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
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)
The Executive Veto.
It is obvious, therefore, that the principal and indeed almost the only
safeguard provided in the Bill against inequitable or discriminating
legislation(38) is the veto of the Lord-Lieutenant acting on the
instructions of the Imperial Government. A political check is preferred to
a juristic check. The apostolic maxim “all things are lawful but all
things are not expedient,” appears to have been the motto of the
draughtsman. Not law but policy will decide what Irish Acts are to be
placed on the Statute-Book. It must be admitted that this is the principle
most in harmony with precedent if the constitutions granted to the
colonies are to be regarded as precedents. No colony would have tolerated
for a moment the elaborate network of restrictions in Clause 4 of the Bill
of 1893, through the finely-woven meshes of which it would have been hard
for any Irish legislation of an original or experimental character to
pass. If we are really in earnest about setting up a Parliament on College
Green, we cannot do otherwise. The executive veto must be the real check,
and in the presence of such a check, English judges would always be very
loath(39) to declare the Acts of a legislature _ultra vires_ merely
because they infringed common law rights.
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