Читать книгу The New Irish Constitution: An Exposition and Some Arguments - Various - Страница 8

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But it seems to me that such standardization is best secured by definitely reserving certain subjects of legislation to the Imperial Parliament rather than by imposing upon the exercise of such legislation by the Irish Parliament constitutional limitations which are certain to raise great doubts and provoke excessive litigation. It would be far better to reserve criminal law, as has been done in Canada, in the case of the provincial legislatures—though not without difficulty—than to lay down certain abstract principles. Moreover, is it desirable to maintain such uniformity of legislative principle? There is a great deal to be said for reserving certain [pg 021] subjects of legislation to the Imperial Parliament, but to impose on the whole sphere of legislation entrusted to the Irish Parliament the same principles as those governing the English Statute-Book, or the common law, is to subject almost every conceivable Irish statute to the challenge of litigious politicians. This is what has happened in the United States. The clause, as it stood, might quite conceivably have prevented the Irish legislature from extending the procedure of the Summary Jurisdiction Acts to cases where it was not so extended in England—a most mischievous result, seeing that this procedure is the sanction by which nearly every new statute extending the scope of industrial or public health legislation or conferring powers on local authorities is enforced.

Uniformity of legislation between the two countries is not desirable in all directions nor has it hitherto been followed. In matters of expropriation, for example, the drastic procedure of the Housing and Town Planning Act has not been adopted in Ireland. Ireland has her own standard in these matters in the case of the Irish Local Government Act, and the Land Purchase Acts, and I am not at all sure that the principles of the English Land Clauses Consolidation Act and Railway Clauses Consolidation Acts as to arbitration and compensation are by any means ideal. Still less has uniformity in the matter of criminal law been the rule hitherto between the two countries. It would be difficult to find a parallel in this country for the Crimes Act of 1887 (which is still on the Statute-Book although it is no longer put in force by proclamation) with its extensions of summary jurisdiction to cases of criminal conspiracy, intimidation, riot, and unlawful assembly, and its provisions for a change of venue.

It is perhaps more open to question whether the [pg 022] words of the 1893 Bill designed to secure to the subject “the equal protection of the laws,” and to prevent legislation discriminating against Englishmen and Scotsmen29 under certain circumstances, ought not to have been repeated. The words “equal protection of the laws” have been interpreted in the United States in such a way as to secure that legislation, particularly in the exercise of the “police power,” shall be impartial in its operation.30 On this interpretation, they would for example, have prevented an Irish Legislature from exempting Catholic convents which are used as workshops from the operation of the Factory Acts. But that might be secured in another way, and the words might, if adopted, have operated to prevent much useful legislation. It seems likely enough that discriminating legislation, in so far as it tended to prevent a particular class of persons from residing in Ireland or penalised non-residents, would be held invalid in any case on the ground that it conflicted with the reservation to the Imperial Parliament of such subjects as “trade” and “naturalization.”31 And, as regards non-residents, it must be remembered that the grant of legislative powers can only be exercised “in respect of matters exclusively relating to Ireland or some part thereof”—words which may be found to be of considerable importance.

The same may be said of the omission in the Bill, to provide, as its predecessor of 1893 provided, for the maintenance of securities for the liberty of the subject and the preservation of his common law rights. It is almost impossible to do this without entering on an [pg 023] uncharted sea of litigation. Modern legislation, especially social and industrial legislation, infringes common law rights at every point. I have ventured elsewhere32 to describe the modern tendency of industrial legislation as a tendency, inverting Maine's famous aphorism, to advance from contract to status, that is to say, to limit to an increasing extent the contractual freedom of the worker, and to confer on him a certain status by the protection of him against himself.33 The greater part of our Irish land legislation impaired the obligation of contracts. Professor Dicey criticised the Bill of 1893 for not going further than it did in its incorporation of clauses taken from the Constitution of the United States with the intention of securing the common law rights of the subject. But it may be remarked that many of those clauses have proved an almost intolerable limitation upon the power of the legislatures to deal with the regulation of trade and industry, so intolerable that the Supreme Court has of late made a liberal use of the fiction of “the police power”34 to enable the legislatures to pass legislation which otherwise might have seemed [pg 024] to “abridge the privileges” of citizens of the United States or deprive them of “liberty or property without due process of law.”35

At the same time it must be remembered that, although the Irish Parliament is not debarred from statutory interference with common law rights, its legislation will be subject to rules of interpretation, at the hands of the Judicial Committee, by which statutes are always construed in favour of the subject. It is a well-accepted rule of construction in English courts that common law rights cannot be taken away except by express words.36 It is something to secure that the interpretation of the new Constitution and of Irish statutes shall, in the last resort, be wholly in the hands of an Imperial Court. The chartered protection of the rights of the individual by a fundamental Act is always difficult and often impossible. In the last resort it depends very much on the interpretation which the judges choose to place upon such an Act.37

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