§ House again in Committee (according to Order).
§ [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 respon- 710 sible, 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.
Debate resumed on the Amendment proposed by Lord CARSON—namely, 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 EARL OF MIDLETON
I ventured last night to ask your Lordships to continue the consideration of this Amendment, because there were certain considerations that some of us, whose views have not been presented yet, would like to put forward, and also because a suggestion was made by Lord Salisbury that the Government, having given their fiat against this particular Amendment, had not indicated in what way, if in any, they proposed to deal with the very serious view taken by noble Lords representing Ulster upon this question of boundaries. Sonic of us, who represent a good deal of feeling in the South, would like to put forward rather a different aspect of the whole of this question, and to suggest a compromise, if such a compromise be possible. I must say at the outset that we are quite unable to accept the position which various speakers have taken in this debate, as regards the effect of the Treaty. My noble and learned friend behind me said with regard to the Treaty, last night, that it was a matter of perfect indifference to the South and West whether the Treaty passed or not, because the result would be the same. We feel that what was said by Lord Lansdowne a few nights ago represents the fact—that bad as conditions are, the failure of the Treaty would remove the last glimmer of hope or light which there is in 711 the Irish situation, and we cannot associate ourselves with the view that it is a matter of indifference to the South whether the Treaty passes or not.
I confess, too, that I should like to enter a protest against the suggestion made by the noble Viscount in charge of the Bill. He said, on the Second Reading, that the Constitution was not a question which concerned Englishmen, but it was one for Irishmen alone. I challenge that view. I say that to declare now that the Constitution to be established in Ireland is of no account to this country would be a violation of all the pledges which His Majesty's Government have given. Again, the Lord Chancellor used language which I regretted to hear, because I was sure it would be misinterpreted. It was put before us, from the noble and learned Viscount last night, that it was not a question which much concerned this country, whether Irishmen were killing each other. Before I sit down I shall make an appeal to the Government that they cannot settle this question of boundaries and frontiers, and will never get an opportunity of settling it, unless they are prepared to fulfil their first duty of keeping order on the frontier. Your Lordships will recollect that those of us who represent Southern opinion are in extreme difficulty, because we have always protested that the partition of Ireland would create most serious difficulties between North and South—difficulties which, at present, are only beginning. Our warnings were disregarded. The Government, as I believe, instead of attempting to find some machinery by which the North could co-operate with the South have put their money on the wrong horse, and already we are seeing results. We have now, somehow or other, to deal with the situation, and I do not think that the proposals of the Government as they stand will enable them to do so.
May I say for a moment that I am afraid I cannot follow my noble and learned friend the whole distance in the position he has taken up. He has spoken with great force on the suggestion that this Commission might be used for something more than a readjustment of boundaries. We have now before us the fact that every high authority, the Lord Chancellor tells us, has laid it down that as the reference is phrased it can only deal with the adjustment of boundaries and not with the transfer of territory. Therefore, I 712 think we may dismiss that major fear, so earnestly felt by our Ulster friends, from our minds. The point where I cannot quite follow my noble and learned friend is in his statement that anything in the Act of 1920 which was given to Ulster as part of a Parliamentary bargain must be left—that it is unbelievable, to use his words, that such an act of treachery could now take place as the reconsidering of that bargain. Let us look the facts in the face. I agree that if the sanctity of an Act of Parliament has to be considered then the Act of 1920 has got to be fulfilled to the letter.
But is the bargain with Ulster the only bargain made by the Act of 1920? What about the bargain made with the South? What about the repeated pledges of Ministers on the Second Reading of this Act, which has only been on the Statute Book fifteen months? On the Second Reading, speaker after speaker rose on this side of the House to say that he would abstain from voting against the Bill on the Second Reading, only on the clear understanding that safeguards were inserted. What were those safeguards? They were in some cases supported by the Government They were in all cases conceded, and in consequence of them the Bill was read a third time. They were as much a Parliamentary pledge as any that has ever been given. What were they? In the first place, that there should be representation of minorities, and a Second Chamber, as there is in every one of the Dominions of the King. Secondly, there was a provision as to taxation. Thirdly, there was the safeguarding of education and Trinity College; and, fourthly, amongst other things, specifically omitted from the Treaty, the question of marriage.
On every one of those questions the Treaty has left us in the South, 350,000 Protestants, to the good will and expressed good intentions of those who are to rule over us in the future. So far as the Treaty is concerned, to-morrow there may be passed a law for a single Chamber in which not one of those 350,000 persons would get a seat. To-morrow, Trinity College can be disestablished, the laws of marriage may be altered, financial legislation may be laid down which may utterly impoverish all those to whom the past development of the country is due. I do not say that any one of those things will take place, but I do say that, so far as the Parliamen- 713 tary bargain on which my noble and learned friend now relies for Ulster is concerned, we in the South have as big a claim to make, and indeed a bigger, because in every respect except that of the frontier, which is to be submitted to an impartial Commission, Ulster is amply safeguarded by the Treaty.
That being so, what is the course which it seems fair to ask should be taken at this moment? The Lord Chancellor has said that if the Amendment now under discussion is passed referring any doubtful point with regard to the boundary to the Privy Council, it will break the Treaty. My noble and learned friend (Lord Carson) has made three eloquent speeches, any one of which might have been the prelude to a Motion to break the Treaty, but he has not put down that Motion, and he has not asked your Lordships to divide upon it; and I am confident on the basis of that conduct on his part that, if he can find a way out without breaking the Treaty, he is willing to do so.
The suggestion I make is this. It is conceded on all hands that a readjustment of boundaries is to take place. The noble Marquess, Lord Dufferin and Ava, has on the Paper an Amendment proposing that the name of the Chairman of that Commission should come before this House in a draft before the appointment is made. We have pressed on the Government, in previous speeches, the absolute necessity that Orders in Council made under this Bill should be laid in draft upon the Table, for however brief a period, so that the House of Commons and your Lordships may have a chance of delivering their opinion upon them. If the Amendment which stands in the name of Lord Sumner is conceded by the Government, and if Lord Dufferin's Amendment, which proposes that the name of the Chairman, as a guarantee of his impartiality and standing, should be laid before this House is also conceded, I think we might ask my noble and learned friend whether he does not think, in the circumstances, that some fair degree of protection will have been given to Ulster interests.
There is high precedent for the laying of the name on the Table in such a case. I well remember in the Land Act of 1881 that it was held that the names of the Commissioners who were to carry out the Act were, above all things, vital to the Bill. And the Government, under pressure, con- 714 sented, before parting with the Committee stage of the Bill, to give the names of the Commissioners whom they proposed to appoint in the event of the Bill passing through your Lordships' House. In this case all we ask is that after the Bill has become law, and under the Act, your Lordships and the House of Commons shall have the opportunity of seeing the name before the appointment is actually made. I cannot see how a concession of that kind could in any way be held to invalidate the Treaty. The Government have never ventured to say that outside the Treaty they have an understanding of that kind with those with whom they negotiated. I rose to assure your Lordships that we who speak for a considerable population in the South are not desirous of giving any vote which can in any way shake the Treaty, for the reasons that I have mentioned. But at the same time, I should not be acting fairly with the Government if I said that we were wholly satisfied with the manner in which the treatment of the question, as between Ulster and the South, has been carried out.
What was the position a month ago? A new Government had come into power in Ireland. They had no precedents; they had no legal existence. At this moment they are wanting and waiting for this Bill to have the legal right to take the steps which they have already taken. They have no police force; they say they need an Army, and they have no Army. In these circumstances I believe there is not one member of your Lordships' House who will not agree with me when I say that it was the duty of the Government to have ascertained from the men who have taken over this great charge, in each individual case, whether they were prepared to take over the effective control of it before they, the British Government, withdrew the British forces which alone could preserve order. If the Lord Lieutenant had been entrusted with that duty I believe the scenes we have seen and heard of in Southern Ireland would not have taken place. It may be too late to restore the troops to other parts of Ireland, but I wonder whether your Lordships will be right in parting with this Bill, unless and until His Majesty's Government give the House a pledge that, until the border is finally settled and delimited, they will hold themselves responsible with British troops for holding the scales even on the border.
715 Recollect what the position is. The Northern Government have not the troops. If they had the troops they could not go beyond the border to keep order. The Southern Government are in the same position, and the one Government which has control in both areas has abdicated. The state of the frontier between Ulster and the South is becoming not only a serious danger in Irish politics, but a scandal throughout the world. I feel that, while we are most desirous of helping the Government in the course of this discussion to get the Treaty through, it ought to be accompanied on their side by some undertaking to meet what I believe is the universal wish of this House—that when we are making great sacrifices in the interests of peace those sacrifices should really produce a peaceful condition as between the North and South of Ireland. I hope my noble and learned friend may not find it necessary to divide on this Amendment, and I earnestly ask him to consider whether it is not possible, by the adoption of Lord Dufferin's Amendment and that which stands in the name of Lord Sumner, that, we might secure for Ulster practical immunity from the dangers we apprehend.
§ THE EARL OF MIDLETON
The Amendment at the bottom of page 3 of the Amendment Paper. And Lord Dufferin's Amendment is the last on the Paper.
§ LORD PHILLIMORE
This matter has taken a somewhat wide range, and I wish to bring your Lordships back to the subject of the Amendment. The noble and learned Lord who has moved it has disclaimed any intention of altering the bargain—I will not call it a Treaty; that is too magniloquent a word, which gives rise to megalomania—between the Government on the one side and the forces of disorder, which we hope will become the forces of order, on the other side. I have always understood that while it takes two to make a bargain it also takes two to unmake or to undo that bargain, and that you cannot add a fresh term to a bargain without the consent of all the parties to it. If one of your Lordships and I were to agree that any point of difference should be submitted to three gentlemen, and one of us, said: 716 "I am not satisfied, I want an appeal from those three gentlemen," he would be asking to alter the terms of the bargain, and he would be none the less asking to alter the terms of that bargain if he said: "I am also content that you should have an appeal if you do not like it." We may not like it. I do not like, none of your Lordships likes, or hardly any of you, this settlement or bargain. But we have made it, and we must stick to it and carry it a through.
After all, nothing can be worse than the policy of vacillation which has distinguished the Government of Ireland for the last seventy years. If we have made a bargain of any kind let us stick to it and, without altering the bargain, we cannot carry the noble Lord's Amendment however much we may sympathise with it. Anyhow, I think it is an unfortunate Amendment because he has made an unfortunate choice, as it, happens, of the body which is to be his Court of Appeal. We all know the noble and learned Lords whose names have been referred to in the course of this debate. We know their high character; we know their scrupulous honour; we know their judicial conscience—that which the French: have so well expressed by la religion du magistrat. We know quite well that they as Judges would decide these matters perfectly fairly. But can you expect a peasant either in the North or the South of Ireland who has never seen London, who has never been in a British Court of Justice, to understand that these gentlemen are of this high and trustworthy character and can be trusted, notwithstanding their political predilections, to decide fairly? We always know that in the matter of judicial impartiality two things have to be done. Impartiality has to be secured, and the public has to be convinced that it has been secured. I submit that those two considerations are fatal to this Amendment.
Having said that, I want to say something, not about the Amendment but the debate. I cannot help thinking that in the course of the debate a certain tendency was exhibited by the noble and learned Viscount, the Lord Chancellor, and by the noble and learned Lord, Lord Buckmaster, to muzzle the Lords of Appeal. I rise to protest against that, and I am able to do it quite impartially, because I am not a Lord of Appeal in Ordinary. I sit in your Lordships' House as an ordinary unsalaried Peer of hereditary rank. The only difference between myself and any 717 one of the noble Lords whom I am addressing is that nineteen years of judicial service have qualified me to be one of the quorum sitting to consider judicial matters in your Lordships' House and, being also a Privy Councillor, to sit on the Judicial Committee of the Privy Council. I stand outside the position of the noble and learned Lords who have been referred to, and I want to say that I see no reason for putting the noble and learned Viscount, the Lord Chancellor, and, still less, the noble and learned Lord, Lord Buckmaster, on any pedestal above the other Law Lords.
I am old enough to remember many schemes for affecting the exercise by your Lordships of final judicature. I think it was as far back as the 'fifties that an attempt was made to recast the procedure of this House in that respect. I remember the Judicature Act of 1873 which took from your Lordships all appeal jurisdiction. I remember also the Judicature Act of 1875 which restored it, and I remember a period of doubt and difficulty that was finally ended, I think, in 1876 by the Appellate Jurisdiction Act and the first provision of salaried Law Lords, who might or might not have peerages for life only. When that was dose, the noble and learned Lords who were introduced into your Lordships' House were not intended to be shams as Peers. It was not intended that your Lordships should, so to speak, play about with your jurisdiction and pretend to be exercising the jurisdiction of this House while it was really done for you by people in sonic inferior capacity. They were made as much the Peers and equals of you and of me as any other member of your Lordships' House, and I conceive that we get great benefit from their assistance. I always welcome their speaking. Before I was a member of this House, when I had to consider the matter, I always trusted and hoped that the Law Lords would assert their right to be Peers, and I think your Lordships get, as I have said, great benefit from their assistance.
§ LORD SUMNER
What fell from the noble and learned Viscount and from my noble friend, Lord Buckmaster, lest night made it seem to me to be my duty to say a few words in answer to the arguments that I understood, though I may have been mistaken, they were then putting forward. Much of the necessity, for that 718 has been removed by what has just been said by my noble and learned friend, Lord Phillimore, who has stated what I conceive to be an uncontested and incontestable doctrine. Two points have been made upon this Amendment. One I understand to be that there is nothing upon the Treaty in connection with the Boundary Commission that requires any interpretation by any tribunal whatsoever; that the Treaty is self-contained and self-sufficient. The other point is that the proposed tribunal—namely the Privy Council—is, for a variety of reasons, an unsuitable tribunal altogether.
As I have said, I do not think there is any doubt at all that the constitutional doctrine which the noble and learned Lord has just stated is perfectly clear and correct. Before 1876 there were no Lords of Appeal in Ordinary. A Statute had to be passed in order that Peerages might be created without remainder—Peers for life. That, and the mere detail of a salary, was the subject matter of the Act of 1876. But before the passing of that Act there had been numbers of instances of active Judges who were members of your Lordships' House, and the uniform tradition was that, as and when those noble Lords thought fit to do so, they took part in the ordinary duties and debates of your, Lordships' House.
Lord Ellenborough, a little more than one hundred years ago, was a member of the Cabinet of the day, and took part for the rest of his life in all the debates in your Lordships' House, sometimes with acrimony and constantly with a vivacity which drew down upon him a certain amount of criticism; but there was never the slightest doubt that he was within his right in taking that part in debate. Lord Denman, as Lord Chief Justice, was for many years a member of your Lordships' House, and took part in important political questions, such, for example, as the action of Sir James Graham in opening Mazzim's correspondence and, what was then an exceedingly polemical subject, the Abolition of the Slave Trade. When one comes to the period just before 1876, Lord Cairns, then a Judge of the Court of Appeal, received a Peerage before he became Lord Chancellor for the express purpose that he might sit in your Lordships' House and take part, on behalf of the Government of the day, in the piloting of the Reform Bill through Parliament, in the Course of which, I think, he made between twenty and 719 thirty important speeches, and showed himself, what everybody knew him to be, an accomplished political advocate. He afterwards became Lord Chancellor, and passed into a category with which I have nothing to do.
Since 1876—though this is by no means an exhaustive category—I made it my business to ascertain this morning, Lord Macnaghten, Lord Robertson, Lord Alverstone, and Lord Parker of Waddington, to name only the dead, took part, when they thought fit, in your Lordships' debates, not on subjects connected with Summer Time or divorce, but real controversial topics, and nobody said them nay. Subject to the toleration of your Lordships, which must always be the rule that guides any speaker in this Assembly, I conceive that the only constitutional rule is this, that a Peer has the right to address your Lordships upon any subject upon which you are pleased to listen to him, and that upon any legal question, particularly if he has special legal knowledge, he has not the right to withhold from your Lordships any assistance that he conceives himself able to render. The way in which he does it, the occasions which he selects, the length of time he occupies, the language he uses, are all subject to the unspoken censure of your Lordships. I know that your Lordships, on the one hand, are always most indulgent to those who endeavour to speak with sincerity; and, on the other hand, I think every Peer is always sensitive to the feeling of your Lordships' Chamber.
That being so, I think that the position was stated, if I may say so, with extreme accuracy by the Lord Chancellor when he pointed out that what he had to do was to answer arguments that were adduced, and not to offer, nor did he offer, the slightest comment upon the propriety of those arguments being advanced by the persons who advanced them. My noble and learned friend Lord Buckmaster, in whose presence I might have said more than I am able to say in his absence, appeared to draw a distinction between Lords of Appeal in Ordinary and Ex-Lord Chancellors. I do not for a moment dispute that the latter are, entitled to be a class apart, but I do not think that any noble Lord will recognise that there is any doctrine which enables the rule to be laid down, which I rather think my noble and learned friend seemed to lay down, that as the freedom of debate was to be enjoyed without stint by them there must be a corresponding 720 economy of speech on the part of their salaried colleagues—a detail which appeared to me to be slightly personal and wholly irrelevant—in order that the work may be carried on.
My noble and learned friend, Lord Cave, pointed out yesterday what is done in practice when there are questions, as there constantly must be questions, which raise matters touching public affairs. It is the most ordinary thing in the world, and what any sensible tribunal does, internally to arrange that the tribunal shall be made up of those who have dissociated themselves entirely from the matters in question. Let me give an instance. All through the war, ever since, I think, the end of 1915, it has been necessary in the Privy Council to deal with appeals from the Prize Court, and during those years those members of the Judicial Committee who have been members of the Government at any time during the war, whether they had anything to do with maritime operations or not, felt, and very naturally felt, that it would be more proper that they should take no part in the discussion of those appeals. Accordingly they have been uniformly discussed and decided by a board consisting of noble Lords and other Privy Councillors who have had no connection with the Government at all. This is a kind of arrangement made without any difficulty, and nobody who has any practical knowledge of the matter would conceive that, except for purposes of controversial ridicule, one would compose or conceive the possibility of composing a board in the way in which it was suggested last night, by including every noble and learned Lord who had spoken in the course of this debate, and nobody else.
The real difficulty about the tribunal is one which I recognise. It is not any difficulty that has been alluded to so far. The real difficulty is that Southern Ireland does not want any English tribunal, and it will be impossible to compound a tribunal of persons qualified to decide a legal question in England that would not, I have no doubt, be unsatisfactory, at any rate to the more ardent spirits in Southern Ireland. But that is not a difficulty that arises now for the first time, and it is not a difficulty which makes it wise or prudent to refuse to have any tribunal of appeal, if a tribunal of appeal is necessary.
When the Act of 1920 was passed the state of Ireland had been the subject of controversy long enough, and the 721 opinions of those who at that time were interested in the matter were no secret. Yet I find in Section 51 of the Act of 1920 that it was expressly provided that if it appealed to the Lord Lieutenant or Secretary of State expedient in the public interest that steps should be taken for the speedy determination of questions as to the powers of the Parliaments then created, they should be represented to His Majesty in Council, and thereupon, if His Majesty so directed, such questions should be referred to, heard and determined by the Judicial Committee of the Privy Council. Although you may say that matters are rather more acute now, still at that moment, in working out that clause (which remains the law of the land) controversial questions from Ireland were to be referred to the Judicial Committee of the Privy Council, and a few months after this Act received the Royal Assent, which it did, I think, on December 3, 1920, there was added to the Judicial Committee of the Privy Council my noble and learned friend, Lord Carson. If the difficulty be such as was represented last night the difficulty was one which was faced in the early part of 1921.
I do not dispute for a moment that such a tribunal would not be popular, but I venture to assert that if a tribunal of that kind is necessary the Judicial Committee is the right tribunal, and for this very reason. When the Irish Free State receives its Constitution it will receive its Constitution upon the Canadian model. It is bound by the type of the Canadian model, and it may not adopt a Constitution that does not conform to that model. One essential feature of the Canadian model is that the Judicial Committee of the Privy Council, advising His Majesty in Council, is the constitutional tribunal to which there will come from the Dominion in question, as from all the other Dominions, such appeals as His Majesty may be pleased to allow, unless they have been taken away by an Act of the Imperial Parliament.
Is it necessary to have a tribunal of this sort? It is said the clause needs no alteration, and that it is as plain as it can be on its face. May I ask attention to two or three questions as showing, from my point of view, that it is by no means clear, and by no means complete. The Boundary Commission is to consist of three persons. Is the Commission competent to function if there are only two persons? Supposing 722 one of the parties concerned does not appoint any one at all, are the other two competent to be the Commission which, it is said, is to determine the boundary, or would the boundary determined by two not be determined by such Commission? Again, is the decision to be unanimous? Is the decision to be two against one? Is the decision to be that of one acting as Chairman or as umpire? In the not at all impossible event of one party claiming one line and another party claiming another line, and the Chairman drawing the line somewhere between the two, who is to decide as to whose line is to become the determined line? And by what processes is the Commission to inform itself of the wishes of the inhabitants of the border districts?
Is it to be left to them? The answer of the Government, I suppose, is that it is; that the Commission must interpret the Article for themselves. But you get the same difficulty over again. Suppose they do interpret the Article and all three take different views—and three different views would be nothing excessive—which of the three views is to prevail, and which of the three is to be the interpretation of the Article? In every arbitration there is, by Statute, power to state a case for the High Court, so that on any question which is puzzling there may be recourse to the Courts. In every case in which a Commission is established their terms of reference and powers are defined not by themselves but by the body which appoints them. There is nothing of that here. The clause contains no power to take advice from any one; no provision as to terms of reference, and it does not say, there are to be terms of reference, who is to lay them down.
In these circumstances I submit that if this Article is to work and not to be a failure, if the Article is to be carried out, someone should give an answer to these questions. Is it breaking the Treaty, or completing the Treaty, to provide by the only power there is—namely, by the Legislature of this country—for these indispensable matters, without which the Article becomes unworkable? If I thought that the effect of this Amendment would be really to violate the Treaty I should not support it. But I conceive that it is a sound statement to make that you are not violating a Treaty which says such and such things are to be done, but does not say how they are to be done. You are 723 rather implementing it by providing the necessary machinery for enabling those things to be done which it is the intention of the Article should be done. I submit, therefore, that far from this being a violation of the Treaty it is really complementary to it, and is just as necessary a provision to give it effect as the passing of this Bill is necessary to give it the force of law.
§ VISCOUNT HALDANE
I did not contemplate saying anything on this Amendment, but the noble and learned Lord who has just sat down has said more than one thing which has astounded me, and I must ask your Lordships to listen to me for a moment. First of all, dealing with the point to which he last referred, the Article in the Treaty. It may be, as he says, that the matters referred under that Article should be left to the decision of three people, who, it is contemplated, would be found acting unanimously. That may be a sanguine expectation. But whether it is or not that is the final decision prescribed by the Treaty. It may be that it has to be read that a majority can determine the matter, or it may be that they must all agree. But whatever it is, that is the form of procedure which was agreed to, and to propose that this is to be reviewed not only on questions of law but on questions of fact is surely very astonishing.
The noble and learned Lord put the case of a difference which might arise on a question of fact, and in all probability that is far more likely to arise than on any question of law. It is proposed that it should come to the Privy Council—not an appeal from a technical Court of Law but from a special tribunal set up by the Treaty. Lord Sumner said we should be following the analogy of the Constitution of Canada. I know something about the Constitution of Canada, and I differ from him. In Canada one of the things that was done was to set up a tribunal, somewhat of this kind, for the trial of Election Petitions. They brought an appeal to the Privy Council and said that the King, acting in Council, has jurisdiction to dispense justice to all his subjects. It was brought before the most eminent lawyers of the day, and the decision was clear and sharp. They said that this was not an ordinary tribunal of justice; the prerogative of the King to review justice does not extend to a body of this kind and they scouted the idea that there should be an appeal to the Privy Council, as a right, or 724 at all, from a body which was not a Court of Law in a technical sense, but a special tribunal set up by the Canadian Parliament.
But Lord Sumner put another matter before your Lordships. It is quite true that if you go back to the days of Lord Ellenborough you will find that he sat in the Cabinet, and if the noble and learned Lord had extended his researches he would have found that there was sharp public criticism of that fact; so sharp that no Lord Chief Justice will ever sit in the Cabinet again. Lord Denman's is another case. It is true that in his days there was much greater latitude. Members of your Lordships' House who were laymen could take part in decisions, until there came a sharp conflict and the Resolution in the great Irish case in which it was laid down that your Lordships who were laymen should not take part in judicial matters. There is no restriction upon any of your Lordships giving a vote on an appeal in the House of Lords. You have a perfect right to do it; you are perfectly free. There are statutory restrictions, but they do not touch that.
What has grown up has been one of those subtle conventions of law and custom of Parliament which has become binding only in response to public opinion and in response to the sense of the House. I am within your Lordships' recollection when I speak of the delicacy which has been shown in this matter by well-known Law Lords who have sat in this House. Lord Macnaghten, it is said, took part in debates, and I dare say that Lord Watson did also. But these eminent men made it perfectly clear that although they claimed the right as Peers they never spoke on great partisan questions. They felt that if they did it would be disastrous to the prestige and confidence enjoyed by your Lordships' House as a judicial body. It is difficult to combine the functions of a Judge and a politician.
§ VISCOUNT HALDANE
I am coining to that. I did it when I was Secretary of State for War by the desire of the House of Commons. I was then in a perfectly independent position; as free as my noble friend, Lord Phillimore. I was not in receipt of any salary as a Minister. But really the rule that has been introduced as a convention of the Constitution, which I trust the noble Marquess will never try to 725 destroy, is that the six Judges, who have been introduced into your Lordships' House as Judges, made Peers in order to enable them to be judges, should be most sparing in the exercise of their freedom as legislators. No hard and fast rule can be laid down. We should all be sorry to lose the contributions of the Law Lords on questions of law ant on such questions as they can take part in without destroying their position and reputation with the public as Judges.
I have in my memory one great case in which this House slightly departed from its usual care and gave a judgment which was the cause of an immense popular outcry, followed by legislation practically reversing the decision. These things show how careful it is necessary to be. It is true that anybody who becomes a Peer of this House becomes a Peer possessing all the rights of a Peer. It is equally true that there are conventions of the Constitution and constitutional practices which impose restraints on individual liberties and freedom to Which it is well that noble Lords should pay attention. If they do not pay attention to them, the consequences are disastrous. I know that normally my noble and learned friends very well realise that, and I bring the point up now only because in the speech of the noble and learned Lord who has just sat down I noticed the proposition that the Law Lords, who are brought here, and brought here primarily, to be Judges and not to take part in Party debate, are to be as free as anybody else to take part in them, are to be put under no restraint.
Lord Chancellors and ex-Lord Chancellors are, of course, in a different position. The Lord Chancellor is a member of the Government, and ex-Lord Chancellors, by the terms of their patents, are put expressly in that position of freedom. I do not say that it is an easy thing to explain, any more than many parts of our unwritten Constitution are easy to explain. But when you get Judges appointed as Judges, a very different set of considerations comes into play and constitutional principles become very important. What, otherwise, would be the result? Whenever a new Law Lord is to be appointed, instead of getting the man at the top of the profession of the law, and therefore the best man to get in the public interest, the Government will be compelled to ask: "Is this man our supporter, or is he going to be our antagonist?" We have been 726 free from that in the past; we have been free from it in my time and in the time of the present Government; and I trust we shall continue to be free from it. But we can only be free if we observe this tradition, which has grown up, indeed, only within recent years, because it is only recently that the system of appointing paid Judges in your Lordships' House has been adopted.
§ LORD CARSON
My Lords, I have not risen to continue the controversy that has been indulged in by the noble and learned Viscount who has just addressed us. After all, I am satisfied to take the same line of conduct as did Lord Cairns, Lord Macnaghten and Lord Robertson, and if the noble Viscount thinks that I have a lower standard of honour than he in trying cases I when he goes in from his political meetings, I must leave it for the House to judge whether I am competent or not to hold my present office. I would only say that if, as the Lord Chancellor knows, I had thought for one moment that I should be restricted in any way in the course I should take on this Bill, having regard to the obligations into which I have solemnly entered in relation to Ulster, I would not for one moment have continued to hold my present office, whatever might be the sacrifice I should have to make.
§ THE LORD CHANCELLOR (VISCOUNT BIRKENHEAD)
I think it is right that I should say, in answer to what has fallen from the noble and learned Lord, that he did me the honour of consulting me upon Iris present position. I took the view then which I stated last night in the debate in this House, that the position of the noble and learned Lord was, for a variety of reasons, a singular and individual one. I took the view that for many years he had played a part in this controversy which placed him in a position which was, and which would be recognised by every member of your Lordships' House to be, a distinct one; and in giving that advice to the noble and learned Lord when he consulted me I deeply considered the general situation. I have nothing to withdraw from the other observations which I made last night. It is due, however, to the noble and learned Lord that it should be made most plain that he indicated to me that, if a different view were taken by those in authority, he would at once reclaim his freedom and address your Lordships as an absolutely independent Peer.
§ LORD CARSON
I am obliged to the Lord Chancellor for making that statement. I was anxious, of course, to make the position clear. As regards the Amendment which I moved, I desire to state the course which I propose to ask your Lordships to take. I consider this an extremely moderate Amendment; in fact, it is as moderate as could be suggested if there were to be any Amendment at all. I am not at all impressed, if I may say so, by any of the reasons that were put forward against it, nor do I think they were real reasons. The noble Viscount who has just addressed us talked about Canada, and about some case that came from Canada. I wish he had addressed a little more attention to my argument that, as regards Canada and the other self-governing Colonies, there is an Act of this Imperial Parliament providing that you cannot touch a single boundary without their consent. That is exactly what you refused to Northern Ireland. But this Amendment and the next Amendment equally raise the question whether your Lordships are going to allow Ulster to be driven to civil war—because that is what it really comes to—or whether you are going to leave matters as they are.
We now have it clearly laid down that the Government have no power to accept Amendments without the concurrence of their masters in Ireland, Mr. Collins and Mr. Griffith, with whom they are apparently in communication about these Amendments. We also must deduce from their conduct in relation to this very trifling Amendment—though it effects some improvement—that they have no desire to press such an Amendment, or anything that would be fair to Ulster. They also give the go-by to another fact which I commend to the noble and learned Lord, Lord Phillimore, who talked of two parties to a bargain, because his judicial mind will at once grasp the fact that you are setting up the arbitration as regards a third party who has never been heard and who has never had an opportunity of saying one word either as to the Constitution or in relation to any of these proceedings that are to be taken. Lastly, it has been demonstrably shown by the noble and learned Lord, Lord Sumner, that the terms of the so-called Treaty, or bargain, are such that they are really and absolutely unworkable. They are open to so many constructions and they have so little machinery, or power of machinery, for 728 setting up any proper tribunal that I do not think I should be justified in asking the House to have repeated Divisions upon the subject.
I propose, therefore, if your Lordships will allow me, to withdraw this Amendment and to ask your Lordships to take the Division on the Amendment which will be proposed immediately this discussion is over by my noble friend, the Marquess of Londonderry. I do desire, however, to say once more that I wish that, instead of going through this discussion, we were putting our minds into a frame to deal with realities. I would wish that instead of going through a performance the Government were really telling us the truth of what was happening on the borders, and how they were dealing with it. It is a terrible state of affairs. The war has begun. Whether you care about it or do not, that is a fact. The day before yesterday, in one small district in one of the border counties of Ulster, £40,000 worth of property, including a mill which employed a large number of hands, was wantonly destroyed, in order to try to terrorise the Ulster people into giving up their territory. In addition, two police barracks were stormed and the police beaten out, and all the armaments taken away; and many other raids, more or less serious, took place. To my mind, the question of how that is to be dealt with is much more important than anything connected with this Amendment, but I fear the Government have made up their minds that the thing is to go on to the bitter end, and that nothing is to be done. Well, they must have the responsibility of it, and for the moment all I can ask is that your Lordships will allow me to withdraw the Amendment.
§ THE LORD CHANCELLOR
Before your Lordships give or withhold leave I must ask permission to say a word upon the very serious matter, unrelated to the Amendment, which has just been dealt with by the noble and learned Lord. I agree with him that a grave state of affairs exists on the frontier. I am of opinion that the one menace at this moment to the conclusion of this Agreement, and to its translation into successful and effective practice, is to be found in the state of affairs that exists at the frontier. Certainly we, as a Government, have not been lacking in proper exertions to protect the interests of Ulster. There are at this moment in Ulster thirteen battalions, not indeed at 729 full strength, of British troops who are there for that purpose, and there are some 15,000 men in the various police forces in Ulster, who have been equipped with rifles by the British Government in order that they may be effective for protective purposes should intervention become necessary, and we are constantly giving pecuniary subventions and assistance to Ulster.
§ THE LORD CHANCELLOR
And to the South too. We are impartial in this matter. Does not the noble Marquess understand that?
§ THE LORD CHANCELLOR
I did not say so because the case was not made against me by representatives of Southern Ireland. If such a case had been made against me, I would have stated what we were doing for Southern Ireland, although it does not amount to one-tenth part of what we are doing for Northern Ireland. I can only express the profound hope that the Premier of Northern Ireland will consent to do what he has been asked to do, and that is to meet the representatives of Southern Ireland, in order that they may arrive at an agreement as to the best steps that may be taken, jointly, for the pacification of this dangerous area. It is along those lines, and those lines only, that this grave and dangerous plague-spot can be purged and cured, and I am absolutely certain that if the Prime Minister of Northern Ireland will consent to meet the representatives of the South, and discuss with them how the dangerous situation can be regularised, it can be done.
Failing such an agreement, it is right that I should indicate the plans now under consideration by the Government. There is a debatable land. There are many troops there. It may be possible—I do not know—to make a zone between the two competing forces, which may be occupied by Imperial troops until such time as a settlement can be attained. I do not know whether it is practicable or not. It is being considered. But I am certain of this, that the best hope would be if that reasonable and experienced man, the Prime Minister of Northern Ireland, 730 would consent to meet the representatives of Southern Ireland for their joint and mutual interest, because it is no more the interest of Southern Ireland, which hopes to win its Election and to carry this matter through—it is no more in their interest to provoke a conflagration than it is in the interests of the North. It is only in the interests of extreme factions on both sides, and it is to the co-operation of moderate men on both sides that we must look for the defeat of the extremists on both sides.
§ THE MARQUESS OF LONDONDERRY
I cannot allow the remarks of the noble and learned Viscount to pass without some reply from myself. I fully appreciate the very grave manner in which he mentioned the situation on the boundary at the present moment, and it is not my habit on these occasions to recriminate, or to say what I feel, as to the reason why we are going through these difficulties at the present moment. The point is that we are faced with a situation with which we have to deal, and I sincerely hope that it will ameliorate at no very distant date. I have before me a copy of the telegram which I asked for and received from the Home Office in Belfast. I will not read it, but it contains details of the outrages occurring on the boundary, of which your Lordships may not be fully aware. I have on many occasions referred to the entirely different atmosphere which prevails in this country from that which prevails in Ireland, and I have endeavoured to stimulate your Lordships into realising what we are going through in Ireland while you are practically playing with the situation here.
There is one suggestion to which I should like to refer, and which was made by the Lord Chancellor, and that is the desirability of a meeting between Sir James Craig and the representatives of Southern Ireland. What is our experience of those meetings? You will remember with what hope you read in the papers that a meeting had occurred between Sir James Craig and Mr. Michael Collins, and I have no doubt that many of you thought that the difficulties of the situation were removed. What is the result? We have every one of us been able to see that there was no agreement reached, although we were led to believe that there was, because Mr. Michael Collins in a very short time gave out a totally different impression of the meeting, and gave out to the public 731 that his idea of the boundary was that so many counties should be annexed to Southern Ireland. It is impossible for Sir James Craig to go into a meeting with a man who does not know his own mind from one day to another.
I am ready to recognise the difficulties in which Mr. Collins is placed, but I do not believe that any good can come from a meeting in which there is no semblance of stability on the part of Mr. Michael Collins. I do not know whether the Lord Chancellor is in a position to say that Mr. Michael Collins, to use a colloquial expression, is capable of "delivering the goods." Until he is in a position to give us that assurance, that Mr. Collins is in a position to carry into effect what he says, no good can possibly come from a meeting of that kind.
§ Amendment, by leave, withdrawn.
THE MARQUESS OF LONDONDERRY moved, at the end of subsection (1), to insert the following proviso:—
Provided that if an Address is presented to His Majesty under Article 12 of the said Agreement there shall be written terms of reference to the Commission for determining the boundaries of Northern Ireland, which shall be submitted for approval to both Houses of Parliament.
The noble Marquess said: I have made an alteration in the form of the Amendment as it appeared on the Paper. It is an Amendment which I sincerely hope your Lordships will be able to accept. I am fully aware of the difficulties which attend this so-called Treaty and of the desire of His Majesty's Government that no alteration of any material description should be made in it. But this boundary question is by far the most serious question at the moment, and anything that can be done by way of a definition or of a clear explanation in the form of an Amendment may do something to mitigate the situation which, we realise, exists at the present moment. It is a matter of deep regret to me that this question of the boundary was ever raised. I wish it had been possible for the Government to realise that the 1920 Act was an Act which it was their duty to conserve, and on all precedents to realise that when a Parliament is set up within the British Dominions that Parliament is consecrated unless by its own desire it wishes the provisions to be altered.
§ Yesterday's debate on a previous Amendment moved by my noble and learned friend was a very interesting 732 debate in more ways than one. The Lord Chancellor gave us a piece of information which I am sure will do a certain amount of good. It is true that he may say that we should have realised it, and should have recognised that such was the position of the Government, and such were their intentions. But I do not think that that position was realised, nor has any one been really convinced of what the intentions of the Government were on this point. I refer to the statement of the Lord Chancellor that a Boundary Commission meant a Boundary Commission, and that it was really a stretch of the imagination to suggest that the alteration of the boundary line by the inclusion of counties in the South of Ireland was contemplated.
§ The noble Viscount who moved the Second Reading of this Bill said that it was practically impossible to amend, or alter, or modify, or even to explain the measure. That seemed to me a strange statement, coming from a member of a responsible Government, and I regretted what he said. I went even further, and I was inclined to question what he said on that point. But the Amendment which was moved yesterday by my noble friend who sits below the gangway (Lord Sumner) served as a contradiction of what the noble Viscount told us. A letter was sent by Mr. Griffith, the terms of which clearly explained that he was quite willing to consent to an alteration, and the most amazing situation was set up that, whereas we in the North of Ireland held the opinion that it would be desirable that the "Ulster month" should be brought about as soon as possible, and Mr. Griffith in his letter said very clearly that it was immaterial to him whether the "Ulster month" followed the passing of this Bill, or began later on the passing of another Bill, yet, notwithstanding all that, the Government go contrary to the wishes of the people of Ulster, which I think they might have respected.
§ This proves clearly that the Government have been wrong. I was certainly under the impression, from the words used by the noble Viscount, that there was some particular necessity that there should be no amendment, or alteration, or modification, or even explanation, for some reason which he did not define. But I have no doubt your Lordships guessed the reason, namely, that the Government were—I should not like to say frightened, but were anxious 733 lest any action of theirs should irritate Mr. Collins and Mr. Griffith, They need not adopt that timorous attitude. I believe Mr. Collins and Mr. Griffith desire to be very reasonable, and I am sure that they would take no exception to the noble Viscount's action, if he should, perhaps not amend, perhaps not modify or alter, but if he should explain what the British Government mean by the ambiguous provisions contained in this Bill.
§ I do not think that your Lordships will say that the Amendment that I move is in any sense a wrecking Amendment. It is a request for a definition, a request that the provisions of the Bill should be made clearer than they are at present. I do not believe that anyone will accuse me of endeavouring to wreck this Bill, but, if anyone should have an idea that I have any such intention, I should like to contradict the suggestion. I fully realise that we are in a situation in which I hope this country and this Empire will never be again, and that it is necessary for us to seek for a palliative, for something which can, by united efforts, constitute a platform from which law and order can be once more established in Ireland. That is why I am endeavouring to assist your Lordships to go forward in the direction which you have chosen—not because I believed at the outset that it would be the best direction in which to move, but because I believe we have no alternative now. That is the reason why I say that my desire now is to fashion this measure, suck as it is, into so clear and easily understood a document that there can be no misunderstanding afterwards which would bring about difficulties and disturbance of which it is impossible for us to prophesy at this moment the outcome.
§ There are really two different points of view. There is the British point of view in regard to this Treaty, into which I should not think of going at length to-day; and there is also the point of view of the Government of Northern Ireland, of which I have the honour to be a member. Your Lordships will remember that the attitude of Northern Ireland has been consistent from the beginning of the negotiations between the British Government and Sinn Fein. We have affirmed on more than one occasion that we were willing that the British Government should make what terms they wished with Sinn Fein, so long as the position of Northern Ireland, defined by the Act of 1920, was left intact. We 734 have always said that Northern Ireland would maintain a helpful and friendly attitude if there were no invasion of her prerogatives, already guaranteed by the British Government, and that is the reason why I am particularly anxious that you should go as far as you can in this measure in defining the terms of reference which are to be given to the Boundary Commission you are proposing to set up at such time as Ulster decides not to come under the Parliament of Southern Ireland.
I should not think at this moment of going through the negotiations which have gone on all this time, nor of making any reference to the meeting between Sir James Craig and Mr. Michael Collins, because I have already said a few words on that subject to your Lordships. I would only say in that connection that those conferences subsequently revealed that there was a fundamental disagreement between Sir James Craig's view of the opinion of the British Government and the view held by Mr. Michael Collins. The British Government have refused to recognise the urgency of defining what is meant by "the definition of the boundary," and I would venture to quote to your Lordships words which were tittered by the Prime Minister in the House of Commons on February 7 of this year—
All I would say is, let us have more patience and proceed more deliberately. The question of boundaries is not to be settled yet. The first question to be settled is the setting up of the Provisional Government. That does not involve the question of boundaries. The boundary question would only come after the Constitution has been framed, and has been incorporated in an Act of Parliament. … When there is so much to quarrel about … why should you pick a quarrel about something which does net arise?
That declaration on the part of the Prime Minister that the Boundary Question is a quarrel which does not arise at present, shows plainly that he does not understand the Irish situation.
§ In reality, as things are to-day, the only question arising between Northern and Southern Ireland is this all-important one of boundaries. The Free State, or rather the Provisional Government, as well as the out-and-out Republicans under Mr. de Valera, are seeking constantly to extend their sway over Ireland. All these encroachments and inroads which we see at the present moment are for the purpose of intimidating the North of Ireland. There is no question about it. The success of the Southern Government, if I may use 735 the expression, has been secured by intimidation. They have received all that they have got now by using the method of intimidation, which has been apparent and obvious to all. Having accomplished that, they can then establish thereby any form of government they will—complete severance from Great Britain and the Empire, or whatever they like.
§ What I desire to direct the attention of your Lordships to is the fact that these encroachments are merely for the purpose of intimidating the North of Ireland. The immediate answer to those words of the Prime Minister was given the very next day, when the Northern boundaries were invaded and peaceful inhabitants of the North were kidnapped and held prisoner by forces from over the border. The massacre at Clones followed on February 11. I would suggest that the British Government have shown, on more occasions than one, that they do not, and will not, realise that a great deal of the importance of this question centres round the definition of the boundary. That is why I ask your Lordships to incorporate in the Bill the words I have put before you. I do not think I need detain your Lordships any longer. I have expressed to your Lordships all the matters about which I feel most strongly, and I earnestly hope that the noble Viscount will see his way to include this Amendment in the Bill. I beg to move.
Page 1, line 9, at end insert the said proviso.—(The Marquess of Londonderry.)
§ THE SECRETARY OF STATE FOR INDIA (VISCOUNT PEEL)
I did not know until this moment that the Amendment was to be presented in this altered form. I understood that the noble Marquess was really addressing himself to the Amendment on the Paper.
§ VISCOUNT PEEL
I did not say that there was any difference; I was only saying that there was no notice of it until this moment.
§ VISCOUNT PEEL
In moving his Amendment the noble Marquess made some com- 736 plaint about some words I had used as to alterations, changes, modifications, explanations and so on in the terms of the Agreement. It has been laid down, I think, in another place and here, that the Government considers itself bound by those Articles of Agreement, and those Articles of Agreement have been sanctioned and given assent to by large majorities in both Houses of Parliament. Further than that, the noble Marquess brought up against me an Amendment, or suggested Amendment, that I was prepared to move yesterday, and he said: "In that case you were prepared anyhow to make an explanation of one of the terms in the Agreement." That particular suggestion rested, of course, on a totally different basis from that stated by the noble Marquess, because that one was agreed. It was agreed between the two sides to the Agreement—between those who signed the Agreement on behalf of His Majesty's Government and those who signed it on behalf of the Provisional Government of Southern Ireland. In that case obviously there would be less objection to making such an Amendment, not in the Treaty but in the Bill, as made that point clear.
Much criticism was passed in previous discussions upon that point in the Agreement. It was suggested that there was a great deal of ambiguity; that Ulster would be placed in a very difficult and awkward position; that it was uncertain whether or not the "Ulster month" began to run from the date when this Bill became an Act or from the date when the later Bill becomes an Act, and that they would be compelled, therefore, to do that which I understood at the time they did not want to do—I was wrong, I suppose, in that—namely, to move an Address within a month of the passing of this Bill into an Act saying that they contracted out of the Ireland Parliament. I certainly suggested that in good faith hoping that it would meet the ambiguity. But I was told by the noble and learned Lord, Lord Carson, that it was an insult to Ulster.
§ VISCOUNT PEEL
It certainly was not intended in any sense as an insult to Ulster; it was intended to remove an ambiguity, and I hoped that I was trying to do so. The noble Marquess also said that the Government voted against the 737 Amendment moved by the noble and learned Lord, Lord Sumner. On that occasion I also pointed out that his Amendment, besides making the rest of the Treaty very difficult to construe and raising further difficulties, would also have no effect whatever as regards the Boundary Commission; because the Boundary Commission could not be set up until the Free State was set up. Therefore, from that point of view, the Amendment was entirely and wholly nugatory.
The noble Marquess has now moved another Amendment which proposes that the terms of reference to the Boundary Commission shall be written down and that those terms shall be submitted, I understand, to both Houses of Parliament before they become effective. The contention of the Government is that the terms of reference are already set out in the Treaty, and, following from other statements, it will be quite obvious to your Lordships that any variation of the terms of the Treaty would be a breach of the Treaty, and would raise all those difficulties and troubles of which we have already spoken, and might, perhaps, break up the whole arrangement. Any variation of the terms of the Treaty in that way would, of course, not be possible. If, then, the change in the terms of reference already set out would bring about the loss of the Treaty, it would surely be rather a nugatory proposal to place this before both Houses of Parliament in order that they might approve of it.
It would really be placing before your Lordships' House and another place the Treaty over again for fresh discussion on practically the same point. It would be removing, or keeping back till later for further discussion before both Houses of Parliament, this particular provision of the Treaty; it would render uncertain the acceptance of the Treaty; because of that particular uncertainty, it would make the situation far more dangerous, and would suggest that it might be possible to undo the assent already solemnly given to this Treaty by both Houses of Parliament. It would mean delay, cause disturbance, and raise doubts, and, in effect, would not have any result, provided the Treaty was adhered to. I hope, therefore, your Lordships will not agree to it. It is in the nature of a dilatory Motion, asking your Lordships to try the whole question over again. I must, therefore, oppose it on behalf of the Government.
THE EARL OF DUNRAVEN
Will your Lordships allow me a few moments in which to state my own position regarding most of these Amendments? As has been mentioned by the noble Viscount, in the Articles of Agreement what is practically an instruction is laid down to the Commission to inquire into the boundary, or to make possible alterations in the boundary in accordance with the wishes of the inhabitants, "so far as may be compatible with economic and geographic conditions." That surely amounts, practically, to a reference, and if this Amendment is agreed to it means an amendment of one of the Articles of the Agreement. I sincerely trust, therefore, that your Lordships will not accept the Amendment.
I would like, if I may, to say a word or two as to the difficulties in which I find myself. I do not pretend—I do not suppose any of your Lordships will pretend—that this Bill is a perfect instrument. It has many anomalies, and a good deal of confusion exists concerning its meanings, but, so far as I have heard the debate last night and to-day, and so far as my non-legal mind enables me to form an opinion upon the Amendments that are to be moved, and the efforts intended to remove ambiguities, which certainly exist, they have the result only of producing other ambiguities very often of a worse character. Another difficulty in which I find myself is that it is so difficult as to be almost impossible to accept Amendments in this Bill which do not have the effect, direct or indirect, or which cannot be construed in Ireland as having the effect, indirectly, of altering the Articles of Agreement. Your Lordships know very well that the one argument that Mr. de Valera has throughout used, and used with great effect, is that by some means or other steps will be taken to invalidate the Articles of Agreement; that Parliament does not intend really and honestly to deliver the goods; and that somehow, by some means or other, the Irish people, if they accept the Treaty, will not be given by it the autonomy and independence which it pretends to give them.
That is the one argument that Mr. de Valera uses with great effect, and I implore your Lordships to consider very carefully whether any Amendment to this Bill is not calculated to assist him, and to enable him to point to something being done now in this House which may invalidate the terms of the Treaty. I am fearful of any- 739 thing being done in this House which will have that result, and of anything being Said in this House that will assist him. I confess that I heard with dismay the words which fell from the noble and learned Lord, Lord Carson, on the Second Reading of the Bill, when, in effect, he told your Lordships that the foreign military commitments of this country were so great, and this country had become so feeble, that if a Republic was established in Ireland it would not be resisted by force. That is exactly what Mr. de Valera said.
THE EARL OF DUNRAVEN
If Mr. de Valera is to be backed by the great experience of my noble and learned friend—
§ LORD CARSON
Perhaps the noble Earl will allow me to explain. What I was doing was to quote the Lord Chancellor, who said the reason they had to come away and submit to this Treaty was that it would have taken 100,000 men, and a great deal of money which they could not afford, to put down crime in Ireland. What I was arguing was that if they were unable to do that much now, after they had evacuated Ireland they would not have any power to go back and re-conquer it.
THE EARL OF DUNRAVEN
The noble and learned Lord is evidently speaking in reference to something which fell from the noble and learned Lord Chancellor. My only point is that the opinion expressed in this House by the noble and learned Lord, Lord Carson, backs up Mr. de Valera's opinion. I am certain the noble and learned Lord has no desire to wreck this Treaty indirectly by seeing a Republic established in Ireland, but that is unquestionably the effect which the words that fell from the noble and learned Lord will have upon Ireland.
The condition of Ireland is quite unparalleled. I do not think any community of people has ever been placed in such a position—a complete change of Government contemplated, and the country absolutely denuded of military and police during the interval which must elapse between the exit of one form of Government and the entry and the full establishment of the other. I do not know why troops have been withdrawn from Ireland, but I think I can make a pretty good guess. I assume that they were withdrawn because in the 740 opinion of the Irish Plenipotentiaries—the present Provisional Government—the people of Ireland would never believe in the bona fides of the Agreement as long as Ireland was occupied by troops. I think they were withdrawn in deference to the profound suspicion entertained not only by their leaders but by the people generally in the South and West that by some means or other, by trickery of some sort, they would be defrauded of the rights and privileges given them in the Articles of Agreement.
The best and most efficacious way of putting an end to the unparalleled and horrible condition of things in Ireland is to set up a Provisional Government in Ireland with some authority and power. We speak about a Provisional Government. I do not think the Government, such as it is in Ireland, can be rightly described as a Provisional Government. It is a sort of Provisional Provisional Government. It has no powers of any sort or kind, and, surely, the immediate object we should have in view is to set up a Provisional Government with power and authority in order that they may do their best to restore law and order and put an end to a condition of things which is a disgrace to civilisation. I do not know whether they will be able to do this. It is a difficult matter. I am sure they are doing their best. But what can they do? They really have no power or authority, and to my mind the best means of restoring order, and ending the atrocious state of things, is by setting up this Provisional Government and giving them full power at the earliest possible moment.
The one thing which stands between us in Ireland and absolute destruction is that the people at an Election should accept the terms of the Treaty. For that reason I earnestly hope your Lordships will be careful that nothing is done by way of Amendment to this Bill in this House than can possibly encourage Mr. de Valera and his fanatical Republicans to tell the people that he has always been right, and that some means or other will be adopted to cheat them out of the independence granted in the terms of the Agreement. If the Irish Free State is established and functions well, then this question is practically settled. If the Irish people refuse to accept the terms of the Agreement the responsibility rests upon them. But if anything is done in Parliament, in this House, that could justify the people of 741 Ireland saving, in agreement with Mr. de Valera, that they can never get assured independence except by setting up an independent Republic, then the responsibility rests upon us, and upon Parliament; and it is a responsibility which I do not like to contemplate.
I earnestly hope that this Bill will go through without any serious alterations. It would give to the Provisional Government power which they have not got at present; they will be able to assert themselves. I know they are moderate men. I believe they would be able to come to some agreement to put an end to the warfare which is taking place on the boundary of the North and South. I will go further and say that I hope they would be able to come to some agreement as to the vexed Boundary Commission. My knowledge of Ulster is not so great as that of Lord Carson, or Lord Londonderry, but I am not entirely ignorant of the people in Ulster, and my impression is that in Ulster there is a large body of moderate opinion, which I hope will have an opportunity of asserting itself.
§ THE MARQUESS OF SALISBURY
Like so many other speeches which have been delivered in the course of the debate, the speech of the noble Earl, Lord Dunraven, is another fresh testimony to the hopeless condition, the misery, and chaos, to which the policy of the Government has reduced Ireland. I do not quite understand the general object of the noble Earl's observations. No one wants to resist giving the Provisional Government authority. That is what this Bill is going to do; and your Lordships have been assured from all quarters that there is no intention whatever of wrecking the Bill. The Bill is going through, the noble Earl need not be afraid. The Provisional Government, in a few days, will have all the power they can exercise. Our only doubt is whether they have any authority at all in Ireland, and whether they will be able to use the powers we are about to confer upon them. The noble Earl has urged us to give them authority; he may make his mind quite easy on that point.
But that is no reason why we should not urge the Government to remove yet one more cause of friction in Ireland—namely, the difficulties of the boundary between the North and the South and West. The noble Viscount, Lord Peel, described this as a 742 dilatory Amendment. I regret that phrase. What do we intend to delay? We are not going to delay the passage of the Bill; we are not going to delay anything. All we are doing is to suggest to the Government some way out of the difficulty; and the noble Viscount calls it a dilatory Amendment! Far from that being the case, I would point out that when the noble and learned Lord was appealed to he withdrew his Amendment. There was no desire to put any difficulties in the way.
May I repeat that where there is proved ambiguity in the Treaty and in the Bill we are doing nothing but a public service in pointing out that ambiguity and in doing our best to persuade the Government to clear it up. There is ambiguity here. It cannot be denied. It is true that the Lord Chancellor said there ought to be no ambiguity; but there is, because Mr. Collins, one of the parties to the Treaty, one of the negotiators, said that the terms of reference, such as they are, which are contained in the Treaty, would render it possible for the South of Ireland to take whole counties from the North. That is what he said; and he was one of the parties to the Treaty. He is not a sort of vague commentator; he is one of the men who signed it. And he says that when he signed it that is what it meant. The Lord Chancellor says there is no ambiguity. Of course, there is. The two parties to the Treaty, represented by the Lord Chancellor on the one hand and by Mr. Collins on the other, who for this purpose may be looked upon as equals, differ diametrically as to the interpretation of the vague terms of the Treaty.
We do not propose to alter the Treaty. We say we must clear it up. There is a difference of opinion between the contracting parties. They do not understand or look at the matter from the same point of view, and my noble friends behind me have therefore made certain proposals for clearing it up. I ventured to ask the Government last night, towards the close of our proceedings, whether they would not make some attempt to assist the House to arrive at a conclusion, and my noble friend, Lord Midleton, has repeated that request this afternoon. He said to the Government: "Will you not come forward and contribute something to the solution of this ambiguity?" I do not think I agree with all that my noble friend said, but at any rate I agree with that.
§ THE MARQUESS OF SALISBURY
Let the Government make a declaration. I will give way in a moment if they have a declaration to make that will assist the House, or if they have anything to say upon Lord Dufferin's Amendment. I do not mean a mere blank negative; I do not want to give way in order that they may say that they will not do anything. But if they have a positive contribution to make, let them say so. We are here to clear up these ambiguities, and while the Government are considering the matter, let me add that many of your Lordships heard the speech of the Lord Chancellor yesterday afternoon, when he said that it was not fair to one contracting party that the other contracting party should provide the Court of Appeal—he was speaking to my noble and learned friend's Amendment—from the awards which might be made by these arbitrators. What I do not think the Government ever realised is that what is asked for is not any impartiality as between Great Britain and Southern Ireland but as between Ulster and Great Britain.
I am compelled to say that Ulster no longer looks upon the British Government as friends. That is the point. And yet the British Government, by this Bill, proposes to appoint a supreme arbitrator. The Bill provides that without any intervention by Parliament the Chairman of the Commission and the reference to the Chairman are to be withheld from the Imperial Parliament and decided, in so far as they are decided, by His Majesty's Government. The result is that Ulster sees a party whom they do not believe to be friendly deciding their fate so far as this boundary is concerned. I am not saying that Ulster is right in looking upon His Majesty's Government as enemies, but the people of Ulster undoubtedly do so. They have lost confidence in that Government absolutely. They believe that His Majesty's Government are devoted to the interests of the other side and are really leagued with the parties in the South and West of Ireland. I have a better opinion of His Majesty's Government, but that is undoubtedly the view of a large section of opinion in Ulster.
How can you expect them to be content with this vague reference, which may mean 744 anything or nothing, which Mr. Collins considers to mean that he may have several counties torn from Ulster and joined to the South, and content that this vague reference should be determined by a Chairman who is not to be appointed by Parliament but by His Majesty's Government, whom they believe to be the allies of the South and West? You cannot expect them to be satisfied with that, and if you want to impress upon them the justice of the arrangement which you are now creating you must introduce some kind of modification.
My noble friend, Lord Londonderry, has suggested to your Lordships, in an admirable speech, that it should be done in the form of the separate reference to both Houses, so that we should have a check upon it, and Ulster would have the security of the assent of both Houses of the Imperial Parliament. That is one proposal. My noble friend, Lord Dufferin, has another proposal. He proposes that the name of the Chairman should come in the same way before both Houses of Parliament before the appointment becomes effective. That again would give confidence to Ulster. We ask the Government to help us. We do not bring any accusation against them, but we say that the sad and melancholy fact is that they have wholly lost the confidence of the North of Ireland. We ask them, therefore, whether they will not give their assent to some provision which will restore the confidence of the North of Ireland in the tribunal which has to decide this very difficult question of the frontier.
I hope I have stated the case clearly and I hope I have not stated it in any extreme language. I believe I have said nothing but that which is absolutely true, and I earnestly hope the Government will agree to it. The House itself does not propose for a moment to wreck the Treaty. All we propose, if your Lordships are willing to do so, is to put this Amendment or Lord Dufferin's Amendment into the Bill, in order that it may go to the other House for consideration by the Government in that House. That is the very modest and moderate demand which I humbly and most earnestly commend to His Majesty's Government.
§ LORD BUCKMASTER
This Amendment seems simple when you look at it, but it appears to have acted as a solvent upon the seals that bind nearly all the other Amendments upon the Paper, and 745 it has undoubtedly resulted in a discussion which has embraced two or three, if not the whole, of the other Amendments. That is not unnatural, because it affects this question of the ascertainment of the boundary, which is undoubtedly the real point upon which the minds of your Lordships are exercised in considering this Bill. I appreciate one objection which has been made by the noble Marquess who moves this Amendment and supported, I think, by the noble Marquess who has just sat down.
The terms of the Treaty with regard to this Commission are, I say, admittedly ambiguous; I am not sure that the noble and learned Viscount, the Lord Chancellor, accepts that, but I cannot think any reasonable man will say that they are not doubtful and that it is not very difficult indeed to know what the mean. In those circumstances it is not surprising that Ulster, who is at this moment in a state of irritation and not unjustifiable suspicion, should be uneasy lest when the Commission is set up the terms under which they are to act are so regulated that they embrace the wider and not the narrower interpretation. I should have thought, therefore, that the wiser plan would have been to provide that the terms of the Commission shall be in writing, and that they shall be those mentioned in Article 12, and no other. At this moment there is nothing to define what they are to be.
There is a further matter that is surely not free from observation. Uneasy and unwilling as I am to alter this Treaty by a single word—and I explained my reasons to your Lordships last night—as Article 12 stands it may be quite incapable of being worked, and there is no alternative provision in the Treaty. It is not unnatural. Things that are done under the strain and stress through which this Treaty was reached must necessarily be imperfect. Whey you find that if the South do not appoint, or if the North do not appoint, there is nothing to provide for what is to take place, and that there is nothing to provide for what is to happen if, when you have appointed the people, they differ, I think it is plain that something must be done in order to make clear what are to be the powers, constitution and method of business by which that Commission is to carry out what is one of the gravest and the most responsible duties with which any Commission has been charged within my memory in recent times.
746 It has been suggested by the noble Marquess who has just sat down—and there he suggested, I think, what we used to call in the Greek grammar a prolepsis—that the name of the Chairman should be inserted. I do not want to consider now any other Amendments, because this is so full of matters which need close and vigilant attention, but I should like to say, in conclusion, that although I have expressed a strong desire to see the Treaty passed without any Amendment whatever, it does appear to me that in the matters I have mentioned something must be done which must lead to alteration. Therefore I am not prepared at the present moment to view unfavourably the suggestion that we should know in advance who is to be the man who is to be the arbiter in this great dispute.
THE EARL OF DESART
I should like, in two or three words only, to reinforce the general appeal which was made by the noble Marquess, Lord Salisbury, to the Government. I was rather hoping that some answer would be given before I got up. Without arguing the thing at all, I find considerably more difficulty about the Amendment of Lord Londonderry than I do about the Amendment of Lord Dufferin, which I think is a proposal absolutely reasonable and justifiable. I am anxious to assist as far as I can in anything which might tend to remove the apprehensions of Ulster as regards the operations of this Boundary Commission, but I am equally anxious, as are many noble Lords who have spoken already, that nothing should be done by this House which can by any reasonable possibility be said to be an infraction of the Articles of the Agreement. I shall not develop this now, but I apprehend that if that occurred in the British Parliament it would be likely to remove that which, however slender, is the only hope that we in the South of Ireland can have.
Very shortly stated, the difficulty which I feel about Lord Londonderry's Amendment is that I think it would be said, if not in this House at any rate in Ireland, that the terms of reference are in the Article. A mere demand for the terms of reference, therefore, would only mean that there would be laid upon the Table a recital of the Article, which would afford no consolation whatever to Ulster, and it would be said that the only object it would have would be to add something or define something, and a definition might very well be urged to be an addition. I think 747 there is a risk of that, and although with all deference I think that a boundary is a boundary, and will be so interpreted, I know that Ulster thinks, and many men think, there is an ambiguity, and it is known that it has been contended by Mr. Collins that there is an ambiguity.
THE EARL OF DESART
Yes, and therefore I am afraid of this particular form of amendment. But I think that something should be done, and that the Government should make seine concession, to meet the reasonable wishes of Ulster. I feel that as strongly as any man can feel it. Knowing the difficulties of Ulster, I sympathise with her, and it is extremely disagreeable if I have to vote against noble Lords who represent Ulster, as I have, or may have, to vote in some Division. I think, however, that upon a reasonable demand of this kind we might hope for some concession from the Government, and I wish to say that while I find a good deal of difficulty in Lord Londonderry's Amendment, if the Government would concede, or Lord Londonderry would accept, Lord Dufferin's Amendment, I will support that, because it cannot be an infraction of the Treaty and contains a proposal which should be agreeable to both parties. Therefore, I ask the Government to give Lord Londonderry a chance of reconsidering his position, by saying now what their attitude will be on Lord Dufferin's Amendment.
§ LORD CARSON
I do not ask your Lordships to hear me at any length at this stage, because it is plain that we can frame no Amendment which the Government will accept, and the Government make no suggestions for solving the horrible situation that they have created on the border. Therefore, I think it would be well if we could take a Division on the subject, because none of us want to delay the Bill unreasonably, and it is no use putting forward arguments because they are never Answered or attempted to be answered. The noble Viscount, the Secretary of State for India, has all the appearance of answering, and is very courteous, but of course he says nothing. The noble and learned Lord, Lord Sumner, raises specific matters upon this question, which are unanswerable, but the Government do not try to 748 tell us what they propose might even be an answer, and nothing can be more disappointing, if you allow this to go on, than to find you have passed a clause which cannot be worked.
The noble and learned Lord put this question, and I was astonished that no one tried to answer it. He says there is to be a Commission of three persons, one to be appointed by the Government of the Irish Free State, one by the Government of Northern Ireland, and one by the Government here, and he asks: If the Prime Minister of Northern Ireland is speaking the truth when he says that unless it is made clear what are the conditions on which he is to go into this Boundary Com, mission he will not appoint any one on the Commission, what is to happen then? Surely you are not going to have the whole thing left futile? What will Mr. Collins, or whoever is governing you at that time, think? The noble and learned Lord put another question. He asked: Will the whole arbitration break down? Then he says it is provided that the Commission "shall determine in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions, the boundaries between Northern Ireland and the rest of Ireland." How are you to take the wish of the inhabitants? Supposing the Government of Northern Ireland say: "We will not allow you to take it; it is our district and you have no jurisdiction there"—you do not make any provision for that.
Then the noble and learned Lord puts another case. He says, supposing three Commissioners are appointed, and they go to draw a line, and the whole three of them differ, what is to happen then? Are we to have the three lines, or are they to toss up, or are they to fight it out? The whole thing is an absurdity. No lawyer could make head or tail of it, or administer it in any way, and when we propose Amendments of the most reasonable character, as I think this one is, we are met by a non possumus. "It is not merely that your Amendment is bad, but we have no way of amending it ourselves"—was there ever such a proceeding in a Legislative Assembly as that? This Amendment says that all this is to be defined in writing and submitted to the two Houses. At all events, it gives you the chance of going to Mr. Collins and Mr. Griffith and saying to them that this Treaty drawn up at two o'clock in the morning will not work and 749 that there are all these points arising from it. And cannot you put a little pressure on and get them to put in something that is workable? Oh! not at all. "The Treaty, the whole Treaty, and nothing lint the Treaty, so help me God," is all they say. Really, it is the paralysis of legislation which has taken place. Let us get it over, and I suggest that we have a Division.
THE MARQUESS OF CREWE
I cannot help feeling, and I think a great many of your Lordships will share the view, that the House finds itself in a situation of no little difficulty. Many of us, I think, were impressed from the first by the particular difficulties surrounding this subject, which were so clearly set out by the noble and learned Lord, Lord Sumner, and to which, as the noble and learned Lord who has just sat down, has recently stated, His Majesty's Government have not given an answer of any kind. The whole series of difficulties was altogether ignored by the Lord Chancellor, who replied for the Government. Those difficulties, as has already been pointed out from this bench, are very substantial. I entirely share the view, which has been expressed by more than one noble Lord, that it is most difficult to make any material alteration in this Bill which may appear to affect the terms of the Treaty. The noble Earl, Lord Desart, stated that in clear terms. But it does not follow from that that we ought, or that the Government ought to take upon themselves the responsibility of passing this measure in a form which is not intelligible either to the people of this country or to, at any rate, a great many people in Ireland.
I can apprehend the difficulty which the Government may feel in agreeing to the particular Amendment moved by the noble Marquess, and, as for myself, I should not feel able to support the noble Marquess in pressing it on the House. But there are some other possibilities of amendment, although His Majesty's Government may say that they would not be able to promise them offhand, and, the terms of the Treaty being what they are, that they could not agree to any of them without some consultation with the Provisional Government in Ireland. I would ask the noble Viscount in charge of the Bill, therefore, whether it would not be wise, from his point of view, to take a little more time to consider these subjects. It may be necessary, or it may be desirable from the point of view of the 750 Government, to make some further communications with Ireland, and, if so, before burning all their boats by endeavouring to insist on the rejection of all these Amendments one after the other, I would ask His Majesty's Government to consider whether they might not take some time, if necessary adjourn the debate, or at any rate adopt some method of postponing consideration of some of these Amendments, and that they should not ask the House as a whole to support them in carrying through this Bill verbatim et literatim without sonic further opportunity for considering it.
§ THE LORD CHANCELLOR
I apologise for intervening without having heard most of the debate, but I heard the points originally made by the noble and learned Lord, Lord Sumner. It was necessary for me to leave the House upon public business, and what Lord Crewe has said has been reported to me. I understand that the difficulty which is felt relates to some points taken by the noble and learned Lord, Lord Sumner, upon the last discussion which I was so fortunate as to hear. The noble and learned Lord advanced a series of hypotheses, of which I shall take leave to say that one of them, at least, in my opinion, is in a high degree improbable and fantastic.
He asked, in the first place, what would happen if all three members of the tribunal took individually a distinct and irreconcilable view of the matters referred to them. Let us consider what the constitution of this Commission is to be. It is to consist of a member nominated by the Government of Southern Ireland, and a member nominated by the Government of Northern Ireland. Now, supposing that those two gentlemen were met together, it would not be a very far-fetched hypothesis that they might not reach a complete harmony of view. That, of course,, was present very clearly to the minds of those who, on both sides, undertook the responsibility of framing this instrument, and it was for that reason, and for that reason alone, that both parties, after long discussion, agreed to provide a person whose impartiality was certain, in order to act as a reconciliating third party as between these two presumably divergent opinions—presumably divergent., let me say, in order to avoid all suspicion of accusing them of intentional partiality—until the argument was fully developed and understood. At 751 any rate, the object was plain, and that was that there should be introduced there, to guide their deliberations, a man of whom no one on either side would suspect that he was there with any object except to supply an honest and unbiased mind.
The noble and learned Lord asks us to suppose, in relation to these three men, that not only will the two men fail to agree with one another, but almost that they will fail to agree with themselves, or, at least, such a state of things will result that it is impossible for the impartial man, standing between them as between the two sharply contrasted points of view, to say either that one is right or the other is right. The only possible answer to a hypothesis of that kind is this. In the last Amendment, supported, I believe, by the noble and learned Lord, it was proposed that an appeal should lie from this tribunal to the Judicial Committee of the Privy Council. It is quite obvious that, if we observe—as of course, we should observe—our ordinary rule, we should not select even numbers to sit on the Judicial Committee of the Privy Council. We should select, as is our habit, where we can adhere to it, in disputable matters, an odd number.
You might just as well suppose that you were presenting us with a serious or formidable argument if you were to say that of all the four or five members of the Privy Council in these matters every one of them took an individual view in your Court of Appeal. The answer is that these things do not happen. If you get three men there, of whom it is the function or the understood function of the one to compose and reconcile and decide between the divergent views of the other, she will discharge that task. My experience of persons exercising judicial functions is that they are able to arrive on such matters at a harmonious and happy conclusion.
§ THE LORD CHANCELLOR
I think the noble Marquess will feel that it is a little unfair to ask me to be definite; but I would say quite plainly that, as far as my advice goes, I should never dream of recommending one who had not very great legal experience, or one of whom it could be said that he was in any way disqualified by any political past or any adherence to one side or the other in politics.
§ THE LORD CHANCELLOR
That is the first unfavourable word that has been said of the legal profession in a debate in which so many lawyers have taken part I am glad that my noble and learned friend can be accommodated upon that point. It is a pleasure to discover something on which it is possible to accommodate him. I have, in fact, some one in mind whose name, if it was mentioned here—I cannot mention it, of course, until he has been consulted and until some of my colleagues have also been consulted; but it is a point on which, I think, the Prime Minister would be naturally guided by the advice I gave him—I have in my mind one whose name, if I mentioned it here to-day, would command the support, the adherence and the confidence of all sections of this House. It is difficult to imagine that such a man will not be able to decide between the divergent opinions—if I am always to, assume them to be divergent—of his two colleagues, in this sense: that he can say that either this or that view is right, or, if neither view is absolutely right, can by a compromise secure the support of one of his colleagues.
One other question was asked by the noble Lord and repeated by the noble Marquess who leads the Opposition. It was this. Supposing that one of the two parties principally concerned here declined to elect a representative to the Boundary Commission, what was to happen then? In the first place, I demur entirely to the case being made that there is an ambiguity in the Article; because this matter is not dealt with by anticipation and I consider there is no ambiguity in the Article upon that point at all. It is assumed that a Government of Northern Ireland responsible to a Parliament having at this moment representatives in the British House of Commons, which has already approved of this clause—it is presumed that, however apprehensive and anxious they may be in relation to the matter, they would be very unlikely to take the serious responsibility of saying: "Because we disapprove of it, because we think we have been badly treated, we utterly refuse to give effect on our part to that on behalf of which the Parliament of Great Britain 753 has pronounced, and which has been accepted and is being implemented by the other party to the negotiations"—
§ LORD CARSON
I am very sorry to interrupt the noble and learned Viscount, Or to appear to take so much part in this debate.
§ LORD CARSON
Perhaps the Lord Chancellor would allow me to say that I referred to that matter because the Prime Minister of Northern Ireland had already said in his Parliament that he would not appoint a Commissioner to take part in this Boundary Commission on the ground that the thing was left in such a state of doubt and difficulty that he could nut possibly undertake the gamble of having an Inquiry of this kind.
§ THE LORD CHANCELLOR
The noble and learned Lord will permit me to say that I am well aware of what the Prime Minister of Northern Ireland has already stated, and I am aware of the grounds, so recently repeated by the noble and learned Lord, upon which he has professed to found himself in reaching that conclusion. The answer that I have to make at this stage is that I should be extremely sorry that the Prime Minister of Northern Ireland or any Prime Minister should be held bound by a statement made at this stage of the negotiations without even knowing who the third party to the Commission is to be, or without knowing what degree of confidence may be reposed in him by reason of his character and antecedents; and I should be very much surprised if that were the deliberate judgment either of the Prime Minister or the Cabinet of Northern Ireland when ultimately the Commission came to be appointed. My surprise would certainly not be diminished but enormously increased by the reasons given by the Prime Minister of Northern Ireland and repeated by the noble and learned Lord.
The Prime Minister of Northern Ireland, of whom I never, either here or elsewhere, speak in any tone except that of respect and admiration, professes, speaking no doubt at a moment of disappointment and of indignation, to found himself upon the uncertainties of this Article. We listened to the ingenuity of noble and learned Lord after noble and learned Lord, point- 754 ing out the ambiguities of this Article, and where are the ambiguities when they are examined? Is there one noble and learned Lord who has got up and said: "My view, speaking as a Judge, confirms the claim which has repeatedly been made by Mr. Michael Collins"—
§ TIER MARQUESS OF SALISBURY
I am sorry to interrupt the noble Viscount. I am aware that he has a tremendously heavy burden upon his shoulders, and that we ought only to be grateful that he comes in occasionally and gives us the benefit of his advice. But it is very inconvenient. I do not make any complaint in his case because he has not really heard the debate to which he is now replying, but it was pointed out by myself that there was a very grave case of ambiguity. Of course, my words would have no weight with him but it is a little inconvenient that all that should be passed over because of the manner in which the noble and learned Viscount was obliged to behave. Then, in exactly the same way, a question was put by a noble and learned Lord who did not merely say that the Prime Minister of Northern Ireland made this statement, which he has undoubtedly made, but he put the question: Supposing that happened what was to follow?
§ THE MARQUESS OF SALISBURY
I beg the noble and learned Viscount's pardon. I thought that he had passed away from that.
§ THE LORD CHANCELLOR
The noble Marquess is entirely mistaken and if he had listened all through, if I may be allowed to say so without discourtesy, with more attention to what I said, he would have discovered that I was about to address myself to that point. He said that ambiguities had been suggested of which I was not cognisant. Give me leave, in the first place, to say that I think that is extremely improbable, as I listened—though it is true that I did not hear the noble Marquess—to the whole of the debate, or to nearly all of it, on the previous Amendment, on which there were exactly the same questions raised and the same reasons given as for making this Amendment now, and noble and learned Lords did not put forward any ground for alleging 755 ambiguities except the fact that Mr. Collins had a different understanding of it from that which has been put forward by others.
§ THE LORD CHANCELLOR
Certainly. But does the noble Marquess really think that an Article, in relation to which no technical expert in this House has pointed to an arguable ambiguity, as to which no noble and learned Lord has said: "By reason of those words or by reason of that expression we believe that the view taken by those who have spoken is wrong and the view taken by Mr. Collins is right"—does the noble Marquess really think that that imports ambiguity into an instrument? Is he really of opinion that that alone would justify the representative of a great community like that of Northern Ireland in not appointing a representative to sit on this Commission? I should be very much surprised to find that the noble Marquess, with his very great experience, would assume the responsibility of giving such advice to the Government of Northern Ireland.
I will not shrink from giving a perfectly candid answer to the question put by the noble and learned Lord, Lord Sumner, in relation to which I understand that Lord Crewe expressed his desire that an answer should be made. I am asked what is the meaning of this Article. I dispute absolutely the suggestion made by Lord Sumner that it is in itself ambiguous. I dispute absolutely that there ought to exist any real doubt as to what the Article means in this particular. But Lord Sumner asks: "Supposing in fact the Government of Northern Ireland does not appoint a representative to this Commission?" I have said what I have to say about the contingency which I hope will not arise, but as for there being any ambiguity in the Article, I dispute it absolutely.
This is an Article which assigns certain powers to a Commission which, it is assumed, shall be constituted in a certain way, and shall consist of a certain number of Commissioners. In my judgment—and I am not entitled to construe it, except to offer my opinion—the Article plainly demands that the three Commissioners shall sit, and that a decision shall be effected. In my judgment that quite plainly must be taken by three Commissioners, and not 756 by two Commissioners. If the Government of Northern Ireland should assume the deep responsibility of saying, in spite of the decision of the House of Commons and of the House of Lords and of Parliament as a whole: "We refuse to appoint a Commissioner," then a wholly new situation will have arisen which will require to be dealt with by wholly new methods.
I make it plain that I have abstained, as those who attempted to explain this Treaty in the House of Commons have carefully abstained, from assuming the slightest right to construe it with authority. Whether you call it a Treaty or whether you call it a contract, it is made between two different parties of spokesmen, and neither of those parties has the right or title to construe it with authority. But I owe a duty to your Lordships' House to give my own opinion when I am asked for it, and I trust I have made it plain. In reply to the noble Marquess, Lord Crewe, who has suggested that we should take time to think it over, with the most profound respect for Lord Crewe and others who have criticised the Article, I think it nevertheless right to say, with the greatest plainness, that upon this point we have nothing whatever to think over, because our minds are made up, and we are conscious of no ambiguity.
§ LORD BUCKMASTER
Will your Lordships forgive me for intervening once more? I think there has been a mistake. The noble and learned Viscount seems to think, if this Commission is set up, that the Chairman will operate an as umpire as between two arbitrators. That is not his function, as I read the Article. It appears to me that he is nothing but on an exact equality with the other two, although he occupies the chair, and it seems to me that you are courting disaster to let a Commission go forward with three people without defining what is to happen in the possible, nay the probable, event that there will be difference of opinion among the three. I have done everything I can honestly do for the purpose of supporting the Government in connection with this matter, but I am bound to say, if they find themselves unable to give any further assistance than they have given on this matter, I shall find it difficult to continue to support them any longer, for I think we are going straight to difficulty. Finally, let me say that I wish I could share—but I have stated publicly in your Lordships' House, and I repeat 757 that I cannot share—the view that there is no ambiguity in this Article. To my mind it is full of ambiguity, full of grave and dangerous ambiguity, and I think the Commission will have a very difficult task.
§ THE LORD CHANCELLOR
May I say a word on one point. I am not going to reply to the whole speech of the noble and learned Lord. It is not right that I should ask for so much indulgence. Let there be no misunderstanding. So far as I am aware, neither I nor any one else has made the slightest mistake as to what is the technical position in which the third member of this Commission is to be placed under the terms of the Article. I am conscious of no ambiguity in my own mind. I am conscious of no ambiguity in the language I have used in attempting to make my mind plain. But does the noble and learned Lord really think that if you elect as one Commissioner a representative of the South of Ireland, and if you elect another Commissioner representing the North of Ireland, holding, as they will hold on every single point raised, strong views, bred in their bone—does he really think, if we succeed in discovering a Chairman with an open mind and who is absolutely impartial, that, whatever you may call him—you may say he is one of three Commissioners—he is not, in fact, by reason of his own training, in the possession of the powers of an umpire? This position is so serious, and the indication made by the noble and learned Lord so grave, that I must earnestly desire those of your Lordships who are under any delusions on the matter to remember that one cannot pass an Amendment upon this highly delicate and debatable topic without endangering the whole Treaty. I would most earnestly urge your Lordships at least to consider the opposite view, and the strong view, which is held by those who had the responsibility of negotiating the Treaty.
§ THE MARQUESS OF LONDONDERRY
I think the noble and learned Viscount, the Lord Chancellor, is imposing a great burden on your Lordships when he says that, in his mind, there is no ambiguity in this Bill. I am sure he is right; I am sure, with his intellect, he grasps the tenour of this Bill far better than most of your Lordships, and certainly far better than myself, who do not claim to be superior but inferior to the majority of your Lord- 758 ships. The reason I ventured to put down the Amendment was to get some definition for the purpose of touching the realities of the case. The realities are existing on the boundary at the present moment, and I feel sure your Lordships can assist to mitigate the circumstances of the present moment if you get a definition of what the Government intend in this measure.
The noble Marquess who sits behind me referred to the fact that unfortunately the Lord Chancellor had not been able to be present for the whole of the debate. The noble and learned Viscount has made himself acquainted with certain points which were raised, but he has not made himself acquainted with all the points that were put before the House. My noble friend, Lord Desart, made a suggestion which I should like to put before the noble and learned Viscount, and that is, if he does not see his way to accept my Amendment to define clearly the reference which the Commission would receive, that he should consent to accept the Amendment which will be moved later by my noble friend Lord Dufferin, which is for the purpose of eliciting the name of the Chairman. The noble and learned Viscount has the name of the Chairman in his mind at the present moment, and if he can see his way to give us some enlightenment on this subject, which is one of burning anxiety in Ireland, I for my part should be glad to withdraw my Amendment, and to accept that enlightenment from the noble and learned Viscount.
The noble viscount who addressed us earlier in the debate spoke of my Amendment as a dilatory Motion. He and I have been associated with dilatory Motions in another place on more occasions than one, and I should have thought that he would have realised from the words which I used that my Amendment was in no sense a dilatory one, but was moved for the purpose of establishing some element of confidence amongst those whom I represent in Ireland, which I know is singularly lacking at this moment. It is for that reason I move the Amendment, and I am sorry that the noble Viscount should have accused me of being dilatory when I have persistently shown my desire in no circumstances to wreck this Bill. I should like to say that in bringing forward this Amendment I am in no sense endeavouring to prevent the passage of the Bill, but I am putting forward an Amend- 759 ment for the consideration of this House and also of another place if possible, and, if the Government and another place cannot see their way to accept the Amendment I should not think of pressing it further. That has been my position.
§ VISCOUNT PEEL
The noble Marquess has misunderstood me. I did not use the word dilatory in reference to this Amendment as an equivalent to obstruction. I did not mean it in that sense at all.
§ LORD PHILLIMORE
I am still in the dark as to the construction the noble and learned Lord Chancellor puts on this Article. Does he mean that the three persons must be unanimous, or does he mean that the majority are to decide? My present impression is that the three persons must be unanimous, and I should like to know whether that is his view.
§ On Question, whether the proposed words shall be there inserted?
§ Their Lordships divided:—Contents, 65; Not-Contents, 110.761
|Argyll, D.||Cave, V.||Horne, L.|
|Devonshire, D.||Chaplin, V.||Kenyon, L.|
|Somerset, D.||Charlemont, V.||Lambourne, L.|
|Wellington, D.||Templetown, V.||Lamington, L.|
|Dufferin and Ava, M. [Teller.]||Exeter, L. Bp.||Mowbray, L.|
|Lansdowne, M.||Penrhyn, L.|
|Linlithgow, M.||Ampthill, L.||Raglan, L.|
|Salisbury M.||Atkinson, L.||Ranfurly, L. (E. Ranfurly.)|
|Abingdon, E.||Avebury, L.||Redesdale, L.|
|Devon, E.||Basing, L.||Roundway, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Bellew, L.||Rowallan, L.|
|carson, L.||Saltoun, L.|
|Grey, E.||Clements, L. (E. Leitrim.)||Sempill, L.|
|Jersey, E.||Deramore, L.||Stuart of Wortley, L.|
|Kilmorey, E.||Derwent, L.||Sudley, L. (E. Arran.)|
|Lindsay, E.||Dynevor, L.||Sumner, L.|
|Morton, E.||Dunleath, L.||Terrington, L.|
|Selborne, E.||Erskine, L. [Teller.]||Trevor, L.|
|Stanhope, E.||Fairfax of Cameron, L.||Walsingham, L.|
|Vane, E. (M. Londonderry.)||Farnham, L.||Wavertree, L.|
|Bangor, V.||Forester, L.||Wrenbury, L.|
|Bertie of Thame, V.||Gisborough, L.||Ystwyth, L.|
|Canterbury, L. Abp.||Malmesbury, E.||London, L. Bp.|
|Birkenhead, V. (L. Chancellor.)||Midleton, E.||Aberconway, L.|
|Onslow, E.||Abinger, L.|
|Marlborough, D.||Portsmouth, E.||Aldenham, L.|
|Sutherland, D.||Sandwich, E.||Annesley, L. (V. Valentia.)|
|Shaftesbury, E.||Belhaven and Stenton, L.|
|Aberdeen and Temair, M.||Strange, E. (D. Atholl.)||Braye, L.|
|Bath, M.||Wicklow, E.||Cable, L.|
|Normanby, M.||Farquhar, V. (L. Steward.)||Cawley, L.|
|Astor, V.||Chalmers, L.|
|Ancaster, E.||Burnham, V.||Clwyd, L.|
|Bradford, E.||Chelmsford, V.||Colebrooke, L.|
|Buxton, E.||De Vesei, V.||Cottesloe, L.|
|Chesterfield, E.||Devonport, V.||Cullen of Ashbourne, L.|
|Chichester, E.||Haldane, V.||Denman, L.|
|Clarendon, E.||Hood, V.||Dewar, L.|
|Dartmouth, E.||Hutchinson, V. (E. Donoughmore.)||Dunedin, L.|
|Drogheda, E.||Emmott, L.|
|Eldon, E.||Knollys, V.||Ernle, L.|
|Fortescue, E.||Knutsford, V.||Fairlie, L. (E. Glasgow.)|
|Howe, E.||Peel, V.||Faringdon, L.|
|Iveagh, E.||Pirrie, V.||Fingall, L. (E. Fingall.)|
|Lichfield, E.||St. Davids, V.||Gainford, L.|
|Lucan, E.||Ullswater, V.||Gorell, L.|
|Hemphill, L.||Merthyr, L.||Rotherham, L.|
|Hylton, L.||Meston, L.||St. John of Bletso, L.|
|Islington, L.||Methuen, L.||Shandon, L.|
|Kenlis, L. (M. Headfort.)||Monk Bretton, L.||Shaw, L.|
|Kenry, L. (E. Dunraven and Mount-Earl.)||Monteagle, L. (M. Sligo.)||Shuttleworth, L.|
|Monteagle of Brandon, L.||Somerleyton, L. [Teller.]|
|Kilbracken, L.||Muir Mackenzie, L.||Stanmore, L. [Teller.]|
|Killanin, L.||Nunburnholme, L.||Sudeley, L.|
|Kilmarnock, L. (E. Erroll.)||O'Hagan, L.||Teynham, L.|
|Kintore, L. (E. Kintore.)||Ormonde, L. (M. Ormonde.)||Treowen, L.|
|Lee of Fareham, L.||Pentland, L.||Vernon, L.|
|Loch, L.||Phillimore, L.||Weardale, L.|
|MacDonnell, L.||Playfair, L.||Wigan, L. (E. Crawford.)|
|Marchamley, L.||Ponsonby, L. (E. Bessborough.)|
|Meldrum, L. (M. Huntly.)||Ritchie of Dundee, L.|
On Question, Amendment agreed to.
VISCOUNT CAVE moved, at the end of subsection (1), to insert the following proviso:—
Provided that if an address is presented to His Majesty under Article 12 of the said Agreement, then as from the date of that address and until identical Acts making other provisions are pawed by the Parliaments of the Irish Free State and of Northern Ireland, the powers exercisable by the Council of Ireland under the Government of Ireland Act, 1920, shall, as respects Northern Ireland, be exercisable as from the date of that address by the Government or Parliament of Northern Ireland as the case requires.
§ The noble Viscount said: The time of your Lordships' House has been rightly occupied in the discussion of 'the last two Amendments, and I think I can in a few sentences put the case for considering the Amendment I am moving. I think I can show your Lordships quite clearly that there is an omission from or oversight in the Treaty which could be corrected without any alteration of the Treaty in its real meaning. The case stands in this way. Under the Act of 1920 there is to be set up a Council of Ireland consisting of twenty members of the Parliament of Southern Ireland, of whom seven will be Senators and thirteen members of the House of Commons, and twenty representatives of the Parliament of Northern Ireland appointed in the same way, with an independent President nominated by the Lord Lieutenant. Its powers relate both to administration and legislation with reference to railways, fisheries, and diseases of animals, and also to certain Private Bill legislation. The Act of 1920 provides that these powers shall not be exercised by either the Parliament of Northern Ireland or the Parliament of Southern Ireland, but only by the Council of Ireland.762
§ I want your Lordships to take in two compartments the time that must elapse before the Council is appointed, and to see how we stand. First, take the time between the passing of this Act and the setting up of the Parliament of the Irish Free State. I think that time could hardly be less than six months, and it may be as much as twelve months. During that time there is and can be, as I understand the matter, no Council of Ireland. It cannot be set up, because there is no Senate of Southern Ireland properly constituted, and there is no House of Commons of Southern Ireland properly constituted, because no member elected to it has taken the Oath; so that you cannot have representatives of Southern Ireland appointed to the Council, and therefore, during that time, there will be no Council. That being so, I may be wrong, but I think nobody can administer the law relating to railways and fisheries and so on in Northern Ireland, and nobody can legislate with regard to those matters. They are wholly derelict, and therefore there is a gap in the law as it stands under this Bill which must somehow be filled up, because otherwise matters will be at a deadlock and important questions will not be dealt with at all. That is the first point.
§ The second point, which is almost equally simple, is this. What will happen with regard to the matters committed to the Council of Ireland after the Government of the Irish Free State and their Parliament have been set up? On one reading of the Treaty the effect of it would be that the Parliament of the Irish Free State, the constitution of which of course we do not know but which may consist of one Chamber only, will appoint members to the Council of Ireland. But that Council, when appointed, would have power to deal with the matters committed to it, not in Southern Ireland at all, but only in Northern Ireland. So that you would 763 have this extraordinary result, that as regards important matters both of legislation and of administration you would have representatives of the Irish Free State having equal power in the North of Ireland with members representing Northern Ireland, but none of them, and no representative of Northern Ireland, would have the least power in those matters throughout the area of Southern Ireland.
That would be so grossly unjust that I cannot think it is the real meaning of the parties to the Treaty. I think there must be something implied in the Treaty which does not at first sight appear there. The point was put in another place to the Secretary of State for the Colonies, and he is reported to have said:
There was a grievance and an anomaly in this ease. While certain reserved services affecting Northern Ireland were to be dealt with by the Council of Iceland, upon which the South was represented, similar services relating to the South were to be dealt with by the Free State Parliament without any interference by Northern representatives.
He added that there was a way of remedy, through an agreement between the Northern and Southern Governments, and he was hopeful that such a remedy would be found. I think that really does point the way out.
§ Before the Council can meet there must be agreement between the Parliaments of Northern and Southern Ireland. That agreement must, I think, take the form of legislation by the Parliaments of the two States, but until that legislation is passed this thing is wholly unprovided for and undealt with, and I suggest to your Lordships and to the Government that it can be dealt with in the manner proposed in my Amendment. I have taken a phrase from the Act of 1920. Until identical Acts dealing with these matters are passed by the Parliaments of Northern and Southern Ireland, the subject matter which is by the Act of 1920 committed to the Council of Ireland—fisheries, railways and so on—shall, as regards Northern Ireland only, be dealt with by the Parliament and Government of Northern Ireland.
§ I do not think that that will infringe what I believe to be the real intention of the Treaty. If I am wrong in that, I am sure that it is a reasonable way of supplying what has been forgotten, and I venture to suggest to His Majesty's Government that, if they think the Treaty will be affected by the Amendment, they should 764 at least take steps to ascertain, if they think there is a mistake, whether the other party to the Treaty also thinks so, and to endeavour to arrive at an agreement on the matter with those who entered with them into this Agreement, embodied in what is called the Treaty, and so to endeavour to prevent what must be, unless it is at once dealt with, a very great grievance and injustice to Northern Ireland. I beg to move.
Page 1, line 9, at end insert the said proviso.—(Viscount Cave.)
§ VISCOUNT PEEL
The noble and learned Viscount quite rightly pointed out that two periods are affected by the Amendment—the period until the Constitution of the Free State is set up, and the period after that. Therefore, the difficulty to which he has alluded, that in the Council of Ireland dealing with these railway and other matters in Ulster there may be appointed a certain number of representatives of the Southern Government or Parliament, really would not arise in that first period, because the proper numbers could not be appointed by the Southern Government. Further than that, there is another reason why the question would not arise. As I understand, until that period happens, and until the new Constitution is set up, these powers in connection with the Council of Ireland will not be transferred to the Ulster Government, but will be retained by the British Parliament. I think, therefore, it is quite clear that the difficulty which he anticipates cannot arise during the first period.
Now I come to the second period, that is to say, after the new Constitution has been set up. Then, as he has pointed out, tins difficulty would arise, that while all these powers would be exercised freely by the Government of Southern Ireland, there would be upon the body dealing with these matters in Northern Ireland an infusion of representatives of the South of Ireland; and he points out that there is an apparent anomaly in that case. This, I understood, was one of the questions on which something in the nature of an agreement had been made between the Prime Minister of the North and Mr. Collins. I think they agreed that this was obviously a clumsy arrangement to make, and that even if things could be done by councils on which equal numbers could be appointed, it would be far better that it 765 should be done by the Executives or Ministers on each side, and one hopes that an arrangement may be made in the next few months. If it be made, and it seems a reasonable arrangement to make, it would be quite easy for that to be put into some form which would be binding.
I think that the Amendment in the form in which it is proposed is inconsistent with the proposals of Articles 12 and 13 of the Treaty. Article 12 provides—If, before the expiration of the said month, an Address is presented to His Majesty by both Houses of Parliament of Northern Ireland to that effect, the powers of the Parliament and the Government of the Irish Free State shall no longer extend to Northern Ireland, and the provisions of the Government of Ireland Act, 1920 (including those relating to the Council of Ireland), shall, so far as they relate to Northern Ireland, continue to be of full force and effect.Therefore, I think the Amendment in the form in which it is proposed clearly involves an alteration in the Treaty itself. As I have said, however, the proposals of the noble and learned Viscount have no application to the next few months, and before the second period occurs no doubt some arrangement will be made by which these matters can be managed in a much better way, by joint action between the two Governments or Ministers, instead of by this rather elaborate device.
§ THE MARQUESS OF SALISBURY
Does the noble Viscount suggest it should be done by Imperial legislation?
§ VISCOUNT PEEL
I do not quite know what the exact form would be, but of course if an agreement was come to about these questions of the railways, fisheries and diseases of animals—
§ VISCOUNT PEEL
I do not know whether it is possible to get very controversial about fisheries or diseases of animals—
§ VISCOUNT PEEL
Precisely as the noble and learned Viscount said—this rather remarkable system by which there would be appointed upon this Council for the North of Ireland representatives from the South.
§ THE MARQUESS OF SALISBURY Does the noble Viscount really defend that as a reasonable arrangement?
§ VISCOUNT PEEL
I am not now dealing with the reasonableness or unreasonableness of it, but only pointing out that it is distinctly an alteration in the Treaty. The noble and learned Lord did ask whether it would be possible that this matter should be referred. The noble and learned Lord knows that that is a question which I can hardly answer without consideration, but I can refer to it if he wishes before the Report stage comes on. I could not give any promise at the present moment.
§ LORD CARSON
I venture to think that the House has seldom listened to a more impotent explanation than the noble Viscount has given. In fact, at the end of his speech, I think we knew less about the matter than we did at the beginning, and felt much more puzzled. The first proposal of the noble Viscount is that because the Treaty is so curiously drawn, you are to postpone altogether all that was to be conferred upon the Parliament of Northern Ireland in relation to various matters.
§ LORD CARSON
I should have been glad if he could have told us what the reason was, if it was not the Treaty. He says there will be nobody in existence who could supply the quota on the Council which the Act of 1920 lays down for Southern Ireland.
§ VISCOUNT PEEL
The difficulties are partly due to the Act of 1920, and then to the fact that there is nobody who can now supply the quota.
§ LORD CARSON
That is by the Treaty, because you have abdicated the functions of government over there. The noble Viscount has very curious ideas of the, way in which Governments ought to be established. He says: What does it, matter about railways, contagious diseases and little things of that kind. But this relates not only to railways and contagious diseases and to fisheries, which he thinks are nothing—
§ LORD CARSON
But there is something more. As I understand the Bill of 1920, the Council were to have the power of Private Bill legislation. Are you to hang that up at the will of the Government? That is a very important matter. After all, we are getting accustomed in the course of these debates to the idea that any answer at all is good enough, or that any attempt at answer is good enough. Go on and get your Treaty, and let there then be chaos.
I really should have thought that it was the intention of the Government—at least, it has been very frequently so expressed—that Ulster was not to be affected by this Treaty except in so far as you gave liberty for some of her territory to be taken away. I have heard it over and over again stated that nothing was to be done to Ulster. Now, not only are you to hang up all these powers which were given something more than a year ago—and I suppose they have been hung up ever since in consequence of these negotiations—but you are to perpetrate another injustice. When the Free State Parliament comes into power, as I understand the answer given to my noble friend, Lord Cave, you are to allow the Free State Parliament to interfere in the affairs of Northern Ireland as regards Private Bill legislation, and railways, and fisheries, and other matters, but the North of Ireland is to have no power whatever to interfere in Southern Ireland.
If that is so, why are you going to put the fisheries and the railways, as far as they relate to Northern Ireland, under a Sinn Fein Parliament? Is it to insult them more, punish them more for all their misdeeds, or what is the reason? It is a miserable state of affairs, utterly unworkable, and the whole idea of this Council, which at the time was put forward by the Government as being the best part of the Bill, was that the two parties from Southern Ireland and Northern Ireland were to meet together as equals, and put their heads together about matters like railways and fisheries, which relate generally to Ireland—because it is hard to describe either a railway or a fishery as a local matter, inasmuch as generally a river flows through both parts of Ireland, and a railway goes through both parts of Ireland—and work out the matter to the common good.
768 In addition to that there are large powers under the Act of 1920 to transfer various other matters to the Council of Ireland. All these are apparently in abeyance. I must make one confession. I did not think there was the slightest hope of the Government accepting this Amendment. It would have set something at rest and would have given a chance of a little peace between Northern and Southern Ireland, and have given them an opportunity of meeting together subsequently without the friction of having one interfering in the domain of the other.
§ THE LORD CHANCELLOR
It is quite apparent that, so far as the argument has developed, the balance on merits is in one direction. The difficulties of the Government in accepting Amendments to the Treaty, although they may easily be made the subject of thoughtless derision, are real and apparent. And therefore your Lordships will not complain if my noble friend and I do not accept this Amendment. We are not in a position to accept the Amendment, I say plainly. The course I suggest would be that your Lordships, who have evidently formed a clear opinion about it, should have the Question put. We should not think it proper to challenge a Division, but the result of the Question being so put would be that it would be remitted elsewhere, and some days would be afforded for consideration and discussion, which, I say frankly, on the case made, is desirable.
§ THE MARQUESS OF SALISBURY
I understand that what the Government suggest is that this should be inserted in the Bill, with a view to its being considered in another place.
LORD CARSON moved, at the end of subsection (1), to insert the following proviso:—
Provided that if an Address is presented to His Majesty under Article 12 of the said Agreement then as from the date of that Address and until identical Acts making other provisions are passed by the Parliaments of the Irish Free State
and of Northern Ireland any appeal from His Majesty's court of Appeal in Northern Ireland shall, instead of as provided by section 43 of the Government of Ireland Act, 1920, lie to the House of Lords in the same manner and subject to the like conditions as an appeal from His Majesty's Court of Appeal in Ireland lay to the House of Lords before the passing of the Government of Ireland Act, 1920.
§ The noble and learned Lord said: Under the Act of 1920 there was a Court of Appeal for the whole of Ireland, consisting of certain Judges from Southern Ireland and certain Judges from Northern Ireland, and it was necessary for anyone from Northern Ireland who was a litigant in the Courts there to go to this Court of Appeal in Southern Ireland, which was composed of Judges of both North and South, before they could proceed to take the appeal to your Lordships' House, which was the privilege that they have always had before the passing of the Act of 1920.
§ This Treaty, of course, alters the whole position as regards the South of Ireland in relation to judicature. The South of Ireland, contrary to what is provided by the Act of 1920, will now appoint its own Judges, or have power to legislate to appoint its own Judges in its own way. They may be elected Judges, or they play be Judges appointed by the Government there, bat they will no longer be appointed by the Imperial no Government. The object of my Amendment is that you should not ask the North of Ireland, which is now being even more separated than before from the South of Ireland, and whose Judges will be still appointed by the Imperial Government—that you should not ask them to go before the Sinn Fein Courts in the South of Ireland as a Court of Appeal, those Sinn Fein Courts having Judges appointed in an entirely different way.
§ There is a Court of Appeal in the North of Ireland set up by the Act of 1920, and my Amendment proposes that there should lie an Appeal direct from that Court to this House, so that the parties will be in exactly the same position as if the Act of 1920 had not been passed at all, and they had reserved to them the same right of appeal to this House from the first Court of Appeal without going for a second appeal to the Court in Dublin. I cannot imagine how a system could be expected to work under which the Judges were selected, soma by this country and some by the Sinn Fein people in whatever way they decide upon electing Judges, nor 770 would it be a fair or proper tribunal before which you could expect the North of Ireland people to go.
Page 1, line 9, at end insert the said proviso.—(Lord Carson.)
§ VISCOUNT PEEL
On the question of this Court of Appeal the Government do not hold a very different view from that held by the mover of the Amendment, and I think the shortest way with which I can deal with the matter is to give the actual words of a pledge which was given in another place on this subject. The Chief Secretary for Ireland said:—If when the time comes, namely, when the Free State Constitution is before this House, the representatives of Northern Ireland and the Northern Government insist upon having no appeal from the Appeal Court of Northern Ireland to any High Court of Appeal of all Ireland then will be the time to put it right, and I promise that it shall be put right.There is a definite pledge that this matter will be dealt with, but the view of the Government is that this Bill is not the right place to do it. The matter will be dealt with when the time comes.
§ LORD CARSON
Does the noble Viscount, then, lay down that under existing conditions in Ireland the appeals are to be taken from Northern Ireland to Dublin? Does he lay that down pending the new Constitution? You thus debar them from coming to this House unless they can get their cases properly heard there. May I say that at the present moment His Majesty's Judges, appointed by this Government over there, who are now supposed to be doing work on circuit, have had an intimation in several places from the Provisional Government that they had better go away as they could not protect them. It seems to me to be entirely unsatisfactory that the people of Northern Ireland should be asked to go down to Dublin over the border to the Court there. In the present circumstances it almost amounts to a denial of justice.
§ THE MARQUESS OF SALISBURY
I was very much gratified by the result of our efforts on the last Amendment, because the Government did what I think is a perfectly reasonable thing—they accepted the Amendment with a view of considering it in another place. That was a perfectly reasonable thing to do, and that, I think, is all that we have ever suggested should be done in respect to these Amendments. 771 The noble Viscount has said that when the Constitution Bill comes to be considered, the Government are pledged to put that right. I accept that pledge and I am sure they will honour it. But there is going to be a considerable interval between now and then; I do not want to put it too high, but I ekpect it will be three or four months. I am reminded that the, permanent tenure of the present Government is not quite certain, and that they might be succeeded by a more extreme Government who would not honour the pledge, but I will not press that.
What I suggest is that during the four months' interval the whole course of jurisprudence in Ireland is suspended in so far as the appeal jurisdiction is concerned. As I understand it, litigants in Northern Ireland will not awl cannot appeal to the Appeal Court in Dublin. Therefore, they cannot get to your Lordships' House in its judicial capacity as the superior Court of Appeal. I may be in error about that, but I understand it is the case. We suggest, therefore, that during the interval litigants in Northern Ireland are entitled to proper treatment, and we consider that the proper course is to follow what was done in the case of the last Amendment—to put this Amendment into the Bill and let the Government consider it. I should think there would be no difficulty in getting Mr. Collins to agree to that Course.
§ V1SCOLTNT PEEL
I should like to suggest to the noble Marquess that he has not stated the case correctly, so far as I am informed. I understand that the Court referred to is presided over by the Lord Chancellor of Ireland, who was appointed by this Government and is not a Sinn Fein Judge. I understand that the Court is also functioning in Dublin, and that some appeals have been brought to it from the Courts of Northern Ireland. I am not informed on the point mentioned by the noble and learned Lord, that some of the Judges are unable to go circuit because they cannot get any protection. That may or may not be so; I have no information one way or the other. But surely it does not affect the point that this Court of Appeal is functioning and, so far as my information goes, has dealt with appeals brought to it. His objection on that ground, therefore, does not apply.
§ THE MARQUESS OF SALISBURY
Will not the Government consent to put that Amendment in on those terms?
§ THE LORD CHANCELLOR
On the most clear understanding that we are not accepting an Amendment which might be misunderstood, but that we are yielding to the wish of noble Lords that this matter should be made the subject, of further consideration, so far as it is in our power—on that understanding we will not resist the Amendment.
THE MARQUESS OF DUFFERIN AND AVA moved, at, tile end of subsection (1), to insert the following proviso:—
Provided it is hereby declared that the British Government does not seek under Article 10 or any other article of the said Agreement, to evade its just responsibilities to, and engagements with, public servants of His Majesty in Southern Ireland, and undertakes to continue responsible for payment of compensation or pension, as the case may be, to judges, officials, members of police forces, and other public servants on terms not less favourable than those provided for such public servants under the Government of Ireland Act, 1920.
The noble Marquess said: There has been some discussion this afternoon as to whether. Law Lords should be muzzled. I almost think they ought to be, for this reason only, that the standard of oratory would not be so high and it would not be so paralysing to an ordinary mortal to enter into these debates. I do not think that the Amendment I am now moving requires very much oratory to commend it because it is founded on justice and equity, and I believe that, however badly I put it, your Lordships will feel bound to support it. If you refer to Article 10 of the Schedule, you will see that—
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 Judges, officials, members of police forces, and other public servants, who are discharged by it or who retire in consequence of the change of government effected in pursuance hereof.
Therefore, the responsibility for paying pensions to Government servants is lifted from the British Government on to the shoulders of the Free State. It is the object of my Amendment to provide that
there shall be a statutory guarantee that if the Free State is unable to fulfil this obligation the Government shall make the payment.
In every other Home Rule Bill or Act which has been before Parliament since 1886, some guarantee of this kind is to be found In the first Home Rule Bill of 1886 public servants had the guarantee of Hit Majesty's Government in regard to pensions, salaries, superannuation, etc, Clause 29 (2) of that Bill provided that—
The amount of pension shall be paid to him out of the moneys carried to the Customs and Excise account under this Act, or, if those moneys are insufficient, out of the Irish consolidated Fund, and so far as the same are not so paid shall be paid out of moneys provided by Parliament
Clauses 26 and 27 of the Bill of 1893 contained a similar safeguard, and the Acts of 1914 and 1920 contain safeguards of the same sort. In fact, the most important safeguard in those Acts of 1914 and 1920 is the provision that pensions and compensation awarded to existing officers who might retire or be removed in consequence of the change of Government should be paid from moneys voted by the Imperial Parliament; the recovery from Irish revenues of the same being carried out by the Treasury.
I must draw attention to the attitude of the Government towards this matter during the debates in another place. On December 19, 1921, Mr. Chamberlain stated that—
His Majesty's Government win be the guarantor of pensions granted under Article 10.
But on February 15, 1922, Mr. Churchill said that the security for compensation would be the credit of the Irish Free State. On February 16, in reply to a question asking what arrangements had been made for guaranteeing or securing the compensation provided for by Article 10, he referred to his previous reply, and on February 27, in answer to a similar question regarding guarantees, he said that the whole question would be subject to negotiation and discussion and that there would be no advantage in pursuing the subject further. Finally, on March 8, Mr. Churchill, while repeating his colleague's pledge that in the ultimate issue the British Government would be the guarantor of the pensions, definitely refused to accept an Amendment which would have given that pledge the force of law.
§ Therefore, your Lordships can understand how unsatisfactory this state of affairs is to the public servants at present in Ireland. It is not that they doubt the wish of the Free State to abide by their obligations, but that the Free State may not he able to do so. The Free State may not be existing in another month or so. There may then be a Republic. The whole of Ireland may be running with blood from North to South in a few weeks. Who then is going to pay these pensions? The Government have given a verbal guarantee that they will do so, but why cannot they put it in the Bill. That is the only satisfactory way of doing it.
§ Supposing any one of your Lordships were a pensioned officer under the Free State, and had a large family and nothing but your pension to live upon, would you feel very comfortable if the regularity of the payment depended on the Free State? You need not be an enemy of the Free State to realise that their position is very precarious, and that with the best of good will in the world they may not be able to pay these pensions. Surely, therefore, it is only fair that they should be guaranteed by the Government. Mr. Collins, as we have been told, is a very honourable man, and I am not speaking sarcastically when I say he is much more honourable than I ever expected him to be, up to date. But even honourable men die or fade away, and there may be another man in his place who may repudiate the whole thing. It. is not fair to the public servants who have done such magnificent work for the Government during the last few years that they should he left in this uncertain position.
§ It is very difficult for me to believe that I should vote for things that I consider wrong. It is very difficult to believe that one should vote for every paragraph of this Treaty, and especially of a paragraph that does such injustice to public servants who have served us so well. My conscience is no better than that of any of your Lordships, but I feel that I could not bring myself, even if it meant the breaking of the Treaty, to vote against this particular Amendment. There are many things that I cannot believe. I find it difficult to believe when the Lord Chancellor tells us he has been more politically consistent all his life than Lord Carson. I do not know whether your Lordships know of the famous Dr. Coué who says that in order to get 775 well, and to feel well, you have only to repeat to yourselves every morning that you feel better and better every day. I cannot help thinking that the Lord Chancellor has been to Dr. Coué, and that he repeats to himself every morning: "I am more consistent, and more consistent."
§ When I entered politics very late in life—only two years ago—I took to myself a political adviser, and he advised me that I should never attack the high luminaries in the House of Lords. I suppose he meant by the high luminaries the Lord Chancellor, the ex-Lord Chancellors, the Ministers, and the ex-Ministers. My difficulty is that if I do not attack them I cannot attack anybody. My miserable ammunition would never be used. The only back bencher—I hope he will not think I am insulting him by referring to him in that way—whom I have heard speak in favour of what he is voting for is the noble Viscount, Lord Astor. I do not see the noble Marquess, Lord Aberdeen, here at the present moment, but he was here earlier in the debate. He has always most consistently voted against us. But I must mention a palpitating moment that I had yesterday when I saw him advancing towards our Lobby. I thought that for once he was going to join the wise men. Not at all. He appeared in a moment or two leading a rather frightened looking and unwilling Peer out of our. Lobby into his own, so that he not only votes against us but he, so to speak, robs our hen-roost. I would like to ask the noble Marquess, Lord Aberdeen, whether he thinks this arrangement under which the Civil Servants are to be paid, is fair? Is it fair that there should be no guarantee by the British Government? If he does not think it is fair then he must support this Amendment. He has a conscience, and lie cannot help himself.
§ I am very diffident about referring to the right rev. Prelates, but I know that if they descend into the political arena they will not object if one of their very humblest adversaries ventures to criticise them. I do not know if they are aware that the people of Ulster, and I think the whole Protestant population in Ireland, have felt very bitterly that the right rev. Prelates have nearly always—I must say that I have seen one exception in the last two days—voted against us. To my amazement I saw the Archbishop of Canterbury in our Lobby, but as a rule the right rev. Prelates have voted against us, and I cannot 776 imagine why. The Protestants in Ireland have the whole weight of the Roman Catholic clergy against them, and they feel it a bit hard that their own Protestant clergy should also place their intellect and their arguments against them. I always think that is very unfair. It is impertinent of me to suggest it, but I think that it would have been better for them to have remained neutral. I have heard the Archbishop of Canterbury speaking about the Black and Tan atrocities, but when those twelve officers were murdered on Sunday I never heard any right rev. Prelate get up and suggest that the Government should have protected these officers.
§ I would ask the right rev. Prelates here to-day whether they think that this is a fair arrangement. Their consciences are better than ours, and I think they will be bound to feel that the public servants in Ireland are not getting fair treatment by the present arrangement, and will vote for the Amendment. It is a question of conscience, and I feel sure they cannot go wrong there. I need not remind your Lordships of the magnificent work the public servants have done, especially the police, through those bloody years in Ireland. Are you not going to fulfil your contract with those who fulfilled their contracts with you? I beg to move.
Page 1, line 9, at end insert the said proviso.—(The Marquess of Dufferin and Ava.)
THE LORD BISHOP OF EXETER
I rise only to explain that I have taken no part in the debate because I am a junior member, and cannot be here regularly, but I have always been a warm supporter of the North of Ireland, and I have spoken and written publicly in favour of it. I might have at least the credit of my own opinions.
§ LORD KILLANIN
I should like to say one word in support of the Amendment. I feel that I also must apologise for intruding into this debate which has been entirely, up to now, carried on by eminent lawyers of this House. I feel like the song we have in Ireland in which Father O'Flynn says:Is it leave gaiety all to the laity.777 I feel inclined to apologise for myself on rising by saying—Is it leave technicalities all to the legalities.I hope you will excuse another back bench man addressing your Lordships. This is a very important Amendment; and I wish the house to realise it. It does not deal with a great constitutional change; it is incidental to the substance of this Bill. At the same time it is an extremely important and grave subject, and one which the House should treat seriously and justly. I do not think your Lordships would repent anything more bitterly than that in carrying out this great change you did not behave honestly and justly to the past servants of the British Government in Ireland. I submit that the Amendment does not infringe in any way the Articles of the Treaty, and that it is one which the Government should consider on its merits.
The position is this. Under the Act of 1920 very full and adequate arrangements were made to protect all the old servants of this country in the Government of Ireland. You accepted responsibility and financial liabilites in the matter, and you made arrangements whereby justice should be done, and if there was any injustice there was to be a Court of Appeal, or a Civil Service Commission, to ensure that right was done. What has happened under the Articles of Agreement? As I understand, all these arrangements have been practically superseded and all the civil servants in Ireland are now to be entirely dependent upon Article 10 of the Agreement. Let me read Article 10:—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 Judges, officials, members of police forces, and ether public servants, who are discharged by it or who retire in consequence of the change of government effected in pursuance hereof.This deals with all the civil servants in Ireland, including the police and Judges. It says that the Irish Free State agrees to pay fair compensation. Who is going to decide what is fair compensation? Who is going to interpret as to whether the terms are "not less favourable"? And who is going to decide whether these civil servants retire in consequence of the change or not? All the protection given to these servants in the Act of 1920 is abolished; there is no appeal, and they are left entirely dependent on what the Irish Free state thinks proper to do. The civil servants in Ireland, 778 while hoping that justice would be done to them, consider that their position is being made extremely precarious and they ask this House, by the Amendment of the noble Marquess, to protect them and give them the security to which they are entitled. Why should you repudiate—that is what it means—your financial liabilities and your responsibilitity to these men? Who are these civil servants? Who employed them? Whom did they serve? They were employed by you; they have served you, and served you faithfully in extremely trying and difficult circumstances. It is almost impossible to describe the anxieties and the danger to life under which these men, from the Judges down to the police, have all these years served you. And you propose now to hand them over to a totally new Government of which I will only say this, that they are not their servants, and not employed by them. Why should you throw your responsibilities in this matter on to their shoulders?
Some of these men may perhaps go on the assumption that they are going to be dismissed by the new Government, and some may decide that then will not serve the new Government. In these circumstances is there not likely to be a great prejudice against them? I think there is a great possibility of prejudice corning in, even if some of the representatives of the Irish Free State Government are anxious to do justice. These men have served you, and there are great bodies of Irishmen in Ireland who look on that as an offence in itself. The position of these men is prejudiced by the very fact that they have served you faithfully in the past, and some members of the Irish Parliament will be opposed to them because of the fact that they originally served the British Government.
Furthermore, the fact that they served you faithfully may mean that many of these public servants did injury, in carrying out their duties, to the very men who are now to be their judges. This is bound to prejudice their case. The Government, therefore, should do everything they can to see that these men get justice. We saw the other day a sample of tine compensation and pension that three policemen in Galway received. They were riddled with bullets while lying in a hospital. They were your public servants. These men are in a similar position to them; and they will be 779 dealt with by the new Government. I most earnestly and seriously beg the Government to be straight in this matter and not desert their old servants. I cannot see what harm can be done by accepting the Amendment or that it is in any way contrary to the Treaty. I do not see why the Irish Free State should object to it. I do not see why they should object to the British Government taking a joint financial liability in the case of its own servants who have faithfully served it in the past.
§ VISCOUNT PEEL
I do not suppose the noble Marquess expected that the Government would accept his Amendment.
§ VISCOUNT PEEL
It reads as follows:Provided it is hereby declared that the British Government does not seek under Article 10 or any other Article of the said Agreement, to evade its just responsibility to, and engagements with, public servants. …I do not think anyone would seriously suppose that any Government would support or accept a clause which suggested that it was trying to evade its just responsibilities, and the noble Marquess could not expect the Government to accept it. The noble Marquess and Lord Killanin seemed to detect in the Government some desire to evade doing justice or supporting proper compensation and pensions to those who have served them in the past. Everyone will feel sympathy with the warm tribute paid to the way these public servants have served their country in extremely difficult circumstances, and if they were really to be deserted I think, naturally, there would be just indignation against the British Government. But, of course, the charge that has been suggested is entirely without foundation.
May I point out what the arrangements are? Under Article 10 of the Articles of Agreement the obligations of the Irish Free State, in regard to the compensation of existing police and civil officials who may retire or be discharged in consequence of the change of Government, are defined. The police and officials concerned are assured of treatment "not less favourable than that provided in the Government of Ireland Act." I think it was admitted by both noble Lords that those terms in the Government of Ireland Act were not 780 unfavourable, and that if those conditions were to be carried out there would be no just cause of complaint. But both noble Lords went further than that. They wanted to insert in the Bill a statutory right that this compensation should be provided directly by the British Government. In the first instance, of course, this duty is laid upon the new Government of Ireland. It is part of the terms of the Agreement.
THE MARQUESS OF DUFFERIN AND AVA
May I interrupt the noble Viscount for one moment? The statutory guarantee is the most important thing. That is what I want.
§ VISCOUNT PEEL
I am perfectly aware of what the noble Marquess wants. If he will allow me to finish—
§ VISCOUNT PEEL
I do not think I misquoted the noble Marquess, but in any case I hope he will let me continue. The position is that, in the first place, the obligation of paying these pensions, retiring allowances and so on, falls upon the Government of the Free State. That being so, under the terms of the Treaty, why is it to be assumed that those duties are going to he neglected? They have the income from their Taxes and so on, and they have ample funds for discharging them. If you are going to set up a new Government in that way why are you to assume that they will be false to the obligations into which they have entered? Behind them, of course, there stand the British Government, who have given their guarantee that if those men suffer the British taxpayer will come to the rescue.
I should point out that, in the opinion of the Government, it would be an extremely foolish expedient to put this statutory right into the Bill itself, because that itself would be a suggestion to the Irish Government that they were not going to discharge their duty and fulfil their trust. If this were put in as a statutory duty, they might say: "We are so little trusted 781 as to the payment of these funds that de statutory duty of paying them is put upon the British Government." The possibility might then arise that they would consider themselves to some extent free from their obligations, and might throw them upon the British taxpayer. These men are perfectly safe. In the first instance they have to rely upon the Government of the South of Ireland, and if that Government fails, the pledge has been most distinctly given that behind them is the guarantee of the British Government.
§ VISCOUNT PEEL
The pledge has been given by the British Government. It has been stated in another place.
§ VISCOUNT PEEL
The police and the officials concerned are assured of treatment not less favourable than that provided in the Government of Ireland Act, and This Majesty's Government will he the guarantor of their pensions. That is the statement.
§ THE MARQUESS OF SALISBURY
What we should have liked to have is an assurance that if there is a failure on the part of the Irish Government to meet the obligations to which they are bound under Article 10 of the Agreement, then the British Government will meet the deficiency out of Imperial funds.
§ VISCOUNT PEEL
That is exactly what I was trying to avoid. If you suggest that people are going to be false to their obligations, you invite them to be false, and that would be a very unwise course.
§ THE MARQUESS OF SALISBURY
I do not at all suggest that they are going to be false. I am willing to accept everything the noble Viscount has said. But the primary obligation rests upon His Majesty's Government, and it is no derogation of the Irish Government to say that, supposing they failed in their obligations, His Majesty's Government would take over the duty. It is what we should all do in our private capacity if there were an absolute obligation upon us to meet a certain liability. The fact that somebody else had promised to do it for us would not release us from the liability. We might say we had absolute confidence that the other person would not fail, but we should say in the most unequivocal terms that we recognised our own obligation to meet the liability. If, for instance, Mr. Collins died, or there was some change of Government in Ireland, or what not, and there was a failure on the part of the Irish Government to meet the obligation, the British Government would do so. Or supposing the Irish Government became bankrupt. That is quite possible, and in those circumstances the Imperial Government would see that their servants, who have suffered for us, should undergo no loss. That is all that I want the noble Viscount to say.
§ VISCOUNT PEEL
I think I have said so already, because if the Irish Government were to go bankrupt, obviously a bankrupt Government cannot pay pensions. In that case, the liability would be recognised by the British Government. I am unable, on behalf of the Government, to insert the proviso giving this Statutory guarantee because, as I said before, it would be an invitation to those who have accepted the liability under the Treaty to repudiate the liability which they so accepted.
§ LORD CARSON
Even at this late hour I would press upon your Lordships, as Lord Killanin has already done, to consider with whom you are dealing in this case. You are dealing with the Judges and the police and the civil servants who are now being handed over to the tender mercies of those with whom they had to deal in a criminal capacity, and in keeping law and order in the past. They have been your most faithful servants. They have the right to expect, and it was so provided, that they would receive their pensions and retiring allowances from the Imperial 783 funds. What have they done that this should be taken away from them? That is the condition upon which they took their office.
The noble Viscount seems to have a curious idea of how money can be guaranteed by a Government. He says first: "Why are you going to assume that the Irish Government will be false to their promise as contained in this Treaty?" Would anybody have assumed a week ago that the Irish Republican Army, or members of it, would walk into a hospital and, finding three constables sick in bed, would walk up to them and riddle each of them with bullets? Would anybody assume that, in a country like Ireland? But what does that demonstrate? It demonstrates the great, the overbearing hostility that these men have towards those who were your officers in Ireland, and demonstrates to you that you ought to take every means to protect them.
What does the noble Viscount really say? He says we cannot put a guarantee into an Act of Parliament. Why? Because, if the Free State Government knew it was there, they would not pay these pensions. I understood that was the argument that he used, but he gets up in this House and puts upon record that that is what will happen, and then he says: "Oh, but this foolish, silly, incompetent Irish Free State Government will not know anything about our desire to pay these pensions if they do not." Anything more futile or ridiculous I have never heard. But then the noble Viscount goes on to say: "You have the guarantee of the British Government," and when I say: "Show it to me," he says it is something Mr. Chamberlain said in another place. What guarantee is that? I should have thought the noble Viscount knew enough about Parliamentary Government to know that it is none. On what
§ would you frame your Estimate without a Statute? Where would you get the right to frame your Estimate without a Statute? Supposing this Government goes out of power after twenty years, or whatever time they contemplate misgoverning this country, or at any time, how are they bound? Will they be bound by what they find in the Official Report? Will they be bound to find the money if, for instance, money is wanted for socialist or other schemes.
§ If ever you had a duty it was to protect these men, who have carried their lives in their hands all these years, carrying out your policy which you have now reversed. You have made them the underdog, and you say to them: "Look for merciful treatment to those whom hitherto you have been trying, under the orders of the British Government, to keep within the bounds of law and order." It is an impossible position, and a false position, and I can assure you that there is nothing at the present moment more disturbing to the minds of these men, some of them very poor men, than the treatment they find accorded to them by the British Government under this Treaty. Why? Because they know well that the mere fact of their having served the British Government is not only an inducement to these people to stop their pensions, but even to render their lives unsafe from day to day. On behalf of these men I make an appeal to your Lordships to pass this Amendment—if the Government want it altered, it can be altered—and let us have a guarantee that the Government are going to do what the noble Viscount says they will do.
§ On Question, whether the proposed words shall be there inserted?
§ Their Lordships divided:—Contents, 42; Not-contents, 40.785
|Wellington, D.||Bangor, V. [Teller.]||Fairlie, L. (E. Glasgow.)|
|Bertie of Thame, V.||Farnham, L.|
|Dufferin and Ava, M. [Teller.]||Charlemont, V.||Gisborough, L.|
|Linlithgow, M.||De Vesci, V.||Killanin, L.|
|Hutchinson, V. (E. Donoughmore.)||Lawrence, L.|
|Abingdon, E.||Mowbray, L.|
|Buxton, E.||Templetown, V.||Ormonde, L. (M. Ormonde.)|
|Devon, E.||Penrhyn, L.|
|Drogheda, E.||Raglan, L.|
|Iveagh, E.||Exeter, L. Bp.||Ranfurly, L. (E. Ranfurly.)|
|Lindsay, E.||Redesdale, L.|
|Midleton, E.||Atkinson, L.||Sempill, L.|
|Morton, E.||Basing, L.||Sudley, L. (E. Arran.)|
|Portsmouth, E.||Bellew, L.||Sumner, L.|
|Vane, E. (M. Londonderry.)||Carson, L.||Walsingham, L.|
|Wicklow, E.||Deramore, L.||Wavertree, L.|
|Birkenhead, V. (L. Chancellor.)||Lucan, E.||Clwyd, L.|
|Malmesbury, E.||Colebrooke, L.|
|Sutherland, D.||Onslow, E.||Cottesloe, L.|
|Sandwich, E.||Fingall, L. (E. Fingall.)|
|Aberdeen and Temair, M.||Shaftesbury, E.||Gorell, L.|
|Bath, M.||Strange, E. (D. Atholl.)||Hylton, L.|
|Kilmarnock, L. (E. Erroll)|
|Ancaster, E.||Astor, V.||Loch, L.|
|Bradford, E.||Peel, V.||MacDonnell, L.|
|Chesterfield, E.||Marshall of Chipstead, L.|
|Chichester, E.||Abinger, L.||Meston, L.|
|Clarendon, E.||Annesley, L. (V. Valentia.)||Somerleyton, L. [Teller.]|
|Fortescue, E.||Belhaven and Stenton, L.||Stanmore, L. [Teller.]|
|Howe, E.||Braye, L.||Treowen, L.|
|Leven and Melville, E.||Chalmers, L.||Wigan, L. (E. Crawford.)|
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ [The sitting was suspended at ten minutes after eight o'clock and resumed at half-past nine o'clock.]
THE MARQUESS OF LONDONDERRY moved, at the end of subsection (1), to insert the following proviso:—
Provided that nothing in this Act shall have any force or effect until all persons resident or domiciled in Northern Ireland who are declared by name by the Government of Northern Ireland to be illegally detained in Southern Ireland or elsewhere outside Northern Ireland, shall have been released and conducted in safety across the frontier of Northern Ireland.
The noble Marquess said: It may surprise your Lordships to learn that there are still in the hands of the Provisional Government, or in the hands of the so-called Republican Army, by whose deeds the Provisional Government is not averse from profiting, although it refuses all responsibility, five members of the Special Constabulary who were the victims of the raid on the night of February 7–8, and of the subsequent outrage at Clones on February 11. I have the names of these five constables before me, and I move this Amendment in the hope that the Government may see their way to exert pressure to bring about the liberation of these constables. My primary object is to urge this matter on the Government. It is one of very great importance, and I sincerely hope that the Lord Chancellor will use his influence, because he has the power of doing so, on the Provisional Government for the purpose of securing the liberation of these men.
§ There is no justification whatever for their incarceration. They cannot be placed under the heading of hostages because I think your Lordships will agree that there 786 can be no question of hostages between any other forces than belligerents, and I cannot believe that Mr. Michael Collins, as the chief Minister of the so-called Provisional Government, can claim that he has any right whatsoever to retain these five constables. I have ventured to tell your Lordships when these men were taken. The excuse at the time was made that they were seized owing to the detention by the Northern Government of those who were known as the Monaghan footballers. That excuse must have vanished by now because the footballers, as they were called, have been released by order of the Lord-Lieutenant of Ireland on February 10.
§ It may interest your Lordships to know who the Monaghan footballers were, and how it was they came to be detained in Northern Ireland. These men were arrested in the New Year at Dromore in County Tyrone while on their way, as they alleged, to take part in a football match in Derry City where at the time certain Sinn Feiners were lying in gaol, accused of the brutal murder of their gaolers and of an unsuccessful attempt to escape on the part of prisoners lawfully confined there. The Special Constabulary had been warned that attempts would be made to, rescue these murderers from Derry gaol, and they arrested this party of footballers because, on searching them, they were found to be carrying aims and bombs. I feel that even the Colonial Secretary, with his usual optimistic nature, will realise that this is not quite the equipment one would expect to be carried by individuals who were proposing to engage in a football match. To cut a long story short, these men, or some of them at all events, were obviously members of the Irish Republican Army who were on their way to do what they could to liberate their friends and colleagues in Derry gaol. 787 These men were apprehended and confined until such time as the Assizes should be held, when they would be brought to trial.
§ I have no doubt that the Lord Chancellor is fully aware that, owing to representations which were made by the Government here to Sir James Craig and the Attorney-general, these men were liberated, or rather the usual procedure was adopted. They were granted bail and when the time tame that they were to be brought up for the offences for which they were indicted, the Attorney-General pursued the course which is familiar to your Lordships of entering what is known as a nolle prosequi. That was done on the representations of the British Government that in the interests of peace this was a magnanimous act which could be performed with advantage. I think your Lordships will agree that the Government of Northern Ireland have done everything they can in the direction of conciliation by waiving their clear rights.
§ It is obvious that at a time when a Government is set up it is most important that there should be punctilious observance of the law, so far as you can possibly secure it, and any pardoning or any condonation of offences naturally very injurious to your own administration. We have fallen in with every suggestion which has come from the British Government, and we have allowed our indictments to go by the board. The Attorney-General, in the interests of conciliation, has taken upon himself not to undertake prosecutions (which he was fully entitled to initiate) in order to make the so-called Provisional Government realise that everything is being done to bring about peace in Ireland. After what we have done in the North we are, I think, entitled to press for the release of these five constables whose names I have before me at the present moment. I should not like to make any insinuations that the British have not done everything they can possibly do to procure the release of these men, but I felt it so important that this matter should be brought forward in public that I have put down an Amendment to the effect that tins Bill shall not be carried into law unless these men are released.
§ The Lord Chancellor knows perfectly well that I have no desire to wreck this Bill. It has to go through. I have made no attempt to try to pass a wrecking Amendment in your Lordships' House. I 788 have already, to-day, ventured to put forward an Amendment, and I have said very specifically that that Amendment was for the consideration of the Government here and in another place, and that if they considered it was not possible to carry out the Amendment because it would wreck the Bill, I should not press it. That remark applies equally to the Amendment I now put before your Lordships. I should like very much to receive an assurance from the Lord Chancellor that every step is being taken for the release of these men. The Provisional Government has no right whatever to retain the men in confinement, and I sincerely hope I shall receive from the Lord Chancellor an assurance that steps are being forthwith taken to obtain their release. I beg to move.
Page 1, line 9, at end insert the said proviso.—(The Marquess of Londonderry.)
§ THE LORD CHANCELLOR
The object of the noble Marquess, as was very frankly indicated, is to procure some further discussion upon the subject of the impudent and detestable outrage which has been reprobated by every one who has discussed these matters. But really his Amendment—he will forgive me for saying so—while admirably adapted for the purpose of enabling him to remind us that these men have still not been released, is an Amendment which is not adapted happily for any other purpose. Observe what the Amendment really means. It means that if the Government of Northern Ireland choose to say that any single man is illegally detained anywhere in the world except in Northern Ireland, the whole of this Act is to be suspended. They may say that one O'Brien is detained in Kamchatka. They need not even say he is detained by the Government of Southern Ireland. All they have to say is that A.B. is detained anywhere in the world, and this Act is to be suspended.
The noble Marquess, of course, would be the first to agree that the Amendment is ridiculous in its present form, or anything like its present form, but I choose to discuss it in a sentence or two on merits rather than on the amazing effect which, if adopted, it would produce—namely, that the Government of Northern Ireland could suspend this Bill indefinitely as long as they put forward a long list of persons whose cases required investigation. Its 789 form is incapable of defence. Let me, then, say a word about the merits. These men are not detained by the Provisional Government. The noble Marquess said they were illegally detained by the Provisional Government, but I should be astonished if he made that statement advisedly, because all the information at my disposal satisfies me that the statement has no contact at all with fact. On the contrary, I am satisfied that the Provisional Government have used every effort in their power to procure the release of all these men, and the indignation of the noble Marquess at the insolence and the success of those who, in fact, are responsible, I think he will accept from me, does not exceed mine; and his satisfaction if, and when, those who have been guilty of this act are brought to justice and their release effected, will not be greater than mine.
But this is just the kind of act that we are hoping the success of this policy will render impossible for the future. It would be as sensible to put down an Amendment: "Until all outrages have ceased in Belfast, or until the Southern Government have declared that all outrages have ceased in Belfast, this Act shall have no effect." It is our hope that the result of these proposals will be to render impossible incidents of this kind, and also of the kind that have taken place in Belfast. We cannot tell whether we are too sanguine or not, nor have we ever, as far as I am concerned, expressed our hopes in too sanguine language. We have had to take grave decisions and there is not one of us who at every stage has not been conscious of his own fallibility. The only claim we have ever made on the people of this country and on both Houses of Parliament is that they should at least charitably suppose, not that we intended to leave or injure old friends, not that it was in our mind to do any disservice to the national cause, but that, in the spirit and temper of men who find themselves confronted on every side by formidable perils, we have tried to make the best decision we could.
Whether we are right or wrong the future alone can show. I make to-night no particularly sanguine prediction, though I am still hopeful that with patience and toleration on all sides the matter will be carried to a successful conclusion. It is to render such incidents impossible for the future that our efforts are directed, and it would indeed be a decision which 790 would involve this House, I think, in some legitimate criticism if we were to say that as a result of acts of violence, which I am sorry to say can be matched in other parts of Ireland, we were to delay the operation of a Bill, the policy of which noble Lords have said to-day that they do not desire to wreck.
§ LORD CARSON
I think it would have been more satisfactory to the House if time Lord Chancellor had told us what efforts they were making to procure the release of these men. He criticised the form of the Amendment. But that, after all, as I think he sees himself, is a very small matter compared with the realities of the situation. Let us see what it is that we are really dealing with, and what is happening under British government. On February 7 or 8 there was a raid in broad daylight at the station of Clones, which is outside the borders of Northern Ireland but which, as I understand, is unfortunately one of the stations through which, in traversing the district of Northern Ireland, it is necessary to pass in going to or from Belfast. Some special constables of Northern Ireland were going through when suddenly they came upon part of the Irish Republican Army who, I understand the Lord Chancellor to say, were not in any wise under the control of or concerned with the Provisional Government. That, in itself, seems to me a very extraordinary situation.
I suppose His Majesty's Government have entrusted the keeping of law and order to the Provisional Government without even an Act of Parliament because they thought they were the best means of carrying out the problem of enforcing law and order. What a commentary it is upon the abandonment of government by this country that these men should meet there and should shoot dead several, I forget how many, of these men, and kidnap five more. I had a pathetic letter from a nephew of mine, who had the happiness to have handed over to him for custody the dead bodies of these men, a rather gruesome duty for a young officer who had served his country well during the war and gained considerable distinction.
What happened in addition to that? These men are kidnapped on February 8. Are we to be told that since February 8 nothing has been clone to procure their release? Are we to be told that neither 791 His Majesty's Government nor the Provisional Government had any power to procure their release? If that is so, there is nothing but anarchy and chaos in the way the Government have managed the whole of this business. There was a time, not so very long ago, when the incarceration of British subjects in any part of the world would have at once excited the whole energies of this country to say: "These are British subjects, and as such they cannot be interfered with in this way." But here, in the United Kingdom, as it is still called (at least I hear it so called in church when I go there) there are five men kidnapped and the Lord Chancellor does not know to-day—and he is one of the most powerful members of His Majesty's Government, and, if he will allow me to say so. I should have thought him one of the most keen for the liberties of His Majesty's subjects— whether these men are alive or dead. I do not think that is a satisfactory situation.
I think he might have told us what they have done to procure the release of these men. I think we might have had communications from Mr. Collins and the others who represent Southern Ireland now, and be told what was done by them to secure the release of these men. But that is not all. A day or two after these men had been kidnapped, by order of His Majesty's Government a number of Sinn Feiners in this country, who had been guilty of arson and of shooting at police, and other matters of that kind, were released. Surely, His Majesty's Government might have said: "We will not release these men until the other men are restored to their homes," or something of that kind. It really is depicting this once great country, and I hope still great country, as the most feeble of all nations, to suppose that British subjects can be kept in captivity in open defiance both of this Government and of what you call the Provisional Government, without any step being taken for their release. I do not know, but looking at former incidents of a similar character in Ireland I should imagine, from the time that has elapsed, that very probably these men are dead. We know that women have been taken in similar circumstances, as for instance Mrs. Lindsay, and we know that only their dead bodies have ever been recovered.
I should have thought that if the British Government had taken the responsibility 792 upon themselves of handing over to Mr. Michael Collins and his friends the powers of Government, at least we might have gained something, but I cannot see, if this is allowed to go on, that we have gained anything. The noble Marquess who moved this Amendment did call attention to the fact that the excuse for the raid was said to have been that there were certain prisoners detained in gaol at Derry, who were called footballers. I hope your Lordships will not be led away by these technical terms. In Ireland a footballer is not a man who kicks a football. In this case he was a man armed to the teeth with revolvers and bombs, which he did not intend to kick.
When the Phœnix Park murders took place, and one man was hanged, it was said all over Ireland what a shameful thing England had done, for they hanged a man because he held up his handkerchief and blew his nose, which was the signal to the murderers that the victims were passing a particular place. These footballers were released by the clemency of the. Crown, whether with or without the consent of the Government of Northern Ireland I do not know. When the Lord Chancellor refers to what is going on in Belfast I think he might very well recollect who has brought about this state of disturbance in Belfast, and how it has been brought about by the management of the whole of this business. He might also have recollected that about this same time there were men in Derry gaol who had chloroformed and murdered a warder, and had been sentenced by the legal Courts of the land to execution. They were reprieved by order of His Majesty's Government as a method of bringing about peace and good will in Belfast. It is all a one-sided affair.
I agree with what the Lord Chancellor says, that from every side of this House it has been said that this Bill, when it becomes an Act, ought to be given a chance. I wish I could be as optimistic as the Prime Minister, who said we would have nothing but passionate loyalty the moment the truce was ratified. But I agree that it must be given a chance. Yes, that is true, but, while this chance is being given, the people who are responsible for giving the chance are His Majesty's Government, and it is His Majesty's Government who must be held responsible for incidents such as these, when they walked away 793 and left Ireland, and said: "The Provisional Government are able to carry on better than we could."
Are your Lordships going to be satisfied now that these men should be still kept in custody? Are you going to do nothing? The noble Marquess has put down this Amendment as, I suppose, the only way by which he could do anything effective. He is not a member of this Government, but I should imagine that, as a member of the North of Ireland Government, not only was it his duty to put it down, but it would have been cowardly and inhuman of him if he had not taken some steps to see that there was brought before the public the fact that there are five men who have been missing since February 7 last, and the British Government do not know whether they are dead or alive, and we are not told a single thing they have done to try to get their release. That is not English, and it would not have been allowed in any part of these realms except Northern Ireland.
There is another matter which I would bring to the notice of the noble Viscount on the Woolsack. Shortly after the occurrence of this outrage—which he has condemned, I admit, in very strong terms—he moved a Motion in this House, and there was another moved in the House of Commons, by which the Government were authorised to set up an Inquiry into this whole matter, and I saw by the newspapers—the only means I have of knowing —that an eminent Judge had been appointed to proceed with this Inquiry. May I ask the Lord Chancellor what has taken place about that? May I ask him also whether it is possible to go on with that Inquiry until you get these five men? And has anything been done to speed the Inquiry and get the witnesses for it, and are these five men necessary witnesses in the transaction?
You may, or you may not, pass this Amendment, but it is acts and omissions of this kind, and the utter dereliction of any sense of responsibility or duty on the part of the Government, once they adopted this policy, that has brought about the whole of this chaos. However you may approve, if any of you do in your hearts approve of the Government policy, however you may think that the Treaty was right, however you may think that in the circumstances there was nothing to do but to give way to the complete demand of the 794 assassin and the gunman in Ireland, will anybody defend the way in which the Government has carried out the Agreement? Ought you to have evacuated Ireland Ought you to have run away from all the responsibility? Ought you to have withdrawn your police, your soldiers, and everything else until you had set up there something to take the place of the previously existing Government and thrown the whole responsibility upon them? I trust we shall hear, before the debate concludes, something more hopeful as to the return of these men to their homes, and that we shall be assured that every effort has been made and will be made to have them released.
§ THE LORD CHANCELLOR
The noble and learned Lord is certainly entitled to no less at the hands of the Government, and it was an omission on my part that I did not make it plain to him and to the House that, entirely unsuccessful as our efforts have been. every attempt which was in our power has been made to procure the release of these men, and if I were to show to the noble and learned Lord the number of telegrams dealing with this subject that had been sent each day since this event first happened, he would see that, whatever other omissions he might complain of in our conduct, we had certainly not been guilty of negligence in this particular. I am most anxious not to become involved in controversy as to the merits of this particular incident. The noble and learned Lord will tell me if I am wrong, but I understand that this party was an armed band of Constabulary who had carried their arms on to the territory of the Provisional Government; that they had gone there without intimating what their purpose was, and without giving any notice to the authorities there of their intention of going armed. Those are the facts which have been given to me officially by those who, up to the present, have enquired into this matter. I am blaming nobody for this incident, because I understand they went round the loop line.
§ THE LORD CHANCELLOR
It may be the direct route or it may not be, but 795 that is not quite the question, if the noble Marquess will allow me. The question is this: When the atmosphere was charged with excitement, was it a wise step on the part of these men to go armed, without warning of their intention, on to the territory of the Provisional Government?
§ THE LORD CHANCELLOR
Five of them were armed; I am content to accept that from the noble Marquess. Let nobody think that I am even approaching the borders of a defence of anything that was done. I am trying to see how the misunderstanding and the excitement were produced which led to this horrible outrage. There they were, several of them armed and seen to be armed, and it is very easy indeed to imagine the effect in the kind of atmosphere which the noble and learned Lord has described in relation to the Southern so-called footballers—I am not arguing now whether they were footballers or not—who had gone to Belfast with arms. Here, again, I think that there is a slight conflict of evidence because I believe the possession of bombs has not been established and that when information was asked in verification of it, it was found not to be forthcoming. It appeared to me to be rather surprising if these people were really carrying bombs that the legal authorities in Northern Ireland should have been willing, as they were willing, to release them on bail. I do not desire to carry that matter further.
The noble and learned Lord has asked me a question which is entitled to a clear answer, and that is as to the progress that has been made in reference to the Inquiry for which I moved in this House and to which your Lordships assented. He is quite right in the suggestion he made. This Inquiry cannot be usefully held until 796 these men have been released. That is the view of the Northern Government, which has been conveyed to His Majesty's Government here, and it is in consequence of that view, so expressed by the Northern Government, and assented to, on grounds of reasonableness, by the Government here, that no further step has been taken in that matter. Let there be no misunderstanding. There is no member of the Government who does not condemn the original act at Clones, whatever may be said as to the misunderstanding of the moment. There is no one who does not condemn the illegal detention of these men, and who would not make any conceivable effort to procure their release.
But when the noble and learned Lord says: "You are responsible for this by evacuating your troops from the country," he really must allow me to point out that that is not a complete statement in relation to the situation. We were not able, in the kind of sporadic and difficult warfare with which we had to deal, to prevent outrages worse than this before we evacuated a single troop from Ireland, and your Lordships are well aware that in the last two or three years, in which I have been, unhappily for myself, responsible for replying in this House in Irish debates, over and over again I have been compelled to admit that with all the military forces we had there we had been powerless to prevent outrages graver than this. The alternative which presented itself to us was a very simple one. It was whether or not we were going to make an attempt, by multiplying our forces, to govern Ireland by coercion, or whether we were going to make an attempt to reach a settlement.
What do we observe going on to-day? The noble and learned Lord is a very close student, as I know, of the Irish Press, and of all that happens in Ireland, and he will have noted these events—and they are very significant—as closely as I have. What is happening to-clay? There is every evidence that Mr. de Valera realises that he is a beaten man. Mr. de Valera is a man who would stand to the death—whether his own or other people's I do not pause to inquire—in the cause of the Republic. He has rallied round himself all that is desperate and all that is implacable in Ireland at this moment. Every speech he makes, and every act he commits, makes it more and more certain, if only we 797 can avoid civil war on the boundary, that those who signed the Treaty and mean to carry out the Treaty must succeed, and that those who have ranged themselves on the side of the Republic must inevitably fail. All the information that we have at this moment is that if only the united efforts of both Parties can preserve peace on the boundary this Treaty will be confirmed by a majority in the Dail after the Election as large as, or larger than, has been attained in either House of Parliament in this country.
Observe the last speech made by Mr. de Valera. He said, I see, that "it will be necessary for us to wade through further streams of blood." His own wadings, I think, up to the present have not been very formidable. "We must wade through further streams of blood," he said, "and this time it will be not English blood but Irish blood, and it may well be the blood of Irish Ministers." Those are the ravings of a man who knows he is beaten.
§ THE LORD CHANCELLOR
If it is of importance I would wish to follow it, but if not perhaps the observation ought not to have been made. They are the ravings, it seems to me; of a man who knows that he has been defeated. If that be true what does it mean? Why does he exhibit this violence in relation to Mr. Collins and Mr. Griffith? Why does he talk of wading through their blood? It is for one reason, and for one reason only. He knows that they are his enemies, and that they intend to carry this policy, if they have the power, to a successful conclusion.
This is at least worth the experiment. It may fail, but for the first time you have a large body of opinion collected in Southern Ireland which has arrived at the conclusion that the future prosperity of their country is not irreconcilable with the Imperial position, and the Imperial interests of this Empire. Let us at least give it a trial. If the whole thing breaks down we are no worse off than we were when we 798 started the evacuation. It does not matter a brass farthing, I assure the noble and learned Lord—if he will allow me to offer an assurance—if you apply your mind to fundamentals. It can be corrected, and it can he corrected in two days, either by military, naval or economic weapons, We are no worse off if the whole thing breaks down, and if only we get peace on the boundary I am persuaded that it will not break down, and that you will see, as a result of the Election in Ireland, a real prospect for the first time of these old differences being cured, and alleviated, and expelled for ever.
We have made every effort on the subject dealt with by the Amendment, on which, I imagine, the noble Marquess does not propose to divide the House. I can assure him that if he is interested enough to see the whole series of telegrams which have passed between the Colonial Office and the authorities in Ireland from the day these men were arrested he will recognise the restless industry with which this monstrous act has been pursued by the Imperial authorities. I do not mind giving him this admission, that I and members of the Government regard it as in some degree a kind of personal humiliation, of which the noble and learned Lord has spoken, that our efforts to procure their release have proved unsuccessful. But we should show a melancholy lack of perspective and proportion if we allowed an incident of this kind, however exasperating and terrible, to come into collision with the attempt we are trying to carry through.
§ THE MARQUESS OF SALISBURY
There was a time when an assurance from His Majesty's Government as to the near revival of a better state of things in Ireland would have had sonic effect on your Lordships' House. In the course of the last few years. I have so often heard from that bench assurances that the "reign of terror was rapidly coming to an end"; "We have murder by the throat."
§ THE MARQUESS OF SALISBURY
It was in the other House and by colleagues of the noble and learned Viscount. I make him a present of that wonderful discovery.
§ THE MARQUESS OF SALISBURY
I was sorry for the Lord Chancellor as I heard him just now make such a humiliating confession of the abject state of things which exists in Ireland, but he had the grace at the end to say that it was humiliating. It was the first occasion on which a Minister of the Crown in the present Government has admitted the humiliating condition of things in Ireland. Indeed, he reproved the noble and learned Lord for having used that particular adjective.
§ LORD CARSON
May I say that, having regard to what the Lord Chancellor said, I counted it and I only used it six times.
§ THE MARQUESS OF SALISBURY
What is transcendently clear is either that the Provisional Government cannot, or will not, release these men. If they will not, then that is a very serious and grave act of defiance. If they cannot, then is it surprising that we doubt whether they are fit to exercise the powers of complete independence which the Government are conferring upon them? That is the state of things which has at last been admitted by the Lord Chancellor. In his own words, they are in the humiliating position of having tried to obtain the release of these men, and failed. I hope that confession will be printed and circulated throughout this country so that the electors may know that the Government, by their own admission, are in a humiliating position in Ireland.
As regards the present Amendment I agree to this extent with the Lord Chancellor—that in its present form it would not be possible to insert it in the Bill. It is much too wide, and probably your Lordships would not be willing to insert it. The noble Marquess, however, is amply justified in the debate he has raised and in the admissions he has obtained from the Government. I think he will be well advised not to put the House to the trouble of a Division, but that is a matter for him to decide.
§ LORD CARSON
Before the Question is put and the Amendment negatived, may I give notice that I will put down a Question and a Motion on this same subject next week?
§ THE LORD CHANCELLOR
It will be very respectfully considered by His Majesty's Government when the noble and learned Lord takes that step.
§ On Question, Amendment negatived.
LORD CARSON moved, at the end of subsection (2), to insert the following proviso:—
Provided always that if an Address is presented in accordance with Clause 12 of the Treaty no Order in Council under this section shall by its terms in any way, interfere with, detract from, or modify the rights, powers or privileges conferred upon the Parliament of Northern Ireland by the Government of Ireland Act, 1920.
The noble Lord said: The next Amendment which stands in my name cannot, I am glad to think, be argued as in any wise infringing upon the Treaty except perhaps in the imagination of His Majesty's Government, who do not want to help us. In the second subsection of Clause I very extraordinary powers are given to His Majesty's Government. They are allowed by Orders in Council to set up the whole of the Constitution for Ireland, and not only have they the power to transfer all the ordinary powers for carrying on the Government in Ireland but they have the right to include in these Orders
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.
In fact, it makes the Government the legislators as regards the powers that are to be handed over to the Provisional Government.
§ Power is given to Ulster under the Treaty to vote themselves out. My Amendment is to make it perfectly clear that, if Northern Ireland votes itself out in pursuance of the Treaty, the Government shall not have power to affect the Constitution of Northern Ireland as prescribed by the Act of 1920, and that Northern Ireland shall be left alone. I have grave apprehension, under the wide words of the clause, as regards these Orders. They have nothing to do with the Treaty, and the Government may be inclined to make Orders which will infringe 801 upon the Constitution of Northern Ireland. My Amendment provides that if Ulster votes itself out, no Order in Council shall infringe its privileges under the Act of 1920. I hardly think your Lordships will allow the Act of Parliament setting up the Government of Northern Ireland to be infringed without at least another Act of Parliament, and your Lordships would never entrust the power of doing this to any Government without having the matter brought before you. I therefore put down this Amendment to make it clear that the Constitution of Northern Ireland is not to be affected.
Page 2, line 8, at end insert the said proviso.— (Lord Carson.)
§ VISCOUNT PEEL
Under Article 12 of the Agreement it is clearly stated that if Ulster contracts out, the provisions of the Government of Ireland Act (including those relating to the Council of Ireland) "shall, so far as they relate to Northern Ireland, continue to be of full force and effect, and this instrument shall have effect subject: to the necessary modifications." Therefore it is perfectly clear that the powers under the Act of 1920 will have full force and effect in Northern Ireland, and if so it is equally clear that any Order in Council modifying those powers would be ultra vires. Therefore, so far as that point is concerned, the Amendment of the noble and learned Lord would not only be unnecessary but also superfluous.
§ LORD CARSON
The noble Viscount is a barrister as well as myself and ought to know that Clause 1 (2), which is part of the Act of Parliament, is absolute. It is not governed only by the Article to which he refers. May I say that if the matter is so clear as the noble Viscount seems to think and my Amendment is only superfluous, will he put it in to make the thing perfectly certain?
§ VISCOUNT PEEL
I had not finished what I was going to say when the noble and learned Lord intervened. The words to which he referred relating to incidental or supplemental provisions would only be, of course, in connection with the handing over of administrative powers to the Southern Government. They could not possibly affect the powers of the Northern 802 Government, because they are most clearly dealt with and excepted under Article 12. Therefore, any such Order in Council would be completely ineffective and ultra vires.
The noble and learned Lord has appealed to me as a lawyer. I might appeal to him also as a lawyer and point out that it would be extremely unwise, when the matter is clear, to put in words which were superfluous, because some attention would be paid to those superflous words and they would be construed as having some meaning which the other perfectly clear words did not possess. But these words of the noble and learned Lord go further, because they would also prevent Orders in Council which modify the privileges of Northern Ireland, not merely as they relate to Northern Ireland, but as regards other matters as well. For instance, take the powers of the Council of Ireland. Those powers require to be modified under the Treaty, because under the Treaty they are, as regards Southern Ireland, handed over to the Southern Ireland Government. Clearly if the Amendment were passed, it would render it impossible for these powers to be handed over to the Government of Southern Ireland. Therefore, on these two grounds I must oppose the Amendment.
§ LORD CARSON
I am afraid I must insist upon the Amendment. I do not understand the argument of the noble Viscount. First, he says it is superfluous, and then he says it does something which he does not want it to do. I do not see how the two arguments hang together, and when he appeals to me on the ground that it is very unwise to do it I will take all the responsibility of the unwisdom.
§ VISCOUNT PEEL
I think my argument was perfectly consistent. As regards the powers of Northern Ireland the Amendment is unnecessary, and it does have a certain mischievous effect as regards the handing over of powers to the Southern Ireland Parliament. The two are not inconsistent with each other, because they apply to different matters—the Northern Parliament and the Southern Parliament.
§ On Question, whether the words shall be there inserted?
§ Their Lordships divided:—Contents, 36; Not-Contents, 72.803
|Dufferin and Ava, M. [Teller.]||Stanhope, E.||Erskine, L.|
|Linlithgow, M.||Vane, E. (M. Londonderry.)||Farnham, L.|
|Salisbury, M.||Bangor, V.||Gisborough, L.|
|Bertie of Thame, V.||Lawrence, L.|
|Abingdon, E.||Charlemont, V.||Mowbray, L.|
|Devon, E.||Templetown, V.||Penrhyn, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Raglan, L.|
|Atkinson, L.||Ranfurly, L. (E Ranfurly.)|
|Grey, E.||Avebury, L.||Redesdale, L.|
|Kilmorey, E.||Bellew, L.||Sempill, L.|
|Lindsay, E.||Carson, L.||Sudley, L. (E. Arran.) [Teller.]|
|Morton, E.||Deramore, L,||Sumner, L.|
|Selborne, E.||Dynevor, L.||Wavertree, L.|
|Birkenhead, V. (L. Chancellor.)||Astor, V.||Hylton, L.|
|Chelmsford, V.||Kenlis, L. (M. Headford.)|
|Devonshire, D.||De Vesci, V.||Kenry, L. (E. Dunraven and Mount-Earl.)|
|Sutherland, D.||Haldane, V.|
|Wellington, D.||Hood, V.||Killanin, L.|
|Aberdeen and Temair, M.||Hutchinson, V. (E. Donoughmore.)||Kilmarnock, L. (E. Erroll.)|
|Bath, M.||Lamington, L.|
|Peel, V.||Lee of Fareham, L.|
|Ancaster, E.||Ullswater, V.||Loch, L.|
|Bradford, E.||Lovat, L.|
|Chesterfield, E.||Aberconway, L.||Meston, L.|
|Chichester, E.||Abinger, L.||Monteagle, L. (M. Sligo.)|
|Clarendon, E.||Aldenham, L.||Monteagle of Brandon, L.|
|Eldon, E.||Annesley, L. (V. Valentia.)||Nunburnholme, L.|
|Fortescue, E.||Belhaven and Stenton, L.||O'Hagan, L.|
|Howe, E.||Braye, L.||Oranmore and Browne, L.|
|Iveagh, E.||Chalmers, L.||Ormonde, L. (M. Ormonde.)|
|Leven and Melville, E.||Clwyd, L.||Ponsonby, L. (E. Bessborough.)|
|Lucan, E.||Colebrooke, L.||Shandon, L.|
|Midleton, E.||Cottesloe, L.||Somerleyton, L. [Teller.]|
|Onslow, E.||Cullen of Ashbourne, L.||Stanmore, L. [Teller.]|
|Portsmouth, E.||Desart, L. (E. Desart)||Teynham, L.|
|Sandwich, E.||Fairlie, L. (E. Glasgow.)||Treowen, L.|
|Shaftesbury, E.||Fingall, L. (E. Fingail.)||Vernon, L.|
|Strange, E (D. Atholl.)||Gorell, L.||Wigan, L. (E. Crawford.)|
|Wicklow, E.||Hemphill, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
LORD SUMNER moved, at the end of subsection (2), to insert the following new subsection:—
(3) Before any Order in Council under this Act is submitted to His Majesty in Council, a draft thereof shall he laid before each House of the Imperial Parliament and if an Address is presented to His Majesty by either House within fourteen days on which that House has sat next after the draft has been laid before it, against the draft or any part thereof, no further proceedings shall be taken on the draft, without prejudice to the making of a new draft.
§ The noble and learned Lord said: There is a certain amount of overlapping, I confess, between the Amendment that I have to submit to your Lordships and that which has just been disposed of; because this, like the preceding one, refers to the procedure by Order in Council for which provision is made in Clause 1 of the Bill.804
§ It is, however, one of real importance. It is one which I had hoped was not nearly so controversial as some of the Amendments with which your Lordships have been dealing. I have a further reason for pressing it, and that is that I have discovered during the discussion on the last Amendment what I am ashamed to say I did not know before—that the noble Viscount in charge of the Bill is learned in the law. From the part he has hitherto played in the conduct of this Bill I had not discovered that he had followed that branch of learning. Now that I have got him, avid have got him upon what I think is a dry but important point of Constitutional Law, I hope that I may make a little progress with him.
§ The point is this. Subsection (2) of the first clause makes the mechanical provision for giving effect to Article 17 of the Treaty, and Article 17 of the Treaty provides for 805 the transfer to the Provisional Government of Southern Ireland of what it calls the powers and machinery requisite for the discharge of its duties. As the Government of Southern Ireland is a Government which is not at present responsible to any elected body whatsoever, as it is a Provisional Government—a term so far as I am aware hitherto unknown in our Constitutional Law and more suitable to a South American Republic than to these realms—there is as usual in the Treaty a certain vagueness about this Constitution, but at any rate it is quite clear that in order to carry out the Treaty it is our duty to put it in the power of His Majesty's Government to transfer to the Provisional Government such powers and machinery as are requisite for the discharge of its duties.
§ What are the duties of a revolutionary government not founded upon any basis of law in a country which is in a state of disorder and which it cannot control? I confess I am not very clear, but the way in which it is proposed to be done is this. Your Lordships are asked by this Bill to say that certain Orders in Council which you have not yet seen and which will take form at the hands of His Majesty's Government, have in advance the force of law. You are asked to take such a step as will withdraw them entirely from the cognisance of Parliament. You are asked to leave it entirely to His Majesty's Government to decide what powers and machinery are requisite for the discharge of the duties of a Provisional Government, and to select their own time and their own way and phraseology for the transfer of those powers. Shall I be using an indecent term if I say it is rather a large order? Hitherto, I have thought it was the duty of the Executive Government of this country—the constitutional duty—to take Parliament into its confidence, to obtain from it after full exposition the powers that it seeks to execute, and to allow to Parliament the opportunity of criticising the time, manner and language of the instrument by which it carries out those desires. All those things are taken away from us by this Bill.
§ It has two aspects. I will put them briefly at this hour of the night. The scheme upon which this curious reform is being carried out, as the noble Marquess who sometimes leads the House explained to us in December, was that there should be the erection of this Revolutionary 806 Government, the intervention of a Provisional period resting upon no authority of law and not much of order, to be regularised in the long run by certain legislation for the benefit of Southern Ireland and an Indemnity Act for the benefit of His Majesty's Government and the officials it employs—a programme a little unwonted but still, when it is all carried out, one which will no doubt make everything shipshape and water-tight. But the effect of this provision is to anticipate the Act of Indemnity for this reason.
§ Up to the present whatever has been going on in Ireland has been going on without the support of law. The legal powers and duties which the various Statutes for the better government of Ireland have imposed upon a number of officials and public bodies remain their powers and duties as before. There are a considerable number of officials in Ireland and in this country—I do not suggest that this applies to members of His Majesty's Government— who are liable to sundry and inconvenient processes because they do not do their statutory duty and these are the officials who, in due course, will require, and ought to receive, an Act of Indemnity. As soon as the powers are transferred to the Provisional Government then the obligation of these, officials is terminated, and although they may require an Act of Indemnity for what has passed, this inconvenient period will be brought to an end with the passing of this Bill wind the flight of a bundle or two of Orders in Council to Ireland.
§ It is therefore in effect, though not in name, an Act to indemnify, because it puts a sudden term to the period when government is carried on in such a form that people who are breaking the law are liable to the penalties of the law. I have no great objection to that if we knew the facts; but we do not know what is going on. I have no doubt that most of the powers requisite for the discharge of its duties by the Provisional Government have been transferred already by the simple process of "throwing up the sponge" and leaving the Provisional Government to do what it likes. But the fact that the powers have been left to them to exercise and the legal approbation that is to be given to that irregularity are two different things. His Majesty's Government cannot really desire to obtain the benefit of their Indemnity Bill by any side wind in advance 807 without the usual explanation of what has been done and the reasons why it was done.
§ The other point is this. This body of Orders when put together will constitute an elaborate machinery for the better government of the twenty-six counties; financial, economic, administrative, and judicial—I do not know to what extent they may not go because I do not know what powers and machinery may be necessary for Mr. Collins to discharge his duties. But they will constitute a large body of law, and we shall, in fact, have handed over to His Majesty's Government the power to legislate for the better government of Ireland for the next four or five months, without knowing exactly what they are doing.
§ Let me illustrate this. Are they to be the sole judges at what rate and dates these powers are to be handed over, without Parliament knowing anything about it? Are these powers to be handed over to the present members of the Provisional Government, of whom His Majesty's Government know something and entertain a high opinion, or to their successors whoever they may be? The Orders in Council may take the form of saying: "Let us get rid of our Irish responsibilities; we will unload upon Southern Ireland all our powers under various Acts, hoping we may never be troubled with them again." If that is the policy they may be worded in such a way that any successors of the present Provisional Government would take them up and hand them on to a more permanent Government. I gather from the speech of the Lord Chancellor recently that. Mr. de Valera, though he might have little chance of succeeding Mr. Collins, is a person who as a successor to the Provisional Government would not inspire the confidence even of His Majesty's Government, and I think it important that we should know the terms of this transfer.
§ Thirdly, there is the question of the Constitution, a weighty subject, I admit, though it is common ground to the noble Viscount and myself that as a subject of legal study, at any rate, it has been considered of some importance. Is the Constitution to have any wide breach, a breach as wide as a church door, made in it, or is it not? I am not going to ask your Lordships to listen to a lecture which I am ill-prepared to deliver, or to survey the course of constitutional history over a long period. I think all will agree that 808 we have been much too free with these Orders in Council in the past.
§ It is a very convenient thing to say: "Here is a short Act with a schedule or two, and anything wanted to fill it up can be provided by Orders in Council. "It is quite true that it means the ipse dixit of the executive Government, because the Order in Council is drafted and passed upon the advice of His Majesty's Government for the time being. For matters of detail it is convenient, and I make no complaint. But it is a thing that ought to be watched, and I suggest to your Lordships that this wholesale creation of a Home Rule Bill up to date—for that is what it is—ought to go through Parliament in the usual way, or at any rate to go through in some way. All I ask—and I appeal to the noble Viscount's legal instincts—is to regularise the position of himself and the Government, which is in some need of being regularised, by accepting the proposition that these Orders in Council, which I have no doubt are in draft at this moment, and ought to have been in draft last month, should be laid upon the Table of each House, and should only go forward to receive His Majesty's approval if they have not been dissented from by either House.
§ That brings me to the last point. Is there any inconvenience or difficulty about it? I have put a period of fourteen days because one must put something, but if His Majesty's Government agree I would halve it with great pleasure. Provided we get a few hours' opportunity of seeing them, we can readily tell whether there is anything to criticise in these Orders. The great point is to preserve the right of Parliament to see these things before they acquire the force of law. If any alteration in the number of days will meet the views of His Majesty's Government I shall be happy to make it. I cannot imagine there will be any real inconvenience in the course pursued, because I have no doubt that the great bulk of these Orders are already de facto being exercised by the Provisional Government, so far as they exercise any powers at all. What is really to be done, therefore, is not to invest them with more powers or to create more machinery, but to spread the sanction of law over proceedings which at present are, strictly speaking, lawless.
§ I do not want to repeat myself, but at the same time I do not want to embarrass the noble and learned Viscount by not giving 809 him an opportunity of appreciating my point, which is quite a short one. May I therefore summarize it for a moment. The point is this: That in the interest of Constitutional Law and procedure, Parliament, which even at the conclusion of the war is still a thing that we ought not lightly to disregard, because every time we let that slip we shall never recover it—we exalt the Executive power over the legislative power—in the interest of regular constitutional procedure I earnestly press that that shall be, done in this case which in any comparable case of equal magnitude would be done as a matter of course; that is to say, the Orders in Council shall be laid on the Tables of both Houses of Parliament, so that Parliament may at least be seised of them before they acquire the force of law.
§ I do not know whether this appeal will have any success or not, but I certainly think it will be a grave dereliction of duty if the point is allowed to pass without contest. At no cost of convenience or prestige to the Government, here is an opportunity of following Constitutional use and procedure, and of taking Parliament at long last into the confidence of the Executive as to what is being done, and of giving Parliament an opportunity of showing whether the Order receives its approbation or not, before the fatal step is taken which gives it statutory force. I beg to move.
Page 2, line 8, at end insert the said new subsection.—(Lord Sumner.)
§ VISCOUNT PEEL
The noble and learned Lord. I understand, considers, first of all, that these powers ought not to be handed over by Order in Council at all, but that we ought to proceed by the method of a Bill passing through both Houses. Alternatively—and I think that is the proper form for a statement of claim—he would desire that if we do proceed by Order in Council Parliament should have proper cognisance by the Orders being laid upon the Tables of both Houses. The noble and learned Lord exercised a great deal of ingenuity in arguing that this was an illegal Government, and I think it was frankly admitted it was an anomalous and illegal Government, and precisely for that reason it was necessary to clothe it with legal powers at the earliest possible moment. But if the noble and learned Lord did not say so in 810 terms, he was inclined to argue as if this Provisional Government was to be rather more permanent than it really is. I think he did not fully recognise that after all this Provisional Government is only to last for an extremely short time, and to be followed at the earliest possible moment by a proper Constitution drawn up by the Government and assented to by the elected Parliament. Therefore, we are dealing with an admittedly transitional period, and if the noble and learned Lord was to proceed by that method which he prefers, long before a Bill was through both Houses the days of the Provisional Government would, I suppose, be numbered.
His second contention is that these Orders transferring these powers to this Government should be laid upon the Table, and he also, I think, according to his Amendment, suggests that they should not become operative until fourteen days have elapsed without any Address being presented by either House condemning them. May I state shortly to the noble and learned Lord the difficulties in the way, and see whether it is possible to meet him. First of all, the noble and learned Lord, I think, in his speech on the Second Reading, though not so much today, spoke of these powers being handed over in large instalments to the Provisional Government. That is not quite the procedure that the Government desire to follow, because these general powers, I understand, are to be handed over by the first Order in Council that is made. The first Order in Council will be the important and dominant Order. Later Orders in Council will be really less important—adaptations of laws, and so on, but not banding over en bloc, as it were, these new powers.
It is very important that these new powers should be handed over as soon as possible to the Provisional Government for the purpose of clothing it with full authority, and for avoiding all these matters that have been under discussion this afternoon. But it is important also for another reason, because we are getting very near the end of this month, and, as no money is taken on the Votes for any of these services in Ireland, it is really essential for carrying them on that these powers should be handed over before that date. Therefore, if the noble and learned Lord wants to interpose so long a period as he suggests before this Order in Council becomes law it would cause not only delay 811 in handing over these powers, but great confusion in a financial way. One is very anxious to do what one can to meet the noble and learned Lord, and I understand that, although this Order in Council cannot be laid on the Table, strictly speaking, until this Bill becomes an Act, yet the Government hope that in a very short time—I believe possibly by Friday— it will be possible, anyhow, to publish this Order in Council, so that it will be fully known to your Lordships.
§ VISCOUNT PEEL
That will be in draft. It will not, of course, become legal until this Bill becomes an Act.
§ VISCOUNT PEEL
Well, I am doing my best for the noble and learned Lord. May I suggest one further difficulty? These powers ought really to be handed over at once, for the reasons I have stated. Then, it is extremely difficult, in fact, it is practically impossible for these powers to be withdrawn when once they have been granted. But I have a form of Amendment which has been drawn up in order to try to meet the noble and learned Lord as far as possible. It runs thus—Any Order in Council made under this Act shall be laid before both Houses of Parliament as soon as may be after it is made, and if an Address is presented to His Majesty by either of those Houses within twenty-one days on which that House has sat next after any such Order is laid before it praying that any such Order may be annulled, His Majesty may thereupon by Order in Council annul the same, and the Order so annulled shall forthwith become void, but without prejudice to the validity of any proceedings which may in the meantime have been taken thereunder; and any Order in Council made under this Act shall, subject to the foregoing provisions of this subsection, be of the same effect as if enacted in this Act, but may be revoked or amended by a subsequent Order in Council:Provided that Orders in Council under this Act shall not be deemed to be Statutory Rules within the meaning of Section 1 of the Rules Publication Act, 1893.That differs from the noble and learned Lord's proposal in this respect—that the Orders become operative at once, and I would point out how very important it is that those Orders should become operative at once. But, subject to that, this would give your Lordships' House and another place full opportunity of discussing these 812 Orders, so made. If the noble and learned Lord thought fit to withdraw his Amendment I should be very glad to put down this Amendment before the Report stage.
§ THE MARQUESS OF SALISBURY
The noble Viscount has not noticed another difference—of course, he is aware of it. That is only permissive so far as the Government quashing the Order is concerned, whereas, of course, the Amendment of my noble friend is mandatory; which is a very considerable difference.
§ VISCOUNT PEEL
I did not notice that the noble and learned Lord was so mandatory; I thought he was permissive.
§ LORD SUMNER
It says: "In the event of the Address being passed by either House His Majesty may thereupon by Order in Council annul the same." I think the noble Viscount is in error in thinking mine is merely permissive. That is the proper form in which to allude to His Majesty's actions in Council; and although, of course, His Majesty acts upon the advice of Ministers, a permissive word in that connection is binding on the Ministers. His Majesty's Ministers would be bound, under this form of words, to accept the consequences of the Address presented to His Majesty by either House. I hope I am right in my Constitutional Law upon that, and that it is the view of the noble Viscount. It has got to be his view, I think; but one would like to know that it was his view on behalf of His Majesty's Government now. If that is so, of course the difference between us has come to be that my Amendment postponed the making of the Order in Council until Parliament had had the opportunity; whereas his Amendment makes the Order in Council, but gives Parliament power to present an Address, the automatic result of which would be that the Order in Council would be annulled, but without prejudice to anything that had been done in the meantime. If I have rightly apprehended and stated the difference, I think there is no reason why I should trouble the House by pressing my Amendment, upon the understanding that the noble Viscount's Amendment is proposed instead of it. One should be clear; of course, as to its effect.
§ THE LORD CHANCELLOR
I am not aware of any authoritative construction of the words which are contained in the Amendment which the noble Viscount has suggested; but such assistance as I can give is rather that of experience. I am not aware of any case in which this somewhat common formula has been employed in which in fact the annulment which is contemplated in the form of words—which I have said is a common one—has not followed. I am not aware of any authoritative construction, but I rather agree with the noble and learned Lord as to what the practice has been.
§ LORD SUMNER
May I bring to the notice of the Lord Chancellor that Section 70 of the Act of 1920 uses this very formula:If an Address is presented to His Majesty by either of those Houses … His Majesty may thereupon by Order in Council annul the same.It is obviously intended that should follow automatically.
§ VISCOUNT HALDANE
I think so, too. It is a well-known doctrine in our law that when the word "may" is used in the interest of some general section of the public it means an obligation to be conformed to. Of course, we never allow an Act of. Parliament to order His Majesty. It is a constitutional formula to which His Majesty's Ministers are bound to conform when the word "may" is used in the interests of any general section of the public. I, therefore, agree with the noble and learned Lord, Lord Sumner, in what he has said.
§ LORD CARSON
I am not going to enter into this learned disquisition as to when "may" means "shall," which is always a matter of considerable controversy among lawyers. I could never understand why it should not be put into plain language. But it has been a source of income to many lawyers in trying from time to time to snake it out and that, is probably one of the reasons why it remains as it is. I wish to call attention to the very grave departure that is being made by the proposal of His Majesty's Government, and the dangers to which your Lordships have to look forward in these democratic times. What would any of your Lordships have thought if Mr. Gladstone in 1886, or Mr. Asquith in 1912, had come to the House of Commons and said: "We have agreed to give Home Rule to Ireland, and that will he carried out 814 by Orders in Council which need never come before Parliament"? A more grave assertion of the power of the Executive over Parliament cannot possibly be imagined. I would have liked to hear the Lord Chancellor, or the noble Viscount, or any of the great men opposite, get up and denounce Mr. Gladstone for the operations that he determined to carry out. We almost came to blows in the House of Commons when he curtailed our discussions after 70 or 80 days. Now, by a sweep of the hand, under this Coalition Constitutional Government, all that is to be swept away. At the sweet will of the Executive these Orders in Council, setting up a Home Rule Constitution, are to be passed. I venture most respectfully to warn your Lordships of What you are doing in this matter.
We are sometimes warned by high authorities of the dangers of allowing a Labour Party to come into power. Let me draft a short Bill on the ideas of an extreme Labour Party:—Clause 1, the mines of the country shall be nationalised. Clause 2, the railways shall be taken over by the State. Clause 3, all necessary steps for the aforesaid shall be carried out by Order in Council. That is exactly what you are doing in this case. We look forward with terrible anticipations to what an extreme Labour Party might do. What would your Lordships say if a Bill in these terms were brought forward? You would say they were anarchy and revolution, and that men were being deprived of their property. But here, without a Bill, without the House seeing the draft, not only the property but the lives, the liberties and everything else of every man and woman in Ireland are to be handed over by Order in Council to these people. It is much more important to some of your Lordships than it is to me because I am not, a man of property, but I cannot conceive a more dangerous precedent, and I cannot conceive anyone who has ever called himself a Conservative or Unionist agreeing to such a policy as this, unless he were under the spell of some great Liberal statesman who had these ideas of legislation ingrained in him as being the speediest way to the exchange of all property in this country.
It is said that an offer is made to put in a different form of words. I suppose that will have to be accepted, but it is little or no use. The noble Lord put down what I should have thought was the mini- 815 mum. If I had the power I would strike out everything about Orders in Council, and let the Government bring in a Bill to transfer these powers. But if you have Orders in Council it is no use putting them before the House once they have been made and acted upon. In my thirty years' experience of the other House I have never known of an Order in Council, once acted upon, being reversed by either House. The Government would come down and say that they valued it, could not get on without it, and would say: "Are you really going to interfere with the prerogative of King Collins and take away this power which you gave him only the other day?" It is of no use. If Lord Sumner thinks it better to get that then let us have it. I do not pose as a prophet, but I do pose as one who feels the necessity of Bills going through both Houses of Parliament, and to-night you are creating one of the most dangerous precedents with regard to liberty and the rights of property that has ever passed both Houses of Parliament.
§ LORD SUMNER
I feel in a slightly embarrassing position. Lord Carson has almost convinced me that what is offered by Viscount Peel is of no great value, but at this hour of the evening it is necessary to be practical, and I must do something. I detect a value in this "deal" which perhaps he has not noticed, and it is this. I agree that this ought to have been done by a Bill, but what good is there in crying over spilt milk. If I may be allowed I will accept the offer of the noble Viscount as a sign of grace at the eleventh hour. I regard it as a recognition by the Government, not perhaps of the impropriety of their course, but of the preferable propriety of the substituted course; that is, a recognition of the supremacy of Parliament by giving it an opportunity in the form which has been consecrated in the Act of 1920, and if the noble Viscount will move his form of words I am quite willing to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment moved—
Clause 1, page 2, line 8, at end insert:
Any Order in Council made under this Act shall be laid before both Houses of Parliament as soon as may be after it is made, and if an Address is presented to His Majesty by either of those Houses within twenty-one days on which that
House has sat next after any such Order is laid before it praying that any such Order may be annulled, His Majesty may thereupon by Order in Council annul the same, and the Order so annulled shall forthwith become void, but without prejudice to the validity of any proceedings which may in the meantime have been taken thereunder; and any Order in Council made under this Act shall, subject to the foregoing provisions of this subsection, be of the same effect as if enacted in this Act, but may be revoked or amended by a subsequent Order in Council:
Provided that Orders in Council under this Act shall not be deemed to be Statutory Rules within the meaning of Section I of the Rules Publication Act, 1893.
§ —(Viscount Peel.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
LORD SUMNER moved; after Clause I, to insert the following new clause:—
. If it appears to the Representative of the Crown in the Irish Free State or in Northern Ireland to be expedient in the public interest that steps shall be taken for the speedy determination of any question respecting the interpretation or effect of the said Agreement or any part thereof, he may represent the same to His Majesty in Council and thereupon, if His Majesty so directs, the said question shall be forthwith referred to and heard and determined by the Judicial Committee of the Privy Council.
§ The noble Lord said: I may be too bold, but I have some hope now, when two, lawyers get together, that we may see, if I may use the expression, a new deal. This is a provision for machinery by which those who desire to have this Treaty interpreted may be able to get interpretation thereof. I have put down, as the body to be referred to, the Judicial Committee of the Privy Council, because a similar provision is put in the Act of 1920—which is still unrepealed—in Section 51, subsection (1). I shall not return to the suitability of that institution, and I am quite prepared to be reasonable. May I ask the noble Viscount what he would say to the Court of Session, a body entirely free from any of those reproaches that might fall upon some members of the Judicial Committee, a body highly respected where it is known, a body probably entirely unknown in Ireland, and therefore not likely to have excited any prejudices so far?
I submit, at any rate, first of all, that to provide a machinery by which the Treaty can be interpreted is almost essential if it is to work. It has been thoroughly-demonstrated, I think, that this necessarily fallible instrument requires, in some or
all of its eighteen Articles, some degree of interpretation by authority. My second point is that it is not interfering with the Treaty, but rather a furtherance of it, to provide machinery like that to give it easier application in practice. My third proposition is that this is safeguarded by the terms of the clause, and I think I may say that more consideration could not be shown to the policy of His Majesty's Government. The only people to bring the matter before the tribunal are Governments—the Government of the Irish Free State, advising the representative of the Crown in Southern Ireland, and the Government of Northern Ireland advising the representative of the Crown there. Either of tiles?, two bodies, acting constitutionally, could advise the representative of the Crown—
that it is expedient in the public interest that steps shall be taken for the speedy determination of any question respecting the interpretation or effect of the said Agreement or any part thereof … and thereupon if His Majesty so directs "—
again upon the advice of His Majesty's Government—
the said question shall he forthwith referred to and heard and determined"—
by the tribunal, whatever it may be.
§ Is there no point at which either party or both the parties to this instrument could cavil, or at which, bona fide, either portion of Ireland, or both in concurrence, might and probably would discover something in the Treaty which they desired to have interpreted something on which neither could very well give way to the other, but on which they would be perfectly ready to accept a legal determination? I should have thought that in those circumstances a special tribunal would have been a God-send to them. The matter is safeguarded because in no case can any such reference be made by irresponsible persons, but only by the Representative of the Crown within the area, and in every case His Majesty's Government have the last word, because if they so advise His Majesty he may not direct any further steps to be taken. If, on the other hand, they are satisfied that the sooner the thing is cleared up the better, the matter then goes before the tribunal for determination.
§ Argument will not carry the matter any further—the ground was covered earlier in the day—but I make another appeal, and it is the last I have to make, as a 818 simple lawyer, to His Majesty's Government, to recognise that, without making any reflections upon the drafting of the Articles, they would be the better for some provision for interpreting them in the case of controversy. I suggest as the tribunal the Judicial Committee, but if that is not considered to be suitable I suggest the Court of Session. To my mind any other judicial tribunal would do as well—I was almost going to say the County Court. Judge at Westminster. I cannot help thinking that if the delegates of His Majesty's Government who drafted the Treaty had had an opportunity of completing their handiwork they would have found a place for this new clause. I submit it to His Majesty's Government with some hope that they may either accept it or at any rate be able to meet me in some way.
After Clause 1, insert the said new clause.—(Lord Sumner.)
§ VISCOUNT PEEL
The noble and learned Lord has, by the weight of his arguments, already secured such very large concessions from the Government that I had hoped he would be content with the unprecedented success he has attained. The noble and learned Lord is really almost sensational. He now brings forward a very far-reaching Amendment for submitting these questions to the decision, first, of the Privy Council, but having been rendered a little nervous by the arguments which have been raised in these debates, he has become more catholic in his choice of the Court, because, going on in the alternative to the Court of Session in Scotland, he ended up with the County Court at Westminster. So your Lordships will have a very wide choice of judicial authority in order to decide, these very difficult questions.
I was not quite certain from the speech of the noble and learned Lord, although I think it is clear from the Amendment, that he does refer to the period after the new Constitution has been set up, because he talks of the representative of the Crown, or of the Irish Free State, or of Northern Ireland, clearly indicating that he is looking forward to the future, a few months hence, when that new Constitution will be set up. And it is quite possible that, when that is done, an arrangement will have to be made for the interpretation of the Constitution, or of questions of clashing of authority and 819 so on. That is really a matter for the Bill when it comes before us, and it is unnecessary now to be anticipating difficulties which might then arise, and probably will rise.
§ VISCOUNT PEEL
I shall be very glad, if I am here, to explain when the case arises, but I can hardly be expected to deal with a Bill that is not yet introduced. A further difficulty that arises is this: We have had many discussions over the Boundary Commission, their authority, and their duties. The noble and learned Lord has raised an almost infinite series of difficulties on that point, although he may not have exhausted them all. My noble and learned friend behind me dealt very effectively with that. But this Would allow that, without question, to come up again. That is to say, the question of the Boundary Commission might clearly, under a proposal of this kind, be referred to the Privy Council, and I do not think we need really roll round that long discussion again. The Amendment, further, is even more far-reaching than the noble and learned Lord indicated, because these representatives of the Crown would, I suppose, act constitutionally upon the advice of their Governments, and it would be open, therefore, to either the Northern or the Southern Government to refer any and every question almost for the consideration of the Privy Council or other authority, and there might be a stream of problems and suggestions arising, and being sent to these Courts for decision. I do not think that this method of interpreting the Articles of Agreement is at all likely to commend itself to the Government of Southern Ireland, nor, indeed, possibly to the Government of Northern Ireland either. But, apart from that, I have to oppose the Amendment really on the ground that it is out of place here; it deals with difficulties that may subsequently arise, but at present it is neither necessary nor desirable.
§ LORD CARSON
The noble Viscount has, as usual, very gracefully, but without much information, dealt with this subject. He throws scorn on the idea of referring anything to the Privy Council. This is 820 rather a new idea, because under the Bill of 1920, for which the Lord Chancellor was mainly responsible, notwithstanding all we have heard about how terrible it is to resort to the Privy Council, there are many similar questions that can be referred to the Privy Council. I will read what the Act says:—if it appears to the Lord Lieutenant or a Secretary of State expedient in the public interest that steps shall be taken for the speedy determination of the question whether any Act, or order having the effect of an Act of the Parliament of Southern Ireland or Northern Ireland, or any provision thereof, or any Bill introduced in either of those Parliaments, or any provision thereof, or any legislative proposal before the Council of Ireland, is beyond the powers of such Parliament or Council, or whether any service is an Irish service within the meaning of this Act or not, or if the Joint Exchequer Board, or any two members of the Board, in the execution of their duties under this Act, are desirous of obtaining the decision of any question of the interpretation of this Act, or other question of law, which arises in connection with those duties, the Lord Lieutenant, Secretary of State, or Board, or members thereof, as the case may be, may represent the same to His Majesty in Council, and thereupon, if His Majesty so directs, the said question shall be forthwith referred to and heard and determined by the Judicial Committee of the Privy Council.In this case all the noble Lord asks is this. I suppose that section, at all events, in regard to Northern Ireland, will remain in force after this Bill becomes law; at least, I should hope so, though probably nobody has considered the question one way or the other.
Following the analogy of what you yourselves have said in Section 51 of the Act of 1920, the noble Lord proposes, instead of having rows and disputes between North and South which would be settled by guns and bombs and the other weapons which have been so effective in Ireland, that where there are these disputes between or in relation to the Governments, the matter should be referred to and should be decided by either the Judicial Committee of the Privy Council or some other tribunal. A more practical, more reasonable, or more businesslike proposal one can hardly imagine. But it is met, of course, with the non possumus attitude of the Government, and I suppose in those circumstances it will be impossible to have it made law.
§ LORD SUMNER
I contemplated this clause as applying not to the distant future when the Constitution Act of Southern Ireland may, at some time, be passed, but to Abe critical period With which we are dealing now—namely, the chaotic and 821 irregular interval between the present moment and the time when the Act comes to be passed. When that Act is passed, the greater part of the Articles of this instrument will become mere matters of history, because all the Articles that deal with the status and Constitution of Ireland will then be merged in the Act, which will establish the Constitution of Ireland. Therefore, the suggestion that I am contemplating the time when in my view these Articles will be no more, is a total misapprehension. I thought there was at present a representative of the Crown even in Southern Ireland, that the Provisional Government, though a Provisional Government, was still a Government of the Irish Free State. My notion was that the machinery of the Act of 1920 should be applicable to the present period, and that either in Northern Ireland, which is governed by regular law, or in Southern Ireland, which is governed irregularly without law but still has a representative of the Crown and a Government of the Irish Free State, it should be possible for them, if they were both of good will or either of good will, to obtain a determination. The noble Viscount has intimated, in the pleasantest possible manner but quite dearly, a decided negative. There I must leave the matter.
But I point out that the Government deliberately assumes the whole responsibility of leaving this instrument without any form of elucidation, or suggestion of any form of elucidation, on their part. They appear to be so enamoured of the nebulosity of the valuable instrument which they have produced that they would rather at all hazards—and everybody knows that those hazards are great—leave it unprovided with any way or clue to the meaning of those passages which are dark and mysterious, than accept a clause which is modelled on the clauses of the Government of Ireland Act of 1920—rather even, than suggest any alternative to arrive at the same result. I can only say that I greatly regret this conclusion. I would willingly have made any modification in the clause that could be suggested. As that is the decision of the Government, what is the use of carrying matters further?
§ THE LORD CHANCELLOR
The noble and learned Lord has very greatly overstated and exaggerated the point which he desires to make, and not for the first 822 time. He represents the Government as most unreasonably refusing to accept a perfectly unimportant and reasonable Amendment—
§ THE LORD CHANCELLOR
Unimportant so far as its effect upon the fortunes of the Bill is concerned—which they could have accepted perfectly easily had they chosen to adopt a more reasonable frame of mind. I will undertake to say that there is no one in this House who appreciates more clearly than does the noble and learned Lord that if this Amendment of his is accepted the Treaty will have disappeared. He described himself as a simple lawyer. He is a lawyer. Whoever else has any delusions as to the effect of the adoption of this Amendment the noble and learned Lord is under no delusions.
He knows perfectly well that this is a bargain entered into between two people. His Amendment would enable either the Government of Northern Ireland or the Government of Southern Ireland to take every line and every clause of this Treaty in the two or three months which are in front of us and debate it and litigate it before what he calls an impartial Court, whether it be the Court of Session or the County Court Judge at Westminster. What would be happening to the Treaty and the signatories to the Treaty while the County Court Judge at Westminster was dealing with forty or fifty, or one hundred, or five hundred, or as many other ingenious points as his mind could raise upon this Treaty, in the weeks that he in front of us? The noble and learned Lord, knowing perfectly well the effect of what he proposes, having carefully calculated to an inch its destructive potentialities, lectures the Government for doing something unreasonable in not accepting the proposal which he knows no one could, in existing circumstances, accept.
He says there was a similar provision in the Act of 1920. The Act of 1920 did not proceed upon the basis of a bargain or understanding between two parties. The noble and learned Lord proposes that whereas the representatives of Southern Ireland on the one hand have entered into a bargain or instrument with the representa- 823 tives of His Majesty's Government, upon the other hand that you are to impose upon them at the last moment though no provision to that effect was contained in the Treaty, by an Amendment in this House, the compulsion to take every line of this to be considered not by a Court impartially set up as between the two, with representatives from the contracting Parties and an impartial Chairman, but to the Court of Session in Scotland or the Judicial Committee of the Privy Council, to both of which there is, from the Irish point of view, the same objection. The plain truth is that this is a proposal which everybody who knows the circumstances in which this instrument was arrived at knows will not be accepted, and cannot be accepted, by those with whom we have entered into this instrument. If any noble and learned Lord, or any noble Lord wants to destroy the whole instrument it can very easily be done. Your Lordships never had a better opportunity.
§ THE MARQUESS OF SALISBURY
The noble and learned Viscount need not detain the House at great length when there is no intention of dividing on this Amendment.
§ THE LORD CHANCELLOR
I am glad to have that assurance. If we had had it a little time ago it would have avoided discussion. I only wanted to make it plain, whether the noble and learned Lord intends to withdraw his Amendment or not, that I do not choose to see him withdraw it with a declamatory lecture to the Government without what I conceive to be a suitable reply on my part.
§ LORD SUMNER
I do not complain that at the conclusion of these proceedings the noble and learned Viscount should address your Lordships and should address me in terms of some heat and I think of some exaggeration, but there is one thing I have a right not only to complain of but to deny. He has made a charge against me of deliberately placing on the Paper an Amendment which I knew and meant to be a wrecking Amendment, although I have declared that there was nothing for it but to carry out the Articles of the Treaty. There is no foundation for the charge, and in my judgment—I hope your Lordships will agree with me— it ought not to have been made. I may be wrong— God knows it is very likely—but I did not 824 put it down and did not argue it except under the impression that it was consistent with the terms of the Treaty. I still believe it to be so. I still believe that the protection by which His Majesty's Government. is able to refuse to allow the matter to proceed further is an ample protection against any abuse and is a security for assuring that it will only be used where it was not being used in the interests of one side or the other but for the purpose of obtaining an elucidation of the Treaty. I do not aspire to persuade the Lord Chancellor that my statement is correct, but I protest against being placed under any such imputation as that.
§ On Question, Amendment negatived.
THE MARQUESS OF DUFFERIN AND AVA moved, after Clause 1, to insert the following new clause:—
The Chairman of the Boundary Commission to be appointed under Article 12 of the said Agreement shall be appointed by the British Government, with the consent of both Houses of Parliament, and no appointment shall be deemed to be a valid appointment within the meaning of Article 12 until that consent shall have been given.
§ The noble Marquess said: I hope my simple little Amendment will not arouse any passions. Its object is to ensure that the Chairman of the Boundary Commission shall not be appointed until his name has been submitted to and approved by Parliament. This Chairman is all-powerful. The noble Viscount, Lord Peel, in reply to Lord Carson, said he could not say what was the explanation of Article 12, as to do so would be infringing upon the rights of the Chairman. This official is so powerful that the Government itself cannot dictate to him as to whether the rectification of the boundary is to be on a small or large scale. That being so, it is all the more necessary that his qualifications should be thoroughly inquired into, and Parliament having approved of this abominable boundary Article should also take the responsibility of nominating the Chairman. It will cause no hardship to the Free State.
§ The Amendment only ensures that nobody who is wholly obnoxious to Ulster will be appointed. It may be that the Government may nominate some gentleman who holds, or has held, some official position in one of our Colonies, and it may be that in that Colony there is a large body of Irish electors. For this reason 825 he may not be agreeable to Ulster, and Ulster would then be in a position in Parliament to give her reasons for objecting. Parliament would then decide, and if it were thought that these objections were valid, then the nomination could be rejected. That is an example of what I mean. The Lord Chancellor, as I expected, says that we can trust the Government that nobody who was not perfectly agreeable to both sides would be appointed. I do not wish to be offensive, but we do not trust the Government in anything relating to the boundary clause, or, as my noble and learned friend says, any other clause.
§ We would prefer to leave it to the decision of Parliament. I hope it will be remembered that the Chairman will not be dealing with a simple matter of soulless geography. On both sides of the border are human beings who stand to lose, amongst other things, their British citizenship, who stand to lose the form of government they cherish, who stand to lose the association with people of their own religion and faith. I do not think you should leave the nomination of a gentleman holding the fate of so many Ulstermen in the hands of the Government in whom Ulster has no faith.
After Clause I, insert the said new clause,— (The Marquess of Dufferin and Ava.)
§ VISCOUNT PEEL
The noble Marquess introduced this Amendment as a very simple one, but I shall show that it is far from being simple and might have far-reaching effects. The noble Marquess starts, of course, by suggesting that he does not trust the Government, and that the Government ought not, therefore, to appoint this person without the consent of Parliament. I would suggest to him that the simplest thing, if he does not trust the Government, is to turn it out, because if you do not trust t to appoint the head of a Commission, it is unfit to be a Government.
§ VISCOUNT PEEL
There are several objections to this Amendment. One is that it goes beyond the Treaty, where it is clearly laid down that it is by the British 826 Government that this Chairman is to be selected. What would happen if it were thrown upon the British Parliament as well? It is obvious that if this Parliament is to have a voice, the Southern Parliament would begin to make a claim, and a new difficulty would arise. What does the Amendment mean? The name would be laid on the Table in either House, and an Amendment could be moved in which some other name was substituted. That would clearly mean that you might find yourself in the position of having one name moved and accepted in this House and another in the other House. That would end in no Chairman being appointed.
In legislation there is, as we know to our cost, some way of settling a deadlock between the two Houses by the Parliament Act, after two years have elapsed, but if there were a disagreement on the name of the Chairman, there would be no way of settling the difficulty, and it would be in the power of the two Houses to wreck the whole Commission. This is not, therefore, so simple an Amendment as is suggested; it is really a wrecking Amendment. I submit that this change is contrary to the words of the Treaty itself and may have very far-reaching effects. I do urge the noble Marquess not to press it any further.
§ LORD CARSON
I congratulate the noble Viscount, at any rate, on the good temper with which he has dealt with the Amendment, although that is all I can say about his speech, because, as usual, he has given us no reasons for refusing the Amendment.
§ LORD CARSON
To use a phrase made famous in another place, we are really getting on. He says the Treaty says the British Government are to appoint the Chairman, and that it would be a breach of the Treaty, therefore, for Parliament to make the appointment. Did anyone ever hear of a more extraordinary doctrine —that the British Government and the British Parliament are not the same thing. Why, the moment the British Government cease to be the representatives of the British Parliament, they are no longer the British Government, and to draw such a distinction as that is cutting at the very root of Parliamentary Government. There is no such thing as a British Government except 827 as representatives of the Parliaments of the Empire, and really the doctrine that we have had laid down to-day is to an old man like myself absolutely a perversion of anything I have ever read or heard of as regards Parliamentary institutions in this country. Here we have the noble Viscount, who is going to he called upon to play a great part in the Government of India, telling us this evening that there is an entity called the British Government apart from, different from, and not deriving its authority from, the two Houses of Parliament. It is an extraordinary doctrine. He went on to say that therefore, because that is true, we cannot, without a breach of the Treaty, submit the name proposed by the British Government to the two Houses, which I always thought was the whole basis and foundation of the Government of the day.
Then he went on to draw a picture of what might happen if there were other names proposed. Of course there might be other names suggested, but the votes of the Houses of Parliament would settle that, and the Government maintain their power and name only by what the Houses of Parliament do settle. Supposing there was a Motion in the House condemning the Government for appointing a particular person, what would happen? Would the Government go on? This Government would, but no other Government would. The whole thing comes back to the noble Viscount saying we must trust the Government. It is the same old thing. If there is one part of the Empire which I do not think any reasonable man can ask to trust the Government, it is Ulster. Ulster has been betrayed, abused, buffeted, kicked, aspersed, and libelled, and every pledge given to her has been broken by His Majesty's Government, and yet the last words on this stage of the proceedings here to-night are: "Trust the Government." You told the people of Ulster you were finished with them in 1920. You gave them a Bill, and you have gone back upon it. The pledge was that that would never be altered so long as the Lord Chancellor was a member of any Government, and that has been broken. You told them at the Conference with Mr. de Valera that the question of the Six Counties could not be touched. You then told the Prime Minister of Northern Ireland that before anything would be done the new proposals would be submitted to him, and yet, without any communication to him, in the middle of 828 the night you signed this Agreement. We do not trust the Government. We prefer that these names should be put before Parliament, and we hope the Government will accede to this.
§ THE EARL OF MIDLETON
I hope the noble Viscount will realise that in the speeches he has made to-night he has been a little less adroit than usual. A few hours ago we had a declaration from the noble Lord who sits behind me that there would be great difficulty on the part of the Prime Minister of Northern Ireland in making an appointment under this Bill unless the Amendment of Lord Londonderry was carried. We have now got a proposal which I pressed on the Government earlier this evening. My noble friend's Amendment was lost, but still the door seems to be open. Is the noble Viscount going to close it? With this one reservation the authorities in Ulster are willing to make the nomination without which this Commission cannot sit. The noble Viscount, in an airy way, puts forward a number of what seem to me extremely trivial objections against doing what has been done constantly before. I gave the noble Viscount earlier this evening an instance of a Bill which was far more contested in both Houses of Parliament than this Bill has been, and in which the Government did not hesitate to put the names of the Chairman and of the Commissioners before the House of Commons during the Committee stage, although they knew that every word of that Bill would be contested here.
Now the noble Viscount advances what is to my mind an absurd contention, namely, that it is quite possible that there will be differences of opinion, and if the Government, before they make this appointment were not going to consult either Northern Ireland or Southern Ireland, his contention might be valid. We all know that behind the scenes, whether this Amendment is carried or not, the Government of Northern Ireland will be invited to say whether the gentleman to be appointed is agreeable to them, and similarly with the Government of Southern Ireland. I care not whether or not this name is laid before the Dail and before the Assembly of Northern Ireland, if it is necessary, but I do care—and I think Lord Dufferin has a perfect right to ask it—that it should be laid before this House and before the House of Commons. I really think that the noble Viscount is short- 829 sighted and ill-advised in not taking this opportunity of obtaining the one safeguard on which, in my opinion, Ulster has a right to rely in this great difficulty of the appointment of Chairman.
§ Clause 2 agreed to.
THE EARL OF CRAWFORD
I beg to state that I shall put the Report stage down for the sitting this afternoon, and give notice that I propose to move, on behalf of my noble friend the Leader of the House, the consideration of Standing Orders with a view to their suspension in order to take the Third Reading at the conclusion of the Report stage.