Clause 1. — (Constitution of Irish Free State.)

Irish Free State Constitutionbill. – in the House of Commons on 28th November 1922.

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The Constitution set forth in the First Schedule to the Constituent Act shall, subject to the provisions to which the same is by the Constituent Act so made subject as aforesaid, be the Constitution of the Irish Free State, and shall come into operation on the same being proclaimed by His Majesty in accordance with Article eighty-three of the said Constitution, but His Majesty may at any time after the proclamation appoint a Governor-General for the Irish Free State.

Photo of Mr Frederick Banbury Mr Frederick Banbury , City of London

I beg to move, after the word "aforesaid" ["Constituent Act so made subject as aforesaid"], to insert the words and except as regards Article 41 in the said Schedule. In moving to omit Article 44 of Schedule I, may I say that not only is it a very important Article, but it is not to be found anywhere in the Treaty. Therefore the law to which the Attorney-General in his extremely clear and able speech yesterday referred to which enacts this Bill would not apply, because this particular Clause 44 is not anywhere in the Treaty, so far as I can see. I shall, I think, be able to show to the Committee that this is a very important innovation. Article 44 says: The Oireachtas may create subordinate Legislatures with such powers as may be decided by law. The hon. and learned Gentleman may be able to give an explanation that may be satisfactory, but to my mind this particular Article, if allowed to remain in the Bill, would give power to the Irish Parliament to set up local Soviets without any power of revision by this House. I have a copy of the original draft of the Irish Constitution. I find that there was in that draft a Clause of a somewhat similar nature. The Clause in the draft Bill was as follows: The Parliament/Oireachtas may create subordinate Legislatures but it shall not confer thereon any powers in respect of the Navy, Army or Air Force, alienage or naturalisation, coinage, legal tender, trade marks, designs, merchandise marks, copyright, patent rights, weights and measures, submarine cables, wireless telegraphy, Post Office, railways, aerial nagivation, Customs and Excise. That is a very extensive list. It confers the power of the creation of subordinate Legislatures, and it withholds certain powers as specified. What I want to know is, Why was this Article altered? Who altered it? Where was it altered? Why did the Government allow the alteration? The present position is that the subordinate Legislatures may deal with the Army, Navy and Air Forces, which may lead to very serious results from the point of view of some of us. It seems to suggest that the real object of this Treaty is, as the hon. Gentleman the Member for North Batteorsea (Mr. Saklatvala) yesterday said, that the real object of this Bill is to create an Irish Republic. The hon. Member for Battersca made a very excellent speech upon the real meaning of this Bill.

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

I want to say at once, if I may, to the Committee that it would be impossible for His Majesty's Government to accept any Amendment which altered the Constitution as passed by the Irish Parliament. The reason why it is impossible to accept an Amendment which alters the Constitution is because our obligation is to pass, before the 6th December, the Constitution as passed by the Irish Parliament. If, therefore, we altered the Constitution, then the enactment passed is not the Constitution which the Irish Parliament has passed, and the result would be that on 6th December the position arises that there is no Constitution created and there is, therefore, no constitutional authority in Southern Ireland. It is impossible, therefore, for the Government to accept this Amendment or any Amendment which deals with the Constitution in the sense of seeking to alter it in any respect. But I would like just to say a word in answer to my right hon. Friend's fears. He asked three questions. He asked: Why was the original draft altered, who altered it, and why was it agreed to?

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

I think I can answer the three questions. The reason it was altered was because the Irish Parliament, who altered it—perhaps I ought to have put it first, for they were the people who altered it—when it came to be passed in the Irish Parliament they omitted the limitations which the original draft contains, for the reason, as I imagine, given by the right hon. Gentleman himself, namely, that the Clause as originally drafted did not enable the subordinate bodies to do anything at all except to waste time in talk. I suppose the Irish Parliament thought it was not a wise thing to take power to create a body which was quite useless when created. The reason why His Majesty's Government, or rather the late Government—to be accurate—presumably agreed to the alteration was this because, as my right hon. Friend himself pointed out, there was nothing in it repugnant in any way to the Treaty, and, therefore, inasmuch as their concern was to see that the Constitution agreed with the Treaty, when it was found that the alteration did not conflict with that principle, they thought it right, I imagine, to accept it. Certainly that is the reason why the present Government have not challenged that Article, because it is not repugnant to the Treaty, and therefore it is one in accordance with the principle which we explained yesterday, that we could not properly object to if the Irish Parliament wished to have it.

Photo of Mr John Rawlinson Mr John Rawlinson , Cambridge University

I agree with what the Attorney-General has said, and I realise that it is impossible for us to alter by any single word the Constitution before us now, because of the difficult position we are put into by everything having to be done by the 6th December. All I wish to do is to extract information as to what is the meaning of this Constitution. I gather from the remarks of the Attorney-General that these local parliaments will have full power, without any control from the Free State Parliament, over such matters as wireless telegraphy, and the other things which were enumerated by the right hon. Gentleman the Member for the City of London, quite irrespective of the Irish Free State Parliament.

If that is so, then they would have power to deal with matters connected with the Army, Navy and Air Force. They would have control over some of the important Irish harbours. They would have control over matters affecting the Navy, Army, Air Force, alienage, naturalisation, coinage, copyright, submarine cables, the Post Office, wireless telegraphy, railways, aerial navigation and Customs and Excise. I am not-suggesting that we should alter the Constitution, but I should like to know how it is, intended that these local bodies will exercise these powers. I quite realise that we cannot alter the Constitution. I gather that these powers will exist if this Constitution is passed in its present form, and this seems a very serious power to give to subordinate Legislatures.

Photo of Mr Austen Chamberlain Mr Austen Chamberlain , Birmingham West

My right hon. and learned Friend who has just sat down is labouring under a misapprehension which is strange for one so learned in the law. He has read a list-of subjects from the original draft submitted to the Irish constituent Assembly which it was proposed to exclude from the purview of the authority of any local parliaments that might be created in Ireland. Those things are not all of the same kind, and I submit that there is a marked difference between the Irish Parliament and any Parliament to which it can delegate only such powers as it possesses itself. If the Irish Parliament proposes to do something outside the scope of the Treaty with the Navy or in excess of the powers of the Treaty with the Army it could not do that itself, and what it cannot do itself it cannot authorise another body to do, because it would be repugnant to the Treaty to confer powers in excess of the Treaty on subordinate parliaments, because they would be null and void, ab initio.

When we are dealing with matters within the purview of the Irish Parliament, we need not greatly concern ourselves as to the manner in which the Irish Parliament chooses to exercise these powers. It does not matter whether they are exercised by the Irish Parliament itself or delegated to some subordinate body. That is a matter within their discretion which we may leave to them. I think my right hon. Friend has confused the Committee by not drawing a distinction between those things which are within the power of the Irish Parliament to deal with and within their power to delegate, and those things which it is not within the power of that Parliament to deal with and which cannot be delegated to any subordinate authority.

Photo of Mr John Gretton Mr John Gretton , Burton

The right hon. Gentleman the Member for West Birmingham (Mr. A. Chamberlain) has failed to apprehend the real case with regard to this Article which has been objected to and which has been criticised by the right hon. Gentleman the Member for the City of London (Sir F. Banbury) and others. The question which the right hon. Gentleman has raised was not mentioned by either of my hon. Friends, that is, the Irish Parliament in Dublin contemplating delegating any power which it does not possess, or which are limited or confined by the Treaty. The Treaty gives them power to delegate such matters as coastal defence. I know it is provided that there should be a conference between the Imperial authorities to consider how far the new Irish Constitution may take over coastal defence, but surely these other powers are of a very wide character, such as the powers dealing with alienage, coinage, and naturalisation. With- regard to coinage, that is a matter in which everyone having a trading connection with Ireland is deeply interested. Then there is the question of trade marks, which is also a matter of interest to every trader. They may also deal with submarine cables, which is a matter of Imperial interest.

Then there are such things included as wireless telegraphy, railways, aerial navigation, and Customs and Excise. All these matters, under this Article, may be delegated to one or more of the subordinate legislatures, and they may deal with them in any way within the Constitution which the Parliament in Dublin may decide. The history of this transaction has not been mentioned, but I am informed, and I think correctly informed, that these limitations were struck out of the Article at the instance of the members of the extreme Labour party in Dublin. Why were they struck out? There must have been some reason for it. It is well known that there is a large body of opinion in Ireland which sympathises with what has taken place in Russia and believes in a Soviet system, that is, a number of smaller bodies exercising very wide powers. If there is to be confusion of this kind in Southern Ireland, the position of British traders and British subjects in Ireland will be greatly confused, because instead of dealing with one authority we shall be dealing with a number of subordinate authorities, and it is obvious that the whole position will become most complicated. That is the point which my right hon. Friend the Member for the City of London intended to raise, and that comes within the terms of the Constitution which we are now discussing.

Photo of Mr Gershom Stewart Mr Gershom Stewart , Wirral

I notice that Article 44 gives power to create subordinate legislatures with such powers as may be decided by law. I would like to know, what law? That is a point which the ordinary layman does not understand. I would like to know what redress we should have if, for example, a local legislature in Munster had certain powers to regulate shipping going into Queenstown or other ports? I would like to know should we have any power of direction at all in regard to such a matter?

Photo of Captain Reginald Berkeley Captain Reginald Berkeley , Nottingham Central

There is one point I wish to put to the Attorney-General. Under Article 3 of the Constitution, a restricted species of citizenship is created, and a special limited class become citizens of the Irish Free State. Under Article 7 there is a provision that the dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law.

Photo of Mr John Whitley Mr John Whitley , Halifax

How does the hon. and gallant Gentleman connect that argument with Article 44?

Photo of Captain Reginald Berkeley Captain Reginald Berkeley , Nottingham Central

I thought the whole Bill was under discussion.

Photo of Mr Frederick Banbury Mr Frederick Banbury , City of London

I am much obliged to the Attorney-General for the explanation he has given. I understand now that the reason for the rejection of my Amendment is that the Irish Parliament has agreed to this Constitution, and therefore it is impossible to accept any Amendment because it is now too late. What does that mean? It means that, owing to certain circumstances, whatever is put by the Irish Parliament into this Constitution we have got to accept. [An HON. MEMBER: "Why not?"] I thought that we were exercising our right in the Imperial Parliament to pass an Act because we approved of it, and not because we are afraid to make any alterations of which the Irish Parliament does not approve.

Photo of Mr John Whitley Mr John Whitley , Halifax

The right hon. Gentleman is going a little far, I think, from the matter under discussion.

Photo of Mr Frederick Banbury Mr Frederick Banbury , City of London

I think not. [HON. MEMBERS: "Order, order!"] I will submit reasons why I think my speech is in order. The hon. and learned Gentleman the Attorney-General himself, brought forward that argument and I was only answering him. It may be that the hon. and learned Gentleman, being new to this House, did stray a little, but he was not called to order.

Photo of Mr John Whitley Mr John Whitley , Halifax

I made some concession to his inexperience.

Photo of Mr Frederick Banbury Mr Frederick Banbury , City of London

Then I will ask you to make some concession to my inexperience. That was the first point made by the hon. and learned Gentleman, and I venture to suggest that it was a very bad point and that there is good reason for disagreeing with it. Then he suggested that these words were agreed to by the late Government. My reply to that is that that is all the more reason for disagreeing with them. All the various things which I read out were, he said, not in the power of the Free State and they could not do that which they had not the power to do. Why then put this sort of thing in if it cannot be done? he asked. I think every one of these things, with, possibly, the exception of the Navy and Air Force, is in the power of the Free State to do. As regards the Navy, as far as I remember, they are entitled to build ships for coastal defence. If they are going to have ships for that purpose, providing they can get the money, it is easy to say they are only intended for coastal defence and yet to build very powerful vessels. They could, therefore, very easily get over that difficulty. I do not know whether they can have an Air Force, but with that exception everything that is in this particular paragraph can be done by the Free State and will be done, if they get the chance, by local Soviets under this Clause. It is perfectly evident that something of this sort is going to be done. The question now is what course shall be taken with regard to my Amendment? I rather agree with the hon. and learned Member for Cambridge University (Mr. Rawlin-son) that there is nothing to be gained by going to a Division on this matter. We should only be beaten by a large majority —not that I mind that, but still there is nothing to be gained. We have had an explanation which I venture to suggest is not satisfactory, but then of course the hon. and learned Gentleman the Attorney-General cannot make satisfactory statements when it is impossible for anyone to do so. Under the circumstances I shall not press the Amendment to a Division.

Photo of Sir William Davison Sir William Davison , Kensington South

May I ask the guidance of the Chair for the information of the House? I want to know how these matters can be dealt with, in view of the fact that the Attorney-General has informed the House that the Government must; take exception to every Amendment on the Paper, on the ground that it cannot be dealt with by this House, because if any Amendment to the Constitution were; accepted the Constitution could not be passed before the 6th December, and the Provisional Government would then cease, to be operative and chaos would result in Ireland. I desire, oven in these very early days of this Government, to protest, as I protested frequently in the days of the last Government, against the House, of Commons being placed in such a position, and I wish to ask if, providing that is the attitude which is to be taken up—namely, that owing to causes outside our own control we are not to have an opportunity of discussing these matters at all—what opportunity will be afforded us of raising this question at a later date.

Photo of Mr John Whitley Mr John Whitley , Halifax

That is not a question of order at all. It is a question of merit. The Amendment is perfectly in order, but it was refused by the Attorney-General on grounds of policy. I am afraid I am quite unable to give any help to the hon. Member in this matter.

Amendment negatived.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

Photo of Mr John Rawlinson Mr John Rawlinson , Cambridge University

I fully accept what the Attorney-General has said as to the practical impossibility of making any alteration in the Constitution, and, therefore, I did not press my Amendment, but I want to take this opportunity of asking a question with regard to Article 2, the wording of which is somewhat unusual, as was mentioned last night. The words are: All powers of Government and all authority, legislative, executive, and judicial, are derived from the people. That is a common formula probably known to all constitutional lawyers as indicating the powers of a Republic. In the case of a constitutional monarchy these powers are said to be derived from the Crown. This is the form of Clause which invariably appears in the constitution of a Republic, and a rough and ready test of it is that, in the case of prosecution of an offender under a monarchy it is set out as the Crown versus the prisoner, whatever his name may be, while in the case of a Republic the form would be the People versus the prisoner. Will not the effect of this Clause be, therefore, that in Ireland you will have a condition which is not consistent with the position of the Crown as being the source of all jurisdiction of that kind. Mr. Barton has told us in the Irish Press that substantially the words of this Clause were submitted to the late Lord Chancellor and to the present Lord Chief Justice, at the time of the negotiations regarding the Treaty, and that they were rejected. I want to know-exactly on what ground they are now put in. Doubtless the Government have seen the statement of Mr. Barton in the Irish Press. I wish to ask, how has it come about that these words which had been rejected, and which, undoubtedly, if they stood alone, would be against the terms of the Treaty, are now to be found in this Article? The hon. Gentleman very fairly dealt with the subject in his speech last night in this way. He said, "It is true that there is some doubt as to what the words may mean, but you must read the whole context, and if you read Article 61, and some subsequent Articles, you will find that they contain words which will contradict the effect of these words which, if they stood alone, might have the meaning which has been put on them." I want to know why words which admittedly, if they stood alone, would be consistent with a Republic and inconsistent with a constitutional monarchy, and which were rejected when brought up for discussion by the late Government, have found their way into this Constitution? Has there been any correspondence between the two Governments on this point? Has any explanation been given why these rejected 5.0 p.m. words were put in? There is also one small point of practical detail as to which I wish to ask a question. If the Constitution goes through in its present form, what will be the position in regard to ordinary criminals? At present, if a criminal is wanted in England for a particular purpose and goes over to Ireland, a warrant is issued for his arrest and sent to Ireland, where it is merely backed as in the case of an English county, and the prisoner is arrested without further difficulty and brought back. This is a simple and expeditious way of dealing with criminals, and I suppose the same procedure would apply in the case of criminals coming from Ireland to this country. But what will be the position under the new Constitution? Will it be the same as it is in regard to other countries: that application will have to be made under the Fugitive Offenders Act, a cumbrous and expensive procedure, or will it be dealt with by means of extradition, which is not quite as effective, but is also cumbrous and costly. Has any arrangement been made in this matter? I have heard it-suggested that one has been made. I want to know whether it will be possible, at any rate, to make some arrangement with the Irish Free State Government to facilitate matters of this kind. Surely the Government could get a working concession from the Irish Free State Government which would be useful to both Governments, instead of both being bound by the four walls of the Constitution. I hope to be able to get an assurance from the Government on these points. I have only indicated that one which comes within my own sphere of knowledge, but I know that there are many other points which will require working arrangements between the two Governments. I should like an assurance that the Government are approaching the Irish Free State Government for the purpose of arriving at some agreement, and, if necessary, embodying it in an Act of Parliament, so that these and other facilities may exist between the Governments, and they may not be simply bound by the four walls of what some of us think is the not very well drawn Constitution which we are bound now to accept.

Photo of Captain Reginald Berkeley Captain Reginald Berkeley , Nottingham Central

Article 3 of the Constitution says that citizenship of the Irish Free State is limited to persons who are either children of Irish parents, or who were born in Ireland, or who have been domiciled in that territory for it period of seven years. In Article 7 it is laid down that The dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law. I cannot believe that it was intended that the Constitution should be so drafted that only that limited class of persons who can claim, in the sense of Article 3, to be citizens of the Irish Free State, are intended to get the protection afforded by Article 7. The situation, however, is not without difficulty, because, in Article 6. which legislates for the liberty of the person, the words are: The liberty of the person is inviolable. That seems to make a difference between persons generally and citizens. Article 15 provides that every citizen who has reached a certain age, and is not under any disability, shall be eligible to become a member of the Dail, and that, to my mind, clearly means that throughout the Constitution the word "citizen" is interchangeable with the words "citizen of the Irish Free State.' I should like to ask the Attorney-General whether it would not be possible in some manner to provide that the protection of Article 7 for the dwellings of citizens should be extended to the dwellings of all householders in the Free State.

Photo of Lieut-Colonel Martin Archer-Shee Lieut-Colonel Martin Archer-Shee , Finsbury

I was going to move an Amendment to leave out Article 49 of the Constitution, and should like to say a word or two on the subject here, as this Clause really brings into effect the whole Constitution. I object to the Clause passing principally on account of Article 49 of the Constitution. Article 49 says that Save in the case of actual invasion, the Irish Five State (Saorstat Kireann) shall not he committed In active participation in any war without the assent of the Oireachtas. Article 7 of the Treaty says The Government of the Irish Free State shall afford to His Majesty's Imperial Forces …(b) In time of war or of strained relations with a foreign power such harbour and other facilities as the British Government may require for the purposes of such defence as aforesaid. Last night the Attorney-General, speaking in this House, said that he thought there was no inconsistency between Article 7 of the Treaty and Article 49 of the Constitution. He said: It does not say, and does not mean, that the Irish Free State is not to give the harbour facilities which they have undertaken to give. What it does mean to, say, and what it does in fact say … is chat the Irish Free State shall not be committed to active participation …."—[OFFICIAL RETORT, 27th November, 1922; col. 375.Vol.159.] In the interval between last night and to-day I have taken the opportunity of looking up the Debate in the Dail on this very subject, when this particular Article was going through Dail Eireann; and there I find that a very different view is taken in Ireland as to this Article 49 from that taken by my right hon. and learned Friend. The words there used were "actual participation," which is a very different thing from "active participation." "Actual participation in the War" are the words that were used by the Minister for Home Affairs. Mr. O'Higgins. I suggest to the House that, although we are all wanting to pass this Constitution as soon as possible, yet at the same time we are dealing with a matter of the most vital importance, not only to Ireland, but also to England, and that we cannot afford to ride in a slipshod way over these matters, but must examine them properly. I submit that Article 49 will function in a way which is not in accordance with Article 7 of the Treaty, and which might be a cause of immense friction between Ireland and England in the future unless some provision is made in regard to it. Article 7 of the Treaty says that Ireland is to provide these harbour facilities for the British Navy, not only in time of war, but in time of strained relations, and I submit to my right hon. and learned Friend that, as he must know, any nation which provides harbour factilties in time of war for another nation can hot possibly be neutral. I have fortified myself with the arguments of distinguished international lawyers on the subject, one of whom. Professor Davis, an American, says:— Any substantial aid or service, which contributes to the success of the military operations of one belligerent, enables him to inflict an injury on his enemy with whom the neutral is at peace. The neutral State therefore, in a more or less direct manner, has injured, or contributed to injure, a friend …. It is easy to see, there fore, that, if it were permitted to render such services with impunity, every important war would, sooner or later, involve all neutral States in its operations. Ho goes on to argue that this is the reason why international law forbids neutral States to give any facilities to either belligerent. Article 7 of the Treaty is a very important Article, because it was, perhaps, the last link which we maintained in the fighting unity of Ireland and the United Kingdom. It was signed by the Irish representatives. They agreed to it, and I see no reason why we should let them off the results of that agreement. It means that in time of war we can occupy certain harbours in Ireland; but, if this Article49is passed, it means that we are not going to be allowed to occupy those harbours or ports peaceably until the Oireachtas, or whatever the Parliament of Ireland will he called, has decided that they will come into the war with us. That is a matter of immense importance to this country, and it is no kindness to Ireland or to England to have a matter like this slurred over just with a few words from the Attorney-General last night. It is a matter which might mean war between Ireland and England, and we cannot be too particular in seeing that it is clearly understood in Ireland that we have the right, if war is threatened, to occupy Irishports. Of course, that would bring Ireland in at once as a belligerent; it would be impossible for Ireland to be a neutral country once we had occupied her ports and used them for military purposes. Therefore, the question whether they raise troops to join us in an active way or not is a matter of no importance at all. The really important matter is whether we can use those harbours, and whether Ireland will be brought in on our side by that. If the Dail Debate is read—unfortunately there are very few copies of it in this country—it will be found that everyone who spoke pointed out that their idea is that Ireland is going to decide whether it is going to be neutral or not. That makes an enormous difference. If Ireland were to refuse to allow us to use those harbours, this country would be in a very parlous position in time of war unless we seized the harbours, and thereby at once went to war with Ireland. There was no one who was more eloquent on this subject than the late Prime Minister, who, when he spoke at Carnarvon in October, 1920–1 think his speech will readily recur to the memory of many hon. Members of the last House—said: And I saw a map the other day that was captured, a German map, a map circulated to show how Britain was having her Fleet destroyed, and the coast of Ireland was black with British ships they had sunk, in the Atlantic, in the Irish Sea, in the St. George's Channel. It is girdled with British wrecks; yes, and British seamen are there, too: and we are to hand over Ireland to be made a base of the submarine fleet, and we are to trust to luck in our next war. Was there ever such lunacy proposed by anybody? Those were very eloquent and, in my belief, very true words. I believe it to be absolutely vital for the safety of this country that we should have the use of the Irish harbours, and it was agreed in the Treaty that we were to have that use. Why whittle it away and say that this is to be subject to a question whether the Irish Parliament agree to come into a war or not? As I have, said, everyone who spoke on the subject in Dail Eireann took the view that Ireland could be neutral if she liked, and the cause of the Debate was an Amendment moved by Mr. Darrell Figgis, who suggested that, instead of the Parliament of Ireland deciding whether Ireland would go into a war or not, the matter should be submitted to a referendum. That was not accepted by the Dail, but it seems to me that a referendum would simply mean that we probably should not know for many months whether we could use those harbours or not. Parliament might not be sitting, and it might take time to call it together, but sometimes it is a matter of life and death to act quickly in time of war. If some nation made war on us, as the Germans did out of a blue sky in 1914, it would be a matter of days whether we seized the harbours, fortified them, and used them as naval bases. Why, therefore, should not the Government make it clear, in some statement here in this House, that this country does regard Article V of the Treaty as absolutely binding, and that Ireland must give us the use of those harbours in accordance with the Treaty, if required, with- out any question of submission of the matter to the Irish Parliament? Whether they like to raise armies or help us in other ways afterwards might, no doubt, be a matter for their own Parliament to decide, but, as regards the use of those harbours and facilities which were promised in the Treaty, those are vital to the safety of this country, and we have to look after our own interests first. We do not want to have any cause of quarrel with the Free State if we can help it, but that was put in for a specific purpose, and it is practically the only safeguard we have left from the miserable surrender of 1921. I ask the Government to make it clear, in this House at any rate, that the interpretation which was put upon that in the Debate in Dail Eireann upon Article 48, as it used to be, which is now Article 4D of the Constitution, is one which is not accepted by this country, but that we do hold the Irish Free State strictly responsible to Article 7 of the Treaty.

Photo of Mr John Wheatley Mr John Wheatley , Glasgow Shettleston

I should like to address one or two remarks to the right hon. and learned Gentleman in charge of the Bill. I do not know how far I may be travelling beyond the order of the discussion, but no doubt, Mr. Hope, you will keep me right. What I should like to know is, whether the right hon. and learned Gentleman and his friends in the Government believe in the principles of government laid down in this Constitution. For instance, we have heard from the hon. and gallant Member who has just spoken that Ireland cannot be drawn into a war without the consent of the two Houses of Parliament in the. Irish Free State. The hon. Member rather feared that there would be difficulty which might result in our losing a single little war. I think all the difficulties that can be placed in the way of war are in the right direction, but I want to know whether the right hon. Gentleman believes that that is a principle good in itself, and if he does believe in it, will he take an early opportunity of extending to the law-abiding citizens of this country the principle of government which he is now conceding to the more vigorous politicians in. the Irish Free State. I find also in this Constitution that the right hon. Gentleman is conferring on the. Irish people adult suffrage, and I want to know whether he believes in that principle himself and whether the Government believes in it. I find also that for the second House men are to have votes for the election of half the number and women of 30 years of age even are to have votes. Does he believe in that as a principle of government also?

Photo of Mr John Whitley Mr John Whitley , Halifax

The hon. Member is going a little beyond what is possible, I do not think it would be in order to discuss how far the Irish Constitution can be extended to this country.

Photo of Mr John Wheatley Mr John Wheatley , Glasgow Shettleston

I was thinking not -so much of how far it could be extended hero. I was rather thinking of the honesty of the Members of the Government. I was wondering if it were possible for the right hon. Gentleman to sit there and, with all the eloquence and learning at his command, impress upon this House the wisdom of passing into law a Constitution of this character, in which he himself Las not the slightest faith or belief. If he does believe in it, I wonder why he should confine his charity to the people of Ireland. It may be, of course, that it is difficult in this House to realise that, when legislating for Ireland, we are legislating for a people who are more politically intelligent and more politically advanced than those who are represented by the majority of the people on the other side. At any rate, the lesson of what we are doing here is that if the English people, particularly the English common people, will only express themselves as vigorously and as tenaciously as the Irish people have done, we may get hon. and right hon. Gentlemen on the other side bringing forward views which they are opposed to in principle, but which they are evidently prepared always to concede if the people clamouring for those reforms can only make themselves nasty enough.

Photo of Sir William Davison Sir William Davison , Kensington South

Will the Attorney-General inform the Committee as to the meaning of the word "citizen" in this Treaty, because it is a matter of very vital importance with regard to Clauses, several of which have been pointed out. There is particularly Article 7, which says that the dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law. We want to know what is the extent of that—"of each citizen." Under this Treaty is that objectionable class which we had so much trouble with with regard to the Transvaal, the Uitlander, re-constituted? Is a British citizen who lives in Ireland for a large part of the year a citizen of the Irish Free State within the meaning of the Treaty, and, if not, is he not entitled to have his dwelling inviolable from being entered and his person from being molested? It is a matter of very great importance which I am far from clear upon. Later on we have the same phrase in Article 10: All citizens of the Irish Free State have the right to free elementary education. Supposing there is, as might very well be, some Scotch or English person employed over there, are his children not entitled to free education if they do not happen to fall into the actual scope of Irish citizenship as specified in this Treaty? Then there is again the right of voting and the right of sitting in Dail Eireann. It all depends on the very ambiguous phraseology of Article 3, which uses the word "domicile" with regard to citizenship in a way which is unusual. It says: Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State at the time of the coming into operation of this Constitution who was born in Ireland or cither of whose parents was born in Ireland or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State for not less than seven years, is a citizen of the Irish Free State, and shall, within the limits of the jurisdiction of the Free State, enjoy the privileges and be subject to the obligations of such citizenship: provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred. I want to clear up whether a person who holds British citizenship is entitled to all these privileges and protections which are provided for every citizen of the Irish Free State.

Photo of Captain William Benn Captain William Benn , Leith

I wish to ask the Attorney-General a question about the Second Schedule. I presume there is no doubt at all that if such an Address as is referred to in the agreement is presented by the Northern Government, Clause 12 of the Agreement will be implemented, namely, that a Boundary Commission will be set up with the fullest powers to do what is prescribed in Clause 12 of the Agreement. The matter has not been raised for some time, and I thought it well to ask the right hon. Gentleman for some assurance that a Boundary Commission will be set up with full powers if an Address is presented, as required by the Act, by the Northern Government.

Photo of Mr George Balfour Mr George Balfour , Hampstead

It must be clear to everyone present that the Constitution Act passed by the Provisional Government bristles with difficulties. I only rise because we have been told from the Front Bench, and it has been repeated on several occasions, that it is quite impossible to propose a single Amendment because it has been adopted by the Provisional Government. I rise for one simple thing, to associate myself wholeheartedly with the protest which has come from these Benches against being nut in this position. It is only fair to say that, while we make that protest, we realise the difficulty in which the new Parliament has been put by being compelled to pass through some measure to bring some kind of settlement to Ireland in this hurried fashion. We feel bound to make our protest with no desire to hamper or hinder the Government in any way, but I feel in my own mind satisfied that grave difficulties are going to arise in the future through the hurried manner in which this Constitution Bill is being put through the House, which will re-act against the liberty of British subjects who are resident in Ireland. As far as I have been able to study-it there are a dozen different directions in which this Act will operate quite differently from what I believe was intended by His Majesty's Ministers. With that protest I content myself, and I only hope our fears are unfounded and that this Constitution will operate as the Government expect.

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

My hon. and learned Friend the Member for Cambridge University (Mr. Rawlinson) has asked questions which are very important with regard to the procedure which is going to be adopted between this country and the Irish Free State on such matters as, for instance, the extradition of criminals. If I may use the phrase. We have not at present negotiated a final arrangement with the Irish Free State, but it is a matter which has engaged our attention, and we are endeavouring to make such arrangements as may result in our being able to adopt the very much simpler procedure which is provided by the existing law rather than the more cumbrous method of the Fugitive Offenders Act. Then I was asked with regard to Article 7. The hon. and gallant Gentleman the Member for Central Nottingham (Captain Berkeley) pointed out that Article 7 declared that the dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law. There is a very obvious criticism which can be made on that. No one's dwelling can be forcibly entered except in accordance with law whether that Clause is in or not. If you enter a person's dwelling forcibly, not in accordance with law, you are doing something illegal and you can be punished for it. It does not merely rest there. Article 73 provides that. "subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Irish Parliament." Therefore the position is that when this is enacted anyone resident in the Irish Free State, be he an Irish citizen or not, will have all the protection which is at present afforded by the code of laws under which they and we both live.

Photo of Captain Reginald Berkeley Captain Reginald Berkeley , Nottingham Central

Do I understand that Article 7 is surplusage, and is not necessary in the Constitution at all?

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

My own view is that it is quite unnecessary in the Constitution. It-is put in, I suppose, as a declaratory article. There are two or three articles which propound political doctrines which really have no legislative effect and do not alter the effect of the Constitution one iota. The next question was raised by the hon. and gallant Gentleman the Member for Finsbury (Lieut.-Colonel Archer-Shee) in regard to Article 49, and he pointed out that if facilities such as were provided for by Clause 7 of the Treaty, harbour facilities for coastal defence, were provided that was a breach of neutrality, and he argued that Article 49 of the Constitution whittled away Clause 7 of the Treaty. I am able to reassure him. I am quite prepared to state on behalf of the Government that we regard the whole of the Treaty as absolutely binding, and unaffected by anything in the Constitution. It is only on that express understanding that the Constitution was accepted, and the. Irish Parliament has expressly enacted the Articles of the Treaty in this very Statute, which include Article 7. The only effect of Article 49 of the Constitution was that the Irish people are not committed to active participation in war. There is nothing in that which says they have to remain legally neutral.

Photo of Lieut-Colonel Martin Archer-Shee Lieut-Colonel Martin Archer-Shee , Finsbury

Is the right hon. Gentleman aware that the words used in the Irish Parliament were not "active participation" but "actual participation." In other words, Ireland would not come into the war at all.

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

I am afraid my answer to that is that I do not know what words were used in the Irish Parliament, but I know what is the Constitution enacted by the Irish Parliament, and that is the only document that is binding. Some questions were asked by an hon. Member for Glasgow with regard to the honesty of the Government in passing this Constitution if we did not believe in it. My answer to that is a very simple one. The question is not whether we think this is a good or a bad Constitution, but whether we on this side of the House are going to carry out the pledge which has been given to the Irish people to enact the Constitution so long as it complies with the Treaty. We believe on this side of the House in self-determination, we do not intend to impose upon the Irish people a Constitution which they do not like because we think it would be a better one for them. The hon. Member for South Kensington (Sir W. Davison) asked me certain questions in regard to Article 3, and the expression "citizen" therein used. The qualifications of a citizen are set out in Article 3, and anybody who complies with those qualifications can, if he likes, become a citizen as soon as this Constitution becomes law. The conditions under which anyone else hereafter may become an Irish citizen are going to be determined by the Irish Free State Parliament hereafter. They are not enacted in the Constitution. Therefore, the provisions will have to be the subject of subsequent legislation. As soon as a man becomes an Irish citizen, he acquires the privileges which are set out in the Constitution. The principal ones, I think, are the franchise and the right to sit in the Irish Parliament. It is quite true that anybody who is not an Irish citizen would not have the franchise in Ireland under this Constitution. That is a matter which the Irish Free State are entitled to decide for themselves, in our view, just as every self-governing Dominion has the right to decide for itself. We do not think that this is a matter with which we can properly deal.

Photo of Captain William Benn Captain William Benn , Leith

Is it the intention of the Government under the Treaty to proceed with the setting up of the Boundary Commission?

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

I do not think there is anything in the Constitution which refers to it.

Photo of Captain William Benn Captain William Benn , Leith

Are the Government going- to proceed with the setting up of the Boundary Commission with the full intention of implementing Article 12 of the Agreement?

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

I am afraid that if my hon. and gallant Friend wishes to ask a question which docs not deal with the particular matters which we are enacting under this Constitution, it would be better if he set it down in the ordinary way. I am only endeavouring to explain the Constitution which I am asking this Committee to pass. I am not at present prepared to make a statement of policy on behalf of the Government in regard to matters which are not raised by the enacting of the Constitution.

Photo of Captain William Benn Captain William Benn , Leith

I understood from your ruling, Mr. Hope, that any question relating to the Schedule could be raised on Clause 1.

Photo of Mr John Whitley Mr John Whitley , Halifax

That was not my ruling. I said that the Schedule could not be altered, but I did not say that it could not be discussed.

Photo of Captain William Benn Captain William Benn , Leith

When you put the Question, "That this be the Second Schedule to the Bill." shall I be entitled to ask a question?

Clause 2 (Temporary Continuation of Present System of Taxation) ordered to stand part of the Bill.