How did the separation of powers inform, evolve under and influence the Irish Free State Constitution

The purpose of this thesis is to consider whether the doctrine of the separation of powers was incorporated into the Irish Free State Constitution (“Constitution”) and if it was so incorporated, to consider the nature of the oversight functions as between the three elements of the doctrine. Finally, the thesis considers whether the separation of powers had any bearing on its successor as well as the possible lasting impact of the doctrine in Irish law. There has been no full and detailed scholarly analysis of the doctrine under the Constitution, this thesis aims to address this academic chasm.

The research question for the work is how did the separation of powers inform, evolve under and influence the Irish Free State Constitution? To address this question, the research for the thesis involves a detailed consideration of both relevant primary and secondary sources. The methodology employed is a hybrid of both legal and historical research.

The thesis commences with a historical and international consideration of the doctrine followed by a review of the position of the doctrine in England and Ireland, leading up to the enactment of the Constitution. The thesis then considers each element, executive, legislative and judicial in turn, the oversight powers assigned to each and the powers which the other elements enjoyed over the other. There is a detailed analysis of certain concepts and doctrines, such as the fractious relationship between the doctrine and the administrative state, its relationship with the fusion of the executive and legislature, aspects such as delegated legislation and Henry VIII clauses, the role of extern ministers, procedures for amending the Constitution and judicial review. The thesis considers the evolution of the doctrine through the most relevant case law over the fifteen year history of the Irish Free State. The final aspect of the work examines whether the doctrine under the Constitution had an effect on its successor and the significance of any such effect.

The thesis concludes that while the doctrine was clearly incorporated into the Constitution, there was no real consideration of the nature of the doctrine which would be incorporated or a structured approach to the operation of each power assigned to each element of the doctrine. The reason for this ad hoc approach to the doctrine is unclear however, it may have been due to the fact of the obvious importance of the doctrine, it was not felt necessary to conduct such an analysis. The thesis also concludes that the nature of the doctrine incorporated was closer to a functionalist approach, rather than the strict formalist approach. Finally, the thesis concludes that the importance of the doctrine can be judged by its continued relevance under the present constitution and the continued judicial commentary on the doctrine and its importance, including its genesis from the 1922 Constitution.