The Constitution of Ireland

A Contextual Analysis

Oran Doyle

• Publisher: Hart Publishing
• Year: 2018
• ISBN:
  9781509903443
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto pubblico

This book provides a contextual analysis of constitutional governance in Ireland. It presents the 1937 Constitution as a seminal moment in an ongoing constitutional evolution, rather than a foundational event. The book demonstrates how the Irish constitutional order revolves around a bipartite separation of powers. The Government is dominant but is legally constrained by the courts, particularly in their interpretations of the fundamental rights protected by the Constitution. In recent decades, the courts have weakened the constitutional constraints on the Government. Political constraints imposed by opposition parties in Parliament and new accountability institutions (such as the Ombudsman) have moderately strengthened but the Government remains by far the most powerful political actor. There is a risk that such executive dominance could lead to democratic decay; however, the referendum requirement for constitutional amendment has prevented Governments from accumulating greater constitutional power. The book begins with an overview of Irish constitutional history leading to the enactment of the 1937 Constitution, before exploring the foundational decisions made by the Constitution in relation to territory, people and citizenship. Particular attention is paid to the constitutional relationship with Northern Ireland, currently unsettled by the decision of the United Kingdom to leave the European Union. The book details the key institutions of state (Government, Parliament, President and courts), before analysing how different constitutional actors exercise their respective powers of governance, contestation and oversight. A thematic approach is taken to the courts' interpretation of fundamental rights, showing how judicial attitudes have markedly changed over time. Further attention is paid to both formal amendment and informal constitutional change. The Constitution today is markedly different from 1937: it is non-committal on national reunification, less influenced by Roman Catholic natural law teaching, and generally more permissive of Government action. It is perhaps these developments, however, that explain its continued success or, at least, its longevity.

1

Beginnings, Influences and Evolution

Irish Constitutional History – The Irish Free State – Drafting the 1937 Constitution – Overview of the 1937 Constitution – Constitutional Ideology – Constitutional Balance of Power

I.INTRODUCTION

THE CONSTITUTION OF Ireland was enacted by plebiscite in 1937, the completion of a process that secured legal independence from the United Kingdom. Referencing the Gaelic word for Ireland, it begins in ringing terms: ‘We, the people of Éire, … hereby adopt, enact and give to ourselves this Constitution’. But this simple declaration conceals a whole host of constitutional difficulties. Who were the Irish people? Why did they think they had the capacity to give themselves this Constitution? What territory would the Constitution apply to? The answers to these questions can only be found if we situate the 1937 Constitution as a seminal event in the evolution of constitutional relations between the United Kingdom and Ireland. Many features of the current Constitution, in particular the relationship with Northern Ireland, are explained by the precise way in which Ireland secured its independence from the United Kingdom. More generally, the 1937 Constitution can best be understood as an attempt to continue some traditions of Westminster government, notably the model of responsible government (whereby the Government is not directly elected by the people but is rather elected by and accountable to Parliament), while distinguishing Ireland in other ways.

Those distinguishing features, principally its emphasis on the national distinctiveness of the new State and its reliance on the rich intellectual heritage of Roman Catholic social teaching, are sometimes presented as the most significant aspects of the 1937 Constitution.¹ However, any characterisation of the 1937 Constitution as narrowly nationalistic or sectarian is hard to square with its continued effectiveness. Across a range of metrics, the Constitution of 1937 has proved remarkably successful and resilient. Ginsberg, Elkins and Melton have calculated the average lifespan of written constitutions since 1789 as 17 years, but the Irish Constitution has lasted for over 80 years.² The 2016 democracy ranking of the Economist Intelligence Unit ranks Ireland as the sixth most democratic country in the world.³ The freedom ranking for 2015 accords Ireland a number one grade for its freedom rating, political rights and civil rights. Ireland is a country with many problems but the Constitution seems to have successfully performed its most basic task: the establishment and continuation of a stable democratic system of government that respects minority rights and personal freedoms. As much as its failures, its successes must be in some way attributable to the choices of those who wrote it. In this chapter, I shall trace Irish constitutional history prior to the enactment of the Constitution, but with a particular focus on the constitutionally turbulent years of the Irish Free State from 1922 to 1937. I shall conclude by sketching the outlines of the Constitution and highlighting the main themes and trends that have informed constitutional evolution in the subsequent 80 years.

II.IRISH CONSTITUTIONAL HISTORY: 1782 TO 1922

For much of its history, the constitutional story of Ireland was the story of English influence and control in Ireland. Although Henry II of England invaded Ireland in the twelfth century, the island did not fall completely under English control until 1603. An Irish Parliament had existed since the fourteenth century but, through Poyning’s Law of 1494, had limited its own right to initiate legislation without English approval. The English Crown secured legal control of Ireland through the use of royal prerogatives and the distribution of peerages to ensure a compliant Parliament. The Declaratory Act 1719 asserted the entitlement of the Westminster Parliament to make laws for Ireland, although this was seldom exercised. The Penal Laws, which since the early seventeenth century had imposed a wide range of civil disabilities on Catholics, precluded Catholics from being members of the Irish Parliament and from voting for members of the House of Commons.

In 1782, responding to demands from both the Irish Parliament and other groups within Ireland, Westminster granted full legislative independence to the Irish Parliament, repealing the Declaratory Act.⁴ The Irish Parliament amended Poynings’ Law and in 1783, Westminster passed the Irish Appeals Act renouncing its right to legislate for Ireland. However, Catholics – more likely to hold nationalistic sentiment – remained precluded from membership of the Parliament. The overall result was a politically unstable situation, not dissimilar to that which pertained in North America at the time, whereby Ireland had legislative independence but was subject to executive control by the English Crown. Moreover, while responsible government had more or less taken hold in Britain, where the Ministers of the Crown had to have the support of Parliament, the Government in Ireland did not have the support of a majority of the Irish House of Commons. It therefore continued to govern Ireland in much the same way as it had before legislative independence: through royal prerogative and patronage.

Given the threat posed by revolutionary and then Napoleonic France, a politically unstable Ireland posed a significant geopolitical risk to Britain. The 1798 Insurrection heightened this sense of risk. A violent rebellion, centred on the southeast of the country, was put down in June. Two months later, a small French invasion force joined Irish forces and gained some success in the west of the country, before also being defeated. The Insurrection allowed the British Prime Minister, William Pitt the Younger, to gather support for a policy of union between Great Britain and Ireland to which he had most probably already been committed. At its most positive, union was presented as a framework that would restructure Ireland’s place within the British Empire. Having diminished from a kingdom to a colony, Ireland would be better served by a union that would give it an identity of interest with Britain. Moreover, Catholic emancipation, without which Ireland would be unstable, could only be tolerated within a United Kingdom in which Catholics would never achieve a majority position.⁵ The Catholic majority in Ireland could not be permitted to elect a Catholic Parliament that might agitate for Irish independence. These slightly noble concerns neatly supported a solution that would also protect Britain from a French-sponsored attack through Ireland.

In 1799, a Bill to establish a union between Britain and Ireland was defeated by the Irish Parliament. Following increased levels of Crown patronage, the Irish Parliament approved the Act for the Union of Great Britain and Ireland in 1800. The Westminster Parliament then approved the complementary Act of Union (Ireland) Act 1800. The focus of the Acts was on the legislative union of the two countries and fiscal matters. Ward argues that little attention was paid to the future character of Irish administration, with the result that it was unclear where executive power resided. In particular, the powers of the Lord Lieutenant, the pre-existing representative of the Crown in Ireland and a member of the House of Lords, waxed and waned commensurately with the powers of the Chief Secretary, a member of the House of Commons and ultimately a member of the Cabinet. This constitutional confusion continued until Irish independence in 1921.⁶ The Westminster Parliament voted for Catholic Emancipation in 1829, but the Irish Protestant Ascendancy continued to dominate the Irish administration until Independence. Notwithstanding its incongruence in a supposedly united kingdom, the separate administration of Ireland also survived several attempts to absorb it into the British governing machinery.

Despite the Union, Ireland remained a separate, restive part of the United Kingdom. A nationalist movement emerged, dedicated to the repeal of the Acts of Union.⁷ In the latter half of the nineteenth century, the constitutional ambitions of Irish nationalists advanced alongside ‘the land war’, which sought to improve the situation of tenant farmers and to redistribute land from landlords to tenants.⁸ Ireland had been granted 100 seats in the House of Commons. The Irish representatives used this power to advance the cause of limited self-government for Ireland, known as ‘home rule’. The essence of home rule was the devolution of certain legislative powers to an Irish parliament in Dublin while Westminster would retain powers considered essential for the State as a whole. Between 1870 and 1916, the Irish Parliamentary Party on a number of occasions used its voting bloc at Westminster to ally with Liberal administrations in return for support for home rule.⁹ These plans came to nought due first to Liberal defections in the House of Commons and later to the opposition of the House of Lords. Only with the eradication of the House of Lords’ veto by the Parliament Act 1911, did home rule become obtainable.

By this point, however, the strength of opposition to home rule by unionists in the northeast of Ireland was intense. The religious-demographic make-up of this part of Ireland was markedly different, reflecting the success of plantations in Ulster of British Protestants some 250 years previously.¹⁰ The province of Ulster consisted of nine counties, four with a large Protestant majority, two with a narrow Catholic majority and three with a large Catholic majority. Between 1911 and 1914, discussions took place in London over the temporal or permanent exclusion of some or all of Ulster from the provisions for home rule. However, due to legislative overreach by the House of Lords (seeking the permanent exclusion of all of Ulster), the Liberal Government eventually used the Parliament Act to force through the Government of Ireland Act 1914, establishing home rule for the entirety of Ireland. If the Government of Ireland Act 1914 had been implemented, it would likely have led to civil war. In 1912, the vast majority of Ulster Protestant males had pledged themselves to repudiate the authority of any Parliament forced upon them.¹¹ In 1913, the paramilitary Ulster Volunteer Force had been established to use all means which might be found necessary to stop Home Rule.¹² However, by this point, World War I had commenced. Prime Minister Asquith presented a Suspensory Act for royal assent at the same time as the Government of Ireland Act. This deferred implementation of home rule until after the end of the war, alongside a political promise that some solution would be found for Ulster.

Easter 1916 witnessed a violent rebellion in Dublin, led by revolutionaries who proclaimed an Irish Republic. Having subdued the Rising, the British forces executed its leaders. This likely caused public opinion in nationalist Ireland to harden, moving support away from the Irish Parliamentary Party and towards Sinn Féin.¹³ In the UK General Election of 1918, Sinn Féin candidates won 73 of the 105 Irish seats in the House of Commons.¹⁴ Among their number was Countess Markievicz, whose death sentence had been commuted after the 1916 Rising and who now became the first woman to be elected to the Westminster Parliament. Rather than take up their seats in Westminster, however, they assembled in Dublin in January 1919, adopted the Constitution of Dáil Éireann (Assembly of Ireland) and formed their own Parliament. Between 1919 and 1921, the Irish Republican Army fought a war of independence against Britain. In 1920, Westminster established separate Parliaments for Northern Ireland and Southern Ireland through the Government of Ireland Act 1920. On 6 December 1921, the British Government agreed with several Irish representatives a settlement commonly referred to as the Anglo-Irish Treaty. The Treaty granted self-governing dominion status to most of Ireland, similar to that of Canada, while two thirds of the Province of Ulster remained in the United Kingdom. The exclusion of those six counties of Ulster left a southern Ireland that was overwhelmingly Roman Catholic.

The Treaty prompted a significant division in Irish politics, approved by the Dáil by a vote of 64 to 57 in January 1922 and separately by the only-ever meeting of the Parliament for Southern Ireland.¹⁵ Both the Dáil and the Southern Irish Parliament were dissolved and elections held to a new Parliament, which was, depending on one’s perspective, the successor to either the second Dáil or the Southern Irish Parliament, or both. This ambiguity over the constitutional lineage of the third Dáil was to remain an issue in Irish constitutional politics for decades. The Treaty supporters won a majority in those elections; the Treaty opponents in Sinn Féin boycotted the new Parliament. A vicious civil war ensued between the former comrades but concluded after about one year, with the pro-Treaty side in control of the fledgling State.

III.THE IRISH FREE STATE: 1922–1937

The Parliament elected in 1922 sat as a constituent assembly and adopted the Constitution of the Irish Free State Act 1922.¹⁶ This Act also entrenched the provisions of the Anglo-Irish Treaty, immunising it from constitutional change. The Westminster Parliament then enacted the Irish Free State Constitution Act 1922, including as a schedule the entirety of the Irish Act and Constitution. However, the UK Act also asserted the continuing power of Westminster ‘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’. The Irish Free State therefore lacked the constitutional autonomy of an independent State and rested on a constitutional document of mixed parentage. These constitutional ambiguities would contribute to its demise.

The 1922 Constitution followed the Westminster model of responsible government, with a close nexus between the Executive and the Lower House of Parliament, especially on financial matters. But it was significantly different from the Constitutions of other countries that had emerged from the control of Westminster. Its most noteworthy innovation was its commitment to the protection of fundamental rights, enforceable through judicial review by the courts. No other Dominion Constitution at the time contained a judicially enforceable Bill of Rights. In this respect, the Constitution of the Irish Free State drew its inspiration from continental European Constitutions adopted in the aftermath of World War I. Cahillane notes that the Committee charged with drafting the Constitution was impressed by the ‘enthusiasm for democratic ideals and popular sovereignty which permeated the postwar constitutions’.¹⁷

Ultimately, three inter-related features would lead to the downfall of the Irish Free State Constitution, in turn explaining features of the current Constitution that replaced it. First, as explained above, the Irish Free State Constitution could be said to derive its authority from an Act of the Westminster Parliament. This undermined its credibility as an Irish Constitution for the Irish people. Secondly, the constitutional order of the Irish Free State made the terms of the Anglo-Irish Treaty unamendable; many of these unamendable provisions, which preserved constitutional connections to the United Kingdom, were deeply objectionable to the Irish. Thirdly, the Constitution was to prove ineffective for the protection of fundamental rights.

The first problem was a common one for countries that emerged from Westminster control. Any measure of independence that depended on a grant from Westminster could – at least in theory – ...