HL Deb 01 December 1922 vol 52 cc173-88

Order of the Day for the House to be nit into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Duke of Devonshire.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL of DONOUGHMORE in the Chair.]

Clauses 1 to 5 agreed to.

Schedules agreed to.


The Question is that this Bill be reported to the House without amendment.


My Lords, I should like to explain the reason which has determined some of us to put down no Amendments on the Committee stage of this great and far-reaching Bill. It is that, owing to the procedure that has been adopted from the start, the whole thing, so far as Parliamentary intervention is concerned, has been a gigantic farce. Parliament has had no voice in this matter from beginning to end. The first thing that happened was that a junta of Ministers in Downing Street made what they called a Treaty on the part of the British Government, by which they agreed to surrender to the forces of murder in Ireland. Having made that Treaty, they then came to the Houses of Parliament and said: "Unless you endorse this Treaty, we shall he breaking the word of the British Government. Therefore, you are bound to vote for the Treaty, and you can make no change in it." So the subservient Houses of Lords and Commons, rather than allow the word of British Ministers to be broken, and having regard to the fact that there had been a complete surrender to the forces of disorder ill Ireland, adopted the Treaty.

Then, as the second stage of the farce, a Bill came up to legalise the Treaty. When that came you were told: "You must not alter a line of this Bill, because both Houses of Parliament have already passed the Treaty." So the two subservient Houses, having, I suppose, no other course open to them, adopted the highly dignified course, as representative institutions, of saving "We have no voice whatsoever in the matter, and the bureaucracy in Downing Street still governs." Now comes the Constitution. But before I mention the Constitution, may I say that at each of these stages, in each of these acts of the farce that was being played, we were always told that the next stage would be the particular stage upon which we shout I be within our rights in raising Amendments?

Now comes the Constitution. I hope His Majesty's Government will not imagine for a moment that I am finding fault with them for the course which they have taken. They have inherited adamnosa hereditas; they have inherited something which I know is horrible to them, and which, as the late Lord Chancellor said last night, has to be carried on along the road which you have taken, however bloody that road may be. This Bill comes before His Majesty's House of. Commons, a newly elected House, with the new Government, and is there passed without Amendment. And I would ask the House to observe what was the statement of the Attorney-General in the course of the farce that was played out there, because that gives the reason why we are debarred from putting down Amendments here. The Attorney-General said:— I want to say at once, if I may, to the Committee, that it would be impossible for His Majesty's Government to accept any Amendment which altered the Constitution as passed by the Irish Parliament. The reason why it is impossible to accept an Amendment which alters the Constitution is that our obligation is to pass, before December 6, the Constitution as passed by the Irish Parliament. If, therefore, we altered the Constitution, then the enactment passed is not the Constitution which the Irish Parliament has passed, and the result would be that on December 6 the position arises that there is no Constitution created and there is, therefore, no constitutional authority in Southern Ireland. In the history of Parliament was there ever such a comment on the whole proceeding as that which was made by the Attorney-General the other evening in the House of Commons?

This Constitution, which affects not only Ireland, but, what is so little considered, the interests of this country, cannot be discussed in Committee or one line of it altered in Committee, because if you do you may get beyond the date of December 6. A more absolutely hopeless, farcical proceeding, as representing, or pretending to represent, legislation under Parliamentary institutions. I venture with great respect to submit to your Lordships, has never been known in the whole of our history. If December. 6 was the real reason, a short Bill enacting that the date should be extended until two or three weeks later would probably have passed both Houses at one sitting. Therefore, that is not the real reason. Your Lordships will excuse me for saying that the real reason is that in the surrender of last year England was beaten to her knees, driven out of Ireland, and she has never been able since to assert her position, or to stand up for one moment against the powers of organised anarchy and murder that existed in Ireland.

I have merely made these observations, sad as the reflection may be, in order that the many hundreds of people who have written to me pointing out how they will stand when this Bill passes—how the betrayal of this country will sweep away from them every ray of hope of what they had expected under British Government—may understand that it would be useless for me on their behalf, even if I had the power to do so, to attempt to alter one line, or one comma, in a Constitution for Ireland in which neither the House of Commons nor this House, nor indeed the I British Government, have had a single voice.


My Lords, there are just one or two words that I should like to say, as this is the last chance. We have been told by high legal authority that the Constitution and the Treaty are in full agreement. It is not for me to dispute for a moment such a judgment as that, but I cannot help thinking that it is my duty to tall attention to Article 49 of the Bill, and Article 7 (b) of the Treaty. Now Article 7 (b) of the Treaty provides that the Government of the Free State shall afford to His Majesty's Imperial Forces— In time of war or of strained relations with a Foreign Power such harbour and other facilities as the British Government may require for the purposes of such defence as aforesaid.


On a point of Order, may I ask whether we shall not come later to these Articles?


The Question before the Committee is that we report the Bill without amendment.


Are you not going to take the Schedules?


I have put the Question that the Schedules stand part.


I never heard the Question put by the Chairman, and I have a question to put.


I put the Question of the Schedules, and I put the Preamble and Title, and the last Question winch I put, which is now before the Committee, is that the Bill he reported without amendment to the House. On that Question, Lord Carson and Lord Sydenham are perfectly in order.


My Lords, I have read the words of Article 7 (b) of the Treaty. They mean that the. British Navy would have the power of using Irish ports in time of war. But now turn to Article 49 of the Constitution, and what we have there is this— Save in the case of actual invasion, the Irish Free State (Saorstat Eireann) shall not be committed to active participation in any war without the assent of the Oireachtas. It is very difficult to believe that those two Articles are in agreement, and it does seem as if time vital provision made in the Treaty for preserving the use of Irish ports in time of war had been abandoned. Your Lordships are aware that if, in the course of a war, the British Navy found it necessary to use any port of Southern or Western Ireland, that would, in actual fact, make the Free State into a belligerent country.

Of course, it would be quite futile of me to attempt to raise great questions of naval and military defence which these proceedings involve, and it would be improper to do so at this stage. But I do want to point out, as an old student of Imperial defence in all its aspects, that I consider that this Bill must have the effect of immensely weakening the citadel of our Empire in circumstances which may easily arise in the future. That is exactly what the world revolutionaries who have brought Ireland to her present state intended, and it was a great mistake on the part of the late Government that it did not see that the revolution in Ireland was only part of a great scheme for the destruction of our Empire—that it was a very important part and a very dangerous part, and a part which, I am sorry to say, met with extraordinary success.


I am sorry that I missed the Question that was put by the noble Chairman, but of course at this stage I can ask questions, and in the first place I would ask the Government this: In the case of a question whether the Constitution, or a law made under the Constitution, is repugnant to the Treaty, what Court will decide that question eventually? Can it he brought eventually to the Privy Council, and, if so, who can bring it? I see a provision in the Constitution that the Irish High Court may take cognisance of this question, but it is not clear to me as a layman how the question can be brought to the Privy Council, which surely is the Court that ought to have the decision in the interests of the Empire.

Then I should like to ask, in regard to Article 1, what is meant by the words "co-equal member of the Community of Nations"? That is wholly different language from that of the Treaty, and I do not understand it. My next question is in relation to Article 3, the extraordinary Article dealing with citizenship of the Irish Free State. I do not ask the Government to explain it, because I do not suppose for a moment that they can, or that the authors could if they were asked. What I want to know is this. If an Englishman, or an Ulsterman, or an Australian goes to live in Ireland, will he, by right of his British citizenship, be entitled to a vote in Southern Ireland, if he conforms to the ordinary laws about residence, and so forth? Or will he be debarred from a vote unless he goes through the routine or ritual of claiming thestatus of an Irish citizen?

Again, in respect of Article 5, I never heard before that the Royal Prerogative could be limited in the way there suggested, and I would ask the Government whether it can be so limited. And what is the meaning of Article 7? It says that "the dwelling of each citizen is inviolable." Does that mean that the dwelling of an Englishman resident in Ireland, who has not become a citizen, is not inviolable? Has that any meaning, and, if so, what? With regard to Article 41, I notice that that is not quite in the same form as the corresponding provision in the case of the Dominions of Australia, Canada, and South Africa. There, unless my memory deceives me, there is also the power of disallowance. Why has the power of disallowance been left out in this case?

I want also to draw attention to Article 49, to which my noble friend Lord Sydenham also referred. Of course, we all know that the active participation of Australia and Canada in the late war was, in one sense, voluntary; that is to say, unless the people and Parliament of Australia and Canada had wished to send contingents to France no contingents would have gone. In that sense it is perfectly true that active participation in war is a voluntary action on the part of a Dominion. But I think Article 49 is meant to go much further than that. Although there might be no active participation in that sense, is it not the case that there can be no neutrality within the Empire, that the whole Empire, including Ireland, is either at war or at peace, and that, although the Irish Free State Government might refuse to send a single regiment, to the war, they are nevertheless in a state of war if the Empire is at war?

Article 60 says— The Representative of the Crown, who shall be styled the Governor-General of the Irish Free State (Saorstá t Eireann) shall be appointed in like manner as the Governor-General of Canada and in accordance with the practice observed in the making of such appointments. I know exactly how the Governor-General is appointed, but I do not know exactly what is meant by "the practice observed in the making of such appointments," and I should be very glad to know what exactly is intended by that.

Then, again, on the question of appeal, Articles 65 and 66, is it quite certain that a private individual can, if he chooses, appeal to the Privy Council for leave to appeal and—what is more important still, I venture to think is it clear that the Government, either the Imperial Government or the Government of the Trish Free State, can have a case stated to the Privy Council in respect of the Constitution or the interpretation of the Constitution, as, I think, was carefully provided in every previous Home Rule Bill? I think all the Bills of Mr. Gladstone and the Bill of Mr. Asquith and the Bill of the late Government in 1920 contained provisions that a special case might be taken to the Privy Council for the interpretation of the Constitutions.


My Lords, I have ventured to give private notice of a question to my noble friend who leads the House, and also to the noble and learned Viscount the Lord Chancellor, in regard to a point that. I raised yesterday, and which the noble and learned Viscount has allowed me to raise again at this stage. The question I asked—and the answer is still uncertain—is about the proviso to Article 3, which says that certain people described as "citizens of another State" may elect not to accept Irish citizenship. The meaning of the words "citizen of another State" is uncertain. It may mean a citizen of an alien State only, or it may mean a citizen of the United kingdom, of which everybody in Ireland is a citizen until the passing of this Bill. May I add that I am not pressing the personal question, for I have long ago made a declaration that I never intended to live in Ireland again, and, therefore, this question does not affect me personally.


My Lords, I will endeavour to reply to the questions which have been raised—raised, except in the case of the noble Earl, without previous notice. I quite understand why my noble and learned friend Lord Carson, now that happily he is able again to take part in our proceedings, should desire to make clear the reasons why he and his friends have not moved Amendments to this Bill. I follow entirely what he has said about the position he takes up. I have not the least desire to enter into controversy with him, and I will only say what was said yesterday in this House, namely, that the real reason for pressing these Bills through Parliament in this short time is that which I and my noble friend behind me gave. We came into office at a moment when the period for the passing of this Constitution had very nearly elapsed. As soon as Parliament was able to meet we brought these Bills before Parliament, and we thought it our duty to ask Parliament, if they thought fit, to pass them within the time available, subject, of course, to the special clauses which we had inserted in the Bill and which seemed to us to meet the most, urgent and pressing points. Having said that, I really do not think I need repeat what was said yesterday on that question.

A number of points have been raised which might, I think, have been raised yesterday and which are not very conveniently raised on this last Motion in Committee that the Bill he reported to the House; but I will do my best to answer them fully and clearly. My noble friend Lord Sydenham raised the question of the effect of Article 49 of the Constitution upon the provisions of Article 7 of the Treaty. Article 7 of the Treaty provides that the Government of the Irish Free State shall afford to His Majesty's Imperial Forces certain facilities both in the harbours of Southern Ireland and on land in times of war or of strained relations with a foreign Power. That Agreement is not and cannot be abrogated or affected in any way by any provision of the Constitution. Article 49 provides that— Save in the case of actual invasion, the Irish Free State….shall not be committed to active participation in any war without the assent of the— Parliament of Southern Ireland. It is for noble Lords to say, but I think the two are wholly consistent.

The Government of the Irish Free State are bound to give us in time of war or of strained relations the facilities provided for in the Treaty. Under the Constitution their Government is not entitled to commit the Free State to active participation without the consent of the Parliament of Southern Ireland, but that is quite a different thing. I agree with what the noble Earl behind me said, that if facilities are given the country may be said to be no longer neutral. There is no question here of neutrality; it may be that, by their giving facilities, neutrality goes, but it is quite consistent with that that active participation by the forces of the Free State should not be given without the consent of the Parliament of that State.


Before the Lord Chancellor passes from that point, might I ask him what seems to me to be an important question? Assuming that under the Constitution the Free State are bound in time of war to give the facilities named, who is to be the judge as to whether those facilities are granted and how are the facilities to be decided? Supposing the Free State say: "We have given you all the facilities you are entitled to under the Treaty," and that you say: "No, you have not given us those," who is to decide that?


There is, of course, no tribunal to decide a matter of that kind. Here is the Treaty. We are entitled to have it fulfilled. I apprehend that in time of war, or even in time of strained relations, we shall be in a position to see that we get the facilities to which we are, by this Agreement and by law, entitled.

I pass now to the questions which were raised by the noble Earl, Lord Selborne. He asked me first what court would have the right to decide whether a provision in the Constitution is or is not repugnant to something in the Treaty.


Or any law made under it.


Or any law made under it. I think the answer is quite clear. That point can be raised in the Irish Courts. The Constitution says so, and if it did not say so, the result would be the same. It may be argued and decided in the Courts of Southern Ireland, first in the Supreme Court and then in the Court of Appeal. If in any case any party to the litigation is not satisfied with the decision of the Irish Courts, that party can petition His Majesty for leave to appeal to the Privy Council. Thereupon, if leave is granted, the question will be threshed out here and a decision given. That is, I think, the clear answer to that question.


Could His Majesty's Government raise the question?


I was going to deal with that on the second point raised by the noble Earl, of which I wish he had given me a few minutes' notice. It is true that the provisions which were found in the Government of Ireland Acts entitling either Government to raise a general question before the Judicial Committee of the Privy Council are not found in this Constitution or in the Treaty. But—I am subject to correction by those who know the rules so well, especially by my noble and learned friend opposite, Lord Haldane—I say that nevertheless there is an old Statute, a Statute of some years' standing, under which general questions of this kind can be raised. I remember several such cases being raised from Canada, and I remember at least one such case being raised from South. Africa, I think, although I will not say so with any certainty to-day, that Statute would apply so as to enable general questions to be raised affecting the Government of the Free State of Ireland.

Then, my noble friend asked me what is the meaning of the expression in Article 1 of the Constitution which makes the Free State a "co-equal member of the Community of Nations forming the British Commonwealth of Nations." Many of us, I think, have used similar expressions with regard to all our great Dominions. We talk about the sister nations of the British Commonwealth and make use of expressions of that kind. It is a perfectly general expression, and I think that if one desired to find out the actual relations between the Irish Free State and the United Kingdom, he would have to refer not to those general expressions but to the express provisions in the Treaty and the Constitution, especially that provision of the Treaty under which the Free State is to be in exactly the same position as the great Dominion of Canada.

My noble friend also asked me a question with regard to Article 3 of the Constitution. He put his question in this way: Will an Englishman, for instance, going to reside in Ireland get the vote for the Parliament of the Irish Free State? I think the answer is plain. Article 3 and other Articles give the franchise in the Irish Free State to persons who are made citizens by that Article. That is, to put it broadly, those who are domiciled ill the Irish Free State, who have lived there for so many years and who otherwise satisfy the conditions of the Article. As to all others, the operative words are the final words of the Article, which provides that— the conditions governing the future acquisition….of citizenship in the Irish Free State….shall be determined by law. Therefore it is for the Free State to determine by law whether, and under what conditions, the franchise shall be granted to those who do not fulfil the definition of an Irish citizen as laid down in the Article of the Treaty; and it is impossible for anybody to prophesy or to say, to-day, whether the franchise would be given to a person who was in the position described by the noble Earl.

The noble Earl opposite, Lord Arran, was good enough to raise again the point he raised yesterday with regard to what seems to me to be a very difficult and ambiguous provision in that same Article. The Article provides— that any such person— that, of course, is a person who has lived for seven years in Southern Ireland, and so on— being a citizen of another State may elect not to accept the citizenship hereby conferred… When the noble Earl raised the point yesterday it was a new point to me, and I expressed an off-hand opinion, but I have thought it over since, and I am not confident that I arrived at the right conclusion.

I think it may be argued that the words "citizen of another State" in that Article mean citizen of some State other than Southern Ireland, or, possibly, other than the United Kingdom and Ireland, and, therefore, that the particular persons for whom the noble Earl speaks—I know he was not thinking of himself—would not be held entitled to declare themselves out of the position of Irish citizens. I do not want to go further. I do not think it would be right to go further. It is not a matter for us here to decide. I want the noble Earl to understand that I do not feel sure that the persons to whom he refers would have the particular option attempted to be conferred by Article 3. I must needs leave the matter there, because one cannot dictate to the Irish Parliament what course they should take.

My noble friend Lord Selborne mentioned again Article 5. He will forgive me for saving that the matter was raised yesterday in his absence, and I endeavoured to give a full reply. I hope he will be kind enough to refer to the answer which was given yesterday. The noble Earl referred also to Article 7, which provides that "the dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law," and he asked whether the dwelling of a resident in Ireland who is not a citizen within the meaning of this Constitution would be subject to be entered without any legal power. I think not. Whether this Article is there or not the law must prevail in Ireland as elsewhere, and I am confident that no Irish law which has been or may be passed will entitle anybody to violate or to enter the dwelling of any inhabitant there without some legal authority. I rather agree with what was said by the learned Attorney-General in another place, that this Article is really surplusage, and adds nothing to the rights which the law already gives.

The noble Earl next passed to Article 41, and he said—I do not understand why—that that Article gives no power to the Governor-General of the Free State to withhold the King's assent.


No, no. If I might interrupt the noble and learned Viscount, that is not what I said. According to my recollection there are two powers reserved to the Imperial Government or Parliament in connection with Dominion legislation, always to be exercised, of course, with the greatest discretion and in very special circumstances. One is the power of the Governor-General to reserve. That is in this Constitution. But there is also another power, which is not in the Constitution, and that is that if the Governor-General has not reserved within a certain period the Secretary of State may, within two years, recommend the Crown to disallow. That power has been used on very important occasions, and it is not to be found in this Constitution.


There is a double power to be found here. First, the power of withholding the King's Assent, which, of course, is to disallow; secondly, the power to reserve. It will be for the Governor-General either to give the Assent or to withhold it, or to reserve the Assent. In the last case, of course, the matter is referred home in order that it may be considered by the Imperial Government. I agree that, except in these respects, no power to veto a Bill is given by this Constitution, but I think the House will consider that the treble option— the power to give Assent, or to refuse it altogether, Or to reserve the matter—will be sufficient to meet the case.

The next question asked referred to Article 60 of the Constitution, which provides that the representative of the. Crown shall be appointed in accordance with the practice observed in the making of similar appointments in Canada. I think we all know what the practice is. The practice is to consult the Government of the Dominion, to take their view but not to be bound by it, and I think exactly the same practice will be followed with regard to the Free State.

The last question which was put to me referred to Articles 65 and 66, and the noble Lord particularly asked whether, under the proviso to Article 66, a private person could ask leave to appeal to the Judicial Committee of the Privy Council. I do not doubt that he could. The practice to-day with regard to Canada and the other great Dominions is clear. A person, even a private person, who desires to appeal and is a party to litigation out there, and is dissatisfied with the result, may come here and petition for leave. If the case is important, enough and he otherwise satisfies conditions which are well known, leave is granted, and thereupon the matter is thrashed out. I think that would be exactly the position under this proviso. Therefore, I can answer the question of my noble friend in the affirmative. I think, my Lords, that answers all the questions.


My Lords, I very much deprecate any attempt to catechise the noble and learned Lord Chancellor on an occasion like this, to put to him questions of the utmost nicety upon a quite novel legislative experiment, and expect him to give more or less offhand answers which will no doubt, coming from so high an authority, be quoted and relied upon hereafter—answers, however, which in another place, and when be comes to preside over the Tribunal which will ultimately have to decide these questions, will neither bind him nor anybody else. Therefore, I rise in order to give him the opportunity of letting us know whether, by inadvertence, he said less than I think he meant to say on one of these points, or whether it is possible for him to clear up the doubt—if I rightly apprehend what he said, or what I thought he said, in answering the question put by my noble friend, Lord Sydenham, about the effect of the Crown's exercising its right to have facilities in various ports in Ireland.

If I rightly caught my noble and learned friend's reply, he said that no doubt, after that had been done, it might be that there would be an end put to neutrality. I am not quite sure those were his exact words, but that was the impression produced upon my mind. If it were left there I think there might be an undesirable amount of ambiguity remaining, and I should wish, if it is not inconvenient to him, to draw his attention to the matter, so that, if he thinks the matter requires any amplification, he may have an opportunity of amplifying it.

I should like to put the question broadly, whether it is not the case that when His Majesty declares war all His Majesty's Dominions, including the Irish Free State, will be at war, and that when His Majesty is pleased to conclude peace, that State, like every other State in His dominions, will thereupon be at peace—there being, I suggest, nothing which is known to the law of the British Empire which would enable one part of it to be neutral as between His Majesty's enemies and His Majesty himself—and whether, therefore, the results do not follow that it is upon the declaration of war by His Majesty, or the engaging in war by His Majesty, even without a Declaration of War, that the question of the neutrality or otherwise of the Irish Free State will depend, with all those things that follow from the fact of a country coining into a state of war—namely, that trading with the enemy becomes illegal, contracts which may have been entered into are ended, and that trading with the enemy involves those who do so in the crime and punishments which attach to that act? Unless I am mistaken, I think he stated his proposition rather more briefly and narrowly than he would wish to do, and I thought this a proper opportunity on which to raise the point, so that if he desires to correct or modify it at all he could do so. I do not wish to entice him or encourage him into a wider exposition of the law than in his discretion he thinks proper on this occasion.

May I take one other point on which he said his recollection was not quite accurate? My own recollection is not quite accurate, and perhaps the noble and learned Viscount opposite, Lord Haldane, who is a repository of knowledge on these points, might be able to put it right. I think I am right in saying that with regard to the power of the Government to obtain a decision of the Privy Council otherwise than in litigation, and otherwise than as a party to litigation, there is, of course, His Majesty's prerogative right to refer questions for report to the Privy Council. To a certain extent it is regulated by Statutes. There is in the case of Canada a statutory provision under which the Government of Canada can, and I regret to say does, put to the Privy Council conundrums upon the Statutes affecting the Government of Canada, which the Privy Council is bound to answer, though it sometimes postpones the answers to a more convenient season.

Whether the provisions in the Treaty include a general obligation to pass such a Statute as that which applies in Canada I am not prepared to say. There will be time to decide that point later on. But that is one direction in which there may be an obligation under this Treaty to pass such legislation as will enable the Government of the Irish Free State to take the opinion of the Privy Council direct upon a disputable question of the interpretation of the Constitution or Statutes. And, on the other hand, there is certainly, so far as I can see, nothing in the Constitution which impairs His Majesty's right, subject to Imperial Statutes already existing, to require His Privy Council to inquire into and report on any question which it seems to him fit they should report upon. Having said that, it is only for the assistance of my noble and learned friend if it carries his recollection any further. On the other point I rather apologise for having intervened, but I thought possibly there might have been less said than my noble and learned friend thought desirable.


My Lords, I only rise in order to say that I agree with the noble and learned Lord in what he has said as to the powers of the Judicial Committee of the Privy Council for inquiry and the method of invoking them. There is yet another way. When private litigation comes before the Sovereign in the Judicial Committee of the Privy Council it is, and it always has been, the practice of the Judicial Committee, if it thinks the question is one which raises great public interests in which the Crown is concerned, to intimate its opinion that the Crown should be represented; that is to say, that the Attorney-General of the Irish Free State and the Attorney-General of England should come in and argue the case. What the Constitutional position is under Acts 3 and 4 William IV, which enables the Crown to refer general questions to the Privy Council, I am not prepared to say without further consideration. It is a question which no doubt will be affected by the constitutional practice of the advisers of the Crown in the Irish Free State, but I have no reason at present to controvert what the noble and learned Lord has said. I should like, however, to take a little more time to think it over before I committed myself upon the subject.

On Question, Bill reported without Amendment.