The Constitution of the Irish Free State was the founding legal document of the Irish Free State of 1922-1937. It was enacted with the adoption of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, of which it formed a part. In 1937 it was replaced by the modern Constitution of Ireland.
The Constitution of the Irish Free State established the first independent Irish state to be recognised both by the British government and internationally. As originally enacted, the constitution was firmly shaped by the requirements of the Anglo-Irish Treaty that had been negotiated between the British government and Irish leaders in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 a series of amendments after its adoption gradually removed many of those provisions that were required by the Treaty.
The Free State 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, in practice, during the entire period of the Irish Free State the constitution could be amended 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 Dáil Éireann, and a judicial system in the form of the Dáil 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 Dáil 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 Dáil 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), 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:
The constitution was adopted by means of a complex process involving both the Parliament of the United Kingdom and the Irish Dáil. 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 Irish Free State (Saorstát Éireann) 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 Dáil, 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 (Saorstát Éireann) 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 in its first schedule. The UK Parliament then enacted the similarly titled Irish Free State Constitution Act 1922 on 5 December. This merely provided that the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 would have the force of law. The Irish Act was reproduced as a whole as a schedule to the British law. Both the law passed by the British parliament, and the Act of the Constituent Assembly, provided that the new constitution would be brought into force by a royal proclamation. The constitution came into force on 6 December. On this date the members of the Dáil took the Oath of Allegiance and nominated the new cabinet provided for by the constitution, the Executive Council.
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 Irish Free State (Saorstát Éireann) Act 1922 contained two schedules. One schedule contained the new constitution and the other the Anglo-Irish Treaty. As adopted in 1922, Section 2 of the Act provided that the treaty took precedence over the constitution and laws of the Irish Free State. Furthermore, both Section 2 of the Act and Article 50 of the constitution provided that no amendment of the constitution would be admissible if it violated the treaty.
Therefore, under the British constitutional law in force in 1922, the Irish Free State had no authority to escape the requirements of Anglo-Irish Treaty. It was unclear that the Oireachtas could amend the Irish Free State (Saorstát Éireann) Act 1922 and, while the Free State could amend the constitution itself, any such amendment had to comply with the Treaty.
This was changed by the enactment, by the British Parliament, of the Statute of Westminster in 1931. This Act was designed to increase the autonomy of all British dominions and granted the Free State the power to alter Irish laws in any way it chose. The Free State soon used this new freedom to enact the Constitution (Removal of Oath) Act 1933. Aside from abolishing the Oath of Allegiance, a requirement of the Anglo-Irish Treaty, the Act repealed those provisions both of the constitution proper and of the Irish Free State (Saorstát Éireann) Act 1922 that required that the Free State’s constitution and law comply with the Treaty. This act was followed soon after by others dismantling provisions of the constitution that had been dictated by the Treaty.
As adopted, the constitution proper consisted of 83 articles, coming to approximately 7,600 words. The Irish Free State (Saorstát Éireann) Act 1922 consisted of only four 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 formally subdivided into chapters or headings, save for the final ten provisions 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 (1-4)
Fundamental rights (5-10)
Dáil Éireann (26-29)
The Senate (30-34)
Initiative and referendum (47-48) Constitutional amendments (50)
Regulation of state finances (61-63)
Transitory Provisions (73-83)
The constitution itself had no preamble. However 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:
Commonwealth membership: Article 1 stated that the state would be a “co-equal member” of the British Commonwealth.
Popular sovereignty: It was stated that the “all powers of government… are derived from the people of Ireland” (Article 2).
Citizenship: the constitution provided that those living in the state at the time of its coming into force who had been born in Ireland, had parents born in Ireland or had been resident in the state for seven years would become citizens. However anyone who was the citizen of another state could choose not to become an Irish citizen (Article 3).
National language: It was provided that Irish was the “National Language” but English was “equally recognised as an official language” (Article 4). The constitution included the terms Saorstát Éireann (as one name for the Irish Free State), Oireachtas (for the legislature), and Dáil Éireann and Seanad Éireann (for the houses of the legislature), all of which were intended for use even in English speech.
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.
Prohibition of titles of nobility: It was provided that no title of honour could be conferred on an Irish citizen without the consent of the Executive Council (Article 5). In practice this amounted to a complete ban.
Liberty and habeas corpus: Article 6 provided that no-one could be deprived of liberty except in accordance with the law, and that habeas corpus would be upheld. The military forces were granted an exemption from this article during time of war or rebellion.
Inviolability of the home: The home could not be entered except in accordance with the law (Article 7).
Freedom of conscience and worship: Protected by Article 9 subject to “public order and morality” (Article 8).
Prohibition of establishment: The state could not “endow” any religion (Article 8).
Religious discrimination: The state could not discriminate on religious grounds (Article 8).
Freedom of speech, assembly and association: All guaranteed subject to “public morality”. Laws regulating freedom of assembly and association could not be discriminatory (Article 9).
Right to education: Free elementary education guaranteed to all citizens (Article 10).
Trial by jury: Guaranteed by Article 72, which granted an exemption for minor offences and offences triable by court martial.
Organs of government:
The constitution provided for a parliamentary system of government. The legislature was called the Oireachtas and had two houses: the Dáil Éireann was established as the lower house, and Seanad Éireann as the senate or upper house. However the Seanad had only limited powers of delay so it was the Dáil that 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. The 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 King, represented by a Governor-General. Notionally the Governor-General was responsible for appointing and dismissing the cabinet, and could veto laws, but, in accordance with constitutional convention, he exercised merely a ceremonial role. Both the senate and the office of Governor-General were abolished by constitutional amendments during the Free State’s final days.
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:
Constitutional referendum: After an initial period all constitutional amendments would be subject to a mandatory, binding referendum. An amendment would not be deemed to have been passed unless at least a majority of registered voters participated in the referendum and the votes in favour were equal to either:
(1) a majority of all eligible voters, or (2) a two-thirds majority of votes cast. This provision was stricter than the modern Constitution of Ireland, which merely requires a majority of votes cast.
Veto of legislation: Once a bill had been approved by both houses of the Oireachtas (or just by the Dáil, if it had overridden the Senate) its enactment into law could be suspended if, within seven days, either a majority of the Senate or 40% of all members of the Dáil so requested. There would then be a further period of ninety days within which either 5% of all registered voters, or a 60% majority in the Senate, could demand a referendum on the bill. The referendum would be decided by a majority of votes cast. If rejected the bill would not become law. These provisions did not apply to money bills or bills declared by both houses to be “necessary for the immediate preservation of the public peace, health or safety”.
Initiative: Ordinary citizens would have the right, through an initiative process, to draft both constitutional amendments and ordinary laws, and insist that they be submitted to a referendum. The constitution provided a general frame-work for how the initiative would work, empowering the Oireachtas to fill in the details with legislation. It required that a proposal could be initiated by a petition of 50,000 registered voters. Once initiated a proposal would be referred to the Oireachtas, but if the Oireachtas did not adopt the law it would be obliged to submit it to a binding referendum. The constitution gave the Oireachtas two years to adopt a law allowing voters to introduce initiatives. However after this time voters had power to force the issue. This is because the initiative process itself could then by made the subject of an initiative. After two years the introduction of an initiative process would be put to a referendum if demanded by a petition of not less than 75,000 voters on the register (not more than fifteen thousand of whom could be voters in any one constituency).
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 in order 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.
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 fifteen years of the constitution’s operation, 25 formal constitutional amendments were made. This can be contrasted with the fact that, during its first sixty years, the current Constitution of Ireland was amended only sixteen times. In addition to the adoption of formal 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 ..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 President Eamon de Valera, a “tattered and torn affair”.
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 forbid 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 forbid 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 it tried to obstruct 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.
Amendment No. 1 (11 July 1925): Made changes relating to the terms of office of senators, and the date on which senatorial elections were to be held.
Amendment No. 3 (4 March 1927): Removed the requirement that the day of any general election would be declared a public holiday.
Amendment No. 4 (4 March 1927): Extended the maximum term of the Dáil from four to six years. The Electoral (Amendment) Act, 1927, enacted in May of the same year, set a limit of five years in ordinary law. The overall outcome, therefore, was that the term of the Dáil was increased by only one year.
Amendment No. 2 (19 March 1927): Introduced a system of automatic re-election of the Ceann Comhairle (chairman) of the Dáil in a general election.
Amendment No. 5 (5 May 1927): Increased the maximum membership of the Executive Council from seven to twelve members.
Amendment No. 10 (12 July 1928): Removed all direct democracy provisions except the requirement that, after a transitional period, a referendum be held on all constitutional amendments. However this remaining provision would never be allowed to come into effect.
Amendment No. 6 (23 July 1928): Replaced the direct election of the Senate with a system of indirect election.
Amendment No. 13 (23 July 1928): Extended the Senate’s power of delay over legislation from nine months to twenty months. This was intended to compensate the Senate for the loss of its right to force a referendum on certain bills that had been removed by Amendment No. 6.
Amendment No. 8 (25 October 1928): Reduced the age of eligibility for senators from 35 to 30.
Amendment No. 9 (25 October 1928): Altered provisions relating to the procedure for nominating candidates to stand in senatorial elections.
Amendment No. 7 (30 October 1928): Reduced the term of office of senators from twelve to nine years.
Amendment No. 14 (14 May, 1929): Clarified a technical matter relating to the relationship between the two houses of the Oireachtas.
Amendment No. 15 (14 May 1929): Permitted one member of the Executive Council to be a senator, where previously it had been required that all be members of the Dáil. It was still required that the President, Vice-President and Minister for Finance hold seats in the Dáil.
Amendment No. 16 (14 May 1929): Extended the period during which amendments of the constitution could be made by ordinary legislation from eight to sixteen years.
Amendment No. 11 (17 December 1929): Altered the method for filling premature vacancies in the Senate.
Amendment No. 12 (24 March 1930): Altered provisions relating to the Committee of Privileges that had authority to resolves disputes over the definition of a money bill.
Amendment No. 17 (17 October 1931): Introduced Article 2A, which included draconian provisions for trial by military tribunals.
Constitution (Removal of Oath) Act (3 May 1933): Abolished the Oath of Allegiance and removed requirements that the constitution and laws of the Free State be compatible with the Anglo-Irish Treaty. This involved repealing Section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, as well as altering provisions of the constitution.
Amendment No. 20 (2 November 1933): Removed the Governor-General’s role in recommending appropriations of money to the Dáil. This function was vested expressly in the Executive Council. In practice this change was merely symbolic.
Amendment No. 21 (2 November 1933): Removed provisions granting the Governor-General the theoretical right to both veto bills and reserve them “for the King’s pleasure”.
Amendment No. 22 (16 November 1933): Abolished the right of appeal to the Privy Council.
Amendment No. 26 (5 April 1935): Made a technical change to Article 3, which dealt with citizenship.
Amendment No. 23 (24 April 1936): Abolished the two university constituencies in the Dáil.
Amendment No. 24 (29 May 1936): Abolished the Senate.
Amendment No. 27 (11 December 1936): Abolished the office of Governor-General and removed all reference to the King from the constitution. The functions of the Governor-General were transferred to various other branches of government.
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 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. In order 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.