Constitution of the Irish Free State

The Constitution Committee meeting at the Shelbourne Hotel, Dublin.

The Constitution of the Irish Free State was the second constitution of the independent Irish state. It was adopted by Act of Dáil Éireann sitting as a constituent assembly on 25 October 1922 and was proclaimed by Royal Proclamation[1] on 6 December 1922 in accordance with Article 83 of the Constitution and came into operation on the issue of that Proclamation. On the previous day the Irish Free State Constitution Act 1922 of the British Parliament received the Royal Assent and gave effect to the constitution under British law.[2] In 1937 it was replaced by the modern Constitution of Ireland following a referendum.

As enacted, the constitution was firmly shaped by the requirements of the Anglo-Irish Treaty that had been negotiated between the British government and Irish leaders in 1921. However, following a change of government in 1932 and the adoption of the Statute of Westminster a series of amendments progressively removed many of the provisions that were required by the treaty.

The constitution established a parliamentary system of government under a form of constitutional monarchy, and contained guarantees of certain fundamental rights. It was intended that the constitution would be a rigid document that, after an initial period, could be amended only by referendum. However, amendments were made to the constitution's amendment procedure so that all amendments were in fact made by a simple Act of the Oireachtas (parliament).

A written constitution?

Whether or not the Irish Free State would have a written constitution was the subject of some debate when the Irish Free State (Saorstát Éireann) Bill was introduced to the Provisional Parliament by President Cosgrave. The Labour leader, Thomas Johnson remarking:

[T]here is no compulsion—so far as I can read in the Treaty—for a Constitution —a written Constitution—to be established at all.... It would be wiser, I suggest, to leave the enactment of a Constitution until there is something like quietude in the country.... I submit that it would be enough, in so far as any obligations that have been entered into, to re-enact, re-affirm, or ratify – whichever phrase you like – the Treaty itself, and let the Constitution grow out from that and thereby flatter our neighbours by following their own practice, in allowing the Constitution to develop by custom and usage.

Another reason put forward not to adopt a written constitution was that constitutional conventions between members of the British Commonwealth were evolving and there was likely to be an Imperial Conference on the matter before long. The Labour leader also objected to the manner in which the Provisional Parliament was being described as a "constituent assembly" when in fact it was not acting of its "free volition" and thereby at liberty to adopt a constitution.[3] He compared it to re-establishing Poynings' Law.[4]

Nonetheless, there were strong arguments in favour of adopting a written constitution. Irish nationalists who fought the War of Independence believed themselves to be fighting on behalf of a newly formed state called the Irish Republic. The Irish Republic had its own president, an elected assembly called Dáil Éireann, and a judicial system in the form of the Dáil Courts.This republic was recognized by the revolutionary government in Russia. In the negotiations leading to the Anglo-Irish Treaty the British government insisted that the new Irish state must remain within the Commonwealth and not be a republic. Furthermore, while the Irish Republic had a constitution, of sorts, in the form of the Dáil Constitution, this was a very brief document and had been intended to be only provisional. It was therefore the prevalent view that when, in 1921, the British government agreed to the creation of a largely independent Irish state, that a new constitution was needed. The Anglo-Irish Treaty made a number of requirements of the new constitution. Among these were that:

Legislative competence

On 31 March 1922, an act of the United Kingdom Parliament called the Irish Free State (Agreement) Act 1922 was passed. It gave the force of law to the Anglo-Irish Treaty. It also provided by for the election of a body to be called the "House of the Parliament", sometimes called the "Provisional Parliament", to which the Provisional Government established under that act would be responsible. The act gave no power to the Provisional Parliament to enact a constitution for the Irish Free State.[5] In due course, "the House of the Parliament," provided for by that act, was elected and met on 9 September 1922, and calling itself Dáil Éireann, proceeded to sit as a constituent assembly for the settlement of what became the Constitution of the Irish Free State.

Constitution Committee

Shortly after the British evacuated their troops from Dublin Castle in January 1922, Michael Collins set about establishing a committee to draft a new constitution for the nascent Irish Free State which would come into being in December 1922.[6] Mr Collins chaired the first meeting of that committee and at that point (he died before the constitution was finalised) was its chairman. Darrell Figgis, the vice-chairman became acting Chair. The committee produced three draft texts, designated A, B and C. A was signed by Figgis, James McNeill and John O'Byrne. B was signed by James G. Douglas, C.J. France and Hugh Kennedy and it differed substantially from A only in proposals regarding the Executive.[7] This difference was intended by Douglas to permit the anti-treaty faction a say in the final proposed constitution before its submission to the British Government. As such it was, according to Douglas, an attempt to ameliorate the pro- and anti-treaty split. Draft C was the most novel of the three. It was signed by Alfred O'Rahilly and James Murnaghan, and provided for the possibility of representation for the people of the northern counties in the Dáil in the event of that area opting out of the proposed free s÷tate.[8]
The Irish text was then drafted as a translation of the English text. The Irish language version was drafted by a committee which included the Minister for Education, Eoin MacNeill; the Leas-Cheann Comhairle (deputy speaker), Pádraic Ó Máille; the Clerk of the Dáil, Colm Ó Murchadha; Piaras Béaslaí; Liam Ó Rinn and Professors Osborn Bergin and T. F. O'Rahilly.

Method of adoption

As a practical matter, the process of drafting the constitution began with the establishment by Michael Collins of the committee to draft a new constitution. This started shortly after the Provisional Government was established in January 1922. In subsequent months members of the Provisional Government negotiated the draft constitution with the British authorities. After that process was completed, a bill entitled the Constitution of the Irish Free State (Saorstát Éireann) Bill was introduced into Dáil Éireann (the Third Dáil) in September 1922, the Dáil sitting as a "constituent assembly". It was enacted by the Third Dáil on 25 October 1922.

Article 83 of the constitution provided that "The passing and adoption of this Constitution by the Constituent Assembly and the British Parliament shall be announced as soon as may be, and not later than the sixth day of December, Nineteen hundred and twenty-two, by Proclamation of His Majesty, and this Constitution shall come into operation on the issue of such Proclamation."

The British Parliament then passed the Irish Free State Constitution Act 1922, which came into force on 5 December 1922. This act recited that the House of Parliament constituted pursuant to the Irish Free State (Agreement) Act, 1922, sitting as a constituent assembly for the settlement of the Constitution of the Irish Free State, had passed the measure set forth in the schedule to the act, (namely the constitution adopted by Dáil Éireann), which it then referred to as "the Constituent Act". It then provided that the Constituent Act should be the Constitution of the Irish Free State and should come into operation on the same being proclaimed by His Majesty in accordance with Article 83 of the constitution.

The Royal Proclamation bringing the constitution into force was made on 6 December 1922. Referring to the constitution as a "Measure" whereby the constitution appearing as the First Schedule to the Constituent Act was declared to be the Constitution of the Irish Free State, the Royal Proclamation went on to "announce and proclaim that the Constitution of the Irish Free State as the same was passed and adopted by the said Constituent Assembly has been passed and adopted by Parliament". The 6 December 1922 was the latest possible date allowed for by the Anglo-Irish Treaty for the continued authority of the Provisional Government set up by the treaty pending "the constitution of a Parliament and Government of the Irish Free State". On this date also the members of the Dáil took the Oath of Allegiance, and nominated the members of the Executive Council (the cabinet).

Incorporation of the treaty

The Constitution of the Irish Free State (Saorstát Éireann) Act 1922 contained two schedules. One schedule contained the new constitution, and the other the text of the Anglo-Irish Treaty. As enacted in 1922, Section 2 of the act provided for the supremacy of the treaty's provisions, voiding any part of the Constitution or other Free State law that was "repugnant" to it. Similarly, both Section 2 of the act and Article 50 of the constitution provided that no constitutional amendment would stand so far as it violated the terms of the treaty.

The enactment by the British Parliament of the Statute of Westminster in 1931 changed the legal framework as understood by the British. The statute was designed to increase the legislative autonomy of all the dominions. In contrast with certain of the other dominions, the statute did not specifically place any reservation on this power as exerciseable by the Free State, and thus granted it the power to alter Irish law in any way it chose. The new government under Éamon de Valera soon used this new freedom to enact the Constitution (Removal of Oath) Act 1933. Besides abolishing the Oath of Allegiance, a requirement of the Anglo-Irish Treaty, the act also expressly repealed the provisions both of the constitution proper and of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 that required compliance with the treaty. Subsequent legislation soon began to dismantle other constitutional provisions that had been required or limited by the treaty's terms.

Constitution's authority

Under British constitutional legal theory, the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 held the force of law because of the enactment of the United Kingdom's Irish Free State Constitution Act 1922. However, under Irish law the constitution "derived its authority not from the Act of the imperial parliament passed on the 5th December, 1922, or from the proclamation made on the 6th December, 1922, but from the Act of Dáil Éireann sitting as a constituent assembly passed on the 25th October, 1922".[9][10]

Main provisions

Structure

As enacted, the constitution proper consisted of 83 separate articles, totalling around 7,600 words. The Constitution of the Irish Free State (Saorstát Éireann) Act 1922 consisted of only a short preamble and three short sections, but was a far longer document because, as noted above, it included as schedules the full text of both the constitution proper and the Anglo-Irish Treaty.

The articles of the constitution proper were not grouped together under headings, save for the final ten articles (which came under the title of "Transitory Provisions"). However, divided by subject matter the articles of the constitution broke down roughly as follows:

  • Introductory provisions (Arts. 1–4)
  • Fundamental rights (Arts. 5–10)
  • Legislature (Arts. 13–46)
    • Dáil Éireann (Arts. 26–29)
    • The Senate (Arts. 30–34)
  • Initiative and referendum (Arts. 47–48)
  • Constitutional amendments (Art. 50)
  • Cabinet (Arts. 51–59)
  • Governor General (Art. 60)
  • Regulation of state finances (Arts. 61–63)
  • Courts (Arts. 64–72)
  • Transitory Provisions (Arts. 73–83)

Preamble

The constitution itself had no preamble. However the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 began with the following words:

Dáil Éireann sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people and in the confidence that the National life and unity of Ireland shall thus be restored, hereby proclaims the establishment of The Irish Free State (otherwise called Saorstát Éireann) and in the exercise of undoubted right, decrees and enacts as follows:—

Characteristics of the state

Individual rights

Unlike the then constitutions of Australia and Canada, the constitution included a bill of rights, in Articles 6–10. Rights were also protected by a number of provisions contained in other articles.

Organs of government

The constitution provided for a parliamentary system of government. The legislature was called the Oireachtas, consisting of the monarch and two houses: the Chamber of Deputies, to be known generally as Dáil Éireann, was established as the lower house, and the Senate, to be known generally as Seanad Éireann, as the upper house.[11] The Seanad had only limited powers of delay so the Dáil was the dominant house.

The executive branch consisted, in practice, of a cabinet called the Executive Council headed by a prime minister, the President of the Executive Council. This cabinet was chosen by the Dáil, which could also dismiss it by a vote of no confidence. The constitution provided that the judiciary would consist of the Supreme Court, the High Court, and any lower courts established by law.

The head of state was the monarch represented by the Governor General of the Irish Free State. Notionally the Governor General was responsible for appointing and dismissing the cabinet, and could veto laws, but, in accordance with constitutional convention, he exercised a ceremonial role.

Initiative and referendum

As originally adopted the constitution contained (in Articles 47, 48 and 50) innovative provisions for direct democracy but, owing to constitutional amendments, these provisions were never permitted to come into effect. The provisions stated that the referendum and initiative would operate on the same franchise as the Dáil; this was universal suffrage beginning at the age of 21. The constitution provided for three forms of direct democracy:

The Achilles' heel of the direct democracy provisions was contained in Article 50 which provided that, for eight years after the constitution came into force, the Oireachtas could amend the constitution without a referendum. As interpreted by the courts, this even included the power to amend the article itself and extend this period.

The Oireachtas did not adopt legislation providing for the initiative within the two years stipulated by the constitution and, eventually, a petition of 96,000 signature was gathered by the opposition to trigger a referendum forcing the Oireachtas to introduce an initiative process. The Oireachtas responded by removing all provisions for direct democracy from the constitution, save for the requirement that, once the eight-year transitional period had passed, it would be necessary to hold referendums on all constitutional amendments. Then in 1929 the Oireachtas extended this period to sixteen years. This meant that, by the time the constitution was replaced in 1937, the provisions for the constitutional referendum had still not come into force.

Amendments

Method of amendment

The Great Seal of the Irish Free State, used in the state from 1924.

The procedure for adopting constitutional amendments was laid out in Article 50. This foresaw that amendments would first be approved by both houses of the Oireachtas, then submitted to a referendum, and finally receive the royal assent from the Governor General. However, as already noted, the requirement for a referendum was postponed by the Oireachtas so that during the entire period of the Irish Free State the constitution could be amended by means of an ordinary law. As noted above it was originally provided that any amendments that violated the Anglo-Irish Treaty would be inadmissible, but this sole restriction was removed in 1933.

The Oireachtas readily used its powers of amendment so that, during the 15 years of the constitution's operation, 25 formal constitutional amendments were made. This can be contrasted with the fact that, during its first 60 years, the current Constitution of Ireland was amended only 16 times. In addition to the adoption of constitutional amendments, the courts ruled that the Oireachtas could also implicitly amend the constitution. When the Oireachtas adopted the Public Safety Act 1927, which affected civil rights, it included a section requiring that should the act be found to be unconstitutional it would be treated as a constitutional amendment. Section 3 of the act provided that:

Every provision of this Act which is in contravention of any provision of the Constitution shall to the extent of such contravention operate and have effect as an amendment [...] of the Constitution.

In the Attorney General v. McBride (1928) it was ruled that this kind of section was unnecessary because even if a law did not contain such a provision it could be interpreted as a tacit amendment of the constitution anyway, owing to the doctrine of implied repeal. This meant that, in addition to formal amendments, almost any act of the Oireachtas could be considered an amendment of the constitution. The long process of ad hoc amendment that occurred until 1937 meant that, by the time it was replaced the constitution had become, according to President (of the Executive Council) Éamon de Valera, a "tattered and torn affair".[12]

While Article 50 provided for the amendment of the constitution proper, there was no explicit provision in any law for the amendment of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922. Some jurists therefore maintained that the Oireachtas did not have power to amend the Act; rather, if it were possible to alter the law at all, it might be necessary to ask the British Parliament to do so, or to elect another constituent assembly. Chief Justice Kennedy was among those who took the view that the act could not be altered by the Oireachtas. Nonetheless changes were eventually made to the act, when the Oireachtas passed the Constitution (Removal of Oath) Act 1933, and when it was repealed in its entirety with the adoption of the 1937 constitution.

When the new constitution was drafted lessons had been learned from the Free State constitution. It too granted the Oireachtas a temporary power to make constitutional amendments by ordinary law, but, unlike the Free State constitution, it expressly forbade the legislature from using this power to extend the transitional period. Article 46 of the new constitution required that constitutional amendments be approved by referendum while Article 51 of the Transitory Provisions suspended this requirement for an initial three years (beginning when the first president assumed office). However Article 46 forbade the legislature from amending either itself or Article 51. In the event the Oireachtas used its transitional power only twice, when it adopted the First Amendment and the Second Amendment. The new constitution then settled down and was not amended again for thirty years. Another difference from the Free State constitution is that the modern constitution requires constitutional amendments to be expressly identified as such. Every amendment must have the long title "An Act to amend the Constitution".

Subjects of amendments

Some amendments made minor changes, such as removing the requirement that elections occur on a public holiday, but others were more radical. These included extending the term of the Dáil in 1927, the abolition of the initiative and of direct elections to the Senate in 1928, extending the period during which the Oireachtas could amend the constitution in 1928, and the introduction of draconian provisions for trial by military tribunals in 1931. From 1933 onwards a series of further amendments were made that gradually dismantled the Treaty settlement by, for example, abolishing the Oath of Allegiance and the office of Governor General. Because a majority of its members disagreed with this process, the Senate was abolished in 1936.

List of amendments

The titles given to the amendments below are in an abbreviated form. The full title of Amendment No.1 was the Constitution (Amendment No. 1) Act 1925, Amendment No. 2 was the Constitution (Amendment No. 2) Act 1927, and so forth. The only amendment not to follow this pattern was the Constitution (Removal of Oath) Act 1933. It can be seen that the official numbering of constitutional amendments did not necessarily coincide with the order in which they were adopted. Equally confusing is the fact that there were formally no Amendments No. 18, 19 or 25.

Civil rights in practice

The constitution empowered the courts to strike down laws they found to be unconstitutional. However judicial review of legislation was made largely meaningless by the ease with which the Oireachtas could alter the constitution. Furthermore, as the state had only recently seceded from the UK, Irish judges were trained in British jurisprudence. To this tradition, founded on deference to the legislature and parliamentary sovereignty, constitutional review was an alien concept. This meant that despite the adoption of a new, more rigid constitution in 1937, constitutional review did not become a significant feature of Irish jurisprudence until the 1960s. During the entire period of the Free State, only two pieces of legislation were declared by the courts to be unconstitutional.

The Free State had significant problems with public order in early years. It was founded during the Irish Civil War which did not come to an end until May 1923, and thereafter there were continuing problems of public disorder and subversive activities by the Irish Republican Army (IRA). This situation led to an erosion of civil rights in the new state. During the Civil War a law provided the death penalty for the crime of unlawful possession of a firearm, and more than seventy people were executed for the offence. Draconian measures continued to be used after the war's conclusion; these included internment of former rebels and the punishment of flogging for arson and armed robbery, introduced in 1924.

In 1931, acting in response to IRA violence, the Oireachtas adopted Amendment No. 17 of the constitution. This added a new draconian set of provisions called Article 2A to the constitution. Article 2A was very large, consisting of five parts and 34 sections. Among other provisions it granted powers of arrest, detention and trial of people before military tribunals not bound by normal rules of evidence, despite the fact that many crimes triable before the tribunals carried a mandatory death sentence. To protect itself from being undermined by the courts, Article 2A was drafted to state that it took precedence over all other provisions of the constitution (save Article 1).

The provisions for military tribunals were challenged in 1935 in the case of The State (Ryan) v. Lennon. In this case the majority of the Supreme Court reluctantly held that, because Amendment No. 17 had been duly adopted in accordance with the correct procedure, it was not open to the judges to strike it down. However Chief Justice Kennedy disagreed, arguing, in a dissenting opinion, that the Article 2A violated natural law.

References

Sources

Primary
Secondary

Citations

  1. ↑ Text of Royal Proclamation is contained in "SPECIAL ISSUE" Iris Oifigiúil (The Dublin Gazette), Published by Authority, Wednesday, 5 December 1922
  2. ↑ Moore v Attorney General [1935] 1 I.R.
  3. ↑ Dáil Éireann 18 Sept. 1922
  4. ↑ Dáil Éireann 18 Sept. 1922
  5. ↑ Moore v Attorney General [1935] 1 I.R.
  6. ↑ Address to the Constitutional Convention, Dublin Castle, 1 December 2012 by Gerard Hogan, judge of the High Court of Ireland
  7. ↑ Douglas p81
  8. ↑ Douglas p85
  9. ↑ The State (Ryan and Others) v. Lennon and Others [1935] 1 I.R. 170
  10. ↑ The Criminal Law (Jurisdiction) Bill, 1975 [1977] 1 I.R. 129
  11. ↑ Article 12, Constitution of the Irish Free State
  12. ↑ "Bunreacht na hEireann (Dréacht)—Dara Céim.". Dáil Éireann debates. 11 May 1937. Vol.67 No.1 p.30 col.73. Retrieved 30 October 2015.

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