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Now it is very doubtful if this could be said of any Constitution that has stood the test of time. On the face of it, a political organism which, like the lowest organisms in biology, is made up of a perpetual repetition of rudimentary parts must be in a very backward stage of development. Differentiation is the law of all progress. It is quite true that the Constitution of the United States provides for the equal representation of the States in the Senate; it is also true that as regards the power of the Federal Legislature over each State there is uniformity--that is to say, the Federal Legislature cannot legislate for one State more than another. But in so far as this is used as an argument against granting Ireland greater legislative powers than Scotland or Eng. land it is singularly illusory.
No study of the American Constitution is complete unless we also take into consideration the constitutions of the individual States, and the moment we do this we shall find that the powers possessed by each State Legislature are anything but uniform. In theory each State has the same residuary powers -i.e. all the powers not granted to Congress--as every other State, but that does not mean that the State Legislature has them. In many States the legislative powers are, under the State Constitution, reserved to the people, whether by a
" referendum, or a convention, or otherwise, and in them the State Legislature is little more than a place for drafting Bills for submission to the electorate, or for enacting Private Bill legislation. Here all is heterogeneity. The conditions of an advanced State, like New York, may allow of a high development of representative government; those of another, like Oregon, may admit of the primitive forms of a Landsgemeinde. The equality of the State Legislatures inter se, and from the point of view of the Federal Legislature, is therefore very illusory. It would, doubtless, be better that Congress should have larger powers of legislation over some States-especially the more backward States, whose Legislatures, as their peoples have found, cannot be trusted—than over others, but that is impossible owing to the contractual character of the original Constitution, and the referendum and the convention are a kind of desperate escape from this undiscriminating uniformity. The uniformity of the legislative power of Congress and the equality of State representation in the Senate are not a political ideal but a political compromise-a compromise between the jealousies of the original contracting States, each of which, whether large or small, was unwilling to surrender less or more of its legislative power than the others. This is a defect, not a virtue, of the Federal system, and the draughtsmen of the latest experiment in Federal Constitutions 13 have been at pains to avoid it.
12 It must be remembered also that the States possess the power-which Ireland will not possessmof changing their own Constitutions.
Fortunately for us we start from the supremacy of the Imperial Parliament; and it is one of the great virtues of that Parliament that it can and does legislate more for one part of the kingdom than for another; that it can differentiate between Ireland and Scotland and England and Wales. 14 Any student of the statutebook can discover for himself how far this differentiation has already been carried. A friend of the writer, Mr. H. de R. Walker, has, after a careful estimate, come to the conclusion that in no fewer than 49.8 per cent. of the Public General Acts of the United Kingdom for the last twenty years has Parliament legislated separately for the separate countries of the United Kingdom ; in only 50.2 per cent. has she legislated for the whole.
Nor is this the whole story. Even the latter category bears within it evidence of legislative separation. Bills relating to the whole of the United Kingdom have, owing to the differences between Scottish, Irish, and English law and administration, to be drafted as composite Bills with what are known as application clauses, which define and vary how much or how little of the Bill is to apply to Scotland and Ireland as the case may be. Such a Bill is a kind of skeleton-key designed to fit three different locks, but it requires an expert locksmith to forge it, and the process does not make for the participation of the untutored private member in its construction. Nor does it make for simplicity, and yet one of the first canons of legislation is, as Bentham long ago pointed out, that it should, in the language of the Prayer Book, be easily understanded of the people. We have recently had in the case of the Insurance Bill an example of how difficult it is to draft a great measure for the whole of the United Kingdom, involving large questions of administration, without raising difficulties such as those that are forced to the front by the position of the Health Committee under the Scottish system of local government. All this amounts to saying that we already have legislative devolution in a state of arrested development.
Few people who have not studied parliamentary procedure realise how much our present ' Unionism' conceals a' process of legislative disintegration. We are faced with a kind of incoherent devolution-executive devolution and legislative devolution--but unfortunately the one stands in no logical relation to
13 In the Australian Commonwealth the equality of States representation in the Senate may be overborne, through the agency of a joint session, by the numerical preponderance of the more populous States in the House of Representatives.
14 There is a remarkable clause in the Scotch Act of Union (Article XVIII.) providing that changes in Scotch law shall only be made by the Imperial Parliament where it is ' for evident utility of the subjects within Scotland.'
the other. Putting on one side the almost complete administrative separation which already exists between Great Britain and Ireland - Ireland, which, in the words of Grattan, was left by the Act of Union with all the appanage of a kingdom except a Legislature,' and which has a Chief Secretary who is a kind of Prime Minister without a Cabinet, presiding over some forty-two more or less irresponsible departments, we have a growing administrative separation between England and Scotland. Every day the powers of the Secretary for Scotland are increasing, but he is not thereby brought under the control of the Scottish Standing Committee. To create a new Scottish or Irish Department does not thereby increase parliamentary control over Scottish or Irish administration-rather it diminishes it. The heads of the Scottish Education Office, Local Government Board, and Department of Agriculture have been made responsible not to the House of Commons, but to the Secretary. Like the Chief Secretary for Ireland, he is a' Prime Minister without a Cabinet and without a Legislature, and his policy is apt to be determined primarily not by Scottish opinion but by the alien issues of Imperial politics.
The Act which restored the Secretaryship of Scotland to life after a hibernation of 140 years conferred on him the functions of half-a-dozen great departments of State, and as time goes on those functions tend to increase rather than to diminish. It is beyond the capacity of any one man to be responsible for a Scottish Local Government Board, an Education Office, a Crofters' Commission, and a Congested Districts Board, to say nothing of excursions into Private Bill procedure. These great and manifold powers, and those of the departments subordinate to him, may be enlarged without any exercise of parliamentary authority. A departmental minute, supported by a Treasury grant, has sufficed to confer large powers in regard to secondary education upon the Secretary, and by the exercise of his right of supervision over Scottish Private Bill procedure he has contrived to confer upon the Scotch Office executive powers such as should only be conceded by a public Bill with the full and explicit consent of Parliament. I am far from saying that these extensions were in themselves undesirable ; all I am concerned to show is that the Imperial Parliament does not and cannot control the government of Scotland. Moreover, Scottish Private Bill procedure has got into an impasse ; we have set up in Scotland committees without a Parliament, just as we have established an Executive without a Legislature. It has been found impossible to concede final and exclusive control over Scottish Private Bills to the itinerant Commissioners—a right of appeal (with considerable restrictions) lies to the House of Commons, a power of reservation of such Bills is entrusted to the Chairmen
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of the two Houses at Westminster, and a considerable degree of supervision is exercised by the Scottish Office in Scotland. The appeals are expensive, the reservations are apt to be invidious, and the supervision is bureaucratic. Yet there is no denying that the Scotch Office, owing to its acquaintance with Scottish law and administration, has far better qualifications for such supervision than the Imperial Parliament. I think it is obvious that all these considerations point to the necessity either of a Scottish Parliament or of the enlargement of the powers of the Scottish Committee, to perfect this procedure. If this be true of Private Bill procedure, it is no less true of that procedure in regard to public Bills by which the latter are referred to a Standing Committee of the House of Commons composed predominantly of Scotsmen. Such a Committee can never be its own master at Westminster, because, as Mr. Balfour remarked in his evidence before the Select Committee of 1906, the House views with extreme jealousy the delegation of its powers to these committees, and is apt to insist on turning the Report Stage into a second Committee stage, with resulting delay, confusion, exasperation, and, not infrequently, failure. He might have added that his own party have opposed the institution of such committees for no better reason than the deplorable one that when a Liberal majority in Scotland co-exists with a Unionist majority in the Imperial Parliament, a Unionist Government cannot afford to delegate such autonomy to the Scottish members within the walls of the House--a singular commentary on the extent to which local legislation is sacrificed to alien considerations of party warfare. If such Bills are in charge of private members the Government will not find time for their Report stage; if they are in charge of the Government, the Opposition will oppose that stage in order to embarrass the Ministry.
To talk therefore to-day of the necessity of safeguarding the supremacy, and still more the unity of the Imperial Parliament, may be important for the jurist (and we do not propose to neglect an examination of it), but for the political student it has lost much of its meaning. The legal supremacy of Parliament is still unimpaired, but its legislative freedom is seriously diminished. We have something like devolution in a state of arrested development. It is therefore possible—and indeed essential—that, without losing sight of the special claims of Ireland, we should treat the problem of Home Rule as but one aspect of a larger problem-namely the restoration of Parliamentary control over the Executive. The growing volume of
. complaint against the arbitrary action of Government departments in the interpretation of statutes and the exclusion of both the courts and the House of Commons from control over them, the secretive character of our foreign policy, the unchecked growth of expenditure, will all be found in the last resort to arise directly or indirectly from the increasing congestion of business in the House of Commons. Sir William Anson has gone so far as to speak of legislative sovereignty having passed from Parliament to the Cabinet. The remedy for this state of things may or may not be found at Westminster. Devolution of legislative business upon Committees of the House itself has perhaps been carried as far as is compatible with the preservation of that House in its existing form. Exigencies of time of themselves.set a limit to the scope of Grand Committees ; concurrent sittings of the whole House and of Committees of the House are fatal to the activity of the one or the other. The autonomy of a Committee is limited by the necessity of securing within it something like a representation of the distribution of parties in the House.
Such is the 'unity' of the United Kingdom. Can we speak of all this process as conforming to Mr. Balfour's law of a tendency towards closer union? The only tendency I can discern is towards a growing renunciation of legislative power on the part of the House of Commons and its displacement by an autocratic Executive upon which are devolved powers of legislation so large as to be quite unprecedented.15
Is it not obvious that if we are to associate ourselves with the law of tendencies the obvious line and the line of least resistance is to bring these incoherent attempts at devolution, which have been forced on us by the inexorable pressure of facts, into something like an ordered system of constitutional development? To do so is not to break up the Constitution '—it is to restore it. Our Constitution is, in the language of Burke,
a permanent body composed of transitory parts,' and 'the whole moves on through the varied tenour of perpetual decay, fall, renovation, and progression. So long as we maintain its two fundamental principles-the rule of law' and the supremacy of the Imperial Parliament-we have little to fear from changes of adjustment to new conditions. The real danger to be apprehended is not from such a tentative, empirical, and limited devolu
a tion of legislative power as is contemplated by the Government of Ireland Bill, but from the final, logical, and extravagant 'Federalism' of our new a priori politicians. The Conservative party seems to be infected by the same spirit of violent revolution as animated them in the controversies over the Parliament Bill. Then they must have a new Senate; now they are content with
15 See the issue of this Review for April 1911, in which I traced the growth and attempted to indicate the dangers of this tendency.
16 Reflections on the French Revolution.