Constitution of the Irish Free State

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 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.

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.

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 act gave no power to the Provisional Parliament to enact a constitution for the Irish Free State.

[1] 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.

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.

[7] Mr Collins chaired the first meeting of that committee and at that point (he died before the constitution was finalised) was its chairman.

The committee produced three draft texts, designated A, B and C. A was signed by Figgis, James McNeill and John O'Byrne.

[8] 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.

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.

In subsequent months members of the Provisional Government negotiated the draft constitution with the British authorities.

The British Parliament then passed the Irish Free State Constitution Act 1922, which came into force on 5 December 1922.

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.

The new government under Éamon de Valera soon used this new freedom to enact the Constitution (Removal of Oath) Act 1933.

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:—Unlike the then constitutions of Australia and Canada, the constitution included a bill of rights, in Articles 6–10.

To this tradition, founded on deference to the legislature and parliamentary sovereignty, constitutional review was an alien concept.

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.

Strong security 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.

However Chief Justice Kennedy disagreed, arguing, in a dissenting opinion, that the Article 2A violated natural law.

During the parliamentary debates on the constitution, Labour TDs such as Tom Johnson and T.J. O’Connell proposed the inclusion of modest welfare measures as well as provisions to protect children's rights.

British law officers further objected to the "Soviet character" of the constitution's declaration of "economic sovereignty".

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.

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 long process of ad hoc amendment that occurred until 1937 meant that, by the time it was replaced that, according to President (of the Executive Council) Éamon de Valera, the constitution had become a "tattered and torn affair".

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 request the British Parliament to do so, or to elect another constituent assembly.

Some amendments made minor changes, such as removing the requirement that elections occur on a public holiday, but others were more radical.

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.