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Tag Archives: Irish Free State Constitution Act 1922


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The Statute of Westminster 1931 Receives Royal Assent

The Statute of Westminster 1931, an act of the Parliament of the United Kingdom that sets the basis for the relationship between the Dominions (now called Commonwealth realms) and the Crown, receives royal assent on December 11, 1931.

The statute increases the sovereignty of the self-governing Dominions of the British Empire from the United Kingdom. It also binds them all to seek each other’s approval for changes to monarchical titles and the common line of succession. The statute is effective either immediately or upon ratification. It thus becomes a statutory embodiment of the principles of equality and common allegiance to the Crown set out in the Balfour Declaration of 1926. As the statute removes nearly all of the British parliament’s authority to legislate for the Dominions, it is a crucial step in the development of the Dominions as separate, independent, and sovereign states.

The Irish Free State never formally adopts the Statute of Westminster, its Executive Council (cabinet) taking the view that the Anglo-Irish Treaty of 1921 has already ended Westminster‘s right to legislate for the Irish Free State. The Constitution of the Irish Free State gives the Oireachtas “sole and exclusive power of making laws.” Hence, even before 1931, the Irish Free State does not arrest British Army and Royal Air Force deserters on its territory, even though the UK believes post-1922 British laws give the Free State’s Garda Síochána the power to do so. The UK’s Irish Free State Constitution Act 1922 says, however, “[n]othing in the [Free State] Constitution shall be construed as prejudicing the power of [the British] Parliament to make laws affecting the Irish Free State in any case where, in accordance with constitutional practice, Parliament would make laws affecting other self-governing Dominions.”

Motions of approval of the Report of the Commonwealth Conference had been passed by Dáil Éireann and Seanad Éireann in May 1931 and the final form of the Statute of Westminster includes the Irish Free State among the Dominions the British Parliament cannot legislate for without the Dominion’s request and consent. Originally, the UK government wants to exclude from the Statute of Westminster the legislation underpinning the 1921 treaty, from which the Free State’s constitution had emerged. Executive Council President (Prime Minister) W. T. Cosgrave objects, although he promises that the Executive Council will not amend the legislation unilaterally. The other Dominions back Cosgrave and, when an amendment to similar effect is proposed at Westminster by John Gretton, parliament duly votes it down. When the statute becomes law in the UK, Patrick McGilligan, the Free State Minister for External Affairs, states, “It is a solemn declaration by the British people through their representatives in Parliament that the powers inherent in the Treaty position are what we have proclaimed them to be for the last ten years.” He goes on to present the statute as largely the fruit of the Free State’s efforts to secure for the other Dominions the same benefits it already enjoys under the treaty. The Statute of Westminster has the effect of granting the Irish Free State internationally recognised independence.

Éamon de Valera leads Fianna Fáil to victory in the 1932 Irish general election on a platform of republicanising the Free State from within. Upon taking office, he begins removing the monarchical elements of the Constitution, beginning with the Oath of Allegiance. De Valera initially considers invoking the Statute of Westminster in making these changes, but John J. Hearne advises him to not do so. Abolishing the Oath of Allegiance in effect abrogates the 1921 treaty. Generally, the British believe that this is morally objectionable but legally permitted by the Statute of Westminster. Robert Lyon Moore, a Southern Unionist from County Donegal, challenges the legality of the abolition in the Irish Free State’s courts and then appeals to the Judicial Committee of the Privy Council (JCPC) in London. However, the Free State has also abolished the right of appeal to the JCPC. In 1935, the JCPC rules that both abolitions are valid under the Statute of Westminster. The Irish Free State, which in 1937 is renamed Ireland, leaves the Commonwealth in 1949 upon the coming into force of The Republic of Ireland Act 1948.

The Statute of Westminster’s modified versions are now domestic law in Australia and Canada. It has been repealed in New Zealand and implicitly in former Dominions that are no longer Commonwealth realms.


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Adoption of the Constitution of the Irish Free State

The Constitution of the Irish Free State (Irish: Bunreacht Shaorstát Eireann) is adopted by Act of Dáil Éireann sitting as a constituent assembly on October 25, 1922. In accordance with Article 83 of the Constitution, the Irish Free State Constitution Act 1922 of the British Parliament, which comes into effect upon receiving the royal assent on December 5, 1922, provides that the Constitution will come into effect upon the issue of a Royal Proclamation, which is done on December 6, 1922. In 1937 the Constitution of the Irish Free State is replaced by the modern Constitution of Ireland following a referendum.

Shortly after the British evacuate their troops from Dublin Castle in January 1922, Michael Collins sets about establishing a committee to draft a new constitution for the nascent Irish Free State which would come into being in December 1922. Collins chairs the first meeting of that committee and at that point is its chairman, but is assassinated before the constitution is finalised. Darrell Figgis, the vice-chairman becomes acting Chair. The committee produces three draft texts, designated A, B and C. Draft A is signed by Figgis, James McNeill and John O’Byrne. Draft B is signed by James G. Douglas, C.J. France and Hugh Kennedy and it differs substantially from draft A only in proposals regarding the Executive. Draft C is the most novel of the three. It is signed by Alfred O’Rahilly and James Murnaghan, and provides 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.

On March 31, 1922, an act of the United Kingdom Parliament called the Irish Free State (Agreement) Act 1922 is passed. It gives the force of law to the Anglo-Irish Treaty, which had been negotiated between the British government and Irish leaders in 1921. It also provides by for the election of a body to be called the “House of the Parliament,” sometimes called the “Provisional Parliament,” to which the Provisional Government establishes under that act will be responsible. The act gives no power to the Provisional Parliament to enact a constitution for the Irish Free State. In due course, “the House of the Parliament,” provided for by that act, is elected and meets on September 9, 1922, and calling itself Dáil Éireann, proceeds to sit as a constituent assembly for the settlement of what becomes the Constitution of the Irish Free State.

The Constitution establishes a parliamentary system of government under a form of constitutional monarchy, and contains guarantees of certain fundamental rights. It is intended that the constitution would be a rigid document that, after an initial period, could be amended only by referendum. However, amendments are made to the Constitution’s amendment procedure, so that all amendments can be and are in fact made by a simple Act of the Oireachtas (parliament).

Following a change of government in 1932 and the adoption of the Statute of Westminster 1931, a series of amendments progressively removes many of the provisions that had been required by the Anglo-Irish Treaty.

(Pictured: The Constitution Committee meeting at the Shelbourne Hotel, Dublin, 1922)


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Office of Governor of Northern Ireland Abolished

The mainly ceremonial office of Governor of Northern Ireland is abolished on July 18, 1973 under Section 32 of the Northern Ireland Constitution Act 1973. The Secretary of State for Northern Ireland, a cabinet office created in 1972, takes over the functions of the Governor on December 20, 1973 under Letters Patent.

The office of the Governor of Northern Ireland is established on 9 December 9, 1922 under Letters Patent to “do and execute in due manner as respects Northern Ireland all things which by virtue of the [1920] Act and our said Letters Patent of 27 April 1921 or otherwise belonged to the office of Lord Lieutenant at the time of the passing of the Irish Free State Constitution Act 1922.”

The 1922 “Instructions” sent alongside the letters patent establishing the office require the Governor of Northern Ireland to get the monarch’s permission to leave Northern Ireland, and empowers the Governor in such cases to issue letters patent under the Great Seal of Northern Ireland appointing a “Deputy or Deputies, Justice or Justices” during his absence. This emulates the practice of appointing Lords Justices of Ireland when the Lord Lieutenant is absent from Ireland. Each new Governor upon taking office selects a slate of eligible deputies from among the Privy Council of Northern Ireland, and at each of his subsequent absences a subset of these are sworn in for its duration. Many are Lord Chief Justice or Lord Justice of Appeal, including Denis Henry, William Moore, James Andrews, Anthony Babington, John MacDermott, Baron MacDermott, and Samuel Clarke Porter. Others are Senators and/or county lieutenants, including Robert Sharman-Crawford, Robert David Perceval-Maxwell, Henry Armstrong, Sir Thomas Dixon, 2nd Baronet, Maurice McCausland, and Francis Needham, 4th Earl of Kilmorey.

The Governor has possession of the Great Seal of Northern Ireland and is the successor to the Lord Lieutenant of Ireland in Northern Ireland, itself established on May 3, 1921. The official residence of the Governor of Northern Ireland is Hillsborough Castle in County Down. Following refurbishment of the Castle, James Hamilton, 3rd Duke of Abercorn, takes up residence in 1925. It remained the official residence until the abolition of the office of governor in 1973. Henceforth it has been the official residence of the Secretary of State for Northern Ireland.


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Northern Ireland Opts Out of the Irish Free State

The six counties of what would become Northern Ireland opt out of the Irish Free State on December 7, 1922, and become a separate political entity with allegiance to England.

The Irish Free State Constitution Act 1922 (Session 2) is an Act of the Parliament of the United Kingdom, passed in 1922 to enact in UK law the Constitution of the Irish Free State, and to ratify the 1921 Anglo-Irish Treaty formally.

As originally enacted, the Irish Free State Constitution Act 1922 consists of a preamble, five sections (three of which are very brief), and a schedule. The schedule is the text of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, which had been passed in Ireland by the Third Dáil sitting as a constituent assembly and provisional parliament for the nascent Free State. This Irish Act itself has two schedules, the first being the actual text of the Constitution, and the second the text of the 1921 Treaty, formally the Articles of Agreement for a treaty between Great Britain and Ireland.

The Irish Act had been approved by the Irish constituent assembly on 25 October 25, 1922. The bill for the UK Act is introduced by the Prime Minister Bonar Law into the Parliament of the United Kingdom in November 1922. The bill’s third reading in the House of Commons is on November 30. The Act receives Royal assent on December 5, 1922.

On December 7, 1922, the day after the establishment of the Irish Free State, the Parliament of Northern Ireland addresses King George V requesting its secession from the Irish Free State. The address is unanimous, with the abstentionist Nationalist Party and Sinn Féin members absent. The King replies shortly thereafter to say that he has caused his Ministers and the Government of the Irish Free State to be informed that Northern Ireland is to do so.

After the Statute of Westminster 1931, the UK government recognises the right of the Irish government to amend or repeal the UK act, but in fact the Irish government does not do so until it is formally repealed as spent by the Statute Law Revision Act 2007. The Irish government amends the Irish act in 1933 and the 1937 Constitution of Ireland repeals the entire Free State constitution. The UK Judicial Committee of the Privy Council rules in 1935 that the 1933 Act had implicitly amended the UK Act with respect to the jurisdiction of the Free State. The Supreme Court of Ireland has taken the view that the Free State constitution was enacted by the Irish Act, not by the subsequent UK Act. This reflects the view of popular sovereignty rather than parliamentary sovereignty, with the constitution’s legitimacy ultimately springing from the 1922 Irish general election.


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Ratification of the Anglo-Irish Treaty

anglo-irish-treaty-negotiatorsThe Anglo-Irish Treaty is ratified by the Parliament of the United Kingdom on December 16, 1921. It is ratified by the British House of Commons by a vote of 401 to 58. On the same day the House of Lords votes in favour by 166 to 47.

The Anglo-Irish Treaty, commonly known as “The Treaty” and officially the “Articles of Agreement for a Treaty Between Great Britain and Ireland,” is an agreement between the government of the United Kingdom of Great Britain and Ireland and representatives of the Irish Republic that concludes the Irish War of Independence. It provides for the establishment of the Irish Free State within a year as a self-governing dominion within the “community of nations known as the British Empire,” a status “the same as that of the Dominion of Canada.” It also provides Northern Ireland, which had been created by the Government of Ireland Act 1920, an option to opt out of the Irish Free State, which it exercises.

The agreement is signed in London on December 6, 1921, by representatives of the Government of the United Kingdom, which includes Prime Minister David Lloyd George, who is head of the British delegates, and by representatives of the Irish Republic including Michael Collins and Arthur Griffith. The Irish representatives have plenipotentiary status (negotiators empowered to sign a treaty without reference back to their superiors) acting on behalf of the Irish Republic, though the British government declines to recognise that status. As required by its terms, the agreement is ratified by “a meeting” of the members elected to sit in the House of Commons of Southern Ireland and separately by the British Parliament.

Éamon de Valera calls a cabinet meeting to discuss the treaty on December 8, where he comes out against the treaty as signed. The cabinet decides by four votes to three to recommend the treaty to Dáil Éireann on December 14. Though the treaty is narrowly ratified, the split leads to the Irish Civil War, which is won by the pro-treaty side.

The Irish Free State as contemplated by the treaty comes into existence when its constitution becomes law on December 6, 1922 by a royal proclamation giving the force of law to the Irish Free State Constitution Act 1922.

(Pictured: Members of the Irish negotiation committee returning to Ireland in December 1921)