The New Irish Constitution: An Exposition and Some Arguments. Various

of the Crown to decide what the powers of the Lord-Lieutenant should be. Following Colonial precedents, the Constitution would have had to be supplemented47 by prerogative legislation in the shape of Letters Patent defining those powers. Moreover, these powers were to have been vested not in the Lord-Lieutenant in Council, but in the Lord-Lieutenant alone. Something was indeed, said about an “Executive Committee” of the Irish Privy Council to aid and advise in the Government of Ireland—this was the only hint of responsible Government that the Bill contained—but nothing was said of the powers or [pg 033] constitution of the Committee nor of the extent to which the Lord-Lieutenant was bound to act on its advice. Its constitution was left to the discretion of Her Majesty. Its powers would, of course, as in the case of the Colonies, have been decided by the tacit adoption of the unwritten conventions of the English Constitution that the advisers of the Governor must command the confidence of the Legislature which votes supplies.

      Very different is our new Bill. The Executive power does indeed continue “vested in His Majesty the King,” and nothing is to affect its exercise—in other words, it is to continue in the hands of the Imperial Government—except “as respects Irish services as defined for the purpose of this Act.” The exception is a new departure and the general effect of the whole clause (Clause IV.) is expressly to hand over in statutory terms “all public services in connection with the administration of the Government of Ireland” except the reserved services and such services as those in regard to which the Irish Parliament have no power to make laws. The effect of this is to hand over an executive authority co-extensive with the legislative authority.48 Moreover, in regard to Irish services, the Executive power is to be exercised by the Lord-Lieutenant through Irish Departments, and the heads of these Departments are given the Parliamentary title of “Ministers” and, what is more remarkable, it is expressly provided (a provision [pg 034] to be found in only one or two, and those the latest, of our Colonial Constitutions) that:

      “No such person shall hold office as an Irish Minister for a longer period than six months, unless he is or becomes a member of one of the Houses of the Irish Parliament.”

      Never in any constitution that emanated from the practised hand of the Parliamentary draughtsman has there been such a complete transfer in express statutory terms of the executive power. Taken together with the comparatively unrestricted grant of legislative power, it constitutes a grant of a larger measure of self-government than is to be found in any of the earlier Bills.

      At the same time there is here no cause for alarm. It must be remembered that the Lord-Lieutenant will exist in a dual capacity—like a constitutional king he will be bound in Irish matters to act on the advice of his Irish Ministers but, like a Colonial governor, he will also in all Imperial matters be bound to obey the instructions of the Imperial Government. In regard to legislation the position here is quite clear: he may veto measures which his own Ministers have promoted if the Imperial Government think it advisable so to instruct him. In regard to the executive, he will, of course, enjoy less latitude; it is quite clear that the Imperial Government will, under this clause, find it practically impossible to interfere in purely Irish administration. The Irish Government will, of course, be carried on in the name of the Crown, and it will enjoy the same prerogatives at common law as the Imperial Government in such matters as the use of the prerogative writs mandamus and certiorari, and the immunity from actions in tort. Ireland has its own Petitions of Right Act.

      At the same time a distinction must be drawn between the prerogatives relating to the exercise of Irish [pg 035] services and prerogatives which cannot be so defined. Some of the latter may be delegated to the Lord-Lieutenant by his patent, and these he will exercise not on the advice of the Irish, but of the Imperial, Government. Moreover, there are certain powers conferred by statute on the Lord-Lieutenant, or the Lord-Lieutenant in Council, such as the power of proclaiming disaffected districts under the Crimes Act, of suspending the operation of the Irish Habeas Corpus Act, and of controlling the constabulary, not all49 of which will be exercisable on the advice of Irish Ministers. Prerogatives not so exercisable will no doubt be exercised on the advice of the Secretary of State for Home Affairs who is even now the medium of formal communications between the Lord-Lieutenant and the Crown. The Chief Secretary50 will, of course, disappear altogether; he will be replaced by the Executive Committee. The Lord-Lieutenant will, of course, cease to be a member of the English Ministry; his position will be assimilated to that of a Colonial Governor, and his tenure fixed for a term of years so as to make his tenure of office independent, as it must be in the exercise of his new constitutional duties, of the fortunes of English Parties.

      The Irish Legislature

       Table of Contents

      The constitution of the legislature itself calls for little comment. It follows with some fidelity the features [pg 036] of Mr. Gladstone's Bills, but the substitution of a nominated Senate for the “Council” or “Order” elected on a property franchise is a new departure. Nomination of late has fallen into some discredit both in theory and in practice.51 Colonial experience is not encouraging. Nomination by the Crown means in practice nomination by the Governor, on the advice of the Cabinet of the day, and Ministries in Canada and New South Wales have put this prerogative to such partizan uses as to reduce the Upper House to a very servile condition. When nomination is for life and not for a fixed term of years the evils of this system may be mitigated, but they are not removed. The one thing that can be said about the proposed Senate is that its powers in legislation are of such a limited character that an Irish Executive would be under little temptation to “pack” it. A Senate of only forty members compelled to meet in joint session a House of Commons of 164 members every second time that it rejects or objectionably amends a bill is not likely to prove a very formidable obstacle to legislation. But the nomination by the Executive is in any case somewhat objectionable, and it would seem better to provide that at the end of the first term of eight years the Senators should be appointed by some system of election, whether on a basis of proportional representation or otherwise.52 But [pg 037] to their nomination for the first term by the Imperial Government I see no very cogent objection. Indeed, the expedient has much to be said for it, for the discretion, if wisely exercised, will enable the Imperial Government not only to secure to Irish minorities a degree of representation which no conceivable system of election could secure, but also to appoint men of moderate opinions—one immediately thinks of Sir Horace Plunkett—who, in the strife of extremists, might have no chance of election by either party. It has been argued in some quarters that a Second Chamber is wholly unnecessary, and the example of the single-chamber legislatures in some of the Canadian provinces has been cited. The argument, however, overlooks one really important function of the Senate, namely its duty to provide for the security of tenure of the Irish judges. Clause XXVII. provides that judges appointed after the passing of the Act shall only be removable on an Address of both Houses of the Irish Parliament, and, should the Senate refuse to concur in a demand by the lower House for the removal of a judge, there is no such means of overcoming its resistance in a joint session as is the case with legislation. This is well.

      There is one provision in the Bill53 which will serve to strengthen the position of the Senate as an advisory body and may operate to give it an initiative in the introduction of Government legislation—the provision which enables an Irish Minister who is a member of either House to sit and to speak in both Houses. This is a practice common on the Continent, and not wholly unknown [pg 038] in the case of some of our Colonial Constitutions, and it has much to commend it. The Senate is placed under the same disabilities as to money bills as are imposed on the House of Lords by the Parliament Act. Thereby it is placed in an inferior position to that of most of the Second Chambers in the Colonies, all of which can reject, and some of which may also amend, money bills. The disability is the less surprising having regard to its character as a nominee body—it is when the Second Chambers of the Colonies are elective, that their powers in regard to money bills are considerable.54

      The privileges of the Imperial Parliament are conferred by the Government of Ireland Bill upon the Irish Parliament. In the absence of such grant the Irish Parliament would not have had such privileges—although it might have adopted them by legislation—for the lex et consuetudo Parliamenti are not implied in