The Third Home Rule Bill finally became law in 1914. The Parliament Act 1911 had removed the power of the House of Lords to veto legislation which had been passed by the House of Commons in three successive sessions. The enactment of legislation which provided for Home Rule on a 32 County basis, brought Ireland to the verge of civil war.
The Home Rule Act provided for the establishment for an Irish Parliament with restricted powers. External affair, tax collection, postal service, national insurance and police were reserved to and remained with Westminster. The Imperial Parliament retained the right of veto on certain matters. Ireland was to be represented by 40 MPs at Westminster. The Lord Lieutenant was to be assisted and advised by a Ministry responsible to the Irish Parliament while in respect to reserved powers it must be advised by the UK Cabinet.
It appeared in 1914 that Ulster would not accept an all-Ireland parliament. On the other hand, it was not clear whether the degree of devolution was sufficient to sustain popular support in the South. The outbreak of World War I shelved the Home Rule Act. Both the Nationalist Party and the Unionist Party supported the UK effort in the war. It was assumed the war would last no more than one to two years at most, and prospectively much less.
The Easter insurrection in 1916 was a dramatic event. The rebels proclaimed a self-style Irish Republic. It was declared by the signatories to their proclamation, who styled themselves the Provisional Government of the Irish Republic. They declared the right of Ireland to the ownership of Ireland and the unfettered control of Irish destinies to be sovereign and indefeasible. They proclaimed the Irish Republic as a sovereign independent state.
The rising showed the gulf between what the UK government was prepared to offer as against what some nationalists were prepared to accept. The manner of suppression of the rising in the in the South hastened a breach that was probably inevitable.
A National Convention was assembled in 1917 of representative Irishmen to submit a constitution for the government of Ireland within the empire. It was boycotted by Sinn Féin who by then, had gained considerable popularity. Ulster Unionists dissented from the recommendations of the Convention. The Nationalist representatives on the Convention emphasised the requirement for fiscal sovereignty. The Unionist participants maintained that the fiscal unity of United Kingdom must be preserved.
In the 1918 election Sinn Féin with almost half the vote supplanted the Nationalist Party as the principal party outside of the North East, in an election fought on the issue of independence. Its candidates pledged not to take their seats in the Imperial parliament in Westminster .
Declaration of Independence
On 21, January 1919 the elected members assembled in the Mansion House, Dublin and constituted themselves as the first Dáil Éireann. A declaration of independence was reaffirmed which ordained the elected representatives as having power to make law binding on the Irish people.
A constitution was drawn up with a ministry responsible to Dáil Éireann. The ministry developed its own administration which functioned in rivalry to the United Kingdom government. In the area of local government and courts, the new administration successfully set up rival institutions. An attempt to exercise external policy by the rebel government failed to secure discussion of the Irish question at the International Peace Conference at Versailles after World War I.
The UK government made a resolution of the Irish question a priority. Sinn Féin sought complete separation while the Ulster Unionists refused to submit to Home Rule. In this context the Government of Ireland Act 1920 was an imperfect solution. It provided for the establishment of two parliaments for six counties of Ulster and the rest of Ireland, establishing Northern Ireland and Southern Ireland, respectively. Unity was to be preserved by a Council of Ireland nominated by both parliaments. Provisions are made or a future reunion of the North and the South. The act was widely criticised.
Since 1919, Ireland had been devastated by internal warfare as the rebel government and its armed affiliates, clashed with the Royal Irish Constabulary, the armed forces and ad hoc auxiliary forces. A general election was ordered by proclamation for the parliaments of Northern Ireland and Southern Ireland in May 1921. Dáil Éireann deemed these to be the elections to the second Dáil.
On 24 May 1921, elections were held for the House of Commons of Southern Ireland, the same day as the elections for Northern Ireland. No contests occurred as all 128 MPs were returned unopposed, with Sinn Féin winning all 124 seats which made up the borough and county constituencies and the seats allocated to the National University of Ireland, and Unionists the 4 seats for graduates of University of Dublin.
By early 1921, there was demand for a compromise in the face of continuing hostilities, which it was clear was not going to lead to any conclusive outcome. On 2nd June, the Prime Minister Lloyd George invited the president of the self-declared Republic, Eamon De Valera to engage in negotiations and a truce was agreed on June 11, 1921.
Proposals for Settlement
The proposals for an Irish settlement were outlined in July 1921 on the basis of dominion status rather than the Government of Ireland Act. The British Government was convinced that the Irish people would find it an expression of political and spiritual ideals within the empire of numerous and varied nations. It was proposed that certain rights be enjoyed by the army, navy, air force and that no protective tariffs could be imposed on trade, transport or commerce with the UK. It was proposed to embody the proposals in a treaty to be ratified by the UK and Irish parliaments.
The proposal marked a very considerable advance from Home Rule, but the condition modified the form of dominion status available. Dominion status reflected the degree of independence within the British Commonwealth enjoyed by South Africa, Canada and Australia and New Zealand. The initial reaction of the provisional government was to reject the proposals on the basis that they were not an invitation to enter a free and willing partnership. On the other hand, the UK government declared that it would not consent to an abandonment of allegiance to the King.
After a series of letters culminating on 19th September 1921, Prime Minister, David Lloyd George issued an invitation, which was accepted, for the assembly of a peace conference. The conflict between national sovereignty and the refusal of the British Government to recognise the Irish Republic remained a fundamental conflict. However, the negotiations themselves implied a significant recognition involving a truce and a proposal for a treaty. This was inconsistent with a government negotiating with its own subjects.
From the perspective of Dáil Éireann the agreement was a treaty, an international engagement between the Irish Republic and British Empire. From the perspective of the UK government, it was a settlement terminating a state of rebellion.
The Prime Minister sought to revive a United Ireland, but the by now established Northern Ireland government, rejected the possibility of any engagement in the negotiations out of hand. Neither the British Government nor Nationalists were able or prepared to apply coercion.
The British representatives at the Peace Conference comprised Prime Minister and leading government ministers including the Lord Chancellor, Winston Churchill; Secretary of State for the Colonies and the Chief Secretary of Ireland. From the Irish side the plenipotentiaries nominated by the Dáil Ministry acting by Mr. de Valera appointed Arthur Griffith, Minister for Foreign Affairs; Michael Collins, Minister for Finance; Robert Barton, Minister for Economic Affairs and two other TDs as envoys from the government of the Irish Republic.
The conference was held at Downing Street and lasted for almost two months. Various delegates returned from time to time to keep the Dáil ministry informed the progress. On 3rd December 1921, the draft treaty was presented by the Irish delegation to the Dáil ministry. It was regarded was unacceptable and was rejected.
Negotiations resumed the following day and broke down. The Prime Minister asked for further discussion before the breakdown was announced. An altered form of the treaty was prepared on December 5th– December 6th, 1921 by the delegations. This treaty was signed on 6th December 1921
Ireland was to have dominion status and to be known as the Irish Free State. It was to have the same status as the Dominion of Canada, Commonwealth of Australia, Dominion of New Zealand and Union of South Africa. It was to have a parliament with the powers to make laws for the peace order and government of Ireland. An executive was to be responsible to parliament. The Dominion of Canada was the chosen model. The crucial difference was that the Irish Free State was given by law a status enjoyed by constitutional convention.
All members of parliament were to take an oath of allegiance to the Constitution of the Irish Free State and the King in virtue of the common citizenship of Ireland with Great Britain and its adherence to a membership of group of nations forming the British Commonwealth of Nations.
Control over Irish coastal defences was maintained pending subsequent arrangements. In time of peace the Irish Free State government was to afford imperial forces certain harbour facilities. This might be extended further in time of war or strained relationships as required for the defence purposes. The military forces of the Irish Free State were not to exceed such size and proportion of the military establishments maintained in Great Britain on a relative population basis.
The treaty was to be submitted for approval by the UK parliament and by the members elected to sit for the Commons of the parliament of Southern Ireland, i.e. equivalent to the Second Dáil.
For one month after ratification, the powers of the Free State were not to extend Northern Ireland. Within that month. the Parliament of Northern Ireland could opt out of the new state. As was inevitable the parliament of Northern Ireland elected out of Irish Free State on 7th December 1922
Article 12 provided a Boundary Commission consisting of three persons represented by the Government of the Irish Free State, Government of Northern Ireland and a Chairman appointed by the British Government to determine in accordance with the wish of the inhabitants as far as compatible with economic and geographical conditions, the boundaries between Northern Ireland and the rest of Ireland.
On 14th December 1921 Arthur Griffith moved for acceptance of the treaty proposals by the Dáil. President da Valera called for its rejection because it “gave away Irish Independence and brought us into the British Empire, announcing the King as direct monarch and as the source of executive authority within Ireland.
Mr. de Valera proposed Document No. 2, then confidential, but later disclosed. It proposed that for purposes of common concern, Ireland would be associated with the states of the British Commonwealth and for the purpose of the association recognise his Britannic Majesty as head of the association. It stated that all authority in Ireland would derive from the people of Ireland exclusively.The acceptance of the articles of agreement by the Dáil led to the resignation of President de Valera.
Mr. Griffith was elected in his place and confirmed his intention to carry out the decision of Dáil. President Griffith summoned the members “elected to sit in the House of Commons of Southern Ireland” to ratify the treaty and appoint the provisional government.
The status of Dáil Éireann members as members of the House of Commons of Southern Ireland is questionable given that they did not act as such nor take an oath. The ratification was nonetheless valid. This took place on 14th January 1922. The approval of the treaty by the second Dail was by 64 votes in favour of 57 votes against. The treaty was formally ratified and a provisional government with Michael Collins as chairman constituted. Most of the opponents of the treaty withdrew.
The UK Irish Free State (Agreement) Act became law on March 31st, 1922 and the machinery of government was transferred to the provisional government. The Act provided that within four months the parliament of Southern Ireland was to be dissolved and an election of members for constituencies, which have been elected for that parliament, would constitute the house of parliament to which the provisional government was to be responsible.
The election was postponed until May 27th, 1922. A proclamation declaring the calling of a parliament in Ireland assembling on July 1st, 1922 was made. An agreed panel of Sinn Fein candidates ran, notwithstanding the split and the brewing civil war. The election strengthened the pro-treaty supporters.
The constitution with the treaty annexed was to be drafted and ratified by the parliament thereby elected /the third Dail, acting as a constituent assembly. The provisional government appointed a committee to draft the new constitution. The constitution committee consisted of the chairman of the provisional government, legal advisers and Ministers. It submitted a draft within a month and two further drafts were produced.
The final draft if the Irish Constitution was prepared and published by the provisional government on 15th June 1922. The assembly was postponed until 9th September owing to the outbreak of civil war which claimed the life of the chairman of the provisional government, Michael Collins.
By the time the constituent assembly met on September 9th, 1922 the two most prominent supporters of the treaty, Arthur Griffith and Michael Collins were dead.
The Constitutional bill was introduced by the new president W. T. Cosgrave on 18th September 1922. The bill was brought through the assembly by Kevin O’Higgins, Minister for Home Affair. The articles implementing the treaty and providing safeguard for minorities were regarded as critical and involved the potential resignation of the ministry. There was therefore no free vote. On other articles there was a free vote. There were a significant number of amendments in the course of the ratification process.
The treaty had the force of law. Article 2 provided that the Constitution was to be construed by reference to the treaty. Any provision of the Constitution or amendment inconsistent with the treaty was repugnant. The question of repugnancy might be determined by the court and legislation would be declared inoperative.
The constituent assembly which was summoned by the provisional government functioned as third Dáil Éireann. Once it enacted the Constitution, it continued for a further period of a year under the Constitution functioning as the lower house.
Irish Free State Established 6th December 1922
The Constitution came into effect on December 6, 1922 by proclamation. The Irish Free State Constitution Act have been passed by UK Parliament. It incorporated the Free State Treaty Constitution as a schedule. The Irish ratification was effected through the Constitution Act. It declared that “Dáil Éireann sitting as a constituent assembly in this provisional parliament proclaims the establishment of the Irish Free State”.
The Irish Free State Parliament was empowered to amend the Constitution within eight years of ratification. After the eight years amendment could take place through a referendum. The majority of voters registered, or two thirds recorded were required. No amendment ever took place by this mechanism as the power of amendment was extended by the Constitution (Amendment No. 16) Act until December 5th, 1938.
In 1933, the Constitution (Removal of Oath) Act deleted the repugnancy clause which limited the amendment to the Constitution to the terms of the treaty.