Republic of Ireland Act 1948

The Republic of Ireland Act 1948 (No. 22 of 1948) is an Act of the Oireachtas (parliament) which declared that Ireland may be officially described as the Republic of Ireland, and vested in the President of Ireland the power to exercise the executive authority of the state in its external relations, on the advice of the Government of Ireland. The Act was signed into law on 21 December 1948 and came into force on 18 April 1949, Easter Monday,[1][2] the 33rd anniversary of the beginning of the Easter Rising.

The Act ended the remaining statutory role of the British monarchy in relation to the state, by repealing the 1936 External Relations Act, which had vested in George VI and his successors those functions which the Act now transferred to the President.

Text of Act

The Republic of Ireland Act is itself quite short, running to just 5 brief sections, and is therefore set out in full as follows:

Number 22 of 1948

The Republic of Ireland Act, 1948
An Act to repeal the Executive Authority (External Relations) Act, 1936, to declare that the description of the State shall be the Republic of Ireland, and to enable the President to exercise the executive power or any executive function of the state in or in connection with its external relations. (21 December 1948)
Be it enacted by the Oireachtas as follows:—
1.—The Executive Authority (External Relations) Act, 1936 (No. 58 of 1936), is hereby repealed.
2.—It is hereby declared that the description of the State shall be the Republic of Ireland.
3.—The President, on the authority and on the advice of the Government, may exercise the executive power or any executive function of the State in or in connection with its external relations.
4.—This Act shall come into operation on such day as the Government may by order appoint.

5.—This Act may be cited as The Republic of Ireland Act, 1948.

— The Republic of Ireland Act[3]

The King

Section 1 of the Act repealed the Executive Authority (External Relations) Act 1936. By doing so the Act abolished the last remaining functions of the King, then George VI, in relation to the Irish state. These functions had related to the issuance and acceptance of letters of credence of diplomatic and consular representatives and the conclusion of international agreements. Section 3 provides that the President of Ireland may instead exercise these functions and any other functions in relation to the state's external (or foreign) relations. This effectively upgraded the President to a full head of state.

The Commonwealth

At the time the Act came into force, a requirement for a country's membership of the British Commonwealth was that the state retain the same monarch as the other members. The view of the Irish Taoiseach whose government brought in the Act was that Ireland did not have a King and had not been a member of the Commonwealth since 1936.[4] His Government's view was that Ireland was already a republic and that the Act would not create a republic but rather achieve a "clarification of [Ireland's] constitutional status."[5] These views were shared by the Irish opposition leader of the time.[6] Indeed, Irish leaders had on several previous occasions declared that Ireland was a republic and not a Commonwealth member, but that it was associated with the Commonwealth.[7]

The Irish view of things was not shared by the other members of the Commonwealth. Until Ireland brought the Act into force, it was still regarded by the members of the Commonwealth as a member. When Ireland adopted its 1937 Constitution, which made no reference to the King, the United Kingdom Government announced that it and the other Commonwealth Governments were "[still] prepared to treat...Ireland, as a member of the British Commonwealth of Nations.”[8] After all, in their view, the King was still empowered by Ireland to fulfill certain functions as Ireland's statutory agent under the External Relations Act 1936. With that Irish Act now being repealed, there was no longer any basis to consider Ireland as continuing to have a King or to be within the Commonwealth. In their view, Ireland had now declared itself a republic for the first time bringing its membership of the Commonwealth to an end.

The London Declaration, which permitted republics to remain within the Commonwealth, was made shortly afterwards in response to India's desire to continue as a member once its new republican constitution was finalised. However, the Irish government opted not to reapply for membership of the Commonwealth, a decision that was criticised by then Leader of the Opposition Éamon de Valera, who considered applying for membership after being returned to power in the 1950s.[9]

Republic of Ireland Description

Section 2 of the Act quite simply provides:

It is hereby declared that the description of the State shall be the Republic of Ireland.

Notably, the Act did not change the official name of the state. It merely provided the description for the State. The Constitution of Ireland provides that Éire (or Ireland in English) is the official name of the State and, if the Act had purported to change the name, it would have been unconstitutional as it was not a constitutional amendment. The distinction between a description and a name has sometimes caused confusion. The Taoiseach, John A. Costello, who introduced the Republic of Ireland Bill in the Oireachtas, explained the difference in the following way:[10]

If I say that my name is Costello and that my description is that of senior counsel, I think that will be clear to anybody who wants to know. If the Senator will look at Article 4 of the Constitution she will find that the name of the State is Éire. Section 2 of this Bill declares that "this State shall be described as the Republic of Ireland." Its name in Irish is Éire and in the English language Ireland. Its description in the English language is "the Republic of Ireland.".

United Kingdom's response

The United Kingdom responded to the Republic of Ireland Act by enacting the Ireland Act 1949. This Act formally recognised that the Irish state had ceased to be a member of the Commonwealth, but provided that Irish citizens would not be treated as aliens under British nationality law. This, in effect, granted them a status similar to the citizens of Commonwealth countries.[11]

The Act also provided that "the part of Ireland heretofore known as Eire" could be referred to in future UK legislation as the "Republic of Ireland".[12] Between the enactment of the Constitution of Ireland in 1937 and the enactment of the Ireland Act 1949, the United Kingdom had only formally acknowledged "Eire" [sic] as the name of the Irish state. The UK's continued aversion to using "Ireland" as the correct formal name for the state due to the fact it did not (and does not) comprise the entirety of the island of the same name remained a source of diplomatic friction for several decades afterwards.

The UK's Ireland Act also gave a legislative guarantee that Northern Ireland would continue to remain a part of the United Kingdom unless the Parliament of Northern Ireland formally expressed a wish to join a United Ireland; this "unionist veto" proved to be controversial during the Act's passage through Westminster, as well as in the Irish state and amongst Northern Ireland's nationalist community. The guarantee was replaced in 1973, when the Parliament of Northern Ireland was abolished, by a new guarantee based on "the consent of the majority of the people of Northern Ireland".[13]

On the day the Act came into force, 18 April 1949, King George VI sent the following message to the President of Ireland, Seán T. O'Kelly:[14]

I send you my sincere good wishes on this day, being well aware of the neighbourly links which hold the people of the Republic of Ireland in close association with my subjects of the United Kingdom. I hold in most grateful memory the services and sacrifices of the men and women of your country who rendered gallant assistance to our cause in the recent war and who made a notable contribution to our victories. I pray that every blessing may be with you today and in the future.
— GEORGE R.

Background

The Act repealed the External Relations Act, 1936. Under that Act, King George VI acted as the Irish head of state in international relations by accredited ambassadors and on the State's behalf accepted credentials appointing foreign ambassadors to the State.[15] The Republic of Ireland Act removed this last remaining practical role from the King and vested it instead in the President of Ireland, making the then President of Ireland, Seán T. O'Kelly, unambiguously the Irish head of state.

In 1945, when asked if he planned to declare a Republic, the then Taoiseach Éamon de Valera had replied, "we are a republic",[16] having refused to say so before for eight years. He also insisted that Ireland had no king, but simply used an external king as an organ in international affairs. However, that was not the view of constitutional lawyers including de Valera's Attorneys-General, whose disagreement with de Valera's interpretation only came to light when the state papers from the 1930s and 1940s were released to historians. Nor was it the view in the international arena, who believed that Ireland did have a king, George VI who had been proclaimed King of Ireland in December 1936, and to whom they accredited ambassadors to Ireland. King George, in turn, as "King of Ireland" accredited all Irish diplomats. All treaties signed by the Irish Taoiseach or Minister for External Affairs were signed in the name of King George.

In October 1947, de Valera asked his Attorney-General, Cearbhall Ó Dálaigh, to draft a bill to repeal the External Relations Act.[15] and by 1948 a draft of the bill included a reference to the state as being a republic.[15] In the end, the draft bill was never submitted to the Oireachtas for approval.

Introduction of the bill

The bill to declare Ireland a republic was introduced in 1948 by the new Taoiseach, John A. Costello of the Fine Gael party. Costello made the announcement that the bill was to be introduced when he was in Ottawa, during an official visit to Canada. David McCullagh has suggested that it was a spur of the moment reaction to offence caused by the Governor-General of Canada,[17] Lord Alexander, who was of northern Irish descent, who allegedly placed loyalist symbols, notably a replica of the famous Roaring Meg cannon used in the Siege of Derry, before an affronted Costello at a state dinner. What is certain is that an agreement that there would be separate toasts for the King and for the President of Ireland was broken.[18] The Irish position was that a toast to the King, instead of representing both countries, would not include Ireland. Only a toast to the King was proposed, to the fury of the Irish delegation.[18] Shortly afterwards Costello announced the plan to declare the republic.

However, according to all but one of the ministers in Costello's cabinet, the decision to declare a republic had already been made before Costello's Canadian visit.[19] Costello's revelation of the decision was because the Sunday Independent (an Irish newspaper) had discovered the fact and was about to "break" the story as an exclusive. Nevertheless one minister, Noel Browne, gave a different account in his autobiography, Against the Tide. He claimed Costello's announcement was done in a fit of anger of his treatment by the Governor-General and that when he returned, Costello, at an assembly of ministers in his home, offered to resign because of his manufacture of a major government policy initiative on the spot in Canada. Yet according to Browne, all the ministers agreed that they would refuse to accept the resignation and also agreed to manufacture the story of a prior cabinet decision.[20]

The evidence of what really happened remains ambiguous. There is no record of a prior decision to declare a republic before Costello's Canadian trip, among cabinet papers for 1948, which supports Browne's claim.[19] However, the Costello government refused to allow the Secretary to the Government, Maurice Moynihan, to attend cabinet meetings and take minutes, because they believed he was too close to the opposition leader, Éamon de Valera.[21] Rather than entrust the minute-taking to Moynihan, the cabinet entrusted it to a Parliamentary Secretary (junior minister), Liam Cosgrave. Given that Cosgrave had never kept minutes before, his minutes, at least early on in the government, proved to be only a limited record of government decisions. So whether the issue was never raised, was raised but undecided on, was subjected to a decision taken informally, or was subjected to a decision taken formally, remains obscure on the basis of the 1948 cabinet documentation.[19]

At any rate, the Act was enacted with all parties voting for it. De Valera did suggest that it would have been better to reserve the declaration of the republic until Irish unity had been achieved, a comment hard to reconcile with his 1945 claim that the Irish state was already a republic. Speaking in Seanad Éireann Costello told senators that as a matter of law, the King was indeed "King of Ireland" and Irish head of state and the President of Ireland was in effect no more than first citizen and a local notable, until the new law came into force.

Reassessment

In 1996, the Constitution Review Group considered amending the Constitution to declare that Ireland should be named "Republic of Ireland". It decided against recommending such an amendment.[22] This was the second time that such an amendment was considered by committee.

References

Sources

Citations

  1. ↑ The Republic of Ireland Act 1948 (Commencement) Order (S.I. No. 27/1949). Statutory Instrument of the Government of Ireland.
  2. ↑ "When Was Easter Sunday in 1949?". Retrieved 21 June 2013.
  3. ↑ The Republic of Ireland Act from the IrishStatuteBook.ie.
  4. ↑ Taoiseach John A. Costello speaking in the Dail - The Republic of Ireland Bill, 1948 — Second Stage; Wednesday, 24 November 1948 where he said ""We were not since 1936 a member of the Commonwealth of Nations."
  5. ↑ Taoiseach John A. Costello speaking in the Dail - The Republic of Ireland Bill, 1948—Second Stage; Wednesday, 24 November 1948 where he said "The clarification of our constitutional status achieved by the Bill will enable us to partake in international relations in a way that has not heretofore been possible."
  6. ↑ Opposition leader Eamon de Valera speaking in the Dail on The Republic of Ireland Bill, 1948—Second Stage; Wednesday, 24 November 1948
  7. ↑ Taoiseach Eamon de Valera speaking in the Dail's Committee on Finance; Vote 65—External Affairs; Tuesday, 17 July 1945: "We are an independent Republic, associated as a matter of our external policy with the States of the British Commonwealth.
  8. ↑ Opposition leader Eamon de Valera speaking in the Dail's The Republic of Ireland Bill, 1948—Second Stage; Wednesday, 24 November 1948 and quoting a United Kingdom Government statement of 1937 which read "We here to-day are not proclaiming a republic anew; we are not establishing a new State...We are simply giving a name to what exists — that is, a republican State"
  9. ↑ Kenny, Kevin (2004). Kevin Kenny, ed. Ireland and the British Empire. Oxford University Press. p. 217. ISBN 978-0-19-925183-4. Retrieved 2012-01-30.
  10. ↑ The Republic of Ireland Bill, 1948—Committee and Final Stages. Seanad Éireann debates. 15 December 1948. Vol. 36, p.323. Retrieved 2008-01-16.
  11. ↑ Heater, Derek (2006). Citizenship in Britain: a history. Edinburgh: Edinburgh University Press. p. 224. ISBN 074862225X.
  12. ↑ Ireland Act 1949, s. 1.
  13. ↑ Northern Ireland Constitution Act 1973 s.1.
  14. ↑ The Times, 18 April 1949
  15. 1 2 3 McCabe, Ian (1992). "John Costello 'Announces' the Repeal of the External Relations Act". Irish Studies in International Affairs (Royal Irish Academy) 3 (4): 70.
  16. ↑ "Seanad Éireann - Volume 30 - 19 July, 1945" Office of the Houses of the Oireachtas. Retrieved on 14 March 2007.
  17. ↑ McCullagh, David The Reluctant Taoiseach Gill and Macmillan 2010 p.210
  18. 1 2 McCullagh p.210
  19. 1 2 3 McCullagh pp.205-7
  20. ↑ Browne, Noel (1986). Against the Tide. London: Gill & McMillan. ISBN 0-7171-1458-9.
  21. ↑ McCullagh pp.179-80
  22. ↑ Constitution Review Group (1996). "Articles IV: Name of State". Report of the Constitution Review Group (PDF). Dublin: Stationery Office. p. 7. Archived from the original (PDF) on 21 July 2011. Retrieved 2008-01-12. The Review Group also considered whether the Article should be amended to include ‘Republic of’ in the name of the State. It is satisfied that the legislative provision (section 2 of the Republic of Ireland Act 1948), which declared the description of the State to be ‘the Republic of Ireland’, is sufficient.

External links

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