Parliamentary History, V d . 9, p t . 1 (1990) p p . 116-128.

Challenging the British Constitution: The Irish Free State Constitution and the

External Minister A L A N J. W A R D

The C o l l q e 0 1 William and Mary

In the autumn of 1922, Dail Eiveann, thc unicamcral Parliament acting as a constituent assembly for thc ncw Irish Free State, dcbatcd and approvcd a constitution which was innovativc in several respects. Onc was its articulation of the British model of Cabinet government in constitutional law for thc first time in thc British Comrnonwcalth.’ In Britain and the other dominions, the executive power was formally vestcd in the Crown, leaving thc Cabinet, the true exccutive, to bc rcgulatcd by what A. V. Dicey callcd ‘constitutional conventions’, customs lacking the powcr of law. In Ireland, thc British model was substantially writtcn into law, but thc constitution also containcd an anomaly which contradicted that modcl, an cxccutivc with two kinds of ministcrs.2 The Dad debatcs on this provision raised a host of issucs of great constitutional importance to Britain and the Comrnonwcalth, particularly the concepts of the individual and collcctivc responsibility of ministers to Parliament, and the relationship bctwecn political parties and governments.

Before discussing thc Irish case, it might bc useful to sketch, very briefly, how thcse concepts had evolved in Britain by 1922. In the cightccnth and early nineteenth centuries, the British executive underwcnt a transformation. Where once the monarch had been an active chief exccutivc, by the mid-ninetccnth century she was a figurehead, rcquircd to act only on the advice of her ministers. Decisions of statc wcrc still undcrtakcn in hcr name, but she now had no substantial role in government and was obliged to accept the advice of her ministers. Furthermore, whcre once ministers had been the choicc of the monarch, by the mid-nineteenth century thcy were required to be the leaders of the majority party in thc House of Commons.

This transformation in the executive was accompanied by other changes in political behaviour. First, wherc ministers were once responsible to the monarch, by the mid-nineteenth ccntury they were held to be rcsponsible to

’ A. J. Ward, ‘Exporting the British Constitution: Responsible Government in New Zealand, Canada, Australia and Ireland’, The Journal of Cornnmonwealth and Comnparative Politics, XXV, (1987). 3-25.

Articles gr to 58 . The Irish Free State Constitution is printed in full in L. Kohn, The Constitution ofthe Irish Free State (1932), pp. 389-418. The articles dealing with the Cabinet are printed in B. Chubb, A Source Book ofIrish Governmetif (Dublin, 1964), pp. 83-84.

0264-2824/90$3 .OO O T h e Parliamentary History Yearbook Trust 1990

The Irish Free State Corzstitution 117

Parliament. This had two meanings, individual and collcctive responsibility. Individual responsibility meant that ministers were answerable to Parliament for the conduct of their departments, and were expected to resign if serious failings occurred. By 1922, ministers still answered to Parliament for the conduct of their departments, but the practice of individual resignations was very rare. However, the second kind of responsibility, collective responsibility, continued to be critically important to parliamentary government. By this doctrine, the government was required to resign as a group if defeated in the HOL~SC of Commons on an issue of confidence or on a major issue of policy. Without the confidence of the House it could not continue to govern.

The role of the party in government was closely tied to the doctrines of ministerid responsibility. Uecausc ministers were drawn from the majority group in the House of Commons, it became important for them to mobilize groups of supporters there. In the nineteenth century these became disciplined political parties, supported by mass party organizations in the country as a whole as the franchise was extended in the latter part of the century. Indeed, by the end of the nineteenth century, the charge was being laid that party had replaced Parliament as the central institution in the political life of the country, and that the Prime Minister and Cabinet, combining the dual roles of leaders of the majority party and government ministers, had come to control the state. The independence of ordinary Members of Parliament was disappearing as they were shepherded by their leaders either to support or attack the government of the day.

I t is against this background ‘that the story of the Irish external minister should be set, because while the Irish Free State substantially accepted the British model of government, it also sought to qualify the doctrines of ministerial responsibility and weaken the role of the parliamentary party. Simply stated, the Irish sought to weaken collective responsibility, enhance individual responsibility, and subdue party. These goals were to be achieved through the proportional representation system of elections to Dai’l Eireunn, the lower house of the proposed bi-camera1 Oiveahtas (parliament), and the appointment of a I 2-member, two-tier ministry involving two quite different concepts of responsibility. As proposed, the first tier was an executive council of between five and seven members. This council included a president (prime minister) appointed by the Governor-General on the nomination of the Dail, and other ministers appointed by the Governor-General on the nomination of the President with the assent of the Dail.-? The members of the Executive Council were, in the language of Article 54, ‘collectively responsible for all matters concerning the Departments of State administered by Members of the Executive Council’. They would resign as a group if they were to lose the Confidence of the Dad.

The second tier of the ministry also numbered between five and seven, so that the total ministry would not exceed 12. I t was composed of ministers

Articles 5 1 and 53

1 1 8 Alan J . Ward nominated not by the President but by a committee of Dail Eireann chosen so as to be ‘impartially representative of Dail Ei~eann’.~ These ministers, known popularly as external or extern ministers, were not members of the Executive Council and were individually, not collectively, responsible to the Dai’l for the conduct of their departments. They might be removed from office by a vote of the Dail but were not required to resign with the Executive Council if it lost the confidence of the Dail. Their term of office was the life of a Dail, not the life of a g ~ v e r n m e n t . ~ In the first Irish Free State ministry, appointed in December I 922, there were three external ministers, for agriculture, the postal service, and fisheries. In the second ministry, appointed after the general election of August 1923, there were four, with local government being added to the list.6

This concept of the external minister was unique in the British Commonwealth in 1922, but within five years it was abandoned. In 1927 a constitutional amendment was approved to amend the constitution in such a way that no external ministers were ever appointed again. How did the concept of an external minister come about and why was it so soon overtaken by events?

Preliminary versions of the articles dealing with the external ministers appeared in two of the three drafts of the executive provisions prepared by members of a committee appointed by the Provisional Government of the Irish Free State to draft a cons t i t~ t ion .~ Draft B, prepared by James Douglas, C. J. Francis, and Hugh Kennedy, and Draft C, prepared by James Murnaghan and Alfred O’Rahilly, both touched on the subject. Draft B was adopted by the government on 2s May 1922 as the basis of the articles submitted to Dail Eireann on 1 8 September 1 9 2 2 . ~ In both the drafting committee and the Provisional Government, however, there were serious divisions on the subject. In the committee, for example, Draft A, prepared by Darrell Figgis, James MacNeill and John O’Byrne, called for an orthodox, single-tier, cabinet with collective responsibility to Dail Eireann. The President of the Provisional Government, Arthur Griffith, agreed with this proposal but Draft B was adopted by the government over his objections, and by the time it came to be debated in the Dail he was dead.”

It was Kevin O’Higgins, the Minister for Home Affairs, who explained the external ministers proposal to Dail Eireann. In its original form, then Article

Article 5 s . The concept was introduced by James Douglas. See B. Farrell, ‘The Drafting ofthe

Article 56. Irish Free State Constitution 1’, Irish Jurist, new ser., V (1970). 1 3 1 .

‘ Kohn, Cotistitutiotr, p. 281. ’ A comprehensive account of the drafting committee and its work is provided by D. H. Akenson and J . F. Fallin, ‘The Irish Civil War and the Drafting of the Free State Constitution’, Eire-Zreland, V (1970), No. I , pp. 10-26; No. 2 , pp. 42-93; and No. 4, pp. 28-70. See also an article in four parts by B. Farrell, ‘The Drafting of the Irish Free State Constitution’. Irishjurist, new ser., V (1970). 115-140, 343-356; new ser., VI (1971), 1 1 1 - 3 5 . 345-59.

* ‘Constitution o f 1922’. State Records Office, Dublin, Files S.8953 and S. 8954A. Drafts A and B are printed in Akenson and Fallin, ‘Drafting of the Free State Constitution’, pp 57-y3. Drafts B and C are printed in Farrell, ‘Drafting of the Irish Free State Constitution’. VI, 114-35.

Ibid., File S.8953. l o Dail Eireanti, Debates, I, 486-488 (18 Sept. 1922); 123y-1249 ( 5 Oct. I ~ Z Z ) .

T h e Irish Free State Constitution 119

50 of the draft constitution, it provided for an executive council of four internal and eight external ministers. The four would sit in the Dail and the eight would not. Indeed, the eight would have to resign their seats if they were members of the Dail or the Senate, the proposed upper house, when appointed. They might appear in either house to speak on matters involving their departments, but not to vote. The Dail, on a motion of the President, might add up to three additional internal ministers to the twelve-member ministry, but this was to be ‘from time to time’, not routinely. The external ministers would be individually responsible to the Dail and would not be required to resign should the ministry lose the confidence of the Dait, but the internal ministers, the Executive Council, would be collectively responsible to the Dail. O’Higgins insisted, ‘We never contemplated that one man of the group could be picked out and assailed and that the others would not go down with him. . . . That group must be a group representing the broad lines of policy, and it must stand together’.”

In the context of British constitutional history, this was an extraordinary proposal. In normal circumstances, it said, a majority of the ministry would not be members of parliament, and would owe their appointment not to the Prime Minister but to the Dail.12 O’Higgins recognized that it was ‘a proposal that strikes our minds which have been so much turned upon the British system of politics strangely’. But he insisted that it had merit. lD

The proposal originated in the government’s belief that elections by proportional representation would produce a Dail in which parties would be less dominant. ‘The intention of the whole scheme’, O’Higgins declared, ‘is to forestall the party system of government’. l4 Proportional representation was introduced into the constitution to implement the pledge which Arthur Griffith made to Britain and the southern Unionists during the Anglo-Irish Treaty discussions, that minorities would be safeguarded in the Free State. l 5

However, the government believed it would have the incidental, and beneficial, effect of weakening traditional party organization. As O’Higgins observed in the Dail:16

Under Proportional Representation you will have not so many great solid parties like in England, which make the party system a fairly good working arrangement, but you will have rather a lot of groups in this Bail not bound together particularly, but voting independently on the diffcrcnt issues that may arise.

A Dail with ‘a lot of groups’ would not be one which two or three great parties would control, and this fact made it possible for the Free State to experiment with two kinds of ministers. As O’Higgins explained it, the ministry might be composed of a small group of ministers ‘who would be responsible to the Dail for all the broader matters of policy on which the Government would stand or

” Ibid., 1590 (12 Oct. 1922). l 3 Zbid., 485 (20 Sept. I Y Z Z ) .

l 5 Ibid., 355 ( I S Sept. 1922).

I * Zbid., 1239-40 ( 5 Oct. 1922)

l 4 Ibid. , 1246 ( 3 Oct. 1922).

Zbid., 1242-3 ( 5 Oct. 1922).

I 2 0 Alan /. Ward fall, and outside that, Ministers or Heads of Departments, who, as long as they ran their own particular Departments efficiently, and in a manner to hold the approval of the Dail, would not go out in the event of a Government defeat’.I7 He added:18

It is important that a t the launching of a young State that a Minister should be able to bring forward proposals here and have them freely discussed by the Dai‘l without feeling that their rejection would endanger his whole Ministry and his whole administration, and endanger the President, and the policy that the President stood for.

The government’s proposal presumed that there were two categories of government business. The first included fundamental issues of policy which, were they to be rejected by the Dad, would lead to the resignation of the government. The second category included less critical, non-controversial or technical issues which need not be treated as issues of confidence. For the latter, the Dad would be free to select the most capable person for the position, a skilled administrator or technician, without reference to his or her political qualifications. Thc Dail would also be free to reject items of an external minister’s policies without risking the resignation of either the minister or the government as a whole, and the minister would not be obliged to agree with every aspect of the governments’ policies. Said O’Higgins, ‘Why lose your best servant because he does not agree with you on matters outside the scope of his work?”” In effect, the dual ministry would enable Ireland to adopt the principle of individual responsibility and, in the words of Deputy Thomas J. O’Connell, ‘get away from the pernicious doctrine of collective responsibility in the Ministry’. ’() Furthermore, the proposal that external ministers would not sit in parliament would insulate them from political pressures and the retaliation of the electorate for their policies.21

O’Higgins anticipated that the internal ministries would include finance, defence, foreign affairs and home affairs, and that the President and Vice- President would each hold a ministerial portfolio in addition to their other responsibilities. External ministries would include education, industry, trade, commerce, justice, the Post Office, local government, public health, agriculture, labour and fine arts.22 O n these matters, members of the Dail ‘would be free to vote without Party divisions and Party distinctions’.23 Indeed, the two-tier ministry, by excluding a substantial portion of the government’s work from collective responsibility, was a clear attack on the role of party in the British system. ‘It is very desirable’, O’Higgins said, ‘there should be as much freedoni as possible for the individual members of the Dail - that it should not be always a matter of Party Whips and people voting contrary to their own

Dail Eirearrtr, Debares, I 4 8 6 (20 Sept. 1()22). Ibid., 1246 ( 5 Oct. 1922). Ibid., 487 (20 Sept. 1922). Ibid., 1305 (6 Oct. 1922). Ibid., 1288 ( 5 Oct. 1922).

23 Ibid., 488 (30 Sept. 1922). ’’ Ibid., 1245.

Tlie Irish Free State Constitrrtion particular ideas and particular feelings on certain matters. ’24 The objective was to prevent the development of the English style of party system.2s

These’proposals will make the Irish Parliament what the British Parliament is not. It will make it a deliberative Assembly that will weigh carefully on their merits the measures brought before it, and solely with an eye to the results of these measures in the country . . . ’‘ If we admit the evils of the British Party system of Government, if we can see them clearly, if we admit it is wrong to have a man, almost as a matter of routine, voting against his best judgement under the crack of the Party Whip, is it not worthwhile to try to get away from that, and try to forge here a system that will enable men to remain in politics and to remain h o n ~ s t . ’ ~

The external ministers proposal had one other overt, though incidental, purpose. In Article 45, the constitution provided that the Oireachtus ‘may provide for the establishment of Functional or Vocational Councils representing branches of the social and economic life of the nation.’ I t was anticipated that the external ministers might be nominated not by the Dail but by these functional councils.’8 In the event, however, functional representation was not legislated by Parliament until the new constitution of 1937, when it formed the basis of the system of nomination to the Senate, not the ministry.2’

It has been alleged that the external minister provisions also had the covert purpose of bringing the dissident Republicans, Eamon de Valera and his followers, back into government. They had broken with the majority in the Dail on the issue of the Anglo-Irish Treaty of December 1921, and more particularly on the role of the Crown in the Irish constitution. Allowing Republicans to serve as external ministers without requiring that they have seats in the Duif would have enabled them to participate in government without swearing the oath of allegiance to the King required of all deputies in the proposed constitution. Speaking in the Daif in September, O’Higgins strongly denied that this was any part of the government’s plan.’” Party government was the issue, he insisted, not placating Republicans. This was almost certinly true in September because on 14 June, two days before elections to the first Free State Dail, Michael Collins had abandoned a pre- election pact with the Republicans and all hopes of a coalition government. Within weeks the Republicans were at war with the Provisional Government. But in April i t had been a different story. Then, constitutional committee members Kennedy, Douglas and France had argued that their ‘draft B’ would allow Republicans to serve in the ministry,3’ and in London, in late May 1922, Arthur Griffith told the British government that Republicans would join a

I21

Ibid. ’’ Ibid., 1246 ( 5 Oct. IYZZ).

’* Ibid., 1245 ( 5 Oct. 1022). ’‘’ Ibid., 1307 (6 Oct. 1 ~ 2 2 ) .

27 Ibid., 1309. 29 Articles 18 (4), 1 8 (7) arid 19 of Rirrireotli~ tra liEirrariri (Constitution of Ircland). ‘‘I Dail Eireawn, Debates, I, 487 (20 Sept. 1022). 31 University College, Dublin, P4i339 (Hugh Kennedy papers), memo. by Kennedy, Douglas

and France, 13 Apr. I ~ Z Z . and P4/307, memo. by Kennedy, n.d.

I 2 2 Alan J . Ward

Free State government as external minister^.^' The British objected that no- one should be permitted to serve without accepting the Anglo-Irish Treaty and the oath of allegiance, and this point was conceded by the Provisional Government in Article 5 5 of the final Free State constitution which required all ministers to take the oath specified in Article 17.

It is probable that the two-tier ministry in the original draft constitution was not specifically devised by the drafting committee to accommodate the Republicans, but was subsequently seen as useful to that end. This interpretation is supported by the fact that the external minister provisions were modelled on the Swiss constitution, which was very much admired by Professor Alfred O’Rahilly, a member of the drafting committee, and was studied by his colleagues. Indeed, Hugh Kennedy wrote: ‘The provisions [on the executive] in the Irish draft may be described as the Swiss system, altered and adapted to suit Irish conditions. ’33

Article 96 of the Swiss constitution provided that all seven members of the Swiss federal executive, the Federal Council, would be elected to three year terms by members of the two houses of Parliament. There was no provision for a Prime Minister who would form a ministry. Some of the language of Article 96 appears to have been borrowed for what was Article 50 in the original Free State draft constitution. The Swiss spoke of members of the Federal Council being elected ‘from among the Swiss citizens who are eligible for election to the National Council’. The Irish Article 50 spoke of ministers who shall be chosen by the Dail ‘from all citizens eligible for election to . . . Dail E i r e ~ n n ’ . ~ ~ Neither the members of the Federal Council nor the Irish external ministers were to be members of parliament, although they could attend either house of parliament for consultative purposes.

The Irish comparison with the Swiss constitution should not bc pushed too far, however. In Switzerland, all the members of the Federal Council were to be elected by parliament, but in Ireland, only the external ministers. In Switzerland all the members of the Federal Council were to be individually responsible to parliament, but in Ireland only the external ministers. The critical power in Ireland was to lie with the first tier of ministers, unknown in Switzerland, who were to be collectively responsible to the Dail. Finally, the Swiss model was designed to accommodate Swiss federalism. No more than one member of the Federal Council could be drawn from a single canton, but in Ireland, the ministry was to labour under no such restraint. These differences aside, however, the fact that the Swiss model was seriously considered in Ireland suggests that the external ministers were introduced into

’’ Curran, Birth .f the Free State, p. 194. 33 Univ. Call. Kennedy Papers, P4/307, Kennedy memo, n.d. See also Dail Eireann, Debates,

I, 1243 ( 5 Oct. 1922). Alfred O’Rahilly described the work o f the committee in an article in T h e Standard, 2 5 May 1951. See Dublin Castle, State Records Office, File S . 8 9 ~ 9 , ‘Constitution of 1922’. The Swiss model of the executive was similarly consulted when the Australian federal constitution was being drafted in 1891. See G. S. Reid and M. Forrest, Australia’s Comrnoriwealth Parliament, 1901-1988 (Melbourne, 1989), pp. 306-9.

34 Dail Eireann, Debates, I , 1303-4 (6 Oct. 1922).

The Irish Free State Constitution 1 2 3

the constitution for more than tactical reasons associated with de Valera and his supporters.

The statement on eligibility for office in the draft Article 50, which was drawn from Article 96 of the Swiss constitution, disappeared from the Free State constitution in its final form when the prohibition against members of the Dail serving as external ministers was also dropped, but the provisions on the individual responsibility of external ministers and their election by the Dail, both of which were influenced by the Swiss model, remained. However, before the provisions on external ministers were finally adopted they underwent other amendments in the Dai'l. Because of their complexity, the sections on the executive in the draft constitution were referred to a Dail committee for consideration3' and most of the changes which the committee recommended were accepted by the government. In the final draft, therefore, only the internal ministers were named to the Executive Council, which was now to be composed of not less than five and not more than seven members. It was to be collectively responsible to the Dail and was explicitly made responsible for the preparation of an annual budget. External ministers, also numbering from five to seven, so that the whole ministry would not exceed 12, were not now to be named to the Executive Council, but there was no longer any prohibition against them holding scats in the Oirearhtas.

Little has been said so far about the opposition to the two-tier executive which was voiced in Ireland. Opposition was expressed in both the constitution drafting committee and the Provisional Government in the spring of 1922. The vice-chairman of the drafting committee, Darrell Figgis, was particularly hostile. He insisted that the external ministers would not be able to act independently, as the Provisional Government hoped, because they would inevitably come under the control of the internal ministers.'" He wrote in the Irish I n d e ~ e n d e n t : ~ ~

Ultimately the temptation will always be present to these . . . internal Ministers to get subservient persons nominated to the positions to be held by the . . . external Ministers. They themselves will have come to power by a majority of the Chamber. O f that majority they will be the acknowledged leaders; and it would be strange if they did not use that majority to find . . . external Ministers to their liking.

When the President of the Provisional Government, Arthur Griffith, saw Draft B of the constitution committee, he pencilled against the external minister provisions, 'impossible', and 'against all pre~edent ' .~ '

By the time of the Dad debate on the constitution in September and October, 1922, Griffith was dead, but Figgis and others continued the attack.

35 Ihid., 1349-50. 36 State R.O. , 'Constitution of ryzz', File S.8953, Darrell Figgis to Michael Collins, 13 Apr.

37 Repr. in D. Figgis, The Irish Constitutiorr, (Dublin, ~yzz), p. 41. 38 State K.O., 'Constitution of rgzz', File S . 8 9 5 3 .

1922.

124 Alan J . Ward

Their most powerful argument was that the concept of external ministers individually responsible to parliament defied the essential character of cabinet government. As Mr Milroy put it?

Now the argument has been put forward that we are on the verge of becoming a victim of the party system in politics, and we should try to avoid that. Well, I see no indication in this Dail or outside of it that there is going to be any cessation of party organization in the near future. But I believe that all parties will endeavour to get a majority in this Dad in order to become the responsible heads of authority in this Dail.

Deputy J. Burke added, ‘We all know very well that the Dail is controlled by a majority, and that majority is controlled by the Mini~t ry’ .~”

This warning was ignored and the Dail adopted the new constitution in October. There followed an election and the appointment of the first ministry under the new constitution, led by William Cosgrave, who decided that there should be three external ministries, agriculture, postal services and f i~heries .~’ Three ministers were elected by the Dail with little controversy, but quite quickly, several problems emerged in the operation of the system. The first was that there was no consensus on which departments were best suited to have external ministers. In September 1923, for example, after the formation of the second ministry under the new constitution, President Cosgrave decided that education should be an internal ministry,42 but Deputy T. J. O’Connell insisted that this unnecessarily politicized education, which should have been. ‘dealt with and kept as far as possible from politics or political concerns’.43 He insisted that the Minister of Education should involve every party in his plans, adding:44

He cannot do that if he is a member of the Executive Council, because it would mean if the proposal that he brings forward happens to be defeated, and happens not to meet with the wishes of the Dail, it is immediately a question of policy, and as the Minister is a member of the Executive Council, the Council stands or falls, the Government stands or falls, on this educational proposal.

Agriculture was another controversial ministry. Deputy R. Wilson, of the Farmers’ Party, argued that agriculture was so important to a country in which five sixths of the working population was engaged in agriculture or related activities that its minister should be in the Executive Council. The Minister for Industry and Commerce was in, so why not the Minister for Agriculture? The President of the Executive Council, William Cosgrave, disagreed, and in his reply proved Deputy O’Connell’s point by betraying unwittingly the inherent impracticality of the two-tier ministry. ‘With the exception possibly of two or three Ministries’, he said, ‘the selection of the Executive Council is not a

’’ Dad Eireann, Debates, I , 1267 ( 5 Oct. iyzz). *’ Ibid., 294 (6 Oct. 1922). 42 Ibid.

4’ Kohn, Constitution, p. 2 8 1 .

44 Ibid. Dail Eireann, Debates, V, 45 (20 Sept. 1923).

The Irish Free State Constitution 1 2 5

matter of particular Ministries, but the inclusion of certain persons.’4s This destroyed an cssential prcmise of thc two-tier ministry, that there were two kinds of ministry, those inhcrently suitcd to be either in or out of the Executive Council. Now Cosgrave was arguing that if a particularly important politican had to be in the Executivc Council but was best suitcd to administer a ‘technical’ departmcnt, that department would find itself in the inner council of govcrnment. Thcrc collectivc responsibility would operate, supported by party discipline, and deputies would be denied the right to exercise indcpcndent judgment, as the constitution had cnvisaged. Thc Minister of Education in question in this debate was Eoin MacNcill, one of the giants of Irish nationalism with particular expcrtise in the field of education. He could not be left outside the Executive Council, and education therefore found its way into the first ticr not neccssarily because of its inherent importancc but because of the character of its minister.

Presidcnt Cosgrave’s speech also illustratcd how dubious was the proposition that somc issues, and hence somc ministries, arc above politics. What some rcgard as non-political, others see as nothing but. For example, Deputy O’Connell insisted that education should bc non-partisan, but Cosgrave insisted that it was so vital to the reconstruction of thc nation, and indeed to the ‘Gaelicisation . . . of our whole culture’, that thc Executive Council should be held collectively responsiblc for the policics of the Minister.46

A second problem which soon bccame evident in the operation of the two- tier ministry was that the selection procedurcs for external ministers could not be non-partisan. It was anticipated in thc constitution debate that the Dail would select thc best qualified candidates for cxtcrnal ministries, quite independent of party consideration. It was also anticipated that proportional representation would makc this possiblc. However, although Moss identified ten parties which won Dail scats in elections betwccn 1923 and 1932, there wcrc only two major parties in the country, thc anti-treaty Republicans and thc pro-treaty Cumann na r~caedheal.~’ The Republicans chose not to take their seats in the Dad, and as a result, in August 1923, for example, the 44 elected Republicans were absent, leaving the 63 members of the Cumann na nCaedheal with a substantial majority in the 153-seat Dail.4x With such a majority, compliancc with the spirit of the constitution would not have harmed the govcrnment party in any serious way, but Cumann na nCaedheal immcdiately manipulated the Dai’l to secure partisan external ministers who werc party loyalists drawn not from thc cxternal community of experts but from thc Dail itself.

The constitution required a Dail committee to nominate the cxtcrnal ministers, but when thc committee reportcd, in October 1923, after thc August general clcction, opposition members disclaimed any responsibility for thc committee’s nominees, arguing that the governmcnt majority on thc

J5 Ibid., 48. 47 W. Moss, Politi(al Pavrirr in the Irish Free Stare (New York, 1 9 3 3 ) . p. 23 ‘* Dorothy Macardle, The Irish Republic (New York, ryfig), p. 982.

4h Ibid., 49.

126 A l a n j . Ward

committee had pre-selected candidates at party meetings. In the words of the Labour leader, Thomas Johnson, ‘A decision had been made and the committee was a farce’.49 And as Deputy Redmond described the process, ‘Of course, the Government, having a majority in this House, naturally had a majority upon the Committee, and, therefore, I want it to be realised that these gentlemen, strictly speaking, are Government nominees’.j’

Cumann na nGaedheal members of the committee denied that the process had been rigged,51 arguing that the opposition had simply failed to propose alternative candidates, but it is clear that the government party had prepared a slate of candidates for the committee meeting and made no attempt a t a collegial search for talented, non-partisan, administrators for each department. But could one have expected anything else? Deputy O’Mahony thought not:52

Surely all this is a pretence of piety. I wonder what would the Labour members do if they were a majority? I wonder what would the Farmers do if they were in a majority? I wonder what would the Independents do if they were in a majority? They would do exactly what they accuse the Government members of having done last week.

A third problem which became evident in the implementation of a two-tier ministry was the lack of executive coherence which the model produced. It was always nai’ve to suppose that there were some departments which were clearly political and some not; that some departments should be covered by collective responsibility and some not. It soon became evident, for example, that the ministry had to be one body with respect to finance. But the government resented the fact that it could not always secure the full co- operation of external ministers in matters affecting the government as a whole.

Notwithstanding the fact that external ministers were elected on party line votes, they did not always toe the party line once in office. In a I923 debate on external ministers, for example, President Cosgrave expressed his displeasure at the performance of the Minister of Fisheries, Mr F. Lynch, particularly on finance, and he distanced himself from the minister. The most serious disagreement of this kind came when Mr J. J. Walsh, the Minister for Posts and Telegraphs and Party Chairman of Cumann na nGaedhae2, a strong supporter of tariff protection, disagreed with the Executive Council on this‘ issue and argued publicly against government policy, something the Council would not tolerate. He finally left the government and joined Fianna Fail, the new party formed by de Valera, when it entered the Dail in 1927.j3

The several problems encountered by the external ministers led, in part, to the appointment by the Executive Council of the amendments to the constitution committee in 1 9 2 5 . ~ ~ Its report was never made public but one of

49 Dail Eireann, Debates, V, 202 (10 Oct. 1923). 51 For example, Deputy D. McCarthy in ibid., 196. 53 D. R. Gwynn, The Irbh Free State, 1gzz-igz7 (1928), pp. 45. 135-137; R . Fanning,

54 P. Fay, ‘The Amendments to the Constitution Committee, 1926’, Administration. XXVI

” l b id . . 193. 52 Ibid. , 197.

Independent Ireland (1983). p. 101.

(1978), 332-35. See also Dublin Castle, State Records Office, Files S.2696 and S. 4650.

The Irish Free State Constitutiow 127 its recommendations was a constitutional amendment to modify the external ministers provisions. The amendment permitted all 12 members of the ministry to be members of the Executive Council, in effect leaving the decision of whether there would be external ministers entirely to the discretion of the President. This was actually one of the alternatives suggested by the Provisional Government during a confusing debate on amendments to the draft Free State constitution in September 1923, but it was not pressed a t that time.55

The government brief for the amendment debate made essentially four points. First, the Executive Council, limited in 1923 to between five and seven members, was too small to accommodate all those who should be members. Second, while external ministers might be required to participate in decisions of importance to the whole government, in finance, for example, they did not share in collective responsibility for those decisions. Third, because they did not share in collective responsibility, external ministers had no incentive to co- operate with internal ministers. And fourth, the two-tier ministry denicd the President necessary flexibility in the assignment of portfolios. O'Higgins presented this case to the Dnil in November 1926'~ and the amendment was therefore approved, with very little opposition, in April 1927. From that date no further external ministers were appointed. Instead, all 12 ministers were appointed to the Executivc Council, although the possibility of an external appointment existed until the new constitution of 1937 abolished this option.

The two-tier ministry was a n interesting constitutional experiment which failed, as its proponents thought it might. O'Higgins acknowledged this in the Dail, but took comfort in thc knowledge that Article 49 of the constitution, the provision that the constitution could be amended by ordinary act of parliament for eight years, would enable the expcrimcnt to be abandoned if necessary.'x And when the weaknesses of the concept were exposcd, the government responded. It had been nai've to suppose that the work of the ministry could be divided into two categories, the partisan and the non- partisan. It had also been naive to suppose that the ministry could be divided into ministries with either individual or collective responsibility, and naive to suppose that a prime minister, who could only come to power with the support of a majority in the Dail, would not use that majority to form a cohesive ministry.

None the less, it seems clear from the record that this was a serious attempt to find an alternative to party government which so many in the revolutionary generation of inexperienced politicians found distasteful. Furthermore, this was a much more ambitious experiment with the executive than any of the other self-governing colonies or dominions in the British Commonwealth had ever dared attempt. But it was a misguided effort because it misunderstood the

" Dail Eireanri, Debates, I , 1749 (19 Oct. 1922). '" State R . O., 'Constitution (Amcnd~ncnt No. 5 ) Act, 1927'. File S.4469/5 " Dad Eiwarrti, Debates, XVII, 419-28 (16 Nov. 1926). '' f b i d . . I , 1247 ( 5 Oct. 1922).

I28 Alan /. Ward

imperatives inherent in the British model of government. Simply stated, British government is party government, and party government will inevitably produce collective responsibility to parliament, not individual responsibility. Kohn was correct, therefore, when he wrote in 1932 that the failure of the experiment with external ministers illustrated ‘the inevitability of the structural design of the British system of parliamentary government when once its fundamental framework has been a c ~ e p t e d ’ . ~ ~

59 Kohn, Constitution, p. 2 7 1 .