Constitution of The Irish Free State - Incorporation of The Treaty

Incorporation of The Treaty

The Constitution of the Irish Free State (Saorstát Éireann) Act 1922 contained two schedules. One schedule contained the new constitution, and the other the text of the Anglo-Irish Treaty. As enacted in 1922, Section 2 of the Act provided for the supremacy of the Treaty's provisions, voiding any part of the Constitution or other Free State law that was "repugnant" to it. Similarly, both Section 2 of the Act and Article 50 of the Constitution provided that no constitutional amendment would stand so far as it violated the terms of the Treaty.

Under British constitutional legal theory, the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 held the force of law because of the enactment of the United Kingdom's Irish Free State Constitution Act 1922, thus entrenching the primacy of the Treaty. The British also viewed Irish compliance with the terms of the Treaty as a moral obligation.

The enactment by the British Parliament of the Statute of Westminster in 1931 changed the legal framework as understood by the British. The Statute was designed to increase the legislative autonomy of all the dominions. In contrast with certain of the other dominions, the Statute did not specifically place any reservation on this power as exerciseable by the Free State, and thus granted it the power to alter Irish law in any way it chose. The new government under Éamon de Valera soon used this new freedom to enact the Constitution (Removal of Oath) Act 1933. Besides abolishing the Oath of Allegiance, a requirement of the Anglo-Irish Treaty, the Act also expressly repealed the provisions both of the constitution proper and of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 that required compliance with the Treaty. Subsequent legislation soon began to dismantle other constitutional provisions that had been required or limited by the Treaty's terms.