User:Jnestorius/1920-49 Irish constitutional developments

Bibliography

• Farrell, Brian (Summer 1975). "The Legislation of a "Revolutionary" Assembly: Dáil Decrees, 1919-1922". Irish Jurist. new series, Vol. 10 (1): 112–127. JSTOR 44026218.
• Osborough, Niall (Summer 1974). "The Title of the Last Lord Chief Justice of Ireland". Irish Jurist (N.S.). 9 (1): 87–98. JSTOR 44026300. about courts from Government of Ireland Act 1920 to Courts of Justice Act 1924
• Morgan, Austen. "Belfast Agreement" (PDF). has Unionist legal analysis of 1920s developments
• Keane, Ronan (1996). "The Voice of the Gael: Chief Justice Kennedy and the Emergence of the New Irish Court System 1921-1936". Irish Jurist (N.S.). 31: 205–225. JSTOR 44026825. mentions dispute over name status and date of coming into existence of the Irish Free State.
• Thomas Mohr:
  • British Imperial Statutes and Irish Law: Statutes Passed Before the Creation of the Irish Free State Thomas Mohr
  • The ‘Provisional Period’ in Irish Legal and Political History, 1921-1922
• Mooney, Kieran (2017). "The Statute Law Revision Project and Statute Law Revision in Ireland 2003 to 2015". Statute Law Review. 38 (1): 79–97. doi:10.1093/slr/hmv042. ISSN 0144-3593.
  • Cites Mohr "Under Irish law the question of when did the Irish Free State come into existence is less clear" and may expand on that
• Jennings, W. Ivor (April 1936). "The Statute of Westminster and Appeals to the Privy Council". Law Quarterly Review. 52 (2): 183–188. summarises the Irish view and notes JCPC ignored it in Moore v. Attorney-General of the Irish Free State

1935

Gavan Duffy, George; O'Connor, Art (1935). A register of the administrative law in Saorstát Éireann : including the statutory rules and orders from December 6, 1921, to December 31, 1933 (PDF). Dublin: Stationery Office. Retrieved 12 November 2018.

1. Appendix I: Table of Acts of the Provisional Government. (Pp.106-108)
2. Appendix II: Government of Ireland Act 1920; Orders of the British Privy Council. (Pp.109-110)

   (1) Appointed Days.

   (2) Adaptations of Enactments.

   (3) Finance and Property.

   (4) Courts.

   (5) Parliaments.

   (6) Council of Ireland.

3. Appendix III: Orders Affecting and Orders Purporting to Affect Saorstát Eireann (other than Orders Made under the Government of Ireland Act, 1920), Made Between Dec. 6, 1921, and Dec. 31, 1924, under the Authority of the Government of the United Kingdom in Great Britain or in Ireland. (pp.111–113)
   • Also p.111 Abbreviations glossary 'S.I. — "Southern Ireland"' scare quotes

1922

"Index: Irish Free State". Statutory Rules and Orders Other Than Those of a Local, Personal Or Temporary Character issued in the year 1922. London: H.M. Stationery Office. 1923. includes London stuff re Prov Govt and Dec 6; also Dub Castle stuff for courts etc, and xref to other headings

Army pensions

Army Pensions Act, 1923

8.— [* see also 1927 amendment]

(1) If ... any person who was killed [or fatally wounded] before the 1st day of April, 1922, ..., was at the time ... a member of the Irish Volunteers or of the Irish Citizen Army and was killed ... while performing his duty as such member, ..., the like allowances and gratuities may be granted ... as could have been granted to them if such person was an officer or soldier of the forces and had been killed or had received the wound on or after the 1st day of April, 1922.

16.—In this Act unless the context otherwise requires—

The expression “the forces” means any armed force under the control of the Minister for Defence the members of which by the terms of their commission, agreement, enlistment, enrolment, contract or otherwise in any way whatever are for the time being liable to render service continuously for a period to Saorstát Eireann;

Army Pensions Act, 1927

1.—In this Act—

the expression “military service” when used in reference to a person who was a member of the Irish Volunteers or of the Irish Citizen Army means whenever such member was on duty, or was under arrest as the result of his activities as such member, or was evading capture or pursuit by the armed forces of the British Government, or was detained in a prison or internment camp by or by order of the British Government;

14.—

(1) ...This sub-section applies to—

(c) every person who, not having served in the forces, died before the 11th day of July, 1925 [=1921 truce date + 4-year time limit; latter limit specified elsewhere in this act, but does former date appear anywhere?], and is certified by the Minister to have been a member of the Irish Volunteers or of the Irish Citizen Army and whose death was due solely to disease attributable to his military service in the Irish Volunteers or the Irish Citizen Army (as the case may be), and

Schedule 1

(a) By the deletion of the words and figures “before the 1st day of April, 1922” where those words and figures firstly and secondly occur and the insertion in lieu thereof in each case of the words “while serving in the Irish Volunteers or the Irish Citizen Army”;

(b) By the insertion of the words and figures “and before the 1st day of October, 1923” after the figures “1922” where those figures thirdly occur.

Army Pensions Act, 1932

4.—This Part of this Act applies to the following organisations, that is to say:—

(a) Oglaigh na hEireann (Irish Republican Army),

(b) The Irish Volunteers,

(c) The Irish Citizen Army,

(d) Fianna Eireann,

(e) The Hibernian Rifles,

(f) Cumann na mBan.

5.—

(1) A person shall for the purposes of this Part of this Act be deemed to have been engaged in military service when, but only when, he was on duty as a member of an organisation to which this Part of this Act applies, or was under arrest as a result of his activities as such member, or being such member was evading capture or pursuit by the armed forces of the British Government or of the Government of Saorstát Eireann or of the Provisional Government or of the Government of Northern Ireland, or being such member was detained in a prison or ship, or an internment camp by or by order of any of the said Governments, and the expression “military service” shall, in this Part of this Act, be construed accordingly.

(2) In this Part of this Act—

the expression “pre-truce military service” means military service during any part of the period beginning on the 1st day of April, 1916, and ending on the 11th day of July, 1921;

the expression “post-truce military service” means military service during any part of the period beginning on the 12th day of July, 1921, and ending on the 30th day of September, 1923 ;

the word “killed” includes (in addition to the matters included therein by the Acts of 1923 and 1927) death as an immediate result of refusing to take nourishment while detained in prison and death by violence while a prisoner.

(3) Notwithstanding anything contained in the foregoing sub-sections of this section, a person who was engaged in military service before the 1st day of October, 1923, and who, at any time during the period beginning on the 1st day of October, 1923 and ending on the 30th day of September, 1924, received a wound or contracted a disease while refusing to take nourishment in prison, or undergoing imprisonment, or evading capture or arrest shall, for the purposes of this Part of this Act, be deemed to have been engaged in post-truce military service at the time he received such wound or contracted such disease.

S.I. No. 249/1937 - Defence Forces (Pensions) Scheme, 1937.

3. In this Scheme—

the expression "the Forces" means the forces established under Part I of the Defence Forces (Temporary Provisions) Act, 1923 (No. 30 of 1923 );

the expression "the National Army" means the following forces, that is to say:—

(a) the armed forces under the control of the Minister for Defence during the period commencing on the 1st day of February, 1922, and ending on the 31st day of March, 1922, and

(b) the armed forces maintained by the Provisional Government, and

(c) the armed forces maintained by the Government of Saorstát Eireann up to and including the 30th day of September, 1924, and

(d) the Forces;

FIRST SCHEDULE.

3. The following periods shall not count towards pensionable service, that is to say:—

(a) any period of service before the 1st day of February, 1922;

Before truce

• The date presumably based on dail1920091700020 "Break with English [sic] Local Government Board."

Truce to treaty

• dail1921091400005 A Bill to enlarge the powers of the Corporation of Cork for the reconstruction of the City by Donal O'Callaghan ruled out of order.
• dail1921012500021 "IT IS HEREBY DECREED that the Local Government Code of laws in operation in Ireland up to and including the 17th day of September, 1920 [The date presumably based on "Break with English Local Government Board."], be and is hereby adopted subject to such amendments and alterations as may be directed by order of the Local Government Department of Dáil Eireann with the approval of the Ministry. Such order or orders to be ratified at the first meeting of the Dáil following the making of same"
• Adaptation of Enactments Act, 1922 s.7(1) "Wherever any statutory Board of Commissioners or other statutory body to which this section applies was in existence on the 6th day of December, 1921, and had jurisdictions, powers or duties extending to the whole of the late United Kingdom, or to any part thereof, which included the area now comprised in Saorstát Eireann, the Executive Council may, by Order, establish a Board of Commissioners to exercise in Saorstát Eireann the functions which were on the 6th day of December, 1921, exercisable by such statutory Commissioners or statutory body as aforesaid in the area now comprised in Saorstát Eireann."

Treaty to Civil War

• Enforcement of Law (Occasional Powers) Act, 1923 s. 1(1) "the member of the Executive Council for the time being Minister for Home Affairs shall be deemed to be the Minister or authority exercising in Saorstát Eireann functions the same as or corresponding to the functions which prior to the 6th day of December, 1921, were in the area now comprised in Saorstát Eireann exercised by the Lord Lieutenant under the said section 1 of the Sheriffs (Ireland) Act, 1920"
• McColgan, John (1980). "Partition and the Irish Administration 1920-22". Administration. 28 (2). Dublin: Institute of Public Administration: 161–162. ISSN 0001-8325.

  The members of the provisional government were officially appointed by the lord lieutenant, having been nominated by a meeting of the members elected to sit in the House of Commons of Southern Ireland. This meeting was held on 14 January, a week after Dail Eireann voted to accept the Treaty; it was constitutionally a distinct body from the Dail. The provisional government had no constitutional basis as a 'government', and, until the Irish Free State (Agreement) Act was passed on 31 March 1922, its legal status was that of an informal viceregal committee. Its temporary, transient character, even after 31 March 1922, was underscored by the fact that the order in council of 1 April transferred to it not administrative 'services', as was the case with the northern government, but the 'functions' of certain departments.

• [Mohr3] According to British law the Irish Free State came into existence when King George V made a royal proclamation on 6 December 1922 that brought the Constitution of the Irish Free State into force. ... It is much more difficult to fix the precise date on which the Irish Free State came into existence under Irish law. However, the Irish Supreme Court has held on at least two occasions that the Irish Free State was in existence by 31 March 1921 at the very latest.(fn.38: In re Reade [1927] I.R. 31 and Performing Right Society v Bray U.D.C. [1928] I.R. 512")

• Hugh Kennedy in 1926 gave 1921-12-06 as date of coming into existence of the Irish Free State "In re Reade [1927] IR 31 at 49"
• D.P.P. v. McNeill (1975, N.I. 177)
  • Lauterpacht, E.; Greenwood, C. J. (1983). "D.P.P. v. McNEILL". International Law Reports: 345–365. doi:10.1017/CBO9781316151860.023. S2CID 249005750. headings include "Agreement between Irish Provisional Government and the United Kingdom, 1921" so it would be interesting to see how the 1975 Lord Chief Justice of Northern Ireland viewed the 1921 treaty.
• dail1922030200024 Anti-treaty attempt to lower female franchise age from 30 to 21 for the Pact election by amending Representation of the People Act 1918. Defeated by pro-Treaty on the grounds that it was a matter for the Free State legislature not the Dáil.
  • Griffith: We are told now that we can pass here a new Franchise Law. Have we not been here for three years or more in the Dáil and no attempt made to pass or introduce this? The fact that I am sitting here for two seats, Mr. Collins for two seats, Mr. de Valera, Messrs. Milroy and McNeill for two seats each means that we have disfranchised these constituencies, because we had no power to deal with the matter except by applying to the English Parliament for resignation, which we could not do. When my colleague, Pierce McCan, died and we all tried to fill the vacancy we found we had no way of filling the vacancy. We were “cribbed, cabin'd and confin'd” by the fact that we were elected under British Law, under a British Act of Parliament, under a Franchise which comes from a British Parliament and, therefore, we must act on that Franchise. The only body that can pass such an Act as this is the legislative body which can be set up in Ireland under the Treaty. ... What do I find in this motion?

    “For section one and sub-section (1) of Section four of the Representation of the People Act 1918 (herein called the principal Act) the following Section shall be substituted.”

What Act is that? An Act of the British Parliament which you are pretending not to recognise. And you come along and you ask us in a few minutes to pass an Act repealing or amending an Act of Parliament which you profess not to recognise.

• dail1922052000003 Pact Election "NATIONAL COALITION PANEL JOINT STATEMENT." includes as point no.7: "That in the event of the Coalition Government finding it necessary to dissolve, a General Election will be held as soon as possible on Adult Suffrage" -- suggests equal age for women

May 27 1922 Prov Govt procl (ref dail1922090900003)

WHEREAS We ...have been duly constituted a Provisional Government pursuant to Article 17 of the ... Treaty ... signed ... 1921 and set forth in the Schedule to ... the Irish Free State (Agreement) Act, 1922.

And Whereas the said Act contains provisions with respect to the holding of an Election and the constitution of a House of Parliament to which we, the said Provisional Government, shall be responsible.

Now we, the said Provisional Government, pursuant to the provisions of the said Act ... do hereby make known to all our decision to call the said Parliament

On 27 May 1921 Iris Oifigúil printed both [p.303] "Proclamation by Provl. Govt. calling a Parliament of Ireland" and [p.305] "Proclamation by Lord Lieuteuant on advice of Provl. Govt. dissolving Parliament of 'Southern Ireland' and calling a Parliament to which Provl. Govt. should be responsible."

Provisional parliament

The Provisional Parliament could have passed acts, but would have needed royal assent, and since there was as yet no Governor General it would have been the king in London who assented. The Provisional Government wanted to avoid that as it would give fuel to the republicans, so instead "the Dáil military regulations were introduced as resolutions".

• HC Deb 30 May 1922 vol 154 cc1898-9

  Colonel GRETTON: May I ask the right hon. Gentleman whether it was the duty of the Provisional Government to dissolve the Parliament in Dublin, or whether it was the duty of the Lord Lieutenant, because he will observe that the Proclamation issued by the Provisional Government preceded by a considerable number of hours the special Proclamation issued in the "Gazette" by the Lord Lieutenant.

  Mr. CHURCHILL: Yes, that was due to an accident, but the intention was that the Lord Lieutenant's Proclamation and the Proclamation by the Ministers of the Provisional Government should be simultaneous. I may point out that the only authority which can give any validity to this election or any validity to the Writs, or to any proceedings by any Parliament returned is the authority of the Crown as signified by the Lord Lieutenant.

• British involvement in the creation of the constitution of the Irish Free State Thomas Mohr

dail19220919 POWERS OF THE DAIL motion and AN AMENDMENT to motion to limit powers to treaty

• [Mohr3] It should be noted that the [ Statute Law Revision Act 2007 ] has also repealed the Irish Free State (Agreement) Act 1922 and a number of other statutes enacted at Westminster after the signature of the 1921 Anglo-Irish Treaty. The apparent recognition of Westminster's Irish Free State Constitution Act 1922 by an Irish statute creates certain difficulties for legal historians. It could be seen as casting doubt on the 'Irish origin' of the 1922 Constitution, as maintained by Irish lawyers since the early 1920s.

Against that, s3(3) says "The inclusion of a statute in Schedule 2 shall not be taken as evidence that the statute, or any provision of it, was of full force and effect immediately before the passing of this Act";

But then again Finance Act 1922, passed 20th July 1922, is specifically retained.

And SLRA 2007 press release: "The last two Acts passed by the Westminster parliament which had effect in this State relate to the establishment of the Irish Free State. In British law, the constitutional legitimacy of the new entity arose from the actions of parliament rather than from the people of this State. This anomaly was put to rest by the adoption of Bunreacht na hÉireann in 1937. The Constitution of Ireland makes it clear that the authority of the State derives from the Irish people"

OTOH Proposed amendment at committee stage of 2007 bill...:

• By Richard Bruton: The repeal or retention of a statute under this Act shall not, in any way, be relied upon as a basis for establishing that that statute or those statutes ever actually applied in Ireland."
• Withdrawn after Tom Kitt answered: "I agree with the Deputy that the inclusion of a statute in Schedule 2 should not be taken as sufficient to establish that the statute applied to Ireland. However, the amendment is unnecessary because its principal thrust is already contained in the Bill. I refer the Deputy to section 3(3)"

...which applies to repealed but not retained statutes.

and SLR 2007 s.9(3)(b) "The repeal of the Irish Free State (Agreement) Act 1922 by this Act does not affect any Order in Council made under that Act modifying and adapting references in an enactment, or any part of it, that is still in force at the passing of this Act and to which the modification and adaptation relates"

Wigg case:

The three-month gap between the handing over of the Castle to the Provisional Government, when Collins ordered that there should be no alteration in conditions, and the transfer of authority on 1 April opened up the question of where the authority of the State lay for that period. If the Irish government argued that the Treasury minute [of 20 March 1922] did apply then they argued that the Provisional Government was not a State, it was only an administration empowered by the British and the talk about the 'surrender of the Castle' was no more than empty rhetoric.

Hugh Kennedy papers:

• July 1922 to LCJ Thomas Molony re General Register Office "Notes in relation to [the form of writs and orders] that the term 'Southern Ireland' was offensive and that 'Rialtas Sealadach na hEireann' might be used until the Government could consider an alternative, something which was not feasible on account of the 'big business in hand'."
• 1923 to Molony complaining about the use of the expression 'Southern Ireland' in legal documents and requesting substitution of 'Irish Free State'; reply from William E. Wylie noting that the judges had been summoned by the Lord Chief Justice [? so what ?] and that they found the language of Kennedy's letter 'unwarranted and unhappy'; reply to Wylie reiterating his point about 'Southern Ireland' which he describes as 'untrue ... and offensive to the people of this country'.
• Copy of Rule 10 of SRO 1923/954 order 'authorising use of the words 'Saorstat Eireann' in place of Southern Ireland'

Powers

• Provisional Government (Transfer of Functions) Order 1922 [emphasis added]
  • s.13 (i) Subject to any Act of the Provisional Parliament and to the provisions of this Order and any other Order made under the Irish Free State (Agreement) Act, 1922, all existing laws, institutions and authorities in Southern Ireland, whether judicial, administrative or ministerial, shall continue as if this Order had not been made, subject to the modifications necessary for adapting them to this Order and in particular to the modifications hereinafter set forth
• "During his meeting [c.22 May 1922, in response to the election Pact] with Cope, Collins also revealed his intention that the body formed after the election would be a constituent assembly, not a parliament. 'The sole object [of that assembly],' reported Cope, 'will be to deal with the constitution'"
• dail1922011000005 Erskine Childers: Mr. Griffith as President has taken over an important office, to my view in a double capacity—one as Chief Executive Officer of Dáil Eireann, and the other, which he will soon presumably hold, is Chief of the Provisional Government. ... One of the questions asked him he certainly did not answer at all. That question was: “Will the Provisional Government function under the statutory powers conferred by the Partition Act?” I think I am right in saying he made no answer to that question at all.
• dail1922090900004 (all-island)
  • Laurence Ginnell May I ask whether you will reply to me, please? I have not signed the roll, and I am willing to do so if this is a Parliament for the whole of Ireland; otherwise not.
  • AN CEANN COMHAIRLE [Michael Hayes]: This summons is to the Dáil for the whole of Ireland, and I am unable to solve these other problems.
• dail1922091900011 (overriding Treaty)

The PRESIDENT: [William T. Cosgrave] The position is this: Our representatives made a bargain with the representatives of another nation. ... Both sides agreed to, and undertook to carry out, the whole of the Agreement, irrespective of particular objections they may have to particular Articles in the Agreement. It will be noticed that there is a sort of vacuum resulting from the acceptance of the Treaty, as far as the British Government is concerned, and that vacuum was remedied or regularised as far as they were concerned by the Free State Agreement Act — by agreement on both sides, to which our representatives were a party — one of the conditions of the Agreement being that this Dáil, during the period preceding the passing of the Constitution, was a Provisional Institution, and was limited, as far as the terms of the Agreement were concerned, to certain acts or to certain business. It was within the power of this Dáil at a given moment to break up that agreement and to revert to the position that existed on the 5th December last. We certainly do not for a single moment limit the authority of this Dáil to do that. It would be, in my opinion, very largely a breach of honour and a breach of covenants and a breach of agreement, and so on; but it is within your power to do it. We have never, I think, tabled anything against that. It can be done; but subject to the agreements we entered into, the limitations, as we understand them, are there.

• dail1922112800019 Did it have parliamentary privilege? (asked but not answered then)

League of Nations

dail19220918

• QUESTIONS. - LEAGUE OF NATIONS
  • MINISTER for FOREIGN AFFAIRS [Desmond FitzGerald] The Government has decided not to make application for admission to the League of Nations at present.
  • George Gavan Duffy Will the Minister give us reason?
  • FitzGerald I refer you to the Constitution of the League of Nations.
• Motion Gavan Duffy "That it is the opinion of this Dáil that Ireland should join the League of Nations, and further that application for admission to the League should be made forthwith"
• Amended motion Desmond Fitzgerald "That it is the opinion of this Dáil that application for admission to the League of Nations should be made as and when the Govermnent find it advantageous"
  • The test of sovereignty is: Has one actual power in one's own country? —and recognition of it is fairly unimportant compared with the exercise of it in one's own country. Mr. Gavan Duffy suspects that the refusal to join the League of Nations at this moment is due to a surrender to Downing Street. It is nothing of the sort. It is due to the fact that we recognise we are in a chrysalis stage. As soon as the Constitution is passed and we have some real stable Government—that is, a Government whose definition is absolutely clear and whose existence does not depend on the completing an arrangement which is only half completed, then, I think, it will be possible for us to make application for admission to the League of Nations.

dail19221213 Some months ago, it will be remembered, a motion, or rather a resolution, was brought forward in this Dáil, proposing that as soon as advisable Ireland should proceed to take proper steps with a view to taking her place in the League of Nations. That resolution will be acted upon.

Westminster legislation

HC Deb 23 March 1922 vol 152 cc703-39 That a sum, not exceeding £1,130,000, be granted to His Majesty, to defray the Charge which will come in course of payment during the year ending on the 31st day of March, 1922, for payment of a Grant-in-Aid of Miscellaneous Services to be administered by the Provisional Government.

• c.715 Mr. CHURCHILL They are two quite separate Commissions. One is the Commission dealing with the assessment of malicious injuries to property. That is the one affected by this Vote. After that there is the general financial settlement between Great Britain and Ireland, which is entirely separate, and will be undertaken at a later period.
• c.718 Sir H. Greenwood The Government have to deal with the damage both in Northern and Southern Ireland. In Northern Ireland by an arrangement with the Prime Minister of that Government a total grant was agreed to. He, in his turn, will settle with all those claimants under the Criminal Injuries Acts. That settles the question of damages under these Acts, so far as the Northern Government is concerned. [To what date?] 14th January, 1922.
• c.720 The Commission does not go back to the days of Strongbow, but deals only with the period between two dates, namely, 21st January, 1919, and 11th July, 1921, the date on which the truce became operative. The Commission, therefore, deals only with the claims and claimants between these two dates, for it is between these two dates that the great majority of the claims arise. Subsequent to 11th July it has been agreed between His Majesty's Government and the Provisional Government that the Criminal Injuries Acts shall apply.
• c.723 Lieut.-Colonel ASHLEY It is quite true that those of us who had damage done to our property since the 11th July, 1921, must rely upon the good faith and honesty of the local authorities in Ireland. What other course is there open to us except to trust the local authorities? The Bill will be passed giving them power to set up an independent Free State. It is no use crying over spilt milk, and you have to trust the local authorities. I have 724great hope that the Provisional Government and their officers will try and do the right thing by those who have suffered loss, not through the orders of the Provisional Government, but owing to the lawlessness which has become ingrained in those counties owing to the number of law breakers at large who commit arson, and do damage to property and to cattle.

Constabulary (Ireland) Act 1922 [4 August 1922 -- Disbandment of the Royal Irish Constabulary by 31 Aug]

• legislation.gov.uk
• historic-hansard
• Compensating the Royal Irish Constabulary 1922-1932 by Niamh Brennan
• Dáil 1929 ref in Superannuation and Pensions Bill
• DIFP 1932 pensions

The Irish Free State (Consequential Provisions) Act 1922 (royal assent 1922-12-05; no coming-into-force provision specified, hence immediately)

• abolished the High Ct of Appeal for Irl and transferred its NI cases to the [lower] NI Court of Appeal created by Government of Ireland Act 1920.
• said 1920 act no longer extended to IFS
• what about courts history?
  • 1920 act had abolished Supreme Court of Judicature Act (Ireland) 1877 "Sup Ct of Jud for Irl" [divs "Ct of Appeal for Irl" + "High Ct for Irl"], created new "High Ct of Appeal for Irl" and "Sup Ct of Jud for N/SI" [divs "Ct of Appeal for N/SI" + "High Ct for N/SI"] see High Ct of Appeal for Irl footnotes
  • 1922 Cons Art 75 says "Until Courts have been established ... in accordance with this Constitution, the Supreme Court of Judicature ... as at present existing [could reasonably infer Sup Ct of Jud for SI] shall for the time being continue to exercise the same jurisdiction as heretofore"
  • 1924 Courts Act: s.17/18 give new High/Supreme Court "the jurisdiction which at the commencement of this Act was vested in or capable of being exercised by the existing High Court/Court of Appeal of the Supreme Court of Judicature in Ireland" [must be that "in Ireland" mneans "of Southern Ireland"]
  • so both are careful to avoid using the odious term "Southern Ireland" -- any comment on that in Oireachtas or Westminster?
    • compare SRO 1923/954 order under section 61 of the Supreme Court of Judicature Act (Ireland), 1877
    • courts.ie/history "The Courts of Justice Act, 1924. ... A High Court exercising the same jurisdiction as that proposed under the 1920 Act was created."
    • Did the 1920 court changes come into force in Southern Ireland? Yes Supreme Court of Judicature (Southern Ireland) Order 1921 (Nov 21st)
    • Or did the IFS(CP)A no-longer-extend 1920 Act revive the 1877 courts abolished by the 1920 act?
    • Aha 1961 act says "former Court of Appeal in Southern Ireland". See also LRC CONSOLIDATION AND REFORM OF THE COURTS ACTS
    • "On the courts of Southern Ireland, see (1921) I.L.T. vol. 55, no. 2,853, p. 241, no. 2,857, p. 267 and no. 2,866, pp. 324-5."
• HC Deb 27 November 1922 vol 159 cc388-9 Second Reading William Ormsby-Gore (emphasis added)

  There is only one [consequential enactment in the First Schedule] on which I propose to say something, because it is important and constitutes a variation of the Treaty. It is paragraph 3, which deals with the constitution of the Council of Ireland. The proposal which appears in this consequential Bill is a variation of the Treaty, but it comes to this House for its consideration as an agreed Clause—agreed between the Provisional Government of the Free State and the representatives of the Government of Northern 389Ireland and of the British Government. The three parties, as it were, have agreed to this solution of the problem of the Council of Ireland, namely, that it shall be left without any further intervention from this Parliament to the Parliaments of Northern and Southern Ireland to come to a fresh arrangement, other than was originally proposed, by the passing of identic Acts.

• 1923 Irish land act notwithstanding 1922 abolition of land commissioners -- ambiguous as to whether 1922 act had effect; check Dáil debates

s.5 of Punishment of Incest Act 1908 was repealed

• in 1922 by Westminster Criminal Law Amendment Act 1922 (12 & 13 Geo 5 c. 56) (s. 5) but did not extend to Ireland (c. 6(3)).
• in 1995 by Oireachtas Criminal Law (Incest Proceedings) Act 1995 s. 6
  • Seanad 1995-03-22 Minister Nora Owen "the Bill arises directly from the judgments of the Central Criminal Court in an incest case. On 1 February 1995, the court held that section 5 of the Punishment of Incest Act, 1908, continues to have full force and effect."
• irishstatutebook legislation directory mentions both 1922 and 1995 acts, but probably just a dumb concatenation of sources

The Courts of Justice Act 1924 refers (ss.18, 21) to "the existing Court of Appeal" in connection with the new Supreme Court of Ireland. Is that the 1877 "Ct of Appeal for Irl" or 1920 "Ct of Appeal for SI"?

• See also Osborough, Nial (1974). "The Title of the Last Lord Chief Justice of Ireland". Irish Jurist. 9 (1): 87–98. ISSN 0021-1273. JSTOR 44026300.

Provision parliament quasi-legislation

Some resolutions passed by provisional parliament were essentially drafts of bills it commended to be passed once the constitution was in force:

• dail1922092600027 (notice) and dail1922092700009 (debate)
  • motion "WHEREAS the Army Authorities have represented to the Government that in order to discharge effectively the duty and responsibility so placed on them it is essential that the Army Authorities should have power ... AND WHEREAS the Government recognising the force of such representations has sanctioned the doing by the Army Authorities of all or any of the following matters and things ... NOW this Dáil .. doth hereby ratify and approve of the sanction given by the Government and of the doing by the Army Authorities of all or any of the acts and matters aforesaid."
  • instead "That this Dáil approves of the principle of the resolution submitted by the President, and goes into Committee to consider same to-morrow"
  • dail19220928 next day, 4 clauses in committee
• dail1921091400005 : Donal O'Callaghan moved for leave to propose the following motion: It is hereby decreed [The motion in full was not inserted but the following description was written into the record as a footnote: "A Bill to enlarge the powers of the Corporation of Cork for the reconstruction of the City."]

... after some discussion ruled the motion was out of order.

• Electoral Law
  • dail1922102000010 The new Electoral Law will be devised for the purpose of giving effect to the franchise resolutions of the 19th September last
  • dail19221115 "ELECTORAL BILL" et seq; in fact the page titles are misleading

Actual name	Description
ELECTORAL BILL.	ELECTORAL BILL. - first motion (seven clauses)
DISQUALIFICATIONS.	ELECTORAL BILL. - second motion - DISQUALIFICATIONS.
DISQUALIFICATIONS. - COMMITTEE STAGE.	ELECTORAL BILL. - first motion - COMMITTEE STAGE - clause 1 to 6
DISQUALIFICATIONS. - CLAUSE 7.	ELECTORAL BILL. - first motion - COMMITTEE STAGE - clause 7. and second motion DISQUALIFICATIONS - COMMITTEE STAGE
DISQUALIFICATIONS. - THE ESTIMATES.	THE ESTIMATES (for public services -- nothing to do with Electoral Bill)
DISQUALIFICATIONS. - MOTION BY MR. DARRELL FIGGIS.	MOTION (by Figgis on corrupt practices at elections) preamble
DISQUALIFICATIONS. - REGISTRATION.	MOTION items 1-3 (registration)
DISQUALIFICATIONS. - NOMINATION.	MOTION items 4-5 (nomination)
DISQUALIFICATIONS. - FREEDOM OF ELECTORS.	MOTION items 6-7 (freedom of electors)
DISQUALIFICATIONS. - PERSONATION.	MOTION items 8-9 (personation)
DISQUALIFICATIONS. - SCHEDULE.	MOTION schedule and debate [rejected on the basis that, in the time sine Figgis had tabled the motion, a Dáil committee had been formed to consider the issue, and indeed Figgis was a member]

• dail1922111700013 COMPULSORY ATTENDANCE IN PRIMARY SCHOOLS. "There are a number of clauses in this resolution and if it is dealt with now I think it should be taken in the same way as the resolution yesterday [recte 2 days ago], namely, by moving a First Reading and then going into Committee on the clauses." The motion "merely provides for an expression of opinion by the Dáil that a certain piece of legislation ought to be, at the earliest possible moment, amended. This motion does not legislate and has no legislative force or effect. It registers the opinion of the Dáil on a particular matter, and there is nothing in it that would interfere with the administration of the present Acts, which would require further legislation. Deputy O'Connell will move that this resolution be read the first time." The motion's specifics were deleted and the amended motion simply said "the Compulsory Attendance Clauses of the Irish Education Act, 1892, should, at the earliest available opportunity, be amended."
• dail1922110100021 WHEREAS it is provided by Article 82 of the Constitution of Soarstát Eireann that the first Seanad Eireann, shall consist of sixty members, of whom thirty shall be elected by Dáil Eireann voting on principles of Proportional Representation, and it is necessary that rules for the conduct of such election should be prescribed. NOW, THEREFORE, this Dáil doth hereby resolve that the aforesaid election of members to the first Seanad Eireann, hereinafter referred to as “the election,” shall be conducted in accordance with the following rules...
• dail1922110100022 THAT INASMUCH AS some time must elapse before the coming into operation of the legislation which must be passed by the Oireachtas of Saorstát Eireann for giving effect to the resolution of this Dáil of the 22nd day of September, 1922, but it is the desire of this Dáil that the claims for compensation in respect of damage to, or destruction of, property inflicted since the 11th day of July, 1921, should be heard and determined with such expedition as is compatible with a just measure of relief to the sufferers THIS DAIL is of opinion, and hereby instructs the Ministry, that, pending such legislation as aforesaid, all such preliminary steps as would necessarily or properly be taken by the Minister for Finance (were such legislation as aforesaid already in operation) with a view to a speedy hearing and determination of the said claims, should so far as possible be taken without delay, and particularly that all proper arrangements be made for receiving, classifying, and registering the said claims in such forms and subject to such relevant inquiries as may be prescribed by the Minister for Finance, and that all such claims shall be examined under the authority of the Minister for Finance with such legal and expert advice as he may think expedient and information and evidence relevant thereto collected by him, so that the hearing and adjudication of the said claims (when the same may be lawfully commenced) shall be prosecuted with the utmost expedition.”

Free State Constitution to Statute of Westminster

• Hugh Kennedy papers UCD P4/488 Irish Free State (Consequential Provisions) Act 1922 and Irish Free State (Adaptation of Enactments) Order 1922. ... The Minister for Industry and Commerce stresses the importance to the 'status' of the IFS 'not to attempt to derive any powers or rights from British laws or orders in council made since the ... establishment of the Saorstat'
• British Imperial Statutes and Irish Sovereignty: Statutes Passed After the Creation of the Irish Free State Mohr3
• The Statute of Westminster, 1931 - An Irish Perspective Mohr1
• HC Deb 13 July 1925 vol 186 cc836-7 Colonial Solicitors Act: I am advised that under the provisions of Section 3 of the Irish Free State Constitution Act, 1922 (Session 2), no Order in Council can be made applying the Colonial Solicitors Act 1900, to the Irish Free State unless and until the Parliament of the Irish Free State passes legislation to the effect that the Act may be applied to the Irish Free State as it may be applied to self-governing Dominions. No such legislation having been passed by the Government of the Irish Free State, His Majesty's Government are not in a position to take any action in the matter. I may add that on the passing by the Parliament of the Irish Free State of the Solicitors (Ireland) Act 1898 Amendment Act, 1923, which provides that English solicitors and Scotch law-agents may practice in the Irish Free State, the Government of the Irish Free State invited His Majesty's Government to consider the issue of an Order in Council applying the Colonial Solicitors Act, 1900, to the Irish Free State. His Majesty's Government in reply informed the Free State Government that they are ready to take into consideration in consultation with the appropriate authorities in this country the question of the issue of an Order applying the Act to the Irish Free State with such exceptions, conditions and modifications as might appear to be necessary so soon as the necessary additional legislation had been passed by the Free State Parliament, but they have received no further communication from the Fret State Government on the matter.

Land annuities

Sources

• Ó Drisceoil, Donal (2011). "When Dev defaulted: the land annuities dispute, 1926–38". History Ireland. 19 (3): 42–45. ISSN 0791-8224. JSTOR 41202806.
• Lysaght, Charles (14 September 2020). "De Valera not averse to breaking international agreements". The Irish Times. Retrieved 15 September 2020.

Points

• the agreements under the 1921 treaty were made in 1923 and 1926; first was approved by Dáil vote but never published, second was published but never approved
• Land Act 1923 implements "Purchase Annuities Fund"
• dail/1929-05-02 Land Purchase Annuities Dev moves "That the Dáil is of opinion that the land annuities now being paid into ‘The Purchase Annuities Fund' for transmission to Great Britain should henceforth be paid into the Central Fund, and that the Executive Council should immediately take the appropriate steps to that end" — Dev elaborates reasons for believing 1921/3/6 agreements were illegitimate (one was that GoIA 1920 left annuities to NI/SI exchequers) relied on in 1932
• 1932–8 economic war, hit FG ranchers' beef exports, not FF smallholders.
• 1938 agreement once-off £10m

See also

• EOIN MCLAUGHLIN (27 APR 2021) What were the economic consequences of Irish independence? economicsobservatory

Statute of Westminster to Constitution of Ireland

• Law without loyalty: The abolition of the Irish Appeal to the Privy Council Mohr2

Constitution of Ireland to Republic of Ireland

See User:Jnestorius/Names of Ireland

The Round Table

• (Dec 1936?) No. 105 p. 159 It is, however, clear from Mr. de Valera’s public pronouncements that the new constitution will transform the Free State into a republic in everything but name. It may be gathered from his statements that the King will be entirely eliminated from the constitution, and that the new head of the state will be elected by the people and represent nobody but the people. The situation that will then arise will be virtually that contemplated by the famous Document Number Two, which Mr. de Valera proposed as a substitute for the Treaty of 1921, namely a Free State in association with the British Commonwealth but yielding no allegiance to the King. The powers and functions to be given to the new head of the state, who will no doubt be Mr. de Valera himself, have not been indicated.
• (March 1937) No. 106 p. 348 "THE IRISH REPUBLICAN KINGDOM" (title) on External Relations Act
• (June 1937) No. 107 p. 588 "The new head of the state, to be known as the President, is to be elected by a direct vote of the people and to hold office for seven years. "
• (June 1938) No. 111 p. 539 The President holds office for seven years and is eligible for re-election once only. He is the head of the State, but his powers are strictly limited, being equivalent only to those of a constitutional monarch.

References

• Berriedale Keith, Arthur (1936). The King And The Imperial Crown. Retrieved 26 April 2019.
• Berriedale Keith, Arthur (1939). Constitutional Law (7th ed.). Retrieved 26 April 2019.
• Hancock, W. K.; Latham, R. T. E. (1937). Survey of British Commonwealth affairs. Vol. I: Problems of nationality 1918-1936. Oxford University Press. Chapters III "Saorstat Eireann" (pp. 92–165) and VI "Ireland Unappeased" (pp. 320–392)
• Harrison, Henry (1937). "The Issues in the Anglo-Irish Controversy. Was the Treaty Truly a Treaty?". Ireland And The British Empire,1937. London: Robert Hale. pp. 131–170. [and other chapters]
• Kennedy, Hugh (August–September 1928). "Character And Sources Of Constitution Of The Irish Free State". American Bar Association Journal. 14 (8): 437–445. JSTOR 25707485.
• Palmer, Gerald E H (1934). Consultation and Co-operation in The British Commonwealth. Retrieved 26 April 2019.
• Snoddy, Oliver (1972). "From the bridge to the abyss". Capuchin Annual. xxxix: 315–350. Retrieved 12 October 2020.
• Towey, Thomas (Winter 1977). "Hugh Kennedy And The Constitutional Development Of The Irish Free State, 1922-1923". Irish Jurist. 12ns (2): 355–370. JSTOR 44026237.

For review

• Clifford, Angela (1987). The constitutional history of Eire/Ireland. Belfast: Athol Books in conjunction with Church & State magazine. ISBN 978-0-85034-032-7.