Executive Authority (External Relations) Act 1936
The Executive Authority (External Relations) Act 1936 (No. 58 of 1936) was an Act of the Oireachtas (Irish parliament). The Act, which was signed into law on 12 December 1936, was one of two passed hurriedly in the aftermath of the abdication of King Edward VIII to sharply reduce the role of the Irish Free State's monarchy. It is also sometimes referred to as the External Relations Act.
Background and effect of legislation
Since coming to power after the Irish Free State's 1932 general election, Éamon de Valera's government had secured the passage of a number of amendments to the Irish constitution, reducing the role of the Crown in the state's internal affairs. This was a recapitulation of the idea of external association, which de Valera had unsuccessfully proposed as an alternative to the 1921 Anglo-Irish Treaty.
The culmination of the 1936 abdication crisis in Edward VIII's signing an Instrument of Abdication on 10 December 1936 was seized upon by de Valera as an opportunity to almost completely eliminate the role of the Crown, including the abolition of the office of governor-general. The Constitution (Amendment No. 27) Act 1936 was thus rushed through the Oireachtas, amending the constitution by transferring all the responsibilities of the governor-general and almost all the responsibilities of the King to other offices. (The attempt to abolish the office of governor-general by removing all references to it in the constitution proved to be unsuccessful, requiring remedial legislation the following year.)
As a result of these changes, the only remaining reference to the King, albeit a deliberately oblique one, was in a proviso to Article 51, authorising the Executive Council (government) to "avail", for the appointment of diplomats, etc. and for the conclusion of treaties, "of any organ used as a constitutional organ for the like purposes" by any of the other members of the Commonwealth. This authority was made "to the extent and subject to any conditions which may be determined by law"; the Executive Authority (External Relations) Act 1936, signed on the following day, was that law.
Provisions of the External Relations Act
The External Relations Act set out that the appointment of the Free State's diplomatic and consular representatives and the conclusion of international agreements would be either by or on the authority of the Executive Council (ss. 1–2). The act then stipulated that "so long as Saorstát Éireann [i.e. the Irish Free State] is associated with the [other member nations of the Commonwealth], and so long as the King recognised by those nations as the symbol of their co-operation continues to act on behalf of each of those nations (on the advice of the several Governments thereof) for the purposes of the appointment of diplomatic and consular representatives and the conclusion of international agreements, the King so recognised may, and is hereby authorised to, act on behalf of Saorstát Éireann for the like purposes as and when advised by the Executive Council so to do" (s. 3(1)). In other words, the King was authorised (upon the formal advice of the Irish government) to appoint diplomats and consuls and to be involved in the formalities of making treaties.
The Act also brought Edward VIII's Instrument of Abdication into effect for the purposes of Irish law (s. 3(2)). Due to the Act's phrasing, Edward VIII's abdication was actually back-dated to the day before that on which it took effect in the United Kingdom and most of the other Dominions.
Executive Powers (Consequential Provisions) Act 1937
Unfortunately the speed with which the 1936 Act was passed also meant that some serious legal matters had been overlooked by the draughtsmen, touching on the top of the Irish legal hierarchy. In May 1937 these were covered by the Executive Powers (Consequential Provisions) Act 1937. As the Governor-Generalship had not been actually abolished by the 1936 Act, this Act was required to validate the otherwise-unlawful appointment of the Chief Justice of Ireland Timothy Sullivan. Sullivan had in turn questionably appointed three High Court judges. The recent appointment of Patrick Lynch as the Attorney General of Ireland and even the pension of the outgoing Governor-General needed to be legalised.
The External Relations Act and the 1937 constitution
1° The executive power of the State in or in connection with its external relations shall [...] be exercised by or on the authority of the Government.
2° For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.
As a result, the constitutional role of the King remained unaffected and the External Relations Act remained in force.
In the late 1940s, de Valera decided to change the law, though whether it would involve the total repeal of the Act or merely its amendment was not decided when he lost power in 1948. His then Attorney-General, Cearbhall Ó Dálaigh had been working on the various options when de Valera's Fianna Fáil administration was replaced by the First Inter-Party Government under Costello.
The Executive Authority (External Relations) Act 1936 was finally repealed by the Republic of Ireland Act 1948, which came into force on 18 April 1949. The new Act vested the powers possessed by the King in the President of Ireland.