Irish Free State
The Constitution of the Irish Free State was the first constitution of the independent Irish state. It was enacted with the adoption of the Constitution of the Irish Free State (Saorstat Eireann) Act 1922, of which it formed a part. In 1937 it was replaced by the modern Constitution of Ireland.
As originally enacted, the Constitution was firmly shaped by the requirements of the Anglo-Irish Treaty that had been negotiated between the British government and Irish leaders in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 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 originally intended that the Constitution would be a rigid document that, after an initial period, could be amended only by referendum. However, a loophole in the Constitution's amendment procedure meant that all amendments were in fact made by a simple Act of the Oireachtas (parliament).
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 Dail Eireann, and a judicial system in the form of the Dail courts. However this self-proclaimed republic was recognised neither by the British government nor any other state. 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 Dail Constitution, this was a very brief document and had been intended to be only provisional. It was therefore clear, 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 (parliament) 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.
Northern Ireland would be included in the Irish Free State unless its Parliament decided to opt out (which it ultimately did).
The Constitution of the Irish Free State was drafted by a committee under the nominal chairmanship of Michael Collins. Collins attended only the first meeting of the Committee, and 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 Dail in the event of that area opting out of the proposed Free State.
The official 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), Padraic O Maille; the Clerk of the Dail, Colm O Murchadha; Piaras Beaslai; Liam O Rinn and Professors Osborn Bergin and T. F. O'Rahilly.
Method of adoption
The Constitution was adopted by means of a complex process involving both the Parliament of the United Kingdom and the Irish Dail. The method used was complicated by the fact that the Free State was seceding from the United Kingdom, that the British wished to incorporate a mechanism whereby the new constitution would be subordinate to the Anglo-Irish Treaty and that the new constitution had to be legitimate both in British law and within the constitutional theory of Irish nationalists. A three stage process was followed, involving
The Constitution of the Irish Free State (Saorstat Eireann) Act 1922 (enacted by the Irish Constituent Assembly)
The Irish Free State Constitution Act 1922 (enacted by the UK Parliament)
A royal proclamation to bring the constitution into effect.
To begin with elections were held for the Third Dail, which was to sit as an Irish constituent assembly for the enactment of the Constitution. This assembly enacted the Constitution of the Irish Free State (Saorstat Eireann) Act 1922 on 25 October of that year; this Irish Act was to be the overall fundamental law of the new state, and incorporated the document known more specifically as the Constitution of the Irish Free State as its first schedule. The British Parliament at Westminster then passed the Irish Free State Constitution Act 1922 on 5 December, which provided that the Constitution of the Irish Free State (Saorstat Eireann) Act 1922 would have the force of law. The entire text of the Irish Act was reproduced as a schedule to the British Act.
Both the British and Irish Acts provided that the Constitution would be brought into force by a royal proclamation, which was accordingly issued on 6 December. The Constitution thus came into force on 6 December, the latest possible date allowed for by the Constitution itself. On this date the members of the Dail took the Oath of Allegiance, and nominated the members of the Executive Council (cabinet).
The means by which the Constitution was adopted resembled, in some respects, the way in which constitutions were granted to other Commonwealth nations. For example the current Constitution of Australia was adopted by the British Parliament–it is a schedule to the Commonwealth of Australia Constitution Act 1900. The law adopted in 1922 at Westminster had the structure of a Russian doll, containing within it the entire text of the Irish Act, which in turn contained within it the whole text of the new constitution.
Incorporation of the Treaty
The Constitution of the Irish Free State (Saorstat Eireann) 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.
Under British constitutional legal theory, the Constitution of the Irish Free State (Saorstat Eireann) Act 1922 held the force of law because of the enactment of the United Kingdom's Irish Free State Constitution Act 1922, thus entrenching the primacy of the Treaty. The British also viewed Irish compliance with the terms of the Treaty as a moral obligation.
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 Eamon 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 (Saorstat Eireann) 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.