User:Jnestorius/Free State constitution amendments

Main article: Constitution of the Irish Free State

Amendment process

The procedure for adopting constitutional amendments was laid out in Article 50. This foresaw that amendments would be approved first by both houses of the Oireachtas, then by referendum, before finally receiving the royal assent from the Governor-General. The requirement for a referendum was to be suspended for the first eight years, during which amendments might be passed as ordinary legislation. This was intended to allow for any teething problems discovered early in the operation of the constitution to be quickly resolved. However, the 16th amendment, passed the year before the scheduled expiry of the suspension period, extended the period for a further eight years. While Article 47 provided for a referendum for ordinary legislation, this was removed by the 10th amendment without ever having been applied. Thus, no referendum was held for any of the amendments made to the constitution before it was repealed in 1937.

The original text, both of section 2 of the Third Dáil's Act creating the Constitution and of Article 50 of the Constitution itself, contained a stipulation that no amendment could conflict with the Anglo-Irish Treaty. However, the Constitution (Removal of Oath) Act 1933 removed both of these stipulations, which would otherwise have blocked its main provision, namely abolishing the Oath of Allegiance stipulated in the Treaty.

On two occasions, Oireachtas committees proposed amendments: a 1926 select committee initiated amendments 2 to 5, while a 1928 joint committee on the Seanad initiated amendments 6 to 9 and 11 to 15, though in some cases the final act differed from the latter committee's recommendation. Other amendment bills were almost all instigated by the Executive Council and often highly contested by the opposition parties and independent senators.

Explicit amendments

The Oireachtas readily used its powers of amendment so that, during the fifteen years of the constitution's operation, 25 formal constitutional amendments were made. This can be contrasted with the fact that, during its first sixty years, the current Constitution of Ireland was amended only sixteen times. Amendments were numbered in the order in which they were introduced, except that the 18th was called the "Constitution (Removal of Oath) Act" rather than the "Constitution (Amendment No. 18) Act". The order of introduction was not necessarily the order in which they were enacted, and indeed two numbered amendment bills were never enacted.

The following table lists all amendment bills. All bills except the 25th were introduced in the Dáil rather than the Seanad. The table includes links to the text of each amendment act as passed, and to the Oireachtas debates for the corresponding bill in both Dáil (D) and Seanad (S) at each stage ([1]st, [2]nd, [3]rd or [C]ommittee, [4]th or [R]eport, and [5]th or [F]inal).

No.	Enacted	Matter	Act	1	D2	DC	DR & DF	S2	SC	SR & SF	Dáil response
1	11 July 1925	Made changes relating to the terms of office of senators, and the date on which senatorial elections were to be held.	1925 No.30	11 Jun 1925	16 Jun	19 Jun	24 Jun	25 Jun	1 Jul	2 Jul	3 Jul: message 3 Jul: accepts
3	4 March 1927	Removed the requirement that the day of any general election would be declared a public holiday.	1927 No.4	16 Nov 1926	1 Dec	7 Dec	26 Jan 1927: 4th st 27 Jan: 5th st	2 Feb	9 Feb	23 Feb: Report 24 Feb: Final	N/A
4	4 March 1927	Extended the maximum term of the Dáil from four to six years. The Electoral (Amendment) Act, 1927, enacted in May of the same year, set a limit of five years in ordinary law. The overall outcome, therefore, was that the term of the Dáil was increased by only one year.	1927 No.5	16 Nov 1926	1 Dec	7 Dec	26 Jan 27 Jan	2 Feb	9 Feb	23 Feb 24 Feb	N/A
2	19 March 1927	Introduced a system of automatic re-election of the Ceann Comhairle (chairman) of the Dáil in a general election.	1927 No.6	16 Nov 1926	1 Dec	7 Dec	(order) 26 Jan 27 Jan	2 Feb	3 Feb 19201 9 Feb 19202	23 Feb 9 Mar	msg Dáil agrees
5	5 May 1927	Increased the maximum membership of the Executive Council from seven to twelve members. This made the concept of extern minister redundant.	1927 No.13	16 Nov 1926	1 Dec	7 Dec	26 Jan 27 Jan	2 Feb	motion ComSel SelCom (S2D) (D2S) postpone 7 Apr	21 Apr 27 Apr	(msg)
(6)	Not enacted	Proposed to abolish the Oath of Allegiance. Accomplished by the 18th amendment, the Constitution (Removal of Oath) Act 1933.	—	6 Apr 1927
(6)	Not enacted	Restrict Article 47 Oireachtas petition, discounting those who had not taken the oath; remove Article 48 legislative initiative. Lapsed when government fell; 10th amendment covered the same ground in next session.	—	20 July 1927	27 July 1927
10	12 July 1928	Removed two of the three direct democracy provisions: the initiative and the ordinary referendum. The constitutional referendum was retained, but Amendment No.16 would mean that it never came into effect. In order to prevent Amendment No.10 itself being put to a referendum, the Oireachtas passed a motion stating it was "necessary for the immediate preservation of the public peace and safety"; this was a provision within the Article being deleted. The amendment was motivated by the Fianna Fáil opposition's supporting an initiative to abolish the Oath of Allegiance.	1928 No.8	7 Jun 1928	15 Jun 1920.1 20 Jun 1920.2 20 Jun 1920.3	26 Jun	27 Jun 28 Jun A47 motion	4 Jul	5 Jul 1920.1 10 Jul 1920.2 11 Jul 1920.3	11 Jul 12 Jul A47 motion	?
6	23 July 1928	Replaced direct election of Senators by the public with indirect election by Oireachtas members. This was in response to the perceived shortcomings of the 1925 Seanad election.	1928 No.13	7 Jun 1928	14 Jun	21 Jun	4 Jul 5 Jul	10 Jul	11 Jul	12 Jul 18 Jul	N/A
13	23 July 1928	Extended the Senate's power of delay over legislation from nine months to twenty months. This was intended to compensate the Senate for the loss of its right to force a referendum on certain bills that had been removed by Amendment No. 10.	1928 No.14	13 Jun 1928	20 Jun 1920.1 20 Jun 1920.2	27 Jun 1920.1 27 Jun 1920.2	4 Jul 5 Jul	10 Jul	11 Jul 1920.1 11 Jul 1920.2	12 Jul 18 Jul	?
8	25 October 1928	Reduced the age of eligibility for senators from 35 to 30.	1928 No.27	7 Jun 1928	18 Jul 1920.1 19 Jul 1920.2	10 Oct	11 Oct 12 Oct	23 Oct	24 Oct	25 Oct 25 Oct	N/A
9	25 October 1928	Altered provisions relating to the procedure for nominating candidates to stand in senatorial elections.	1928 No.28	7 Jun 1928	17 Jul	10 Oct	11 Oct 12 Oct	23 Oct	24 Oct	25 Oct 25 Oct	N/A
7	30 October 1928	Reduced the term of office of senators from twelve to nine years.	1928 No.30	7 Jun 1928	21 Jun 1920.1 17 Jul 1920.2	10 Oct	17 Oct 18 Oct	23 Oct	24 Oct	25 Oct 26 Oct	N/A
14	14 May 1929	Removed the prohibition on reintroducing, in the same session, a bill which had been introduced by the Seanad and rejected by the Dáil. The provision was deprecated by doubts over the meaning of session.	1929 No.8	13 Jun 1928	13 Mar	21 Mar	21 Mar 1920 & D5	10 Apr	24 Apr	2 May 9 May	N/A
15	14 May 1929	Permitted one member of the Executive Council to be a senator, where previously it had been required that all be members of the Dáil. It was still required that the President, Vice-President, and Minister for Finance hold seats in the Dáil.	1929 No.9	13 Jun 1928	13 Mar	21 Mar	DR & DF	10 Apr	24 Apr	2 May 9 May	N/A
16	14 May 1929	Extended the period during which amendments of the constitution could be made by ordinary legislation from eight to sixteen years.	1929 No.10	21 Nov 1928	13 Mar	21 Mar	21 Mar 1920 & DF	10 Apr	24 Apr	2 May 9 May	N/A
11	17 December 1929	Votes to fill casual vacancies in the Senate would include TDs as well as Senators. This aligned with the 6th amendment.	1929 No.34	13 Jun 1928	10 Oct	28 Feb	13 Mar 21 Mar	10 Apr	24 Apr	2 May (postpone) 27 Jun 1920.1 4 Jul 1920.2 11 Dec 1920.3	?
12	24 March 1930	Altered provisions relating to the Committee of Privileges that had authority to resolves disputes over the definition of a money bill.	1930 No.5	13 Jun 1928	1 Mar 1920.1 7 Mar 1920.2	13 Mar	31 Oct 6 Nov	20 Nov	27 Nov	4 Dec	N/A
17	17 October 1931	Introduced Article 2A, with sweeping provisions for a state of emergency, including martial law	1931 No.37	14 Oct 1931	(time motion) 15 Oct (money res.)	15 Oct	16 Oct 16 Oct	(time motion) 16 Oct	16 Oct	17 Oct 17 Oct	?
(18)	3 May 1933	Abolished the Oath of Allegiance and removed requirements that the constitution and laws of the Free State be compatible with the Anglo-Irish Treaty. This involved repealing Section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, as well as altering provisions of the constitution.	1933 No.6	20 Apr 1932	27 Apr 1920.1 28 Apr 1920.2 29 Apr 1920.3	3 May 1920.1 4 May 1920.2 4 May 1920.3	19 May	1932: 25 May 1920.1 1 Jun 1920.2 1933: 8 Mar 1920.1 15 Mar 1920.2	8 Jun	15 Jun 28 Jun	1932: Dáil rejects Seanad insists msg msg 1933: msg Art 38A msg Override msg
(19)	Not enacted	Intended to reduce the period by which the Seanad could delay bills. After the Seanad had delayed the bill itself, the Dáil instead proceeded with amendment 24 to abolish the Seanad entirely.	N/A	7 Jun 1933	20 Jun	27 Jun	28 Jun	1933: 11 Jul 1935: 1 May	—	—	msg Art 38A msg
20	2 November 1933	Removed the Governor-General's role in recommending appropriations of money to the Dáil. This function was vested expressly in the Executive Council. In practice this change was merely symbolic.	1933 No.40	9 Aug 1933	4 Oct	12 Oct	12 Oct 1920 & DF	18 Oct	25 Oct	31 Oct 1920 & SF	N/A
21	2 November 1933	Removed the Governor-General's power to withhold Royal Assent.	1933 No.41	9 Aug 1933	4 Oct	12 Oct	12 Oct 1920 & DF	18 Oct	25 Oct	31 Oct 1920 & SF	N/A
22	16 November 1933	Abolished the right of appeal to the Judicial Committee of the Privy Council.	1935 No.45	9 Aug 1933	4 Oct	12 Oct	12 Oct 1920 & DF	18 Oct	25 Oct	31 Oct	msg
26	5 April 1935	Removed the restriction that the benefits and duties of Irish citizenship applied "within the limits of the jurisdiction of the Irish Free State".	1935 No.12	14 Nov 1934	14 Feb	14 Feb 1920 & DF	—	postpone postpone 20 Mar	28 Mar	3 Apr 1920 & SF	N/A
23	24 April 1936	Abolished the two university constituencies in the Dáil. The act would not take effect till the next general election, in 1937.	1936 No.17	15 Feb 1934	8 May	14 Jun	21 Jun 5 Jul	1934: 12 Jul 1920.1 18 Jul 1920.2 msg 1936: msg 12 Feb	26 Feb 1920.1 26 Feb 1920.2	26 Feb 1920 & SF	Art 38A.1 Art 38A.2 msg D reject S insist Art 38A msg
24	29 May 1936	Abolished the Senate.	1936 No.18	22 Mar 1934	18 Apr 1920.1 19 Apr 1920.2 20 Apr 1920.3	25 Apr 1920.1 26 Apr 1920.2 1 May 1920.3	17 May 1920.1 25 May 1920.2	1934: 30 May 1920.1 31 May 1920.2 1 Jun 1920.3 1936: motion.1 motion.2	—	—	Art. 38A msg Enact
(25)	Not enacted	Would have given the right to petition for a referendum on bills amending the Constitution. This was narrower than the original Article 47 (repealed by the 10th amendment) which applied to all bills. It was narrower than Article 50 (which was suspended bu the 16th amendment) in that a referendum was by petition rather than automatic. The 25th-amendment bill was passed by the Seanad but never considered by the Dáil.	N/A	S1	—	—	—	16 May	23 May	1 Jun 6 Jun	N/A
27	11 December 1936	Abolished the office of Governor-General and removed all reference to the King from the constitution. The functions of the Governor-General were transferred to various other branches of government. The Executive Authority (External Relations) Act 1936 would define the King's remaining functions.	1936 No.57	11 Dec 1936	11 Dec	11 Dec 1920 & DF	—	N/A	N/A	N/A	N/A

Notes

Implicit amendments

Certain other acts were not given short titles naming them as amendments to the Constitution, but nevertheless contained amending provisions.

Section 3 of the Public Safety Act, 1927 stated, "Every provision of this Act which is in contravention of any provision of the Constitution shall to the extent of such contravention operate and have effect as an amendment for so long only as this Act continues in force of such provision of the Constitution." This contrasted with the later 17th amendment, which explicitly inserted Article 2A into the constitution. The legitimacy of the 1927 Act was upheld in 1928 by the Supreme Court in Attorney General v MacBride, which ruled on the basis of implied repeal that an Act did not even need to explicitly state it was an amendment in order to amend the Constitution.

Constituent acts

The Constitution was enacted in Irish law under the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, a "constituent act", which had been passed by the Third Dáil sitting as a constituent assembly, and to which the Constitution itself was a schedule. The Irish act in turn was legitimated in British Law by the Irish Free State Constitution Act 1922, which was passed by the UK Parliament with the Irish act as a schedule.

While Article 50 of the Constitution provided for the amendment of the constitution proper, there was no explicit provision in any Irish law for the amendment of the Irish constituent act. 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 ask the UK Parliament to amend the UK Act, or for the Free State to elect another constituent assembly. Chief Justice Hugh Kennedy was among those who took the view that the Irish Act could not be altered by the Oireachtas. Nonetheless changes were eventually made to the Act: when the Oireachtas passed the Constitution (Removal of Oath) Act 1933, and when it was repealed in its entirety by Article 48 of the 1937 constitution. The Judicial Committee of the Privy Council ruled in 1935 that the 1933 Irish Act was legal in UK law under the Statute of Westminster 1931, although the Irish courts ignored this judgment as it occurred after the 22nd amendment had removed from Irish law the right of appeal to the Privy Council.

The 1922 UK Act was repealed in UK law in 1989, and in Irish law in 2007.

1921 Treaty

The Constitution as enacted made reference to the 1921 Anglo-Irish Treaty within whose parameters it was framed. Subsequently, the British and Free State governments signed several agreements amending the Treaty, which were confirmed by acts of the Oireachtas. The agreements did not alter the text of the Constitution, but two stated "all references in the Constitution to the Scheduled Treaty shall be construed as references to the said Treaty of 1921 as amended by the said Agreement."

• A 1925 amendment consequent on the collapse of the Irish Boundary Commission.
• A 1929 amendment relating to pensions of transferred civil servants.

A 1924 agreement, described as "supplementing" rather than "amending" the Treaty, did not make any such reference to the Constitution.

The Medical Practitioners Act 1927 included as a schedule an agreement for cross-recognition of medical doctors in the Irish Free State, Northern Ireland, and Great Britain. Section 3 of this agreement stated the pre-1922 Irish Medical Register continued in operation "notwithstanding anything contained in the Government of Ireland Act, 1920, the Irish Free State Constitution Act, 1922, or the Irish Free State (Consequential Provisions) Act, 1922, or the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922, passed by the Provisional Parliament of Ireland, or the Adaptation of Enactments Act, 1922, passed by the Oireachtas of the Irish Free State or any Order made under any of those Acts". Similar provisions in similar agreements were scheduled in The Dentistry Act 1928 and the Veterinary Surgeons Act, 1931.

The treaty was implicitly abrogated by the Constitution (Removal of Oath) Act 1933 and was ignored by subsequent Irish laws. The treaty remained a schedule to the constitution throughout its existence, and only one reference to it was removed from the constitution by the 1933 act: that in Article 50 which prohibited constitutional amendments incompatible with the treaty. Three other references were retained: two in transitory provisions (Articles 76 and 78) relating to transfer of public servants, and one in Article 46, which stated "The Oireachtas has the exclusive right to regulate the raising and maintaining of such armed forces as are mentioned in the Scheduled Treaty in the territory of the Irish Free State (Saorstát Eireann) and every such force shall be subject to the control of the Oireachtas."

1937 Constitution

Continual ad hoc amendment meant that, by the time it was replaced in 1937, the constitution was "a tattered and torn affair", in the words of Éamon de Valera, President of the Executive Council, when introducing the draft new constitution. Lessons learned from the Free State constitution were applied to the 1937 constitution, including with regard to amendment.

The new Constitution, like the old one, granted the Oireachtas a temporary power to make constitutional amendments by ordinary law without referendum. The main difference was that both the time limit and the referendum subsequently required were entrenched from being changed via this temporary power. Also, the President could force a referendum in such cases. In the event the Oireachtas used its transitional power only twice, when it adopted the First Amendment and the Second Amendment; in neither case did the President force a referendum. The new constitution was not amended again for thirty years.

Another difference from the Free State constitution is that the 1937 constitution requires constitutional amendments to be expressly identified as such. Every amendment must have the long title "An Act to amend the Constitution", and contain no proposals other than constitutional amendments.

Sources

to read

doi:10.1007/978-3-031-46181-1