Costello owed his handsome salary to Kennedy. It had been set at this level in 1922, possibly because of Kennedy’s complaint that he had been unable to continue his private practice at the Bar (one of his conditions for taking the job) because of the volume of Government work he faced.46 The question of private practice by the Attorney General continued to generate debate for many years to come. Kennedy himself, speaking in the Dáil during the debate on the Ministers and Secretaries Bill in 1923, rejected the notion that the office should be a full-time one. He pointed out that the “exceedingly exacting character of the position” which had prevented him from taking any private practice would probably not continue once the new State was firmly established. He added that no barrister could accept the job as a full-time office, as he would lose his position in the profession.47
Seven years later, Cosgrave sought Costello’s views on the subject, enclosing a newspaper clipping reporting a case in Belfast in which Babington appeared.48 Costello replied that while he had “kept the point open that in theory at least the Attorney General is entitled to take on private work, in practice I have never done so nor has either of my predecessors”. He then went further, stating that “in principle I think it is wrong that the Attorney General should be entitled to take private work. Abuses might very easily result. It is, of course, essential that the Attorney General should be above suspicion and his remuneration has to be fixed with that object in view.” He added that when the Attorney appeared in Court for the Government, the practice had been that he did not take any fee over and above his salary.49 (Costello had represented the State in Court in a number of important cases, such as Leen v. President of the Executive Council in the High Court in 1926, and Fogarty v. O’Donoghue in the High and Supreme Courts in 1928.50) Cosgrave directed that the exchange should be filed to give a permanent record of the practice regarding fees.51
A further memorandum on the subject, dated 1 February 1932, is unsigned, but a note in the file suggests it should be attributed to Costello (an attribution accepted by J.P. Casey, the author of the standard work on the office of the Attorney General).52 However, as the memorandum argues that the prevailing practice should be changed to allow the Attorney to carry out private practice, and as the incoming Fianna Fáil administration adopted this approach, it seems far more likely that it was written by Conor Maguire, who succeeded Costello as Attorney General, and added to the file after the change of government. Further support for this view comes in a letter from Costello to G.P.S. Hogan, secretary to the Committee of Inquiry into Ministerial and Other Salaries in 1937, in which he repeats his view that “in principle the Attorney General ought not to engage in private practice”.53
When the new Fianna Fáil government took office in March 1932, it announced, with a great show of Republican virtue, that it was cutting the salaries of the President and the Attorney General from £2,500 to £1,500, and of ministers from £1,700 to £1,000 per annum. However, the virtue was somewhat more apparent than real—the old figures were before tax, while the new ones referred to after-tax income.54 In addition, the new Attorney General had other compensations—the new Government allowed him to take private cases, and to keep fees earned in the course of his duties.55 However, this position was later reversed—in December 1936 it was decided that such fees should be retained by the Exchequer, and in January 1946 it was formally decided that the Attorney should not take private work.56
Ironically, it was John A. Costello, back in government as Taoiseach in 1948, who reversed these decisions, agreeing to allow his Attorney General, Cecil Lavery, to “engage in such private practice as, in his discretion, he might deem not to be incompatible with the duties of his office”,57 and also to retain fees paid to him for the discharge of his duties.58 He also insisted on the revival of the tradition that the Chief Justice should formally welcome Lavery and “summon him to his place as leader of the Bar”, a practice which had died out after 1936.59 Given his own attitude when Attorney General, it appears strange that Costello should revert to the practice established by his rival Conor Maguire. But in his 1937 letter about the role of the Attorney General, in which he stated that in principle the Attorney should not engage in private practice, Costello went on to point out that anyone taking on the job “would be called upon to make a very great personal and professional sacrifice. I may say that I personally would not accept the position unless I were assured that I could devote myself to a very considerable extent to private practice.”60 In 1948 he made a similar point to the Secretary to the Government, Maurice Moynihan, in relation to Lavery. Costello stated that it was in the public interest to appoint a leading member of the Bar, and it would be unreasonable to expect them to make the considerable sacrifice of income involved in accepting the office without the right to engage in private practice.61
Of course, Cecil Lavery in 1948 was a well established senior counsel, and would have been able to earn a much higher income than would Costello at the time of his own appointment in 1926, when he was an S.C. of just six months’ standing. By the time he wrote in 1937 that he would not take the job without the right to practice privately, Costello would have been a considerable earner himself, which probably explains the change in his own attitude to the job—although his view of the principle involved did not change: he recognised the potential for conflict of interest. In conversation with J.P. Casey in March 1975 about his appointment of Lavery, Costello once again stressed his opposition in principle to private practice by the Attorney because of the danger of abuse, but said “he believed that no such danger could arise in this instance.” As Casey points out, in 1950 Lavery’s successor as Attorney, Charles F. Casey, appeared for the respondent in the controversial Tilson case, which involved religion and adoption. “It is surprising that Costello did not intervene to prevent this. The case gave rise to considerable controversy about the implications of Article 44 of the Constitution, and it was hardly desirable for the AG to have been—unnecessarily—involved in this.”62
The other potentially controversial aspect of the Attorney General’s role concerned his involvement in politics. Hugh Kennedy, of course, had been elected to the Dáil in a by-election after his appointment—apparently at Cosgrave’s suggestion.63 But subsequently Cosgrave, and particularly Kevin O’Higgins, took the view that the Attorney should not be a TD. As Costello later recalled, “Mr Cosgrave, many a time, put it to me that his view was that the Attorney General occupied a quasi judicial position and he should be apart from politics and that the government should be … enabled … to get an opinion from the Attorney General that was unbiased and untinged with their political outlook and that it therefore could be relied upon as completely impartial and not being motivated or activated by politics.”64 Kevin O’Higgins, according to his biographer, “disliked the conventional legal careerist who takes up politics as a means of advancing himself in his profession … O’Higgins wished to establish the practice of appointing, as law officer to the Government, a barrister who had no seat in the Dáil to think about and who could give a detached opinion, as though he were advising a private client.”65 Costello did not follow this principle himself—his first Attorney General, Cecil Lavery, was a senator, and a TD, Patrick McGilligan, was Attorney during his second administration.
However, not being a TD does not imply a lack of political commitment—in the case of an Attorney General, support of the party in power is a necessary qualification for the job. In a 1974 newspaper interview, Costello was reported as saying that Cosgrave and O’Higgins believed the Attorney “should not be a member of, or attached to, any political party”.66 This notion was described as J.P. Casey as “surprising”,67 which indeed it is; it is also completely inaccurate. Costello was 83 when he gave the interview, and it appears that he was simply a little confused. In the same interview he criticised modern-day barristers for getting married after just five years at the Bar, claiming that “in my day it was an accepted rule that no young barrister got married until he
was 10 years at the Bar”.68 Evidently neither Costello, nor the interviewer, recalled that he was married in 1919, just five years after his call.
In any event, Costello as Attorney General was far from politically unattached, describing himself in later times as “a convinced supporter” of Cumann na nGaedheal,69 although as we shall see in Chapter 5 his first foray onto the hustings did not come about until the 1932 election. As J.P. Casey pointed out, the only way to have depoliticised the office of Attorney General would have been to make it a Civil Service post,70 which doesn’t appear to have been seriously contemplated by anyone. Indeed, by the 1970s, Costello had come to the view that Ireland should follow the British pattern, with the Attorney Generalship working as a full ministerial office71—a view which may well have been strengthened by his son Declan’s then position as Attorney General and TD.
While the “immense volume of work” involved in setting up the State referred to by Hugh Kennedy had eased somewhat, the job of Attorney General was still extremely busy, as the Cosgrave government continued to face enormous challenges, many of them with a legal aspect. The range of Commonwealth and international relations, in which the government of the Irish Free State sought to widen and extend its status as an independent state, will be dealt with in the next chapter. But in domestic politics too, there were many thorny legal challenges—including relations with the Stormont government across the Border; the problem of emergency legislation to deal with the threat of Republican violence; the Fianna Fáil challenge on the Oath and Annuities issues; and the problem of appeals to the Privy Council. In each of these, Costello was to play a prominent part.
One of the first matters to be dealt with by the new Attorney General was the question of appeals to the Privy Council, a matter of considerable legal and political delicacy, but one with which Costello was well familiar. While the Treaty of December 1921 did not specifically mention the Privy Council, it was agreed that the Irish Free State was to have “the same constitutional status in the Community of Nations known as the British Empire” as Canada, Australia, New Zealand and South Africa, and specifically that the position of the Free State “in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage” governing relations between Canada and the Crown and Westminster would also govern those with the Irish Free State. One of those practices was the right of appeal to the Judicial Committee of the Privy Council (a group of Law Lords, sitting in London). In fact, the British deliberately chose Canada because the appeal was provided for in the British North America Act but was modified in the Australian and South African Constitutions.72
But the actual terms of the Irish Free State Constitution appeared to the British to renege on the Treaty. Article 66 stated that the decision of the Supreme Court “shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever”. However, it then continued, “Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave.” So, were decisions of the Supreme Court final, or were they not?
When Lloyd George saw the terms of the draft Constitution, he complained that it was “wholly inconsistent with the Treaty”. He demanded answers on a range of issues which he felt were unclear in the Constitution—the oath, the declaration to be signed by members of the Provisional Government, common citizenship, the position of the Crown, treaty-making powers, and the Privy Council. “Are the courts of the Irish Free State to stand in the same relation to the King in Council (the Judicial Committee of the Privy Council) as do the courts of the Dominion of Canada?”73
In his response the following day, Arthur Griffith pointed out that the Privy Council question was “a matter of no small delicacy in Ireland”, adding that the appeal procedure was being challenged in the Dominions and could well be abolished in the near future. He said objection would be taken to some of those likely to be members of the Judicial Committee, adding, “we must ask what guarantees can be given that the impartiality of the Court in question can be secured”. And he objected to the appeal on grounds of expense. “It is a rich man’s appeal which may well be used to the destruction of a man not well off.” In conclusion, he said the Irish side “did not think that this appeal was a necessary incident of the Treaty position”.74
Despite the British complaints, the Constitution became law with the relevant article intact. Hugh Kennedy believed “there is to be no appeal from the Irish Courts to the Privy Council in London, only some old supposed right of anyone personally to petition the King being reserved”.75 In a letter to Labour Party leader Thomas Johnson, Kevin O’Higgins explicitly stated that the proviso at the end of Article 66 was intended “to preserve only the prerogative right of appeal … and not the wider appeal existing in Canada. It is intended to give us the South African position … that is to say, no appeals from ordinary litigations, but only appeals in such matters as upon petition to the Crown it may be decided should be allowed for some special reason. The special reasons contemplated are such as arise from the litigation in question affecting the other members of the Commonwealth.”76 Two points should be made here. In trying to achieve the South African position, the Irish were explicitly trying to wriggle out of the Treaty stipulation that the Free State should have the same “law, practice and constitutional usage” as Canada. Secondly, it was largely up to the Privy Council itself to decide if they got away with it.
The first time this was tested was in July 1923, when two petitions for a hearing came before the Privy Council. The first was Bowman v. Healy and Others—the case in which Costello had represented insurance officer Major Fuge in the Free State Courts (see Chapter 2). He again appeared in the Privy Council hearing for the respondents, along with Hugh Kennedy. The petition was withdrawn, and Kennedy sought his costs, which were awarded by Lord Haldane.77 The other petition came from the Freeman’s Journal, which had been sued for breach of contract by Swedish paper company Follum Traeslileri. The Swedes claimed the Journal had agreed to buy 5,000 tons of paper for £365,000, but had then reneged when the market price dropped, offering only £200,000. The Swedes won damages of £165,000 in the High Court in March 1922,78 a decision upheld in the Court of Appeal a year later, at which point counsel for the Freeman’s Journal sought a stay of execution pending an appeal to the Privy Council. Counsel for the newspaper claimed they were entitled to do so as there was the same right of appeal in the Free State as in Canada. Lord Justice O’Connor pointed out that the right only existed “where large questions of law were involved”, while Lord Chief Justice Molony asserted “there was no appeal in the ordinary sense now”.79 The irony of the last remnants of the British legal establishment refusing a nationalist newspaper the right to appeal to the King appears to have been lost on all concerned.
When the Freeman case came before the Privy Council in July 1923, the Free State was represented by its current and future Attorneys General—Hugh Kennedy and John A. Costello. The ruling, by Viscount Haldane, was all the Free State could have wished for. “Ireland is now by virtue of the Treaty … a Dominion … She has got immense control over her own internal affairs … and it follows that she must in a large measure dispose of her own justice … I was anxious not to rule out all the exceptional cases, but as the general principle is the first thing to start with, the general principles are principles of Dominion justice.”80 As Hugh Kennedy wrote to Cosgrave, the ruling allowed the Irish “to establish our position in this matter rigidly, and I need hardly say that this is a matter where, if they had been so dishonestly minded, the British side could have eaten into our rights very substantially”.81
But the position in fact was not as rigid as Kennedy believed, and there were inevitably further appeals. Two of these were heard in December 1925, with Costello
on the Free State’s legal team. The first, Lynham v. Butler, arose out of the interpretation of the 1923 Land Act, while the second, the Wigg and Cochrane case, concerned compensation for civil servants who retired under the terms of the Treaty. In Lynham v. Butler, the Lord Chancellor, Viscount Cave, ruled that “it does appear to be a point of importance which may arise in other cases, and their Lordships will advise that leave to appeal shall be granted on the usual terms”.82 This decision caused particular annoyance to the Irish, as “this was a matter of purely internal law”, and because questions asked by members of the Privy Council “revealed a complete misconception … of an aspect of Irish Land Law which had been established for decades”.83
The decision to grant leave to Wigg and Cochrane would appear to have had more justification, as the civil servants in question, who had won their case in the High Court but had it overturned on appeal to the Supreme Court, were trying to establish whether a claim to compensation under the Treaty was justiciable in the courts. According to Charles Bewley, who appeared before the Privy Council along with Costello, the Law Lords “obviously knew very little of the Pensions Act and nothing whatever of the various laws and orders governing the relations between Great Britain and Ireland”. After the hearing, as the two Irishmen walked down Whitehall, Costello asked Bewley if he knew the average age of the judges. He didn’t, but Costello had discovered from Who’s Who that the youngest was 71 and the oldest 87, the average age being 75. “Now that I know what the Privy Council is like, I’ve made up my mind that it must go. It’s a scandal that such a court should have the final decision in Irish cases.”84 Bewley’s memoirs are generally unreliable (as well as betraying his unpleasantly pro-Nazi outlook) but his record of this exchange has the ring of accuracy. It would be typical of Costello to prepare thoroughly for such a case, including checking up on the judges; and his trenchant response to seeing the Council in action is also characteristic.
The Reluctant Taoiseach Page 9
