On 6th December 1922, the Irish Free State became a dominion with the same status as Canada and South Africa. Dominions were self-governing. Until the Treaty of Locarno, they were bound by international treaties made by the Crown. Initially they sat with Great Britain under League of Nations, the predecessor of the United Nations.
After the 1926 Imperial Conference at Westminster, dominions became recognised as independent states. Following the 1930 Imperial Conference, the UK Statute of Westminster provided that UK laws would no longer extend to a dominion, unless the dominion so requested. This from a UK perspective, marked the point at which dominions obtained full independence.
Under the position as seen from the Irish Free State legal system, independence and sovereignty derived from the people under the Free State Constitution. The Free State Constitution reserved the matter of external relations to the Imperial Government.
The Irish Free State joined the League of Nations in 1923. It assumed independent diplomatic relations with the United States in 1924.
The Irish Free State gradually acquired greater degrees of independence through the 1920s up to the Statute of Westminster through Imperial Conferences and the emerging degree of independence enjoyed and gained by the other major n dominions, South Africa, Canada, Australia New Zealand, in this period.
From the UK perspective Irish independence derived from the 1922 legislation recognising and creating the Free State. From the Irish perspective, it derived from the IFS Constitution and treaty. Ironically, after the Statute of Westminster in 1931, the UK view allowed greater degree of freedom than the domestic view which regarded the treaty as a binding engagement between nations.
From the UK perspective the treaty, although labelled a treaty was not a treaty in the international sense. It was deemed to be entered internally with the view to ending a state of armed rebellion within the United Kingdom.
The treaty provided an option for six Ulster counties, already comprising Northern Ireland to opt out of the Irish Free State for a period of one month from the UK Act becoming effective. This Act was passed on 5th December 1922, within one year of the treaty as required. The Irish Free State came into existence the next day on 6th December 1922.
The Northern Ireland Parliament initially opted out of the Irish Free State and Northern Ireland continued to be governed under the Government of Ireland Act. The formal opt was unnecessary as unity was only to be triggered if Northern Ireland parliament had voted to participate in the Irish Free State elections months earlier. The optout was included for the removal of doubt.
The Government of Ireland Act
The Government of Ireland Act had contemplated a Council of Ireland in the context of the intended Southern Ireland counterpart to Northern Ireland. This institution did not become operative other than in a fleeting sense and elections to it were treated as elections to the Second Dail. The treaty and Free State Constitution superseded the Government of Ireland Act.
The Government of Ireland Act had contained provisions allowing for a Council of Ireland made up of members of parliament or possibly elected directly. There were elements of a federal relationship between the Northern Ireland and Southern Ireland parliaments. The Treaty transferred the powers of the Council of Ireland to the Irish Free State Parliament in the Irish Free State.
The treaty contemplated the establishment of a Boundary Commission composed of three persons to determine the final boundary between Northern Ireland and the rest of Ireland, in accordance with the wishes of the inhabitants in so far as compatible with economic and geographic conditions.
The Commission was to be made up of nominees of the Free State government, the Northern Ireland government and the chair nominated by the UK Government. The Northern Ireland government refused to nominate a member and the UK Government nominated a member on its behalf. A London born South African judge was nominated chairman and the Minister for Education in the Free State Eoin McNeill was appointed by the Irish Free State.
The chairman interpreted the provision in the Treaty in a narrow way to the effect that it was not intended to radically change the boundaries. Precedence to be given to economic and geographical conditions over the presumed population preference. The fact of nationalist majorities in most of the south and west of Northern Ireland was disregarded
The first draft of the Commission’s report was leaked and although more land and persons were to be transferred to the Free State, some land was to be transferred to Northern Ireland. The outcome caused disappointment and consternation in of the Free State and agreement was hastily entered between the prime Ministers of United Kingdom Northern Ireland and president of the Executive Council by way of a supplemental agreement. The report was not published for almost fifty years.
The boundaries of Northern Ireland and the Irish Free State remained fixed and certain financial concessions were made in relation to the sharing of the UK national debt. The powers of the Council of Ireland which in any event were inapplicable since the Southern Ireland parliament was superseded which transferred to the Northern Ireland Parliament. The agreement was passed into law in the United Kingdom and the Irish Free State.
The Free State Oireachtas had continued its power to amend the Free State Constitution for its first eight years by extending that period to sixteen years. However, it could not amend the Treaty on its view of the matter as an international engagement, to which the IFS Constitution was subordinate.
The UK Statute of Westminster had enabled dominions to make laws inconsistent with United Kingdom Parliament laws. Under the UK view, the Irish Free State derived from the Act of the United Kingdom Parliament, so that it could be amended
The first Fianna Fail government in March 1932, first as minority and later a majority governments about dismantling the parts of the 1922 IFS Constitution to which it objected on republican grounds. They used the continued the extended transitional period of 16 years to] 1938 in which the Constitution could be amended by legislation passed by Oireachtas, to change it fundamentally.
The treaty itself was repealed by amending the Constitution. The earliest amendment provided for a removal of the Oath of Allegiance to the Crown. The right of appeal from the courts in Ireland to the United Kingdom Privy Council was removed in 1933.
The Governor General’s powers are greatly reduced, and a nominee was put in place to deliberately run down the office. Citizenship law was extended to outside of Ireland. The Senate was abolished in 1936.
Immediately after the abdication crisis in the United Kingdom, the Constitution was amended to remove all references to the Sovereign and the Governor General. Finally, the Executive Authority (External Relations) Act 1936 recognised the King as the head of the Commonwealth with power on the advice of the Irish Free State to appoint diplomatic and council representatives and conclude international agreements on its advice.
The end result was that form of external association promoted by Mr. De Valera in 1921 was effectively provided for. The Crown remained as a separate symbolic representative in external affairs. The primary motivation was to retain a possible basis for future unity with Northern Ireland albeit one that was never much likely to be sufficient.
In the famous case of State (Ryan) v Lennon case the Irish Free State Supreme Court by a majority of two to one, rejected challenges to the Public Safety Act and the Constitutional amendments including the amendment to the transitional period from eight to sixteen years. The Public Safety Act has been enacted as an emergency measure giving swinging powers of military trial.
This strong dissenting judgment of Chief Justice Kennedy was highly influential in later times. It asserts that fundamental human rights derived from a source of law which could not be overruled by laws of the Oireachtas contrary to fundamental historic freedoms particularly in criminal matters.
By 1937 the Irish Free State Constitution had been stripped of much of its original content. The Supreme Court has appeared to take the view that the Treaty could not be repealed. It appeared that the Supreme Court might continue to take the view that the Constitution was limited by the Treaty. This is particularly so given that the judges appointed under the Constitution has a duty to uphold it.
It was against this background that the new Constitution of Ireland, Bunreacht na hEireann (1937) was prepared by Mr. De Valera. The draft Constitution was put to a plebiscite. Plebiscite (Draft Constitution) Act, 1937.
An election was held on 1st July 1937 to coincide with the plebiscite on the new Constitution. The Constitution was passed by a relatively narrowly (685,105 to 526,945 votes with 134,157 spoiled votes) and a new legal order was created.
The judiciary was continued in force. The judges pledged a new oath to the new Constitution.
A Senate (Seanad Eireann) was established together with the office of President. The President was not however to exercise the external authority of the Crown. The president was directly elected and was not described as head of state.
The Irish Free State ceased on 29th December 1937 and was succeeded by Eire/ Ireland, in English constituted under Bunreacht na Eireann. The State was described in the Constitution as Eire or in the English language, Ireland.
The government and various entities were described as successor to the Free State and the laws of the Free State continued in existence as far as not inconsistent with the Constitution. The Constitution (Consequential Provisions) Act provided for adaptation of references to the Irish Free State in legislation as referring to Ireland and corresponding adaptations of references to its institutions, as to the new institutions under the Constitution. A new Interpretation Act was passed.
Article 2 of the Constitution declared that the national territory consisted of the whole island of Ireland, its island and territorial seas. Article 3 provided that pending the reintegration of the national territory, and without prejudice to the rights of the Oireachtas to exercise jurisdiction over the whole of the territory, the laws enacted by it were to have the like extent and application of the laws of the Irish Fee State and like extraterritorial effects.
The Constitution declared that Ireland is as sovereign independent democratic state. The national flag is the green, white and orange tricolor. The national language and first official language is designated Irish. English is the second official language. Citizens of Ireland have a duty of fidelity to the nation and loyalty to the State.
The so-called economic war was initially involved withholding of Land Purchase Annuities and retaliatory agricultural tariffs by the UK had commenced in 1932. It eased in the mid-1930s. By the year 1938, an Agreement was entered resolving that dispute. In the context of that agreement or so called three Treaty Ports were returned to Ireland. The 1938 Act of the United Kingdom Parliament styled the State, Eire.
The Irish courts interpreted the nature of the “Nation and State, articles of the Constitution in a number of judgments.
When the Sunningdale Agreement was entered in 1973, Kevin Boland a former Government Minister challenged the Agreement as unconstitutional in that the State was to be party to an agreement recognizing the status of Northern Ireland within the United Kingdom. The High Court and Supreme Court decided the matter on narrow grounds but did signal that that it would be unconstitutional for the government to abrogate its claim to Northern Ireland.
Later cases referred to t Article 3 as political in nature s. A challenge by the McGimpsey brothers, to the Anglo-Irish Agreement failed but the Supreme Court indicated that that Articles 2 and 3 were legal claim of right and that there was a Constitutional imperative to seek unity.
The Republic of Ireland Act 1949 passed by a multi-party coalition including the Republican Clan na Poblachta declared the State to be a republic. The executive authority of the crown was repealed. The executive power of the state in connection with external relations was to be exercised by the President.
The Republic of Ireland was appointed as the new name of the State as and from 18th April 1949. Ireland ceased to be a member of the Commonwealth and the external association with United Kingdom under Article 29.4 2 was abandoned.
The Ireland Act 1949 passed by the UK Parliament recognized the secession of the State and the new designation as the Republic of Ireland. The Republic of Ireland was declared not to be a foreign country for the purpose of UK laws.