or having the effect of an Act of the Parliament of Southern Ireland or Northern Ireland, and any decision of the Judicial Committee of the Privy Council on any other question of law which is to be determined by the Judicial Committee of the Privy Council under this Act shall be final and conclusive and binding upon all Courts. If my noble and learned friend will consider that form of words between now and the Report stage I shall be happy to cooperate with him in securing its passage.


I am much obliged to my noble and learned friend. I dare say some one will let me have those words in writing, so that they may be fully considered.

Amendment, by leave, withdrawn.

Clause 50 agreed to.

Clause 51 agreed to.

Clause 52:

Provisions as to existing judges and other persons having salaries charged on the Consolidated Fund.

(3) Subsection (1) of this section shall apply to existing Irish officers in the civil service of the Crown, who, although receiving salaries not charged on the Consolidated Fund, are removable only for misconduct or incapacity, including (after the date of Irish Union) officers removable under section seventy-three of the Supreme Court of Judicature Act (Ireland), 1877: Provided that, in the case of any such officer whose salary is payable otherwise than out of money provided by the Parliament of the United Kingdom, the provisions of that subsection with respect to the payment of salaries and pensions out of the Consolidated Fund of the United Kingdom shall not have effect, and in the case of any such officer whose salary is payable out of money provided by the Parliament of the United Kingdom those provisions shall have effect with the substitution of payment out of money so provided for charge on and payment out of the Consolidated Fund of the United Kingdom.

(4) Subsection (2) of this section shall apply to any officer to whom subsection (3) of this section applies, with the substitution of a reference to a period of forty years' service for the reference to the period of service entitling to a pension.

THE EARL OF MAYOmoved at the beginning of subsection (3), after "existing Irish officers in," to insert "or deemed under any act to be in."


Will the noble Earl allow me. If he will move shortly, I think he may perhaps find it unnecessary to go into argument upon his case.


I beg to move.

Amendment moved—

Page 41, line 25, after ("in") insert ("or deemed under any Act to be in").—(The Earl of Mayo.)


Without committing myself finally, perhaps the noble Earl will allow me to say that my impression is that this Amendment is well founded and ought to be accepted. I will accept it provisionally, provided he has not a grievance if on the Report stage I raise any point that has not occurred to me now. I have not had the opportunity of consulting the draftsmen, but I think his Amendment is right.

Clause 52, as amended, agreed to.

Clauses 53 to 63 agreed to.

Clause 64:

Provisions as to the Bank of Ireland.

64.—(1) If the Government of Southern Ireland signify their desire to acquire for the use of the Parliament of Southern Ireland the premises (hereinafter referred to as "the bank premises") of the Bank of Ireland situate in or near College Green, in the City of Dublin, they shall be entitled to do so on the fulfilment of the following conditions:—

  1. (a) there shall be provided at the expense of the Government of Southern Ireland for the use of the bank a site and buildings suitable both as to situation of site and accommodation and ready for occupation as head office of the Bank of Ireland;
  2. (b)there shall be paid to the bank compensation in respect of the bank premises and of disturbance, after taking into consideration the value of the new premises to be provided. as aforesaid;
and on the publication in the Dublin Gazette of an Order by His Majesty in Council declaring that the said conditions have been fulfilled, the bank premises shall vest in His Majesty for the use of the Parliament of Southern Ireland.

(2) Any question as to whether the site and buildings so to be provided are suitable or ready for occupation, or as to the amount of compensation, shall be determined by a court of arbitration consisting of one person appointed by the Bank of Ireland, one person appointed by the Government of Southern Ireland, and a judge of a Supreme Court of Justice for any part of the United Kingdom (who shall be the chairman of the court) appointed by His Majesty, and there shall be paid to the members of the court, other than the chairman, such fees or other remuneration as the chairman of the court may determine to be proper, and those fees or remuneration and any other expenses of the court shall be charged on and paid out of the Consolidated Fund of Southern Ireland.

LORD MAC DONNELLmoved, in subsection (1) (a), after "there shall be provided," to insert "unless the Government of Southern Ireland and the Bank of Ireland shall otherwise agree." The noble Lord said: My object in this Amendment is to give wider scope to the negotiations of the Government of Southern Ireland and the Bank of Southern Ireland. I propose to give to both the liberty, if they are agreed, of taking a shorter method towards the acquisition of the Bank of Ireland in Dublin. It may he possible that the Bank of Ireland would be agreeable to accepting a lump sum, say £500,000, or whatever sum may be agreed upon, and that would save the Government of Ireland from any question of propriety as to the site and the suitability of the site or the building of the Bank of Ireland in accordance with the prescribed estimates, and so on. There is no intention of departing from or restricting the Bank of Ireland, if it so pleases, adhering to and putting in force the clause as it stands. I desire to give both parties a wider freedom of contract.

Amendment moved— Page 51, line 10, after ("provided") insert ("unless the Government of Southern Ireland and the Bank of Ireland shall otherwise agree")—(Lord MarDonnell.)


This clause has been carefully considered by the authorities of the Bank of Ireland and, as the noble Lord may be aware, they are quite satisfied with it. There is no obligation upon the Southern House of Parliament to buy this building of the Bank of Ireland.


I quite understand that.


The clause is merely inserted on an assumption, which is probably not unnatural, that the Southern Parliament will desire to live in its ancient historic home. The clause is put in to ensure that the Bank of Ireland shall be properly compensated for its removal if it has to move. There is nothing in the clause to prevent a lump sum being paid, as the noble Lord indicates, if that is agreeable to the Southern Parliament and the bank authorities. If that agreement does not take place, this provision ensures that the bank premises, if taken, shall be taken on equitable principles. I feel, therefore, that the proposed words are unnecessary, and that they certainly introduce a complication; and unless stronger cause is shown than the noble Lord has indicated I hope he will not think it necessary to press his Amendment.


Am Ito understand that the clause as it now stands covers such a voluntary agreement as I have mentioned?


Yes; I understand that is so, and that the bank authorities are satisfied that the clause meets all their possible requirements.


In that case, I withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 64 agreed to.

Clauses 65 to 69 agreed to.

Clause 70:

Provisions applicable in ease of cither House of Commons not being properly constituted.

70.—(1) If the Lord Lieutenant certifies that the number of members of the House of Commons of Southern Ireland or Northern Ireland validly returned at the first election of members of the Parliament of Southern Ireland or Northern Ireland is less than half the total number of members of that House, or that the number of members of the House of commons of Southern Ireland or Northern Ireland who have taken the oath as such members within fourteen days from the date on which the Parliament of Southern Ireland or Northern Ireland is first summoned to meet is less than one-half of the total number of members of that House, His Majesty in Council may, by Order, provide

  1. (a) for the dissolution of the Parliament of Southern Ireland or Northern Ireland, as the ease may be, and for postponing the issue of a proclamation for summoning a new Parliament for such time as may be specified in the Order;
  2. 1093
  3. (b) for the exercise in the meantime of the powers of the government of Southern Ireland or Northern Ireland, as the case may be, by the Lord Lieutenant with the assistance of a committee consisting of such persons (who shall be members of the Privy Council of Ireland) as His Majesty may appoint for the purpose, and of the powers of the Parliament of Southern Ireland or Northern Ireland, as the case may be, by a legislative assembly consisting of the members of the said committee, together with such other persons as His Majesty may appoint for the purpose;
and the Order may make such modifications in this Act in its application to the part of Ireland affected as may appear to His Majesty to be necessary for giving effect to the Order and may contain such other consequential, incidental, and supplemental provisions as may appear necessary for the purposes of the Order, and any such Order shall have effect as if enacted in this Act but may be varied by any subsequent Order in Council.

(2) The person holding office in the House of Commons of Southern Ireland and of Northern Ireland corresponding to the office of Speaker of the House of Commons of the United Kingdom shall, at the expiration of the said period of fourteen days from the date on which the Parliament of Southern Ireland or Northern Ireland, as the case may be, is first summoned to meet, send to the Lord Lieutenant a list containing the names of the members of the House who have taken the oath as such members, and for the purposes of this section a member shall be deemed not to have taken the oath unless his name is included in a list to sent.

(3) Where at the expiration of the period mentioned in ally such Order in Council a proclamation is issued summoning a new Parliament to meet this section shall apply in like manner as it applies in the ease of the first election and first summoning of Parliament.

LORD ASKWITHmoved to delete Clause 70. The noble Lord said: This clause deals with what is to be done supposing these two Parliaments are assembled and one of the Parliaments or both of them has not a sufficient number of members to form a proper Parliament. The clause that I am proposing later on deals with the necessity of consent, and this clause is very much opposed to that principle. At the same time it recognises—what is in both the Amendment of the noble Marquess and my own—the necessity of some suspension before these Parliaments can be brought into being or can continue in being. The clause appears to me to be a very difficult clause, and, if the subsequent Amendments were carried, to be one which would only cause delay and awkwardness. In any event, whether the clause was there or not, the Amendments of the noble Marquess and myself would still come up for consideration.

But, taking the clause as it stands, the amount of procedure that is required under it in the first instance is very large. First, there is the election and the vote of the Northern and Southern Parliaments. It may be that the one or the other has not a sufficient number of members elected, who are prepared to take the Oath of Allegiance, to form Parliaments at all. In that case you get a Parliament in one division and no Parliament in the other. It is evidently anticipated in some of the speeches made in this House that the Southern Parliament will not have sufficient members elected to it who would take the Oath of Allegiance to form a Parliament and thereupon the order has to be given either for dissolution of that Parliament or for the postponement of the issue of a Proclamation for summoning a new Parliament. During that time, before either a new Parliament or any other Parliament is appointed, the whole of the Government of Ireland has to be handed over to a committee. The committee is to have the powers of the Government of Ireland (it is Southern Ireland that I am speaking of for the moment) and over that committee there is to be appointed another committee with other members added to it—a fertile source of possible changes, according to what the Government of Great Britain might be; of which second committee the first committee are all to be members—causing a condition of affairs where, whatever may be the case in an ordinary Crown Colony, you might easily have an executive committee at great issue with the governing committee which was above it.

And if these committees do not get on with the business of the government of the country then an Order in Council may again make any modifications that it chooses, as if it was an Act of Parliament. Further, whether it is the Northern or the Southern Parliament the last subsection of the clause says that when any Proclamation is issued for summoning a new Parliament this section shall apply as if it had been the case of a first election and the first summoning of Parliament. Such a position allows you to have, according to what might be the political movements for the time being, an alternation of Parliaments or legislative committees or executive committees dealing with either Northern or Southern Ireland. It does not follow at all that in the future, or even in the immediate years, a Northern Parliament would necessarily return a sufficient number of members who will take the Oath of Allegiance in order to constitute a Parliament on a second election. There would be an in-and-out system existing, and you would have this Government, one of the worst kinds of Government in a dislocated area that you can conceive, by committees. It may be the system which appertains to certain Crown Colonies, but it is very difficult to see how in the state of affairs which exists in Ireland at the present day you could have these rapid changes from one to another, or the possibility of these committees being packed or the committees exercising any jurisdiction without any real power behind them. In fact, the Parliament of the United Kingdom would be handing over the whole of the authority that it at present exercises to be carried out by legislative and executive committees. That kind of system would scarcely be one which would be an acceptable form of Government.

The principle upon which I have drafted my Amendment has been that it is impossible, unless you get a better consent to the Government, for Ireland to have any peace in the future. You are proposing to impose, at least upon Southern Ireland, a system to which at present she says she is not prepared to consent. It is said that Northern Ireland has expressed by its present representatives and by the letter of a private individual to the noble and learned Lord that she agrees to her Northern Parliament. But there has been no proof by the rank and file that they agree either in the North or in the South to any of the proposals of this Bill. It was intimated by at least two noble Lords in the course of the debate that they were prepared to accept this Bill for the North because they might have a worse Bill under some future Government of either the Liberal or the Labour Party. I am sure that the Labour Party at least—of which these noble Lords seem to be so afraid, but in which I do not nearly have the same lack of confidence—would never propose to put upon either division of Ireland a Bill without the better consent of those who are going to have it.

The Labour Party at the present moment is advocating, by a Mission that has been sent to Ireland, some attempt at consent of the rank and file. Whether they are successful or not, that is at least the principle upon which they are going. The Labour Party, too, here has urged that a Constituent Assembly should be summoned by which the opinion of the rank and file in Ireland could be taken, and they have not only done so through this country but they have obtained the consent of the principal unions of Ireland to the same course. Whether that is a feasible course or not I am not arguing, but I am saying that those who are the principal people in the Labour movement would not, either in politics or from their own experience, attempt to carry out Rules, Orders, or Acts of Parliament in this way without at least having the further consent of the governed to what is being done.

It seems as if the mental attitude of the Irish people to this Bill has not been sufficiently estimated. Over and over again it has been shown with nations as with children that if you employ force you do not lead them nearly as far as you do when you make a bargain with them, or try to induce them along a certain way. The Irish people throughout their whole history have shown that they are not amenable to force. But they have been led, and their views have been changed, and they have accepted anything that is given with generosity. I maintain that this clause is unnecessary for the purpose of suspension. A simpler and easier method would have done without setting up this awkward machinery. I beg to move.

Amendment moved— Leave out Clause 70.—(Lord Askwith.)


If it would be convenient to the Marquess of Salisbury, I regard this Amendment as paving the way to his later Amendment on Clause 71, and unless he is in any way inconvenienced I should be glad to hear what he has to say.


I am entirely in your Lordships' hands, and desire to study the convenience of noble Lords and the Lord Chancellor. The real reason why I gave way rather than move the Amendment to delete Clause 70 was that I was aware that many of the arguments the noble Lord would use in pointing out the insufficiency of Clause 70, however well intentioned the clause, would trench upon a good many of the arguments which would ultimately be of importance when we come to deal with the later Amendment. I recognise the desire of the Lord Chancellor and I will do my best. Your Lordships will realise that Clause 70 is the only thing which stands between the Government and the full-blown appearance of a Parliament in Dublin immediately on the passing of the Bill. There is, of course, the appointed day, and a slight margin on one side Or the other, but, broadly speaking, within very narrow limits, this clause is the only thing which stands between the Government and the appearance of a Parliament in Dublin.

I do not think your Lordships will want me to argue that at the present moment the position in Southern Ireland is such that the establishment of a Parliament there would be absurd. I am not arguing the big question for the moment. I was looking at the present condition of Ireland, and no one can pretend that it is a suitable place for a Parliament and for a Government, both of which must necessarily be hostile to Great Britain. Your Lordships will have observed that the reign of disorder continues. I know that the Leader of the House, when he spoke on the Second Reading, was a little hit shocked that I had used the argument of the disorders in Ireland as a reason against the Bill in its present form. But surely l was well justified in doing so. No one out of a lunatic asylum can think that a Parliament ought to be established there are things stand at the moment. Yet the only thing the Government have provided in order to protect us from such a disaster is Clause 70.

I think I am right in saying that this clause—the Lord Chancellor will correct me if I am wrong—was not introduced until a late stage of the Bill in another place. It was evidently an afterthought and one arrived at in considerable hurry, judging from its appearance. I think the Government, on second thoughts, will realise that it is quite insufficient. I am not contesting the good intentions of the clause. What is hoped, I suppose, is that either Ireland will genuinely accept the Bill, or else that half the members of the Southern Parliament will refuse to take the Oath of Allegiance, so that it will be possible to govern Ireland by means of this Committee until such time as she is of better mind. There is no justification whatever for arriving at that conclusion.

I pointed out on the Second Reading that the whole of this superstructure upon the Oath of Allegiance is altogether too heavy for it to bear. The Oath of Allegiance means perhaps a good deal to your Lordships, but I do not think it means a great deal in Ireland. I indicated on the Second Reading what I believe to be true —that the solicitors practising in Ireland, all those solicitors who practice before the Sinn Fein Courts at this moment, and all the magistrates, including the Mayors and borough magistrates, have taken the Oath of Allegiance. For example, the late Lord Mayor of Cork, of whom I do not wish to speak with any disrespect, though his opinions were very extreme, had taken the Oath of Allegiance. To say that that Oath is likely to be any solid protection, or a ground for believing either that South Ireland accepts the Bill or that she is sufficiently well affected to work it properly, is to build, as I think, on the sand. There are many detailed criticisms of the clause on which I do not want to dwell, because the big objections seem to me by themselves (if I may say so, with great respect to the Lord Chancellor) conclusive.

But the whole business of saying that the thing must depend on the certificate of the Speaker is an unsatisfactory proposal. Supposing the Oath of Allegiance does act as a bar—take the view of the Government that it is going to be a useful protection—then there will probably be hardly any members and I doubt whether there will be a Speaker. Let us suppose that the members are elected but hesitate to take the Oath of Allegiance. Then it depends on the certificate of the Speaker. We do not know who the Speaker is going to be. Have we any grounds for thinking that he will render a perfectly genuine Certificate? I do not want to say a disrespectful word of the Irish people, for whom in many respects I have very great regard, but I should not think that accuracy was their strongest point, or that they would hesitate, in order to achieve a useful political result, to strain to some extent the actual facts of the case. It all depends upon the certificate—upon there being members there, upon there being a Speaker, and then upon his making an accurate certificate.

Then it all depends upon whether the oath, even if they have taken it, is any real protection. And let me say this. Let us suppose that the oath is taken more or less sincerely, what does it really amount to? It means an Oath of Allegiance to His Majesty the King. I can conceive a very extreme politician in Ireland absolutely determined to wreck this Bill when it becomes an Act, and I can conceive his saying that he desires to bear true allegiance to the King "according to law"; that is to say, until the law is altered. Therefore —the noble and learned Lord does not quite agree with that?


I think the oath is "allegiance to the King, his heirs and successors according to law."


At any rate an Irish member, such as I am suggesting in Dublin, will not be bound by technicalities at all; he will not look upon it with the accuracy of the noble and learned Lord, and I feel quite convinced that if the whole of this protection rests upon the Oath of Allegiance it is resting upon a very slender basis. Let me take another part of Clause 70. It is not even necessarily going to be enforced, because it all depends upon the discretion of the Government. I am not desiring to call in question thebona fidesof the Government in the least, nor do I want to say anything which is polemical. I do not think, however, that anybody will think that the Government policy in Ireland has been a conspicuous success. No one could pretend it for a moment. It has evidencly been the most unsuccessful effort of policy ever known, and one cannot have great reliance upon the discretion of the Government, who have to determine whether the substitute form of government which they provide in Clause 70 is to go on or not. It all depends upon the word "may," and that appears to me to be a great blemish in the Bill.

Finally, suppose the Government are determined to enforce the clause, and supposing there is no change of Government, for of course there might be a change and a new Government might not be at all prepared to enforce the clause. Assuming all that to be as favourable to the Government case as it can be, then the new state of things is brought into force. What is the new state of things? It is government by committee. I do not think that is a very satisfactory form of government. It is government of a purely arbitrary character. I ask your Lordships to remember that the true genesis of this Bill is, I believe, a desire to please—and I have some respect for the motive—public opinion in the Dominions and in the United States of America. I do not agree with allowing that motive to have the weight which the Government have allowed it to have, but undoubtedly it is strong in weight. I ask your Lordships what view public opinion in the Dominions and in the United States is likely to take of government by committee—of government of an absolutely arbitrary character carried on for a long period. You cannot exaggerate the kind of accusations that would be brought against such a form of Government, and probably with good grounds. That Committee is likely to make a good many mistakes. One cannot observe what goes on in Ireland without being convinced that administrative mistakes flourish in that country, and there is no doubt that this Committee will make great mistakes. Then, conceive the volume of public opinion which will be created against it not only in Ireland, but in England and throughout the Empire, and in the United States. It is a very bad form of government for the purpose which, I believe, the Government have in view—namely, the conciliating of opinion.

Lastly, I wonder what the position of our own Parliament here is expected to be under that state of things? Is it expected that the House of Commons and ourselves should remain quite uninterested in what is going on in Ireland, while it is being governed by this arbitrary Committee? Is it not quite certain that every act of that Committee which is of a strong or drastic character will be challenged on the floor of Parliament, and will be resisted by the Government on the ground that we have nothing to do with what goes on in Ireland. A condition of ambiguity, of friction and of irritation will be created that will be very detrimental to good government and to proper procedure in both Houses of Parliament.. These appear to me sufficient reasons for saying that Clause 70, inserted in the Bill at the last moment evidently in a hurry, without adequate thought, is not a well-conceived clause, and not a proper remedy for the disease.

I hesitate on grounds of Order from going in detail into those clauses which are upon the Paper following this, and which to some extent are a substitute for it. I do not know how far your Lordships would wish me to go into them, but I may say that there are two things which appear to be absolutely essential. The first is that there shall be some guarantee retained in the hands of this Parliament—retained, that is to say, in the hands of the House of Commons and of the House of Lords—that no such system shall be put in force in Ireland until Ireland is fit to receive it. That is, until the murders, outrages, and the defiance of the King's Government and the rights and liberties of our fellow-subjects in Ireland are laid at rest. As soon as Parliament is satisfied of that, then it might be suitable to bring the Act into force. That appears to be the first remedy.

The other precaution which seems to me to be essential is that a system should not be forced upon an unwilling Ireland. I do not want to argue that at length because it will arise upon my noble friend's Amendment, but it is clear, from what the Government: lave said themselves over and over again in these debates, that they want to avoid forcing a system on Ireland which Ireland does not want. That should be applied not merely to such questions as the Second Chamber or a system of judiciary, but should be applied universally. It is a sound principle that you should not force upon a reluctant Ireland what she does not want. If you do that you have no claim upon her that she shall work it. Those appear to be the essential elements of the precautions that you ought to take. I do not say that the elimination of Clause 70 is essential in order that these other two safeguards shall be introduced, but it seems to me to be proper that it should be eliminated. It does not fit very well, and it is for that reason that I ventured to give notice to move the omission of the clause. My noble friend has moved its deletion, and I hope that the Government will consent to the Amendment.


I think when the noble Marquess said that he hoped the Government would assent to this Amendment, he did so in the spirit of the Roman, who saidSpero magis quam expecto. It must have been quite inconceivable to the noble Marquess that we should accept this Amendment because, although he may not have envisaged this contingency, it may even be that your Lordships will not be prepared to accept the Amendment which follows that of the noble Marquess.


I quite agree.


We are all bound to accept the decision of the House. It seems to me to be exceedingly improper that the House is to pronounce in a moment upon the noble Marquess's Amendment and may not accept the Amendment to Clause 70 but may reject it. If we accepted this proposal on that hypothesis we should not have the slightest protection in case of the contingencies with which Clause 70 deals. I cannot think that any one would take the view that we should dispense with what I still think is the validity of Clause 70 until we have reached a conclusion upon the other.

I am not entitled of course, to complain in the slightest of the length of the elaborate speeches in which these matters have been discussed, because the topic is most important, but I confess I had hoped, with the elasticity which your Lordships occasionally allow in these matters, we might have heard a recommendation of the noble Marquess's proposal which would have enabled us to deal with this particular Amendment with an exact knowledge of its terms and scope. The noble Marquess, more indulgent to us to-night than he sometimes is, said that he did not wish to make a strong attack on the Government but would content himself with saying that it was at least obvious that their policy in Ireland had not been a success. There is a sense in which everybody must agree with that. It is the same kind of accuracy with which one might have stated at certain periods in the war that it was most conspicuous that the policy of the Government in defeating the Germans had not been a success.

If I might deal in any tone of criticism at all with the attitude of the noble Marquess in relation to this matter, I sometimes think that when he fires the arrows of his criticisms he forgets that after all we have been confronted with a task of quite extraordinary difficulty, of almost unprecedented difficulty so far as I know. If he were ever to say "You have failed in this I am quite confident that if I had had to deal with the problems I could have solved them," I should have listened to him confess, in a wholly different temper. The noble Marquess, who is one of the most modest of men, has never said so, and I do not believe in his heart that he believes it. I am making no further claim for the Government in this respect than that we have been confronted for the first time in all history by men who have been wicked and cowardly enough, banded in large numbers, to claim the right of warfare, while performing the acts of massacre with no uniform and with murder stalking behind the hedge. When the armies with which we were dealing numbered not tens of thousands but much more than tens of thousands, in all the military operations with which I am acquainted in my study of such matters, I know of no such problem that has ever perplexed or confronted any Government before in its life history. I claim that, slow as the progress may be, slow as the progress has been in other great struggles in which this country has been engaged, progress none the less is being slowly and certainly made. I make no other observations on what the noble Marquess said on this point.

When we come to the Amendment moved by the noble Lord, Lord Askwith, it is preparatory of course to the Amendment standing in the name of the noble Marquess or which originally stood in his name. The whole difference between the two is this. It is quite true that at a late stage in the Parliamentary history of the proposals the House of Commons decided that it was a sufficient security for dealing with this matter to provide that if the Lord Lieutenant certified that the number of members of the House of either Southern or Northern Ireland was less than half the total numbers, or if less than half took the Oath of Allegiance, the consequences which are familiar to everybody here and which have been explained by the noble Lords would ensue. Lord Salisbury prefers, as an alternative to that, that a Resolution should be passed by both Houses of Parliament. The matter is one open to argument, but I am on the whole inclined to think that the course which we recommend is the preferable one. The noble Marquess says that, as far as the certificate of election by the Lord Lieutenant is concerned, there is nothing to be said—we should have the certificate of the Lord Lieutenant, and that, on the face of it, is of course unimpeachable. But then the noble Marquess finds fault with the provision that half the members should take the Oath of Allegiance, and I remember that in his speech on the Second Reading he dissented from the view which I had—I confess in a very hesitating way, because these matters are very speculative —put forward. I had said that my study of the history of the Sinn Feiners and of their behaviour (I am excluding altogether for the moment what I call the murder gang, the "gunmen") was such as to lead me to the conclusion that they would not deliberately falsely take the Oath of Allegiance. No one is entitled to dogmatise on such a matter, neither Lord Salisbury nor myself, and he would be entitled to say that cases are appropriate where risks may be run, and to that I assent.

But let us see whether the probabilities are not immensely on the side of the view which I expressed on the Second Reading. Every one of those Sinn Feiners, if he would have taken the Oath of Allegiance could, of course, have presented himself at the House of Commons here. There may have been other reasons. Some observers say they would not come to the House of Commons because, if they did, that would involve a recognition of the House of Commons and to that they would not assent. I do not think that can be the true view, because it involved a sufficient recognition of the reality of the House of Commons when they made themselves parties to and victors in the election for membership of the House of Commons. There can be no consistency in the view which drew a distinction between sitting in the House of Commons and electing themselves to the House of Commons. And I believe that the real reason is that they were not prepared to take the Oath of Allegiance.

The noble Marquess says every man is prepared to take the Oath of Allegiance, and that the Lord Mayor of Cork took it. I have not the slightest reason to suppose that the Lord Mayor of Cork took the Oath of Allegiance. No oath, so far as I am aware, is required from any Lord Mayor unless he enters upon his magisterial duties. But I am told that it is very uncommon for Lord Mayors to take the Oath of Allegiance; very few do. And if I were a person who ever entered into wagers I should be prepared to risk a considerable sum that the Lord Mayor of Cork, who supplied him with a very important argument in his speech, never took the Oath of Allegiance at all. Then the noble Marquess said that all the solicitors of Ireland took the Oath of Allegiance. I do not know at first-hand knowledge what the solicitors of Ireland do, but I am unaware that the solicitors of England do. I have some knowledge of these things, and I never heard of such an oath. And the noble Lord, Lord Shandon, who has great knowledge of Ireland, I believe confirms my view.


I am not aware of it. I have signed the certificate of admission, and they never took the oath before me.


It may emerge that the noble Marquess is right and I am wrong, but at present it appears that he is wrong and I am right


I have no knowledge on the subject.


I am not sure whether it is wise to make these observations the basis of Parliamentary argument unless one has such knowledge. Even if true that the attorneys and others in Ireland took the oath, they took the oath under quite different circumstances from these. They took the oath and became solicitors, some of them many many years ago, and they took it in no relation to the position arising now. The suggestion is that these people are going to take the oath of allegiance and the moment they qualify by so taking are going to break it publicly. I think it is unwise to put forward that view very confidently.

I think the House will forgive me if I deal in anticipation with the alternative suggestion given by Lord Salisbury. The proposal of the Government is that you shall have two methods of deciding whether or not this Parliament is prepared to discharge its functions. I think that gives you a fair prospect that a Parliament so made would afford the nucleus of a Southern Parliament and others following their example would associate themselves with them. But there is not much difference really between the two views. The noble Marquess says: "I will have an additional voucher and security" There is this great objection, I think, to Lord Salisbury's proposal, that you cannot bring them into existence in a week, a month, or three months. The whole circumstances may be changed, they are changing now like a kaleidoscope before our eyes, and have been in the course of the last six months and the last twelve months. Who knows, when once this Resolution has been taken by the two Houses, whether by the time it could be made. operative some change of this kind would not have taken place? We have now in our own hands in this Bill a very considerable security. This Bill if we choose to postpone, if the circumstances in Ireland make it wise to postpone it, can be postponed until the month of April, 1922. That is a very considerable margin. A great deal will have happened by the month of April, 1922.


You cannot tell at all.


No one can tell anything. That is the trouble; but if you allowed that to prevent you introducing Acts of Parliament—


May I explain? I have not, of course, described my Amendment. There would be no difficulty in bringing the Act into force. The Government would have to ask the House of Commons and the House of Lords and the Resolution would be passed. The power of determining whether the Act should come into force would vest in Parliament, where it ought to vest, and not in the act of an executive government; secondly, it would depend not upon the chance of whether a certain number of men would take the oath of allegiance, but upon the conviction of your Lordships and another place that Ireland was in a proper condition to exercise these great privileges.


It begs the whole question when the noble Marquess says that it rests in the hands of Parliament, where it ought to rest. The whole point is whether you ought to get that right suspended, or whether you ought once for all when passing this Bill to define clearly the conditions upon which the oath is taken. I confess the Government adhere to their own view, but at any rate all of us surely must be agreed that until we have assented to the Amendment of Lord Salisbury we could not possibly get rid of Clause 70. I have heard no argument in favour of that view. The security of Clause 70 is of vital necessity unless and until we prefer some proposal such as that which Lord Salisbury brings forward. I propose to resist this Amendment for striking out the only clause that gives us security, and listen to Lord Salisbury make his proposal on Clause 71.


Before we pass from this Amendment, which I understand to be the Amendment before the House—namely, the elimination of Clause 70—I should like to confirm the view of the Lord Chancellor with regard to Sinn Feiners in Ireland who occupy positions which entitle them to become magistrates if they so wish. It is my experience in the West of Ireland that Chairmen of county councils and urban councils, who are entitled to become magistrates, do not attempt to do so or take the oath of allegiance, for this reason amongst others, that they are acting as magistrates in their own courts.

I should like to ask the Lord Chancellor whether this clause contemplates the possibility of only one of the Parliaments in Ireland coming into being? If only one Parliament comes into being there will then be no Council of Ireland, no Senate, or its equivalent.


I do not agree.


The Council of Ireland is to be composed of ten members from each of the two Parliaments, and one of the Parliaments does not exist.


If the noble Lord will look at Clause 70, subsection (1), paragraph (a), he will see that that case is provided for.


Is the Lord Chancellor referring to powers that are to be? Certain powers were given to the Council, if it came into being, and as I read the original clause the powers which would be exercised by the Council would be exercised by the Lord Lieutenant and his committee. The powers I take it refer to railways and fisheries.


The clause says "for the exercise in the meantime of the powers of the Government of Southern Ireland." That is perfectly unlimited language; you cannot use wider language.


The powers are one matter. There are what are described as Private Bill legislation, and legislation with reference to agriculture and fisheries.


Fisheries and railways belong to the Council.


There will be no such body as the Council of Ireland in existence. A great deal of stress has been laid on the fact—and by no one more energetically than the Lord Chancellor— that an essential part of the Bill coming into operation was the existence of the Council of Ireland. Does the Lord Chancellor look forward to the unity that would arise from the Council of Ireland, the harmonious action that would take place between the two Parliaments, the intercourse that would take place between them? He is contemplating a situation which naturally would be impossible. There could be no harmonious action at all or any of that intercourse, for the simple reason that there would be only one Parliament in existence. He is, therefore, contemplating a situation in which there will be no Council of Ireland. All the talk about the Council of Ireland as a centre of unity goes by the board under this clause. When we come to a positive proposal—I understand Lord Askwith is to move an Amendment—I want to draw attention to the fact that this Council of Ireland will have ceased to be. That is one reason why I hope to show—


Will the noble Lord allow me? It may clarify the matter. I think I can make it plain in two or three sentences. The Council of Ireland, as a body which discharges the functions immediately committed to that Council, other than those of preparing the road to unity, will come into existence at once and will discharge its functions in relation to railways and so forth. The Council of Ireland, as a body possessing moral force in the direction of attaining unity, will not, and cannot, come into existence—


Composed of two Parliaments.


—because on one side it will be deprived of moral weight.

On Question, whether Clause 70 shall stand part of the Bill?

Their Lordships divided:—Contents, 50; Not-Contents, 51.

Resolved in thenegative, and Amendment agreed to accordingly.

Clause 71:

Commencement of Act and appointed day.

71.—(1) This Act shall, except as expressly provided, come into operation on the appointed day, and the appointed day for the purposes of this Act shall be the first Tuesday in the eighth month after the month in which this et is passed, or still other day not more than seven months earlier or later, as may be fixed by Order of His Majesty in Council either generally or with reference to any particular provision of this Act, and different days may be appointed for different purposes and different provisions of this Act, but the Parliaments of Southern and Northern Ireland shall be summoned to meet not later than four months after the said Tuesday, and the appointed day for holding elections for the House of Commons of Southern and Northern Ireland shall be fixed accordingly:

Provided that the appointed day as respects the transfer of any service may, at the joint request of the Governments of Southern Ireland and Northern Ireland, be fixed at a date later than seven months after the said Tuesday and that the appointed day as respects the provisions relat ing to the representation of Ireland in the House of Commons of the United Kingdom shall be a day not earlier than the day on which the Parliament of the United Kingdom is next dissolved after the passing of this Act.

(2) Nothing in this Act shall affect the administration of any service before the day appointed for the transfer of that service from the Government of the United Kingdom.


Having regard to the decision which your Lordships, in accents so unmistakeable, have just reached I propose, so far as this House is concerned, if the noble Marquess is agreeable, to accept his Amendment to this clause. We must have some safeguards, and in those circumstances I accept the Amendment.


In the circumstances I will not trouble your Lordships' House with any observations. Otherwise I would have explained to you the beauty of these proposals.


I am quite sure that if the noble Marquess had done so we might then have had two Bills.


I move, at the beginning of subsection (1), to leave out from "the appointed day" where those words first occur, to the end of subsection (1), and to insert the new subsections standing in my name—viz: (2) With the intent that the Parliaments of Southern Ireland and Northern Ireland shall not he established until the Parliament of the United Kingdom is satisfied that the authority of His Majesty the King in Southern Ireland and in Northern Ireland respectively, and the protection in their rights and liberties of all persons in Southern Ireland and Northern Ireland respectively are fully assured and that otherwise it is expedient that the said Parliaments, or either of them should be established in Ireland, the appointed day for the purposes of this Act shall be such day as regards Southern Ireland and such day as regards Northern Ireland as may be respectively fixed by a resolution or resolutions as the ease may passed by both Houses of the Parliament of the United Kingdom, and by such resolution different days may be appointed for different purposes and different provisions of this Act in its application to the part of Ireland affected by the resolution. (3) Until the Parliaments of both Southern and Northern Ireland have been established, the provisions of this Act with respect to the Council of Ireland shall not have effect. (4) In the event of the appointed day being fixed for Southern Ireland only, or for Northern Ireland only, or being fixed at different times by different resolutions under this section, His Majesty may, by Order in Council, make such modifications in the provisions of this Act in its application to the part of Ireland affected by a resolution under this section as may appear to His Majesty to be necessary for giving effect to the said provisions in such part, and such Order may contain such other consequential, incidental and supplemental provisions as may appear necessary for the purposes of the Order, and any such Order shall have effect as if enacted in this Act, but may be varied by any subsequent Order in Council. (5) Before any Order under this section is submitted to His Majesty in Council a draft thereof shall be laid before both Houses of the Parliament of the United Kingdom, and if an address is presented to His Majesty by either of those Houses within thirty days on which that House has sat next after any such draft is laid before it against such draft or any part thereof no further proceedings shall be taken on the draft or the part thereof to which the address relates; but this provision shall be without prejudice to the making of a new draft. I might explain that in subsection (3), instead of "the Council of Ireland" it should, I suppose, now be the "Irish Senate."

On Question, Amendment agreed to.

Clause 71, as amended, agreed to.

Clause 72:


72. In this Act, unless the context otherwise requires—

The expression "salary" includes remuneration, allowances, and emoluments:

LORD BLEDISLOEmoved, in the definition of "salary," after "remuneration," to insert "bonus." The noble Lord said: Your Lordships will remember that in Clause 52 all existing Irish officers serve in an established capacity, and are retained in their employment and continue to receive the same salaries, gratuities and pensions. I move this Amendment to insure that they shall get what is called the war bonus which, as in the case of many similar officers in this country, is nowadays really a part of their ordinary salary. I am asked by the Surveyors Institution and by similar bodies of professional men in Ireland to move this Amendment.

Amendment moved— Page 59, line 2, after ("remuneration") insert ("bonus").—(Lord Bledisloe.)


Clause 53 (1) secures to all transferred officers salaries not less than those they would have received had the Act not passed into law. It is laid down in the Act in specific terms that all transferred officers shall receive the bonus fixed according to the existing practice of the British Civil Service, even though that practice may be inapplicable to the Irish system. At the present moment the bonus to which Lord Bledisloe refers is based on the cost of living, as calculated from time to time according to the well-established system of the Ministry of Labour, and it is revised every three or four months. The safeguard against the injustice of which imagine Lord Bledisloe is afraid is I think sufficiently covered in the Third subsection of Clause 53 which gives all transferred officers the right to retire if they think fit with their full pensions. I should therefore suggest that the bonus ought not to be included in the salary as the point is now covered by Clause 52, subsection (3).


The noble Earl has rather mistaken the intention of this Amendment. It was not intended to refer to the pension that they would get on retirement. It refers to their present-day salaries and is to make quite certain that they have included the war bonus as part of their salaries. I am not sure that the Bill does not meet the point but I have been asked to put it. It is not a very important concession, but it would make the minds of these professional gentlemen much easier if it were made.


I thought the pint was already met under Clause 53.


I do not desire to press the point if the noble Earl thinks it is met.

Amendment, by leave, withdrawn.

LORD BLEDISLOEmoved, at the end of the clause, to insert— The expression `technical officer includes any officer who entered the Civil Service of the Crown in an established capacity after attaining the age of twenty-two years and who was required by the Civil Service Commissioners to have had previous professional experience.

The noble Lord said: This is a much more important Amendment. As the noble Earl told me that he was not sure as to the meaning of the expression "technical officer," this adumbrates a further Amendment which I put down to the Fifth Schedule to this effect—that for the purpose of calculating the superannuation allowance or grataity payable to a technical officer there shall be added to his years of service a further five years in addition to any which may be added under Para. 2 (a) of Part A of the Rules.

The unfairness which is likely to occur is due to the fact that a considerable number of these established officers are professional men who have had a very long professional training and are now something like forty to fifty years of age, and of whom it is quite impossible to conceive that they could get fresh employment either in England or Ireland when once they retire from their present occupation. I am asked to say that a considerable number of these gentlemen are employed as surveyors and also as medical officers and are of English origin. Because they are of English origin it is suggested that they will find their position somewhat intolerable in Southern Ireland and will be compelled to retire. According to the present scale they will receive as a retiring pension a sum which is wholly inadequate to properly support themselves. So that I am asked on behalf of the professional organisations both in Ireland and England to suggest to your Lordships that this ought to be weighted with a five years period to enable them to get a rather larger and more adequate pension upon their retirement. I do not want to labour it and if the noble Earl sees the point without my saying any more I will leave it. I should like to mention that the persons I have in mind include architects and engineers as well as surveyors and medical officers all those men who have had a long professional training, and whose duties are not confined to clerical work.

Amendment moved—

Page 59, line 29, at end insert the said definition.—(Lord Bledisloe.)


This Amendment evidently refers to the last one on the Paper, and seems to anticipate or rather to prepare for it. That Amendment on page 11 adds five years to the years already earned by these gentlemen called "technical officers." In the first place I do not know who "technical officers" are. Lord Bledisloe says they are architects and medical officers. But it is really quite an arbitrary phrase, and I do not think it means anything specific. They are certainly not appointed as technical officers but as architectural advisers or medical officers, or whatever it may be. The expression "technical officers" is quite out of place, I submit. The object of the clause is to secure to every official who is displaced the right to the full pension which he has already earned. Lord Bledisloe wishes to add to that a compensation of five years. I think it contravenes what is a wise principle, that the existing rights should be maintained intact. If five years be given to this arbitrary class of pensioned officers I do not see why an extra five years should not be given to everybody else. And I would further point out (which is material, of course) that this Amendment increases the compensation payable by the Treasury, and must, therefore, be a distinct charge upon the United Kingdom Votes.


I am not prepared to press the Amendment at this stage; but I should like to bring it up in another form on Report.

Amendment, by leave, withdrawn.

Clause 72 agreed to

Clause 73 agreed to.

LORD ASKWITHhad on the Paper an Amendment, after Clause 73, to insert the following new clause—

74.—(1) The foregoing provisions of this Act shall not come into operation unless within one year after the passing of this Act, the provisions therein contained shall have been accepted respectively by a majority of the members returned by constituencies in Southern Ireland, and by a majority of the members returned by constituencies in Northern Ireland to serve in the Parliament of the United Kingdom, and such acceptance as aforesaid shall have been signified in writing to the Speaker of the House of Commons of the United Kingdom by the said accepting members respectively and reported by him to that House for record in the proceedings of that House.

(2) In order that the Parliamentary electors in Ireland may have an opportunity of choosing members to serve in the Parliament of the United Kingdom with special reference to the power of acceptance of the provisions of this Act as in this section provided it shall be lawful for His Majesty as soon as conveniently may be, after the passing of this Act, if he thinks fit, to declare the seats of all the members returned by constituencies in Ireland to serve in the present Parliament of the United Kingdom to be vacant in order that writs shall be issued for the purpose of holding an election of members to serve in the present Parliament for constituencies in Ireland.

The noble Lord said: I do no know whether the Government are prepared to accept this Amendment after what has occurred.


This is an alternative scheme to Lord Salisbury's scheme, which we have just accepted.


No, it is additional to it, and carries it out. It was a question whether there should be a proposal for the acceptance of the Bill by the representatives of Ireland—by the Northern Parliament or the Southern Parliament, or by both Parliaments. I chose the alternative of both Parliaments, in order to bring into being these Parliaments in Ireland, on the ground of the absolute importance, if possible, of avoiding the partition of Ireland, and also of endeavouring to obtain some unity of consent, in order that there might not be a borderline of discontent which would be continually a source of friction between the two divisions of the country. At present this Charter that you are putting before the Irish people has not been seen by them. They do not know what its contents are. They have had no opportunity of really studying it, and until it leaves this House they will have had no opportunity of really gauging the effects of this Bill. It may be that, when they have had an opportunity of doing it, and if some propaganda could be brought out to show the good points of this Bill, they might accept, or, at any rate, they might come forward with suggestions for alterations in those parts of the Bill which they do not like, and—although one could scarcely hope for it, yet possibly the truce which has been spoken of in later days might give chance for some discussion on different points, and lead to a better consent of the Irish people.

It is at the present moment a Bill imposed upon the Irish people, and some of the points they have most at heart have not been given to them. But if a discussion could arise upon some such question as Excise and Customs, which must be the subject of negotiations which must involve most difficult questions of accounts, finance, and arrangement between country and country, then experts upon these matters might show how difficult it might be for a complete separation to take place upon these subjects. At the present moment they regard our attitude on this matter as not allowing them sufficient control of their own affairs, and as trying to keep up the mercantile condition of affairs which existed in the 18th century. That is not the way to have a successful Ireland and to have peace between the two countries. We want Ireland to be successful, to be rich, if she possibly can be, not by the Rules which are made here to prevent, capital going into the country, and the development of the country by such capital flowing in either from America or elsewhere. If you generously give this Charter to the Irish people then I am sure when they have examined this Bill better, they will be able to accept what is good in it, and possibly to come forward and make suggestions about what they really seriously do not like. That is a chance, which as certain as I stand here, ought not to be thrown away, and it would be the best thing for this House to suggest that it should be given an opportunity of coining into existence.

Amendment moved— After Clause 73, insert the said new clause.—(Lord Askwith.)


This is an Amendment which under no circumstances here or elsewhere could the Government possibly accept, nor will they accept. The noble Marquess, Lord Salisbury, moved a perfectly intelligible alternative to the scheme of the Government, and I gave the reasons for indicating that I thought the Government scheme preferable to that of Lord Salisbury. Your Lordships, with a very small majority, took a different view. As far as this House is concerned I readily acquiesced, because the noble Marquess's scheme is a well thought-out. Scheme not inconsistent with the fundamental object of the proposal. The proposal of Lord Askwith is an intolerable proposal in relation to the point which we regard as fundamental, and if this Amendment were carried and were persevered in it would deprive us of the point on which throughout we have laid stress—the importance of seeing in the North of Ireland a Parliament at work, we believe with the universal assent of the people in Ulster it will soon be found to be at work. And here the noble Lord conies and makes a proposal, not satisfied with the safeguards introduced into the Bill by Lord Salisbury, that "the foregoing provisions of this Act shall not conic into operation"—including even Lord Salisbury's Amendment postponing the Act for a year. The real truth is, it never was intended to be a supplementary Amendment to Lord Salisbury's; it was intended as an alternative Amendment to Lord Salisbury's. The effect is to ignore the whole of Lord Salisbury's Amendment. The noble Lord makes the proposal that "The foregoing provisions of this Act shall not come into operation unless within one year after the passing of this Act the provisions therein contained shall have been accepted respectively by a majority of the members returned by constituencies in Southern Ireland, and by a majority of the members returned by constituencies in Northern Ireland." There have been occasions when we have differed, but throughout the Second Reading and Committee stage of this Bill the attitude of your Lordships has been that of those who did not wish to destroy the Bill in its main outlines, and I, for one, do not believe that your Lordships will add this to the Amendment of Lord Salisbury, which it destroys.


I am sorry that the noble and learned Lord takes that line. I want the House to look at, this quite plainly in the face. Over and over again during these days the noble and learned Lord and other members of the Government have pressed upon us how important it is, in order to work a system of this kind, to carry the consent of the Irish people. They have said it over and over again. The noble and learned Lord did it, of course, in his own very pleasing way, but he made it a very important argument in the ease of a Second Chamber. He said, Why should von impose a Second Chamber if Ireland does not want it.? One would imagine that he would feel himself bound by that line of argument which he himself has used. It was exactly the same thing when we came to deal with the judiciary. He said, "Do not do what the Irish people do not want." Your Lordships agreed with the noble and learned Lord in that respect and did not do what the Irish people do not want.

Now we come to the Parliament itself. What is really suggested by this Bill is that a Parliament, which not a soul in Southern Ireland wants, should be forced upon it, and it is not merely that that is by itself an absolute negation of all democratic government, but it is that it has no chance of success. How can it succeed? What claim have you upon it? When the Bill passes and the Parliament is established in Southern Ireland, supposing your Lordships thought that the condition of order was sufficient under the Amendment which has just been agreed to, to allow it to come into operation, what chance is there that it will succeed? There is no chance whatever; and no chance that they will work it with any desire to make it succeed. If you say "Surely you are going to try and work the Bill now it is passed," they will say, "No, we do not want it. We told you we did not want it, yet you have pressed it upon us." What possible claim have you upon the people of Ireland? What you are asking of the loyalists of Ireland is this: "We propose to put you under new masters. You used to be under the United Kingdom. Your new masters are not very palatable to you." You have not even the benefit of their word that they will work it. You are throwing these loyalists to the wolves without having that control and that expectation which, having put it to the Irish people, and their having accepted it, would give you a right to expect. Surely that is wrong. Looking at it as a matter of pure argument, the first thing you ought to do is to pass something which the Irish people will accept. There does not appear to be anything less which will be of use, and the Amendment is one directed to that end. It is a very liberal Amendment. No doubt the Lord Chancellor might say that there are certain details 1,e would like to alter.


I said nothing of the kind. I said that the whole of it was a wrecking Amendment, destructive of the Bill.


That is hardly argument; that is denunciation. I do not wish to misrepresent the Lord Chancellor. I said that he might wish to alter certain details, and I am certain that Lord Askwith would be delighted to meet his wishes.


indicated dissent.


He will not have the olive branch which I offer him most respectfully. I was afraid he would not. But this is a liberal Amendment and provides not merely that Irish members of the House of Commons should be consulted but that there should be means afforded to the Government for consulting Irish Members. Could anything be more democratic and liberal than that? Here is a system provided under which there could be a little referendum of the people of Ireland. Does the Lord Chancellor think that is ridiculous?


If the noble Marquess appeals to me, I will tell him that when he speaks of a "little referendum" it involves both parties in Ireland in a unanimous agreement, and that I made it clear on the Second Reading and ever since that the Government had determined as far as we are concerned to give Ulster an opportunity of having her own Parliament. That was developed at every stage in the debate, opposed most vigorously by noble Lords opposite, and now the noble Marquess, in an almost empty House, is attempting to wreck the whole of the Bill although he did not vote against the Second Reading.


I think the Lord Chancellor should approach the subject on its merits. No denunciation of my wickedness should really prevail with your Lordships. I suggest that to consult the people of Ireland before you impose a new Constitution upon them as an eminently democratic method. As to all Ireland being included that is a matter for argument, but on the broad principle I submit that you ought to consult the people of Ireland before you impose upon them a new Constitution. It is your only chance of success.


The noble Marquess says that I have given him denunciation instead of argument. I will ask the indulgence of your Lordships to make a brief observation on this point. The proposal of Lord Askwith is entirely different, in one sense, from that of the noble Marquess which has been carried. What Lord Askwith's Amendment says is that whatever the North of Ireland wants it shall not have a separate Parliament until the South of Ireland has also assented. Those of your Lordships who listened to my observations on the Second Reading will remember the stress I laid, whether we were right or wrong, upon the opportunity given to the North of showing to the whole world, to the Colonies and to America, that Irishmen were capable of governing themselves, and the debate centred in great part on the reasonableness of that proposal. Now, almost at the close of the Committee stage, it is proposed with the approval of the noble Marquess, that this immense change, destructive of the whole special quality of the Bill, should be introduced.

I hope the noble Marquess will forgive me for saying that this is not the first time on which, on a grave occasion, he has given dangerous advice to this House. I remember that he gave advice, which he must afterwards have regretted, in the case of Miss Douglas-Pennant, and now, on an occasion much graver, he is taking the responsibility—


What advice did I give about Miss Douglas-Pennant?


I say that this is not the first occasion—


What advice did I give about Miss Douglas-Pennant?


The noble Marquess gave advice which influenced this House to order that most unfortunate Inquiry.


The noble and learned Lord strangely forgets. He ought to know that I did not advise that course, and that I did not vote in consequence.


I myself heard the speech of the noble Marquess, and I think many noble Lords present here now also beard it. I do not, of course, carry the reference in my head, but I will undertake to give it to him to-morrow. I remember his speech. At any rate, the effect of this Amendment is perfectly plain. It would completely destroy the vote given on Second Reading.


I am unfortunate in that I have not heard all that passed in the rather rapid conversation over the Table, but I think there is a considerable amount of force in what the noble and learned Lord has said, that at this hour and in rather a small House we should not make so large a change as this. As he points out it would give the South a veto over the North. This is too large a change to make in the circumstances in which we are placed, and much less prejudice would be caused at any rate if this particular proposal were postponed until Report stage when it can be discussed in a larger House and noble Lords will have more time in which to consider it. Therefore, I suggest that we should not now go to a Division upon it.


I understand we are not going to adjourn the matter. The noble and learned lord has laid a great deal of stress on what he calls the wrecking character of this Amendment. I do not sympathise with that view. This is the first opportunity we have had of dealing with the situation where it is contemplated there will only be one Parliament in existence in Ireland. Many of us have every intention of bringing it before the House. While I do not want to wreck the Bill, I am one of those who hold very strongly that one Parliament should not come into being in Ireland unless the other does. I am not against the two, but I say that either both Parliaments should come into being or neither. I say that both should be born together or neither should be born.

I say this for two reasons, and one is the reason I have just put before the House—namely, that if there is only one Parlia- ment there cannot be any Council of Ireand and therefore all the hopes and wishes we have so often expressed in this House about the good which would result from members of these two Houses of Parliament coming together and working harmoniously go by the board, and you have no possibility of bringing the Irish people together and creating that unity which I understood was the main object of the Bill. Then there is another reason. If you have a Parliament in one part of Ireland, which is the Government's proposal, the rest of Ireland is to be governed, as I understand, as a Crown Colony. Is that going to work? Would it not be well to avoid that situation? I want to avoid that situation. Would it not lead to disturbance and irritation in the rest of Ireland, and also in the North, where there is a strong Catholic and Nationalist minority?

It may be said, Why should you not allow the Parliament in the North of Ireland to come into being if it wishes to? But the Parliament of the North of Ireland does not want to come into being if there is no Parliament in Dublin. The whole point of the speeches of Sir Edward Carson and Lord Armaghdale is that they do not want to conic under a Parliament in Dublin. There was a Motion in this House that if a Parliament was established in Dublin Ulster should be left under the Parliament of the United Kingdom. They resisted that. But if there is no Parliament in Dublin, then Ulster need have no fear. You cannot come under the harrow if there is no harrow. For that reason I submit we are doing no injustice to the six counties to suggest that they should not come into being till the rest of Ireland is willing also to come into being.

I do not entirely agree with Lord Askwith's Amendment. For instance, as to the date. I think it is too short; and it is not the way I would do it. My one object being to get the two Parliaments into being at the same time, my view would be this, and I will just place it before the Government in case they are able to give it consideration. If either of the Parliaments does not function after the Bill becomes law Ireland shall remain under the Parliament of the United Kingdom, but this Act may be brought into operation whenever a majority of the representatives from each of the areas of the two Parliaments ask for it, and on elections being held, a majority willing to function is returned to each Parliament. That leaves the Act ready to be brought into operation, and not wrecked. It is not imposed upon Ireland by the Imperial Parliament at any time, but if at any time a majority of the two peoples in the different parts of Ireland wish it to

Northumberland, D. Bangor, V. Fingall, L. (E. Fingall.)
De Vesci, V. Greville, L.
Hutchinson, V.(E. Donoughmore.) Harlech, L.
Aberdeen, and Temair M. Hemphill, L.
Linlithgow, M. Holm Patrick, L.
Salisbury, M. Askwith, L. [Teller.] Killanin, L. [Teller.]
Barrymore, L. Kilmaine, L.
Drogheda, E. Bellew, L. MacDonnell, L.
Grey, E. Clanwilliam, L. (E. Clanwilliam.) Montagu of Beaulieu, L.
Iveagh, E. Monteagle, L. (M. Sligo.)
Kingston, E. Crofton, L. Monteagle of Brandon, L.
Lanesborough, E. Decies, L. Oranmore and Browne, L.
Mayo, E. Desart, L. (E. Desart) Ormonde, L. [M. Ormonde.)
Midleton, E. Dynevor, L. Pentland, L.
Stanhope, E. Ebury, L. Rathdonnell, L.
Wicklow, E. Farnham, L. Shandon, L.
Birkenhead, L. (L. Chancellor.) Sandwich, E. Deramore, L.
Selborne, E. Desborough, L.
Wellington, D. Strafford, E. Erskine, L.
Abercorn, M. (D. Abercorn.) Vane, E. (M. Londonderry.) Fairfax of Cameron, L.
Dufferin and Ava, M. Hylton, L.
Farquhar, V. (L. Steward.) Lamington, L.
Bradford, E. Sandhurst, V. (L. Chamberlain.) Lawrence, L.
Chesterfield, E. Esher, V. Lee of Fareham, L.
Devon, E. Falmouth, V. Oriel, L. (V. Massereene.)
Doncaster, E. (D. Buccleuch and Queensbury.) Hood, V. Ormathwaite, L.
Peel, V. Phillimore, L.
Howe, E. Abinger, L. Ranfurly, L. (E. Ranfurly.)
Lindsay, E. Addington, L. Rathcreedan, L.
Lovelace, E. Annesley, L. (V. Valentia.) Redesdale, L.
Lucan, E. Avebury, L. Ritchie of Dundee, L.
Lytton, E. Balfour, L. Rotherham, L,
Malmesbury, E. Clements, L. (E. Leitrim.) St. Levan, L.
Morton, E. Clwyd, L. Somerleyton, L. [Teller.]
Onslow, E. Colebrooke, L. Southwark, L.
Pembroke and Montgomery, E. Cozens-Hardy, L. Stanmore, L. [Teller.]
Roden, E. de Mauley, L. Wigan, L. (E. Crawford.)>

Resolved in the negative and Amendment disagreed to accordingly.

Clause 74:

Short title and repeal.

74.— (1) This Act may be cited as the Government of Ireland Act, 1920.

(2) The Government of Ireland Act, 1914, is hereby repealed.

THE MARQUESS OF SALISBURYmoved at the end of subsection (2), after "repealed," to insert "as from the passing of this Act." The noble Marquess said: This is purely consequential upon my other Amendment.

be brought into operation, it shall be brought into operation.

On Question, whether the proposed new clause shall be inserted after Clause73?—

Their Lordships divided: Contents, 42; Not-Contents, 59.

Amendment moved— Page 59, line 38, after ("repealed") insert ("as from the passing of this Act")— (The Marquess of Salisbury.)

Clause 74, as amended, agreed to.

LORD ORANMORE AND BROWNEmoved to insert the following as the First Schedule.