The New Irish Constitution: An Exposition and Some Arguments
History
The New Irish Constitution: An Exposition and Some Arguments
Home rule -- Ireland; Ireland -- Politics and government
In the new Bill the supremacy of the Imperial Parliament is secured by
express words. The words are not necessary. No Parliament can bind its
successors, and what one Parliament has done another Parliament may undo.
Even when one Parliament has been at pains, by declaring its legislation
“perpetual” or “unalterable” to bind posterity—as in the case of certain
clauses in the Irish and Scotch Acts of Union—its injunctions have been
disregarded by its successors with no more formality than is necessary in
the case of any other legislation. An Act setting up a new Constitution is
no more irrevocable than an Act authorising the imposition of the income
tax. If, therefore, the Imperial Parliament chooses to grant a
Constitution to Ireland, there is nothing to prevent its revoking or
amending that grant, even (we submit) though it should have been at pains
to enact that the Constitution could only be surrendered or altered by the
consent of the Legislature which that Constitution created. Some doubts
did, indeed, arise as to this point in the case of the Home Rule Bill of
1886, which not only excluded the Irish members from Westminster, but made
provision for the amendment of the new Constitution by stipulating that
such amendment should be made, if at all, by the joint authority of the
Irish and English Parliaments. Whether this would have had the effect of
preventing the “Imperial” Parliament from amending such a Home Rule Act
without calling in the assistance of the Irish Parliament was much
discussed at the time.(15) Obviously, the question does not now arise, as
the Irish members are to continue to sit at Westminster.(16)
It is therefore open to the Imperial Parliament at any time to repeal or
amend the Government of Ireland Bill after it has become law. On the other
hand, the Irish Parliament will have no power, except in so far as such
power is conceded by the Act itself, to alter its provisions. This is
stated in the Bill itself,(17) but the statement is superfluous. It
follows from the doctrine of the supremacy of the Imperial Parliament that
statutes of that Parliament can only be repealed by the Parliament itself.
No constitution granted to a British Colony, however large the grant of
self-government it contains, can be altered by that colony unless the
power to alter it is expressly conceded. Such a power, when the
Constitution itself does not prescribe some particular method of
constitutional amendment, has indeed been granted in general terms by
Section 5 of the Colonial Laws Validity Act, but this Act could not apply
to Ireland, which is outside the legal definition of a colony contained in
the Interpretation Act of 1889. The only powers of constitutional
amendment which the Irish Legislature will possess are those expressly
conceded in Clause 9, which enables it after three years from the passing
of the Act to deal with the franchise and with re-distribution.
Public-domain text, read in full here on John Shaqi.
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