44 years ago this afternoon on 22 October 1976, a constitutional crisis was averted by the resignation of Irish President Cearbhall ó Dálaigh.

On 21 July 1976 Christopher Ewart-Biggs (55), the newly appointed British Ambassador to Ireland, was on his way to his first formal meeting with then Irish Minister for Foreign Affairs, Dr Garret FitzGerald, (later Taoiseach (Irish Prime Minister)), at Iveagh House in Dublin.

Ewart-Biggs left his residence, Glencairn House in south County Dublin in a Jaguar car. Just 317 yards down the road from the gates of Glencairn House, a 200lb bomb, constructed by what was later described as "a South Armagh specialist" and hidden in a culvert under the road, was detonated by a three-man IRA gang as the car passed over it. Ewart-Biggs and British civil servant Ms Judith Cooke (26) were killed by in the bomb explosion. The driver Mr Brian O'Driscoll and Mr Brian Cubbon (57), the highest-ranking civil servant in Northern Ireland, were badly injured.

The assassination led to widespread revulsion and a government decision to crack down on the IRA. A Government meeting on 20 August 1976 approved the revised text of the Emergency Powers Bill, (its only substantive provision "providing for the arrest, questioning and keeping in custody of suspects for up to seven days"). In the normal course a period of detention for such a period of time would be regarded as unconstitutional, but during a period of national emergency would be permitted. In September 1939 a resolution had been passed by the houses of the Oireachtas (Irish Parliament) i.e. Dáil éireann and the Seanad, declaring an emergency and suspending certain provisions of the Irish constitution having regard to the outbreak of war in Europe. Remarkably, that state of emergency had never been cancelled, up to 1976.

The Irish Government authorised the Taoiseach (Irish Prime Minister) to move a resolution declaring a new state of emergency, in Dáil éireann and in the Seanad, "pursuant to sub-section 3 of section 3 of Article 28 of the Constitution, declaring that

“a) that the national emergency created by the armed conflict referred to in the Resolutions, pursuant to the said Article, of Dáil éireann and Seanad Eireann of the 2nd September, 1939, has ceased to exist, and

b) that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State."

The need for the new declaration was based upon the opinion of the then Attorney General, Declan Costello (Later President of the Irish High Court), that the State could no longer safely rely on the existence of the state of emergency which had been declared to have existed in 1939, and which most people would have regarded as having ended in 1945, as justification for suspension of constitutional rights in 1976. Hence the need for a new declaration of emergency. (This could provide food for a pub quiz question – when did the State of Ireland consider the Second World War to have ended, legally? – 1976).

The Emergency Powers Bill, 1976, was passed by both Houses of the Oireachtas on 16 September 1976. In accordance with Article 26 of the Constitution, the President can refer Bills or sections thereof to the Irish Supreme Court to test their constitutionality. Before doing so, however, he or she must first consult with the Council of State, an advisory body, although the President is free to disregard their advice.

The members of the Council of State are (Ex Officio) An Taoiseach (Prime Minister), An Tánaiste (Deputy Prime Minister), the Chief Justice, (now, but not in 1976, the President of the Court of Appeal), the President of the High Court, An Ceann Comhairle (Chair of Dáil éireann the lower house of parliament), An Cathaoirleach of the Seanad (Chair of the upper house of parliament), and the Attorney General. Former Office Holders, able and willing to act, who previously held office as President, Taoiseach or Chief Justice are also members.

The President, who had grave doubts as to the constitutionality of the 1976 Bill, convened a meeting of the Council of State on 23 September 1976, to advise him on whether or not he should refer the 1976 Bill to the Irish Supreme Court to consider the question of its constitutionality. An issue was whether the President should first sign the Bill as an act and then refer the act to the Supreme Court or whether he could simply refer the Bill.

On 24 September, 1976, the President, despite advice from two senior judges on the Council of State who said the measure was constitutional, referred the Bill to the Supreme Court pursuant to the provisions1 of Article 26, s. 1, sub-s. 1, of the Constitution of Ireland, 1937, for a decision on the question as to whether the Bill, or any provision or provisions of the Bill, was or were repugnant to the Constitution or to any provision thereof.

The President had himself previously served as Attorney General of Ireland, the youngest-ever member of the Irish Supreme Court, the Chief Justice of Ireland and when Ireland joined the European Economic Community had served as Ireland's first Judge of the European Court of Justice.

The case of In the Matter of Article 26 of the Constitution and in the Matter of The Emergency Powers Bill , 1976 was argued before the Supreme Court and on 15 October 1976, it was held by the Supreme Court, that:

1 The President had power to refer the Bill of 1976 to the Supreme Court.

2. That when a Bill is referred to the Supreme Court pursuant to Article 26 of the Constitution the test of whether or not it is repugnant to the Constitution is to be applied as if the Bill were an Act duly passed by the national parliament, signed by the President, and promulgated.

3. Accordingly, once it has been established that the procedural requirements affecting a Bill to which Article 28, s. 3, sub-s. 3, of the Constitution applies have been satisfied, the provisions of that sub-section prevent any part of the Constitution being invoked to invalidate such Bill.

4. That the long title of the Bill complied with the provisions of Article 28, s. 3, sub-s. 3, of the Constitution.

5. That there was a presumption that the facts stated in the resolution of each House of the national parliament were correct, and that such presumption had not been displaced.

6. That, accordingly, no part of the Bill of 1976 could be declared repugnant to the Constitution.

President ó Dálaigh decided to sign the Emergency Powers Bill at midnight on 15 October and announced the fact in advance. The IRA arranged a "spectacular" to coincide with the time of signing and having been lured to a remote house, Garda Michael Clerkin was killed in an IRA bomb and his colleagues maimed in a boobytrapped house in Mountmellick.

On Sunday, October 17th, several ministers attended Garda Clerkin's removal. On the following day, October 18, 1976 Defence Minister Paddy Donegan was addressing troops at Columb Barracks in Mullingar when he referred to the President as "A thundering disgrace". More seriously, he stated that the "Army must stand behind the State", implying to the soldiers that their commander in chief, President ó Dálaigh, did not.

Although Donegan repeatedly offered his resignation, the Taoiseach refused it, telling his Minister Donegan merely to apologise in person to the President. The President however, refused to meet him.

When the Dáil voted confidence in the Minister, there was a stand-off between the two officers of State, the Taoiseach and the President, and so the President resigned 44 years ago today on 22 October 1976.