Irish Free State Constitution Act 1922

Irish Free State Constitution Act 1922 (Session 2)

Act of Parliament
Parliament of the United Kingdom
Long title	An Act to provide for the Constitution of the Irish Free State.
Citation	13 Geo. 5 Sess. 2. c. 1
Territorial extent	Ireland
Dates
Royal assent	5 December 1922
Commencement	6 December 1922
Other legislation
Repealed by	UK: Statute Law (Repeals) Act 1989 RoI: Statute Law Revision Act 2007
Status: Repealed

The Irish Free State Constitution Act 1922 (Session 2) ^[1] was an Act of the Parliament of the United Kingdom, passed in 1922 to enact in UK law the Constitution of the Irish Free State, and to ratify the 1921 Anglo-Irish Treaty formally.

Provisions

As originally enacted, the Irish Free State Constitution Act 1922 consisted of a preamble, five sections (three of which were very brief), and a schedule. The schedule was the text of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, which had been passed in Ireland by the Third Dáil sitting as a constituent assembly and provisional parliament for the nascent Free State. ^[2] This Irish Act itself had two schedules, the first being the actual text of the Constitution, and the second the text of the 1921 Treaty (formally, the Articles of Agreement for a treaty between Great Britain and Ireland). The UK Act's preamble quotes section 2 of the Irish Act:

if any provision of the said Constitution or of any amendment thereof or of any law made there under is in any respect repugnant to any of the provisions of the Scheduled Treaty [the Anglo-Irish Treaty], it shall, to the extent only of such repugnancy be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State shall respectively pass such further legislation and do such other things as may be necessary to implement the Scheduled Treaty.

Section 1

declared the scheduled Constitution would come into effect upon a royal proclamation no later than 6 December 1922.

Section 2

made transitory provisions regarding taxation liabilities

Section 3

empowered the Free State parliament to adopt legislation applied to other dominions

Section 4

was a saver empowering the UK Parliament to pass laws for the Free State on the same basis as for other dominions

Section 5

assigned the short title and specified that the Treaty to have been ratified. Article 12 of the Treaty accorded to Northern Ireland the right to secede from the new Free State and rejoin the United Kingdom, giving its parliament a month in which to decide: the so-called Ulster Month. The Treaty had been implicitly accepted by the UK parliament in votes on the King's Speech in December 1921, and most of its provisions had been effected in March 1922 by the Irish Free State (Agreement) Act 1922. However, neither of these events was held to have formally ratified the treaty. This was because the Ulster Month would begin as soon as the treaty had been ratified, and it was felt that the opt-out should not be exercised until after the Free State had come into being. Section 5 of the Irish Free State Constitution Act therefore declared the Act to be the ratification of the treaty for the purposes of the Ulster Month.

Enactment

Main article: Constitution of the Irish Free State

The Irish Act had been approved by the Irish constituent assembly on 25 October 1922. ^[3] The bill for the UK Act was introduced by the Prime Minister Bonar Law into the Parliament of the United Kingdom in November 1922. The bill's third reading in the House of Commons was on 30 November. ^[4]

The New York Times reported on the passing of the Act on 5 December 1922 as follows:

At 6 o’clock this evening an event of great historic interest and of international importance took place in the House of Lords. A few minutes before that hour the Irish Free State Constitution bills had passed the final stage in the House of Commons by formal acceptance of the Lords’ amendments. It was brought back, beribboned and sealed, by the Clerk of the Commons himself, and handed to the Clerk of the Parliament to receive the Royal assent. This was conferred, as usual, by the Royal Commission, the members of which were Lord Cave, Lord Novar and Lord Somerleyton … King George will make a special journey from Sandringham tomorrow to hold a privy council in Buckingham Palace, at which he will sign a proclamation declaring the adoption of the Irish Constitution by the British and Irish Parliaments. The Constitution will come into operation immediately on the issue of the proclamation. ^[5]

The New York Times also reported that in Parliament a group of Communists singing "The Red Flag" caused a minor disturbance as the formalities relating to the Act's passage were underway.

Northern Ireland secedes from the Irish Free State

Main articles: History of Northern Ireland and Partition of Ireland

On 7 December 1922, the day after the establishment of the Irish Free State, the Parliament of Northern Ireland addressed the King requesting its secession from Irish Free State. ^[6] The address was unanimous, with the abstentionist Nationalist and Sinn Féin members absent. The King replied shortly thereafter to say that he had caused his Ministers and the Government of the Irish Free State to be informed that Northern Ireland was to do so. ^[7]

Position in Irish law

After the Statute of Westminster 1931, the UK government recognised the right of the Irish government to amend or repeal the UK act, but in fact the Irish government did not do so until it was formally repealed as spent by the Statute Law Revision Act 2007. ^[8] The Irish government amended the Irish act in 1933, ^[9] and the 1937 constitution repealed the entire Free State constitution. ^[10] The UK Judicial Committee of the Privy Council ruled in 1935 that the 1933 Act had implicitly amended the UK Act with respect to the jurisdiction of the Free State. ^{[11] [12]} The Irish Supreme Court has taken the view that the Free State constitution was enacted by the Irish Act, not by the subsequent UK Act. This reflects the view of popular sovereignty rather than parliamentary sovereignty, with the constitution's legitimacy ultimately springing from the 1922 Irish election. ^{[13] [14]}

References

Hansard

• HC Deb vol 159: Ordered 27 Nov 1922 cc294-7; Second Reading 27 Nov 1922 cc327-87; Committee 28 Nov 1922 cc537-67; Third Reading 29 Nov 1922 cc741-74; from Lords 4 Dec 1922 c1210
• HL Deb vol 52: First Reading 29 Nov c105; Second Reading 30 Nov 1922 cc108-72; Committee 1 Dec 1922 cc173-88; Third Reading 4 Dec 1922 cc211-36

1. This is the Act's short title as given in Section 5, although the words "(Session 2)" in the title are generally omitted when referring to it.
2. "Constitution of the Irish Free State (Saorstát Eireann) Act 1922". Irish Statute Book . Retrieved 27 March 2020.
3. "CONSTITUTION OF SAORSTAT EIREANN BILL - AS AMENDED ON REPORT". Dáil Éireann debates. 25 October 1922. Retrieved 27 March 2020.
4. Hansard; third reading debate
5. The New York Times, 6 December 1922
6. "Constitution Act — Address to His Majesty". Northern Ireland House of Commons debates. Vol. 2. 7 December 1922. cc.1147–50. Retrieved 24 January 2014.
7. "Answer to Address". Northern Ireland House of Commons debates. Vol. 2. 13 December 1922. c.1191. Retrieved 24 January 2014.
8. "Statute Law Revision Act 2007, Schedule 2, Part 4". Irish Statute Book . 8 May 2007. Retrieved 27 March 2020.
9. "Constitution (Removal of Oath) Act 1933, Section 2". Irish Statute Book. Retrieved 27 March 2020.
10. "CONSTITUTION OF IRELAND Article 48". Irish Statute Book . Retrieved 20 January 2014.
11. "Moore v. Attorney General of the Irish Free State [1935] I.R. 472". Courts Service of Ireland. Retrieved 3 May 2017.
12. "Moore v Attorney-General of the Irish Free State [1935] UKPC 36". BAILII . Retrieved 3 May 2017.
13. "Byrne v Ireland [1972] I.R. 241" (PDF). Retrieved 20 January 2014.
14. Mohr, Thomas (2013). "The Statute of Westminster, 1931: An Irish Perspective". Law and History Review. 31 (4): 749–791. doi:10.1017/S073824801300045X. hdl: 10197/7515 . ISSN   0738-2480. S2CID   145071117.