Irish Free State Constitution

The Irish Free State Constitution (full name: Irish Free State (Constitution) Act, 1922 but also known simply as the 1922 Constitution) was the Constitution of the Irish Free State created in December 1922. It was drafted by a committee under the nominal chairmanship of Michael Collins that also included James McNeill, who became the second Governor-General of the Irish Free State.

The Constitution was shaped by the requirements of the Anglo-Irish Treaty, signed between representatives of the British Government and the Irish Republic in December 1922. Among the central requirements laid out in the Treaty were that the Constitution had to contain:

• An Oath of Allegiance;
• A Representative of the Crown

The Constitution came into force in two ways;

In British Constitutional Theory

It was enacted by the 'King-in-Parliament', that is, passed as an Act by the British House of Commons and House of Lords, before receiving the Royal Assent. According to British constitutional theory, the constitution had been drafted by a committee under the chairmanship of the President of the Provisional Government, Michael Collins who was a Crown-appointed prime minister chosen by the House of Commons of Southern Ireland, which in turn had been elected under the British Government of Ireland Act, 1920, and which had approved the Treaty in January 1922.

In Irish Constitutional Theory

It was enacted by the Third Dáil, which had been elected as a Constituent Assembly (ie, a parliament with constitution-making powers). It had been drafted by a committee under Michael Collins, who was President of the Provisional Government, formed in accordance to the Treaty approved by Dáil Éireann in December 1921. (In reality, the Dáil which approved the Treaty, and House of Commons of Southern Ireland who did likewise, where almost identical; DÉ: 124 members. HCSI: 124 + 4, but which met separately under each name to approve the Treaty to keep constitutional theorists in Britain and Ireland happy.

Contents of the Constitution

The central aspects contained in the Constitution included:

• A requirement that in the event of a clash between the any article in the constitution and the Anglo-Irish Treaty, the constitution's provisions were null and void (Schedule, Section 2)
• Membership of the British Commonwealth (Article 1)
• Oath of Allegiance to the Free State and Fidelity to the King (Article 17)
• Power from the people (Article 2)
• Appeals to the Privy Council (Article 66)
• Executive authority in the King (Article 51)
• cabinet called the 'Executive Council' (Article 51)
• prime minister called 'President of the Executive Council (Article 52)
• parliament (Oireachtas) to consist of King, Dáil Éireann and Seanad Éireann (Article 12)
• Representative of the Crown called the Governor-General (appointed in like manner as the Governor-General of Canada) (Article 60)
• Provision for popular referendum on legislation already passed by both Houses if a validated petition of legislators was produced (Article 47)
• Provision for the Initiation by the people of proposals for laws or costitutional amendments if a validated petition of voters was produced (Article 48)
• The right to raise and maintain armed forces (Article 46)
• The Irish language to be the National language (Article4)
• Habeas Corpus (Article6)
• Elections to be held using Proportional Representation (Article26)
• Right to vote given to women on same basis as men (Article14)
• The creation of a new Courts System (Article 64)
• The setting up of the office of the Comptrollr and Auditor General (Article62)
• No special position for any religion (Article 8)
• Complete freedom of religion, assembly, worship, "subject to public order and morality (Article 8)
• Bills passed by the Dáil and Seanad may have the Royal Assent
  • granted
  • withheld
  • refused (Article 41)
• After 8 years (where it could be changed by Oireachtas Éireann), constitution to be changed exclusively by the people through plebiscites. (Later amended to 16 years. In fact, the Oireachtas had full control of amendment during the constitution's existence.) (Article 50)

The constitution was later substantially amended, most dramatically, with the abolition of the

• requirement that the constitution's provisions be subject to the conditions and requirements laid down in the Anglo-Irish Treaty
• Crown
• Governor-Generalship
• Senate
• Oath of Allegiance
• Appeals to the Privy Council

Other changes included:

• Length of term during which the Oireachtas could on its own amend constitution
• Article 2A curtailed civil rights
• Abolition of right of public to petition for referendum on a Bill

By 1936, the constitution had been so severely amended that it was clear that an entirely new replacement document was needed. In 1936, then President of the Executive Council of the Irish Free State Eamon de Valera had a replacement constitution drafted by John Hearne, called Bunreacht na hÉireann, for which he gave formal notice to King Edward VIII of Ireland in July 1936. It was adopted and enacted by the people in a plebiscite in 1937 and came into effect that year.

Copies of the 1922 constitution are no longer published, but can be downloaded from the website of the Attorney-General of Ireland