Constitution of the Irish Free State
The Constitution of the Irish Free State was adopted by Act of Dáil Éireann sitting as a constituent assembly on 25 October 1922. In accordance with Article 83 of the Constitution, the Irish Free State Constitution Act 1922 of the British Parliament, which came into effect upon receiving the royal assent on 5 December 1922, provided that the Constitution would come into effect upon the issue of a Royal Proclamation, which was done on 6 December 1922. In 1937 the Constitution of the Irish Free State was replaced by the modern Constitution of Ireland following a referendum.
As enacted, the Constitution of the Irish Free State 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 had been 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 could be and were in fact made by a simple Act of the Oireachtas.
Background and enactment
Debate on whether a written constitution was required
Whether or not the Irish Free State would have a written constitution was the subject of some debate when the Irish Free State Bill was introduced to the Provisional Parliament by President Cosgrave. The Labour leader, Thomas Johnson, remarked: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. He compared it to re-establishing Poynings' Law.
Nonetheless, there were counter 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 recognised 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:
- the new state would be called the Irish Free State and would be a dominion of the British Commonwealth;
- the King would be the head of state and would be represented by a Governor General;
- members of the Oireachtas would swear an oath of allegiance to the Irish Free State and declare their fidelity to the King. This Free State Oath of Allegiance was controversial; and
- Northern Ireland would be included in the Irish Free State unless its Parliament decided to opt out.
Legislative competence
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. Mr Collins chaired the first meeting of that committee and at that point 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. 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 state. 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, 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 Bill was introduced into Dáil Éireann 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 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,, 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.
Incorporation of the treaty
The Constitution of the Irish Free State 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 exercisable 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 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 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.