Executive Authority (External Relations) Act 1936

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The Executive Authority (External Relations) Act 1936 (No. 58 of 1936) was an Act of the Oireachtas (Irish parliament). The Act, which was signed into law on 12 December 1936, was one of two passed hurriedly in the aftermath of the Edward VIII abdication crisis to sharply reduce the role of the Irish Free State's monarchy. It is also sometimes referred to as the External Relations Act.

Oireachtas of the Irish Free State legislature of the Irish Free State from 1922 until 1937

The Oireachtas of the Irish Free State was the legislature of the Irish Free State from 1922 until 1937. It was established by the 1922 Constitution of Ireland which was based from the Anglo-Irish Treaty. It was the first independent Irish Parliament officially recognised outside Ireland since the historic Parliament of Ireland which was abolished with the Act of Union in 1800.

Monarchy of Ireland

A monarchical system of government existed in Ireland from ancient times until—for what became the Republic of Ireland—the early twentieth century. Northern Ireland, as part of the United Kingdom, remains under a monarchical system of government. The Gaelic kingdoms of Ireland ended with the Norman invasion of Ireland, when the kingdom became a fief of the Holy See under the Lordship of the King of England. This lasted until the Parliament of Ireland conferred the crown of Ireland upon King Henry VIII of England during the English Reformation. The monarch of England held the crowns of England and Ireland in a personal union. The Union of the Crowns in 1603 expanded the personal union to include Scotland. The personal union between England and Scotland became a political union with the enactments of the Acts of Union 1707, which created the Kingdom of Great Britain. The crowns of Great Britain and Ireland remained in personal union until it was ended by the Acts of Union 1800, which united Ireland and Great Britain into the United Kingdom of Great Britain and Ireland from January 1801 until December 1922.

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Background and effect of legislation

Since coming to power after the Irish Free State's 1932 general election, Éamon de Valera's government had secured the passage of a number of amendments to the Irish constitution, reducing the role of the Crown in the state's internal affairs. This was a recapitulation of the idea of external association, which de Valera had unsuccessfully proposed as an alternative to the 1921 Anglo-Irish Treaty.

1932 Irish general election

The 1932 Irish general election was held on 16 February 1932, just over two weeks after the dissolution of the Dáil on 29 January. It was the first election held since the Statute of Westminster granted full independence to the Irish Free State a year earlier.

Éamon de Valera Irish statesman, longest-serving Head of Government of Ireland, later 3rd President; Republican and conservative

Éamon de Valera was a prominent statesman and political leader in 20th-century Ireland. His political career spanned over half a century, from 1917 to 1973; he served several terms as head of government and head of state. He also led the introduction of the Constitution of Ireland.

Constitution of the Irish Free State

The Constitution of the Irish Free State was adopted by Act of Dáil Éireann sitting as a constituent assembly on 25 October 1922. In accordance with Article 83 of the Constitution, the Irish Free State Constitution Act 1922 of the British Parliament, which came into effect upon receiving the royal assent on 5 December 1922, provided that the Constitution would come into effect upon the issue of a Royal Proclamation, which was done on 6 December 1922. In 1937 the Constitution of the Irish Free State was replaced by the modern Constitution of Ireland following a referendum.

The culmination of the 1936 abdication crisis in Edward VIII's signing an Instrument of Abdication on 10 December 1936 was seized upon by de Valera as an opportunity to almost completely eliminate the role of the Crown, including the abolition of the office of governor-general. The Constitution (Amendment No. 27) Act 1936 was thus rushed through the Oireachtas, amending the constitution by transferring all the responsibilities of the governor-general and almost all the responsibilities of the King to other offices. (The attempt to abolish the office of governor-general by removing all references to it in the constitution proved to be unsuccessful, requiring remedial legislation the following year.)

Edward VIII abdication crisis

In 1936, a constitutional crisis in the British Empire arose when King-Emperor Edward VIII proposed to marry Wallis Simpson, an American socialite who was divorced from her first husband and was pursuing the divorce of her second.

Governor-General of the Irish Free State Representative of the Crown to the Irish Free State from 1922 to 1936

The Governor-General was the official representative of the sovereign of the Irish Free State from 1922 to 1936. By convention, the Office of Governor-General was largely ceremonial. Nonetheless, it was controversial, as many Irish Nationalists regarded the existence of the office as offensive to republican principles and a symbol of continued Irish involvement in the United Kingdom, despite the Governor-General having no connection to the British Government after 1931. For this reason, the office's role was diminished over time by the Irish Government.

The Constitution Act, 1936 was an amendment to the Constitution of the Irish Free State that was intended to abolish the office of Governor-General, removed all reference to the King, and almost completely eliminated the King's constitutional role in the state. Under the Act most of the functions previously performed by the King and his Governor-General were transferred to various other organs of the Irish government. Henceforth, the only role retained by the King was as representative of the state in foreign affairs. The amendment passed through the Oireachtas at the same time as the External Relations Act, becoming law on 11 December 1936. Its long title was:

An Act to effect certain amendments of the Constitution in relation to the executive authority and power and in relation to the performance of certain executive functions.

As a result of these changes, the only remaining reference to the King, albeit a deliberately oblique one, was in a proviso to Article 51, authorising the Executive Council (government) to "avail", for the appointment of diplomats, etc. and for the conclusion of treaties, "of any organ used as a constitutional organ for the like purposes" by any of the other members of the Commonwealth. This authority was made "to the extent and subject to any conditions which may be determined by law"; the Executive Authority (External Relations) Act 1936, signed on the following day, was that law.

The Executive Council was the cabinet and de facto executive branch of government of the 1922–1937 Irish Free State. Formally, executive power was vested in the Governor-General on behalf of the King. In practice, however, it was the Council that governed, since the Governor-General was bound to act on its advice. The Executive Council included a prime minister called the President of the Executive Council and a deputy prime minister called the Vice-President. A member of the Council was called an executive minister, as distinct from an extern minister who had charge of a department without being in the Council.

Treaty express agreement under international law entered into by actors in international law

A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.

Provisions of the External Relations Act

The External Relations Act set out that the appointment of the Free State's diplomatic and consular representatives and the conclusion of international agreements would be either by or on the authority of the Executive Council (ss. 1–2). The act then stipulated that "so long as Saorstát Éireann [i.e. the Irish Free State] is associated with the [other member nations of the Commonwealth], and so long as the King recognised by those nations as the symbol of their co-operation continues to act on behalf of each of those nations (on the advice of the several Governments thereof) for the purposes of the appointment of diplomatic and consular representatives and the conclusion of international agreements, the King so recognised may, and is hereby authorised to, act on behalf of Saorstát Éireann for the like purposes as and when advised by the Executive Council so to do" (s. 3(1)). In other words, the King was authorised (upon the formal advice of the Irish government) to appoint diplomats and consuls and to be involved in the formalities of making treaties.

The Act also brought Edward VIII's Instrument of Abdication into effect for the purposes of Irish law (s. 3(2)). Due to the Act's phrasing, Edward VIII's abdication was actually back-dated to the day before that on which it took effect in the United Kingdom and most of the other Dominions.

The Dominions were the semi-independent polities under the British Crown that constituted the British Empire, beginning with Canadian Confederation in 1867. "Dominion status" was a constitutional term of art used to signify an independent Commonwealth realm; they included Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State, and then from the late 1940s also India, Pakistan, and Ceylon. The Balfour Declaration of 1926 recognised the Dominions as "autonomous Communities within the British Empire", and the 1931 Statute of Westminster confirmed their full legislative independence.

Executive Powers (Consequential Provisions) Act 1937

Unfortunately the speed with which the 1936 Act was passed also meant that some serious legal matters had been overlooked by the draughtsmen, touching on the top of the Irish legal hierarchy. In May 1937 these were covered by the Executive Powers (Consequential Provisions) Act 1937. As the Governor-Generalship had not been actually abolished by the 1936 Act, this Act was required to validate the otherwise-unlawful appointment of the Chief Justice of Ireland Timothy Sullivan. Sullivan had in turn questionably appointed three High Court judges. The recent appointment of Patrick Lynch as the Attorney General of Ireland and even the pension of the outgoing Governor-General needed to be legalised.

The Executive Powers Act, 1937 was an Act of the Oireachtas which retrospectively completed the abolition of the Governor-General of the Irish Free State.

The Chief Justice of Ireland is the president of the Supreme Court of Ireland. The current Chief Justice is Frank Clarke.

Timothy Michael Sullivan was an Irish judge who served as Chief Justice of Ireland from 1936 to 1946, a Judge of the Supreme Court from 1924 to 1946, President of the High Court and a Judge of the High Court from 1924 to 1936.

The External Relations Act and the 1937 constitution

In 1937 the constitution of the Irish Free State was repealed and replaced by the Constitution of Ireland. Article 29.4 of the new constitution stated that:

1° The executive power of the State in or in connection with its external relations shall [...] be exercised by or on the authority of the Government.
2° For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.

As a result, the constitutional role of the King remained unaffected and the External Relations Act remained in force.[ citation needed ]

Repeal

In the late 1940s, de Valera decided to change the law, though whether it would involve the total repeal of the Act or merely its amendment was not decided when he lost power in 1948.[ citation needed ] His then Attorney-General, Cearbhall Ó Dálaigh had been working on the various options when de Valera's Fianna Fáil administration was replaced by the First Inter-Party Government under Costello.

The Executive Authority (External Relations) Act 1936 was finally repealed by the Republic of Ireland Act 1948, which came into force on 18 April 1949. The new Act vested the powers possessed by the King in the President of Ireland.

See also

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