Proposals for new legislation were drawn up by Stephen Roche, the acting Secretary of the Department of Justice. In August 1931 he advised the Government that existing draft legislation, the Police (Powers) Bill, would be “entirely inadequate”. He was directed to submit proposals which he believed would be sufficient, “regardless of the political or Parliamentary difficulties”.141 Cosgrave began seeking Church support, warning Cardinal McRory of “a situation which threatens the whole fabric of both Church and State”.142 The Justice memorandum was sent to the Catholic hierarchy, with a request from Cosgrave for “joint Episcopal action in the form of a concise statement of the law of the Church in relation to the present issues … Doctrines are being taught and practised which were never before countenanced amongst us and I feel that the influence of the Church alone will be able to prevail in the struggle against them.”143 The bishops issued a hard-hitting joint pastoral on 18 October, the day after the new emergency powers became law.
From Geneva, Patrick McGilligan wrote to the Secretary of the Department of External Affairs, Joe Walshe, expressing a preference for a “simple” Bill, giving the Government powers to deal with the security situation by decree, rather than “a Bill of a repressive type with many clauses … [which would] if it is to be put through the Dáil, give rise to interminable debates the propaganda effect of which will be very bad for us”. McGilligan also mused that the Government might be better to go for an early election rather than trying to carry on, not only because of “the irregular and Bolshie situation”, but also because of the economy. “I feel it would be sheer madness to think of trying to operate repressively throughout a miserable and poverty-stricken twelve-month. I wonder if a February election would be at all possible.”144
McGilligan’s analysis of the likely election date was spot on. And while the legislation was more detailed than he wished, it didn’t spend too long going through the Dáil. Introduced on 14 October, it was law by the seventeenth. The Constitution (Amendment No. 17) Act set up a Special Powers Tribunal made up of military officers, gave special powers to the Gardaí, outlawed associations aiming to overthrow the Government by force, as well as prohibiting their publications, and gave the Executive Council the power to ban public meetings, among other things.145 These new powers were inserted as a Schedule into the Constitution immediately after Article 2, and therefore called Article 2A. As soon as the Act was signed into law, the Government made the necessary order to bring it into force. In a statement, President Cosgrave noted that the powers in the Act were wide and the penalties drastic, but hoped they would only have to be used “to the minimum necessary”. He added, “The State must protect the people from everything which involves the decay and downfall of the Irish nation.”146 Ironically, one of General O’Duffy’s suggestions which was not taken up was a ban on “the wearing of uniforms or badges indicating membership of an unlawful association”147—a decision O’Duffy was to have cause to be grateful for a couple of years later.
Although the Government had given O’Duffy many of the powers he sought, there was evidently still nervousness about how they would be used. On the nineteenth, ministers approved a note on policy, prepared for Justice Minister James FitzGerald-Kenny by his civil servants. Mindful of previous abuses, it stressed that “any unnecessary act of violence by the police or any unnecessary discourtesy will be visited with most severe punishment”. It also noted that the police now had “ample powers within the law to deal with political crime”. Those powers were not to be exercised without political supervision—Republicans prepared to keep quiet were not to be harassed, while an executive minister was to approve the process of bringing a suspect before the Tribunal.148 In fact, it was generally Costello and his successors as Attorney General who made the decision (this was long before the introduction of an independent Director of Public Prosecutions—a reform introduced by Declan Costello when he was Attorney General). The Gardaí sent copies of the relevant papers to the Attorney and to the Minister for Justice, but in practice the Attorney gave the direction without consulting the Minister.149 The point was that the Gardaí did not make the decision about using special powers.
O’Duffy had different ideas. He informed the Minister for Justice that each Division had been asked to supply a list of unsolved “outrages”, together with a list of suspects for each one. He anticipated that the provisions of the new law for “accounting for movements and actions at time of the crime should be very helpful in this respect”. He also planned to arrest around a hundred leading Republicans and interrogate them, although he added, “I do not recommend internment. I believe the Act gives sufficient scope to frame some charge against any person worth arresting. There will always be a popular demand for the release of any person against whom no charge is preferred.” He assured the Minister that his men had been “warned very definitely that anything in the nature of so-called third degree methods, flourishing of guns, or bullying tactics, will be severely punished”.
The Commissioner also sought an increase in Garda numbers to cope with the extra work, asking for permission to admit two hundred retired officers into the Special Branch immediately.150 A special meeting of ministers considered O’Duffy’s memo on 22 October, ruling out an increase in recruiting, rejecting his suggestion that agrarian crime and mail-car robberies should come under the Act (unless firearms were used), and limiting the interrogation powers to outrages committed since the start of the year. “It would not be in accordance with Government policy to be presented with a large number of prisoners against whom there was no heavier charge than refusing to answer questions.”151
The effect of the legislation, according to Eunan O’Halpin, was threefold: it removed the problem of jury intimidation; it increased the stakes for Republican opponents of the Government, who knew that internment and executions were real possibilities; and it succeeded in curbing political violence, allowing the February 1932 election to proceed in relative peace.152 But again, as after the assassination of O’Higgins, the actual implementation of the draconian powers concerned was far less severe than is generally thought. Costello later outlined his view that “every person that went to prison under that Article was a monument to the failure of that Article. Its operation was effective merely because it was in terrorem …”153 In other words, it was a deterrent; and a deterrent that has to be used has failed. Costello made many references in later years to his unhappiness at being involved with Article 2A—viewing it as a deterrent that would not have to be used was one way of dealing with his doubts.
As soon as Fianna Fáil took office, the tribunals were suspended and the 17 men imprisoned by them pardoned. Gardaí trying to bring prosecutions against the IRA under other legislation found it almost impossible to get directions from the new Attorney General, Conor Maguire. “The message as far as the Guards was concerned … was clear. It was ‘Hands off the IRA’.”154 The suspension was to prove temporary—the tribunals were reappointed in August 1933 to deal with the Blueshirts, although the IRA was soon receiving attention as well. And following the introduction of the new Constitution in 1937, Article 2A provided the template for successive Offences Against the State Acts.
O’Duffy had managed to alienate his political superiors with his extremism, as well as by refusing to accept a pay cut for Gardaí. He was clearly becoming more erratic, and the Cosgrave Government had decided to dismiss him if returned to office—one suggestion was to appoint him consul to the United States.155 He was also apparently considering a possible coup, as were some elements in the Army. As his biographer puts it, O’Duffy “had little faith in the government, indeed numerous reasons to resent it, and he regarded the opposition as unfit for power. His reports revealed his lack of respect for the constitution, and an underlying belief that the public lacked the civic virtues necessary for democratic rule.”156 The ministers planning to sack him knew all this, which makes their later decision to make him leader of Fine Gael all the more extraordinary.
As
the election approached, the question of payments of the Land Annuities became a live political issue into which Costello was drawn. The Annuities were payments due for the purchase of land from landlords under the 1891 and 1909 Land Acts, amounting to £3 million per year. The Free State Government had committed itself in a number of agreements with Britain to continue collecting the annuities and paying them to Britain.157 However, a vigorous campaign against paying the annuities was waged by the editor of An Phoblacht, Peadar O’Donnell. In December 1926, Costello as Attorney General advised the Department of Justice on the type of charges which might be brought against O’Donnell, suggesting that a charge of conspiracy to commit a wrongful act would be more likely to succeed than one of sedition.158 Of more concern, though, was the attempted hijacking of the campaign by Fianna Fáil, which challenged the payments on technical legal grounds. The Government won a vote on the matter in the Dáil in May 1929, but the agitation continued, and Costello was instructed to draw up a comprehensive memorandum on the subject.
Despite the convention that the legal advice of the Attorney General is privileged and confidential to the Government, the 49-page memorandum was published as a Government White Paper.159 It concluded that “the action of the Government of the Irish Free State in reference to the Land Purchase annuities is and has been strictly in accordance with the law and with the necessity of maintaining the credit and honour of the State”.160 Fianna Fáil, naturally, were not impressed, complaining that “it seemed hardly fair tactics to present such a document to the public on the eve of an election”, and producing its own legal opinions which argued the opposite case.161 When Fianna Fáil in power withheld the Annuities, sparking the Economic War, the British Treasury brief challenging their right to do so quoted Costello’s memorandum in support of the British position.162
Throughout Costello’s time as Attorney General, there was a continuing dispute involving Dublin, Belfast and London over fishing rights in Lough Foyle. The rights were claimed by the Irish Society, the body set up by Royal Charter in 1613 to govern the plantation of the Derry area by the City of London. The Society had leased the fishing rights to the Foyle and Bann Fisheries Company. Which was all well and good, except that Donegal fishermen in the Inishowen peninsula didn’t recognise the Society’s right to control fishing in the lough. Their fishing—or poaching, depending on the point of view—threatened to lead to violent confrontation. In 1923, Donegal District Court threw out a trespass case against the Donegal fishermen because jurisdiction over the lough was unresolved—and it was to remain unresolved despite intensive negotiations involving Costello and his counterpart in Belfast, Anthony Babington.
In July 1925 the Secretary to the Executive Council, Diarmuid O’Hegarty, wrote to the Boundary Commission pointing out that the Government of Ireland Act defined Northern Ireland as consisting of parliamentary counties, rather than counties. And in maps drawn up to show the parliamentary counties, the lough was not included in either Londonderry or Donegal. Therefore, the argument went, the lough by definition was not part of Northern Ireland and so belonged to the Free State.163 Craig and Cosgrave met in London in December 1925 to agree, with the British, a settlement which shelved the report of the Boundary Commission in return for the removal of financial liabilities incurred by the Free State under the Treaty.164 Craig came away with the impression that Cosgrave had “practically concurred” in the view that the lough was included in the parliamentary county of Londonderry. According to Craig’s recollection, Cosgrave asked that this not be included in the Agreement, “as he would experience sufficient difficulty in dealing with the actual question of the Boundary Agreement in the Dáil”.165
Given this recollection, Craig was confident that the Lough Foyle issue could be sorted out in talks with Dublin, even though “we were still in some doubt as regards our legal position”.166 Attorney General Babington was also “strongly of opinion that outstanding questions should be settled by an amicable arrangement with the Free State rather than having the matter contested in any Court”.167 At the end of July 1926, the Cabinet authorised Babington to go to Dublin to have an informal chat with his opposite number, Jack Costello, “to see whether some arrangement could be arrived at which would overcome the immediate difficulty”.168 The two men duly met in August, but their discussions don’t seem to have made progress.169
The following March, the Northern Prime Minister, now elevated to the peerage as Lord Craigavon, wrote to Cosgrave saying that with the fishing season starting on 15 April “serious trouble may occur unless this question of jurisdiction is definitely settled before then”. He said his government intended introducing legislation in the Northern Parliament to deal with the matter, and went on to outline his recollection of their discussion in London.170
This letter immediately set off alarm bells in Dublin. Cosgrave sent a copy to Costello, seeking material for a reply,171 later telling him that the question raised by Craigavon in London was to do with shipping rights in the lough, not fishing.172 In his reply to Craigavon, Cosgrave insisted that his recollection of their discussion in London was quite different, and that neither he nor any of his colleagues changed the position they had adopted since the Treaty, that all of Lough Foyle was within the Free State’s jurisdiction. The proposed Northern Bill was based on an assumption of jurisdiction which Dublin “very strongly controverts”, and would create “a very serious situation” if it proceeded.173 He also wrote to British Prime Minister Stanley Baldwin advising him of the situation.174
Craigavon appeared somewhat taken aback by Cosgrave’s response, agreeing that the question was now more serious than one of disputed fishery rights, and suggesting that his government should introduce its Bill, and if it was ultra vires the British Cabinet could then refer it to the Privy Council under the terms of the Government of Ireland Act175—a suggestion that was immediately and predictably rejected by Cosgrave, who proposed direct negotiations instead.176 Craigavon, clearly wary of too much contact with Dublin, suggested that as it was a legal question, it might be better to have the respective Attorneys General discuss it, a suggestion Cosgrave accepted.177
J.M. Andrews, the North’s Minister for Labour, had earlier expressed the fear that if news of the discussion with Dublin got out it would be misunderstood, with many people thinking it was “the thin end of the wedge towards a United Ireland”.178 It was not surprising then that the Northern side treated the issue with considerable circumspection, agreeing that discussions about Lough Foyle at Cabinet would not be circulated in the normal way,179 while Babington suggested discretion to Costello, writing that “one may possibly be able to talk more freely if we met privately in the first instance”.180 When the two men met, they each put forward well established positions—Babington arguing that the starting point must be an admission by Dublin that the Irish Society owned the fishing rights, Costello countering that the Society should prove this by taking a case in the Free State courts. They came up with a suggested modus vivendi—each Government should pass legislation banning fishing with drift or other nets (other than those used by the Society for centuries). This would protect the Society’s fishery without affirming or denying its ownership.181 Shortly afterwards, Costello prepared a lengthy memorandum for his Government colleagues, stressing the strength of the Free State claim to the entire lough, but concluding that “a working arrangement ought to be effected between the two Governments”.182
Desultory talks between the two Attorneys continued over the winter,183 and in mid-February they met when Babington travelled to Dublin for the Ireland–England rugby match. There was a poor result in the rugby (Ireland lost by one point, 6–7, the team’s only defeat in that year’s Five Nations)184 and deadlock on Lough Foyle. In some frustration, Babington wrote to Costello telling him that if Dublin couldn’t accept the Northern proposals, they should come up with their own suggestions.185 This led to the formation of a Cabinet sub-committee of Ernest Blythe (Minister for Finance), Desmond FitzGerald (Defenc
e), Patrick McGilligan (Industry and Commerce) and James FitzGerald-Kenny (Justice).186 Costello again gave his opinion to the Committee that the Lough belonged absolutely to the Free State, but that under international law they couldn’t deny the Northern Government innocent passage for shipping through it. He added that the dispute had arisen from excessive and illegal drift-net fishing, which would have to be stopped even if the Free State exercised complete ownership of the Lough.187 Babington’s barrage of letters to Costello continued, with some effect, as he sought further meetings of the sub-committee because of the “insistent pressure” from the Northern Attorney.188 The result was rather less dynamic than Costello or Babington might have wished. Fisheries Minister Fionán Lynch undertook “to have the whole question of fisheries in the Lough and in the river exhaustively examined”, and then to bring forward proposals for how the two governments might agree to purchase and control the Foyle fisheries.189
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