User:Jnestorius/Free State constitution amendments

Amendment process
The procedure for adopting constitutional amendments was laid out in Article 50. This foresaw that amendments would be approved first by both houses of the Oireachtas, then by referendum, before finally receiving the royal assent from the Governor-General. The requirement for a referendum was to be suspended for the first eight years, during which amendments might be passed as ordinary legislation. This was intended to allow for any teething problems discovered early in the operation of the constitution to be quickly resolved. However, the 16th amendment, passed the year before the scheduled expiry of the suspension period, extended the period for a further eight years. While Article 47 provided for a referendum for ordinary legislation, this was removed by the 10th amendment without ever having been applied. Thus, no referendum was held for any of the amendments made to the constitution before it was repealed in 1937.

The original text, both of section 2 of the Third Dáil's Act creating the Constitution and of Article 50 of the Constitution itself, contained a stipulation that no amendment could conflict with the Anglo-Irish Treaty. However, the Constitution (Removal of Oath) Act 1933 removed both of these stipulations, which would otherwise have blocked its main provision, namely abolishing the Oath of Allegiance stipulated in the Treaty.

On two occasions, Oireachtas committees proposed amendments: a 1926 select committee initiated amendments 2 to 5, while a 1928 joint committee on the Seanad initiated amendments 6 to 9 and 11 to 15, though in some cases the final act differed from the latter committee's recommendation. Other amendment bills were almost all instigated by the Executive Council and often highly contested by the opposition parties and independent senators.

Explicit amendments
The Oireachtas readily used its powers of amendment so that, during the fifteen years of the constitution's operation, 25 formal constitutional amendments were made. This can be contrasted with the fact that, during its first sixty years, the current Constitution of Ireland was amended only sixteen times. Amendments were numbered in the order in which they were introduced, except that the 18th was called the "Constitution (Removal of Oath) Act" rather than the "Constitution (Amendment No. 18) Act". The order of introduction was not necessarily the order in which they were enacted, and indeed two numbered amendment bills were never enacted.

The following table lists all amendment bills. All bills except the 25th were introduced in the Dáil rather than the Seanad. The table includes links to the text of each amendment act as passed, and to the Oireachtas debates for the corresponding bill in both Dáil (D) and Seanad (S) at each stage ([1]st, [2]nd, [3]rd or [C]ommittee, [4]th or [R]eport, and [5]th or [F]inal).


 * Notes:

Implicit amendments
Certain other acts were not given short titles naming them as amendments to the Constitution, but nevertheless contained amending provisions.

Section 3 of the Public Safety Act, 1927 stated, "Every provision of this Act which is in contravention of any provision of the Constitution shall to the extent of such contravention operate and have effect as an amendment for so long only as this Act continues in force of such provision of the Constitution." This contrasted with the later 17th amendment, which explicitly inserted Article 2A into the constitution. The legitimacy of the 1927 Act was upheld in 1928 by the Supreme Court in Attorney General v MacBride, which ruled on the basis of implied repeal that an Act did not even need to explicitly state it was an amendment in order to amend the Constitution.

Constituent acts
The Constitution was enacted in Irish law under the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, a "constituent act", which had been passed by the Third Dáil sitting as a constituent assembly, and to which the Constitution itself was a schedule. The Irish act in turn was legitimated in British Law by the Irish Free State Constitution Act 1922, which was passed by the UK Parliament with the Irish act as a schedule.

While Article 50 of the Constitution provided for the amendment of the constitution proper, there was no explicit provision in any Irish law for the amendment of the Irish constituent act. Some jurists therefore maintained that the Oireachtas did not have power to amend the Act; rather, if it were possible to alter the law at all, it might be necessary to ask the UK Parliament to amend the UK Act, or for the Free State to elect another constituent assembly. Chief Justice Hugh Kennedy was among those who took the view that the Irish Act could not be altered by the Oireachtas. Nonetheless changes were eventually made to the Act: when the Oireachtas passed the Constitution (Removal of Oath) Act 1933, and when it was repealed in its entirety by Article 48 of the 1937 constitution. The Judicial Committee of the Privy Council ruled in 1935 that the 1933 Irish Act was legal in UK law under the Statute of Westminster 1931, although the Irish courts ignored this judgment as it occurred after the 22nd amendment had removed from Irish law the right of appeal to the Privy Council.

The 1922 UK Act was repealed in UK law in 1989, and in Irish law in 2007.

1921 Treaty
The Constitution as enacted made reference to the 1921 Anglo-Irish Treaty within whose parameters it was framed. Subsequently, the British and Free State governments signed several agreements amending the Treaty, which were confirmed by acts of the Oireachtas. The agreements did not alter the text of the Constitution, but two stated "all references in the Constitution to the Scheduled Treaty shall be construed as references to the said Treaty of 1921 as amended by the said Agreement." A 1924 agreement, described as "supplementing" rather than "amending" the Treaty, did not make any such reference to the Constitution.
 * A 1925 amendment consequent on the collapse of the Irish Boundary Commission.
 * A 1929 amendment relating to pensions of transferred civil servants.

The Medical Practitioners Act 1927 included as a schedule an agreement for cross-recognition of medical doctors in the Irish Free State, Northern Ireland, and Great Britain. Section 3 of this agreement stated the pre-1922 Irish Medical Register continued in operation "notwithstanding anything contained in the Government of Ireland Act, 1920, the Irish Free State Constitution Act, 1922, or the Irish Free State (Consequential Provisions) Act, 1922, or the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922, passed by the Provisional Parliament of Ireland, or the Adaptation of Enactments Act, 1922, passed by the Oireachtas of the Irish Free State or any Order made under any of those Acts". Similar provisions in similar agreements were scheduled in The Dentistry Act 1928 and the Veterinary Surgeons Act, 1931.

The treaty was implicitly abrogated by the Constitution (Removal of Oath) Act 1933 and was ignored by subsequent Irish laws. The treaty remained a schedule to the constitution throughout its existence, and only one reference to it was removed from the constitution by the 1933 act: that in Article 50 which prohibited constitutional amendments incompatible with the treaty. Three other references were retained: two in transitory provisions (Articles 76 and 78) relating to transfer of public servants, and one in Article 46, which stated "The Oireachtas has the exclusive right to regulate the raising and maintaining of such armed forces as are mentioned in the Scheduled Treaty in the territory of the Irish Free State (Saorstát Eireann) and every such force shall be subject to the control of the Oireachtas."

1937 Constitution
Continual ad hoc amendment meant that, by the time it was replaced in 1937, the constitution was "a tattered and torn affair", in the words of Éamon de Valera, President of the Executive Council, when introducing the draft new constitution. Lessons learned from the Free State constitution were applied to the 1937 constitution, including with regard to amendment.

The new Constitution, like the old one, granted the Oireachtas a temporary power to make constitutional amendments by ordinary law without referendum. The main difference was that both the time limit and the referendum subsequently required were entrenched from being changed via this temporary power. Also, the President could force a referendum in such cases. In the event the Oireachtas used its transitional power only twice, when it adopted the First Amendment and the Second Amendment; in neither case did the President force a referendum. The new constitution was not amended again for thirty years.

Another difference from the Free State constitution is that the 1937 constitution requires constitutional amendments to be expressly identified as such. Every amendment must have the long title "An Act to amend the Constitution", and contain no proposals other than constitutional amendments.