Constitution (Amendment No. 27) Act
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The Constitution (Amendment No. 27) Act, 1936 was an amendment to the Constitution of the Irish Free State that abolished the office of Governor-General in the constitution, removed all reference to the King and almost completely eliminated the King's constitutional role in the state. Under the amendment most of the functions previously performed by King and his Governor-General were transferred to various other organs of government. Henceforth, the only role retained by the King was as representative of the state in foreign affairs. The amendment became 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.
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[edit] Background
As adopted in 1922 the Free State constitution established a system of constitutional monarchy, under the same monarch who reigned in the United Kingdom. This form of government would not have been the preferred choice of nationalists but owed its origins to the Anglo-Irish Treaty which was endorsed by the Second Dáil in December 1921. The new constitution was passed by the Third Dáil meeting as a constituent assembly in 1922 and came into force by royal proclamation on 6 December that year. A minority Irish nationalists in Anti-Treaty Sinn Féin bitterly opposed both the Treaty and the resulting constitution, seeing both as a symbol of foreign subjugation, and on grounds of philosophical republicanism. Nevertheless the Irish public in a series of general elections endorsed the Treaty structures, voting for pro-treaty rather than anti-treaty candidates in a majority of cases.
Anti-Treaty Sinn Féin split in 1926 with the party's leader and his supporters defecting en masse to his new party, Fianna Fáil. Unlike Sinn Féin, Fianna Fáil accepted the Free State as a reality (albeit a regrettable one) rather than insisting it did not really exist. The new party adopted a policy of republicanising the Free State rather than returning to the now abolished Irish Republic of 1919–22.
The Fianna Fáil government of Éamon de Valera, elected in 1932, was determined to move to overhaul the constitution as part of a process of 'constitutional autochthony' or 'legal nationalism'. In part the freedom to do that resulted from the Statutes of Westminster enacted in 1931, and which was based on a series of decisions at British Commonwealth conferences which had been directly shaped by Cumann na nGaedhael ministers Kevin O'Higgins and Patrick McGilligan. De Valera used the occasion of the controversial abdication of Edward VIII in 1936 to begin the introduction of a series of constitutional reforms that would nativise the constitution. However, de Valera did not wish, at this time, to declare a republic or to eliminate the role of the monarch entirely. Either of these actions would have entailed leaving the Commonwealth.
De Valera's process of legal enactment to abolish the governor-generalship was however unsuccessful. As the Secretary to the Executive Council of the Irish Free State, Maurice Moynihan, the Parliamentary Draftsman's Office, and Attorney-General James Geoghegan all argued, the governor-generalship also existed outside the constitution in Letters Patent, Orders in Council, in Statute law and elsewhere, and all of those would also need to be amended to definitively abolish the governor-generalship. In May 1937, to clear up the confusion, a second and successful attempt at full abolition, the Executive Powers (Consequential Provisions) Act was enacted to retrospectively re-abolish the governor-generalship again from December 1936.
In December 1937 the new Constitution of Ireland was adopted. This transferred most of the functions that had been performed by the King and his Governor-General before 1936 to a new office of President of Ireland. However the King continued to exercise the function of representing the state abroad until the state was declared to be a republic in 1949.
[edit] Transfer of royal competences
After the adoption of the Act the duties usually performed by a head of state were distributed among a number of organs. Most importantly, the power to exercise the executive authority was vested explicitly in the Executive Council (cabinet), the right to appoint the President of the Executive Council (prime minister) was transferred to Dáil Éireann (the sole house of the 'Oireachtas' or parliament), and the duty of promulgating the law was vested in the Ceann Comhairle (chairman of the Dáil). The King retained only a role in foreign affairs.
| Function | Before | After |
|---|---|---|
| Executive authority | "Vested" in the King. Exercised on his behalf by the Governor-General, acting 'on the advice' of the Executive Council. | Exercised by the Executive Council. |
| Appointment of President of the Executive Council | Appointed by the Governor-General "on the nomination" of Dáil Éireann. | Elected by Dáil Éireann. |
| Appointment of remainder of Executive Council | Appointed by the Governor-General "on the nomination" of the president and with the assent of Dáil Éireann. | Appointed by the President of the Executive Council with the assent of Dáil Éireann. |
| Composition of the Oireachtas | Consists of the King and Dáil Éireann. (The Seanad Éireann has been abolished earlier in 1936) | Consists only of Dáil Éireann. |
| Convention and dissolution of the Oireachtas | By the Governor-General 'on the advice' of the Executive Council. | By the Ceann Comhairle on the direction of the Executive Council and its president. |
| Signing bills into law | Royal Assent given by Governor-General. | Signed into law by the Ceann Comhairle, who may not veto a bill. |
| Appointment of judges | By the Governor-General on the 'advice' of the Executive Council. | By the Executive Council. |
[edit] Foreign affairs
After the amendment of December 1936 the King was no longer mentioned in the constitution by name. However the amendment introduced a new provision that, without explicitly referring to the King, allowed the state to continue to use him as its representative in foreign affairs by passing a law allowing him to do so. A law for this purpose, the External Relations Act, was passed shortly after the amendment was passed. Thus after December 1936 treaties continued to be signed in the name of the King and the King continued to accredit Irish ambassadors, and receive the Letters of Credence of foreign diplomats. The provision allowing the King to do this was inserted in Article 51 and read:
- ..it shall be lawful for the Executive Council, to the extent and subject to any conditions which may be determined by law to avail, for the purposes of the appointment of diplomatic and consular agents and the conclusion of international agreements of any organ used as a constitutional organ for the like purposes by [other nations of the Commonwealth].
When the Constitution of Ireland was enacted in 1937 it duplicated the provision contained in the Free State constitution with a similar provision that allowed the King to continue to exercise his external role. The 1936 amendment and the External Relations Act thus created, for many years, a situation in which it was unclear whether or not the King of Ireland was indeed the Irish head of state. This situation came to an end in 1949 when the Republic of Ireland Act stripped the King of his role in foreign affairs and de jure made the President of Ireland head of state, a new status celebrated by President Seán T. O'Kelly by paying the first ever state visit by an Irish president abroad.
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