Priming the state: continuity and junctures in the foundation of the Irish administration

ABSTRACT

A principle of continuity was baked into the political and legal instruments underpinning the embryonic Irish state. At the same time, a process of evolutionary change we call ‘administrative greening’ was initiated, which we examine here and in Biggins, MacCarthaigh, and Scott ([2024b]. Greening the Irish State: Early Legislative and Administrative Dynamics. Irish Political Studies, XXX, XXX). In this first article, we highlight the extent to which these dynamics shaped the formative or ‘priming’ years of the new state and its politics. We interrogate this from both political and legal angles. The pre-existence of British administrative bodies and norms constrained the Irish revolutionary parliament (Dáil Éireann), the Anglo-Irish Treaty of 1921 and the Constitution of Saorstát Éireann in 1922. The early leaders of the vulnerable state understood they would have fuelled instability and uncertainty had they chosen to dispense with the existing public administration en masse post-1921. But this inheritance did not preclude administrative evolution either. We explore the mechanisms through which objectives of continuity and change were framed. In so doing, we place our narrative within a broader literature on path-dependency and critical junctures.

KEYWORDS:

• Ireland
• public administration
• independence
• Whitehall
• administrative continuity
• evolution

Introduction

A remarkable piece appeared in the 4 August 1906 edition of An Claidheamh Soluis, an early twentieth century Irish nationalist newspaper. In it Patrick Pearse, a prominent member of the nationalist intelligentsia and future revolutionary, imagined reading a newspaper from Ireland in 2006. One article announced the opening of the Oireachtas festival by the Ard Rí (High King) at a ceremony attended by the French Emperor, President of the Russian Republic and Protector of the Indian Commonwealth.¹ A royal procession would depart from the Palace of the Nation. Dignitaries would include the president of the Gaelic League, adjudicators and officials of the Oireachtas, members of the ‘Irish Academy’ and bards.² When the procession reached the ‘Hyde monument’, the Herald of Ireland would proclaim the Peace of the Gaels. The Bard of Ireland would invoke the spirit of ‘Gaelic Thought and Imagination’ and the Ard Rí would declare the one hundred and tenth Oireachtas in session. The National Hymn would be intoned. And this would all take place in the open because the temperature in 2006 would be substantially warmer after the bogs had been drained and the country reafforested! (Pearse, 1906).

Climate change aside, this vision of a future Ireland contrasts with the administrative structures and norms which became embedded before and after the Articles of Agreement for a Treaty between Great Britain and Ireland, known as the Anglo-Irish Treaty, 1921. From an administrative standpoint, post-Treaty Ireland was not the clean break some may have expected. Although there was considerable movement of personnel between Dublin, Belfast and London (Maguire, 2008) after 1921, the administrative DNA of the new state substantially, though not entirely, replicated that before 1922. While continuity was not absolute, the edifice, including the norms underpinning it, remained mostly familiar.

Some early leaders of the state contemplated thoroughly cleaning out the administrative Aegean Stables. But this was foiled by the stubbornness of historical norms and political expediencies. Against this backdrop, the new state underwent an evolution we refer to as ‘administrative greening’, akin to the physical re-painting of red letterboxes in green in Ireland after 1922. Much has been written on the increased prominence of nationalist-oriented civil servants – or their ‘greening’ – in the late nineteenth and early twentieth centuries (Maguire, 2008; McBride, 1991), as well as the partition of people and services between the Irish Free State and Northern Ireland (Maguire, 2008; McColgan, 1983; Moore, 2019). While connected to the themes we explore, the profiles of administrators and the Northern dimension are not our primary focus.

Our interest is broader. We are also attentive to the normative environment of the emergent state and, to continue the painting metaphor, how the bureaucracy was ‘primed’ to reflect nationalist aspirations. We first survey literature on historical institutionalism, path dependence and critical junctures. We then address the Irish experience. To contextualise administrative dynamics after 1921, we firstly sketch the shape of the British administration in Ireland by the early twentieth century before turning to its rival established under the Irish revolutionary parliament, Dáil Éireann, from 1919. Aspects of the Treaty and the Constitution of Saorstát Éireann, 1922 relating to administration are then examined.

We suggest that the period between the establishment of Dáil Éireann and enactment of the 1922 Constitution, January 1919 to December 1922, constitutes a ‘critical juncture’ in terms of public administration, involving three phases. We are especially interested in how pre-1921 administrative DNA was perpetuated via political, constitutional and legislative channels, or the ‘production’ and ‘mechanisms of reproduction’ (Collier & Collier, 1991, pp. 30–31) of the administrative legacy. To understand these phases, we turn to ideas from institutional theory.

Historical institutionalism, path dependence and critical junctures

Our focus here is on the Irish public administration and its norms as a collection of ‘institutions’. We are interested in the political and legal vectors which have determined their trajectories. Institutions can be described as ‘systems of established and prevalent social rules that structure social interactions’ (Hodgson, 2006, p. 2). The traditional school of institutionalism was preoccupied with formal or legal structural arrangements present in political and economic settings (Ogbazghi, 2022, p. 347). Recently, more nuanced frameworks have evolved under the rubric of ‘new institutionalism’ (Thelen, 1999), positing that a broader range of historical, socio-economic and cultural factors can inform analyses of the development and activities of institutions. New concepts have been deployed across a panoply of disciplines including political science, public administration, economics and sociology (Ogbazghi, 2022, p. 347), employing rational choice, sociological, discursive and gender perspectives.

Of interest here is ‘historical institutionalism’, a subfield. Hall and Taylor (1996, p. 938) explain how it has tended to perceive institutions as:

the formal or informal procedures, routines, norms and conventions embedded in the organizational structure of the polity or political economy. They can range from the rules of a constitutional order, or the standard operating procedures of a bureaucracy, to the conventions governing trade union behaviour or bank-firm relations. In general, historical institutionalists associate institutions with organizations and the rules or conventions promulgated by formal organization.

Key is the notion that ‘political struggles are mediated by the[ir] institutional setting’ (Ikenberry, 1988, pp. 222–223) and that public policy is ‘channelled by the existing and past institutional arrangements’ (Thoenig, 2007, p. 89). There is clearly a temporal dimension, in the sense that institutions are perceived as legacies of historic social conflicts (Beyer, 2010, p. 5). Prevailing norms typically constrain political or policy actions. Historical institutionalism can accommodate a diverse range of factors relevant to institutions’ development and tendencies. This includes the environment of ideas, agents and rules (Hogan, 2019, p. 172). It has, though, become most associated with the assertion that ‘history matters’. And this is where historical institutionalism most intersects with theories of ‘path dependence’ (Arthur, 1994; David, 1985). In this frame:

[I]nstitutional configurations often inhibit actors’ attempts to transform structures in response to environmental pressures. Because prevailing institutions set the limits for individual action, research on path dependency suggests, they determine what subsequent changes are possible. While institutions are dynamic, then, their evolution does not necessarily mirror actors’ preferences. (Cortell & Peterson, 1999, p. 180).

Page (2006, p. 88) surmises that narratives on path dependence typically centre on four broadly related causes. The first is ‘increasing returns’, meaning greater benefits accrue the more a particular choice is made or action taken. The second is ‘self-reinforcement’, whereby making a particular choice or taking an action unleashes a set of forces or complementary institutions, encouraging the original choice to be sustained. The third is ‘positive feedbacks’, which sees an action or choice creating ‘little bonuses’ when that same choice is made by others. Finally, ‘lock-in’ implies that a specific choice will trump the alternatives because a sufficient number of people have previously made that same choice.

The relevance of ‘increasing returns’ and its related dynamics in political science has been championed by Pierson (2000a), taking the view that as ‘social actors make commitments based on existing institutions and policies, their cost of exit from established arrangements generally rises dramatically’. Pierson also suggests that, in politics, institutional constraints are ‘ubiquitous’ (p. 259) but not necessarily ‘locked in’ and that ‘bounded change’ remains possible (p. 265). Indeed, Thelen (1999) deems the concept of change to be a component of path dependence in historical institutionalism (p. 384).

Path divergences, or ‘punctuated equilibriums’, are frequently addressed in historical institutionalist literature under the umbrella of ‘critical junctures’. These are typically seen as turning points placing institutions on new difficult-to-alter trajectories (Capoccia & Kelemen, 2007, pp. 341–342). Traditionally, they have been portrayed as exogenous or endogenous shocks producing changes that are ‘significant, swift and encompassing’ (Hogan, 2006, p. 664). However, there is some acceptance that they can be lengthy (Soifer, 2012, p. 1574), provided they are short in relative terms (Capoccia & Kelemen, 2007, p. 348).

The framework has also benefited from additional nuance from perspectives outside of historical institutionalism. Kingdon (1995) and Cortell and Peterson (1999) suggest that both episodic and incremental change can be explained by crises or gradual pressures. The scope and consequences of these depends on a number of variables, particularly: the degree of change in underlying conditions; the actions and interests of officials involved; and the freedom for officials to make changes against the backdrop of prevailing arrangements (Hogan, 2019, p. 179). There is, then, certainly potential for political ideas and agency to shape critical junctures, but levels vary depending on conditions.

Moreover, it is recognised that critical junctures do not always result in radical change, for instance where there may be extraneous constraints on policymakers’ freedom (Hogan, 2019, p. 178) or imperatives to ‘muddle through’ (Lindblom, 1959). As such, ‘a window of opportunity does not guarantee institutional innovation’ (Cortell & Peterson, 1999, p. 201). Meanwhile, Collier and Collier (1991) point to mechanisms of ‘production’ and ‘reproduction’ following critical junctures. Through this lens, a legacy often does not crystallise immediately but is shaped through a series of intervening steps (production), and subsequently perpetuated within ongoing institutional and political processes (reproduction) (p. 31).

Aside from the event horizon and its aftereffects, Slater and Simmons (2010) underscore the importance of understanding causal factors preceding critical junctures. They argue that ‘these critical antecedents shape the choices and changes that emerge’ (2010, p. 887). Similarly, Legro (2000) argues that ‘a crisis or critical juncture is in part dependent on the pre-existing orthodoxy’ (p. 430). Meanwhile, Carstensen (2011) postulates ‘bricolage’ frameworks to explain incremental change, where ‘bits and pieces from several institutional and ideational legacies are blended to answer to the continual stream of challenges the political system faces’ (p. 162). This is distinguished from traditional (stability-oriented) models of path dependence (p. 160).

Peters, Pierre, and King (2005) probe the limitations of classical approaches to historical institutionalism and critical junctures, interrogating whether there is space within frameworks for both change and continuity (p. 1277). They critique a tendency to conceive change through ‘major events’, masking longer-run incremental change, and with insufficient attention to a ‘more subtle “drift”’ (pp. 1277–1278). They also flag an important weakness in historical institutionalism around political conflict, making the point that political conflict is not confined to ‘formative moments’. It can be as relevant where ‘path dependency is sustained by a dominant political coalition successfully fending off attempts by minorities to alter the political course’ (p. 1278). Furthermore, economic as much as political factors can be relevant and ideas matter in explaining institutional change (p. 1296).

Painter and Peters posit the importance and stickiness of administrative ‘traditions’, which they define as ‘a more or less enduring pattern in the style and substance of public administration in a particular country or group of countries’ (2010, p. 6). Building on the historical institutionalist literature, they point to the non-institutional factors that shape bureaucratic inheritances. These include modes of engagement with the political class and civil society, prominence of religious ideals, management sciences and law in administrative practice, and how accountability is understood and manifested. Indeed despite several decades of structural and other reforms and ideas-sharing influenced by the market-based, global ‘New Public Management’ (NPM) revolution from the 1970s (Hood, 1991), much variation persists in underlying practices and values.

Of particular interest too is the application of theories of path dependence and critical junctures to post-colonial state-building and public administration. Work in this field has proven fruitful, though much concerns shorter periods of colonisation compared to Ireland. Mahoney (2003) attributes the differential development trajectories of countries formerly comprising ‘Spanish America’ to their historical locations as either central or peripheral to the empire, as well as the densities of indigenous populations. Examining the provision of public goods in Nigeria, Papaioannou and Dalrymple-Smith (2015) argue that relative peace in early colonial Nigeria facilitated the influence of pre-colonial institutions on it. That link was, however, shattered by insecurity and instability latterly (p. 49).

Ohemeng and Anebo (2012) conclude that the implementation of administrative reforms in Ghana post-independence have been stymied by a failure of agenda-setting and turbulence. Mussagulova (2021) highlights how divergences in research and development (R&D) performance across three ex-Soviet states has depended on whether the Soviet R&D model was retained, or reformed following independence. Loga, Cardow, and Asquith (2022) explain how the use of ‘indirect rule’ – the establishment of a separate government for indigenous Fijians during colonial rule – and the rapid transition of Fiji from a colony to a republic saw it become ‘locked in’ to a path of conflict.

Hyden (2010, p. 72) makes a similar observation in respect of the twentieth-century African colonial context, distinguishing between ‘direct rule’, whereby the colonial service was integrated with the domestic one, and an ‘indirect’ system, where local institutions and practices were co-opted. Meanwhile, Lodge, Stirton, and Moloney (2015), analysing the administrative legacy of colonial rule in Jamaica identify how, shortly after independence, ‘the persistence of a colonial-era bargain founded on insulation from political factors imperilled the survival of the civil service itself’ due its lack of responsiveness to elected ministers (p. 25).

The Westminster/Whitehall or ‘Anglo-Saxon’ (Halligan, 2015) model of administration had as its defining features an apolitical and generalist administration, with tenure for staff on merit through competition, and a strong emphasis on political neutrality within the system. It also emphasised the public interest and pragmatic action, within the common law tradition, and massive stock by written words, filing systems, and procedures for major decisions (McLaren, 1994, p. 611). Its DNA was well encoded in the Irish context at the period of transition, and regarded as one of the most successful systems in the world. The influence of this administrative legacy is distinctive but remains relevant to more recent contexts.³

Therefore, while not universally accepted in the literature, we prefer the notion that ‘incremental change and critical junctures can be in play simultaneously’ (Hogan, 2019, p. 176), particularly in a post-colonial environment. This is, we suggest, borne out in the Irish case of continuity and incremental change through a period of constitutional and political turbulence. To reiterate, this study of the gestation of the Irish state between January 1919 and December 1922 both reflects the interplay of historical institutionalism, path dependency and critical junctures and, also, informs a wider understanding of this institutional theory.

‘All changed, changed utterly’ … and not: public administration dynamics from 1919 to the treaty

An elaborate administrative and judicial apparatus was established in Ireland between the Anglo-Norman conquest in the late twelfth century and the War of Independence in the early twentieth. Under the Acts of Union, 1800, the parliament at Dublin dissolved and the United Kingdom (UK) parliament at Westminster became Ireland’s legislature. ⁴ Executive authority, centred at Dublin Castle (‘the Castle’), was nominally exercised by the Lord Lieutenant of Ireland (the ‘Viceroy’), though in practice by the Chief Secretary for Ireland. By the end of the nineteenth century, public administration in Ireland exhibited features heavily influenced by, though not identical to, the British administration in London (Chubb, 1992, pp. 212–214). After the Union, central British departments had, in some instances, received additional responsibilities for Irish affairs. In other cases, separate Irish departments and offices were established in an ad hoc, reactive fashion. This was not a recipe for efficiency and McDowell (1964, p. 27) observes that:

no attempt was made to plan systematically the distribution of duties between all the departments, British and Irish, functioning in Ireland, nor were the arrangements for controlling and co-operating their activities adequate.

A peculiar feature of the Irish administration post-Union was a proliferation of central boards, rather than government departments populated by civil servants. These administered, or advised upon, certain sectors, such as agriculture and rural development. This setup came in for scathing criticism in an 1889 memorandum prepared by an under-secretary for Ireland, Joseph Ridgeway:

nothing could be more chaotic and effete than the present system of government by boards. For at present Ireland is ruled by a congeries [sic] of boards who are by statute semi-independent and by the Treasury in London. These boards have the power and licence to commit blunders but on the chief secretary rests the responsibility. When the chief secretary happens to be a man of commanding influence and when a common danger threatens the existence of the Castle, this complicated machine works smoothly, but in a cumbersome and unproductive fashion. But if this centripetal force were withdrawn all branches of Irish administration would fly off in their old aimless worn out grooves. (McDowell, 1964, p. 28)

As of 1914 there were reportedly 40 administrative bodies (including government departments) functioning in Ireland. 29 were solely concerned with Irish affairs, while the remaining 11 were Irish branches of UK bodies (McDowell, 1964, p. 29).

Following the 1916 Easter Rising and Sinn Féin’s success in the 1918 UK General Election, a breakaway Irish parliament, Dáil Éireann, convened on 21 January 1919. At this date, the Irish State Administration Database (Hardiman et al., 2021) indicates that there were at least 66 pre-existing public sector bodies active in Ireland, excluding purely local and regional bodies. Into that milieu stepped the Irish leaders, founding a shadow government – Aireacht (‘Ministry’) – and declaring independence. Not only that, they actively embarked on a rival state-building project, recruiting their own civil service (Maguire, 2008, pp. 95–103). Dáil Éireann’s various administrative and legislative outputs were often branded ‘decrees’. Purely for ease, we rely here on the decree numbering system used by Farrell (1975) but it should be noted that the identification and categorisation of Dáil decrees generally, as well as the scope of Farrell’s list, are not definitive (Mohr, 2020, pp. 13–15).

A major initial challenge for the Dáil Ministry was how to interact with the pre-existing ‘British’ administration. Even early on, administrative greening emerged. One plank of the strategy was to capture existing administrative bodies from within. Such a plan was hatched against the Agricultural Wages Board, which regulated the wages of agricultural labourers (First Dáil Minutes, p. 273). Another component of the strategy was to set up new, or parallel, ‘Republican’ administrative structures. For example, a National Economic Council was established to engage with economic questions and the development of economic policy (Decree 18/1920). Dáil Éireann also founded a National Land Commission to determine issues relating to land acquisition and to mitigate agrarian unrest (Decree 19/1920).

A National Commission of Inquiry into the Resources and Industries of Ireland was initiated in 1919 (Decree 10/1919), was still in existence by May 1921 and produced several sectoral reports (First Dáil Minutes, pp. 286–287). Other projects were more aspirational, such as the establishment of a state import and export company (Decree 10/1920), which hinged on ‘funds from America’ (First Dáil Minutes, p. 186). Beyond its decrees, the Dáil was also a hive of committee activity in important policy areas, such as agriculture and forestry. So there was clearly some policy innovation and early administrative greening at work.

But the realities of a still-functioning British administration and its norms also loomed heavily over these counter-state activities. From the outset, British influence was even apparent in the Dáil’s own constitution, which Farrell (1969) argues was ‘founded on the British model of Cabinet government’ (p. 127). Another notable example was a Dáil decree facilitating the increase of rents and mortgage interest in reflection of wage and salary increases (Decree 3/1921). Kevin O’Higgins, who became Minister for Home Affairs in August 1922, later reflected that it had used the equivalent British legislation as its starting point:

I remember when the Dáil Decree was passed, and I remember how it was passed and how it was framed, and it was framed in a hurried interval between two sessions by a couple of men who were asked to look over the British Act and see in what respects it might be amended, to suit conditions here. (Dáil Éireann debate, 20 October 1922, vol. 1, no. 25)

The Ministry also took an early interest in local government as a tool to undermine British authority, foster a new civil service and advance social welfare objectives. However, principle soon chafed against pragmatism when a 1919 Dáil committee concluded that a piece of housing legislation emanating from Westminster should be exploited by local authorities to advance working-class housing schemes (Daly, 1997, pp. 47–49). Some within the Ministry also recognised the practical challenges of any sudden rupture of local authorities from the Local Government Board (LGB), a central body sitting at the apex of the funding and governance framework for them. Its allegiance was not to Dáil Éireann and this focused minds within the Ministry, particularly as it became apparent that abruptly jettisoning the LGB risked either reductions in local expenditure or rates increases (Daly, 1997, pp. 50–51).

An effective campaign of administrative attrition was subsequently waged and a Dáil decree of September 1920 (Decree 15/1920) instructed all ‘local bodies’ to sever their connection with the LGB. The Dáil’s Department of Local Government expanded, becoming one of its success stories (Maguire, 2008, p. 98). Still, the Dáil’s own local government system mirrored the LGB in many respects, ‘down to the correct colour of ink used to annotate the minutes which were submitted by local authorities’ (Daly, 1997, p. 67). From a normative standpoint too, a ‘clean break’ with the LGB was tempered by a later decree of January 1921 which adopted the pre-existing ‘Local Government Code of Laws … subject to such amendments and alterations as may be directed by order of the Local Government Department of Dáil Éireann with the approval of the Ministry’ (Farrell, 1975, p. 118). Interfaces between Dáil Éireann and the pre-existing local government system thus highlight that, even during this revolutionary period, a tendency towards administrative adaptation and reform, rather than fundamental overhaul, was already apparent. Farrell (1975, pp. 118–119) deduces:

The record of these local government decrees indicates the extent to which the emerging regime of the new Ireland sought to create a polity within a polity, to infiltrate and take over an existing framework, rather than to develop any radical restructuring of governmental institutions.

A similar pattern was evident in the judicial sphere. Dáil Éireann established a parallel courts system (known as the ‘Dáil Courts’) as a challenge to British judicial authority, but even it did not fully dispense with pre-existing law and procedures (Kotsonouris, 1994, p. 19). A divergence from British legal norms was teased in a decree empowering the Dáil Ministry for Home Affairs to de-recognise and disapply British legislation deemed ‘clearly motivated by a religious or political animosity to the Irish people or repugnant to the Republican Government or to Irish ideals’ (Decree 17/1920). However, a judge of the Dáil Courts, writing later, doubted if any such orders were ever made (Davitt, 1968, p. 126). This perhaps further underscores that, even where British administrative structures were undermined or displaced, the substantive norms underlying them tended to persevere.

By June 1921, shortly before the 11 July Truce with the British government, a more systematic showdown with the British administration was being countenanced by some Irish leaders. This was embodied in a draft Dáil decree which, if the Truce had collapsed, would have empowered the Minister for Home Affairs to make regulations to ‘impose penalties by fine, imprisonment, banishment from a particular area or otherwise’. It was aimed at officers of the British administration purporting ‘to exercise Judicial, administrative and legislative functions without the authority of the Republic … and certain other persons act[ing] as Clerks, assistants and technical advisers’ (Dáil Decree, 26 August 1921, Dáil Éireann debate, 10 January 1922, vol. T, no. 17). Significantly, though, when this was germinating in June 1921 Michael Collins, Minister for Finance in Dáil Éireann, vacillated somewhat:

No English connection should be tolerated, except a connection we could not get rid of, or that we would be unwilling to get rid of, for instance the P.O. [Post Office] is not doing us any particular harm and might be allowed to operate. (Maguire, 2008, p. 104)

Reflecting on these trends, the period between the establishment of Dáil Éireann on 21 January 1919 and the Truce of 11 July 1921 represents the first phase of a critical juncture. It was a major challenge to the prevailing orthodoxy and set in train a consequential sequence of political events. However, from a public administration perspective, Dáil Éireann did not have a ‘blank slate’. This interval witnessed ‘expanding agency, rather than complete contingency’ (Slater & Simmons, 2010, p. 890). There was also dissonance between the structural and normative dimensions of the Dáil administrative project. The Dáil did successfully promote rival administrative structures in key policy spheres from 1919. But continuity is also evident, especially in the recycling of legal norms in some of its law-making and flagship projects. This should not be interpreted as a substantive critique of the Dáil system. It simply exemplifies that its scope and inclination for policy innovation was constrained by the anterior administrative environment, akin to a box within a box.

Dáil Éireann, with its limitations, confronted the ‘critical antecedent’ of a formidable administration in situ, which also did not recognise its legitimacy. That the Dáil was an outside challenger to the pre-existing administration is pertinent, given that ‘a decision maker’s ability to alter prevailing institutions … is contingent on her position within those structures’ (Cortell & Peterson, 1999, p. 190). The costs of wholescale abandonment of prevailing administrative norms and fashioning entirely new ones could have damaged the Dáil’s credibility and aggravated social instability. As Krasner (1984) points out, ‘[i]t is not possible in human affairs to start de novo with every change in wants, needs and power capabilities’ (p. 240). So the Dáil opted to leverage and adapt existing norms, reaping rewards in the shape of credible, parallel administrative structures. In this, it successfully disrupted British institutional patterns, not least in the spheres of local government and the courts. It also ensured that its administrative arrangements and personnel had to be reckoned with later (per below). In that sense, the Dáil system branched into a discrete administrative path of its own, albeit with echoes of the old. A hybridisation of norms in it chimes with the scenario sketched by Thelen (1999):

For those who are disadvantaged by prevailing institutions, adapting may mean biding their time until conditions shift, or it may mean working within the existing framework in pursuit of goals different from – even subversive to – those of the institution’s designers. (pp. 385–386)

‘Requisite for the discharge of its duties’: the treaty, the provisional government and the public administration

The Truce between the British government and Irish republicans came into effect on 11 July 1921. This encouraged initial contacts between Éamon de Valera, President of Dáil Éireann and David Lloyd George, the British Prime Minister, between July and September. Formal negotiations between a British government delegation and Irish plenipotentiaries occurred in London between 11 October and 6 December, culminating in the Treaty. In principle at least, the window of opportunity in the negotiations seemed quite open, inasmuch as they commenced without preconditions (Friemann, 2021, p. 37). But, as matters transpired, the parameters were far less ‘permissive’ than may often be assumed.

The shadow of ‘critical antecedents’ quickly loomed, narrowing the room for manoeuvre on both sides. For instance, on the first day of negotiations Lloyd George invoked proposals he had originally circulated to de Valera in July, which had canvassed significant constraints on Irish sovereignty (Friemann, 2021, pp. 65–66). In addition, there were serious divisions within the negotiating teams, not least the Irish one, as well as between the Irish negotiating team and the Dáil administration in Dublin. Neither did the Irish delegation have a clear strategy (Ó Fathartaigh & Weeks, 2021, pp. 46–47, 57–58). In terms of public administration specifically, the July document had stated that Ireland, as a ‘dominion’ of the British Empire, should ‘take over’ a number of administrative responsibilities (Royal Irish Academy et al., DIFP No. 141, 1921). In fact, the transfer and continuity of some administrative services and personnel had already been signalled in the Government of Ireland Act, 1920.⁵ That British legislation had established separate northern and southern ‘Home Rule’ parliaments in Ireland, which were boycotted by Sinn Féin. In 1921 the Dáil had proclaimed this legislation to be illegal, though under British law it technically continued to apply to all of Ireland until late 1922 (Mohr, 2018, p. 38, 49). The Government of Ireland Act therefore loomed over the negotiations.

Other critical antecedents were attributable to events further afield. The prior establishment of jurisdictions, particularly Canada, under British dominion was a key prop in the negotiations, framing the constitutional status of the new Irish state. In an unsettled empire in 1921, the British simply could not countenance a fully independent Irish Republic. The Treaty of 6 December 1921 was imbued with this philosophy, which also influenced its administrative provisions. Article 17 stated:

By way of provisional arrangement for the administration of Southern Ireland during the interval which must elapse between the date hereof and the constitution of a Parliament and Government of the Irish Free State in accordance therewith, steps shall be taken forthwith for summoning a meeting of members of Parliament elected for constituencies in Southern Ireland since the passing of the Government of Ireland Act, 1920, and for constituting a provisional Government, and the British Government shall take the steps necessary to transfer to such provisional Government the powers and machinery requisite for the discharge of its duties [our emphasis], provided that every member of such provisional Government shall have signified in writing his or her acceptance of this instrument. But this arrangement shall not continue in force beyond the expiration of twelve months from the date hereof.

Article 17 was supplemented by safeguards in Article 10 for existing public servants, judges and officials etc. who were discharged or chose retirement. Article 17, particularly the highlighted segment, was eclipsed, however, by higher profile provisions, such as the Irish parliamentary oath of fidelity to the British Crown, the constitutional position of the north-east of Ireland and naval facilities. Indeed, it appears to have been a late addition to the text (Gibney & Reid, 2022, pp. 150–151). According to the notes of one of the Irish delegates, Robert Barton, a memorandum explaining it was produced by the British on the final night of negotiations, following a query from Michael Collins, another of the Irish delegates (Gibney & Reid, 2022, p. 151).

The nuances of statecraft did not set pulses racing during the Dáil debates on the Treaty between 14 December 1921 and 7 January 1922 and the ‘discussions were generally poor and uninformed’ (Ó Fathartaigh & Weeks, 2021, p. 123). After rancorous exchanges and fateful division, the Treaty was narrowly approved. Maguire observed that the debates ‘failed to get to grips with the mechanics of taking over the State’ (2008, p. 125). This is perhaps understandable when set against the bigger ticket political and symbolic issues at stake, well addressed elsewhere (e.g. Weeks & Ó Fathartaigh, 2018). Nonetheless, after the Treaty debates, there were tense exchanges in the Dáil on 10 January 1922 regarding the future status and funding of the parallel Dáil administration.

Collins argued that such questions could not be fully addressed until someone could be sent ‘to the English side to ask for transfers and arrange other matters’ (Dáil Éireann debate, 10 January 1922, vol. T, no. 17). He pressed for an adjournment of the Dáil to facilitate this. Interestingly, de Valera, former President of the Republic and now leader of the ‘anti-Treaty’ contingent, committed to an orderly transfer of the Dáil departments to the ‘pro-Treaty’ ministers who had been installed following his resignation after the Treaty vote (Dáil Éireann debate, 10 January 1922, vol. T, no. 17). On 14 January 1922, in accordance with Article 17 of the Treaty, pro-Treaty Sinn Féin and unionist representatives, sitting as a ‘meeting of members of Parliament elected for constituencies in Southern Ireland since the passing of the Government of Ireland Act 1920’, formally approved the Treaty and nominated the Provisional Government of Ireland. The Dáil Ministry continued to exist concurrently with it after this point. And while there was overlap in membership, there were significant differences of opinion as to whether, or what extent, the Provisional Government was formally accountable to the Dáil, or indeed any parliament. Parliamentary accountability was more firmly established from 9 September 1922, which also brought an end to ‘dual government’ (Mohr, 2023, pp. 8–12).

The handover of Dublin Castle to the Provisional Government on 16 January 1922 is often lionised as a pivotal moment in the independence of the new state and, in many ways, it was. From a public administration standpoint, however, it is better conceived as the opening salvo in a process of administrative transfer and transition over subsequent months and years. This gradualism was apparent in a February 1922 speech at Westminster when Winston Churchill explained that ‘[t]he Chief Secretary to the Lord Lieutenant is discharging his duty at the present time, in this period of Provisional Government, and is devolving functions to the Irish Ministers and the Irish Government’ (Cahillane, 2022, p. 6). From 16 January to 1 April 1922, the Provisional Government was de facto performing executive functions, though its formal administrative, or de jure authority, was much less clear (Cahillane, 2022, p. 5).

During this administrative twilight, the Lord Lieutenant of Ireland and the Dublin Castle administration strictly speaking remained the executive authority. The Viceroy continued to issue executive proclamations (Cahillane, 2022, p. 10), albeit under the advices of the Provisional Government (McColgan, 1983, p. 92). Discussions between Irish and British ministers and officials were organised under a ‘Provisional Government of Ireland Committee’, which agreed a framework for implementing the Treaty.⁶ The day after the Castle was taken over, this Provisional Government notice was issued:

[A]ll Law Courts, Corporations, Councils, Departments of State, Boards, Judges, Civil Servants, Officers of the Peace and all Public Servants and functionaries hitherto acting under the authority of the British Government shall continue to carry out the functions unless and until otherwise ordered by us pending the constitution of the Parliament and Government of Saorstát na hÉireann and without prejudice to the full and free exercise by that Parliament and Government when constituted of all and every its powers and authorities in regard to them or any of them. (McColgan, 1983, pp. 96–97)

The legal status of the Provisional Government’s early 1922 notices and decrees is debateable, particularly given that the British government had not yet (fully) ‘taken the steps necessary’ to transfer administrative powers under Article 17. Still, these ‘deliberate ambiguities’ were politically useful for both sides in obscuring the legal foundations of the embryonic state (Mohr, 2018, p. 32). These Provisional Government instruments are of particular interest to us insofar as they demanded administrative continuity while also hinting that the new state might dispense with part or all of that system in future. Administrative greening was in prospect, but not at the expense of immediate stability (Biggins et al., 2024b).

The formal transfer of administrative functions commenced from 1 April 1922, pursuant to a British executive ‘Order in Council’ (hereafter the ‘Transfer Order’)⁷ made under the Irish Free State (Agreement) Act, 1922,⁸ i.e. the British legislation giving Article 17 ‘the force of law’.⁹ This was a pivotal instrument formalising the embryonic state’s administrative scope. Its first article confirmed:

The functions in connection with the administration of public services in Southern Ireland heretofore performed by existing Government Departments and officers, shall, as from the day of transfer, be transferred to and become exercisable by the departments and officers of the Provisional Government to which the functions are severally so assigned as aforesaid, but without prejudice to the power of the Provisional Government to redistribute those functions.

The Transfer Order detailed the key bodies and functions assigned to each of the Provisional Government’s ministries but the wording implied that the bodies and functions being assigned were not limited to those explicitly listed. Not everything survived the transfer either. The pre-existing police force, the Royal Irish Constabulary, which had garnered a notorious reputation, was to be disbanded.¹⁰ Certain other administrative bodies and functions were temporarily retained by the British for strategic and practical reasons (Biggins et al., 2024b, p. XXX; Mohr, 2023, p. 15).

Article 13 was an important provision of the Transfer Order. It clarified that references to the ‘United Kingdom’ in existing legislation governing administrative bodies and officers, as well as contracts, applicable to Ireland should be construed as references to the ‘Provisional Government’. Strikingly, it also provided that ‘all existing laws, institutions and authorities in Southern Ireland, whether judicial, administrative or ministerial, shall continue’. Here the full implications of the Article 17 Treaty commitment to transfer ‘powers and machinery’ were laid bare. This was not merely a fleeting handover of specific bodies. Article 13 transposed the normative edifice of the pre-existing administration, setting the tone for future processes of administrative greening (see Biggins et al., 2024b). While far from unbridled freedom, Article 13 did also make space for future legislative and administrative change by rendering these norms ‘[s]ubject to any Act of the Provisional Parliament and to the provisions of this Order and any other Order made [under the British legislation]’.

Notably, moves were already afoot to supplant key administrative officers. Michael Collins had hoped to overhaul the ‘alien and cumbersome administration’, replacing the inherited staff with ‘Gaelic’ personnel (Maguire, 2008, p. 130). Eoin MacNeill, another member of the Provisional Government, circulated a memorandum on 28 January 1922 proposing that the change of government should ‘penetrate every cell and fibre of the old governmental system’ by the establishment of a civil service supervisory commission with a ‘sound national outlook’ (Maguire, 2008, pp. 130–131, 138). Article 17 of the Treaty did not acknowledge the rival administrative system established under Dáil Éireann after 1919. However, it seems that some of the Irish leaders envisaged that it, and not the pre-existing British administration, should prevail.

A memorandum drafted by Arthur Griffith, another of the Treaty negotiators, on 25 December 1921 had suggested isolating Dublin Castle, letting it ‘wither and die’, which would then give way to the Dáil’s administration (Maguire, 2008, p. 124). This implies that, even if the principle of transferring administrative functions under Article 17 had been relatively uncontroversial during the Treaty negotiations, no political commitment had been made on the Irish side to maintaining that system longer-term after it had been transferred. Whereas, from a British perspective the administrative machinery instituted by the Dáil before the Treaty was viewed with contempt and duly ignored in Article 17.

In any case, Griffith’s vision of the 1919 Dáil administration vanquishing the Castle did not transpire and, instead, the Dáil civil service was ultimately assimilated into the Castle administrative structures (Maguire, 2008, pp. 130–131, 138). This dynamic perhaps echoes Stark and Bruszt’s (1998) findings in relation to political and economic transitions in post-Cold War Eastern Europe, where change was found not to be ‘a transition from one order to another but as transformation – rearrangements, reconfigurations, and recombinations that yield new interweavings’ (p. 7).

Taking stock of all this, the period between the Truce of July 1921 and the Dublin Castle handover in January 1922 represents the second phase of a critical juncture. It moulded the future path of Irish administration. Article 17 of the Treaty and the provisions of the Transfer Order were mechanisms of institutional ‘production and reproduction’. The fact that an explanatory memorandum on Article 17 only materialised on the final night of a long political saga is perhaps revealing of its low salience in the negotiations. The prospect of fiscal autonomy might also have diverted attentions. This was conceded by the British late and was seen as a major coup by Griffith and Collins (Moore, 2023, p. 4), though it is not apparent whether there was a direct link between it and Article 17.

That the British and Irish delegations were not co-equal in relation to administrative design and implementation was also relevant. The British negotiators, who included Sir Hamar Greenwood (Chief Secretary for Ireland), were insiders, nestled within existing administrative institutions and norms. Control of drafting was salient. The word ‘shall’, in both Article 17 of the Treaty and its explanatory memorandum, ensured that the Provisional Government would be the recipient of pre-existing administrative functions. An element of choice is not obvious. Importantly too, the transfer of functions would be effected under British legislation and executive orders, bestowing Whitehall with strong influence in the implementation of Article 17. These factors are germane to the reproduction of norms. As Beyer (2010) highlights, ‘reproduction on the grounds of power is applicable if actors can resort to power in order to assert their interest’ (p. 4).

In contrast, the Irish delegates had come in from the administrative outlands of the Dáil system, having previously challenged British structures, though with some acceptance of prevailing administrative norms. It must have been recognised that the Dáil administration would likely not have been capable of filling the administrative gap if the British system had been suddenly discontinued. Presumably, the Irish delegates understood that erecting a new administrative system and abolishing the British one in a very short period of time was unviable (Pierson, 2000b, pp. 492–493).

Both sides had a vested interest in stabilising the new Irish state. The pre-existing administration was tried and tested and could be safely reproduced, even if not a perfectly efficient system (Liebowitz & Margolis, 1995, p. 212) nor universally supported. There had also been little time to consult the Dáil Cabinet on Article 17, though it is not apparent contact would have been made anyhow given the deteriorated relations between the Irish delegates and Dublin. In these circumstances, no new or coherent ideational structure materialised in London to supplant the administrative status quo. As Legro (2000) points out, ‘[a]ctors may not be able to coordinate because of a lack of information on what outcome is acceptable … failure to reach a consensus on a replacement could still produce continuity’ (p. 424). In any event, Article 17 was the touchpaper for a chain reaction of legislation and executive orders which assigned the emergent Irish state, initially at least, a pre-ordained administrative path.

Considered in the round, there was a preponderance of administrative continuity in the transitional dynamics of Article 17 and the Transfer Order. But this was not the whole picture. Belying the impulse of continuity was also the prospect of divergence. Article 17, on its own terms, did not preserve the existing public administration indefinitely. It spoke of transfer, not retention. The Transfer Order spoke more explicitly of ‘continuity’, though not perpetuity, a logical position given that the Provisional Government to which it assigned functions was itself temporary. This logic was also seemingly championed by Griffith and Collins, who had been directly involved in the Treaty negotiations, in their desires to isolate and replace elements of the prior administration. It also supports the notion that, in the political sphere, institutional ‘lock-ins’ are not necessarily permanent (Pierson, 2000a, p. 265; Thelen, 1999, p. 386). So the emergent legislative and administrative system in 1922 seems to have exhibited features of ‘early path dependence’ (Page, 2006, p. 91). In this frame, early outcomes shape, but do not dictate, later ones. The future is not deterministic but is nevertheless biased towards early decisions (Page, 2006, p. 91).

‘The extent to which they are not inconsistent’: the Irish free state constitution and the public administration

A committee of nationalists, lawyers, academics and former civil servants (the ‘Constitution Committee’) was formed in late January 1922 to devise a new constitutional framework for the Irish Free State (Cahillane, 2016, pp. 3–7). Collins was notionally chairman but Darrell Figgis, a prominent literary and nationalist figure, became acting chairman in Collins’s absence. The document was mostly drafted between 24 January and 15 June 1922, in consultation with the British, and was made public late in the June 1922 Irish General Election. It was subsequently debated and enacted as the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922 (hereinafter ‘the 1922 Constitution’)¹¹ on 25 October 1922 by the Dáil, sitting as a ‘Constituent Assembly’ in the ‘Provisional Parliament’. It received royal assent under the Irish Free State (Constitution) Act, 1922 (British legislation) on 6 December 1922.¹²

The 1922 Constitution presented an opportunity to determine how the Treaty principles would translate into the new order. Collins instructed the Constitution Committee ‘not to be bound up in legal formalities’ and that certain provisions of the Treaty referring to the ‘King’ and ‘Governor-General’ should be omitted (Cahillane, 2016, pp. 7–8). The complexion of the public administration also seems to have been forefront in Collins’s mind, attested by an initial sketch of a constitutional framework attributed to him. This contained an article dedicated to the establishment of a permanent ‘Public Service Commission’ (Farrell, 1970, p. 124). The room for overall policy manoeuvre in drafting the 1922 Constitution was somewhat overestimated, however. In reality, this moment presented an even narrower window of opportunity than had the Treaty negotiations and the Treaty itself was now the critical antecedent.

While a commendable draft emerged from the committee, there was an early expectation in certain quarters that it would prove unacceptable to the British as it ‘went outside the terms of the Treaty’ but that this also ‘left room for bargaining’ (Ernest Blythe, Dáil Éireann debate, 18 September 1922, vol. 1, no. 6). The Provisional Government presented it to predicably irate British politicians and administrators at a ‘conference on Ireland’ held between 26 May and 15 June 1922 (Cahillane, 2016, p. 49, 51). The conference was, in many respects, Act 2 of the Treaty negotiations. Both sides sparred over differing interpretations of the Treaty and, for a time, relations badly deteriorated.

These flashpoints also revealed some of the Irish representatives’ mindsets regarding the constitutional (re)production of colonial norms. For example, in a letter Hugh Kennedy, a member of the Constitution Committee and first Irish Attorney General, argued that the English legal system had been an alien imposition. Similarly, Collins reportedly accused the British of trying to force (English) common law. The inclusion of royal symbols also provoked major contention (Cahillane, 2016, p. 52, 54). Ultimately, the draft which emerged from the conference was substantially closer to British preferences. This tainted public perceptions of the final 1922 Constitution in Ireland and has been identified as a causal factor in the slide to civil war (Mohr, 2008, p. 168, 185–186).

At the same time, the 1922 Constitution did facilitate a limited amount of administrative experimentation, particularly through the so-called ‘extern ministers’ regime. This was modelled along Swiss lines and essentially envisaged a second tier of technical or administrative government ministers responsible for certain policy areas, such as agriculture and education (Cahillane, 2016, pp. 27–28). These ministers would be drawn from outside parliament though subject to parliamentary nomination. While aimed at diminishing political pressures in some policy areas, the scheme was also attractive for other, specifically political, reasons. It was thought some of those who opposed the Treaty could be persuaded to serve in government in a semi-detached way as extern ministers. But the scheme also aroused suspicion (particularly in British quarters) precisely because of this. This was coupled with concerns about democratic deficits, accountability and relative levels of influence. The final iteration of the extern ministers provision in the 1922 Constitution thus only loosely resembled the original concept. Political expediencies later saw the ministerial provisions revised, consigning the scheme to irrelevance (Cahillane, 2016, pp. 127–138).

The amplification of Treaty principles in the 1922 Constitution meant no fundamental interference with the normative underbelly of the existing public administrative system. Continuity was especially evident in the ‘transitory provisions’. Tellingly, these had not been made public when the draft was originally published in June 1922, on the back of concerns they might provoke negative reaction, especially the judicial provisions (Mohr, 2008, p. 183). For example, Article 73 specified:

Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State … at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.

Contemplating the 1922 Constitution from a historical institutionalism and path dependence standpoint, a familiar trend of continuity and incremental change again emerges. The period 24 January to 6 December 1922 represents the third phase of a critical juncture. Political actors and ideas did have a bearing on the final document, albeit within a narrow window of opportunity. The Irish negotiators were successful in convincing the British to accept some indigenous concepts of sovereignty and nomenclature in the constitutional framework, particularly around the new parliamentary institutions (Cahillane, 2016, p. 64). From an administrative standpoint, though, the picture is predominantly one of continuity. The legacies of Article 17 of the Treaty and the Transfer Order resonated. As discussed by Biggins et al. (2024b), legal and financial stability was further buttressed by the transitory provisions. The fact that the state was in the midst of an existential crisis against the backdrop of civil war also cannot be overlooked. These conditions may well have reduced the likelihood of immediate ideational or policy innovation, instead encouraging even greater reliance on ‘pre-existing patterns’ (Legro, 2000, p. 423).

Below the surface, however, lurked ambiguities. For instance, the reception of prior laws was framed by Article 73 as an indefinite arrangement, so this was not a simple ‘reproduction of the identical’ (Beyer, 2010, p. 3). The 1922 Constitution only committed to a temporary lock-in of existing institutions and norms. Uncertainty also lingered over precisely what was being retained. Undoubtedly, the transitional provisions salved prior British administrative norms. But pleas were also made in parliamentary debates in 1922 that the laws and courts of the Dáil system prior to December 1922 should be retained (Biggins et al., 2024b, p XXX). This revealed political ‘dissensus’ (Peters et al., 2005, p. 1275) below the surface of apparent institutional continuity. Beyond the 1922 Constitution, legislative and administrative initiatives undertaken in the early years of the state served to perpetuate these themes of both continuity and change.

Conclusions

The process of what we have called ‘priming’ for the successful creation of an independent Irish state was, as is well established, complex, involving continuity and change in a period of dramatic political and military upheaval. While much is known about the political and constitutional changes, and the personalities involved, insufficient detail has been paid to the basic administrative and organisational reforms that were necessary to allow the new Irish state to assume authority over the bureaucracy. Our goal has been to identify key phases in that period of transition and to explain how prevailing British administrative machinery was simultaneously absorbed and replaced. We identified three key phases of a critical juncture – January 1919 to the July 1921 Truce; the Truce to January 1922, when Dublin Castle was handed over; and January to December 1922, when the new state’s constitution was formulated. Continuity predominated across the three phases, albeit with glimpses of change at the edges.

Adopting established ideas from neo-institutional theory concerning path dependency and critical junctures, and also drawing on literature concerning post-colonial public administration, we set out a framework for unpacking the transition. We also provided cases of how it was manifested and the key documents to realise it. Post-1922, the priming period gave way to a more deliberate process of administrative greening which unfolded as the new state sought to quell dissent and assert its authority, as examined by Biggins et al. (2024b)

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Additional information

Notes on contributors

John Biggins

John Biggins is a practising Barrister, Research Assistant at UCD College of Social Sciences and Law and Lecturer at Maynooth University School of Law & Criminology. John's research traverses regulatory governance, public administration and legal history. John is particularly interested in the dynamics of legal transition in the early years of the Irish State.

Muiris MacCarthaigh

Muiris MacCarthaigh is Professor of Politics and Public Policy and Head of the Department of Politics and International Relations at Queen’s University Belfast. His research engages with a variety of debates within and between political science, public sector governance and public policy. His is particularly interested in the role played by administrative systems in translating political preferences into policy outcomes.

Colin Scott

Colin Scott was appointed Professor EU Regulation and Governance at UCD Sutherland School of Law in 2006 and currently serves as Registrar, Deputy President and Vice-President for Academic Affairs. His main research focus is on fragmentation and accountability in regulatory governance. He previously held academic appointments at the University of Warwick, the London School of Economics, the Australian National University and the College of Europe Bruges and has served as Dean of Law, Dean of Social Sciences and Vice President for Equality, Diversity and Inclusion at UCD. He is a member of the National Economic and Social Council and of the Irish Research Council.

Notes

1 While this term later took on a more specific meaning in referring to the Irish Parliament, at this stage it was conceived as a wider cultural institution or event.

2 Referring to broadly educated learned persons who were members of royal and aristocratic courts in Gaelic Ireland.

3 Indeed a study published by the International Monetary Fund in 2013 suggested that before (EU-demanded) changes in the 1990s, the Irish system of government budgeting and accounting was largely unchanged from that which it had inherited from the UK at independence.

4 An Act for the Union of Great Britain and Ireland, 39 & 40 Geo. 3, ch. 67.

5 E.g. sections 54, 55, 61 and 69, 10 & 11 Geo. 5., ch. 67.

6 Heads of Working Arrangements for Implementing the Treaty.

7 Provisional Government (Transfer of Functions) Order 1922, Belfast Gazette (7 April 1922) p. 379 (the ‘Transfer Order’). Partially replicated in Iris Oifigiúil (4 April 1922), ‘Public Notice No. 6’, p. 167.

8 12 & 13 Geo. 5, ch. 4.

9 Section 1 of the Irish Free State (Agreement) Act 1922.

10 It was explicitly confirmed by Article 10(i) of the Transfer Order that the RIC would not be transferred.

11 No. 1 of 1922.

12 13 Geo. 5, ch. 1.