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Ireland: Introductory Note

Rainer Grote
Edited By: Max Planck Institute

© 2013 Oxford University Press

. Origins of the Constitution of 1937

. The Role of the 1937 Constitution in the Irish Struggle for Independence

The Constitution of Ireland of 1937 replaced the Constitution of the Irish Free State which had been established by the Anglo-Irish Treaty of December 6, 1921 that put an end to the Irish War of Independence, 1919 to 1921. Under the Agreement, whose major provisions were enshrined in the Constitution of 1922, the Irish Free State had the constitutional status of a self-governing dominion within the British Commonwealth, on a par with Australia, Canada, New Zealand and South Africa.1 Sovereignty still resided in London, and key monarchical symbols were retained, such as the representation of the Crown by a Governor-General in Dublin, the Crown on official seals, and the oath of allegiance of members of the Irish Parliament to His Majesty King George V. Britain also kept a number of ports judged necessary for its continued defense. At a more practical level, however, the Treaty marked a decisive step towards independence by securing full autonomy in fiscal and internal matters for the Irish Free State and the withdrawal of the British army and its replacement by an Irish one.2

While these arrangements in principle also extended to Northern Ireland, the Treaty recognized the right of Northern Ireland to “opt out” of the Irish Free State by providing for the continued application of the Government of Ireland Act 1920 which had set up a separate Parliament to exercise jurisdiction on most domestic matters in the Northern counties of Londonderry, Antrim, Down, Armagh, Fermanagh and Tyrone. The powers of the Irish Free State Parliament and Government with regard to Northern Ireland would cease to apply if the Northern Ireland Parliament were to present an address to this effect to his Majesty within one month of the ratification of the Anglo-Irish Treaty by Act of the British Parliament. Both Houses of the Parliament of Northern Ireland duly passed such resolution within three days of the adoption of the Act. The Anglo-Irish Treaty provided that in this case a boundary commission would be established in order to determine the boundaries between Northern Ireland and the rest of Ireland in accordance with the wishes of the inhabitants. However, when the Commission after much delay finally completed its work, its recommendations were disappointing to the Free State since they did not provide for the transfer of the main disputed areas in Down, Fermanagh and Tyrone to the Free State. A Tripartite Agreement between the United Kingdom, Northern Ireland and the Irish Free State thus confirmed the boundaries between Northern Ireland and the Free State as they had been laid down in the Government of Ireland Act 1920.

When Eamon de Valera who had opposed the Anglo-Irish Treaty right from the start returned to power with his Fianna Fáil party in 1932, he soon started thinking about the replacement of the Free State constitution, which was still considered by many as a ‘pagan” document imposed on the Irish people without a vote by a foreign non-Catholic power, i.e. the British state. A number of symbolic steps were taken which demonstrated the will of the new government to renegotiate the terms of the 1922 Treaty. The Governor-General was gradually reduced to a nonentity before the office was abolished altogether in 1936. Judicial appeals to the English Privy Council were outlawed, the oath of allegiance to the Monarch was dropped, and all reference to the Crown was removed from the State documents. In 1938, de Valera’s government even managed to secure the return of the naval bases which the British had kept under the terms of the Anglo-Irish Treaty to Ireland. During World War II which broke out a year later, Ireland, to the dismay of the British government, would not allow the Royal Navy the use of the recently returned ports, instead following a policy of strict neutrality until the end of the conflict. After the War the last ties with the United Kingdom were severed when the coalition government of Fine Gael and the two Labour Parties took Ireland out of the British Commonwealth and declared the country a Republic. The UK Parliament, for its part, recognized in the Ireland Act 1949 that the part of Ireland hitherto known as Eire had ceased to be part of His Majesty’s dominions. At the same time, the Act solemnly declared that Northern Ireland remained part of the United Kingdom and that “in no event” this status would change without the consent of the Parliament of Northern Ireland.

The ties which bound the Irish Free State to the British Commonwealth had thus loosened but not yet been cut off entirely when de Valera in April 1935 instructed John Hearne, the legal adviser to the Department of External Affairs, to begin with the drafting of a new constitution. In institutional terms the new Constitution would complete the gradual transition from a Free State to a Republic rather than constitute a radical break with the past. Thus substantial parts of the 1922 document, namely those dealing with the judiciary and the Parliament or Oireachtas, were lifted seamlessly into the new Constitution.3 To a much greater extent that its predecessor, however, the new document would reflect the needs and aspirations of a Catholic nation, although it would not be a Catholic document for fear that this would effectively destroy the remaining hopes for a future reunification with the Protestant North. Above all, it was to be a constitution that the Irish people, though not those living in Northern Ireland, would ratify, quite unlike its predecessor which was forever flawed in the eyes of de Valera and his supporters by the very fact of its imposition without a referendum in 1922. The popular vote which finally took place on July 1, 1937, yielded a clear, though not an overwhelming majority for the new constitution, with 685,000 votes to 526,000.

. General Features of the 1937 Constitution

The 1937 Irish Constitution is often called “de Valera’s Constitution.” De Valera was its principal author, and the novel articles which were added to the basic institutional arrangements drawn from the Irish Free State Constitution are widely seen as reflection his personal vision of Irish society.4 This vision was most visible in the provisions on the position of the Church, the family and the status of women in Irish society. Article 44.1 recognized the “special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.” While this provision would attract much criticism in later times and would indeed be removed from the text by constitutional referendum in 1972, it was far less controversial at the time of its adoption. Indeed it was widely seen as a recognition of the facts, with a population in the twenty-six counties of Southern Ireland which was 95 per cent Catholic.5 Nor could the provision be seen as a mere faithful reflection of orthodox Catholic opinion since it also recognized the other Christian and non-Christian denominations existing in Ireland at the time of the entry into force of the Constitution, including the Jewish congregations. The express acceptance of the main Irish Protestant church’s claim to be the “Church of Ireland” in subsection 3 must have been particularly galling to those advocating a more unequivocal recognition of the central role of the Catholic Church in the forging of the Irish national identity.

More worrisome may have been the fact that, despite its ringing endorsement of religious liberty and its recognition of all religious denominations, the Constitution went a long way towards enshrining the Catholic moral code as the fundamental law of the land. This was most obvious in the provisions dealing with marriage and the family. The family was recognized, in Article 41.1.1, as “the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.” In particular, the Irish State pledged itself to guard “with special care” the institution of Marriage, on which the Family is founded, and to protect it against attack. An important practical consequence flowing from this commitment to the protection of the institution of marriage was the constitutional ban on the enactment of any law which provided for the grant of a divorce (Article 41.3.2). However, as outdated as it looks today, the prohibition on the divorce at the time was probably acceptable not only to the vast majority of Catholics but to many Protestants as well.

Together with this commitment to the protection of marriage and the family the 1937 Constitution enshrined a highly traditional view of the role of women. Article 44.2 speaks of the indispensable support—“a support without which the common good cannot be achieved”—that women give to the State by her life within the home. As consequence, the State promises to take the action necessary to ensure that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.” These promises blatantly ignored the social and economic realities of Irish society even at the time they were being made: the proportion of unmarried women was the highest in Europe, and due to the dire economic and social conditions in rural Ireland women, as in the preceding generations, were forced to flee their homes and even the country in their tens of thousands.6

With regard to the unification of Ireland, the Constitution adopted a pragmatic attitude which would only later arouse the suspicion of Protestants in the North of the island. While Article 2 declared that the national territory consisted of the whole island of Ireland, its islands and the territorial seas, Article 3 made clear that, for the time being at least, the Parliament and Government in the South did not intend to exercise their powers with regard to the territory of Northern Ireland: pending the re-integration of the national territory, the laws enacted by the Oireachtas were to have the like area and extent of application as the laws of the Irish Free State and the like extra-territorial effect, i.e. they were to apply only to the twenty-six counties in Southern Ireland.

Perhaps the most controversial of the new Constitution’s provisions were the ones providing for the establishment of the new office of President of Ireland who would be elected by a direct vote of the people (Article 12). This fuelled concerns that the elected President might upstage the Prime Minister, or Taoiseach, and thus pave the way for the replacement of the parliamentary system of government by a dictatorship. Although these fears proved to be unfounded, they were understandable in the light of the developments in other parts of Europe which had seen the rise of authoritarian regimes at the expense of elected governments and the fact that the new President was to be Commander of the Army and would wield important powers in moments of constitutional crisis (Article 13). Unusually for a constitution, then and now, the electoral system to be used in the election of the Dáil Éireann, proportional representation by means of the single transferable vote, was enshrined in the constitutional text itself and was not left to ordinary legislation (Article 16.2.5). The Constitution also made provision for a powerful Supreme Court on the US model to which appeals could be made concerning the constitutionality of all laws adopted by the Oireachtas (Article 34.4.4). Finally the Constitution provided that, while any constitutional provision was open to amendment, such amendment would only become effective once the relevant bill voted by both Houses of the Oireachtas had been approved by popular referendum (Article 46.5).

. Amendments to the 1937 Constitution

Since its entry into force on December 29, 1937, the Irish Constitution has been amended on 28 occasions. Five constitutional amendment bills were rejected by voters in a constitutional referendum. At the time of writing, the thirty-first amendment providing for new constitutional guarantees of children’s rights still awaited the President’s signature, pending a court challenge to the constitutionality of the referendum procedure.

Short title

Object of Amendment

Date of Signature

First Amendment of the Constitution Act, 1939

Application of emergency provisions to conflicts in which the Irish State is not a participant

September 2, 1939

Second Amendment of the Constitution Act, 1941

Tidying up of a range of disparate Articles in the light of the experience since their enactment

May 30, 1941

Third Amendment of the Constitution Act, 1972

Allowed the Irish State to become a member of the European Communities

June 8, 1972

Fourth Amendment of the Constitution Act, 1972

Reduction of the minimum voting age in parliamentary and presidential elections and referenda to 18 years

January 5, 1973

Fifth Amendment of the Constitution Act, 1972

Removal from the Constitution of the special position of the Catholic Church and of the recognition of the other named religious denominations

January 5, 1973

Sixth Amendment of the Constitution (Adoption) Act, 1979

Provided that adoption orders by the Adoption Board could not be invalidated

August 3, 1979

Seventh Amendment of the Constitution (Election of Members of Seanad Éireann by Institutions of Higher Education) Act, 1979

Allowed election of members of Seanad Éireann also by institutions of higher education other than universities

August 3, 1983

Eight Amendment of the Constitution Act, 1983

Protection of the right to life of the unborn

October 7, 1983

Ninth Amendment of the Constitution Act, 1984

Extension of the right to vote at parliamentary elections to certain non-Irish nationals

August 2, 1984

Tenth Amendment of the Constitution Act, 1987

Ratification of the Single European Act

June 22, 1987

Eleventh Amendment of the Constitution Act, 1992

Ratification of the Treaty on the European Union (Maastricht Treaty)

July 16, 1992

[Twelfth Amendment to the Constitution Bill, 1992

Right to life of the unborn

Rejected by constitutional referendum]

Thirteenth Amendment of the Constitution Act, 1992

Provided that the right to life of the unborn would not limit freedom to travel between Ireland and another state

December 23, 1992

Fourteenth Amendment of the Constitution Act, 1992

Provided that the right to life of the Unborn would not limit the right to information on services legally available

December 23, 1992

Fifteenth Amendment to the Constitution Act, 1995

Allowed dissolution of marriage in specified circumstances

June 17, 1996

Sixteenth Amendment of the Constitution Act, 1996

Allowed refusal of bail in order to prevent serious offenses

December 12, 1996

Seventeenth Amendment of the Constitution Act, 1997

Disclosure of confidential Government discussions on the request of the High in specified cases

November 14, 1997

Eighteenth Amendment of the Constitution Act, 1998

Ratification of the Treaty of Amsterdam

June 3, 1998

Nineteenth Amendment of the Constitution Act, 1998

Consent to the British-Irish Agreement of 10 April 1998 and amendments to Articles 2 and 3

June 3, 1998

Twentieth Amendment to the Constitution Act, 1999

Constitutional recognition of the role of local government

June 23, 1999

Twenty-first Amendment of the Constitution Act, 2001

Prohibition of death penalty

March 27, 2002

[Twenty-second Amendment of the Constitution Bill, 2001

Removal of judges from offices

Rejected by Oireachtas]

Twenty-third Amendment of the Constitution Act, 2001

Ratification of the Rome Statute on the International Criminal Court

March 27, 2002

[Twenty-fourth Amendment of the Constitution Bill, 2001

Ratification of Treaty of Nice

Rejected by constitutional referendum]

[Twenty-fifth Amendment of the Constitution Bill, 2002

Protection of human life in pregnancy

Rejected by constitutional referendum]

Twenty-sixth Amendment of the Constitution Act, 2002

Ratification of the Treaty of Nice

November 7, 2002

Twenty-seventh Amendment of the Constitution Act 2004

Irish citizenship for children of non- National parents

June 24, 2004

Twenty-Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009

Ratification of the Treaty of Lisbon

October 15, 2009

Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Act 2011

Amendment of Article 35.5

November 17, 2011

Thirtieth Amendment of the Constitution (Treaty on Stability, Co- ordination and Governance in the Economic and Monetary Union) Act 2012

Ratification of the Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union

June 27, 2012

Thirty-first Amendment of the Constitution Act 2012

Protection of children’s rights

Awaits signature pending a court challenge to the referendum procedure

[Thirty-second Amendment of the Constitution Bill 2013

Abolition of Seanad Éireann

Rejected by constitutional referendum]

Thirty-third Amendment of the Constitution Act 2013

Establishment of a Court of Appeal

II . Key Features of the Irish Constitution

. General Principles

Article 1 of the Irish Constitution declares against the backdrop of the Irish War of Independence, memories of which were still fresh when the Constitution was drafted, the right of the Irish nation to self-determination, i.e. the right to choose its own form of government, to determine its relations with other nations, and to develop its political, economic and cultural life in accordance with its own genius. The question of the relationship between the Irish State created by the 1937 Constitution and the northern part of the island which remained part of the United Kingdom is addressed in Articles 2 and 3. The articles were amended in order to give effect to the Anglo-Irish Agreement of April 10, 1998 which, after three decades of civil strife, established the framework for a comprehensive peace settlement in Northern Ireland. The settlement rests on the recognition by all parties to the conflict and by the Irish and the UK governments that Northern Ireland at present is part of the United Kingdom and that this status reflects the wish of a majority of the people in Northern Ireland: at the same time, however, this status is subject to change, provided that the change is brought about peacefully and is supported by a majority of the people in Northern Ireland. The amended Articles 2 and 3 of the Constitution therefore no longer contain any reference to Irish territorial claims with regard to the North but state that it is “the entitlement and birthright of every person in the island of Ireland … to be part of the Irish nation” (Article 2) and that it is “the firm will of the Irish nation … to unite all the people who share the territory of the island of Ireland … recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island” (Article 3).

Article 5 defines the Irish state as sovereign, independent, and democratic. Though the 1937 Constitution created what was to all intents and purposes a republic, the Constitution itself does not use this term because in 1937, when the Constitution was adopted, Ireland was still a member of the British Commonwealth. The Irish State continued its membership of the British Commonwealth until well after World War II. It was only in 1948 that the Republic of Ireland Act was passed, which declares in section 2: “It is hereby declared that the description of the State shall be the Republic of Ireland.” However, this legislative change so far has not given rise to a corresponding constitutional amendment. The basis for the status of the Irish Republic thus continues to be statutory and not constitutional. More importantly, this “description” of the Irish State as a Republic in section 2 of the Republic Ireland Act does not change the official name of the State which is fixed in Article 4 of the Constitution: “The name of the State is Éire, or in the English language, Ireland.”7

Article 6 enshrines the principle of popular sovereignty, i.e. that all government powers are derived from the people, although with a reference to God which might seem out of place in a non-theological document but which is consonant with the strongly religious wording in the Preamble identifying the “Most Holy Trinity” as the ultimate source of all authority. While three distinct forms of government power—legislative, executive and judicial—are recognized, Article 6 does not expressly provide for the separation of these powers. However, such separation is supported by a systematic reading of the Constitution which assigns each of these powers to different organs, i.e. the power to make laws to the Oireachtas (Article 15.2.1), the executive power to the Government (Article 28.2) and the judicial power to the courts (Article 34.1.).

. Fundamental Rights

Articles 40 to 44 of the Irish Constitution contain a Bill of Rights. This chapter deals with personal rights (Art. 40), the rights of the family (Art. 41), educational rights (Art. 42), private property (Art. 43), and freedom of religion (Art. 44). The provision on personal rights guarantees most of the classic civil rights, including the right to equality before the law, habeas corpus, the inviolability of the home, freedom of expression, freedom of assembly, and freedom of association. Subsection 1 of section 3 of Art. 40 obliges the State not only to respect these rights, but also to take the necessary legislative measures, as far as practicable, “to defend and vindicate” the personal rights of the citizen. A constitutional amendment introduced in 1983 has added the obligation of the State to respect and, as far as practicable” to defend and vindicate the right to life of the unborn. The amendment was designed to give constitutional support to the strict prohibition of abortion which had been on the statute book since the establishment of the Republic but became increasingly contested in the 1970s. The purpose of the amendment was to prevent the recurrence of events which had taken place in the US, where a constitutional right to abortion had been introduced by way of a Supreme Court decision (Roe v. Wade), in Ireland.

However, the amendment proved to be only a short-lived success for the anti-abortion cause. It did nothing to stop the practice of pregnant Irish women to go to the UK in order to obtain an abortion. Even more fundamentally, a Supreme Court ruling in 1992 held that a woman had a right to an abortion under Article 40.3.3 if a pregnancy resulted in “a real and substantial risk” to her life. While the Court made clear that a mere risk to the health of the mother would not be sufficient to trigger the application of the right, it went on to explain that the right to abortion could also be invoked in cases where the risk to the pregnant woman’s life resulted from the possibility of her committing suicide because of the pregnancy.8 Following the Supreme Court’s ruling in the X case, three proposals were submitted to a referendum for amendment of the Irish constitution. While the Twelfth Amendment addressed the substantive issue and proposed to allow abortions in cases where the mother’s life was at risk, even if the risk result resulted from the possibility of suicide, the Thirteenth and the Fourteenth Amendment were merely designed to preserve the right to travel abroad to obtain an abortion, by specifying that the prohibition on abortion did not limit the right of pregnant women to travel out of the state, nor the right to distribute information in Ireland on abortion services legally available elsewhere. Only the two latter amendments were approved by referendum, whereas the Twelfth Amendment was rejected. It would take another twenty years before the Irish legislature gave statutory effect to the Supreme Court’s interpretation of Article 40.3.3. of the Constitution through the adoption of the Protection of Life During Pregnancy Act 2013.9

The list of personal rights in Article 40 is not exhaustive. Since the decision of the Supreme Court in Ryan v Attorney General the broad clause in Article 40.3.1. “personal rights of the citizen” has been interpreted to refer to more than just the rights explicitly mentioned in Article 40.3.2, i.e. life, person, good name, and property. In that decision, Chief Justice O’ Dalaigh had agreed with Kenny J that the words “in particular” in implied the existence of rights other than the ones which were expressly listed in Article 40.3.2.10 Kenny J had argued that there was in fact a range of unenumerated rights which follow from the “Christian and democratic nature” of the state.11 In subsequent rulings other sources of unenumerated rights besides the Christian and democratic nature of the state have been identified, including the essential characteristics of the individual,12 the Preamble,13 and the provisions of Article 45.14 The recognized unenumerated rights include, among others, the right to marital privacy,15 the right to travel,16 freedom from torture or cruel treatment,17 the right to communicate,18 and the right of access to a court.19

As has already been mentioned above, Article 41 enshrines the paternalist concept of the family which was dominant in Irish society at the time of the Constitution’s adoption. The State guarantees to protect the family, which is recognized as the “natural primary and fundamental group of Society and as a moral institution possessing inalienable and imprescriptible rights”, in its constitution and authority. This concept of family life is linked to a very narrow vision of the role of women in society: it is through their life within the home that women give the State a support without which the common good cannot be achieved. The State therefore “endeavours” to ensure that mothers shall not be obliged by economic necessity to work outside their home “to the neglect of their duties” in the home. However, this provision never had any realistic prospect of implementation. The social and economic collapse or rural Ireland meant that even in the 1930s fewer Irishwomen than ever could realistically aspire to the status promised in Article 41.2.20 However, the text of the constitutional provision has remained unchanged, in contrast to the guarantee of the institution of marriage in section 3 which was modified significantly in 1996 through an amendment that allows the dissolution of marriage in certain specified circumstances, i.e. following a minimum separation period of at least four years with no reasonable prospect of a reconciliation of the spouses.

The guarantee of educational rights in Article 42 reflects the same concept of the family which underlies Article 41. Article 42 stresses the right of parents to impart themselves the necessary education to their children. The family is recognized as the “primary and natural educator” of the child. Parents are thus free to choose whether the intellectual, physical, religious, moral and social education shall be provided to their children in their homes, in private schools, or in schools recognized or established by the State. In particular, the State shall not force parents in violation of their conscience to send their children to schools established by the State or to any particular type of school designated by the State. As in the case of the institution of marriage, the original concept of education rights which focused narrowly on the rights of the parents has been modified by way of constitutional amendment. The new constitutional provisions introduced in 2012, section 5 of Article 42 and Article 42A, emphasize the rights of the children as the basis of the education system. According to the new section 5 of Article 42, which is reproduced in section 2 of the newly introduced Article 42A, the State shall take the place of the parents in cases in which the latter, “for physical or moral reasons” fail in their duty towards their children, but “always with due regard for the natural and imprescriptible rights of the children.” Article 42A lays down the guiding principles for the procedures which apply in cases where the State has to step in because the natural parents have failed in their duty towards their children or where children, with or without the consent of their natural parents, are placed for adoption. In all proceedings concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

The right to private property in Article 43 of the Irish Constitution is also guaranteed in the natural law terminology which permeates the whole chapter on fundamental rights. The State acknowledges in Article 43.1.1. that man has “the natural right, antecedent to positive law, to the private ownership of external goods.” The right of private ownership, or the general right to transfer, bequeath or inherit property, may therefore not be abolished (Article 43.1.2). However, this does not mean that the right to property is unlimited; in particular, it has to be reconciled with the imperatives of social justice which is constitutive of any civilized society. The State may therefore regulate the exercise of the right to private ownership in accordance with the principles of social justice. This regulation may also include the limitation of property rights, where this is necessary to realize the common good (Article 43.2.).

The final fundamental right acknowledged by the Irish Constitution is the right to freedom of religion and freedom of conscience. It is also guaranteed in terms which transcend the strictly legal. According to Article 44.1., the State acknowledges that the homage of public worship is due to Almighty God and recognizes its duty to hold God’s name in reverence. The legal substance of the constitutional guarantee of the freedom of religion consists in the principle of non-discrimination: The State guarantees not to endow any religion, and it may not impose any disabilities on the ground of religious profession, or status (Article 44.2.2 and 2.3). The different religious denominations shall have the right to manage their own affairs (Article 44.4.5.). Freedom of religion and conscience are not unlimited, however. They may be restricted on grounds of public order and morality (Article 40.2.1.).

In addition to the fundamental rights the Irish Constitution contains, in Article 45, a number of directive principles of social policy. Unlike the fundamental rights, the directive principles cannot be enforced in the courts. They are exclusively directed to Parliament (Oireachtas) and shall guide it in the exercise of its law-making powers. They include a number of a basic principles for the conduct of social and economic policy, like the obligation of the state to ensure to the citizens the right to an adequate means of livelihood (Article 45.2.i.) or the duty to safeguard the economic interests of the weaker sectors of the community and, where necessary, “to contribute to the support of the infirm, the widow, the orphan, and the aged” (Article 45.4.1.). This does not mean, however, that the Irish Constitution only knows non-enforceable social and economic rights. The fundamental rights guaranteed in Articles 40 to 44 also contain some important social and economic rights, especially with regard to family support (Art. 41), educational rights which include the right to free primary education (Article 42.4.), and the right to private property (Article 44). In addition, the courts have sometimes invoked the unenumerated rights doctrine to recognize socio-economic rights as enforceable personal rights under Article 40.3. While most of the unenumerated rights are classic civil and political rights, others, like the right to earn a livelihood21 or the rights of the child to life, food, and education22 have an important social and economic dimension.23

. Separation of Powers

The Irish Constitution establishes a parliamentary system of government. Contrary to the fears of some and the hopes of others (see below I. 2.), the Irish system has not morphed into a French-style presidential system, although the Constitution provides the President with a strong democratic legitimacy through his/her popular election (Article 12.2) and vest important powers in the office of President, including the supreme command of the Defence Forces (Article 13.4.). However, the decisive provision is Article 13.9 which states unambiguously that the powers and functions conferred on the President by the Constitution shall be exercised by him only on the advice of the Government, save where the Constitution expressly provides otherwise. The executive power is therefore exercised by and on the authority of the Government (Article 28.2.) which is headed by the Prime Minister, or Taoiseach (Article 28.5.1.). The Taoiseach is nominated by the House of Representatives (Dáil Éireann) and appointed by the President (Article 13.1.1.). The other members of the Government are nominated by the Taoiseach with the approval of the Dáil Éireann and appointed by the President (Article 13.1.2.). The Government is responsible to the Dáil Éireann (Article 28.4.1). When the Taoiseach fails to retain the support of a majority in the Dáil Éireann, he/she must either resign or obtain the dissolution of the Dáil from the President (Article 28.10).

The Irish Parliament (Oireachtas) consists of two Houses, the House of Representatives (Dáil Éireann) and the Senate (Seanad Éireann). Only the Dáil Éireann, however, is directly elected by the people (Article 16.1.2.). Unlike most other national constitutions, the Irish Constitution fixes itself the mode of election of the members of the Dáil and does not leave this task to Parliament. The members of the Dáil are elected in a system of proportional representation by means of the single transferable vote (Article 16.2.5.). Two attempts to change this system by way of constitutional referendum—in 1959 and 1968—failed, thus ensuring that the Irish political system continues to allow the representation of minority groups and avoids the polarization between majority and minority parties which is characteristic of many political systems practising majority voting. Instead, the Irish system has long been characterized, after an initial period of Fianna Fáil dominance, by a succession of coalition governments, which were headed either by Fianna Fáil or Fine Gael.

Unlike the Dáil Eiréann, the Senate, or Seanad Eiréann, is not directly elected by the people. Eleven of its sixty members are appointed by the Taoiseach, while six are elected by the graduates of certain Irish universities, i.e. the University of Dublin (three members) and the National University of Ireland (three members). The remaining 43 Senators are elected from five special panels of nominees known as the Vocational Panels by an electorate consisting of members of the Dáil Éireann, senators and local councilors. The five panels are the Administrative Panel, representing the public administration and social services, the Agricultural Panel (agriculture and fisheries), the Cultural and Educational Panel, the Commercial and Industrial Panel and the Labor Panel. The right to nominate a person for a panel seat is restricted to members of the Oireachtas and designated “nominating bodies.”

The Senate participates in the exercise of the law-making powers of the Oireachtas (see Article 15.2.). However, its legislative powers are not identical to those of the Dáil Éireann since it may only delay bills with which it disagrees but cannot prevent their final adoption by the Dáil Éireann (see Article 23.1.1). By contrast, the Senate does not have any part in the nomination or the control of the Government: the latter is responsible only to the Dáil Éireann (Article 28.4.1).

The creation of the Senate had been a gesture by de Valera towards vocationalists and Catholic corporatists intrigued by the possibility of a third way between capitalism and communism. However, it was never intended to exercise any real powers, nor was it to become the institutional linchpin of a genuine decentralization or even federalization of the Irish state. In the words of an Irish historian, the Senate largely functioned as “a delivery room for political wannabes, a convalescent ward for the electorally wounded, an asylum for exotics … and a hospice for those near the end of their political life.”24 Despite these limited functions, the Senate seems to have retained a substantial measure of public support. The Fine Gael/Labour coalition which came to power in the 2011 elections had promised a constitutional referendum on the abolition of the Senate as part of its program to reduce the costs of government in order to restore the credibility of Ireland’s public finances. However, in a referendum on October 4, 2013 the Thirty-second Amendment of the Constitution (Abolition of Seanad Éireann) Bill was narrowly rejected by a margin of 51.7% to 48.3%.

The judicial power is vested in the courts (Article 34.1). Following the Thirty-third Amendment of the Constitution which was adopted by constitutional referendum of October 4, 2013, the Irish judiciary is organized as a three-tier system. It consists of the Courts of First Instance including a High Court, a Court of Appeal, and the Supreme Court, or Court of Final Appeal (Article 34.2.). The High Court has full original jurisdiction to determine all matters and questions whether of law or fact, civil or criminal (Article 34.3.1). The newly created Court of Appeal has appellate jurisdiction from all decisions of the High Court (Article 34.4.1). Finally, the Supreme Court has appellate jurisdiction from a decision of the Court of Appeal in certain specified circumstances. An appeal to the Supreme Court will only lie where the decision of the Court of Appeal involves a matter of general public importance, or where the appeal is required by “the interests of justice” (Article 34.5.3.).

The Irish Constitution expressly provides for judicial review of the constitutionality of statutes. According to the amended Article 34.3.2 the High Court, the Court of Appeal and the Supreme Court all have jurisdiction to determine the validity of any law having regard to the provisions of the Constitution. The power of judicial review exercised by these three courts puts into effect the general supremacy clause of Article 15.4.2 according to which any law or any provision of a law which is in any respect repugnant to the Constitution shall be invalid to the extent of such repugnancy. However, the jurisdiction of the High Court and the Court of Appeal is precluded if the provision has been referred to the Supreme Court by the President in exercise of his powers under Article 26. Article 26 provides that the President may refer a bill to the Supreme Court for a review of its constitutionality within seven days after it has been presented to his/her signature. The general jurisdiction to review the constitutionality of laws which is fixed in Article 34.3.2 applies also after this date and to laws which have already entered into force.

Whereas little use was made of the power of constitutional review in the first two decades of the new Constitution’s existence, the contested cases and constitutional challenges increased markedly from the 1960s onwards. The number and the importance of the Supreme Court rulings on constitutional issues have grown steadily ever since. It has even been said that in terms of making new laws by its judgments, the Supreme Court may actually be usurping both houses of the Oireachtas.25 While this seems exaggerated, it is certainly true that on some particularly contested issues, like abortion, the legislature has largely chosen to codify the case law of the Court instead of exercising any initiative or discretion of its own (see above 2.).

Footnotes:

Art. 1 of the Irish Free State (Saorstát Eireann) Act 1922: “The Irish Free State (otherwise hereinafter called or sometimes called Saorstát Eireann) is a co-equal member of the Community of Nations forming the British Commonwealth of Nations.”

Bartlett, Ireland (note 2), 446/47.

Bartlett, Ireland (note 2), 447.

Bartlett, Ireland (note 2), 450.

I. Bacik, Future Directions for the Constitution, in: Carolan & Doyle, The Irish Constitution (note 4), 135, 136-37.

Attorney General v X [1992] IR (Irish Reports) 1.

Act No. 35 of 2013; see especially sections 7–9 of the Act.

10  [1965] IR 294.

11  T. Murphy, The Cat amongst the Pigeons: Garrett Barden and the Irish Natural Law Jurisprudence, in: Carolan & Doyle, The Irish Constitution (note 4), 121, 125.

12  Norris v Attorney General [1984] 36, 71.

13  McGee v Attorney General [1974] IR 284.

14  Murtagh Properties v Cleary [1972] IR 330.

15  McGee v Attorney General, Ireland and the Revenue Commissioners [IR] 284.

16  State (M) v Attorney General and Ireland [1979] IR 73.

17  State (C) v Frawley [1976] IR 365.

18  Kearney v Minister for Justice [1986] IR 116.

19  O’Brien v Keogh [1972] IR 144.

20  Bartlett, Ireland (note 2), 450.

21  Murphy v Stewart [1973] IR 97; Cox v Ireland [1992] 2 IR 503.

22  G v An Bord Uchtala (Adoption Board) [1980] IR 32, 55.

23  R. O’ Connell, From Equality before the Law to the Equal Benefit of the Law: Social and Economic Rights in the Irish Constitution, in: Carolan & Doyle, The Irish Constitution (note 4), 327, 329.

24  Bartlett, Ireland (note 2), 451.

25  Bartlett, Ireland (note 2), 452.