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Published online by Cambridge University Press: 04 February 2015
Seán Lemass remains an enigmatic figure in the study of contemporary Ireland. He became taoiseach in 1959, after a long and successful career in the leadership of Fianna Fáil. Notwithstanding this, he is widely associated with the transformation of Irish life that began under his stewardship between 1959 and 1966. In 1966, he convened the Informal Committee on the Constitution, often considered to be the most surprising initiative of his career. While change had not occurred by the time he died in 1971, the constitution had by this time become the focus for discussion, controversy and in some cases vilification. The questions this article seeks to answer are why Lemass promoted constitutional change and what were the consequences of this decision. More generally, it will assess the nature of constitutional change in a stable democratic state that is undergoing modernisation.
1 Horgan, John, Sean Lemass: the enigmatic patriot (Dublin, 1997).Google Scholar
2 Irish Times, 30 Nov. 2011.
3 Two amendments were introduced by parliamentary vote under transitional rules in 1939 and 1941.
4 Farrell, Brian (ed.) De Valera's constitution and ours (Dublin, 1988);Google ScholarBill, Kissane, New beginnings: constitutionalism and democracy in modern Ireland (Dublin, 2011), p. 17.Google Scholar
5 McCullagh, David, The reluctant taoiseach: a biography of John A. Costello (Dublin, 2010), pp 197–231;Google ScholarBarrington, Donal, ‘The constitution and the courts’ in Litton, Frank (ed.) The constitution of Ireland 1937–1987 (Dublin, 1987), pp 110–27;Google ScholarWalsh, Brian, ‘The constitution and constitutional rights’ in Litton, , The constitution of Ireland, pp 86–109 at p. 91.Google Scholar
6 These cases include National Union of Railwaymen v. Sullivan [1947] I.R. 77 which struck down a section of the Trade Union Act 1941, O’Donovan v. Attorney General, 1961 which declared the Fianna Fáil legislation on constituencies unconstitutional, and Ryan v. Attorney General, 1965.
7 Horgan, , Sean Lemass, pp 181–2.Google Scholar
8 Lemass to Attorney General, 25 Aug. 1966 (N.A.I., DT 97/6/515); Kissane, New beginnings, p. 91.
9 Walsh cited in Horgan, Sean Lemass, p. 202; Kelly, J.M., ‘The nation and the state’ in Irish Times, 25, 26 and 27 Dec. 1967.Google Scholar
10 ‘First report of the attorney general’s Legal Committee on E.E.C. Problems’, 26 Oct. 1967 (N.A.I., DT 2002/8/282). This was an inter-departmental group and included the parliamentary draftsman, representatives of the Attorney General’s Office, and the Departments of External Affairs and Justice.
11 Notes prepared for obituary of Seán Lemass, 16 May 1971 (T.C.D., Erskine Childers papers, MS 9959/17/22); Horgan, Sean Lemass, pp 194–202, 348–57.
12 Evans, Bryce, Sean Lemass: democratic dictator (Cork, 2011), pp. 63, 149–50, 235.Google Scholar
13 Archbishop McQuaid to papal nuncio, 14 April 1956 (D.D.A., AB/6/8/XVII/678); Robert Savage, Sean Lemass (Dundalk, 1999), pp 62–78
14 Speech by Seán F. Lemass at Muintir na Tire rural week, Cavan 15 Aug. 1961 (N.A.I., DT, S. 13384K/61).
15 Catholic Herald, 28 Aug. 1964.
16 Puirséil, Niamh, The Irish Labour Party 1922–73 (Dublin, 2007), pp 213–14, 230–1;Google Scholar Fine Gael policy document, a‘Towards a just society’ (Dublin, 1965). I am grateful to Dr Ciara Meehan for a copy of this document and for discussing Declan Costello with me.
17 Lemass to Lenihan 25 Sept., 16 Nov. 1965 (N.A.I., DT 96/6/364).
18 Cited in Carty, F. X., Hold firm, (Dublin, 2007), p. 95.Google Scholar
19 Handwritten note dated 14 Feb. 1966, emphasis in the original (D.D.A., McQuaid papers, AB8/B government box 3).
20 Lenihan to Lemass, 17 Feb. 1966, reporting on his meeting with Sheehy (N.A.I., DT 96/6/364).
21 Speech by Seán F. Lemass to Fianna Fáil annual dinner, Limerick, 25 March 1966 (N.A.I., Office of the Attorney General, 2002/15/024).
22 ‘Report of the attorney general’s committee on the constitution’, Aug. 1968 (N.A.I., DT 2005/151/307). The attorney general invited a representative section of the legal profession to participate in this group.
23 I am grateful to Eunan O’Halpin for bringing the legal background of the committee members to my attention.
24 Minutes of Informal Committee on the Constitution (hereafter ‘Minutes’), third meeting, 14 Dec. 1966 (N.L.I., Ryan papers MS 6267, box 3); I am grateful to Alan Power who directed me to this important source of information on the committee.
25 I acknowledge that this is speculative but Davern was the only back-bench T.D. promoted in this minor reshuffle.
26 Minutes of first meeting, 12 Sept. 1966. The committee was also supplied with a series of background papers on key issues and some sections of these were subsequently incorporated into an original draft report. In the following discussion I will refer to the draft papers by number and title and to the ‘draft report’ to distinguish this from the final and shorter report which was published.
27 Minutes of fourth meeting, 20 Jan. 1967; minutes of seventh meeting, 18 Apr. 1967.
28 Minutes of second meeting, 12 Oct. 1966; minutes of third meeting, 14 Dec. 1966; minutes of fourth meeting, 20 Jan. 1967; minutes of fifth meeting, 27 Jan. 1967. The attorney general was invited to attend committee meetings and he did so on a number of occasions.
29 Minutes of sixth meeting, 29 Mar. 1967.
30 ‘This formulation, if I may record it, was drafted by myself; I passed it to Gerard Sweetman, who got the Committee to accept it’: Kelly, John, ‘The constitution: law and manifesto’ in Administration xxxv, no. 4 (1987), pp 208–17, at p. 217, note 3.Google Scholar
31 The original Article 3 read, ‘Pending the re-integration of the national territory, and without prejudice to the right of the parliament and government established by this constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.’
32 Informal Committee on the Constitution, Report of the committee on the constitution (Dublin, 1967), pp 5–6.
33 Minutes of sixth meeting, 29 Mar. 1967; appendix I to this meeting contains Kellya’s re-draft. In its original form Kelly redrafted article 2 and added the section that became 3.1 in the committee’s reformulation. As a consequence Kelly’s article 3 became article 3.2. It is worth comparing this suggestion with the amendment endorsed in the May 1998 referendum on articles 2 and 3.
34 Minutes of sixth meeting, 29 Mar. 1967.
35 ‘Paper no. 1: PR systemsa’; ‘Paper no. 2: election methods for single member constituencies’; minutes of tenth meeting, 19 July 1967. The Report acknowledged these differences by presenting both sides of the argument, pp 21–6.
36 O’Donovan v. the Attorney General [1961] I.R. 114.
37 Murphy, Gary, In search of the promised land (Cork, 2009), pp 208–35.Google Scholar
38 Minutes of ninth meeting, 16 May 1967; Report, pp 1–21.
39 Irish Times, 12 July 1966.
40 Minutes of eighth meeting, 2 May 1967; minutes of sixth meeting, 29 Mar. 1967; minutes of eighth meeting, 2 May 1967; Report, pp 8–12 for summary of both positions which broadly reflects the discussion in the minutes.
41 Minutes of eleventh meeting, 12 Oct. 1967; ‘Paper No. 8: proposals for a new form of Seanad’.
42 Minutes of ninth meeting, 16 May 1967. The published report did not pursue this particular position but it did recommend that the judicial process should be used where these matters were concerned: Report, pp 14–16.
43 ‘Backbencher’ column in Irish Times, 30 Dec. 1967.
44 The argument for and against votes at eighteen can be traced in the Report, pp 15–17.
45 Minutes of thirteenth meeting, 29 Nov. 1967.
46 Minutes of sixteenth meeting, 12 Dec. 1967.
47 John Horgan interview with Michael O’Kennedy, 22 June 1996 (original in possession of John Horgan).
48 Minutes of fifth meeting, 27 Jan. 1967. A number of members were absent from this initial discussion, but all were in attendance at the next meeting when the minutes were agreed without division.
49 John Horgan interview with J. C. Holloway, 2 July 1995 (original in possession of John Horgan).
50 ‘Paper no. 23: provisions relating to marriage’.
51 Paper no. 21, paragraph 1 and draft report, paragraph 214. This article constitutionalised the existing legal situation in the Irish Free State. I owe this observation to Michael Gallagher.
52 Paper no. 23; Report, p. 44.
53 Paper no. 23, p. 2.
54 Minutes of fifth meeting, 27 Jan. 1967; minutes of twelfth meeting, 15 Nov. 1967.
55 Paper no. 23, paragraph 21, p. 13; draft report, paragraphs 218–19; Report, pp. 43–6.
56 Minutes of twelfth meeting, 15 Nov. 1967.
57 Report, p. 44; John Horgan interview with Michael Kennedy, 22 June 1996 (original in possession of John Horgan).
58 ‘Paper no. 28 article 28 emergency powers’. Eoin Ryan frequently underlined liberal views expressed in the Vatican documents.
59 However, a reading of the Oireachtas reports on this issue in 1937 does not unequivocally support this stance: Dáil Éireann deb., lxvii, 1890-93 (4 June 1937).
60 ‘Paper no. 25 recognition of religions’; draft report paragraphs 226–45.
61 Minutes of twelfth meeting, 15 Nov. 1967; paper no. 25 for discussion and background detail; Report, pp 47–8.
62 Irish Press, 23 Dec. 1967; Irish Times, 15 and 23 Dec. 1967.
63 Irish Times, 26 Jan. 1968 for report of meeting of Medico Legal Society; Irish Times, 31 Jan. 1968, report of meeting of Forum Discussion Group. All the newspapers carried extensive coverage of the report and included letters from the public on various aspects of it throughout January 1968.
64 Keogh, Dermot , Jack Lynch (Dublin, 2008), p. 153.Google Scholar The Irish Press and Irish Times carried reports on 15 Dec. 1967 that the government was going to move on the P.R. issue, and Healy wrote a scathing article on the committee in the Irish Times, 16 Dec. 1967.
65 Irish Times, 15 Dec. 1967 for statement by Cardinal Conway; Irish Times, 21 Dec. 1967 for statement by Dr Cahal Daly, bishop of Ardagh and Clonmacnois; Walsh, Dick, The party: inside Fianna Fáil (Dublin, 1986).Google Scholar
66 Irish Press, 17 Feb. 1968; John Horgan interview with J. C. Holloway, 2 July 1995 (original in possession of John Horgan); interview with George Colley in Leargas March/April 1968 (N.A.I., DT 96/6/364).
67 Statement by taoiseach, 4 May 1972; minutes of first meeting, 24 May 1972 (N.A.I., DT 2003/16/533).
68 Michael O’Kennedy to taoiseach, 11 Dec. 1972 with copy of ‘resumé’ (N.A.I., DT 2003/16/533).
69 Irish Times, 6 Dec. 1971; Irish Independent, 7 Dec. 1971; Irish Times, 2 Mar. 1971; D. O’Malley’s address to the Solicitors Apprentices’ Debating Society, 25 Feb. 1972 (N.A.I., DT 2005/151/207).
70 Irish Press, 27 Nov. 1971; undated comment by Childers (N.A.I., DT 2002/8/358).
71 Lynch interview with B.B.C., 6 Dec. 1972 where he agreed that ‘we really need a new constitution’ (N.A.I., DT 2003/16/533).
72 Commission on the Status of Women, Report (Dublin, 1972).
73 Irish Theological Association to taoiseach, 24 May 1972 enclosing the report (N.A.I., DT 2005/151/207); Irish Press, 20 May 1972. Members of the working party included Seán MacBride, Mary Robinson and Enda McDonagh.
74 ‘First Report of the Attorney General’s Committee on E.E.C. Problems’, 26 Oct. 1967; John Hurley, secretary to the committee, to the taoiseach, 7 July 1971 (N.A.I., DT 2002/8/282).
75 Department of local government, ‘Amendment of the Constitution Bill, 1971 -reduction of the voting age’, 10 Oct. 1971 (N.A.I., DT 2002/8/282).
76 The research for this article was made possible by a grant from the Arts and Humanities Research Council (AH/H005013/1). I am particularly grateful to John Horgan, Gary Murphy, Rona Fitzgerald, Rob Savage, Michael Gallagher and Bill Kissane for comments on earlier drafts.
