HL Deb 21 March 1922 vol 49 cc641-97

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

Moved, That the House do now resolve itself into Committee.—(Viscount Peel.)


My Lords, it is a practice of your Lordships' House in cases of very important Bills, in order to shorten business, that a word or two should be said at this particular stage. And I think, perhaps, your Lordships will allow me to make a few observations as to the attitude which some of us think the House might properly adopt in reference to the Amendments to this Bill. May I say, on behalf of a good many of the noble Lords who have put down Amendments, that there is no desire whatever on the part of any of us, so far as I am aware, to wreck this Bill. We recognise that this is not the opportunity, that the opportunity to wreck this Bill has passed. I merely say, for the purpose of saving my own consistency in this matter, which I do not suppose any noble Lord will challenge, that I do not recede for a moment from my profound disapproval of this Bill and of the Treaty which it embodies. I agree with my noble and learned friend, Lord Carson, in respect to it. But the Treaty has been approved by your Lordships' House, the Second Reading of the Bill embodying it has been passed by your Lordships' House, and, as loyal members of Parliament, it is our business now, not to defeat the Bill, but to do our best to pass it in a reasonable form.

A good many important Amendments stand upon the Paper. They deal not with the principle of the Bill, but with such things as explanations of ambiguities, with omissions which have been found in the provisions of the Bill, with the prevention of consequences of the Bill which were never intended. And they are not put forward—entirely at any rate—by strong partisans. I would very much desire to call your Lordships' attention to that. I suppose, in one sense, my noble and learned friend, Lord Carson, holds very strong views on these matters, but there are other noble Lords who addressed your Lordships on the Second. Reading, and whose names now stand as responsible for proposing Amendments, who have not taken a strong line.

Take, for example, if I may refer to him, the noble and learned Viscount who sits upon the cross benches, Lord Cave. He made, towards the end of the Second Reading debate, a very remarkable speech, in which he called attention to a good many blemishes in the Bill. He did it not from the point of view of a strong partisan. He is a friend of His Majesty's Government, so far as I am aware. They have not so many friends now, but I believe he is a friend of theirs, and he was recently a colleague of theirs. And yet he felt it his duty to point out, from a strictly impartial standpoint, that there were many particulars where the Bill absolutely required amendment. So that it is not a matter merely of partisans putting forward their own extreme views, but, on the contrary, of learned members of your Lordships' House—members of the House who really have made a life study of legislation—who have pointed out that, if the Bill passes in its present form, it will be seriously defective.

Therefore, I would represent very strongly to His Majesty's Government that they should not take an intransigent line upon these Amendments. Why should they not co-operate with us in trying, within the four corners of the Bill and its principles, within the four corners of the Treaty and its principles, to make a good Bill, instead of a bad Bill. I suggest to them that it is very unwise for them to refuse to take such a line. I see in many speeches delivered on behalf of this Irish settlement the phrase used: "It is a great experiment." I do not pause to consider whether, in matters of this kind, we ought td emceed in this country by experimental legislation. But, admitting that it is a great experiment, surely they must desire, as any other reasonable man must desire, that this experiment should be inaugurated under the best auspices. Why, even Mr. Collins must desire that this new departure should be entered upon with the best hope of success. What hope of success can there be if he starts upon his experiment with a bitterly hostile Ulster, and with that hostility increased by leaving points of friction in the Bill which might now be eliminated? I suggest that even Mr. Collins, if he is a statesman, ought to take advantage of this opportunity.

I was very much struck during the Second Reading debate by a very important passage in the speech of my noble friend Lord Lansdowne, in which he expressed the view that now, at any rate, the only thing to look for was that Ireland might produce among the ranks of the extreme section statesmen who would be able to govern the country and administer it upon reasonable lines. Let us approach the subject in that spirit. Let us conceive that Mr. Collins is such a man. He must be desirous, one would think, of avoiding these points of friction and these difficulties. Nay, he ought even to consider the strong views in this country of the Unionist Party, because he has to work alongside of the Unionist Party. The Unionist Party is a very influential Party in this country, and, as far as I can judge from the signs of the times, it is likely to become more influential. In the circumstances, surely it is nothing but the most ordinary common sense that Mr. Collins and his friends should desire, so far as they can, to eliminate difficulties which will arise in the working of this Bill unless these Amendments, or some of them, are included.

What, then, should be the attitude of your Lordships' House? I cannot believe that it is right that we should pass over all these defects. If I may say it with all due modesty, there are within our ranks noble Lords who are eminently qualified to deal with legislation of this kind and to put it upon a reasonable footing. It cannot be right that we should abstain from putting at the service of the country the accumulated wisdom which resides within these walls. I do not think that such a policy would be a wrecking policy. If we are successful in persuading your Lordships that these Amendments or any of them are wise, we should send them for the consideration of the Government and the House of Commons. Is there anything improper, anything fractious, anything which is likely to wreck the Bill, in a procedure of that kind?

I venture to think that we should be wholly within our duty in pursuing a course which no moderate man could criticise or call in question, if, on those terms and in that spirit, we put into the Bill those Amendments which recommend themselves to the majority of your Lordships' House upon the merits. Then, the Government will have time to consider them with their friends in Ireland and to realise, with them, how important those Amendments are. I earnestly hope that my appeal may not be in vain and that your Lordships will not only insert such Amendments in the Bill as your wisdom dictates, but that before all the stages of this Bill are concluded the Government will give those Amendments their best consideration with a view, if possible, of adopting them.


My Lords, perhaps your Lordships will allow me to say a very few words in reply to what has been stated by the noble Marquess. The Government will note with pleasure and satisfaction, I am sure, that the noble Marquess does not desire in any way to wreck either the Bill or the Treaty. He has stated that quite frankly to your Lordships. He was also at pains, I think, to vindicate his consistency.


I do not think it is important.


I hope he did not suggest that I was so rash a person as to make any attack on his consistency; I am far too prudent to embark upon so dangerous and unprofitable an exploit as that. The noble Marquess rose, I think, for the purpose of giving a general blessing to the Amendments that have been placed upon the Paper, but I do not know for how many he invoked that blessing. He also brought to our attention the fact that sonic of the Amendments had been supported by no less distinguished a legal member of this House than the noble Viscount, Lord Cave, and he specially recommended them to the Government on the ground that Lord Cave was a late colleague of the present members of the Government. I am sure this does not apply to the noble Viscount, but I would call the attention of the noble Marquess to the fact that late colleagues of the Government are not always its very best friends.

The noble Marquess appealed to the Government not to take up a difficult and intransigent attitude on these Amendments. No such intention, of course, is in the mind of the Government; but I would like very respectfully to call the noble. Marquess's attention to the different classes of Amendments that may be moved. Take Amendments of the Treaty itself. The noble Lord referred to Mr. Collins and said that obviously Mr. Collins would wish to start his new Government on the best of terms with Unionists and, more especially, that he would not desire to antagonise feeling in Ulster. I would only direct the noble Marquess's attention to this, that Mr. Collins presumably has to consider the feelings, the emotions, and the points of view of other Parties than Unionists. This Treaty did not pass by so overwhelming a majority, and if these Amendments were moved, were pressed, and were carried in your Lordships' House it might add ten thousand fold to the difficulties of his task, and might make it enormously more difficult for him to resist pressure brought upon him by some Parties in Ireland who might, I think without any exaggeration of language, be called intransigent. I would further direct the noble Marquess's attention to the fact that your Lordships have, as he admits, approved of and assented to this Treaty. That is a very remarkable fact, and it alters the whole question.

May I also remind him of what happens in another great country, the United States of America. There, as he knows, Treaties have to be approved by the Senate, and by a large majority of the Senate. When Treaties have been approved by the Senate I believe there is no single instance of any of them being amended by the Senate. We are not, perhaps, very well accustomed in this country in our Legislative Assemblies to approving Treaties.


This is not a Treaty.


It is in the nature of a Treaty.


It was drawn up on an understanding.


These are Articles of Agreement in the nature of a Treaty. Therefore, the noble Lord will see that the difficulty of amending a Treaty of that kind is enormous. Moreover, if you once begin to amend, to alter, to modify, and to explain Articles of Agreement, obviously the other party to those Articles of Agreement will immediately claim the right to amend, to alter, to modify, and to explain, and really the whole business will have to be done over again. Your Lordships see very clearly, I think, the difficulties of that course, and I have, therefore, to state very definitely that the Government cannot accept Amendments to the Treaty. They are unable to do so. If your Lordships wish to destroy the Government it is, of course, open for you to do so; but the Government cannot accept any Amendment to the Treaty because that would destroy any arrangement that has been made.

The noble Marquess referred to the accumulated wisdom and experience of this House. No one is more conscious of that than I am. But there are times when this great accumulated wisdom, if I may respectfully suggest it, is far more valuable in its effects when it is shown not so much in the way of criticism as, possibly in very difficult circumstances, in the nature of restraint. May I point out that from the great position your Lordships' House holds in our Constitution and in the country—an increasing position, as I believe—any decision taken by your Lordships will in itself have enormous weight in Ireland. If your Lordships saw fit to introduce Amendments and to carry them the House would be taking an enormous responsibility upon itself, because it might have a very serious effect indeed upon the attitude of Parties in the South of Ireland, and upon the successful carrying through of this new Provisional Government.

So much for Amendments of the Treaty. As to Amendments of the Bill, naturally that is a different matter, and on behalf of the Government I can promise that I will examine most carefully any Amendments that your Lordships move to the Bill. But I must conclude by saying that the Government draw a great distinction between those two classes of Amendments, and that any Amendments to the Treaty must be, for the reasons I have stated, absolutely resisted by the Government.


My Lords, I desire to say only a very few words at this stage. I submit that the speech of the noble Viscount is one more of those lectures which your Lordships are always receiving on your own powerlessness. You will find, at every stage whenever it suits them, that the Government, having entirely changed their policy, will always put the matter in this way: "What will the country think of you if you dare to do this?" They never refer to what the country is thinking of them at the same moment. When the Treaty was before this House I, at all events, did my best to get it thrown out. Your Lordships were then told that the whole of Ireland was calling out for the Treaty. I read to you the other day a quotation regarding "the frantic loyalty which was only awaiting fruition the moment that your Lordships passed the Treaty." The Government then said: "Are you going to frustrate all our efforts, and all our hopes, and all this loyalty that is waiting to burst out in Ireland?" Now, to-day, in the same grave tones, the noble Viscount tells us that we should incur a terrible responsibility if we did anything.

To call it a Treaty is a misnomer. It has no more right to be called a Treaty than any document upon that Table at the present moment. When the Treaty, as it is called, conies forward for passionate acceptance by the Irish Party in the Dail Eireann it is carried by some seven votes only in a gathering composed of a large body of representatives of Ireland. When the matter now comes before your Lordships the noble Viscount, with an ingenuity that does him credit, says: "Remember that it was only carried by seven votes, and you see what a ticklish position we are in." Whichever way it is, the noble Viscount turns it to the helplessness and hopelessness of this effete Assembly, of which he is such an ornament. In the other House, the Government took up the attitude that the noble Viscount has adopted here. They said: "We cannot alter, we cannot amend, we cannot even explain." What a farce it all is! Several hundreds of gentlemen, assembled in the House of Commons, pretending that they are doing something, when they are told they can do nothing. And we have to go through the same farce here to-day.

Some of my friends and I might very well have adopted a different method from that which we have chosen. We might have covered the Notice Paper with Amend- ments. It would not be difficult for any lawyer to draw up thousands of reasonable Amendments to the Bill, for a more muddled, inconsequent and unreadable Bill (if you take the previous legislation with which it has to be read) has never been produced; and, of course, it was produced only because neither side at the time of the Treaty was dealing with realities, but each was dealing with what they were plcased to call formulœ. It is a Bill of formulœ to which several constructions of a different kind can be given, and which, in some respects, probably have no meaning at all; but it was drawn up to satisfy two different people, each struggling towards the same goal, and each trying to say something different in the same language.

Those of us who have worked together at these Amendments have no desire to bring before your Lordships' House a vast bulk of Amendments. What we have done is to put down very few, none of them, in my opinion, altering the Treaty; some of them, no doubt, put down with a view to explaining the Treaty, or at least trying to ascertain what the Government mean by it. The Government apparently are going to say: "We will not allow you to put down what we mean by the Treaty, and we will not allow you to explain what the words themselves mean, because we have to think of Mr. Collins, and the effect it might have upon him in relation to the gun-men who are ruling Ireland at the present moment." If that is the position let us all bravely accept it, and go away patting each other on the back, and saying: "We are really-great statesmen, carrying out our constitutional responsibilities in the way which is most pleasing to this great and consolidated Government." That is an easy method.

I am a very new member of this House, and, with that modesty with which I have always been so completely identified, probably I ought not to make these suggestions to your Lordships; but, for our own self-respect, I beg noble Lords to consider these Amendments, to which we have given a great deal of trouble, upon their merits. I believe that in the long run, so far from disappointing anybody, you will gain respect and do good by converting the Bill in certain respects into some kind of a workable form and retaining power in the Houses of Parliament.

I regret to say—and I suppose it is as sad a conclusion as a man can come to who has tried to do his duty in the circumstances which prevail in Ireland—that in my opinion, for the South and West of Ireland, and I am afraid for the North too—but on that I will reserve my observations until I speak on one of the Amendments—it makes no difference at all whether you pass the Bill or not. I have watched the matter closely since the so-called Treaty, or what I call the "surrender," was signed, and I cannot see what real difference it makes whether this Treaty Bill goes through or not. In any event the stronger party there have complete possession. There is no English Government there. The noble and learned Viscount on the Woolsack told us the other evening, rather cynically, that the real benefit of this Bill is that if the Irish wish to kill each other we need not then have any responsibility in the matter; that is one of the things to be gained by this Bill.

Whether this Bill goes through or not, you are not in control in Ireland. You have no power in Ireland; you have evacuated Ireland, and it does not matter one jot or tittle whether you give it the name and title of the Irish Free State or a Republic. Therefore, so far as the horrible things that will happen if the Bill does not go through, or the great blessings that will accrue if the Bill goes through, are concerned, there is nothing to choose between them. To me it seems that our duty is clear, and that is to do our best not in any wrecking spirit. If I wanted to try to wreck the Bill, which would be for no result as I have pointed out, I should take an entirely different course from that which I am taking. I should have thought that the one thing the Government would have recognised is that we have made a real and steadfast effort to do all we can in the circumstances to restrict our Amendments to such as are absolutely germane to a clear understanding of the Bill.


My Lords, many of your Lordships who have had opportunities of watching the distinguished ability and fine temper with which the noble Viscount, Lord Peel, has conducted his business in this House will be glad to congratulate him upon his promotion to an Office which is not only highly important but which I should say is, at this moment, second to none in His Majesty's Government. But am afraid I cannot congratulate him on having helped us very much this evening to meet the difficulty experienced by the noble Marquess opposite and other members of your Lordships' House. The noble Viscount began well. He announced that His Majesty's Government had no intention of being intransigent with regard to this Bill. But they have been intransigent throughout, and the noble Viscount, went on to tell us, unless I misunderstood him, that they meant to be intransigent to the end.

The attitude of the Government is to me extremely perplexing. The attitude of the noble Marquess is not, I think, perplexing, and I should like to say why it is that at many points I find myself in agreement with him. Like him, I have no desire at all to wreck this Bill. I have no desire to insert any Amendments which could be described as inappropriate for inclusion within the four corners of the measure. And last, and perhaps not, least, I have no desire to add to the difficulties which Mr. Collins and his colleagues are encountering in Ireland. But what we have to remember is that this Bill is a capital measure; and of the roost tremendous importance to this country and to the Empire. We have to remember that the Treaty which it embodies was discussed under great difficulties, and that even the Lord Chancellor had to admit the other evening that he did not regard it, as a masterpiece. If that is so, surely we have a right to examine the. Bill not in any spirit of uncompromising hostility but with a genuine desire to make it a better piece of legislation than it will be if it passes exactly as it stands.

I should like to know why Mr. Collins and his colleagues should take umbrage at such action on our part. This will be the ship upon which he will have to navigate the very troubled waters which lie in front of him, and it surely is to his interests, as much as anyone's, that it should be made watertight. If we are able to show, on the authority of noble Lords of the highest legal experience, that there are blots in and omissions from the measure surely it is to the interest of Mr. Collins, as much as anyone else, that the blots should be removed and the omissions made good. I really think that our treatment of Mr. Collins is much more considerate than that which His Majesty's Government would like to give him. I am prepared to accept his bona fides; to recognise, as the Lord Chancellor did, that he has courage and certain attributes of statesmanship. I am ready to admit all that, and I conceive that it is rather a compliment to call him into our counsels and endeavour with, I hope, his concurrence, to make this a better Bill than it is at present.

The view taken of Mr. Collins by the Government is, apparently, that he is an obstinate and timorous person who would not have the nerve to accept a good Amendment even if its goodness was demonstrated. If we are told that we are not to supplement this Treaty in any respect I would ask His Majesty's Government to consider whether they have not already, in the House of Commons, themselves introduced one or two Amendments. I want to know why we are to be debarred from doing what has already been done in the House of Commons. In addition to these Amendments we have been made aware that there is somewhere a very elaborate scheme governing the great question of compensation. It was explained by the noble Viscount in this House and by Mr. Churchill in the House of Commons. It is a scheme in which a distinction is made between injuries done by His Majesty's Forces and injuries done by Sinn Fein forces. It makes a distinction between damages done to persons and damage done to property; and it makes a distinction between injures clone before the truce and after the truce. Those are all supplementary arrangements ancillary to the Bill and to the Treaty. If all this can be done elsewhere, why are we to have no chance of handing in useful suggestions of that kind?

Our position, as I take it, is this. We cannot part with our responsibility as a revising Chamber, and if we find in this Bill blots which we think we can remove, omissions which we think we can make good, it is our duty to insert in the Bill the necessary Amendments. If, when we have done so and the Bill goes to another place, those Amendments are, at the instigation of His Majesty's Government, not accepted, and the Bill conies back to us, I say quite frankly that, if we are told that the time has come when we must choose between our Amendments and the Bill, then I should be for giving up our Amendments. But we should at all events have done our duty in placing on record the objections which we took and the proper mode of meeting them by legislation.

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL of DONOUGHMORE in the Chair.]

Clause 1:

Provisions for giving the force of law to and carrying into effect Irish Agreement.

1.—(1) The Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the schedule to this Act shall have the force of law as from the date of the passing of this Act.

(2) For the purpose of giving effect to Article 17 of the said Agreement, Orders in Council may be made transferring to the Provisional Government established under that Article the powers and machinery therein referred to, and as soon as may be and not later than four months after the passing of this Act the Parliament of Southern Ireland shall be dissolved and such steps shall be taken as may be necessary for holding, in accordance with the law now in force with respect to the franchise number of members and method of election and holding of elections to that Parliament, an election of members for the constituencies which would have been entitled to elect members to that Parliament, and the members so elected shall constitute the House of the Parliament to which the Provisional Government shall be responsible, and that Parliament shall, as respects matters within the jurisdiction of the Provisional Government, have power to make laws in like manner as the Parliament of the Irish Free State when constituted. Any Order in Council under this section may contain such incidental, consequential, or supplemental provisions as may appear to be necessary or proper for the purpose of giving effect to the foregoing provisions of this section.

(3) No writ shall be issued after the passing of this Act for the election of a member to serve in the Commons House of Parliament for a constituency in Ireland other than a constituency in Northern Ireland.

LORD SUMNER moved, in subsection (1), after "Act," where that word first occurs, to insert "are hereby ratified and." The noble and learned Lord said: The Amendment which I have to propose involves the insertion of four words only, and it is, I feel confident, one of those Amendments which belong to the category, indicated by the noble Viscount opposite, of Amendments to the Bill rather than Amendments to the Articles of Agreement. May I point out to your Lordships how the clause would read?— (1) The Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the schedule to this Act are hereby ratified and shall have the force of law as from the date of the passing of this Act. That is an Amendment which, on its face at any rate, carries a certain measure of, I will not say exactly friendliness to the Bill, but of good will in the direction of giving it full and prompt effect.

Your Lordships are, no doubt, familiar with the Articles in the Schedule. By the last of these it is provided that this instrument, after being submitted to Parliament for approval, shall, if approved, be ratified by the necessary legislation; and a part of the necessary legislation is indicated in Article 11, which mentions one Act of Parliament, the only Act of Parliament which is actually mentioned throughout the whole of the Bill. It says: Until the expiration of one month from the passing of the Act of Parliament for the ratification of this instrument, the powers of the Parliament and Government of the Irish Free State shall not be exercisable— and so on. By their very terms, therefore, the Articles of Agreement require that, among other legislation which is to be passed, there shall be passed an Act of Parliament for the ratification of this instrument.

The Agreement does not say in express terms when that ratification is to be enacted, but I think it does make it quite clear, from Article 18, that the ratification is to take place without loss of time, because it provides thus: This instrument shall be submitted forthwith by His Majesty's Government for the approval of Parliament and by the Irish signatories to a meeting summoned for the purpose of the members elected to sit in the House of Commons of Southern Ireland, and, if approved, shall be ratified by the necessary legislation. I think it is a fair interpretation to put upon that Article that its meaning is that the instrument shall be forthwith submitted for approval, and, if approved, shall be forthwith ratified. There is no suggestion, that an interval of any considerable time is to elapse. The approval itself is to take place forthwith. "Forthwith," so far as we are concerned, was last December, and I cannot help thinking that after three months have passed since that approval, the time has arrived at which, in accordance with 'the Articles of Agreement, the ratifying Act ought to be passed.

Is this Bill to constitute the ratifying Act or not? My submission to your Lordships' House is that it ought to do so, and I say that because, if the Bill remains in its present form, I am convinced that it will, first of all, produce an ambiguity of a most undesirable kind, and secondly, will prolong, probably with grave consequences, a period of unnecessary tension. We have been told, and I suppose it is still the view of His Majesty's Government, that this Bill is not a ratifying Act, and that ratification is to take place only when, at some date which it is anticipated may be in the course of the summer, this House and the other House may be called upon to pass a Constitution Bill for the Irish Free State which will finally give legislative form to the scheme set out in the Articles of Agreement. Why that view should be taken I have never been able to understand, and still less am I able to understand why, if that be the view of the Government, nothing has been put into this Bill to clear the matter up one way or the other. If the words which I suggest were inserted, they would at any rate have the advantage of making the point absolutely clear. If the words remain as they stand, they appear to me, and I think I am not alone in that opinion, as being so ambiguous, and so obviously ambiguous, as almost to merit the name of deliberate ambiguity.

I will test the matter in this way. If the noble Viscount takes an adverse view of my suggestion—which for the moment I venture to hope he may not—is he, on behalf of the Government, prepared to insert such words as these: But this Act shall not be deemed to ratify the Articles of Agreement contained in the Schedule"— so that then it would be quite clear, and the subsection would run like this: (1) The Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the schedule to this Act shall have the force of law as from the date of the passing of this Act, but they shall not be deemed to be ratified by this Act. I cannot imagine—and I put it for that very reason—that any seriously minded legislator would be prepared to place that positive statement upon the face of the Statute, but it seems to me that either that is what His Majesty's Government mean this Bill to say or else they are perpetually leaving the matter in an ambiguous condition, although the consequences of that must, I think, be fairly obvious.

I know we have been told, I think on the occasion of the Second Reading, that a legal opinion, of an eminence which all legal members of your Lordships' House greatly appreciate, has been given to the Government in favour of the proposition that for some reason the Act of Ratification mentioned in the Articles is, and is nothing else than, the Act which is to approve the Constitution of the Irish Free State. All I can say is that I have met nobody so far who was able to share that opinion or to understand it. But it is quite immaterial what I, or any other noble Lord whom I have consulted, or the eminent authority in question, may have said about it, because it depends upon the meaning of the Bill when it has been enacted. If that comes before some Court for decision, as well it may during the interval between now and the summer, it will be the duty of that Court, not relying upon the opinion of the late Attorney-General or upon any speeches that have been made here, but relying entirely upon the construction of the words of the enactments, to say whether the Agreement is, or is not, hereby ratified; and I can only venture to submit to your Lordships that there is a great deal of difficulty in saying that, although the Articles of Agreement have the force of law, so that they become of statutory force, nevertheless they are not ratified and something else is necessary before they can be ratified. That is what I venture to call the technical difficulty.

Now let me say a few words about the practical difficulties. Of course, the whole point of getting the date fixed at which the Articles are to be ratified by Act of Parliament is to fix the zero hour from which what is called the "Ulster month" begins to run. Under Article 11, "Until the expiration of one month from the passing of the Act of Parliament for the ratification of this instrument, the powers of the Parliament and the Government of the Irish Free State shall not be exercisable as respects Northern Ireland,"—and during that interval, by an Address presented to His Majesty by both Houses of Parliament of Northern Ireland, the Six Counties have the opportunity of withdrawing themselves from the operation of these Articles of Agreement altogether, and thereupon, and not until that has been done, and not unless and until that has been done, the Boundary Commission is to be set up, which is to determine, in accordance with the wishes of the inhabitants—that is to say of the inhabitants of the boundary or border region—subject to certain limitations, where the boundary line is to run between Northern Ireland and the rest of Ireland.

One would have thought that the most obvious thing that anyone would desire to do at the present moment would be to shorten, as much as possible, that period of anxiety and tension, which must grow on the border of the six and twenty-six counties, and of which, as we have reason to know at present, great apprehensions must be entertained. For six months to come, and probably for longer, if the Government were to insist upon its view of the meaning of Article 11, the result would be that no Boundary Commission would be appointed or could get to its work. The inhabitants of the border districts, who anticipate that as a result of the determination of the Commission they may be transferred from one side of the line to the other—because, of course, there may be transfers from the South to the North as there may transfers from the North to the South—the inhabitants of the districts likely to be affected by the ultimate determination will not know what they ought to do, whether to take steps to wind up their businesses, sell their property, and remove to some other place in Ireland, or not. Also, all those quarrels that are certainly existing in the germ, and are likely to grow, and grow rapidly, as time goes on, as to whether a particular parish may be claimed or not be claimed for transfer from one side to the other, will become exacerbated, and I should think that it is likely to lead to a greater condition of disorder even than that which we see at present.

Is it not the truest wisdom to put an end to that period of tension? Is it not the thing that both sides—and when I say "both sides" I mean the Provisional Government as well as His Majesty's Government—would desire to get settled as soon as possible? I know a reason was given in another place which, I suppose, was at that time the official ground for the view put forward by His Majesty's Government. It was this: That when first the Articles were agreed it was the opinion, it seems, of the present Provisional Government, that the act of ratification was to be passed promptly, and that it was not necessary to wait for the ultimate Constitution Act to contain a clause ratifying the Articles. I understand that the Provisional Government waived that view and intimated their consent to adopt the view of His Majesty's Government, and therefore it is that the present stand is taken. Now, I should have thought that that was fairly substantial proof that, in the view of the Provisional Government, it was intended, and it was desirable, to get this matter cleared up as soon as possible and that only in deference to some sort of policy, rather put upon them by His Majesty's Government, did they give up that view.

What is that policy? So far as it is announced I know of none, except this: Until the Six Counties have seen the Constitution of Southern Ireland they ought not to make up their minds to vote themselves out of the Irish Free State, and therefore it is desirable that the matter should be kept open, upon the chance that when they do see the Constitution Bill they will be sufficiently satisfied with it to elect to remain in the Irish Free State, so that Ireland may be a united Ireland. That is a rosy but I cannot help thinking a very ill-founded kind of anticipation. They know now quite well what sort of Constitution will be presented to them, because the first and second Articles fix that, and they fix it within quite rigid and clear limits.

They prescribe for the Irish Free State the constitutional status of the Dominion of Canada, and they require that in its relation to His Majesty's Government and the Imperial Parliament "the law, practice and constitutional usage" which governs "the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State." Those are limits which the Constitution cannot exceed. The Dominion of Canada, with which we are all sufficiently acquainted, has a Constitution, which is the pattern that must be adopted in the Constitution of the Irish Free State.

What reasonable ground is there for thinking that a Bill which is to be presented, if you plcase, to the electors of Southern and Western Ireland, and to be voted upon by them, will receive any such treatment at their hands as will really alter the conditions of the problem as known to-day? Of course, I have no right to express any anticipation at all as to what the Parliament of Northern Ireland intends to do, but we have been repeatedly told, and with every sign of knowledge and of definiteness, by noble Lords who are members of the Government of Northern Ireland, that there is no doubt at all, that, as soon as the time has come, the course which Northern Ireland will take will be to pass the necessary Addresses to put an end to their inclusion in the Articles of Agreement, and that all they are waiting for is the passage of this Bill, because, in their view, as a matter of law, this Bill does, whatever you may say about it, constitute a ratification; but that whether it does so or not they do not intend to throw away any chances, and therefore they will pass the necessary Addresses at once, even although it may be necessary to pass other Addresses upon a subsequent occasion.

If that is their declared intention, and if the four corners of the ultimate Constitution are already fixed by Articles 1 and 2, what is there to wait for? What real reason is there for thinking that in the lapse of four, or five, or six months, or, it may be, much longer, the opinions of the Six Counties will have changed upon a subject, as to which they certainly have been at pains to leave us in no possible doubt whatever. I think the only thing that can happen, if the Bill is not amended, is that you will have a series of disputes on the question whether it is the Act of ratification or not. You will find that the Government of Northern Ireland will take the course which they think fit to take, upon the footing of its being the Act of ratification, and then I presume, if His Majesty's Government retains its present opinions, it will refuse to nominate the Boundary Commission upon the ground that the event has not yet happened upon which that nomination depends. And thereupon, with every step taken by the Six Counties that can be taken, and no step taken at all by His Majesty's Government, there will be a prolonged period of doubt, anxiety, dispute, and controversy, out of which worse things may readily arise than one would be willing to give voice to at the present moment.

Those are the reasons why I urge your Lordships to adopt this Amendment—so that the Act may speak with no uncertain voice, so that there may be as great a preparation for the cause of peace as, at any rate, we can give in this matter. And I entertain some slight hope still, from what the noble Viscount said—for I do not at all take the view of it that, I think, was taken by the noble Marquess—I entertain some hope that, upon this point at any rate, the Government may be in a position to meet us. At any rate, I shall preserve that illusion, if it be an illusion, as long as possible. I do not profess to have any of those stores of accumulated wisdom to which the noble Viscount referred, but I hope to earn his approbation for quite a remarkable display of the virtue of restraint, which he commended to us, and I do not, therefore, at the moment, contemplate that there is any ground upon which His Majesty's Government proposes to act other than that of defending their position or accepting the Amendment upon pure grounds of reason.

We have been told—and I understand it to be so—that there are no secret Articles connected with this Treaty; that the whole of it is on paper already. We have been told that the relations of His Majesty's Government with the Provisional Government are perfectly clear and also, apparently, perfectly friendly. I am unable to understand, therefore, what there should be to make it difficult for His Majesty's Government to persuade the Provisional Government to undo the Agreement which they entered into the other day only to oblige His Majesty's Government, and I cannot think that it would be safe, on the consideration of the electioneering chances of Mr. Collins during the next few months, to leave anything unsettled which we can see to be in a state of doubt and peril.

Amendment moved— Page 1, line 8, after ("Act") insert ("are hereby ratified and")—(Lord Sumner).


The noble and learned Lord has very carefully and elaborately set out his arguments in favour of this Amendment. The object of the Amendment, as he says, is to make what is known as the "Ulster month," or, as he calls it, the "zero point" of the "Ulster month," start from the date when this Bill becomes an Act, and not from the period when the Bill confirming the Constitution of the Free State becomes an Act. It would therefore operate very much more rapidly than if it began at a later date. The noble and learned Lord has argued this point in a very different fashion from the way in which it was argued by the noble and learned Lord, Lord Carson, because I think Lord Carson dwelt upon the ambiguity of the point, and held that Ulster would be compelled, if the matter was left in doubt, to pass its Resolutions at some period within a month, if this Bill became an Act, and not wait for the subsequent Bill to become an Act.

The noble and learned Lord, Lord Sumner, takes up a different attitude. He recommends that the "zero point" should start from the time when this Bill becomes an Act, and he recommends it, not so much, I understand, on the ground of ambiguity as on the ground that it would give great advantages. For instance, that the question of the Ulster boundaries might be dealt with more rapidly, that the people might be left a shorter time in perplexity, and that this commencement of the consideration of the Ulster boundaries and the setting up of the Commission should be dealt with three or four months (shall we say?) earlier than it would otherwise be.

But there are difficulties in that point of view, because, if the noble and learned Lord will look at the way in which that Boundary Commission will be set up, he will see that one of the members of the Boundary Commission is to be nominated by the Free State Government. That could not be done until the Free State Government is set up under the new Constitution. Therefore, his Amendment would not in any way accelerate the setting up of the Boundary Commission, and I think that his argument on that ground would appear to fail. But there are other difficulties raised by the Amendment. The noble and learned Lord argued with some fulness, and showed his own opinion very clearly, that it might easily be assumed that the "Ulster month" did run from the passing of this Bill, because he considered that this measure might be a ratification of the instrument. But, on the other hand, if his Amendment were to pass, I think it might very likely create another set of difficulties and make the instrument extremely hard to construe.

If the noble and learned Lord will look at Articles 11 and 12, he will see that those Articles presuppose the Free State Government and Parliament to be in existence during the "Ulster month"; and lie will further see that Article 11 says that during the month the powers of the Parliament and the Government of the Irish Free State shall not be exercisable as respects Northern Ireland. And Article 12 says that in the event of an Address being presented during the month the powers of the Parliament and the Government of the Irish Free State shall no longer extend to Northern Ireland. Therefore, it seems quite clear that these Articles would either bear a different meaning, or bear an almost unintelligible meaning, if the change advocated by the noble and learned Lord should take place. I am afraid that, on that ground, it would be very difficult to accept his Amendment for fear of adding to, rather than of diminishing, the difficulties in the interpretation of the Treaty.

And there is another technical point which I think ought to be considered. If the word "ratified" is used, as the noble Lord wishes, it might possibly be held further that the Parliament over here had really nothing to do with the new Constitution when it came up, and that it did not require ratification in this House—which would lessen, rather than increase, the control of this House over the Constitution to be set up by the Trish Free State.

Those, perhaps, are technical objections, but there is a further broad objection, although the noble and learned Lord passed it over rather lightly. Ulster, if it did decide to contract out, would not have the Constitution of the Free State before it. The noble and learned Lord says to that: "Ah, but it knows approximately what that Constitution is to be." I do not know why it should be assumed that Ulster already knows what that Constitution is to be. But I think, as his Majesty's Government at any rate do not want to assume absolutely at this moment that it is quite certain that on the first opportunity Ulster would contract out of the Act. His Majesty's Government can hardly be expected to say: "We are going to prevent Ulster and give her no opportunity of looking at tins Constitution after it has been drawn up; but we are going to make sure that if she does contract out she must contract out before that Constitution has been placed before the Irish people." I think it might afterwards he a matter of criticism of His Majesty's Government on the part of Ulster, and the people in Ulster might say: "You never gave us a chance of considering the Constitution."


You need not be afraid of t hat.


The noble and learned Lord says I need not be afraid of that, and I am very glad to be relieved of that anxiety. Ulster is perhaps in many ways, rather critical of the Government, and people sometimes use arguments of the strength of winch they are not very fully convinced. It may be said, from the point of view of the Government, that they are extremely anxious that full opportunity should be given to Ulster to consider the Constitution so set up. Of course, the point made by tile noble and learned Lord remains as to the question of ambiguity. He and other noble Lords placed it very forcibly before us that though the Government might have no doubt upon the interpretation of the Articles and even though the representatives of the Southern Irish Government—who had their own view about the Article—were quite ready to assent to the view of the British Government, yet changes might take place and others arise who might take a different view of the matter, and that views expressed by different Governments on a matter of this kind were less important the n the interpretation given when the thing had to be considered in a Court of law.

That point impressed His Majesty's Government very strongly and they felt it was very important that there should be, if possible, no ambiguity on this matter. If the noble and learned Lord were content to withdraw his Amendment I should be ready to place upon the Paper and to move an Amendment of this kind—I should be ready, if it was assented to, to move it in Committee and not wait for the Report stage— Page 1, line 9, at end insert: "Provided that in order to give effect to the Agreement as to the date from which the month mentioned in Article 11 of the said Articles of Agreement is to run, it is hereby declared that the Act shall not for the purposes of the said Article 11 be deemed to be an Act for the ratification of the said I Articles of Agreement? Your Lordships will see that that will make it perfectly clear that the Ulster month does not run from the passing of this Act.

I think it ought to be made clear that the matter had previously been assented to, or rather that members of the Southern Government had agreed that they would put that interpretation on it, and as the matter was one on which the two Governments were in agreement it was thought that the best thing would be to consult that. Government as to whether they had any objection to that change being made in the Bill. I should like to read to Your Lordships the letter written by Mr. Arthur Griffith. The letter is dated March 20, and is in these terms—

Sir, While it is held by the Irish plenipotentiaries and the Ministers of the Provisional Government that in the strict reading and interpretation of the Treaty the month in which North East Ulster must exercise its option should run as from the date of the passing of the Bill, they recognise that a strong argument might be made for the advisability of allowing North East Ulster to consider the Constitution of the Irish Free State before exercising this option, and they are willing, therefore, to waive their interpretation and to agree that the month shall run from the date of the passing of the Act adopting the Constitution.


Did the noble Viscount say that the letter was dated March 20 of last year?


No, this year. I did not mention the year, because I thought that would be assumed.


Then this letter was written yesterday?


On March 20.


Your Lordships will see, therefore, that, if you are willing to accept this Amendment it clears up the ambiguity entirely. I agree that it does not meet sonic of the points made by the noble and learned Lord, but it is an Amendment to the Bill making clear this particular point on which both parties to the Articles of Agreement have a common mind. I do not know whether the noble and learned Lord desires to press his Amendment.




If he thinks fit to withdraw his Amendment I will move it in, of course, at the proper moment.


I want it to proceed.


The noble and learned Lord wishes to press it?


I do.


I cannot say that my intervention in this debate is likely to be of much assistance because if I ever attempt to express approval of what the Government have done, I run the risk of being accused of patronage, and if I criticise them I am told that I am adopting a nagging attitude of mind. None the less, I am anxious as far as I can to assist the Government in what I regard as the most delicate piece of work they have undertaken during their period of power. I recognise the force of a great many of the arguments that have been put forward by them as to the extreme difficulty they will have to meet if they attempt to amend the provisions of this Treaty. I do not wish to discuss that matter again, but, possibly, the noble Marquess, Lord Lansdowne, will permit me to say that I feel that his arguments, weighty as they always are and always must be, would have had an unanswerable weight had they been directed to anything excepting this particular measure which we know perfectly well is an attempt to give legislative effect to an Agreement which was the result of balanced and difficult arguments taking place between the representatives of the British Government and the representatives of Dail Eireann, extending over a very long period of time. To alter the result that was then reached would be to reopen the bargaining, and I must say I regard with the greatest uneasiness the prospect of what might ensue if that were once undertaken.

This particular Amendment is one which I think has difficulty connected with it. It appears from the letter which has just been read by the noble Viscount, that the Amendment proposed by Lord Sumner is the one which Mr. Arthur Griffith and Mr. Collins would have desired to adopt. Is not that so?


What. I said was that that was the interpretation they put upon that particular Article.


If that was the interpretation they put upon that Article it must have been the one they were willing to adopt.


Not necessarily.


Surely, because they have agreed to the Agreement. The whole difficulty of this is that after you have entered into this elaborate Agreement you find yourselves in the greatest possible hazard if you attempt to alter any part of it. I appreciate that but if the other party to the Agreement which was entered into contends that it means that, you are in just the same difficulty if you say it meant something else.


That is not what I said. I understand that there was a meeting when that Article was drawn up. It was intended to mean that the month should run—as, in fact, it is consistent with the rest of the Articles that it should run—from the date on which the Second Bill becomes an Act setting up the Constitution. Doubts apparently arose on the subject, and then, I think, the Ministers looking at it gave as their opinion that that would probably be the interpretation. There was a difference of interpretation, not a difference of identity of mind when the Article was drawn up.


The noble Viscount generally makes his position quite plain, but he will forgive me if, on this occasion, I say that he has failed to do so. I was not referring to that, but to the letter which appears to have been written yesterday, and which, of course, I am not entitled to see. It may be that it contains other matters which the noble Viscount would, quite rightly, desire to keep to himself.


I will hand it to the noble Lord.


Thank you. Unless I misunderstood the contents of that letter, its effect was this. "We think this means from the date when you ratify, but we are prepared to concede that it should mean something else." I may be wrong. This is how the letter begins— While it is held by the Irish Plenipotentiaries and the Ministers of the Provisional Government that in the strict reading and interpretation of the Treaty the month … should run as from the date of the passing of the Bill— That I understand to mean this Bill— they recognise that a strong argument might be made for the advisability of allowing North East Ulster to consider the Constitution of an Irish Free State before exercising this option, and they are willing, therefore, to waive their interpretation, and to agree the month shall run as from the date of the formal adoption of the Constitution. I do not gather that that is what they want. They are agreeing to waive their interpretation of the document. What you generally waive is what is regarded as a right. You cannot waive a wrong, and therefore that is what I should have regarded as the meaning of the letter.

Although it may well be that my efforts at assistance are not very welcome I really should be glad to help the noble Viscount if he will tell me what it is that these people, in his view, really want. I honestly want to help them. I believe that unless we do everything in our power to buttress and strengthen the existing powers, into whose hands the destinies of the South and West of Ireland are committed, we may find that we have got ourselves into a position from which exit only is through the gates of trouble far too grave to be contemplated by us at the present moment. If the noble Viscount will tell me on which side he thinks Mr. Collins and Mr. Arthur Griffith want this Bill amended, I will vote with the Government in their behalf, but until he does tell us, he has left the House in this position, that the Amendment of the noble and learned Lord appears on the face of it to be the one which Mr. Griffith and Mr. Collins are prepared to concede for the purpose of assisting the Government in the progress of this Bill.


I hope my noble and learned friend will persist in his Amendment. The noble Viscount opposite was quite erroneous in thinking that he and I took a different view. We both took the view that the clause meant that this Act was an Act of ratification, and the only doubt we had upon it was that the Government said it was not, and told us that they had some legal opinion which showed that that was not the meaning of it. We are now in this curious position, that they get a letter from a gentleman called Mr. Arthur Griffith, who signed this Treaty under some other name, and this gentleman throws over the Government. He says: "Oh, these recalcitrant Peers who have put forward the view that this is a ratification are, we think, right. That is the meaning we always gave to it, but if it is any help to the Government in the muddle and mess thay have made of the whole thing we are quite willing, for this occasion only, to assent to another change." All I can say, in reference to the noble Viscount's proposal, is that a more insulting one to Ulster I could not possibly conceive.

Look at what is happening over there from day to day. Read what happened this week-end, and last week-end. Look at the bridges torn down, and armies massing on the frontiers. And the noble Viscount, as a concession, says: "We leave it in that way, with the uncertainty whether you are to be in or not, so as to encourage these men to invade your territory." For how long is that to go on? Six months; probably twelve months. That is the concession that the noble Viscount gives us. To that I say: "Thank you for nothing." We prefer to leave it as Mr. Griffith understood it to be, and as we understand it to be, and as is, to my mind at all events, the plain reading of the clause. Therefore, we ask the House to make it clear that what was the understanding, according to Mr. Griffith, is to be, without doubt, the understanding, so that there may be no difficulties causing litigation upon the subject hereafter in Ireland.

I beg your Lordships to see behind these questions, which may appear to be very technical, the realities of the matter, and the terrible responsibilities that we are undertaking in delaying all we can to settle the North of Ireland, which you promised in 1920 should be settled. Surely you owe her something, and you ought not to prolong her agonies. The noble Viscount says: "They do not know yet what the Constitution will be." The noble Viscount is a wonderful actor, professing, on the side to which he now belongs, his utter ignorance and abhorrence of Ulster whom he used to encourage only a very short time ago against these claims of Southern Ireland. Let us not have that kind of offer made. I ask your Lordships to support my noble and learned friend.


I appeal to the Government to consider whether they cannot concede this point, in view of the serious and important questions which must come on very shortly, and in regard to which there are the gravest differences of opinion. If this point made any difference to the Treaty, and if it were calculated to injure the acceptance of the Treaty, I could not support the noble and learned Lord, but does anybody in this House suppose, whether you give Ulster one month or three months from now to make up her mind, that it will alter her decision in the smallest degree? I have spoken in this House for years past for the unity of Ireland, but we all see perfectly well what the present condition of affairs is.

It is obvious from what we have been told as to the opinion of the Provisional Government, that they also see that it is quite impossible to expect that any advantage will come from keeping this question open until the Constitution has been settled. The one thing which, I think, we ought to bear in mind at this moment is what is likely most quickly to bring to an end the miserable state of unrest that there is in Ulster and upon its borders. Having regard to the fact that both parties in Ireland seemed to be of one mind on the matter, I hope the Government will reserve their forces for a contest on matters of graver interest which will shortly come before us.


It is a little difficult to get at what really happens here. I do not think it is so clear either as the noble and learned Lord has made it or as the noble Earl has made it. In what respect will the position be better if there is an immediate decision as regards Ulster? All I can see is that the situation may become more acute. The view taken by His Majesty's Government, and apparently by Southern Ireland, is that it is better that a little time should elapse. I should sympathise very much with Ulster if Ulster was going to be substantially better off because of the curtailment of time, but I do not see that it will make any difference so great as should weigh with the general question of policy.

On the question as to what the Treaty means there is more to be said for the Government view than has vet been said. Attention has been concentrated upon Clause 11, which says: Until the expiration of one month from the passing of the Act of Parliament for the ratification of this instrument, the powers of the Parliament and the Government of the Irish Free State shall not be exercisable as respects Northern Ireland— This is quoted as against the Government. But look at Clauses 17 and 18 of the Treaty. Clause 17 says: By way of provisional arrangement for the administration of Southern Ireland during the interval which must elapse between the date hereof and the constitution of a Parliament and Government of the Irish Free State in accordance therewith, steps shall be taken forthwith for summoning a meeting of members of Parliament elected for constituencies in Southern Ireland since the passing of the Government of Ireland Act, 19M, and for constituting a Provisional Government, and the British Government shall take the steps necessary to transfer to such Pro- visional Government the powers and machinery requisite for the discharge of its duties … Then Clause 18 says: This instrument shall be submitted forthwith by His Majesty's Government for the approval of Parliament and by the Irish signatories to a meeting summoned for the purpose of the members elected to sit in the House of Commons of Southern Ireland, and, if approved, shall be ratified by the necessary legislation. That seems to me to mean ratified by the body which in this way is to be called into existence. If so, then the view of the Government is right. "Forthwith," after they have met and approved—


That is the meeting they have already had.


Oh no. It is the meeting they are to have.


No, the meeting they have had already.


At any rate, there is sufficient question about this to make it a point which ought to be decided as one of policy.


Wonders never ccase. The more this Treaty is examined and expounded the more ambiguities appear to crop up in it. I gather that in the view of Lord Haldane this instrument has not yet been approved in Ireland at all. Something took place in an institution called Dail Eireann, but he has pointed out that it has no efficacy at all, and we are standing on less secure ground than I had supposed. I am unable to accept the suggestion which Lord Peel has made. I should have been glad to meet him if there had been any ground on which I could have agreed with him. What he proposes is that we should insert in the Bill words which would take away from Ulster, quite definitely, the faith she at present entertains, that as soon as this Bill passes she has it in her power to take the step which will definitely show where she stands. If it is declared that this Act, although it gives the force of law to the Treaty, does not ratify it for a particular purpose then the effect is that in every respect but one it is to be made absolutely binding as Statute law, but that in that one respect, which touches Ulster, the right to act is postponed to an indefinite future date. I cannot accept that suggestion.

The only substantial point I have been able to gather from the noble Viscount's remarks is the argument based upon Clause 12 with regard to the nomination of the Commissioners who are to deal with the boundary question. The letter from Mr. Griffith took me by surprise. I understood that in another place on the opening of the Second Reading debate a document was read, also signed by the Provisional Government or some members of it, to an almost identical effect. It would appear, therefore, that this has occurred. The proceedings in your Lordships' House have been considered of sufficient importance to be made the subject of a fresh communication from Mr. Griffith, who has not seen fit to retire from the view he took before but has been willing to express it in almost the identical terms he employed a month ago. It is a matter of small importance as to whether he has written two letters or one.

I agree with Lord Buckmaster that it is quite plain that the view, the meaning, and the desire of the Irish signatories to this instrument was that it should be got through with rapidity and that the ratification should take place as soon as possible. It is said that the power to appoint one of the three Commissioners is vested in the Government of the Irish. Free State and that, therefore, that power cannot be exercised until there has been an Election in Southern Ireland, a submission of a Bill to the electors of Southern Ireland, an agreement of that Bill as the basis of a Bill to be presented to Parliament; and, finally, an approbation of the Bill in the form of an Act by the Imperial Parliament. If that is the interpretation that can be placed upon this instrument, it adds still more doubt and surprise to the construction it should bear.

At present there is a Provisional Government in Ireland. A Provisional Government of what? It is not, avowedly, a revolutionary Government, so I suppose it is a Provisional Government of the Irish Free State, which is to be succeeded in due time by the definitive Government of the Irish Free State. The Provisional Government has no popularly elected Assembly to which it is legally or constitutionally responsible, but, after the Election has been held, it is to have a unicameral Parliament to which it is to be responsible. Until a few minutes ago I had never heard it suggested that the Trish Free State and Government were still in nubibus and would not come into existence until some time in the summer after further Acts have been passed in Ireland and here.

As I certainly was under the impression that the Provisional Government was the Provisional Government of the Irish Free State, there is nothing to prevent it from nominating the Commissioner and getting to work. Article 10 says: The Government of the Irish Free State agrees to pay fair compensation on terms not less favourable than those accorded by the Act of 1920— to sundry persons. That is an agreement in the present tense, an agreement given then and there, capable of speaking from the date of the Articles, and I suppose that the Government of the Irish Free State, whose promise is now to receive the force of law, is something now in existence, promising de presenti to make a payment to persons who have a very great claim upon their attention. This only shows how studded with pitfalls the Agreement for a Treaty is, but unless we are to despair altogether in the attempt to place a working interpretation upon the Agreement as we go along—we have to do something with it now, for we cannot wait for ever—it does appear, in my humble judgment, that there is nothing to prevent the Provisional Government from proceeding with the Domination of the Commissioner or to prevent the boundary from being fixed, and I cannot believe that His Majesty's Government really thinks that it makes for peace to protract the present state of affairs.


My Lords, I am sorry that, by another Irish demand upon my time, I should have been removed from the House for a great part of the time during which this debate has been in progress. I had, however, the advantage of listening to a very considerable address from the noble and learned Lord in moving his Amendment, and, I imagine, to quite a considerable part of his observations in replying upon it. I do not share or, indeed, completely comprehend the difficulty of which he has complained in understanding what the Provisional Government is. He says it is not the Provisional Government of Southern Ireland as we knew it. That, I should have thought, was obvious, and, if I may say so, hardly worth pointing out. It has been said over and over again in these debates, what I should have thought was apparent, that it is the Provisional Government of the Irish Free State which is to be set up.

We were told on the Second Reading of this Bill by the noble and learned Lord, Lord Sumner, the noble and learned Viscount, Lord Cave, and others, that real doubt existed in the minds of those who attempted to consider the period of what has been termed the "Ulster month" as to the date from which that month ran, and I am disposed, having regard to the fact that so many persons competent to form an opinion have formed different opinions as to the terminus a quo it is to run, to admit that there was some doubt as to the right meaning of these words. We were told that the existence of this doubt was most grossly unfair to Ulster, and if there was a doubt, it evidently was unfair to Ulster that it should be permitted to remain. We were told that if they imagined that the month did not commence until after the Constitution was established they might miss this vital period in respect of which it might ultimately be possible that the month should in fact run. That was the case made by the noble and learned Viscount, Lord Cave, and by the noble and learned Lord, Lord Sumner, on the Second Reading.

We applied our minds to it, and difficult as it is without consent to amend a settlement of this kind, we entered into communication with those who are responsible in Southern Ireland in order that there might be no risk of anyone being damnified. What was the result? Nobody, so far as I have heard, contended on the Second Reading that there would have been any hardship if Ulster had known perfectly well that she had this month, not from the date that this Bill becomes an Act, but from the date that the Constitution is a completed instrument. It was never suggested that it was a hardship; it would have been ludicrous to suggest that it was a hardship; and, in my view, it is ludicrous to-day to suggest that it was hardship. Where is the hardship in giving additional time in which Ulster may decide whether she will or will not adhere to this Constitution?

It may be said by those who hold passionately the view that she never will and never ought to adhere to this Constitution that it is an insult to give her a longer period of option, but that is not the view which the majority of the House will entertain. Whether Ulster decides to adhere to the Constitution or not, she is given a longer period to decide. That circumstance may be of great advantage. not to those who have taken throughout these debates the most extreme views, but to those who believe, as we believe, that the moderate Party in Ireland, the Party that desires the Treaty, will triumph in these Elections by a large majority, and will be in a position to advocate still more and more moderating counsels in view of that triumph. It does not seem to us a disadvantage, whether she avails herself of it or not, that Ulster should at least be given that longer period of consideration.

The ambiguity disappears with the Amendment which the Government propose. We were asked not to adopt the attitude which allowed of no Amendment, or to say "You must take the whole Treaty as it stands." We listened to the grievance as it was temperately and persuasively stated upon the Second Reading. We have made a real attempt to meet that difficulty, and I claim that we have met that difficulty, and that the apprehension that is alleged in relation to the Boundary Commission has no substance whatever. The Boundary Commission cannot be set up until the Constitution is determined, and the sole difference between the Government and the noble and learned Lord at this moment is, not whether Ulster shall labour under an ambiguity, but whether Ulster shall on the one hand be compelled to exercise her option within a month of the date next week upon which this Bill becomes an Act, or whether Ulster shall on the other hand be given the two or three months which are to pass before the Constitution can be ratified during which she may study the development of events and see whether their trend is for peace or not. In asking your Lordships to reach a decision upon this Amendment, I most earnestly hope that it will be realised that we have made a real attempt to deal with the only grievance raised upon the Second Reading, and that it is very reasonable that this longer period should be allowed.


May I be allowed to correct what the noble and learned Viscount has said? I remarked on the Second Reading upon the grave disadvantage of not having the boundary question settled, and I did not confine myself to pointing out the uncertainty in which the Ulster Government found itself.


That, if the noble and learned Lord will allow me to say so, has no value at all, because the Boundary Commission will not be settled upon before the Constitution is established. It has no relevancy.


My Lords, as the noble and learned Viscount has referred to what I said on the Second Reading, may I add a word or two? It is true, as he has pointed out, that I laid stress upon the ambiguity which existed, not indeed in my own mind, as to the meaning of the agreement. I referred to the different opinions expressed upon it, and stated, as the noble and learned Viscount said, that it ought to be made clearer. But I added that in my opinion far the best construction for Northern Ireland would be the construction which I put on the Agreement myself—namely, that the month would run from the passing of this Bill. I said that that was rather a matter for noble Lords who represented Northern Ireland to consider, but now we have it quite plainly from my noble friend, Lord Carson, that the point of view in Northern Ireland is that it is far better to get the matter settled at an early date.

That is the meaning which some of us at all events put upon the document. It is the meaning which Mr. Arthur Griffith and his friends put upon the document. They say in their letter: "We construe it differently, but if you like we will consent to have the meaning altered and declared the other way." With great respect that is a proposal to alter the Treaty, and to alter it in a manner which Northern Ireland does not desire but which Southern Ireland is prepared to accept. I think the Treaty ought not to be so altered, and I do most earnestly suggest to the House that to alter it in the way suggested by the noble Viscount in charge of the Bill is to increase the injustice to Northern Ireland.

I would not have intervened in this Bill at all, except that I feel that—I dare say without any intention—certain parts of the measure will cause grave injustice to Northern Ireland, and I have tried, and mean to try so far as I can, to get the injustice set right. If the noble Viscount's Amendment is adopted it will cause greater injury to the North. It will, we are told, and after all we can exercise our own judgment in the matter, prolong the lamentable struggle which is going on in that part of the Kingdom. It is surely better, if we are to look at policy, to get this thing settled one way or the other, and I ask your Lord- ships to adopt the Amendment of Lord Sumner, and not to adopt the other Amendment which the Government have suggested. I think it is only in that way that Northern Ireland can be fairly treated.

Resolved in the negative, and Amendment

On Question, whether the proposed words shall be there inserted?

Their Lordships divided:—Contents, 87; Not-Contents, 96.

Canterbury, L. Abp. Cave, V. Kenlis, L. (M. Headfort.)
Argyll, D. Chaplin, V. Kenyon, L.
Bedford, D. Charlemont, V. Killanin, L.
Somerset, D. De Vesci, V. Kintore, L. (E. Kintore.)
Wellington, D. Hambleden, V. Lambourne, L.
Hood, V. Lamington, L.
Dufferin and Ava, M. Hutchinson, V. (E. Donoughmore.) Lawrence, L.
Lansdowne, M. Methuen, L.
Linlithgow, M. Knutsford, V. Monteagle, L. (M. Sligo.)
Normanby, M. Templetown, V. Northbourne, L.
Salisbury, M. Nunburnholme, L.
Exeter, L. Bp. O'Hagan, L.
Abingdon, E. Oranmore and Browne, L.
Airlie, E. Ampthill, L. Oriel, L.(V. Massereene.)
Dartmouth, E. Askwith, L. Ormonde, L. (M. Ormonde.)
Devon, E. Atkinson, L. Ponsonby, L. (E. Bessborough.)
Doncaster, E. (D. Buccleuch and Queensbury.) Avebury, L. Raglan, L.
Basing, L. Rathdonnell, L.
Drogheda, E. Bellew, L. Redesdale, L.
Grey, E. Burgh, L. Ritchie of Dundee, L.
Iveagh, E. Carson, L. Roundway, L.
Jersey, E. Clements, L. (E. Leitrim.) Rowallan, L.
Leven and Melville, E. Decies, L. St. Audries, L.
Midleton, E. Deramore, L. Stuart of Wortley, L.
Morton, E. Desart, L. (E. Desart.) Sudley, L. (E. Arran.)
Selborne, E. Dunleath, L. Sumner, L. [Teller.]
Stanhope, E. Dynevor, L. Sydenham, L.
Vane, E. (M. Londonderry.) Erskine, L. [Teller.] Trevor, L.
Wicklow, E. Fairfax of Cameron, L. Wavertree, L.
Bangor, V. Farnham, L. Wrenbury, L.
Bertie of Thame, V. Forester, L. Wynford, L.
Birkenhead, V. (L. Chancellor.) Knollys, V. Kilmarnock, L. (E. Erroll.)
Peel, V.
Devonshire, D. Ullswater, V. Lee of Fareham, L.
Marlborough, D. Leigh, L.
Sutherland, D. Aberconway, L. Loch, L.
Abinger, L. Lyell, L.
Aberdeen and Temair, M. Ailwyn, L. MacDonnell, L.
Bath, M. Aldenham, L. Marchamley, L.
Crewe, M. Annesley, L. (V. Valentia.) Marshall of Chipstead, L.
Ancaster, E. Belhaven and Stenton, L. Meldrum, L. (M. Huntly.)
Bradford, E. Buckmaster, L. Merthyr, L.
Buxton, E. Cable, L. Meston, L.
Chesterfield, E. Chalmers, L. Monteagle of Brandon, L.
Clarendon, E. Clwyd, L. Morris, L.
Eldon, E. Colebrooke, L. Muir Mackenzie, L.
Howe, E. Cottesloe, L. Parmoor, L.
Kimberley, E. Cullen of Ashbourne, L. Phillimore, L.
Lindsay, E. Denman, L. Playfair, L.
Lucan, E. Dunedin, L. Rotherham, L.
Malmesbury, E. Elgin, L. (E. Elgin and Kincardine.) St. John of Bletso, L.
Onslow, E. Saye and Sele, L.
Portsmouth, E. Ernle, L. Shandon, L.
Sandwich, E. Fairlie, L. (E. Glasgow.) Shaw, L.
Scarbrough, E. Faringdon, L. Somerleyton, L. [Teller.]
Shaftesbury, E. Fingall, L. (E. Fingall.) Stanmore, L. [Teller.]
Stamford, E. Gainford, L. Sudeley, L.
Strange, E. (D. Atholl.) Glendyne, L. Swaythling, L.
Burnham, V. Gorell, L. Tenterden, L.
Chelmsford, V. Hemphill, L. Teynham, L.
Churchill, V. Hylton, L. Treowen, L.
Cowdray, V. Joicey, L. Vernon, L.
Devonport, V. Kenry, L. (E. Dunraven and Mount-Earl.) Weardale, L.
Haldane, V. Wigan, L. (E. Crawford.)
Hampden, V. Kilbracken, L. Ystwyth, L.

disagreed to accordingly.

LORD CARSON moved, at the end of subsection (1), to insert the following proviso: Provided that as respects the Commission to be appointed under Article 12 of the said Agreement, if either the Government of the Irish Free State or the Government of Northern Ireland is aggrieved by any decision of the Commission as to the interpretation and meaning of the said article the Government aggrieved may represent the same to His Majesty in Council, and thereupon the said question shall be forthwith referred to and heard and determined by the Judicial Committee of the Privy Council The noble and learned Lord said: This is the first Amendment which is calculated to raise the question of the boundaries of Ulster. It is an Amendment of a very simple character, which in no wise infringes upon the Treaty, and merely provides, in the circumstances which I will state, that, if the Commissioners appointed to settle the boundary make a decision as to the construction of the terms of the Treaty which either of the parties thinks is a wrong construction, they can appeal to the Privy Council. I should have thought it was an Amendment which would have been at once accepted, almost without argument. It is admitted that this Article of the Treaty is open to grave ambiguities. It has been drawn in such a way, and the Irish Free State representatives or delegates have been so led to believe, that they put an entirely different construction upon it from what, I understand, the Government has hitherto said was the construction, and certainly the construction upon which numbers of people voted for the Treaty when it was in the House of Commons.

This is the Amendment of all others which I, at all events, now that the South and West have been abandoned, think the most important with which this House will have to deal. And do, plcase, believe me when I say that there is at the back of it a very grave reality. To attempt to take away from Ulster a portion of the territory that this House and the other House, with the assent of His Majesty, solemnly gave her in 1920, is an act unparalleled and unknown in the history of our treatment of our self-governing Dominions. It is an act of treachery unparalleled in the history of any political Party. And when I remind your Lordships that it was done contrary to the pledges of the Prime Minister, without Ulster ever being consulted upon the matter, your Lordships will see how grave the question is with which you are confronted to-day.

I am not asking that that portion of the Treaty should be altered. All I am asking is that where you yourselves say, and have shown, that there is an ambiguity in it, if either of the parties are dissatisfied with the construction put upon it by the Commissioners they shall have power to appeal to the Privy Council. The power to appeal to the Privy Council is one that is inherent in every subject of every one of our self-governing Dominions, and they avail themselves of it upon every kind of question. And is it to be said that a Government—not an individual—that you have set up, and on whom you conferred territory and territorial rights so recently as 1920, is not even to have the privilege of going to the Privy Council which is open to all the self-governing Dominions?

Let me shortly tell your Lordships how I put the case for Ulster. I start with the Act of 1920. Parliament conferred certain territory upon Ulster by a Bill that she did not like. Indeed, it was often thrown in the teeth of the Government in this House that Ulster had not voted for it, but it was solemnly given to them after many conferences with Members from Ulster in the other House, and they proceeded to accept it and to organise it under the terms of the Act of Parliament and to try to carry out as best they could the trust and the responsibilities that you had put upon them. There is no other matter which could so raise the anger of the people of Ulster as the fact that, behind their backs and without consultation with them, an agreement was entered into with their enemies that this Boundary Commission should be set up, which Mr. Michael Collins claims he was assured would enable them to take away whole counties from the area of the Northern Parliament.

I deny that your Lordships or that this country have any right to take away any territory from Ulster against her will. I do not say that you have not got the power physically to do it; I do not say you cannot use troops to do it; but I mean morally. Would you do it to any other of your self-governing Dominions? Would you do it to Canada? Would you do it to Tasmania? Would you do it anywhere else, I do not care where it is? No, you would not; and what is more, may I remind your Lordships that the Imperial Parliament has passed an Act to regulate the alteration of the boundaries of Colonies, which is generally done by Order in Council? That Act provides that when the boundaries are fixed they shall be as prescribed in the Order in Council from that date. Yes, and Section 1 of the Act contains this provision: "Provided that the consent of the self-governing Colony shall be required for the alteration of the boundaries thereof." That Act applies, as stated in the Schedule, to Natal, the Cape of Good Hope, Newfoundland, New South Wales, Western Australia, Tasmania, New Zealand, Victoria. South Australia, and Queensland. Here you provide that you may take away, according to the construction that Mr. Collins puts upon it, whole counties from the North of Ireland not only without their consent but without ever asking them whether they would agree to this Treaty or not. Is it unreasonable in those circumstances that we should have the right on an ambiguous Article, and an admittedly ambiguous section of an Act of Parliament, to ask for the decision of the Privy Council?

Let us not shut our eyes to facts. War is going on now in Ulster. The Free State forces are massing on her frontiers. I had a talk the other day with the Prime Minister of the North of Ireland and he told me that the condition of things was such as existed during the war either in the Balkans or in France. He told me that bridges were broken down, that masses of troops have to be kept on each side, and if a poor woman or a poor man on the Ulster side goes to a field and tries to dig their patch of potatoes there is at once a volley of bullets from the other side of the frontier. That is a terrible state of affairs. Some people cannot go out for fear of being kidnapped, and may I say that while we are solemnly considering this Bill five of the men who were kidnapped as far back as the middle of February at Clones are still in the custody—if they are not murdered; at all events they have never been returned—of the Free State officers who arrested them, and no effort is made to get them back. Since then numbers of Sinn Feiners who burned and attempted murder over here have been let out, but it never occurred to the Government to make it a condition that the constables who were seized and kidnapped at Clones should be liberated.

The Lord Chancellor always refers to me as talking in a very extreme way. Do not deceive yourselves, or do not be deceived, if you like that better. I notice that right rev. Prelates always speak on the side of the Sinn Feiners when they intervene at all—some of them, not all of them. Might I suggest to them, as great Christians on a Christian mission, that they should go over to the border line between Ulster and the South and West of Ireland and hold an investigation for themselves instead of getting up and telling me, as his Grace did on one occasion, that my speech was unworthy. Let me tell him that I speak of what I know, and may I say with the greatest respect that when his Grace uses epithets of that kind about me they leave me perfectly cold; and for this reason. A short time ago there was a massacre in the South of Ireland which Sir Hamar Greenwood described as another Bartholomew's Eve, when the only eight Protestant and loyal farmers in the district were foully murdered, but the most rev. Prelate made no move.


I do not like to interrupt the noble and learned Lord, but I imagine that he refers to me. I think he is making some mistake; I do not recollect ever using such epithets as he mentioned with regard to his speech.


if the most rev. Primate will look at his speech he will see that I am not misrepresenting him in the slightest degree. Let us deal with these great realities. I cannot picture anything more horrible than that which is going on in the North of Ireland at the present time. What is more, I have not the slightest hesitation is saying that it is entirely due to the action of His Majesty's Government in leaving these questions open and in going back on what they did as recently as 1920 without ever consulting Ulster. What a way to bring about peace between the North and South—to proceed behind Ulster's back to take away, or to give the right to take away, a large portion of her territory! I warn the Government that any day there may be an outburst over there which will bring grief and sorrow to every loyal citizen of this country. Therefore, I say we ought to approach this question of the Boundary Commission, which is an open sore irritating them all day and every day and keeping them in a fever, with some effort to solve the difficulty; and mine is certainly a very modest contribution towards it.

I cannot help thinking—I hope I may be wrong—that Ulster is now in the very worst position she could be in, except, of course, if a regular outbreak instead of an irregular outbreak of war should occur. She has lost confidence in the British Government, and I am sorry to say that thousands of those who joined me, in very difficult circumstances, in raising the thirty-six Divisions which won glory for Ulster are now the most bitter enemies of this country, openly and avowedly. That is to me a heartbreaking fact, because it is not what I wish. Is there any wonder that their hearts should be failing them and that they should no longer have the courage to keep to a country which, as I say, has often tried to turn them down? Is it any wonder that their hearts should fail them when they see all those who had made such professions towards them turn their backs upon them, and take every opportunity they can of doing them an injury?

I remember well the day when the noble and learned Viscount, the Lord Chancellor, and I were present in Liverpool, the day after I signed the Covenant—I think he was present in Ulster then—a Covenant which I vow here once more, under any consequences, I will keep. We signed it, and we passed across to Liverpool, where the noble and learned Viscount saw a demonstration of 120,000 men, and in the presence of those men he said this:— Whatever the extremity of the cause of Ulster may be, I tell Sir Edward Carson here, and in your name, that we shall be with him, whatever the hazard may be, to the end. I call upon him to come and be with us now in our hour of danger and extremity, in accordance with that pledge. I would not have quoted that if it were not that it was spoken a considerable time ago, and probably he will say that he was young.

But when the noble and learned Viscount was pressing the Act of 1920 upon your Lordships' House, he put it forward as a settlement of this question, and last year, in one of the most eloquent speeches I have heard in this House, the noble and learned Viscount, in August, 1921, said— When the Irish Home Rule Act is placed upon the Statute Book, when once for all the just and indefeasible case of Ulster has received protection, and for all time has become entrenched in an Act of Parliament, it depends thereafter upon the honour and protection of the British Parliament. That position, secured for Ulster, will never be abandoned, at least by any Government of which I am a member. Is it an abandonment of it to consent behind their backs to an arbitration which the other party to the Treaty says means that they may take away nearly half of their territory? Am I going too far when I say that, at all events in liquidation of the pledges which have been made to them, they should at least be allowed to have the privilege of appealing against a construction, which the Government have said was not intended, of the terms of this Boundary Commission?—a right which is given to every subject of every self-governing Colony in the Empire. I beg to move.

Amendment moved— Page 1, line 9, at end insert the said provise.—(Lord Carson.)


I remember well the stirring days to which the noble and learned Lord has made reference, and I recall, very closely, the part which I played in those days, and the commitments into which I entered, and I will undertake in a very few words to satisfy your Lordships that I have been as completely faithful to every commitment which I undertook as the noble and learned Lord has been faithful to the commitments that he then undertook. The noble and learned Lord inadvertently said:—"After we signed the Covenant, we went to Liverpool."


I said: "After I signed it."


If the noble and learned Lord will read the OFFICIAL REPORT to-morrow he will find that he said: "After we had signed the Covenant."


No, I took special care not to say that, because I did not know whether the noble and learned Viscount had done so or not.


The noble and learned Lord will read the OFFICIAL REPORT, and I shall do so. I would have signed it, but, in fact, I was not eligible for its signature. What are the circumstances in which the noble and learned Lord signed it, and I would have signed it? They were these. An attempt was being made, if necessary, so it was plainly averred, by force of arms, to force into an Irish Parliament, sitting at Dublin, time whole of the Protestant population of the North East of Ireland. There was no exception of any part of that population. In other words it was not a question then of determining what part of that population is homogeneously Protestant, and what part of it is Roman Catholic. It was a claim to bring, if necessary by force of arms, within an Irish Home Rule Parliament the whole of North East Ulster. I said then, and I say again, there is no extreme to which I would not have gone to resist that attempt, because I know that that attempt, besides being morally indefensible, would have plunged the whole of Ireland into a maelstrom of civil war.

But what was the Covenant into which the noble and learned Lord entered? He entered into one commitment; I entered into another. But the noble and learned Lord's commitment was also one of honour. It was one founded upon an oath. It was an oath exchanged between the cosignatories of that. Covenant that not one of them should be abandoned by the other co-signatories of the Treaty; that all, in other words, should be gathered into the Ulster fold when the quarrel had been carried, as it was hoped, to a successful issue. No sensible statesman, in my experience, has ever before conceived of a territorial arrangement as being necessarily, or even possibly, permanent in its nature. No human arrangements are permanent. What happened in the case of this very Covenant when the Bill of last year was before Parliament? Those who had signed the Covenant, the leaders of the Unionist Party in Ulster, had to apply their minds to a grave decision. What was that decision? It was whether they should moderate their earlier claim—the subject of their sworn Covenant—and substitute for that claim, in its breadth, the claim to the Six Counties.

The decision which was thrown upon them was a terrible decision, because it meant that they must be confronted, possibly, with all those to whom their word was pledged. They must be confronted with the terrible necessity of telling them that the interest of the whole and changed circumstances made it impossible for them to give permanent effect to that assurance. It was, of course, quite impossible to consult the 70,000 or 90,000 signatories of this Covenant. No attempt was made, no attempt could be made, to consult them. I entertain no doubt that the decision taken by the leaders of the Unionist Party in Ulster was a statesmanlike, wise, and courageous decision, but do you suppose that as many hearts did not burn with bitterness against those who had encouraged them to sign this pledge, and who afterwards told them that it was impossible to implement it, as burn in bitterness towards us to-day because the arrangement made in the Act of Parliament a year ago has not been preserved?

The truth in such matters is as plain as it is familiar. Just as those who originally arranged the population which was to be included in the Covenant selected the maximum which they hoped, if all went most happily for their fortunes, might be secured, so those who, in the absence of the other bargaining party, and in the hope of arriving at a solution with the North of Ireland, determined a year ago the area which they hoped it might have been possible permanently to retain. I am not one of those who agree that this is an ambiguous clause. The noble and learned Lord said it was admittedly ambiguous. It is not an admittedly ambiguous clause.


Surely if two parties vitally interested, like the Premier of Northern Ireland and Mr. Collins, have each taken exactly opposite views, it must be an ambiguous clause.


I do not think so, and for this reason. The clause is one that is necessarily couched in language somewhat technical. When the first debate on the Treaty took place in the House of Commons, and in your Lordships' House, it was known to be a clause most open to disputation because it was the one clause in respect of which it was alleged that there had been an invasion of the rights of Ulster. Until Mr. Collins made his claim in conversation with the Prime Minister of Northern Ireland no one, as far as I know, ever suggested that there was ambiguity in the clause, or in the other clauses of the Treaty, which must have been most carefully examined by every trained mind that was applied to them.

I listened to the speech made by the noble and learned Lord himself upon this very matter when the Treaty was first discussed. The noble and learned Lord had, of course, read this clause with extreme care, but I do not recall that he made one single criticism impugning its clearness, or that it ever entered into his mind, or was expressed by his tongue, that the construction to be put upon it by Mr. Collins was a conceivable one. When the Prime Minister of Northern Ireland had his first meeting with Mr. Collins at the Colonial Office it never occurred to him that it was an ambiguous clause. On the first occasion of their discussion the matter proceeded most harmoniously. They discussed it for hours, and at the end reached the conclusion, as it seemed to us a most happy one, that they would remove this matter from the purview and jurisdiction of this mixed Tribunal and deal with it by a new Irish Tribunal to be jointly contributed by the North and South of Ireland.

This at least is certain, that until that moment the Prime Minister of Northern Ireland did not suspect any ambiguity, but thought it was a clause on which he could operate, and propose and carry through consequent arrangements. What happened next? Mr. Collins and the Prime Minister of Northern Ireland met in the less congenial atmosphere of Dublin, and there it appears that Mr. Collins put forward certain claims for the first time as to the meaning of the clause, in relation to which no trained lawyer up to that moment had ever hinted that there lurked ambiguity. And because a layman, who has never devoted ten minutes to the construction of a document or to the study of law, puts forward a view which had entered no one's head until that moment we are now told that there is admitted ambiguity in this clause.

Let me say what I have to say as plainly as I can. It is not for me or any member of this Government to lay down for the Tribunal to which we, in Common with another set of persons, are the opposing litigants, canons or rules of construction. I have not the authority to do the one, and I have not the power to do the other. But I will say this plainly—in relation to a matter on which doubt never arose until the period I have indicated—that in my judgment a Commission which deals with boundaries is one thing and a Commission which deals with the transfer of territory is another and a different thing. I do not, and I will not, doubt that the competent Chairman who will be appointed and his competent assistants will reach some conclusion founded upon a clause which in my judgment is itself clear and unambiguous.

The particular proposal of the noble and learned lord is that these matters shall be referred to and be determined by the Judicial Committee of the Privy Council. The Amendment proposes to allow either the Government of the Irish Free State or the Government of Northern Ireland, if aggrieved by any decision of the Boundary Commission as to the interpretation of the meaning of Article 12, to refer the question to the Judicial Committee, whose decision as to the interpretation of the Article is binding. Under such an Amendment it would be practicable for either Government to refer any decision of the Commission to the Privy Council.


No, only anything on the interpretation.


The noble and learned Lord will allow me. I can hardly conceive a decision which will not involve the interpretation and meaning of the Article; which could not be made to depend on the interpretation and meaning of the Article in the mouth of a subtle advocate who was concerned to ensure that the appeal was founded on the construction of the Article. I am apprehensive that this would make the Judicial Committee a Court of Appeal from the Boundary Commission. It would make it almost a general Court of Appeal from the Boundary Commission. It would make it a Court of Appeal on all matters which involved interpretation. What does that claim mean? You may argue at infinite length as to whether the instrument should be described as a Treaty or not. You may argue at infinite length as to the exact position of the two contracting parties; and it is certain that the two contracting parties, if they do not occupy the same position as two international parties who make a Treaty, do occupy a position which is quite comparable to that.

What are we inviting them to do? We are inviting them to ask the other contracting party, when they have committed themselves to the decision of a Boundary Commission to which we shall appoint the Chairman, to say that they will take their Court of Appeal not from among themselves, not a joint Court of Appeal, but from the Judicial hierarchy of the other contracting party. In any circumstances I cannot conceive that this would be a very appetising proposal to the other side. I must point this out; and do it with the utmost desire to avoid misunderstanding and offence. Every one has understood the circumstances in which Lord Carson, carrying out his life's work, is able to make a contribution to your Lordships' debates. Whether one agrees with its presentation or not, everyone feels that it was of enormous advantage to the House that the view should be so plainly, so sincerely, and at times so vehemently expressed The noble and learned Lord, Lord Sumner, has in many previous debates, when subjects fringing upon politics have occupied the attention of the House, interested and not infrequently instructed your Lordships from the seat which he now occupies. In the course of to-night's debate a most interesting and valuable contribution was made at a critical moment by my noble and learned friend, Lord Cave.

Those who understand the traditions of the House of Lords and the practice and reputation of this House sitting in its judicial capacity or sitting, largely in the same membership, on the Judicial Committee of the Privy Council, know that the views held and expressed in this House by members of the Judicial Committee would never in any degree deflect their minds the moment that they ascended the judgment seat. We know this because we were nurtured and educated in the tradition of this House upon its judicial side and of the Judicial Committee by the experience of centuries. But how can you possibly expect Mr. Collins, who is not a lawyer, or Mr. Griffith, who is not a lawyer, to tear up the Treaty for the sake of this Amendment? What will they say about it? We know the position of the noble and learned Lords, and we know that with the most absolute security we could send Lord Carson and Lord Sumner and Lord Cave over to Downing Street to-morrow to the offices of the Judicial Committee—


And yourself.


May I point out that for many centuries of English history it has been recognised that the Lord Chancellor and the ex-Lord Chancellor as a political Minister; or a judicial-political Minister, occupies a position which has been distinguished from—


Can the noble Viscount tell us upon what logical principle that is founded? Does he suggest that he can be political and, as a Judge, unchallenged, whereas I cannot be political, because I would be challenged as a Judge?


The noble and learned Lord will not, I hope, have failed to observe that I most expressly avoided saying a single word about the position which I concede and, I think, the whole House concedes to be a very exceptional one. I avoided it. But if the noble and learned Lord were to ask me plainly whether there were any distinction, or whether there were a logical distinction, between the position of a Lord Chancellor and the position of any other learned Lord in this House, I should reply at once that I did not care about the logic of the matter but that I founded myself upon the ripe experience of our ancestors over a period of six centuries, and that they have drawn this distinction in the case of a Lord Chancellor and an ex-Lord Chancellor in which they have decided upon particular and general grounds that it was an advantage to the Judiciary and the administration of justice that there should be one at the head of that Judiciary who was not divorced from the executive and the administration.

I do not argue whether that view is right or wrong, because the point I am trying to make is that those with whom we are dealing know perfectly well that that has been the history of the office of Lord Chancellor in this country. But they do not know the other. If they were told to-morrow that a Judicial Committee at Downing Street was to sit in appeal from this Boundary Commission, and that the constitution of that Court should be—if the noble and learned Lord insists that I should bring myself into this discussion, I would even say if that Committee were to consist of the Lord Chancellor, Lord Sumner and Lord Cave—I cannot believe that that announcement would be received with any particular enthusiasm by them. Your Lordships know well enough, I hope, that the moment we left this House and went and sat in the discharge of our judicial duties, we should make an honest attempt to apply our minds to the problems that arose, and that the experience and history of that assembly have shown that this attempt can be successfully made.

But I make these observations, not because I think it on this occasion my duty to attempt to lay down here—I make no such claim—what is the legitimate function of any Peer of this House; it is not for me even to attempt to give an opinion on that. I lay it down only in order to try to make plain what would be the view held to-morrow in Dublin, and what conceive would be the reasonable view, if it were said, after the speeches that have been made in this and earlier debates, that whenever there was a dispute in the Boundary Commission it would be referred to a Tribunal in which those who have taken a leading part would be the Judges.


May I interrupt the noble and learned Viscount for one moment? I do not want there to be any mistake. I think he knows very well, what the House may not know, that after the part that I have thought myself compelled to take in this debate and the debate the other day, I should not dream of taking part, as a member of the Privy Council, in any question arising under this clause.


In that case the position that arises is not less startling. In order to decide these profoundly difficult constitutional matters, we are to be deprived, I suppose, of the services of Lord Buckmaster, Lord Haldane, Lord Sumner, Lord Carson, and Lord Cave—


And Lord Birkenhead.


And Lord Birkenhead; my natural modesty forbids me from laying undue stress upon that particular deprivation. But so deprived, we should go to Mr. Collins and to Mr. de Valera and say: "Well, you are very welcome to what is left by way of dealing with this matter." Having regard to the calibre of those of my colleagues whom I have by name enumerated, I cannot believe that even that offer of the valued residue would appeal to them as a completely satisfactory solution of these difficulties.

I assure your Lordships that I have felt an immense difficulty in dealing with this topic, because although I happen for the moment to hold the high office that I do hold, I do not conceive that that entitles me to assume the slightest tone of domination or even of criticism when I am dealing with the Parliamentary conduct of those colleagues with whom I co-operate and am proud to co-operate. They have their position as Peers of Parliament, and it is not my duty or wish to attempt any criticism of the exercise which in their consciences they make of those duties. I have never referred to this matter before, and should not have done so now had I not been bound to make it plain how ludicrous those proposals would appear in the eves of those to whom they are addressed. I must make it clear that this is an Amendment which, if carried, would undoubtedly destroy the whole Treaty, and I would venture to ask whether, if I am right in this anticipation, it is wise for the House of Lords to insert an Amendment of this kind and send it to another place unless the House has made up its mind certainly and finally that it intends to insist upon it. I should greatly doubt whether your Lordships on further reflection will be inclined to take that responsibility, and I hope the Amendment will be resisted.


My Lords, it seems very presumptuous for a mere layman to say a word when these great legal guns are firing at one another, but I must say that I am sometimes amazed at the love of technicalities which seems to pervade the legal mind. It is positively contended by one of the ablest men—if he will allow me to say so—of my acquaintance, the noble and learned Viscount opposite, that it is reasonable and logical that there should be some disability which prevents Lord Cave, Lord Carson and Lord Sumner from taking their full share in this kind of debate which does not obtain against Lord Birkenhead, Lord Loreburn, Lord Buckmaster, and Lord Finlay. To the lay mind this distinction is, if I may venture to use so strong a phrase, positively absurd.

All these noble and learned Lords have political histories. They have all belonged to political Parties, and merely because one set of them are called Law Lords and the other set are called ex-Lord Chancellors, though they do absolutely the same work—there is no difference whatever—either in the Privy Council or the legal side of your Lordships' House, a different measure is to be meted out to them, and the Lord Chancellor says it seems profoundly reasonable. I have not been educated as a lawyer, and I do not follow him. I think we are all deeply indebted to all noble and learned Lords, whether they have worn the Lord Chancellor's wig or not, for instructing us in the difficult and intricate matters of law with which we have to deal, and I hope we shall not be deprived of their assistance.

I want to say one word upon the substance of the Amendment. The Lord Chancellor has just admitted that Mr. Collins had put forward a claim for an interpretation of this Article which he thought completely unfounded. He said he could not conceive how anybody could have been so wrongheaded as to put forward this claim, and he was quite certain that any competent tribunal would not interpret it in the way Mr. Collins has interpreted it. But I think this assurance of what will happen if we pass the Bill in its present form is not a ground upon which we can really rely. Our business is to make the thing safe. That is what we are here for. I do not say, I am very far from saying, that the particular method of my noble and learned friend is the right method. There may be objections, but the Lord Chancellor had an opportunity of dealing with the whole subject when he was on his legs just now. As he knows, there are several other Amendments on the Paper dealing with this point. There is an Amendment which proposes that the reference to the Commission should be laid before Parliament. There is another which proposes that the name of the Chairman should be laid before Parliament, and that the appointment should not be operative until it had been approved by Parliament.

Why was it the Lord Chancellor, if he objects to the Amendment now under discussion, did not tell us whether he would approve of the others, because it is admitted that there is this doubt. It is all very well for hint to say that Mr. Collins is an unreasonable person, but he is going to be Prime Minister of Southern Ireland, or President—I forget which—and it is no use treating this intimate friend of the noble Viscount as of no account. He is a very important man, and he has expressed his opinion that the Article means a particular thing. Are we to ignore this? The noble Viscount says that this Amendment is an absurd one. Will he take any of the others? I think the Government are bound to assist us and not to leave us to find our unassisted way to a solution, and I will ask him, if he will not have the Amendment of my noble and learned friend, to signify whether one of the other Amendments would be within his approval. I do not know how long your Lordships are going to continue the discussion tonight. I will not move the adjournment, but if the Government consider it wise to think the matter over before answering the question that I have put this will perhaps be an opportune moment to adjourn.


There must be no delusion upon this point. The Government does not require to think over the matter in the least. They have made, and attempted to indicate, their conclusion. They see no ambiguity in the terms of the reference contained in the Article itself, and any noble Lord who reads that over ought to admit that to amend it without consent would be as fatal to it—


Why should we not get consent?


We have not got consent. It would no doubt be very convenient if we had consent on every Amendment—


You never had any difficulty in getting consent from Mr. Collins for the last Amendment.


There may be varying degrees of amendment on varying topics, but the noble Marquess will give me leave to assure him that this is one of those subjects on which it is extremely difficult to get consent, and if we attempted to amend it without consent we should be exposed to attempts to amend it in an opposite sense in the Dail Eireann. If it be desired to continue the debate, I think this would be a convenient time to adjourn.


Would it not be convenient to get rid of the Amendment? Of course, if it be the desire of the House to adjourn now I have no wish to stand between it and its convenience.


Divide, divide!


There is nothing I desire less than to stand between the House and its convenience—


We desire to hear you.


—but there is only a very little that I desire to say. I have listened, I believe, to nearly every speech made both when the Treaty was under deliberation in this House and on the Second Reading of this Bill, and to-day, and I am bound to say that it has been a very melancholy experience. It is plain that this measure represents, to a very large number of your Lordships, nothing but the complete destruction of their whole life's hopes, and it is also plain that the members of the House who, like myself and Lord Monteagle, can regard this Bill as in some measure expressing that for which they have worked for many years, are very few in number. The bulk of your Lordships regard this Bill as a regrettable necessity. That is what the noble Marquess, Lord Lansdowne, expressed when he observed that it was the only ray of light that illuminates the dark and desolated landscape of Ireland.

In these circumstances it is not surprising that this particular point, to which the noble and learned Lord called attention, should be regarded as something more than an ordinary Amendment. It is, in truth, an Amendment which in one sense cuts right across the main provisions of the Treaty. I can understand thoroughly the extreme difficulty with which the parties were brought up to the point of agreeing its terms. It must never be imagined that this was regarded by the Irish Representatives as a great concession on our part. I am convinced that the way they regarded it was that it was a great concession on their part. I am satisfied they thought they were going to the very last limit they could go while preserving their hold upon their people in Ireland. If, in circumstances such as those, you attempt to alter the delicate balance of any of these Articles, you will destroy the whole equipoise, and I am satisfied that the result will be that the whole matter will break down.

It is one of the most sad facts connected with this discussion that when people speak on one side or the other their minds are apt to dwell simply upon the horrors that their opponents are committing. It is plain, when you hear Lord Carson, that his heart is torn with the thought of the unspeakable horrors that are committed against his friends, but I would ask him to believe that you have merely to turn the picture round and you can see just the same unspeakable horrors committed on the other side.




You say "No," but is not a bomb thrown into a Roman Catholic children's school a horror as great as any horror that you can possibly contemplate?


Who threw it?


Who threw it? Nobody can tell.


Then why say it was a Protestant who threw it?


I did not say it was a Protestant; I said the wrongs inflicted on the other side—I regard the Roman Catholics as the other side. And again and again you cannot get the explanation of those things. You cannot ascertain how they begin. You are dealing with this deep-rooted racial and religious feeling which, most unfortunately, has existed in Ireland, and will, I do not doubt, exist as long as Ireland remains.


Then why re-open the boundary question?


That is another thing. Now we come to the question of the boundaries. The noble and learned Lord will agree that I have not re-opened the question of the boundaries.


No, you have not.


The noble and learned Lord points out that you revive all those bitter feelings by what has happened here. I agree; I think that that very likely is so. And he says that such an act of perfidy has never been known in history. I do not know, but I do know that you will find that the Act of Union itself was a complete denial of what had been solemnly passed by Parliament only five years before. And the unfortunate history of Ireland has been that there never has been finality, and there never has been settlement, even from one year to another, in the history of its laws. To say that this is not an alteration is, I think, an extreme opinion. I think that this does alter what was arranged a short time back. But the question is, What are you going to do? Are you going to take that alteration as a sufficient reason for throwing Ireland once more back into a condition in which there is nothing left for us but absolute, open civil war, or are you going to say, as the noble Marquess, Lord Lansdowne, said, as the noble and learned Lord, Lord Sumner, said, as nearly every noble Lord has said, that you must cling to this, however little you like it, you must cling to it for it is the only chance? If you are going to do that, then I say you cannot alter it.

I remember a speech once made by the noble and learned Viscount, the Lord Chancellor, upon this matter, in which he pointed out that this should be regarded in the same way as the construction of an ordinary contract, and I am bound to say that at the time he did not convince me in the least. I thought that it stood in a different position, and that the Government could and should declare what they really meant when this Treaty was fixed. I held that belief. I hold it no more. I think it is impossible that the Government can do it. If they declare that this means one thing they will throw the whole of one part of Ireland away; if they declare it means the other just the same result will happen. There is to be a Commission appointed. I have no doubt it will be composed of able and competent men, and, though I do not share the views of the noble and learned Viscount that the terms are unambiguous, I do not think that they fairly lend themselves to the extreme claim that has been made against them on behalf of Southern Ireland. And I have the greatest hopes that this Commission, when appointed, being composed of competent men, will effect something which both parties will understand as reasonable and fair.

Finally, if such a thing is done, is it right to refer it to the Judicial Committee? This debate has drifted, as you might expect that it would, into another line of thought—the consideration of the qualifications which could possibly enable the noble and learned Viscount and myself, and others situated as I am to take an active (some people might say acrimonious) part in the debates of this House, and yet exclude the other members of your Lord- ships' House who sit to discharge judicial duties. To my mind the answer is perfectly plain. It is impossible, if you desire to maintain respect for British justice, that you should have members of the highest Tribunal in the land, all of them actively associated with politics; you would break the whole thing down if you attempted it. But I say confidently that nothing could have prevented the noble and learned Lord, Lord Carson, from taking up the attitude that he has taken, and everybody would have recognised it. You have merely to go back to his life history to see that if you had not permitted him to give the freest possible expression on the most frequent occasions to the views which he holds upon the Irish question, you would render him liable to a misunderstanding and misinterpretation by his own friends to which nobody would consent for a moment. That is clear.

But when you say: "Why does his position differ from the position you hold?" my answer is this. I am no salaried Law Lord, I am not bound to sit at any place at any time or on any clay. I am at liberty to do exactly as I plcase. But the other men are not: that is the distinction. But then you say: "After all, you do it." Well, I may be very unwise, but I know I do, and so do the other ex-Lord Chancellors, but it does not matter for this reason—that there are not so many of us at present. There may be more later on. But there are not so few of us that we cannot absent ourselves when occasion arises and still leave enough to carry out the work. That is the real reason, and, if it were not for that, I say without the least hesitation that, having elected, as I have elected, to try to earn money which I am generally credited with receiving for no services at all, I would rather renounce my right to take part in politics than I would permit, if I could prevent it, the whole of the judicial system of this country falling once more under the suspicion that it was influenced by political considerations.

When you apply that to this particular instance it is unfortunate. The infection of Ireland has spread, and there are six or seven members of the Judicial Committee who have already expressed their views—of the greatest value, and I do not for a moment say that they were not views that your Lordships would desire to hear, and which noble Lords were, of course, perfectly competent to express—but at that moment nobody ever thought that this Bill could come before them, or before any others of us in any form whatever. And if you are now going to put the Judicial Committee as a court of appeal on this question of the boundaries you are simply seeking trouble, and I hope you will avoid it.


My Lords, I understand it is the desire of the House not to complete the discussion now. Otherwise, I should ask to be allowed to say something on a much more general point with regard to it. If it is the desire of the House to adjourn I will move the adjournment of the debate. If not, of course, I will continue.


It is entirely as your Lordships wish. So far as the Government are concerned the Committee stage of the Bill will be resumed and, we understand, concluded, to-morrow. I am not sure that your Lordships are not prepared to take a Division now; if so, I would move to adjourn the debate immediately after the Division.


I am afraid, with the greatest reluctance at this hour, I must ask your Lordships to listen for a moment, for the position will so gravely affect a number of Peers from Southern Ireland that I feel bound to put their case before you. Perhaps I may be allowed to move the adjournment of the debate.


Might I suggest that we meet a little earlier to morrow?


I will move the adjournment to 3.45 to-morrow.

Moved accordingly, and, on Question, Motion agreed to: Debate adjourned till to-morrow.