Friday 23 February 2018

Dev's gang of five and how the first draft was written in record time

De Valera's civil servants drafted his vision for Ireland, says Dr Dermot Keogh

When Eamon de Valera and Fianna Fail took office in early 1932 as a minority government, they had an ambitious plan for constitutional and social reform. The party that had just come to power, founded only in 1926, viewed the 1922 constitution as an 'imposed' document.

Quite unfairly, it may be argued, the party presented the Irish Free State Constitution as essentially the work of the British and of Irishmen who had been compliant to the wishes of their former political masters.

Much of the republican political rhetoric of the late 1920s was unfair and inaccurate.

The 1922 Constitution was a document of considerable worth and enduring quality. But, for De Valera and Fianna Fail, the document had been imposed and had not been willingly or voluntarily accepted by the Irish people as 'their' Constitution. Most specifically, the republican followers of De Valera singled out the 'Oath of Allegiance' as being most offensive.

It formed part of Article 17 of the Free State Constitution and Irish senators and TDs were obliged to take it.

When De Valera and Fianna Fail TDs entered the Dail after the general election in June 1927, they did so in circumstances in which they fudged taking the oath, aided by the Cosgrave government But that symbol of subservience had to go, and go it did as one of the earliest government actions in May 1932.

De Valera followed up that action by further amending the Constitution to abolish appeals to the Privy Council in November 1933. He abolished the Senate in May 1936. The office of Governor General went formally at the end of 1936, having reduced that office to the periphery, if not obscurity, since 1932.

All but one reference to the king were removed from the constitution by the External Relations Act in December 1936.

Even if De Valera had stopped there, his actions had radically weakened the constitutional links with Britain. But the decision to replace the Free State Constitution, a manoeuvre he had achieved in the plebiscite of July 1, 1937, certainly deserved to be called an 'Irish constitutional revolution' – the title of an essay I wrote in 1988.

It seems that De Valera had no programme to introduce a new Constitution when he first came into office. His priority was the radical reform of the fatally flawed – as he saw it – Free State Constitution. That experience had, by May 1935, convinced him that the existing Constitution should be replaced.

De Valera had assembled a hand-chosen group of senior civil servants to oversee the amendment process. They were, principally, John Hearne, legal secretary, Department of External Affairs; Philip O'Donoghue, legal assistant to the attorney general and lifelong friend of Hearne; Michael McDunphy, office of the President of the Executive Council; Stephen Ambrose Roche, secretary, Department of Justice; and Maurice Moynihan, office of the President.

Maurice Moynihan described De Valera as having been the main architect who inspired, dictated and supervised (the drafting process) at every stage. It is true that De Valera was very active and did review each draft, as his hand-written minutes confirm. But Hearne, a barrister and a former seminarian, did play the lead role, much of his work being done at his home.

From the outset of De Valera's constitutional review in 1932, Hearne – who had worked on the draft bills reforming the old constitution – pointed out the argument in favour of a new document. De Valera gave Hearne the task of setting the process in motion, doing – it is believed – much of the work at his desk at his home in Dublin.

It fell to Hearne, in particular, the task of composing a first draft of a new Constitution in 1935 and of carrying the project through to completion by May 1937.

Moynihan, who was one of the State's most distinguished civil servants, was too self-effacing in his comments when describing his own role in the process.

It was a feature of that generation of Irish civil servants that they did their work behind the scenes and took personal satisfaction in knowing that the work had been well done – leaving praise to fall to government ministers and the Taoiseach.

It is worth emphasising that the Irish Constitution was drafted in less than favourable or propitious circumstances.

The mid-1930s was a period of high tension in Europe: the triumph of Nazism and the Nuremberg anti-Semitic laws; the onward march of Mussolini and the invasion of Ethiopia; the rise of dictatorships in Catholic countries like Austria, Poland, Portugal and Spain, where, in the latter case, civil war had broken out in July 1936.

Hearne and Moynihan, to cite but two of the personalities involved in drafting the Constitution, were not influenced by the fashionable Catholic authoritarianism in the Portuguese constitution.

The Weimar constitution was of more relevance to them, coming as they did from the Daniel O'Connell and Parnellite parliamentary traditions.

Both men had witnessed the horrors of World War One, and the conflict of competing empires. Moynihan had lost his eldest brother in that conflict.

It is not surprising, therefore, that the draft Constitution in their hands would be rooted in the parliamentary democratic tradition and strongly protective of the rights of each and every citizen.

This State owes those anonymous civil servants a great debt of gratitude.

Irish Independent Supplement

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