VIII
FUNCTIONAL COUNCILS
It is the duty of a Constitution, not merely to provide for the present, but to leave itself lissom and flexible for the development of the future. If those developments can in any way be foreseen, it is its duty further, to indicate them by allowing specifically for them, without of necessity pledging the future to them. How far these indications may profitably be carried is a question not so easy to answer. Times differ. Constitutions made at a time of fixed social and political ideas, are necessarily fixed in their provisions. Constitutions made at a time, such as the present, when social and political ideas are rapidly shifting and changing must needs indicate the likelihood of change in certain directions; and make allowance for such changes. It is therefore striking to notice that in nearly every Constitution made during and since the Great War such indications are scattered freely. And from that fact alone the historian of the future could tell with assurance that these were years of rapidly changing conceptions.
We in Ireland cannot but have a share in these changes. Fortunately for us, heirs of an ancient tradition, in looking forward we look backward, and in looking backward we look forward. We may, and often do, use phrases identical with those used by other nations; but in many cases it will be found by the thoughtful student that what to them is often social theory, to us is a slumbering historic memory. Very frequently this will be found to be the case.
An indication of this kind, that looks both forward and backward, is to be found in Article 44 of our Constitution. This article has aroused considerable interest. It reads: —
“The Oireachtas may provide for the establishment of Functional or Vocational Councils representing branches of the social and economic life of the Nation. A law establishing any such Council shall determine its powers, rights and duties, and its relation to the government of the Irish Free State.”
As a matter of curious interest it happens that the German Constitution contains an article very similar to this; but the conception had been in development in Ireland for some years. It had, indeed (as I endeavoured to shew in a little book on The Gaelic State, published in 1917), been a slumbering memory of the Irish Nation during the centuries when the characteristic political conceptions of the people were frustrate and idle, as they may now be put into practical development. It had been worked out in practical detail for one of our largest and most important industries in the Report on Sea Fisheries of the Commission of Inquiry, published in 1921. And it had actually, though imperfectly, been in operation for another great industry since 1896 in the Council of Agriculture.
What, then, are these Functional (or Vocational or Occupational) Councils for which provision is made, and on what political or social conception do they rest? One need not travel outside the present draft Constitution to discover the need for them. For in this Constitution, as in most constitutions, the people are, outside this one Article, considered in only two of the three relations that go to make up their lives, and which therefore constitute the complete life of the Nation. All the persons of the State are considered either as individuals or as citizens. But these two descriptions do not exhaust their lives. In addition to being individuals and citizens they are also workers in some craft, industry, trade or profession. Indeed, it is seldom they have time to be individuals, and it is seldom they are reminded that they are citizens. For good or for ill, these are only occasional parts of their lives. But they are never permitted to forget the parts they are required to play in the social and economic life of the Nation.
The Constitution establishes their rights as individuals putting these rights beyond the reach of interference either of those who make or those who execute the law. It also establishes their rights as citizens, certifies the manner of their action as citizens, and derives all authority in the State from those rights and actions. But these are only the lesser, however supremely important, parts of our lives. The greater part of our days is, for each of us, packed with the thoughts are cares of our functional lives. We are more frequently, in the intake and output of our lives, blacksmiths or architects, or whatever else, than we are individuals or citizens. Have we not rights and duties there too, both for ourselves and to the Nation; and should not the Constitution make provision for this, the larger part of our lives, as well as for the lesser parts? Can provision be said to have been completely made either for our own lives or for the interplay that constitutes the life of the Nation if this aspect be neglected?
We are faced at once with a difficulty. Seeing that we have the experience of it, it is easy to perceive how we can be represented in the State as citizens. How can we be represented in the State in respect of our functions? To answer this question one may turn to an instance that lives before us, an example from elder days when such an order of society was familiar. For in old Ireland (as in other nations) guilds were a recognised form of the industrial life of the nation. They were also, though not known by that name, a recognised form of the professional life of the Nation. And as a relic of those times we have to-day what is in effect a guild of Lawyers. The lawyers of Ireland, for example, are organised as a whole, with a Council representative of the profession as a whole. That Council, representative of all who practice as lawyers, is a responsible body, not only to the lawyers who are represented in it, but to and in the State on behalf of the legal profession. It is responsible for the honour and good conduct of lawyers. It is responsible for the economic maintenance of its constituents. No lawyer is allowed to practice except by consent of the Legal Council – that is to say, except by the consent of all other lawyers. The legal profession as a whole – in the legal sense, as a Person – protects its own honour, protects the individual lawyer, protects the public interest (in theory, at least), and requires a guarantee of efficiency and rectitude from every lawyer before he is allowed to practice his profession.
So it was in ancient Ireland. At that time, when the Assembly of the Nation met, the lawyers, or ‘brehons,’ met in a Council of their own. The administrative heads of each unit of local government met in a Council of their own. The Recorders, or Seanchaidhe, of the local petty states, met in a Council of their own. And each Council was responsible for the administration of its own concerns. Each Council drew up its own regulations, for the conduct of it own duties in the State, and for the protection of its own ‘functional’ rights. Each Council, in the modern legal phrase, was a responsible ‘Person,’ and was by the State, as it existed at that time, entrusted with the conduct and administration of its own affairs, subject to the general execution of the public interest.
It lay with the Assembly of the Nation to co-ordinate the whole in the public interest. Whether this was or was not done effectively in olden times is indifferent to the present problem of Functional Councils in the modern State, with its better organisation and more perfect national sense. The problem of organisation is very real, but it does not affect the necessity of functional representation and functional responsibility in the State. It is, for example, absurd that persons unfamiliar with architectural problems, however highly placed in the nation they may be, should be entrusted with architectural decisions that require special training and knowledge. It is equally absurd that a person unfamiliar with the needs of the Fishing Industry should, because for political reasons he should happen to be chosen as Minister of Fisheries, make proposals and be responsible for decisions that affect the present livelihood of fishermen and the successful future of the Fishing Industry. These matters must be reposed in the care of representative Functional (Occupational or Vocational) Councils, that should be required to render account, on the one hand, to the Function which they represent, and, on the other hand, to the State on behalf of that Function.
When such an organisation of the social and economic life of the Nation has been achieved, then, and only then, will it be possible to say that all parts of the life of the Nation have been brought within the reach and authority of the Constitution. It may be objected that these matters lie in the future. That is true. The Constitution allows for them, and by allowing for them indicates that they should be, and probably will be, the natural development of the future of the Irish Nation.
Draft Constitution of the Irish Free State
PRELIMINARY
These presents shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Schedule hereto annexed (hereinafter referred to as “the Scheduled Treaty”) which are hereby given the force of law, and if any provision of this Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.
SECTION I. – FUNDAMENTAL RIGHTS
Article 1.
The Irish Free State/Saorstat Eireann is a co-equal member of the Community of Nations forming the British Commonwealth of Nations.
Article 2.
All powers of government and all authority legislative, executive, and judicial, are derived from the people and the same shall be exercised in the Irish Free State/Saorstat Eireann through the organisations established by or under, and in accord with, this Constitution.
Article 3.
Every person domiciled in the Irish Free State/Saorstat Eireann at the time of the coming into operation of this Constitution who was born in Ireland or either of whose parents was born in Ireland or who has been so domiciled in the area of the jurisdiction of the Irish Free State/Saorstat Eireann for not less than seven years is a citizen of the Irish Free State/Saorstat Eireann and shall within the limits of the Irish Free State/Saorstat Eireann enjoy the privileges and be subject to the obligations of such citizenship, provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State/Saorstat Eireann shall be determined by law. Men and women have equal rights as citizens.
Article 4.
The National language of the Irish Free State/Saorstat Eireann is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament/Oireachtas for districts or areas in which only one language is in use.
Article 5.
No title of honour in respect of any services rendered in or in relation to the Irish Free State/Saorstat Eireann may be conferred on any citizen of the Irish Free State/Saorstat Eireann except with the approval or upon the advice of the Executive Council of the State.
Article 6.
The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint made by or on behalf of any person that he is being unlawfully detained, the High Court/Ard Chuirt and any and every judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay and to certify in writing as to the cause of the detention and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law.
Article 7.
The dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law.
Article 8.
Freedom of conscience and the free profession and practice of religion are inviolable rights of every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status, or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school, or make any discrimination as respects State aid between schools under the management of different religious denominations, or divert from any religious denomination or any educational institution any of its property except for the purpose of roads, railways, lighting, water or drainage works or other works of public utility, and on payment of compensation.
Article 9.
The right of free expression of opinion as well as the right to assemble peaceably and without arms, and to form associations or unions is guaranteed for purposes not opposed to public morality. Laws regulating the manner in which the right of forming associations and the right of free assembly may be exercised shall contain no political, religious or class distinction.
Article 10.
All citizens of the Irish Free State/Saorstat Eireann have the right to free elementary education.
Article 11.
The rights of the State in and to natural resources, the use of which is of national importance, shall not be alienated. Their exploitation by private individuals or associations shall be permitted only under State supervision and in accordance with conditions and regulations approved by legislation.
SECTION II. – LEGISLATIVE PROVISIONS
A. – The Legislature
Article 12.
A Legislature is hereby created to be known as Parliament/Oireachtas of the Irish Free State/Saorstat Eireann. It shall consist of the King and two Houses: the Chamber of Deputies/Dail Eireann and the Senate/Seanad Eireann. The power of making laws for the peace, order and good government of the Irish Free State/Saorstat Eireann is vested in the Parliament/Oireachtas.
Article 13.
The Parliament/Oireachtas shall sit in or near the city of Dublin or in such other place as from time to time it may determine.
Article 14.
All citizens of the Irish Free State/Saorstat Eireann without distinction of sex who have reached the age of twenty-one years and who comply with the provisions of the prevailing electoral laws, shall have the right to vote for members of the Chamber of Deputies/Dail Eireann, and to take part in the Referendum or Initiative. All citizens of the Irish Free State/Saorstat Eireann without distinction of sex who have reached the age of thirty years and who comply with the provisions of the prevailing electoral laws, shall have the right to vote for members of the Senate/Seanad Eireann. No voter may exercise more than one vote and the voting shall be by secret ballot. The mode and place of exercising this right shall be determined by law.
Article 15.
Every citizen who has reached the age of twenty-one years and who is not placed under disability or incapacity by the Constitution or by law shall be eligible to become a member of the Chamber of Deputies/Dail Eireann.
Article 16.
No person may be at the same time a member both of the Chamber/Dail Eireann and of the Senate/Seanad Eireann.
Article 17.
The oath to be taken by Members of Parliament/Oireachtas shall be in the following form: —
I ......... do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H.M. King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.
Such oath shall be taken and subscribed by every member of the Parliament/Oireachtas before taking his seat therein before the Representative of the Crown or some person authorised by him.
Article 18.
Every member of the Parliament/Oireachtas shall, except in case of treason, felony, or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of either House, and shall not be amenable to any action or proceeding at law in respect of any utterance in either House.
Article 19.
All reports and publications of the Parliament/Oireachtas or of either House thereof shall be privileged and utterances made in either House wherever published shall be privileged.
Article 20.
Each House shall make its own rules and Standing Orders, with power to attach penalties for their infringement and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.
Article 21.
Each House shall elect its own Chairman and Deputy Chairman and shall prescribe their powers, duties, and terms of office.
Article 22.
All matters in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present other than the Chairman or presiding member, who shall have and exercise a casting vote in the case of an equality of votes. The number of members necessary to constitute a meeting of either House for the exercise of its powers shall be determined by its Standing Orders.
Article 23.
The Parliament/Oireachtas shall make provision for the payment of its members and may in addition provide them with free travelling facilities in any part of Ireland.
Article 24.
The Parliament/Oireachtas shall hold at least one session each year. The Parliament/Oireachtas shall be summoned and dissolved by the Representative of the Crown in the name of the King and subject as aforesaid the Chamber/Dail Eireann shall fix the date of re-assembly of the Parliament/Oireachtas and the date of the conclusion of the session of each House provided that the sessions of the Senate/Seanad Eireann shall not be concluded without its own consent.
Article 25.
Sittings of each House of the Parliament/Oireachtas shall be public. In cases of special emergency either House may hold a private sitting with the assent of two-thirds of the members present.
SECTION II. – LEGISLATIVE PROVISIONS
B. – The Chamber of Deputies/Dail Eireann
Article 26.
The Chamber/Dail Eireann shall be composed of members who represent constituencies determined by law. The number of members shall be fixed from time to time by the Parliament/Oireachtas, but the total number of members of the Chamber/Dail Eireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population: Provided that the proportion between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as possible, be identical throughout the country. The members shall be elected upon principles of Proportional Representation. The Parliament/Oireachtas shall revise the constituencies at least once in every ten years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of the Chamber/Dail Eireann sitting when such revision is made.
Article 27.
At a General Election for the Chamber/Dail Eireann the polls shall be held on the same day throughout the country, and that day shall be a day not later than thirty days after the date of the dissolution and shall be proclaimed a public holiday. The Chamber/Dail Eireann shall meet within one month of such day, and shall unless earlier dissolved continue for four years from the date of its first meeting, and not longer. The Chamber/Dail Eireann may not at any time be dissolved except on the advice of the Executive Council.
Article 28.
In case of death, resignation or disqualification of a member of the Chamber/Dail Eireann, the vacancy shall be filled by election in manner to be determined by law.
SECTION II. – LEGISLATIVE PROVISIONS
C. – The Senate/Seanad Eireann
Article 29.
The Senate/Seanad Eireann shall be composed of citizens who have done honour to the Nation by reason of useful public service or who, because of special qualifications or attainments, represent important aspects of the Nation’s life.
Article 30.
Every University in the Irish Free State/Saorstat Eireann shall be entitled to elect two representatives to the Senate/Seanad Eireann. The number of Senators, exclusive of the University members, shall be fifty-six. A citizen to be eligible for membership of the Senate/Seanad must be a person eligible to become a member of the Chamber/Dail Eireann, and must have reached the age of thirty-five years. Subject to any provision for the constitution of the first Senate/Seanad the term of office of a member of the Senate/Seanad shall be twelve years.
Article 31.
One-fourth of the members of the Senate/Seanad Eireann exclusive of the University members shall be elected every three years from a panel constituted as hereinafter mentioned at an election at which the Irish Free State/Saorstat Eireann shall form one electoral area and the elections shall be held on principles of Proportional Representation. One member shall be elected by each University entitled to representation in the Senate/Seanad every six years.
Article 32.
Before each election of members of the Senate/Seanad Eireann (other than University members) a panel shall be formed consisting of: —
(a) Three times as many qualified persons as there are members to be elected of whom two-thirds shall be nominated by the Chamber/Dail Eireann voting according to principles of Proportional Representation and one-third shall be nominated by the Senate/Seanad Eireann voting according to principles of Proportional Representation; and
(b) Such persons who have at any time been members of the Senate/Seanad (including members about to retire) as signify by notice in writing addressed to the President of the Executive Council their desire to be included in the panel.
The method of proposal and selection for nomination shall be decided by the Chamber/Dail and Senate/Seanad respectively, with special reference to the necessity for arranging for the representation of important interests and institutions in the country; Provided that each proposal shall be in writing and shall state the qualifications of the person proposed. As soon as the panel has been formed a list of the names of the members of the panel arranged in alphabetical order with their qualifications shall be published.
Article 33.
In the case of the death, resignation or disqualification of a member of the Senate/Seanad Eireann (other than a University member) his place shall be filled by a vote of the Senate/Seanad. Any Senator so chosen shall retire from office at the conclusion of the three years period then running and the vacancy or vacancies thus created shall be additional to the places to be filled under Article 31. The term of office of the members chosen at the election after the first fourteen elected shall conclude at the end of the period or periods at which the Senator or Senators by whose death or withdrawal the vacancy or vacancies was or were originally created would be due to retire; Provided that the fifteenth member shall be deemed to have filled the vacancy first created in order of time and so on.
In case of the death, resignation or disqualification of a University member of the Senate/Seanad, the University by which he was elected shall elect a person to fill his place, and the member so elected shall hold office so long as the member in whose place he was elected would have held office.
SECTION II. – LEGISLATIVE PROVISIONS
D. – Legislation
Article 34.
The Chamber/Dail Eireann shall in relation to the subject matter of money bills as hereinafter defined have legislative authority exclusive of the Senate/Seanad Eireann.
A money Bill means a Bill which contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on public moneys or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; subordinate matters incidental to those subjects or any of them. In this definition the expressions “taxation,” “public money” and “loan” respectively do not include any taxation, money or loan raised by local authorities or bodies for local purposes.
The Chairman of the Chamber/Dail shall certify any bill which in his opinion is a money bill to be a money bill, but, if within three days after a Bill has been passed by the Chamber/Dail, two-fifths of the members of either House by notice in writing addressed to the Chairman of the House of which they are members so require, the question whether the Bill is or is not a money bill shall be referred to a Committee of Privileges consisting of three members elected by each House with a Chairman who shall be the senior judge of the Supreme Court able and willing to act and who, in the case of an equality of votes, but not otherwise, shall be entitled to vote. The decision of the Committee on the question shall be final and conclusive.
Article 35.
The Chamber/Dail Eireann shall as soon as possible after the commencement of each financial year consider the Budget of receipts and expenditure of the Irish Free State/Saorstat Eireann for that year, and, save in so far as may be provided by specific enactment in each case, the legislation required to give effect to the Budget of each year shall be enacted within that year.
Article 36.
Money shall not be appropriated by vote, resolution or law, unless the purpose of the appropriation has in the same session been recommended by a message from the Representative of the Crown acting on the advice of the Executive Council.
Article 37.
Every Bill initiated in and passed by the Chamber/Dail Eireann shall be sent to the Senate/Seanad Eireann and may, unless it be a Money Bill, be amended in the Senate/Seanad Eireann and the Chamber/Dail Eireann shall consider any such amendment; but a Bill passed by the Chamber/Dail Eireann and considered by the Senate/Seanad Eireann shall, not later than two hundred and seventy days after it shall have been first sent to the Senate/Seanad, or such longer period as may be agreed upon by the two Houses, be deemed to be passed by both Houses in its form as last passed by the Chamber/Dail; Provided that any Money Bill shall be sent to the Senate/Seanad for its recommendations and at a period not longer than fourteen days after it shall have been sent to the Senate/Seanad, it shall be returned to the Chamber/Dail which may pass it, accepting or rejecting all or any of the recommendations of the Senate/Seanad, and as so passed shall be deemed to have been passed by both Houses. When a Bill other than a Money Bill has been sent to the Senate/Seanad a Joint Sitting of the Members of both Houses may on a resolution passed by the Senate/Seanad be convened for the purpose of debating, but not of voting upon, the proposals of the Bill or any amendment of the same.
Article 38.
A Bill may be initiated in the Senate/Seanad Eireann and if passed by the Senate/Seanad shall be introduced into the Chamber/Dail Eireann. If amended by the Chamber/Dail the Bill shall be considered as a Bill initiated in the Chamber/Dail. If rejected by the Chamber/Dail it shall not be introduced again in the same session, but the Chamber/Dail may reconsider it on its own motion.
Article 39.
A Bill passed by either House and accepted by the other House shall be deemed to be passed by both Houses.
Article 40.
So soon as any Bill shall have been passed or deemed to have been passed by both Houses, the Executive Council shall present the same to the Representative of the Crown for the signification by him, in the King’s name, of the King’s assent, and such representative may withhold the King’s assent or reserve the Bill for the signification of the King’s pleasure; Provided that the Representative of the Crown shall in the withholding of such assent to or reservation of any Bill, act in accordance with the law, practice, and constitutional usage governing the like withholding of assent or reservation in the Dominion of Canada.