A nation once again?

The Government of Ireland Act 1920 is 100 years old this year and is arguably one of the most significant statutes enacted by the British in the context of Ireland. It – not the Anglo-Irish Treaty – partitioned the island.

Working with the Liberals in Westminster in the late 19^th and early 20^th centuries, the Irish Parliamentary Party advanced the cause of Home Rule.

After two failed attempts, and in an effort to finally put Home Rule on the statute books, the Liberal government introduced the Parliament Act 1911, which removed the veto exercisable by the House of Lords over legislation passed by the House of Commons.

With the aid of that act, the 1914 Government of Ireland Act finally put Home Rule on the statute books. However, due to the outbreak of World War I, Home Rule was suspended.

The political landscape between the outbreak of the war in August 1914 and the Armistice in November 1918 was unrecognisable, with the Easter Rising occurring in the interim.

Irish demands also changed. While the Irish Parliamentary Party and the majority of the population would have warmly welcomed Home Rule had it been introduced in 1914, by 1918 the Parliamentary Party had become redundant and the meteoric rise of Sinn Féin, in the December 1918 general election, brought about a new demand – the full separation of Ireland from the United Kingdom.

The Irish War of Independence commenced with the Soloheadbeg ambush on 21 January 1919, and ended with the truce on 11 July 1921. In the interval, the Government of Ireland Act 1920 was introduced and enacted.

Cabinet committee

Prior to the ending of the war, the British Government anticipated that there would be no respite on the Irish question following the war and, in April 1918, the Cabinet Committee on Ireland was established.

Walter Long was appointed its chairman. On 4 November 1918 (one week before the ending of the war), Long presented a report to the cabinet on a potential mechanism to deal with the Irish question.

While in the final stages of the Government of Ireland Bill 1912, there had been discussion on the possible partition of Ireland. However, the Government of Ireland Act 1914 was passed without any such partition. Section 76(2) of the 1920 act repealed the Government of Ireland Act 1914.

Northern Irish state

The Long Report proposed that all nine counties in Ulster be included in a new Northern Irish state on the grounds of administrative convenience, and the maintenance of what was believed to be an even balance of Catholics and Protestants within the combined nine counties. The Southern Irish state would consist of the remaining 23 counties.

Commenting on the increasing pressure for partition, political scientist John Coakley has said that “determined political pressure and threatened paramilitary resistance in Ulster, together with support from within the British Conservative Party, was sufficient to ensure that the terms of the Home Rule Act (Government of Ireland Act 1914) would have to be changed”.

The cabinet was concerned with the attitude of Ulster Unionist leaders, who sought only a sub-state that included the six north-eastern counties, so as to avoid governing three counties with large nationalist majorities.

There was a belief within the British Cabinet that there was a greater chance of acceptance of the concept of partition if the Unionists got the smaller six-county state and, by the Nationalists, the larger 26-county state – despite the recommendations of the Long Report.

The 1920 act

The Government of Ireland Act 1920 (colloquially known as the Fourth Home Rule Bill) was made up of 76 sections that addressed quite diverse issues, including: the establishment of two parliaments (north and south), the Council of Ireland, power to establish a single parliament for the island of Ireland, legislative powers, executive authority, Irish representation in the House of Commons, financial provisions, provisions as to courts of law and judges, and certain transfer provisions with regard to the administration of justice and the police authorities.

Section 5 of the act prohibited the introduction of any laws that “give a preference, privilege, or advantage, or impose any disability or disadvantage, on account of religious belief”.

Two Irish parliaments

Two Home Rule parliaments were established – one for northern Ireland, to be seated in Belfast, and the second for southern Ireland, to be seated in Dublin. The parliamentary systems were loosely based upon the Westminster bicameral system, despite the Long Report recommending unicameral parliaments.

The lower house (to be known as the House of Commons) in Belfast consisted of 52 members, and the lower house in Dublin consisted of 128. The system of election to the House of Commons in both jurisdictions was proportional representation in multi-member constituencies.

The upper house in Northern Ireland, except for two seats reserved for the lord mayors of Belfast and Derry, were filled by an election of the House of Commons in Belfast using proportional representation.

The upper house in Dublin was a nominated house, representing a variety of interests. There were limited legislative powers assigned to both parliaments to make laws – but only as those laws would affect the geographical area of their particular parliament.

There were numerous restrictions on this legislative power, reserving certain matters only to Westminster. These restrictions included succession and property of the Crown, and the making of war and peace.

The Crown’s representative, the Lord Lieutenant, had the power to withhold the assent of the Crown to legislation passed by either parliament.

Council of Ireland

Section 2 of the act provided for the establishment of a Council of Ireland, which created a mechanism for the unification of Ireland.

The council comprised 20 members each from northern Ireland and southern Ireland. The council was empowered to recommend legislation for the island of Ireland by order in council.

The two parliaments could, by identical acts, delegate powers to the council to administer matters concerning railways, fisheries, and contagious diseases for the whole island of Ireland.

The most significant power of the council was its ability for both parliaments to vote to create a single home-rule parliament, which would replace the council.

Powers under the act

Executive power in both northern and southern Ireland continued to be vested in the Crown. The Lord Lieutenant exercised prerogative or other executive powers that would be delegated by the Crown, similar to the executive structure in place in the dominions, such as Canada and Australia.

The Lord Lieutenant would appoint a cabinet, and he or his cabinet would not be answerable to either parliament in Ireland. Certain executive matters were reserved to the Crown in council, including policing and the appointment of magistrates.

Section 20 of the act created a separate exchequer and consolidated fund for both northern and southern Ireland. Both parliaments were given powers to make laws that imposed and charged levies, and for the collection of taxes within their respective jurisdiction.

These powers did not extend to customs duties, excise duties, corporation tax or income tax.

Imperial liabilities

Section 23 provided that Ireland must make a contribution towards the imperial liabilities and expenditure of the UK. These liabilities included the funded and unfunded debt of the UK and money borrowed for the purpose of land purchase in Ireland.

Section 32 made provision for the appointment of a Joint Exchequer Board, to be made up of five members, two members appointed by the British Treasury, one member each appointed by the Treasury in northern and southern Ireland, and the board to be chaired by an appointee of the Crown.

The role of the board was set out in the act, and included resolving any issues or questions on Irish revenue or expenditure, and whether there was any overlap on taxation by the British and Irish parliaments.

Courts and judges

Section 38 of the act established two separate Supreme Courts of Judicature in both northern and southern Ireland. Each Supreme Court was given two divisions – the High Court of Justice and the Court of Appeal. Each was to have the same jurisdiction as its namesake before the commencement of the act.

The High Court in southern Ireland consisted of seven judges. The Lord Chief Justice to be president, together with the Master of the Rolls and five puisne judges. The High Court in northern Ireland was to consist of three judges: the Lord Chief Justice together and two puisne judges.

The Court of Appeal in northern and southern Ireland consisted of the Lord Chief Justice and two ordinary judges, to be known as Lords Justices of Appeal. There was provision for a further appeal to the High Court of Appeal for Ireland under section 43 of the act.

The High Court of Appeal for Ireland was constituted by the ex officio judges, the Lord Chancellor of Ireland, president of the court, the Lord Chief Justice of southern Ireland and the Lord Chief Justice of northern Ireland, and other judges as may, from time to time, be nominated as members.

The jurisdiction of the High Court of Appeal for Ireland were any decisions of the Court of Appeal in southern Ireland or northern Ireland, and all questions that came under the Crown Cases Act 1848. (Under the 1848 act, after a conviction, the trial judge in a criminal case could refer the case by way of case stated to the court. A case that was reserved would then be heard by at least five judges, including at least one chief justice).

Section 49 of the act made provision for an appeal of a decision of the High Court of Appeal for Ireland to the House of Lords, where a person was aggrieved by any decision of the High Court of Appeal for Ireland in proceedings taken by way of certiorari, mandamus, quo warranto or prohibition.

Appeals also lay from decisions concerning the validity of any law made by either parliament, and the decision was not otherwise subject to appeal. Section 48 of the act made provision of county court judges by order of the Lord Lieutenant.

Transfer provisions

The act commenced on 3 May 1921. Under its provisions, an election was called by the Lord Lieutenant and held on 24 May 1921.

The Dáil used the opportunity of the election and declared that the elections, north and south, should constitute the election of members to the second Dáil. Under the provisions of the act, the southern parliament was adjourned on 13 July 1921, two days after the truce that ended the War of Independence.

Anglo-Irish Treaty

The Anglo-Irish Treaty of 1921 established an independent dominion in Ireland. The treaty envisaged that the new independent dominion in Ireland would apply to the entire island of Ireland; however, under section 12 of the treaty, the North was given the option to opt out of the new state, which they duly did.

The Irish Free State (Consequential Provisions) Act 1922 amended the act and provided that the provisions of the act would only be applied to the North, and the northern state operated under the amended terms of the act from 1921 to 1972.

The final provisions of the act were repealed in the North under the Northern Ireland Act 1998 and in the South under the Statute Law Revision Act 2007, following the Good Friday Agreement in 1998.

‘Condemned in every corner’

William Redmond, MP for Waterford in the House of Commons, remarked that the act “was condemned in every corner of Ireland, and it had not even the support of a single Irish member, whether he came from north or south”.

The act was undermined by the terms of the Anglo-Irish Treaty (signed seven months after the commencement of the act), as it created a separate Irish Free State that would be a dominion and member of the Commonwealth.

The treaty and subsequent constitution introduced a completely separate apparatus of state, which gave the Free State more autonomy over its affairs than was provided for under the act. The act, however, continued in operation in Northern Ireland for a further 50 years.

The legacy of the act is far reaching and has left an indelible mark on the island of Ireland over successive generations.