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CHAPTER 4

Towards a New Constitution,

1932–1936

In June 1936, Éamon de Valera informed King Edward VIII of the Irish Free State’s decision to draft a new constitution. It was a decision which was to herald a momentous change in the constitutional relationship between the two countries and represented the culmination of the process of dismantling the Treaty settlement of 1921. This decision was not taken hastily; rather it was in gestation for a period of over four years, from 1932 to 1936. There were significant milestones along the way. In fact, it is possible to identify four stages in the evolution of Bunreacht na hÉireann. First, there was the removal from the Free State Constitution of those articles which were particularly offensive to republicans. These were articles implanting the Crown in the constitutional framework of the state and were removed by amendments in 1932 and 1933, as was outlined in the previous chapter. The second stage was the establishment, in 1934, by de Valera, of a civil service committee to review the 1922 Constitution. The next stage, in 1935, was the formulation of draft heads of a new fundamental law. Finally, a year later, de Valera decided to draft an entirely new constitution and this represented the final stage in the progress towards Bunreacht na hÉireann.

John Hearne was to be involved in all these stages. His role in amending the 1922 Constitution has already been noted in Chapter 3. He served on the civil service committee which reviewed this document. It was to his legal adviser that de Valera turned to draw up draft heads in 1935 and, most significantly, Hearne was selected by the President to draft a new constitution. His various roles in relation to the development of the state’s basic law are a tribute to his legal and drafting skills. These same skills were recognised by de Valera and there developed between the two men a professional relationship of the highest order, a relationship which helped shape modern Ireland.

Constitution Review Committee, 1934

In 1934, de Valera set up a committee to review the 1922 Free State Constitution. This decision had its origins in opposition concerns regarding the Fianna Fáil government’s decision to abolish the Seanad in 1933.1 One consequence of this was that the state’s basic law could be amended by the Dáil alone, in accordance with Article 50. As originally conceived, this provided for amendments by the Oireachtas for a period of eight years from the date of its coming into operation, i.e. 6 December 1922. After the expiration of this transitional period, due in December 1930, future changes were to be subjected to a referendum. However, in May 1929, the Executive Council secured the passage of the Constitution (Amendment No. 16) Act which extended this period by a further eight years. Consequently, the 1922 Constitution would continue to be amended by ordinary legislation enacted by the Oireachtas. This change had radical implications, as constitutional provisions guaranteeing the fundamental personal and democratic rights of citizens could potentially be restricted or removed altogether at the discretion of parliament. Realisation of this fact prompted some Fine Gael deputies to table an amendment on 17 May 1934, in the course of a debate on the government’s proposals to abolish the Seanad. Motivated by fears that de Valera was intent on establishing himself as a dictator by means of a unicameral legislature, this amendment sought to ensure that, in the event of the abolition of the Seanad, certain provisions of the Constitution could no longer be changed by ordinary legislation, unless a general election had intervened in the meantime. Proposing this amendment, John A. Costello, a former Attorney General, identified twenty-one articles which were safeguards of citizens’ rights,2 describing them as ‘fundamental articles of the Constitution’.3

While rejecting the proposed amendment, de Valera explained his attitude to fundamental constitutional rights: ‘There are in the Constitution two types of articles. There are those which might be inserted in the constitution of any democratic state and there are those which everybody knows were inserted in the Constitution here because of a threat of war and outside pressure.’4 Continuing, he stated that he proposed to have the ‘fundamental articles dealing with the democratic foundations of the state’ carefully examined. He also indicated his preferred method of safeguarding them: ‘I do not mind if these are fixed so that they cannot be changed by ordinary legislation without some such provision as a referendum of the people. I hold that the method by which the will of the people should be tested in regard to the articles of the Constitution should be by way of referendum.’5

He made one other significant comment: ‘When we talk about constitutions we are dealing with very fundamental things.’6 In keeping with his intention to have the fundamental articles examined, de Valera established a committee on 24 May 1934. Under its terms of reference the committee was charged with examining the Free State Constitution ‘with a view to ascertaining what articles should be regarded as fundamental, on the ground that they safeguard democratic rights, and to make recommendations as to steps which should be taken to ensure that such articles should not be capable of being altered by the ordinary process of legislation’.

The persons appointed to serve were: Stephen Roche, secretary of the Department of Justice; Michael McDunphy, assistant secretary in the Department of the President; Phillip O’Donoghue, an assistant in the Office of the Attorney General; and John Hearne.7 All of them had legal training and expertise.8 The committee met on ten occasions, from 28 May to 3 July 1934, when it produced its report. Hearne attended all but two meetings.9 At the second meeting on 29 May, the members examined the Constitution, article by article, and agreed that the report should take the form of an entirely new constitution.10 De Valera, however, made it clear to the committee that what he really wanted was ‘not a new constitution, but a selection within the framework of the present Constitution of those articles which should be regarded as fundamental’. Furthermore, he required ‘a recommendation as to how these should be rendered immune from alteration by ordinary legislation’.11

These instructions were very significant, as they indicated that de Valera had not yet decided to introduce a new fundamental law. At its third meeting, the committee noted de Valera’s clarification of its role, the minutes recording that Hearne’s concurrence was secured by telephone. The members present continued their examination of various articles of the Constitution.12 A first draft of a report, compiled by McDunphy, was circulated to members on 9 June.13 At a meeting held on 18 June, McDunphy’s draft was used as the basis of a discussion of nineteen articles.14 The next day five more articles were discussed.15 On 20 June, it was resolved that another draft be prepared by McDunphy16 and this was circulated on 25 June,17 for consideration on 27 June.18 There were three more meetings and the text of the final report was approved on 3 July.19

The Review Committee produced a report consisting of an introduction and eight appendices.20 Twenty-two articles or parts thereof were regarded as fundamental and recommended to be rendered immune from easy alteration. These were identified in Appendix A:21

Article 6: Liberty of the person.

Article 7: Inviolability of citizens’ dwellings.

Article 8: Freedom of conscience and free practice of religion.

Article 9: Right of free expression and peaceable assembly.

Article 18: Immunity of members of the Oireachtas.

Article 19: Privilege of official reports etc. of the Oireachtas.

Article 24: Oireachtas to hold at least one session a year.

Article 28: General election and reassembly of Dáil.

Article 41: Presentation of bills for royal assent.

Article 43: Prohibition on retrospective legislation.

Article 46: Oireachtas to have sole right to raise and regulate army.

Article 49: Participation in war.

Article 50: Amendments of the Constitution.

Article 61: Central funds.

Article 62: Appointment of comptroller and auditor general.

Article 63: Removal of comptroller and auditor general.

Article 64: Organisation of courts.

Article 65: Powers of High Court in the matter of validity of laws.

Article 66: Jurisdiction of Supreme Court.

Article 68: Appointment and removal of judges.

Article 69: Judicial independence.

Article 70: Military tribunals.

In identifying the articles, Appendix A contained a note on the committee’s views respecting each of them.22 In the case of eleven of the articles, it was observed that ‘we do not suggest that any alteration should be made in the text’.23 In relation to ten others, the committee’s notes varied both in degree of detail and the extent of suggested alterations for the purpose of improving the sense of the article.24 The note pertaining to Article 24 may serve as an example of this aspect of the committee’s work.25 The article read: ‘The Oireachtas shall hold at least one session each year. The Oireachtas shall be summoned and dissolved by the representative of the Crown in the name of the King and subject as aforesaid Dáil Éireann shall fix the date of re-assembly of the Oireachtas.’ The committee observed that the article provided for three distinct matters:

(a)The holding of at least one session of the Oireachtas each year.

(b)The summoning and dissolving of the Oireachtas by the representative of the Crown in the name of the King.

(c)The right of Dáil Éireann subject to (b) to fill the date of re-assembly.

The principles embodied in (a) and (c) were deemed to be fundamental. It was recommended that they be separated from (b) and made the subject of a distinct article or articles. Regarding (a), it was observed that the obvious intention of this provision was to ensure that democratic control through parliament was not defeated by unduly prolonged non-assembly of that body. However, the article did not prescribe any specific mechanism or charge any individual or institution with the responsibility of putting it into effect. The committee was not unduly concerned at this juncture as the Oireachtas was required to assemble annually for the purpose of voting monies to the executive (under the terms of Article 36). What did concern the four civil servants was a situation ‘in which the Oireachtas might be induced to forgo this practice and to empower an executive to obtain the necessary monies without having to resort annually to parliament’. The relevant provisions of other constitutions were considered to address this issue. Those of seven countries – Czechoslovakia, Denmark, Estonia, Germany, Yugoslavia, Mexico and Poland – were examined and their relevant provisions reproduced in Appendix E of the report.26 On the basis of this examination, the committee concluded that the possibility of prolonged non-assembly could be addressed by requiring

(i)That parliament shall meet on a specified date in each year, if not previously convoked, and/or

(ii)That if a certain proportion of the total number of its members so requires, parliament must be convened within a prescribed time.

The observations on Article 65 were perhaps some of the most interesting and significant. This article stated: ‘The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution.’ The committee’s members accepted as a fundamental principle that some court should have the power to determine the constitutional validity of laws. They could not, however, agree on the judicial mechanism to achieve this:

In the course of our consideration of this article, the following points were discussed, viz:

Whether the power of deciding the validity of laws, having regard to the provisions of the Constitution, should be vested

(a)In the Supreme Court alone, or

(b)In a special ‘Constitution’ Court appointed or designated for that purpose, e.g. a combination of the Supreme and High Courts, or

(c)In the High Court with a right of appeal to the Supreme Court as at present.27

The idea of a constitutional court was a radical one and the fact that it was discussed by the committee highlighted that its members were willing to consider suggestions which were not constrained by the conservative legal system prevailing in Ireland at the time. Moreover, this discussion demonstrated that they ‘must have had a very sophisticated understanding of the dynamics of constitutional law’.28